[Federal Register Volume 81, Number 151 (Friday, August 5, 2016)]
[Rules and Regulations]
[Pages 52247-52273]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18117]
[[Page 52247]]
Vol. 81
Friday,
No. 151
August 5, 2016
Part VI
Department of the Interior
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Fish and Wildlife Service
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50 CFR Parts 32 and 36
Non-Subsistence Take of Wildlife, and Public Participation and Closure
Procedures, on National Wildlife Refuges in Alaska; Final Rule
Federal Register / Vol. 81 , No. 151 / Friday, August 5, 2016 / Rules
and Regulations
[[Page 52248]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 32 and 36
[Docket No. FWS-R7-NWRS-2014-0005; FF07R00000 FXRS12610700000 156
Obligation #4500093321]
RIN 1018-BA31
Non-Subsistence Take of Wildlife, and Public Participation and
Closure Procedures, on National Wildlife Refuges in Alaska
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or FWS), are
amending regulations for National Wildlife Refuges (NWRs) in Alaska
that govern predator control and public participation and closure
procedures. The amendments to the regulations are designed to clarify
how our existing mandates for the conservation of natural and
biological diversity, biological integrity, and environmental health on
refuges in Alaska relate to predator control; prohibit several
particularly effective methods and means for take of predators; and
update our public participation and closure procedures. This rule does
not change Federal subsistence regulations or restrict the taking of
fish or wildlife for subsistence uses under Federal subsistence
regulations.
DATES: This rule is effective September 6, 2016.
FOR FURTHER INFORMATION CONTACT: Stephanie Brady, Chief of Conservation
Planning and Policy, or Carol Damberg, Inventory and Monitoring
Biologist, National Wildlife Refuge System, Alaska Regional Office,
1011 E. Tudor Rd., Mail Stop 211, Anchorage, AK 99503; telephone (907)
306-7448 or (907) 786-3327. If you use a telecommunications device for
the deaf (TDD), call the Federal Information Relay Service (FIRS) at
800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
Proposed Rule and Public Comment Period
On January 8, 2016, we published a proposed rule in the Federal
Register (81 FR 887) to amend our regulations for refuges in Alaska to
clarify how our existing mandates for the conservation of natural and
biological diversity, biological integrity, and environmental health on
refuges in Alaska relate to predator control; to prohibit several
particularly effective methods and means for take of predators; and to
update our public participation and closure procedures. The proposed
rule was initially open for public comment for 60 days, ending March 8,
2016. On February 26, 2016, we extended the comment period by 30 days,
which resulted in a 90-day comment period on the proposed rule ending
on April 7, 2016 (see 81 FR 9799). We invited comments through the U.S.
mail or hand delivery, through the Federal eRulemaking Portal at http://www.regulations.gov, and at scheduled public hearings (see our
announcement of the public hearings at 81 FR 886; January 8, 2016).
During the comment period, we held nine public hearings on the
proposed rule (January 26, 2016, in Kotzebue, AK; February 8, 2016, in
Bethel, AK; February 10, 2016, in Fairbanks, AK; February 11, 2016, in
Tok, AK; February 16, 2016, in Soldotna, AK; February 18, 2016, in
Anchorage, AK; March 1, 2016, in Dillingham, AK; March 2, 2016, in
Kodiak, AK; and March 3, 2016, in Galena, AK). Approximately 218
individuals attended these hearings, and 104 participants provided
testimony during the public hearings. We also offered to consult in
person with Tribes and Alaska Native Claims Settlement Act, 43 U.S.C.
1601 et seq. (ANCSA or Native), corporations and attended numerous
Regional Advisory Council (RAC) meetings. Correspondence was received
from 28 tribal entities (Native nonprofits, Tribal Governments, RACs)
and from four ANCSA corporations. We met with eight Tribes and one
ANCSA corporation that requested consultation in person or via
conference call: Allakaket Council, Alatna Council, Doyon Corporation,
Gwichyaa Zhee Tribal Council, Kaktovik Tribal Council, Nulato Tribe,
Togiak Tribal Council, Native Village of Venetie Tribal Council, and
Venetie Village Council.
We received approximately 3,643 pieces of correspondence on the
proposed rule during the public comment period, and from the
correspondence, we derived over 80 comment statements (a comment
statement is a portion of the text within a correspondence that
addresses a single subject). Correspondence included unique comment
letters and form letters. Approximately 2,530 correspondence documents
were form letters. Approximately 409 pieces of correspondence received
provided substantive comments. Some commenters sent comments by
multiple methods. We attempted to match such duplicates and count them
as one comment. Additionally, many comments were signed by more than
one person. We counted a letter as a single comment, regardless of the
number of signatories. A summary of comments and FWS responses is
provided below in the section entitled Summary of and Response to
Public Comments. After considering the public comments and conducting
additional review, FWS made some changes in this final rule from that
proposed. These changes are summarized below in the table entitled,
Summary of primary differences between our proposed rule and this final
rule.
Federal and State Mandates for Managing Wildlife
FWS and the State of Alaska work together to manage fish and
wildlife in the National Wildlife Refuge System (NWR System). State
fish and wildlife authority remains the comprehensive management
backdrop in the absence of specific, overriding Federal law which
exists for specific statutory purposes. As explained below, FWS has
ultimate management authority over resources in the Federal NWR System
pursuant to a variety of statutes. However, effective stewardship of
fish and wildlife resources, various statutory provisions, and
Department of the Interior policy require close cooperation with the
State. Indeed, as a general rule, State regulations governing hunting
and fishing on refuges in Alaska are adopted with exceptions tailored
to the purpose of each refuge and the relevant Federal authority.
1. Federal Authorities
FWS has various mandates it must adhere to in managing the National
Wildlife Refuge System (NWR System). There are three statutes in
particular that provide direction and authority specific to NWRs in
Alaska: The 1980 Alaska National Interest Lands Conservation Act
(ANILCA; 16 U.S.C. 3111-3126); the National Wildlife Administration Act
of 1966 (Administration Act) as amended by the National Wildlife Refuge
System Improvement Act of 1997 (Improvement Act) (16 U.S.C. 668dd-ee);
and the 1964 Wilderness Act (16 U.S.C. 1131-1136).
The Improvement Act provides that ANILCA controls if there is a
conflict between the two. ANILCA added approximately 54 million acres
of land to the NWR System in Alaska, by establishing new NWRs or
expanding and redesignating existing NWRs. ANILCA also designated 18.7
million acres in 13 wilderness areas on refuges in Alaska as units of
the National Wilderness Preservation System.
[[Page 52249]]
Under ANILCA, each refuge in Alaska has a list of purposes for
which it was established, including the first-listed purpose to
``conserve fish and wildlife populations and habitats in their natural
diversity'' followed by a list of representative species particular to
each refuge. Kenai NWR has an additional statutory purpose to provide
opportunities for fish and wildlife-oriented recreation in a manner
compatible with these purposes. The other purposes established by
ANILCA for Alaska refuges (except international treaty obligations)
must be managed consistent with the purpose to conserve fish and
wildlife populations and habitats in their natural diversity.
Legislative history for ANILCA provides important guidance on the
intent and meaning of the term ``natural diversity.'' The 1979 Senate
Report on H.R. 39 (ANILCA) states that refuges represent, ``the
opportunity to manage these areas on a planned ecosystem-wide basis
with all of their pristine ecological processes intact'' (S. Rep. No.
96-413 at 174 (1979), reprinted in the 1980 United States Code
Congressional and Administrative News (U.S.C.C.A.N.) 5118). During
consideration of the concurrent resolution to correct the enrollment of
H.R. 39 (ANILCA), Alaska's U.S. Senator Ted Stevens submitted
statements explaining H.R. 39 that included the following regarding
``natural diversity'' (126 Cong. Rec. S15131 (Dec. 1, 1980)):
``Sections 302 and 303 of title III designate as a major purpose of
each new or expanding refuge the conservation of fish and wildlife
populations and habitats `in their natural diversity.' The phrase `in
their natural diversity' was included in each subsection of those two
sections to emphasize the importance of maintaining the flora and fauna
within each refuge in a healthy condition. The term is not intended to,
in any way, restrict the authority of the Fish and Wildlife Service to
manipulate habitat for the benefit of fish or wildlife populations
within a refuge or for the benefit of the use of such populations by
man as part of the balanced management program mandated by the Alaska
National Interest Lands Conservation Act and other applicable law. The
term also is not intended to preclude predator control on refuge lands
in appropriate instances.'' Senator Stevens goes on to state, ``Section
815(1) recognizes this difference by providing that the level of
subsistence uses within a National Park or National Park Monument may
not be inconsistent with the conservation of `natural and healthy' fish
and wildlife populations within the park or monument, while within
National Wildlife Refuges the level of subsistence uses of such
populations may not be inconsistent with the conservation of `healthy'
populations.''
Nine days after ANILCA was signed into law on December 2, 1980,
Congressman Morris Udall, Chairman of the Committee on Interior and
Insular Affairs and Floor Manager for H.R. 39, during a speech on the
floor of the House of Representatives described the source of the term
``natural diversity.'' He stated that the conservation of natural
diversity refers to ``protecting and managing all fish and wildlife
populations within a particular wildlife refuge system unit in the
natural `mix,' not to emphasize management activities favoring one
species to the detriment of another'' (126 Cong. Rec. H12, 352-53
(daily ed. Dec. 11, 1980) (statement of Rep. Udall)). During this floor
speech, Congressman Udall also stated that in managing for natural
diversity it was the intent of Congress, ``to direct the U.S. Fish and
Wildlife Service to the best of its ability, . . . to manage wildlife
refuges to assure that habitat diversity is maintained through natural
means, avoiding artificial developments and habitat manipulation
programs. . .; to assure that wildlife refuge management fully
considers the fact that humans reside permanently within the boundaries
of some areas and are dependent, . . . on wildlife refuge subsistence
resources; and to allow management flexibility in developing new and
innovative management programs different from lower 48 standards, but
in the context of maintaining natural diversity of fish and wildlife
populations and their dependent habitats for the long term benefit of
all citizens'' (126 Cong. Rec. H12, 352-53 (daily ed. Dec. 11, 1980)
(statement of Rep. Udall)).
Although the above congressional testimonies provide slightly
differing views about what is encompassed by managing for natural
diversity, there is a common theme to protect and maintain the flora
and fauna within each refuge while providing opportunities for
subsistence under Title VIII of ANILCA. This legislative history, other
ANILCA background documentation, and FWS laws, mandates, and policies
serve to guide refuge management to meet the natural diversity purpose
language of ANILCA and were used to develop the definition of natural
diversity contained in this rule.
In its ANILCA Title VIII statement of policy, Congress also stated,
``nonwasteful subsistence uses of fish and wildlife and other renewable
resources [by rural residents] shall be the priority consumptive uses
of all such resources on the public lands of Alaska when it is
necessary to restrict taking in order to assure the continued viability
of a fish or wildlife population or the continuation of subsistence
uses of such population, the taking of such population for nonwasteful
subsistence uses shall be given preference on the public land over
other consumptive uses'' (16 U.S.C. 3112(2)). This subsistence priority
applies within all National Wildlife Refuges in Alaska.
All refuges in Alaska (except Kenai National Wildlife Refuge) have
among their stated statutory purposes the requirement to provide the
opportunity for continued subsistence use by local rural residents in a
manner consistent with the conservation of fish and wildlife
populations and habitats in their natural diversity and fulfilling the
international treaty obligations of the United States with respect to
fish and wildlife and their habitats. In a further statement of ANILCA
Title VIII policy, Congress stated that ``consistent with sound
management principles, and the conservation of healthy populations of
fish and wildlife, the utilization of the public lands in Alaska is to
cause the least adverse impact possible on rural residents who depend
upon subsistence uses of the resources of such lands; consistent with
management of fish and wildlife in accordance with recognized
scientific principles and the purposes for each unit established . . .
the purpose of this title [Title VIII] is to provide the opportunity
for rural residents engaged in a subsistence way of life to do so'' (16
U.S.C. 3112(1)). The Senate Committee on Energy and Natural Resources
in its report on H.R. 39 stated that ``the phrase `the conservation of
healthy populations of fish and wildlife' is to mean the maintenance of
fish and wildlife resources in their habitats in a condition which
assures stable and continuing natural populations and species mix of
plants and animals in relation to their ecosystems, including
recognition that local rural residents engaged in subsistence uses may
be a natural part of that ecosystem . . .'' (S. Rep. No. 96-413 at 233,
reprinted in 1980 U.S.C.C.A.N. 5177). Furthermore, Congress also
expressly stated that nothing in Title VIII shall be construed as
``modifying or repealing the provisions of any Federal law governing
the conservation or protection of fish and wildlife, including the
National Wildlife Refuge System Administration Act of 1966 . . .'' (16
U.S.C. 3125(4)).
FWS recognizes the importance of the fish, wildlife, and other
natural
[[Page 52250]]
resources in the lives and cultures of Alaska Native people(s) and
rural residents, and in the lives of all Alaskans, and we continue to
recognize subsistence uses of fish and wildlife and other renewable
resources as the priority consumptive use on Federal lands in Alaska,
which includes all NWRs in Alaska. This rule does not change the
existing Federal subsistence regulations (title 36 of the Code of
Federal Regulations (CFR) at part 242 (36 CFR part 242) and 50 CFR part
100) or restrict the taking of fish or wildlife for subsistence uses
under the Federal subsistence regulations.
The Improvement Act states that refuges must be managed to fulfill
the mission of the NWR System and purposes of the individual refuge.
The Improvement Act established the mission of the NWR System, to
``administer a national network of lands and waters for the
conservation, management, and where appropriate, restoration of fish,
wildlife, and plant resources and their habitats within the United
States for the benefit of present and future generations of
Americans.'' Section 4(a)(4)(B) of the Improvement Act states that ``In
administering the System, the Secretary shall . . . ensure that the
biological integrity, diversity, and environmental health [BIDEH] of
the System are maintained for the benefit of present and future
generations of Americans . . .'' (16 U.S.C. 668dd(a)(4)(B)). The FWS
BIDEH policy (601 FW 3), which provides guidance for implementation of
this aspect of the Improvement Act, defines biological integrity as
``biotic composition, structure, and functioning at genetic, organism,
and community levels comparable with historic conditions, including the
natural biological processes that shape genomes, organisms, and
communities.'' In that policy, biological diversity is defined as ``the
variety of life and its processes, including the variety of living
organisms, the genetic differences among them, and communities and
ecosystems in which they occur.'' The policy defines environmental
health as the ``composition, structure, and functioning of soil, water,
air, and other abiotic features comparable with historic conditions,
including the natural abiotic processes that shape the environment.''
Abiotic features are nonliving chemical and physical features of the
environment (e.g., soil, air, water, temperature, etc.). The policy
also defines ``historic conditions'' as the ``composition, structure,
and functioning of ecosystems resulting from natural processes that we
believe, based on sound professional judgment, were present prior to
substantial human related changes to the landscape.'' In implementing
this policy on refuges, we favor ``management that restores or mimics
natural ecosystem processes or functions to achieve refuge
purposes(s).'' Additionally, under this policy, we ``formulate refuge
goals and objectives for population management by considering natural
densities, social structures, and population dynamics at the refuge
level'' and manage populations for ``natural densities and levels of
variation.''
Based on the above discussion, we conclude that management in
accordance with the BIDEH policy mandated by the Improvement Act is
essentially the same as managing for natural diversity as mandated by
ANILCA. Each mandate requires us to manage for natural diversity using
minimum manipulation where possible, but also recognizes that active
management may be required relative to other mandates, altered
landscapes, and changing human influences. Each mandate allows
appropriate management tools to remain available as needed for future
refuge management. The terms biological integrity, diversity, and
environmental health are defined in the BIDEH policy, which directs FWS
to maintain the variety of life and its processes; to maintain biotic
and abiotic compositions, structure, and functioning; and to manage
populations for natural densities and levels of variation throughout
the NWR System.
The Wilderness Act (16 U.S.C. 1131-1136) states that wilderness
``is hereby recognized as an area where the earth and its community of
life are untrammeled by man . . . which is protected and managed so as
to preserve its natural conditions.'' Our wilderness stewardship policy
(610 FW 1) interprets ``untrammeled'' to be ``the freedom of a
landscape from the human intent to permanently intervene, alter,
control, or manipulate natural conditions or processes.'' The second
chapter of the wilderness stewardship policy, which outlines
administration and resource stewardship (610 FW 2), directs that FWS
will not manipulate ecosystem processes, specifically including
predator/prey fluctuations, in wilderness areas unless ``necessary to
accomplish the purposes of the refuge, including Wilderness Act
purposes, or in cases where these processes become unnatural'' (i.e.,
disrupted predator/prey relationships, spread of invasive species, and
so forth). Additionally, nothing in this rule applies to or is
inconsistent with our policy that outlines special provisions for
Alaska wilderness (610 FW 5).
The overarching goal of our wildlife-dependent recreation policy is
to enhance opportunities and access to quality visitor experiences on
refuges and to manage the refuge to conserve fish, wildlife, plants,
and their habitats (605 FW 1.6). We recognize hunting as one of many
priority uses of the NWR System (when and where compatible with refuge
purposes) that is a healthy, traditional outdoor pastime, deeply rooted
in the American heritage (605 FW 2). As stated at 50 CFR part 36, the
taking of fish and wildlife through public recreational activities,
including sport hunting, is authorized on refuges in Alaska ``as long
as such activities are conducted in manner compatible with the purposes
for which the areas were established'' (50 CFR 36.31(a)).
2. Applicability of State Authority
In 1970, the Secretary of the Interior developed a policy statement
on intergovernmental cooperation in the preservation, use, and
management of fish and wildlife resources. The purpose of the policy
(36 FR 21034, November 3, 1971; 43 CFR part 24) was to strengthen and
support the missions of the several States and the Department of the
Interior respecting fish and wildlife. Federal authority exists for
specified purposes while State authority regarding fish and resident
wildlife remains the comprehensive backdrop applicable in the absence
of specific, overriding Federal law.
In general, the States possess broad trustee and police powers over
fish and wildlife within their borders, including fish and wildlife
found on Federal lands within a State. Under the Property Clause of the
Constitution, Congress is given the power to ``make all needful Rules
and Regulations respecting the Territory or other Property belonging to
the United States.'' In the exercise of power under the Property
Clause, Congress may choose to preempt State management of fish and
wildlife on Federal lands and, in circumstances where the exercise of
power under the Commerce Clause is available, Congress may choose to
establish restrictions on the taking of fish and wildlife whether or
not the activity occurs on Federal lands, as well as to establish
restrictions on possessing, transporting, importing, or exporting fish
and wildlife.
Units of the National Wildlife Refuge System constitute federally
owned or controlled areas set aside primarily as conservation areas for
migratory waterfowl and other species of fish or wildlife. In contrast
to multiple use public lands, the conservation,
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enhancement, and perpetuation of fish and wildlife is almost invariably
the principal reason for the establishment of a unit of the National
Wildlife Refuge System. In consequence, Federal activity respecting
management of migratory waterfowl and other wildlife residing on units
of the National Wildlife Refuge System involves a Federal function
specifically authorized by Congress. Units of the National Wildlife
Refuge System, therefore, shall be managed, to the extent practicable
and compatible with the purposes for which they were established, in
accordance with State laws and regulations, comprehensive plans for
fish and wildlife developed by the States, and Regional Resource Plans
developed by the Fish and Wildlife Service in cooperation with the
States.
In Alaska, as such, sport hunting and trapping on refuges are
generally regulated by the States, unless further restricted by Federal
law (see 50 CFR 32.2(d)) or closures to Federal public land, such as
under Federal subsistence regulations (36 CFR 242.26 or 50 CFR 100.26).
In Alaska, sport hunting is commonly referred to as general hunting and
trapping and includes State subsistence hunts and general permits open
to both Alaska residents and nonresidents (see definition of ``sport
hunting'' under the Regulation Promulgation section, below). These
activities remain subject to Federal law, including mandates under
ANILCA; the Improvement Act; and, where applicable, the Wilderness Act.
Applicable directives and guidance can also be found in policies in the
Service Manual at 601 FW 3 (Biological Integrity, Diversity, and
Environmental Health), 605 FW 2 (Hunting), 610 FW 2 (Wilderness
Administration and Resource Stewardship), and 610 FW 5 (Special
Provisions for Alaska Wilderness). Additionally, the regulations at 50
CFR 36.32(a) state that the Refuge Manager ``may designate areas where,
and establish periods when, no taking of a particular population of
fish or wildlife shall be permitted.''
The State of Alaska's (State) legal framework for managing wildlife
is based on a different principle than the legal framework applicable
to management of the NWR system; it is based on the principle of
sustained yield, which is defined by statute to mean ``the achievement
and maintenance in perpetuity of the ability to support a high level of
human harvest of game, subject to preferences among beneficial uses, on
an annual or periodic basis'' (Alaska Statute (AS) 16.05.255(j)(5)).
Since 1994, Alaska State law (AS 16.05.255) has prioritized human
consumptive use of ungulates--specifically moose, caribou, and deer.
Known as the Intensive Management (IM) statute, the law requires the
Alaska Board of Game (BOG) to designate populations of ungulates for
which human consumptive use is the highest priority use and to set
population and harvest objectives for those populations. To that end,
the BOG must ``adopt regulations to provide for intensive management
programs to restore the abundance or productivity of identified big
game prey populations as necessary to achieve human consumptive use
goals'' (AS 16.05.255(e)). Once designated as an IM population, if
either populations or harvests fail to meet management objectives,
nonresident hunting must first be eliminated, followed by reductions or
eliminations of resident harvest opportunities. However, under the IM
statute, the BOG may not significantly reduce the harvest opportunities
of an identified IM ungulate population unless it has adopted or is
considering the adoption of regulations ``to restore the abundance or
productivity of the ungulate population through habitat enhancement,
predation control, or other means'' (AS 16.05.255(e)-(g) and (j)).
The BOG has adopted regulations under the IM statute that require
targeted reductions of wolf, black bear, brown bear, or a combination
of these in designated ``predation control areas'' within game
management units. These State regulations are implemented through IM
plans (5 Alaska Administrative Code (AAC) 92.106-5 AAC 92.127) that
authorize activities including aerial shooting of wolves or bears or
both by State agency personnel, trapping of wolves by paid contractors,
allowance under permit for same-day airborne hunting of wolves and
bears by the public, and allowance under permit for the take of any
black or brown bear through baiting or snaring by the public (5 AAC
92).
Thirteen of the 16 refuges in Alaska contain lands within game
management units officially designated for IM. While predator control
activities occurring under the authority of an IM plan have not been
permitted by FWS on any refuge in Alaska, some predator control
programs and activities are being implemented in predation control
areas immediately adjacent to refuges. Given the large home ranges of
many species affected by IM actions, these control programs have the
potential to impact wildlife resources, natural systems, and ecological
processes, as well as conservation and management of these species on
adjacent refuges.
In recent years, concurrent with its adoption and implementation of
IM plans for predation control areas, the BOG has also authorized
measures under its general hunting and trapping regulations that
potentially increase the take of predators to a degree that disrupts
natural processes and wildlife interactions. Examples of these recently
adopted measures, which apply beyond areas officially designated for
IM, including many refuges in Alaska, are:
Harvesting brown bears over bait at registered black bear
bait stations;
Taking wolves and coyotes (including pups) during the
denning season;
Expanding season lengths and increasing bag limits;
Classifying black bears as both furbearers and big game
species (which could allow for trapping and snaring of bears and sale
of their hides and skulls); and
Authorizing same-day airborne take of bears at registered
bait stations (5 AAC 85).
Many of the recent actions by the BOG to liberalize the State's
regulatory frameworks for general hunting and trapping of wolves,
bears, and coyotes reverse long-standing prohibitions and restrictions
on take of these wildlife species under State law. Unlike the recent
practice of taking brown bears over bait, black bear baiting has been
an authorized practice in Alaska since 1982, including on refuges.
Black bear baiting is authorized by the State pursuant to a permit and,
in some instances, a special use permit (Service Form 3-1383-G) issued
by refuges. Taking of brown bears at black bear baiting stations was
recently authorized under State regulations in certain game management
units within the State (several of which are within refuges) and is
subject to the same restrictions as black bear baiting. The State
regulations prohibit setting up a bait station within 1 mile of a home
or other dwelling, business, or campground, or within \1/4\ mile of a
road or trail (5 AAC 85).
3. The Interplay of Federal and State Regulations at Refuges in Alaska
Implementation of IM actions under the IM statute and many of the
recent liberalizations of the general hunting and trapping regulations
have direct implications for the management of refuges in Alaska. The
different purposes of State and Federal laws and the increased focus on
predator control by the State have resulted in the need for FWS to
deviate, in certain respects, from applying State regulations within
[[Page 52252]]
refuges. This is because predator-prey interactions represent a dynamic
and foundational ecological process in Alaska's arctic and subarctic
ecosystems, and are a major driver of ecosystem function. State
regulations allowing activities on refuges in Alaska that are
inconsistent with the conservation of fish and wildlife populations and
their habitats in their natural diversity, or the maintenance of
biological integrity, diversity, and environmental health, are in
direct conflict with our legal mandates for administering refuges in
Alaska under ANILCA, the Improvement Act, and the Wilderness Act, as
well as with applicable agency policies (601 FW 3, 610 FW 2, and 605 FW
2).
In managing for natural diversity, FWS conserves, protects, and
manages all fish and wildlife populations within a particular wildlife
refuge system unit in the natural `mix,' not to emphasize management
activities favoring one species to the detriment of another. FWS
assures that habitat diversity is maintained through natural means on
refuges in Alaska, avoiding artificial developments and habitat
manipulation programs, whenever possible. FWS fully recognizes and
considers that rural residents use, and are often dependent on, refuge
resources for subsistence purposes, and FWS manages for this use
consistent with the conservation of species and habitats in their
natural diversity.
This rule does not change Federal subsistence regulations (36 CFR
part 242 and 50 CFR part 100) or otherwise restrict the taking of fish
or wildlife for subsistence by federally qualified users under those
regulations. The rule does not apply to take in defense of life and
property as defined under State regulations (see 5 AAC 92.410). Hunting
and trapping are priority uses of refuges in Alaska. The rule will not
affect implementation of State hunting and trapping regulations that
are consistent with Federal law and FWS policies on refuges, nor will
it restrict hunting or trapping activities outside FWS-managed refuge
lands and waters.
This Final Rule
Summary of Final Rule
We developed the changes to existing refuge regulations included in
our January 8, 2016, proposed rule to meet our legal mandates and to
ensure consistency with policy, directives, and approved management
plans.
This rule makes the following substantive changes to existing NWR
regulations:
(1) We define ``natural diversity'' in regulation based on the
legislative history from ANILCA. Natural diversity means the existence
of all fish, wildlife, and plant populations within a particular
wildlife refuge system unit in the natural mix and in a healthy
condition for the long-term benefit of current and future generations.
Managing for natural diversity includes avoiding emphasis of management
activities favoring some species to the detriment of others and
assuring that habitat diversity is maintained through natural means,
avoiding artificial developments and habitat manipulation programs
whenever possible.
(2) We prohibit predator control on refuges in Alaska, unless it is
determined necessary to meet refuge purposes; is consistent with
Federal laws and policy; and is based on sound science in response to a
conservation concern. Demands for more wildlife for human harvest
cannot be the sole or primary basis for predator control.
We define predator control as the intention to reduce the
population of predators for the benefit of prey species. For clarity,
this includes predator reduction practices, such as, but not limited
to, those undertaken by government officials or authorized agents,
aerial shooting, or same-day airborne take of predators. Other less
intrusive predator reduction techniques such as, but not limited to,
live trapping and transfer, authorization of particularly effective
public harvest methods and means, or utilizing physical or mechanical
protections (barriers, fences) are also included with exception for
barriers for human life and property safety.
A Refuge Manager will authorize predator control activities on a
National Wildlife Refuge in Alaska only if:
(a) Alternatives to predator control have been evaluated as a
practical means of achieving management objectives;
(b) Proposed actions have been evaluated in compliance with the
National Environmental Policy Act (42 U.S.C. 4321 et seq.);
(c) A formal refuge compatibility determination has been completed,
as required by law; and
(d) The potential effects of predator control on subsistence uses
and needs have been evaluated through an ANILCA section 810 analysis.
This rule ensures that take of wildlife on refuges in Alaska under
State regulations and implementation of predator control is consistent
with our legal mandates and policies for administration of those
refuges.
(3) This rule prohibits the following practices for the taking of
wildlife on Alaska National Wildlife refuges (except for subsistence
uses by federally qualified subsistence users in accordance with
applicable Federal laws and regulations):
Taking black or brown bear cubs or sows with cubs
(exception allowed for resident hunters to take black bear cubs or sows
with cubs under customary and traditional use activities at a den site
October 15-April 30 in specific game management units in accordance
with State law);
Taking brown bears over bait;
Taking of bears using traps or snares;
Taking wolves and coyotes during the denning season (May
1-August 9); and
Taking bears from an aircraft or on the same day as air
travel has occurred. The take of wolves or wolverines from an aircraft
or on the same day as air travel has occurred is already prohibited
under current refuge regulations.
FWS requested comment on the type of bait allowed to be used for
the baiting of black or brown bears. Currently, State regulations,
which are adopted on refuges, require the bait used at bear baiting
stations to be biodegradable. People use a range of different types of
bait for the baiting of bears, including parts of fish and game that
are not required to be salvaged when these species are harvested, as
well as human and pet food products. We received very few comments
expressing opinions on appropriate baits. Based on this, we will
continue to adopt State regulations.
(4) We update our regulations to reflect Federal assumption of
management of subsistence hunting and fishing under Title VIII of
ANILCA by the Federal Government from the State in the 1990s.
(5) As set forth in our January 8, 2016, proposed rule (81 FR 887),
we remove a statement at the current 50 CFR 36.32(e) that references
compliance with other mandates (such as the Airborne Hunting Act, 16
U.S.C. 742j-1) in order to reduce redundancy. The requirement for
compliance with applicable State and Federal laws is set forth at 50
CFR 36.32(a) in this final rule. We also correct the regulations at 50
CFR part 36 by removing a statement set forth at the current 50 CFR
36.32(e) that references sections of subchapter C of title 50 of the
CFR (regarding the taking of depredating wildlife) that no longer
exist.
(6) We amend 50 CFR 32.2(h) to state that black bear baiting is
authorized in accordance with State regulations on NWRs in Alaska. This
change ensures
[[Page 52253]]
consistency between the provisions of the national hunting regulations
at 50 CFR part 32 regarding baiting in Alaska and the Alaska-specific
regulations at 50 CFR part 36.
(7) We update procedures for implementing closures or restrictions
on refuges, including the taking of fish and wildlife under sport
hunting and trapping, to more effectively engage and inform the public
and make the notice and durational provisions more consistent with
procedures set forth in Federal subsistence closure policy and
regulations at 36 CFR 242.19 and 50 CFR 100.19 for emergency special
actions on Federal public lands in Alaska. Improved consistency between
these Federal regulations and processes will help minimize confusion
and make it easier for the public to be involved in the process.
The regulations provide for emergency, temporary, and permanent
closures and restrictions. This rule limits emergency closures and
restrictions to 60 days, and temporary closures and restrictions are
limited to the minimum time necessary, and will not exceed 12 months.
This rule also updates the closures and restrictions notification
procedures for refuges in Alaska to reflect the availability of
alternative communications technologies and approaches that have
emerged or evolved over the last few decades. These changes recognize
that the Internet has become one of the primary methods to communicate
with the public and is an effective tool for engaging Alaskans and the
broader American public and that there are other forms of broadcast
media, beyond just the radio, that we may want to use.
The changes to the notification procedures are not intended to
limit public involvement or reduce public notice; rather, we intend to
engage in ways more likely to encourage public involvement and in a
manner that is fiscally responsible. We recognize that in-person public
meetings will continue to be the most effective way to engage Alaskans,
and we intend to continue that practice. We also recognize that many
individuals in rural Alaska do not have access to high speed Internet,
and for that reason, we will continue to use other methods of
communication, such as regional and local newspapers, posting flyers at
local post offices, and radio announcements, where available to provide
adequate notice.
Table--Summary of Primary Differences Between Our Proposed Rule and This
Final Rule
------------------------------------------------------------------------
What we proposed in the January 8, What we are making final in
2016, proposed rule (81 CFR 887) this rule
------------------------------------------------------------------------
50 CFR 32.2(h): What are the requirements for hunting on areas of the
National Wildlife Refuge System?; Use of bait
------------------------------------------------------------------------
We proposed to revise this provision to We are revising this provision
add the following statement: ``(Black to add the following
bear baiting is authorized in statement: ``(Black bear
accordance with State regulations on baiting and use of bait to
national wildlife refuges in trap furbearers are authorized
Alaska.)'' in accordance with State
regulations on national
wildlife refuges in Alaska.)''
------------------------------------------------------------------------
50 CFR 36.2: What do these terms mean? (Definitions)
------------------------------------------------------------------------
We proposed to add 13 definitions to Of the 13 definitions proposed,
the regulations. we are defining 8 terms in
this final rule. We are not
adding definitions for
``biological diversity,''
``biological integrity,''
``environmental health,''
``historic conditions,'' or
``Regional Director'' to the
regulations in this final
rule.
We revised the proposed
definition of ``natural
diversity'' by removing the
following: ``and taking into
consideration the fact that
humans are dependent on
wildlife refuge subsistence
resources.'' The definition of
``natural diversity'' we are
adopting in this final rule
reads: ``Natural diversity
means the existence of all
fish, wildlife, and plant
populations within a
particular wildlife refuge
system unit in the natural mix
and in a healthy condition for
the long-term benefit of
current and future
generations. Managing for
natural diversity includes
avoiding emphasis of
management activities favoring
some species to the detriment
of others and assuring that
habitat diversity is
maintained through natural
means, avoiding artificial
developments and habitat
manipulation programs whenever
possible.''
------------------------------------------------------------------------
50 CFR 36.32(b): Taking of fish and wildlife; predator control
prohibition
------------------------------------------------------------------------
We proposed the following language to We are removing the words ``is
set forth when predator control is consistent with our mandates
allowed on a refuge: ``Predator to manage for natural and
control is prohibited on National biological diversity,
Wildlife Refuges in Alaska, unless it biological integrity, and
is determined necessary to meet refuge environmental health'' and
purposes, Federal laws, or policy; is removing the word
consistent with our mandates to manage ``significant'' before the
for natural and biological diversity, words ``conservation
biological integrity, and concern.'' In addition, we
environmental health; and is based on removed the words
sound science in response to a ``attempted'' and
significant conservation concern. ``exhausted'' in the first
Demands for more wildlife for human step of the process to approve
harvest cannot be the sole or primary predator control activities.
basis for predator control. A Refuge The paragraph now reads:
Manager will authorize predator ``Predator control is
control activities on a National prohibited on National
Wildlife Refuge in Alaska only if: Wildlife Refuges in Alaska,
unless it is determined
necessary to meet refuge
purposes, is consistent with
Federal laws and policy, and
is based on sound science in
response to a conservation
concern. Demands for more
wildlife for human harvest
cannot be the sole or primary
basis for predator control. A
Refuge Manager will authorize
predator control activities on
a National Wildlife Refuge in
Alaska only if:
------------------------------------------------------------------------
(1) Alternatives to predator control (1) Alternatives to predator
have been evaluated, attempted, and control have been evaluated as
exhausted as a practical means of a practical means of achieving
achieving management objectives; management objectives;
[[Page 52254]]
(2) Proposed actions have been (2) Proposed actions have been
evaluated in compliance with the evaluated in compliance with
National Environmental Policy Act (42 the National Environmental
U.S.C. 4321 et seq.); Policy Act (42 U.S.C. 4321 et
seq.);
(3) A formal refuge compatibility (3) A formal refuge
determination has been completed, as compatibility determination
required by law; and has been completed, as
required by law; and
(4) The potential effects of predator (4) The potential effects of
control on subsistence uses and needs predator control on
have been evaluated through an ANILCA subsistence uses and needs
section 810 analysis.'' have been evaluated through an
ANILCA section 810
analysis.''.
50 CFR 36.42(b) Public participation and closure procedures; Criteria
------------------------------------------------------------------------
We proposed to add conservation of We are not adding conservation
natural diversity, biological of natural diversity,
integrity, biological diversity, and biological integrity,
environmental health to the list of biological diversity, and
criteria for closures. environmental health to the
list of criteria for closures.
We are retaining the original
closure criteria and
regulatory language.
------------------------------------------------------------------------
50 CFR 36.42(c)(1), (c)(2), and (c)(3) Emergency closures or
restrictions
------------------------------------------------------------------------
We did not propose any changes......... In response to a comment, we
are adding clarifying
language, or making editorial
changes, concerning notice of
emergency closures or
restrictions. Specifically, we
are adding reference to 50 CFR
36.42(f), notice procedures,
to these paragraphs of the
regulations.
------------------------------------------------------------------------
50 CFR 36.42(c)(4): Emergency closures or restrictions; time frame
------------------------------------------------------------------------
We proposed that ``Emergency closures We are adopting the following
or restrictions may not exceed a statement: ``No emergency
period of 60 days. Extensions beyond closure or restriction will
60 days are subject to nonemergency exceed 60 days. Closures or
closure procedures.'' restrictions requiring longer
than 60 days will follow
nonemergency closure
procedures (i.e., temporary or
permanent; see paragraphs (d)
and (e), respectively, of this
section).''.
------------------------------------------------------------------------
50 CFR 36.42(d)(1), (d)(2), and (d)(3): Temporary closures or
restrictions
------------------------------------------------------------------------
We proposed revised language concerning We are adopting our proposed
temporary closures or restrictions language with additional
related to the use of aircraft, clarifying language, or
snowmachines, motorboats, or editorial changes, concerning
nonmotorized surface transportation notice of temporary closures
and to the taking of fish and wildlife or restrictions. Specifically,
and to other temporary closures. we are adding reference to 50
CFR 36.42(f), notice
procedures, to these
paragraphs of the regulations.
------------------------------------------------------------------------
Proposed 50 CFR 36.42(d)(5) and (d)(6): Temporary closures or
restrictions
------------------------------------------------------------------------
We proposed language concerning the We are not adopting proposed 50
time period, evaluation, and removal CFR 36.42(d)(5) or (d)(6).
of temporary closures at proposed 50 Instead, at 50 CFR
CFR 36.42(d)(5). We proposed language 36.42(d)(4), we retain
concerning a list of closures and historic temporary closure or
restrictions at proposed 50 CFR restriction language to limit
36.42(d)(6). temporary closures to a
maximum of 12 months;
provided, however, a new
temporary closure or
restriction may be adopted
thereafter by following the
applicable procedures set
forth at 50 CFR 32.42(d)(1),
(d)(2), or (d)(3).
------------------------------------------------------------------------
50 CFR 36.42(e): Permanent closures or restrictions
------------------------------------------------------------------------
We proposed language for permanent We revised the language to be
closures or restrictions related to consistent with 43 CFR
the use of aircraft, snowmachines, 36.11(h)(3). The paragraph now
motorboats, or nonmotorized surface reads: ``Permanent closures or
transportation and to the taking of restrictions related to the
fish and wildlife that read: use of aircraft, snowmachines,
``Permanent closures or restrictions motorboats, or nonmotorized
relating to the use of aircraft, surface transportation, or
snowmachines, motorboats, or taking of fish and wildlife,
nonmotorized surface transportation, will be effective only after
or taking of fish and wildlife, will notice pursuant to paragraph
be effective only after allowing for (f) of this section, and shall
the opportunity for public comment and be published by rulemaking in
a public hearing in the vicinity of the Federal Register with a
the area(s) affected and other minimum public comment period
locations as appropriate, and after of 60 days and shall not be
publication in the Federal Register. effective until after a public
Permanent closures or restrictions hearing(s) is held in the
related to the taking of fish and affected vicinity and other
wildlife would require consultation locations as appropriate.
with the State and affected Tribes and Permanent closures or
Native Corporations.'' restrictions related to the
taking of fish and wildlife
require consultation with the
State and affected Tribes and
Native Corporations.''.
------------------------------------------------------------------------
(8) We codify definitions for several terms (see the Regulation
Promulgation section, below). These terms include ``Bait,'' ``Big
game,'' ``Cub bear,'' ``Furbearer,'' ``Natural diversity,'' ``Predator
control,'' ``Sport hunting,'' and ``Trapping.'' Most of these
definitions, including bait, big game, cub bear, furbearer, and
predator control, are based on existing definitions in Federal
subsistence regulations or policy.
During our scoping and comment period, and through tribal
consultation efforts, we heard that definitions for biological
integrity, biological diversity, natural diversity, and environmental
health and the origins of these definitions are of significant interest
to people. As discussed above, FWS is mandated under the Improvement
Act to ``ensure that the biological integrity, diversity, and
environmental health [BIDEH] of the System are maintained
[[Page 52255]]
for the benefit of present and future generations of Americans. . .''
(16 U.S.C. 668dd(a)(4)(B)). The FWS BIDEH policy (601 FW 3), which
provides guidance for implementation of the Improvement Act, provides
definitions for each of these terms, as well as the term ``historic
conditions.'' As also discussed above, the definition of ``natural
diversity'' in this rule is derived from FWS' review of ANILCA's
legislative history and FWS' conclusion that the concepts of natural
diversity and BIDEH are essentially the same.
Summary of and Response to Public Comments
We reviewed and considered all substantive information we received
during the comment period. A summary of substantive comments and FWS
responses is provided below. The previous table sets out changes we
have made to the provisions of the proposed rule based on the analysis
of the comments and other considerations. As comments were often
similar or covered multiple topics, we have grouped comments and
responses by topic areas, which generally correspond to specific
sections of the January 8, 2016, proposed rule.
Guiding Laws and Regulations, Native Americans, and States Rights
(1) Comment: Commenters stated what we proposed is not aligned with
ANILCA and gives subsistence a lower priority than other uses.
FWS Response: ANILCA sections 302 and 303 (with the exception of
Kenai NWR) established the opportunity for subsistence uses by local
residents as one of the main purposes (Refuge purposes) for which NWRs
in Alaska (created or expanded by ANILCA) were established and are to
be managed. The first two purposes listed for each NWR under ANILCA
are: (i) To conserve fish and wildlife populations and habitats in
their natural diversity, and (ii) to fulfill the international treaty
obligations of the United States with respect to fish and wildlife and
their habitats. The third purpose listed is to provide, in a manner
consistent with the purposes set forth in (i) and (ii), above, the
opportunity for continued subsistence uses by local residents. Although
the subsistence purpose carries the same weight as the first two
purposes, it is subject to consistency with the first two purposes.
ANILCA makes clear that the subsistence purpose (third-listed purpose)
is equally important insofar as it is consistent with the preceding
purposes ((i) and (ii)). This rule is fully consistent with the
purposes and requirements of ANILCA.
(2) Comment: Commenters expressed concerns with FWS' definition of
the term ``natural diversity'' and stated the FWS definition derived
from the congressional testimony of Congressman Udall was not
appropriate and excluded predator control as a management tool.
FWS Response: ANILCA does not include a definition of the term
``natural diversity.'' FWS' definition was developed after carefully
considering the statutory language as well as the legislative history
of ANILCA. In response to public comments that our proposed discussion
and definition did not fully reflect the full legislative history of
ANILCA, we added a discussion concerning the portions of Alaska Senator
Ted Steven's floor statements that referenced natural diversity. In
this final rule, we are defining ``natural diversity'' at 50 CFR 36.2
(see the Regulation Promulgation section, below). As it has since the
enactment of ANILCA in 1980, FWS will continue to rely on the statutory
provisions of ANILCA, its legislative history, and applicable FWS
mandates, laws, and policies to guide NWR management in Alaska. FWS may
authorize predator control on Alaska NWRs when it is determined to be
in accordance with FWS laws, mandates, and policies. This rule
identifies when we will authorize predator control and clarifies how
our existing statutory mandates for the conservation of natural and
biological diversity, biological integrity, and environmental health on
NWRs in Alaska apply to predator control.
(3) Comment: Commenters stated what was proposed violates the
intent of ANILCA, and they object to any action that violates the
existing Master Memorandum of Understanding (MMOU) between the State
and FWS. They feel the State should have primacy in regards to the
management of fish and wildlife.
FWS Response: The State of Alaska and FWS have differing missions,
goals, and objectives, and authorities are derived through State or
Federal statutes, respectively. The purpose of this rule is to exercise
FWS' management authority on NWR lands in Alaska to achieve goals of
ANILCA's NWR purposes. ANILCA (1980) section 304(a) states, ``Each
refuge shall be administered by the Secretary . . . in accordance with
the laws governing the administration of units of the NWR System and
this Act.'' This rule is consistent with the Administration Act, the
Improvement Act, the purposes for which the NWRs were created or
expanded as stated in ANILCA sections 302 and 303, and with other
provisions of ANILCA. Neither ANILCA nor the MMOU (1982, Recommitment
2006) suggests that the State has or should have primacy in the
management of fish and wildlife on NWRs. The MMOU stresses cooperation
between FWS and the State, ``to manage fish and resident wildlife
populations in their natural diversity on FWS lands.'' FWS prefers to
defer to the State on regulations of hunting and trapping on NWRs in
Alaska, unless doing so would be inconsistent with Federal laws and
policy.
(4) Comment: One commenter expressed concern that the proposed
changes are likely not in keeping with what was intended in ANILCA
(sections 101, 102). Other commenters suggested that FWS should
recognize that wildness is the overarching condition that ANILCA seeks
to perpetuate relative to management of NWRs.
FWS Response: FWS manages Alaska NWRs for the purposes expressed in
section 101 of ANILCA and consistent with the definitions of terms
found in section 102. The term ``wildness'' is not specifically used in
the purposes section of ANILCA, sections 101 and 102, but it is alluded
to. FWS meets the purposes of ANILCA sections 101 and 102, by managing
for natural diversity on all Alaskan refuges.
(5) Comment: Commenters were concerned FWS was not considering the
Supreme Court's recent ruling in Sturgeon v. Frost, 577 U.S. (2016),
which ordered the U.S. 9th Circuit of Appeals to reconsider its
decision. The Supreme Court opinion stated that ``Alaska is often the
exception, not the rule'' when it comes to Federal regulation.
FWS Response: FWS fully recognizes the statutory differences for
management of NWRs in Alaska and those in the rest of the United
States. Those differences have long been reflected in the Service's
regulations and policies. This rule complies with the applicable
provisions of ANILCA, is limited in its applicability to activities
occurring only on public lands administered by FWS, and is therefore
fully consistent with the Supreme Court's decision.
(6) Comment: One commenter expressed concern about whether the
changes proposed by FWS are consistent with ANCSA and ANILCA, and
suggested FWS engage with rural communities and consult with Alaska
Native villages and ANCSA corporations to identify and address any
issues pertaining to the proposed regulations.
FWS Response: Our intention in issuing the January 8, 2016,
proposed
[[Page 52256]]
rule (81 FR 887), as well this final rule, was to ensure consistency
with applicable provisions of ANCSA or ANILCA. We took public comments
on the proposed rule for 90 days. This final rule modifies certain
provisions of the proposed rule based on comments from the public at
large, State of Alaska, rural residents, Tribes, and other Alaska
Native entities, to reduce the potential effects on federally qualified
subsistence users on Alaska NWR lands. This rule does not change
Federal subsistence regulations. This rule does not restrict federally
qualified subsistence users who are hunting in accordance with Federal
subsistence regulations. ANILCA section 304(a) requires that ``Each
refuge shall be administered by the Secretary . . . in accordance with
the laws governing the administration of units of the NWR System and
this Act.'' Further, section 815 of ANILCA is explicit that nothing in
Title VIII, the subsistence title, modifies or repeals the provisions
of the Administration Act. This rule is consistent with the
Administration Act, the Improvement Act, and the purposes for which the
NWRs were created or expanded as stated in ANILCA sections 302 and 303.
FWS agrees that consultation with all constituent communities is
extremely important and in particular continues to strive for increased
cooperation and dialogue with rural Alaskans. We held nine public
meetings in urban and rural communities, attended RAC and BOG meetings
throughout the State, and contacted Alaska Native Tribes for
government-to-government consultation and ANCSA corporations for
consultations. We met and communicated with the Tribes and ANCSA
corporations that requested formal consultation. Details on the
outreach that was conducted with Tribes, the State, and the public are
detailed in this rule and the finding of no significant impact (FONSI).
FWS remains available to discuss the application of the rule with
Tribes and ANCSA corporations at their request.
(7) Comment: Commenters expressed discontent with the BOG
management of wildlife on Alaska NWRs. Commenters stated that the
public (nationwide) owns the lands within NWRs, and therefore the State
should not have sole responsibility for managing these lands and their
associated wildlife populations. They also had concerns that the BOG
favored management of wildlife for the interests of hunters and
trappers and ignored nonconsumptive user groups.
FWS Response: FWS is authorized by ANILCA, the Administration Act,
and the Improvement Act to manage wildlife and their habitats within
Alaska NWRs. As directed by the Improvement Act, six wildlife-dependent
recreational uses are the priority general public uses of the Refuge
System. These uses are defined in the Improvement Act to consist of
consumptive uses (hunting and fishing) and nonconsumptive uses
(wildlife observation, wildlife photography, environmental education,
and environmental interpretation).
(8) Comment: Commenters stated FWS does not have the authority to
take the proposed action and indicated FWS should resolve issues by
working with the State. Commenters were concerned the proposal would
affect game on State lands. Commenters stated FWS was preempting the
intent of Congress for the State's integral role in fish and wildlife
management. Commentators assert that the Improvement Act, 16 U.S.C.
668dd(m), reserves to the States management authority over wildlife on
refuge lands.
FWS Response: First, nothing in this rule applies to wildlife when
located on other than Refuge-administered lands. At 16 U.S.C. 668dd(l),
the Improvement Act states: ``Nothing in this Act shall be construed to
authorize the Secretary to control or regulate hunting or fishing of
fish and resident wildlife on lands or waters that are not within the
System.''
Second, FWS is committed to continuing to work with the State and
prefers for the State to manage wildlife populations on refuge lands
when consistent with NWR mandates, policies, and laws. However, as
explained in more detail above, FWS is required under Federal law to
make decisions regarding management of wildlife on refuges to ensure
consistency with the purposes for which Congress established those
refuges. While State law is the backdrop for fish and wildlife
management, pursuant to the Property Clause, Congress enacted certain
statutes, including those referenced in the Department's Wildlife
Policy statement found at 43 CFR part 24, which obligate FWS to manage
Federal refuge lands consistent with their authorized purposes.
Cooperation with the States is required in certain respects, but
specific laws have provided the Secretary the ultimate authority to
make decisions that are required and/or allowed by Federal law.
Congress in enacting the Administration Act and the Improvement Act
provided FWS with the authority to manage fish and wildlife and their
habitats on Federal lands including those within the boundaries of
Alaska NWRs. ANILCA section 304(a) directs that ``Each refuge shall be
administered by the Secretary . . . in accordance with the laws
governing the administration of units of the NWR System and this Act.''
In addition to the authorities discussed above, the Improvement Act
(Act) clarifies Federal and State authorities in (16 U.S.C. 668dd(k)):
``Notwithstanding any other provision of this Act, the Secretary may
temporarily suspend, allow, or initiate any activity in a refuge in the
System if the Secretary determines it is necessary to protect the
health and safety of the public or any fish or wildlife populations.''
With respect to the role of the States, one commenter asserted that
the Improvement Act actually affords States the authority, to the
exclusion of FWS, to make management decisions for fish and wildlife on
Federal refuges. At 16 U.S.C. 668dd(m), the Improvement Act states:
``Nothing in this Act shall be construed as affecting the authority,
jurisdiction, or responsibility of the several States to manage,
control, or regulate fish and resident wildlife under State law or
regulations in any area within the System. Regulations permitting
hunting or fishing of fish and resident wildlife within the System
shall be, to the extent practicable, consistent with State fish and
wildlife laws, regulations, and management plans.'' This section
establishes a preference for State management and reliance on State
regulations where ``practicable,'' but by its very terms contemplates
that FWS must make independent determinations to ensure
``practicability,'' which includes compatibility with refuge purposes.
The section affirms the responsibility of the State to enforce its fish
and wildlife laws and the role of the State in management of fish and
wildlife even on Federal refuges, but does not suggest that State
authority is exclusive. Furthermore, the reading suggested by the
commenter would have the effect of nullifying the many other provisions
of the Improvement Act and other laws that impose upon FWS the
responsibility to make decisions regarding management of Federal
refuges.
Furthermore, this final rule is consistent with the provisions
regarding taking of fish and wildlife that are stated in section 1314
of ANILCA. Subsection (a) provides that except for Federal subsistence,
nothing in ANILCA ``is intended to enlarge or diminish the
responsibility and authority of the State of Alaska for management of
fish and wildlife on the public lands''; subsection (b) states that
except as specifically provided in ANILCA, ``nothing in this Act is
intended to enlarge or diminish the responsibility
[[Page 52257]]
and authority of the Secretary over the management of the public
lands.''
Prior to initiating this rulemaking process, FWS met with State
officials on multiple occasions over the past 10 years to discuss and
attempt to resolve the issues that are finally addressed in this rule.
Additional meetings with the State occurred during the development of
the rule and after we published the proposed rule, but we have been
unable to come to common ground. Thus we are proceeding with this
rulemaking process in order to ensure that wildlife management on
Alaskan NWRs remains consistent with the Service's legal mandates and
authorities.
Compliance With Mandates, Laws, and Policies
(9) Comment: Commenters stated the rulemaking violated the intent
of the Improvement Act and ANILCA. They also asserted FWS elevated
inappropriately through regulations one of the 14 non-hierarchical
``broad responsibilities'' identified in the Improvement Act: ``to
ensure that the biological integrity, diversity, and environmental
health of the system are maintained for the benefit of present and
future generations of Americans.''
FWS Response: This rule codifies regulations that will help FWS
meet the mandates of the Improvement Act and that are fully consistent
with ANILCA--sections 302, 303, Title VIII, and section 1314, in
particular. Under ANILCA, each refuge in Alaska has a list of purposes
for which it was established, including to ``conserve fish and wildlife
populations and habitats in their natural diversity'' followed by a
list of representative species particular to each refuge. The
Improvement Act specifically states that in administering the NWR
System, the Secretary is authorized to issue regulations to carry out
that Act (see 16 U.S.C. 668dd(b)(5)). This rule will specifically help
NWRs to comply with the following parts of the Improvement Act: (1)
Provide for the conservation of fish, wildlife, and plants, and their
habitats within the NWR System (see 16 U.S.C. 668dd(a)(4)(A)); and (2)
ensure that the BIDEH of the NWR System is maintained for the benefit
of present and future generations of Americans (see 16 U.S.C.
668dd(a)(4)(B)). As identified in the preamble of this rule, FWS
management to fulfill management for biological diversity is
essentially the same as management for natural diversity as defined in
this rulemaking. This rule directly supports the mission of the NWR
System as identified in Improvement Act and also supports the 14
directives listed in the Improvement Act, including specifically the
directive that states the Secretary shall in administering the system
ensure that the BIDEH of the NWR System is maintained for the benefit
of present and future generations of Americans (see 16 U.S.C.
668dd(a)(4)(B)). This rule does not elevate or prioritize the
importance of this directive over the other directives, but does
specifically identify its importance and relevance to the justification
for actions specified in the rule.
By law (Improvement Act), regulations (43 CFR part 24), and policy
(the Service Manual at 605 FW 1 and 605 FW 2), FWS must, to the extent
practicable, ensure that NWR regulations permitting hunting and fishing
are consistent with State laws, regulations, and management plans. In
recognition of the above, non-conflicting State general hunting and
trapping regulations are usually adopted on NWRs. Hunting and trapping,
however, remain subject to legal mandates, regulations, and management
policies pertinent to the administration and management of NWRs.
(10) Comment: Commenters pointed out that uses allowed on NWRs must
be compatible with NWR purposes as per the Improvement Act and also
noted that the Improvement Act gives equal priority for priority public
uses.
FWS Response: The Service agrees with this comment. Under the
Improvement Act, FWS is required to manage NWRs for natural diversity
and BIDEH across ecosystems. The Improvement Act also established and
reinforced the compatibility standard as the legal backbone for NWRs,
defining a ``compatible'' use as one that does not ``materially
interfere with or detract from the fulfillment of the National Wildlife
Refuge System or the purposes of the national wildlife refuge'' (603 FW
2.6B.). While Alaskan NWRs have historically recognized sport hunting
and fishing as priority public uses, the Improvement Act gave equal
priority to wildlife viewing, photography, and environmental education
and interpretation as priority public uses. The Improvement Act
identifies hunting as a permissible use of NWRs, but consumptive
recreational uses are not given any higher priority than nonconsumptive
uses (such as wildlife watching, hiking, camping, photography, etc.),
and protection of wildlife and other natural resources found within
NWRs continue to be accorded the highest of priorities (see 16 U.S.C.
668dd). Moreover, the Improvement Act retains and re-emphasizes the
Administration Act's compatibility requirements and imposes other
standards that require more, not less, biological and ecological
evidence to support decisions to open or close NWRs to activities.
(11) Comment: Commenters were concerned that the proposed
regulations would be applied to all NWRs nationwide in the future.
FWS Response: In 1981, the Service added a new part 36 to its
regulations in title 50 of the CFR to specifically address the
requirements of ANILCA. The general National Wildlife Refuge System
regulations continue to apply to Alaska refuges, ``except as
supplemented or modified by these [part 36] regulations or amended by
ANILCA.'' In general, FWS defers to the respective States for
management of wildlife on NWRs across the United States. However, it is
common for NWRs outside of Alaska to promulgate refuge specific hunting
and fishing regulations to ensure refuge management complies with NWR
System laws and policies. Public participation and closure procedures
for NWRs in the lower 48 States are found at 50 CFR 25.21 and 50 CFR
25.31. The regulations at 50 CFR part 36 are specific to Alaska, and
NWRs in other States are subject to their own rulemaking procedures.
Biological Integrity, Diversity, and Environmental Health
(12) Comment: Concern was expressed that our definition of
``natural diversity'' precludes FWS' ability to use predator control as
a tool.
FWS Response: ``Natural diversity'' is defined in this rule as the
existence of all fish, wildlife, and plant populations within a
particular wildlife refuge system unit in the natural mix and in a
healthy condition for the long-term benefit of current and future
generations. Managing for natural diversity includes avoiding emphasis
of management activities favoring some species to the detriment of
others and assuring that habitat diversity is maintained through
natural means, avoiding artificial developments and habitat
manipulation programs whenever possible. In the preamble of this rule,
we described statements by Chairman Udall and Senator Stevens, who were
floor managers involved in enactment of ANILCA, to provide background
on how congressional leaders involved in drafting ANILCA interpreted
the words ``natural diversity'' and the term's context relative to
future management of NWRs in Alaska. This legislative history provides
important context to this rule. This rule does not preclude predator
control as a management tool, but instead provides that FWS will only
use
[[Page 52258]]
predator control on NWRs in Alaska when it is determined necessary to
meet refuge purposes, is consistent with Federal laws and policy, and
is based on sound science in response to a conservation concern. FWS
continues to recognize predator control as an important and valid
management tool when appropriate to meet NWR purposes or the NWR
System's mission. As explained above, natural diversity is discussed
and defined in this rule because it is a statutory purpose of every
refuge unit in Alaska, but the term is not defined in ANILCA. The
inclusion of a discussion and definition of natural diversity in this
rule is to clarify how we interpret this term. The discussions cited
from the legislative history on the meaning of natural diversity are an
important element considered in our interpretation. Managing to
maintain the natural diversity of fish and wildlife and their habitats
includes avoiding emphasis of management activities favoring some
species to the detriment of others; assuring that habitat diversity is
maintained through natural means, avoiding artificial developments and
habitat manipulation programs whenever possible.
(13) Comment: The definition of ``natural diversity'' used in the
proposed rule was not vetted with the State and Tribes prior to
publication of the proposed rule.
FWS Response: The Service did consult with Tribal governments,
Native Corporations, and the State before issuing a proposed rule. The
Service also engaged in further discussions/consultations after the
proposed rule was issued. In the preamble of this rule, we reference
ANILCA's legislative history to provide background on how congressional
leadership interpreted the term ``natural diversity'' and its context
relative to future management of NWRs. This background information
provides important context for this rule and how we developed the
definition of ``natural diversity'' in this rule.
The context for FWS' interpretation of ``natural diversity'' was
included in information shared with the State and the Tribes as early
as 2014. Reference to legislative history information that provided
specific context for developing FWS' definition of ``natural
diversity'' was provided repeatedly to the State and Tribes during the
drafting of the rule starting in 2014. Upon repeated requests from the
State and Tribes throughout the 2014-2015 rule development, FWS
developed the definition of ``natural diversity'' set forth in this
rule. We included this definition in the draft of the proposed rule
that we shared with the State and Tribes (November 2015) prior to
publishing the proposed rule in January 2016. In addition, there was a
90-day comment period to provide a revised or alternate definition. One
commenter referenced an alternate definition (see Comment (24), below)
that was evaluated and determined inappropriate for this rule. In
response to comments, we added additional ANILCA legislation history
language from Senator Ted Stevens to the preamble of this rule to
provide a broader context for evaluating the interpretation of natural
diversity.
(14) Comment: Commenters were concerned the proposal provided FWS
Refuge Managers too much latitude for interpreting and making decisions
about future management for BIDEH.
FWS Response: The actions Refuge Managers are authorized to take in
this rule, and the criteria to be applied when doing so, are consistent
with Federal law and are comparable to the actions the managers have
long been authorized to take in administering refuges. Refuge Managers
are subject matter experts regarding management of refuge units. Refuge
Managers are selected to manage operations of a NWR because of their
expertise. Refuge Managers receive assistance from their local refuge
staff, as well as regional refuge staff as needed or required to make
appropriate management decisions. Refuge Managers also seek out
scientific information and traditional ecological knowledge from
appropriate experts including State biologists and tribal entities.
Refuge Managers' decisions are based on a variety of sources,
including, but not limited to, laws, regulations, policies, legislative
history, and planning documents for which the public has had the
opportunity to provide input such as comprehensive conservation plans
and step-down management plans. The use of the BIDEH policy guidance by
Refuge Managers is incorporated into a diversity of short- and long-
term decision-making situations. A few of the examples where BIDEH
policy guidance is utilized by a Refuge Manager include development of
comprehensive conservation plans, inventory and monitoring plans, and
compatibility determinations. A Refuge Manager's decisions to conduct
or recommend management actions relative to BIDEH policy are, as
appropriate, further evaluated by the respective regional refuge
supervisors and refuge chiefs.
(15) Comment: Commenters stated the use of the BIDEH policy is so
broad and unspecific that it also allows FWS to justify nearly any
action it desires, as long as it is in ``the professional judgment'' of
FWS employees.
FWS Response: Section 4(a)(4)(B) of the Improvement Act states that
``In administering the System, the Secretary shall . . . ensure that
the biological integrity, diversity, and environmental health [BIDEH]
of the System are maintained for the benefit of present and future
generations of Americans. . .'' (16 U.S.C. 668dd(a)(4)(B)). The FWS
BIDEH policy (601 FW 3) provides guidance for implementation of this
aspect of the Improvement Act. The integration of BIDEH policy language
in the preamble of this rule and at 50 CFR 36.1 provides clarification
of how the rule supports FWS policy mandates and subsequently NWR
purposes and the NWR System mission. Refuge Managers will use sound
professional judgment when implementing the BIDEH policy primarily
during the comprehensive conservation planning process to assess the
complex evaluations that are required by the BIDEH policy. Sound
professional judgment incorporates field experience, knowledge of
refuge resources, the refuge's role within an ecosystem, applicable
laws, and best available science including consultation with others
both inside and outside FWS. The use of a Refuge Manager's
``professional judgment'' is just one component of decision making and
is constrained by the requirement to meet NWR System purposes,
mandates, and laws. The BIDEH policy is one of several directives for
Refuge Managers to follow while achieving NWR purposes and the NWR
System mission. Decisions by Refuge Managers will require professional
judgment that can integrate into the decision-making process, a
collective understanding and knowledge of the best available science
and applicable laws. The BIDEH policy is comprehensive and provides for
the consideration and protection of the broad spectrum of fish,
wildlife, and habitat resources found on NWRs and associated
ecosystems. However, the BIDEH policy also provides Refuge Managers
with an effective and purposeful evaluation process to analyze their
refuges and recommend the best management direction to prevent further
degradation of environmental conditions. Where appropriate, the BIDEH
policy, in concert with NWR purposes and NWR System mission, allows a
Refuge Manager to pursue the restoration of lost or severely degraded
resources.
(16) Comment: Some commenters indicated FWS should not be
conducting a formal rulemaking process that encompasses the entire
region.
[[Page 52259]]
Commenters suggested FWS should instead follow section 3.9(g) of the
BIDEH policy that identifies that compatibility reviews and
comprehensive conservation plans are the required approach to address
NWR specific issues.
FWS Response: FWS adheres to the guidance provided in section
3.9(g) of the BIDEH policy that states, ``Through the Comprehensive
Conservation Plan (CCP) process, interim management planning, or
compatibility review, determine the appropriate management direction to
maintain and, where appropriate, restore BIDEH, while achieving NWR
purposes.'' FWS, in evaluating the purpose and need for this rule,
determined that it is not a refuge-specific rule and should be applied
to all Alaska NWRs. This rule was developed because FWS wanted to
establish consistent definitions and guidance for all Alaska NWRs to
abide by when evaluating predator control requests on an NWR. It
specifically clarifies how our existing mandates for the conservation
of natural and biological diversity, biological integrity, and
environmental health on NWRs in Alaska relate to predator control (50
CFR 36.32). This rule is fundamental to ensure that Alaska NWRs
consistently evaluate predator control requests using standardized
criteria and to ensure the public understands the legal authorities
associated with predator management decisions.
(17) Comment: Commenters were concerned with FWS definitions for
BIDEH and the legality of codifying these terms. They further stated
that BIDEH terms require clearer definitions than what we proposed.
FWS Response: We do not include definitions of ``biological
diversity,'' ``biological integrity, ``environmental health,'' and
``historic conditions'' in the Regulation Promulgation section of this
final rule; these definitions remain in our BIDEH policy (601 FW 3).
The NWR System Improvement Act states that, in administering the NWR
System, the Secretary shall ``ensure that the biological integrity,
diversity, and environmental health of the System are maintained for
the benefit of present and future generations of Americans'' (16 U.S.C.
668dd(a)(4)(B)). Refuge Managers are required to comply with the
Improvement Act including maintaining BIDEH on NWRs in Alaska. Adequate
guidance for Refuge Managers currently exists in policy, including
clear definitions of BIDEH. As explained above, the concepts of BIDEH
and natural diversity are essentially the same.
(18) Comment: Commenters supported the FWS BIDEH policy because it
is consistent with legal requirements for management of NWRs. They
stated concerns with State IM program indicating the State did not
manage for BIDEH and is not receptive to the nonconsumptive user
concerns.
FWS Response: We note these comments.
(19) Comment: Commenters suggest FWS should periodically determine
population and genetic status of predator species to establish baseline
information to address future criticisms of the use of the BIDEH policy
to justify management.
FWS Response: FWS agrees that the collection of population and
genetic data for predators is important for informing future management
decisions. We recognize the importance of collecting both types of data
when funding and resources are available, and of considering the
available data to guide our management decisions. We will also seek to
continue to partner with the State, other agencies, and appropriate
organizations and persons to gather the data that will best inform our
current and future management decisions.
(20) Comment: The proposed regulations add a new paragraph (a) to
section 36.1, and there was concern the new paragraph fails to
accurately and fully reflect Alaska NWR purposes.
FWS Response: The new paragraph at 50 CFR 36.1 clarifies how NWRs
in Alaska meet the primary conservation mandates of ANILCA and the
Improvement Act. As identified in the preamble section of the rule, the
Service finds that the requirements in ANILCA for maintaining the
natural diversity of wildlife and their habitats is essentially the
same as the BIDEH mandate in the Improvement Act. The added paragraph
includes reference to NWR purposes provided in ANILCA (conserving
natural diversity) and managing NWRs in accordance with NWR laws,
mandates, and policies (Improvement Act, BIDEH policy, etc.). The
language does not, nor is intended to, diminish or minimize ANILCA, the
Improvement Act, or other purposes for any of the NWRs in Alaska.
(21) Comment: One commenter referenced ``Executive Order 13443''
and interpreted that it prioritizes hunting opportunities above all
other wildlife-dependent uses and directs FWS to actively ``foster''
healthy and productive wildlife populations. The commenter indicated
FWS does not have the legal option to ignore such a mandate that so
clearly expresses its intent.
FWS Response: The purpose of Executive Order 13443, ``Facilitation
of Hunting Heritage and Wildlife Conservation,'' is to ``direct Federal
agencies that have programs and activities that have a measurable
effect on public land management, outdoor recreation, and wildlife
management, including the Department of the Interior and the Department
of Agriculture, to facilitate the expansion and enhancement of hunting
opportunities and the management of game species and their habitat . .
. consistent with agency missions.'' There is no directive in that
Executive Order (E.O.) for Federal agencies to prioritize hunting over
all other uses. Section 2(e) of the E.O. directs Federal agencies to
``Establish short and long term goals, in cooperation with State and
tribal governments, and consistent with agency missions, to foster
healthy and productive populations of game species and appropriate
opportunities for the public to hunt those species.'' FWS manages
Alaska NWR lands in compliance with this directive. Alaska NWRs will
continue to facilitate hunting opportunities on NWRs in compliance with
NWR purposes, the Improvement Act, and the Refuge Recreation Act (16
U.S.C. 460k et seq.), in addition to E.O. 13443.
(22) Comment: Concern was expressed that the proposal seeks to
limit management tools and preclude manipulation of habitat and/or
wildlife populations for the purpose of benefitting hunters, including
subsistence users. The commenter quoted from the Senator Stevens Senate
Congressional Record of December 1, 1980, S15131, p. 157.
FWS Response: FWS is required to conduct all NWR activities in a
manner that complies with law and policy, and we are not attempting to
preclude actions that could benefit hunters or subsistence users. To
the contrary, FWS has an extensive and lengthy history of management
actions for wildlife species that also benefit a variety of user groups
including hunters; however, these actions have complied with governing
law and policy. This rule responds to the State's IM statute and
corresponding recent liberalized methods and means for the take of
predators designed for ``the achievement and maintenance in perpetuity
of the ability to support a high level of human harvest of game (AS
sec. 16.05.255(k)(5)).'' This is not consistent with statutory mandates
for NWRs under the Improvement Act or ANILCA purposes for NWRs in
Alaska. There is additional language from the Congressional Record
associated with ANILCA that adds context to how
[[Page 52260]]
NWRs should be managed relative to the term ``natural diversity''
(statements of U.S. Representative Udall and U.S. Senator Stevens, as
noted above). The BIDEH policy also does not preclude the manipulation
of habitat or populations. Guidance in the BIDEH policy (601 FW 3.7E.)
specifically states, ``Management, ranging from preservation to active
manipulation of habitats and populations, is necessary to maintain
biological integrity, diversity, and environmental health [BIDEH]. We
favor management that restores or mimics natural ecosystem processes or
functions to achieve refuge purpose(s). Some refuges may differ from
the frequency and timing of natural processes in order to meet refuge
purpose(s) or address [BIDEH] at larger landscape scales.'' This
approach benefits a variety of user groups including hunters and
subsistence users. This rule does not change existing Federal
subsistence regulations (36 CFR part 242 and 50 CFR part 100) or
restrict subsistence uses under Federal subsistence regulations.
(23) Comment: Commentators expressed concern that FWS values BIDEH
more than the human environment.
FWS Response: The mission of the NWR System is to administer a
national network of lands and waters for the conservation, management,
and, where appropriate, restoration of the fish, wildlife, and plant
resources and their habitats within the United States for the benefit
of present and future generations of Americans. The NWR System exists
because people value wildlife. Congress, through its actions, has made
the decision to conserve these resources within the NWR System. The
Improvement Act makes clear that one of our priority responsibilities
is to maintain the natural diversity, ecological processes, and
ecological functions of NWRs as expressed by the BIDEH policy. Taking
care of these priorities helps us ensure these natural resources will
be available for future generations to enjoy, thereby maintaining or
improving these areas for people as well. Refuge Managers work to
balance the diverse demands of the public with the requirement to meet
NWR purposes and the NWR System mission, utilizing the best available
science to make decisions.
(24) Comment: One commenter offered a different definition of
natural diversity (FWS policy at 701 FW 1) and suggested we consider it
as an alternate definition for the rule.
FWS Response: After considering the public comments, we are
defining ``natural diversity'' in this final rule as proposed, with the
exception that we have removed the phrase ``and taking into
consideration the fact that humans are dependent on wildlife refuge
subsistence resources'' from the definition. As explained above, in
promulgating this definition, we have carefully considered the
legislative history of ANILCA, other ANILCA background documentation,
and FWS laws, mandates, and policies. The context for the development
of the definition of ``natural diversity'' is appropriate because it
derives from ANILCA legislation and speaks to the intent of that
legislation, which is specific to Alaska. Managing to meet the
definition of ``natural diversity'' in this rule is essentially the
same as management to achieve the definitions of biological integrity
and diversity provided in BIDEH policy, as noted above.
(25) Comment: One commenter provided written quotations from refuge
CCPs that identified language that acknowledged our ability to conduct
or permit predator control on NWRs and therefore suggested we should
not pursue this rulemaking process.
FWS Response: The information about predator control and predator
management that was cited from refuge CCPs supports the provisions of
this rule. The excerpts from the CCPs indicate that, when appropriate,
FWS does conduct predator control on NWRs and that we can allow for the
harvest of predators on NWRs, as long as these actions are in
compliance with applicable legal and policy mandates. In evaluating the
purpose and need for this rule, FWS determined that it is not a refuge-
specific rule and should be applied regionally to all Alaska NWRs. This
rule was developed to establish consistent definitions and guidance for
all Alaska NWRs to follow when evaluating predator control requests and
to ensure the public understands the associated legal authorities.
(26) Comment: Concern was expressed that the environmental
assessment (EA) and BIDEH policy does not take into consideration fish.
FWS Response: While this rule was developed to address specific
predator control proposals for terrestrial species, including specific
methods and means for the harvest of bears, wolves, and coyotes, the
requirements of natural diversity and the BIDEH policy apply to other
species, including fish. Refuge Managers evaluate refuge conditions and
future refuge management relative to the BIDEH policy and consider all
resources associated with an NWR, including fish. The BIDEH policy is
an additional directive for managers to follow while achieving NWR
purpose(s) and the NWR System mission. It provides for the
consideration and protection of the broad spectrum of fish, wildlife,
habitat, and vegetation resources found on NWRs and associated
ecosystems.
Economic Impacts
(27) Comment: Commenters expressed concern that depleted predator
populations may reduce ecotourism opportunities, like wildlife watching
and photography, in the future. Others were concerned the proposal may
negatively impact hunting tourism.
FWS Response: Maintaining healthy and sustainable ecosystems on
NWRs contributes to the wildlife-based tourism business in Alaska.
Although this rule may result in slight changes in refuge visitor
experiences, we do not expect this rule to significantly impact
visitors engaged in either hunting or nonconsumptive uses like wildlife
viewing. In fact, the rule supports the long-term sustainability of
both consumptive and nonconsumptive uses on NWRs. FWS recognizes that
wildlife-dependent recreational uses (hunting, fishing, wildlife
observation and photography, and environmental education and
interpretation), when determined to be compatible with NWR purposes,
are legitimate and appropriate public uses of the NWR System as
mandated by the Improvement Act. As a result of this rule, there may be
slight effects to recreational big game hunting on refuges by
eliminating a hunter's ability to use a few specific methods and means
of take. However, until recent years, many of these methods and means
were prohibited Statewide. Due to the historical ban on these methods
and means of take of predators, it is estimated that these hunting
methods (take of brown bears over bait, take of brown bears using traps
or snares, take of wolves and coyotes during the denning season, and
same-day airborne take of bears) represent a very small fraction of all
big game hunting on NWRs. As a result, opportunities for big game
hunting on NWRs will likely change minimally. From 2009 to 2013, big
game hunting on NWRs in Alaska averaged about 40,000 days annually and
represented 2 percent of wildlife-related recreation on NWRs. Big game
hunting on NWRs in Alaska represented only 4 percent of all Statewide
big game hunting days (1.2 million days) for the State (U.S. Department
of the Interior, U.S. Fish and Wildlife Service, Division of Federal
Aid, 2011 National Survey of Fishing, Hunting, and Wildlife Associated
Recreation; and U.S. Department of the Interior, U.S. Fish
[[Page 52261]]
and Wildlife Service, National Wildlife Refuge System, Refuge Annual
Performance Plan 2009-2013. Washington, DC, unpublished). With this
final rule and prohibition of certain effective methods and means of
take of predators, there may be a small direct positive effect to
wildlife watching activities for nonconsumptive users. This rule will
not affect the majority of State general hunting regulations or other
allowable public uses on NWRs in Alaska. A more naturally functioning
ecosystem will better facilitate a diversity of public uses.
Moose
(28) Comment: Commenters expressed concerns about a shortage of
moose for subsistence hunters near the Kenai NWR that is likely due to
lack of predator management. Other commenters were concerned that moose
near Kenai, Alaska, are negatively impacted by trapping lines, disease,
habitat loss, and trophy hunting.
FWS Response: Moose populations on the Kenai Peninsula have
numbered 5,000 to 6,000 since the mid-1980s and are likely to increase
in the near term due to recent and expected wildfires. In the longer
term, the effects of a warming climate that include the potential
introduction of lethal diseases (e.g., Chronic Wasting Disease) and
winter ticks, thermal stress in the spring, and a changing fire regime
may negatively impact Kenai moose. In addition, moose-vehicle
collisions on the Kenai Peninsula have averaged 244 per year (or about
30 percent of moose killed by humans every year), translating to over
7,100 moose killed by vehicles since 1980. Small numbers of moose may
also be killed or maimed by traps, snares, and dogs. Bears and wolves
do prey on calves and infirm moose, but their effect on moose
population demographics is generally compensatory and not additive
unless moose populations are extremely low (U.S. Fish and Wildlife
Service. 2015. Draft Environmental Assessment: Non-subsistence Take of
Wildlife: Proposed Regulatory Updates to Methods and Means for Predator
Harvest on NWRs in Alaska). Overall moose populations within Alaska
appear to be healthy and expanding into western portions of the State.
Depending on where you are located in Alaska, some populations of moose
are at low densities but are stable populations. These populations may
be limited in many ways beyond simply predators. In many places, the
food availability may actually be the more limiting factor.
Bears
(29) Comment: Comments were received pertaining to allowable bait
for bears, as the proposed rule specifically stated FWS was seeking
comment on the type of bait that should be allowed for the baiting of
black bears. One commenter wrote that the use of carcass remains was
``unethical.'' Three commenters suggested using ``natural'' baits that
bears would normally eat (e.g., fish and game remains).
FWS Response: We received few comments regarding they type of bait
that should be allowed for baiting bears. As a result of public
comments, we have decided to continue to adopt State regulations on
allowable baits for black bear hunting. Currently, State regulations,
which are adopted on NWRs, require the bait used at bear baiting
stations to be biodegradable.
(30) Comment: Commenters opposed same-day aerial shooting of
wildlife on NWRs because it benefits trophy hunters, is not in keeping
with Refuge tenets, and is not in keeping with the spirit of fair
chase.
FWS Response: The allowance for same-day airborne hunting of wolves
and bears by the public reverses a long-standing prohibition in the
State. It has only recently been allowed by the State in areas where
the overall State goal is to reduce predator populations. Same-day
airborne take of wildlife is already prohibited on all Alaska NWRs for
many species. This rule will add bears to the list of species that
cannot be taken by hunters the same day they were airborne. Same-day
airborne take of black and brown bears would likely increase harvest
pressure and reduce bear populations because it allows the hunter the
ability to observe bears from the air, land, and harvest the animal
that same day, which provides a large advantage over a person on the
ground dealing with limited visibility. Same-day airborne take of black
and brown bears is prohibited in this rule because it is a particularly
effective means of harvesting predators with the potential to
significantly impact predator populations and subsequently impact
important ecological process like the predator-prey relationship.
(31) Comment: Certain commenters proposed that the practice of
killing bears and cubs in their winter dens should be prohibited, but
others expressed support for the harvest method to continue for local
residents for cultural reasons only.
FWS Response: In Alaska, State-regulated hunting of sows and cubs
has mostly been limited to predator control areas, where the intention
is to significantly reduce bear population numbers. There is an
allowance under State general hunting regulations for the take of black
bears, including sows with cubs and cubs, by resident hunters from a
den site from October 15 through April 30 (year-round in Unit 25D,
which is within Yukon Flats NWR) for customary and traditional use in
interior Alaska. These State regulations open this season to any Alaska
resident. These State regulations specify the game management units and
seasons during which this method of harvest can occur. This rule
prohibits taking black or brown bear cubs or sows with cubs (exception
allowed in accordance with State law and regulations for resident
hunters to take black bear cubs or sows with cubs under customary and
traditional use activities at a den site October 15-April 30 in
specific Game Management Units (GMUs)). Allowing cubs, and sows with
cubs, to be harvested under general hunting regulations year-round or
outside of customary and traditional uses would likely have the
consequence of reducing the overall bear population. This would be a
high-intensity impact, as the ecological function of a top predator
would be reduced and the effects would be considered long term due to
life strategies of these species.
(32) Comment: Some commenters were concerned that bait attracts
both intended and unintended wildlife species, and the concentrations
of wildlife caused by baiting may spread disease. Commentators stated
that bear baiting is a serious human safety issue, as bears become
habituated and potentially dangerous encounters between bears and
humans increase.
FWS Response: We prohibit harvesting brown bears over bait due to
the potential to reduce their population by significantly increased
harvest rates. Based on basic biological differences in productivity
and survival, the recovery time for brown bear populations is much
longer than for black bears. At this time, available data do not yet
indicate that baiting at current hunter participation levels has
resulted in the overharvest of black bears. Brown bears can be
attracted to black bear baiting stations in areas where their ranges
overlap, and this is an area of concern that FWS will continue to
monitor. There is a potential for baited bears to become human-
habituated and food-conditioned. While there have been few studies that
linked baiting for brown bears to increases in bear attacks on humans,
there are studies documenting an increase in negative bear-human
encounters when bears become food-conditioned and tolerant of humans.
[[Page 52262]]
Previous information on food conditioning and human habituation
provides evidence that indirect problems associated with these methods
are likely to occur at some level. There is also potential for higher
instances of defense of life and property mortalities associated with
food- and human-conditioned bears. Brown bear populations in proximity
to villages, towns, and cities are often subject to higher rates of
mortality from humans related to defense of life and property (U.S.
Fish and Wildlife Service. 2015. Draft Environmental Assessment: Non-
subsistence Take of Wildlife: Proposed Regulatory Updates to Methods
and Means for Predator Harvest on NWRs in Alaska). This source of
mortality must be factored into the management of overall human-caused
mortality when regulating bear hunting for long-term health and
survival of the population. The spread of disease related to bear
baiting has not been documented as a problem at this time. Public
safety of visitors to NWRs in Alaska is a high priority for FWS. There
are inherent risks to visiting remote locations in Alaska, and the
provisions of this final rule do not change that. This rule will
however, enhance maintenance of more intact ecosystems, and healthier
and more resilient populations of animals for both consumptive and
nonconsumptive users.
(33) Comment: Commenters expressed concerns regarding the practice
of trapping bears and believed it is not humane and not selective
relative to bear type, sex, or age.
FWS Response: This rule prohibits the use of traps to harvest bears
on NWRs in Alaska. Trapping of bears is a nonselective harvest method
that will result in the harvest of cubs or sows with cubs. Harvest of
these classes of bears is generally only employed when the goal is to
reduce the overall population.
(34) Comment: Concerns were expressed regarding the cultural and
biological significance in taking brown bears over bait. Commenters
suggested that data have not been collected that indicate that brown
bears are harvested on NWRs using bait, and there are no data that
indicate brown bear baiting is a particularly effective method of take
in certain areas in Alaska.
FWS Response: For federally qualified subsistence users, where the
baiting of brown bears is customary and traditional, proposals should
be submitted to the Federal Subsistence Board (FSB). For example, the
FSB recently allowed the harvest of brown bears over bait in game
management units 11, 12, and 25D, an area which includes Tetlin NWR,
most of Yukon Flats NWR, and a portion of Arctic NWR. In terms of
biological significance, baiting for brown bears has been shown to be a
highly effective tool for reducing brown bear populations in some
areas. Because of the documented importance of apex predators for
maintaining long-term fitness and resilience in their prey populations,
and because such predators are part of NWRs' natural diversity, this
rule prohibits baiting of brown bears for general sport hunting on all
NWRs in Alaska. Even though bear baiting may not be practiced on all
refuges, and the effects of bear baiting for population reduction will
vary from region to region and from habitat to habitat in Alaska, FWS
is legally tasked with maintaining natural diversity and healthy
ecosystems. It is not prudent to wait until the practice spreads to new
areas or impacts previously unaffected brown bear populations before
taking action. Thus, we are proactively precluding the loss of
diversity and degradation of ecosystem functions by prohibiting this
practice on NWRs Statewide, both where it may have occurred already and
where it could be initiated in the future.
(35) Comment: A commenter stated the BOG's management is not
scientifically driven and could result in widespread reductions of
Alaska's grizzly \1\ bear populations. The commenter cited that hunter
kill rates on wolves, grizzly bears, and other carnivores has a
multiplier effect on total mortality over time that exceeds natural
mortality rates and is due to loss of mature reproductive individuals
and disruptions of social structures.
---------------------------------------------------------------------------
\1\ According to MacDonald and Cook (2009), brown and grizzly
bear are one in the same: Ursus arctos. For the purposes of this
final rule, brown bear includes grizzly bear but will only be
referred to as brown bear.
---------------------------------------------------------------------------
FWS Response: FWS proposed regulatory changes specifically to
address methods and means employed to reduce predator populations on
NWRs in Alaska. Many of these methods this rule prohibits involve the
harvest of adult female animals and/or females with dependent young. We
concur with the commenter that such approaches have impacts on predator
populations beyond just the animals harvested. Predator reduction
methods allowed by the State are permitted where the goal is to reduce
predator numbers. The elimination or reduction of ungulate predators
and predatory forces on wild ungulate populations may seem like the
best way to produce more ungulates, but these ecological systems rely
on predation and apex predators to maintain long-term fitness and
resilience of ungulate populations. It is these ecological processes
that must be maintained to provide healthy ungulate populations on NWRs
in Alaska for future generations of both consumptive and nonconsumptive
users.
(36) Comment: Commenter stated it was inappropriate for FWS to
extrapolate the overharvest of brown bears on Kenai NWR, which resulted
from State regulations, to a potential scenario of overharvest of brown
bears to the rest of the State.
FWS Response: Under its general or sport hunting regulations, the
State had a long-standing prohibition on the harvest of brown bears
over bait. This was only recently changed in the 2012-2013 regulatory
year, when one of the stated goals of the 20E intensive management
area, located adjacent to Tetlin NWR, was to significantly reduce brown
bear populations to enhance moose populations. That was the reason
offered by the State in allowing the harvest of brown bears over bait.
While every designed program results in varying amounts of take, the
use of bait for brown bears has been and continues to be employed to
reduce brown bear population levels. FWS also considered the cumulative
impacts from all the various methods and means that have been changed
by the State for the purpose of reducing predators. While the level of
effectiveness of each method may vary in a given unit or circumstance,
the impact of these cumulative changes have had and will have the
collective effect of reducing predator populations for the stated goals
of increasing ungulate populations for human consumption. Although
current human-use patterns that potentially negatively impact brown
bear populations on the Kenai may differ relative to the rest of the
State today, human-use and access patterns are neither static nor
perfectly predictable. In addition, historically remote areas are
becoming increasingly accessible. As a result, FWS finds it necessary
to adopt these regulatory changes across all NWRs in Alaska. FWS is
mandated to preserve the natural diversity of the wildlife and their
habitats. Ungulate populations benefit from having apex predators as
one of the natural forces driving their populations and maintaining
their fitness and resilience. These benefits are lost when predator
populations are sharply reduced and maintained at low levels for long
periods of time. For these reasons, FWS finds it is necessary to adopt
the regulatory changes set forth in this rule for nonsubsistence
hunting on NWRs in
[[Page 52263]]
Alaska. Protection of the ecological processes will provide healthier
ungulate populations for all users, both consumptive and
nonconsumptive.
(37) Comment: A commenter identified a discrepancy between baiting
regulations at 50 CFR 32.2 and at 50 CFR 36.32.
FWS Response: We correct that error in this rule.
Wolves and Coyotes
(38) Comment: Multiple commenters expressed that wolf and coyote
season closures should extend through November. Commenters were
concerned with the practice currently allowed by the State that allows
taking animals while in the denning season. Concerns were expressed
about the value of pelts taken in summer.
FWS Response: This rule prohibits the take of wolves and coyotes
from May 1 through August 9 for nonsubsistence users. These dates
reflect the former longstanding State harvest seasons that provided
reasonable harvest opportunities while still maintaining natural
diversity with viable and healthy wolf and coyote populations. For the
reasons stated herein, this rule maintains this traditional and
historically effective management standard that had been used by both
State and Federal managers rather than adopting recent State general
hunting regulations that lengthened the hunting seasons on both
species. FWS understands that some individuals may have uses for wolf
pelts that are harvested outside the normal trapping season. This rule,
however, protects wolves and coyotes during the denning season when
they and their young are vulnerable but allows the opportunity for
harvest during the winter months. Should wolf or coyote population
levels become a concern with respect to natural diversity in the
future, FWS will work with the State and/or the FSB, as applicable, to
consider appropriate actions at that time.
(39) Comment: Commenters expressed concerns that predator control
measures can eliminate wolf packs and negatively impact wolf pack
dynamics, and that hunting can increase levels of cortisol and
reproductive hormones that may negate the intent of predator control as
intended. Other commenters were concerned about the survival of
orphaned pups, and the maintenance of healthy wolf and coyote
populations as a whole.
FWS Response: This rule expressly prohibits certain particularly
effective harvest methods and means on Alaska NWRs and clarifies when
predator control can be authorized. Predator control will not be
implemented on a NWR unless it is based on sound science in response to
a conservation concern. The rule is intended to reasonably limit, but
not eliminate, public hunting opportunities of both wolves and coyotes.
The rule shortens hunting seasons for these species to minimize
negative impacts to these populations that can occur if species are
harvested while raising their pups.
(40) Comment: A commenter opposes restrictions on taking coyotes
since they are in conflict with regulations established in other
States.
FWS Response: This rule is consistent with the former longstanding
State harvest seasons that balance both coyote harvest and coyote
conservation. NWRs in other States have a diverse array of coyote
hunting seasons ranging from no coyote hunting to seasons lasting
several months. Alaska NWRs regulations are developed to meet Alaska
NWRs purposes consistent with both ANILCA and the Improvement Act, and
these regulations only apply to Alaska NWRs.
(41) Comment: Commenters request reasonable daily bag limits on
wolves.
FWS Response: With this rule, FWS intends to address ``particularly
effective'' methods of harvest, and does not specifically address daily
bag limits for the affected species. Although certain bag limits may
have potential to result in a conservation concern in a given area or
for a certain species, this rule does not address them. In general, bag
limits are more appropriately addressed through the State's regulatory
processes and the FSB program in conjunction with harvest information
and population data. Should the issue surrounding excessive bag limits
become a concern in the future with respect to maintaining natural
diversity, FWS will work with the State and the FSB as appropriate.
Sport/General Hunting and State Subsistence Hunting
(42) Comment: Commenters expressed concern the rule would
negatively affect subsistence hunting, and if wildlife populations
fluctuate to low levels, subsistence users will be required to purchase
more food.
FWS Response: ANILCA provides a priority to rural Alaskans for the
nonwasteful taking of fish and wildlife for subsistence uses on Federal
public lands in Alaska, including on NWRs. Under ANILCA, all NWRs in
Alaska are also mandated to provide the opportunity for continued
subsistence use by local rural residents, as long as this use is not in
conflict with the conservation of fish and wildlife populations and
habitats in their natural diversity or with fulfilling the
international treaty obligations of the United States. Additionally,
Title VIII of ANILCA, section 802, states that ``consistent with sound
management principles, and the conservation of healthy populations of
fish and wildlife . . . the purpose of this title is to provide the
opportunity for rural residents engaged in a subsistence way of life to
do so.'' FWS recognizes the importance of the fish, wildlife, and other
natural resources in the lives and cultures of Alaska Native peoples
and in the lives of all Alaskans, and in accordance with section 804 of
ANILCA, we continue to recognize subsistence uses of fish and wildlife
and other renewable resources as the priority consumptive use on Alaska
NWRs. This rule does not change existing Federal subsistence
regulations (36 CFR part 242 and 50 CFR part 100) or restrict the
taking of fish or wildlife for subsistence uses under Federal
subsistence regulations. FWS is committed to allowing subsistence
harvest across a broad taxonomic spectrum of species, specifically so
that as some populations decline others remain stable or increase and
thus remain readily available for harvest by those who rely on them.
(43) Comment: Commenters expressed concern the rule would
negatively affect hunters, as prohibited predator control methods for
taking game are important culturally and biologically to hunters.
FWS Response: FWS recognizes that some hunters will be impacted by
this rule; however, because this rule maintains methods and means for
take of predators that were formerly prohibited by the State, the rule
will impact only a small fraction of all big game hunting opportunities
on NWRs. This rule restricts certain methods and means of harvest on
NWR lands under the State general hunting regulations; it does not
prohibit the harvest of predators. In addition, this rule does not
affect the current State harvest regulations that are applicable to
hunting on non-Federal lands. The Federal subsistence regulations on
NWR lands remain unchanged. The Federal subsistence regulations reflect
the flexibility that federally qualified subsistence users' desire in
seasons and harvest limits.
(44) Comment: Commenters expressed concern about the inappropriate
techniques (such as baiting bears, trapping bears, and same-day
airborne take of wildlife) used for sport hunting and negative impacts
to individual animals and populations.
FWS Response: The specific methods and means for the general or
sport
[[Page 52264]]
harvesting of predators that are prohibited in this rule conflict with
FWS mandates to conserve fish and wildlife populations and habitats in
their natural diversity and to maintain BIDEH on NWRs in Alaska. One
aspect of the rule is to prohibit certain methods and means for taking
predators under State general hunting regulations on NWR lands. While
many commenters identified these methods as ``unethical'' or
``inhumane,'' this rulemaking specifically addresses prohibiting those
methods and means that have the potential to greatly increase predator
harvests and to disrupt natural diversity and the interactions of
wildlife.
(45) Comment: Commenters expressed concerns that it is equally
important for Alaska residents to be able to hunt on all lands in
Alaska. There were also concerns the rule is more about eliminating
hunting on refuge lands than predator control management.
FWS Response: This rule does not eliminate subsistence or
nonsubsistence hunting on NWR lands for any species. The intent of the
rule is to prohibit a small number of specific, highly effective
methods and means of predator harvest on NWR lands that have been
allowed under the State's general hunting regulations. The Background
section, above, discusses the laws and policies that relate to
subsistence and nonsubsistence hunting on NWR lands, including the
preference/priority for subsistence uses that applies to all Federal
lands in Alaska, including NWRs. The Background discussion also states
that hunting is recognized as one of several priority uses of the NWR
System (605 FW 2), and that taking of fish and wildlife through public
recreational activities is authorized on NWRs in Alaska ``as long as
such activities are conducted in a manner compatible with the purposes
for which the areas were established'' (50 CFR 36.31(a)).
(46) Comment: One commenter indicated that the proposed rule will
be unenforceable due to lack of resources.
FWS Response: The methods and means of harvest prohibited by this
rule will be enforced by the Service in a similar fashion to other
applicable State and Federal harvest regulations. The Service will
continue to prioritize its resources to provide for effective
enforcement, recognizing that enforcement issues will likely be the
greatest near refuge boundaries or in areas with checkerboard land
ownerships.
(47) Comment: Commenters expressed concern about the use of drones.
FWS Response: The Alaska State hunting regulations were modified in
2014 to prohibit the use of any device that has been airborne,
controlled remotely, and used to spot or locate game with the use of a
camera or video device (5 AAC 92.080(7)). 50 CFR 36.32(a) continues to
adopt non-conflicting State and Federal laws pertaining to the taking
of fish and wildlife. This Alaska law regarding drones is an example of
such an adopted regulatory provision, and such use of a drone is also a
violation of this rule.
Intensive Management (IM) Programs
(48) Comment: Commenters expressed concern that State IM practices
on lands near or adjoining NWRs in Alaska will negatively impact the
predator and/or prey populations on NWR lands.
FWS Response: It is possible that IM practices on neighboring lands
may have impacts to resources on NWR lands. Each Federal and State
agency involved with managing land in Alaska has a different management
mandate, and there will be instances where animals that cross
boundaries are exposed to different management regimes. This challenge
for managers is not new. It is the longstanding practice of FWS that
our refuge regulations apply on to the lands and waters that FWS
administers.
Fortunately, Alaska NWRs are generally large enough to maintain
natural and biological diversity and integrity, despite these
challenges. Despite differences in their respective management
mandates, Federal and State wildlife managers throughout Alaska strive
for as much interagency consistency as possible when developing and
implementing wildlife management actions. Such consistency is in the
best interests of both our constituents and the wildlife resources they
value.
(49) Comment: Commenters stated that enabling legislation for
Alaska NWRs does not include directives to conduct IM practices on
NWRs. Some commenters believe IM practices are costly and not based on
sound science.
FWS Response: IM is a State, not Federal, mandate. The rule will
help the agencies and the public better understand differences between
the State mandate and Federal laws and policies.
(50) Comment: Some commenters stated that the proposal is
politically driven or intended to impede State efforts to manage
wildlife on Alaska lands.
FWS Response: The sole purpose of this rule is to ensure that FWS
carries out its statutorily mandated responsibilities for Alaska NWRs.
The rule establishes definitions and administrative processes that
fulfill these responsibilities. This effort is not politically driven,
but it is an administrative process to clarify and define the legally
mandated management responsibilities of Alaska NWRs, particularly when
they are not consistent with those of the State. The regulations
clarify FWS' mandate under ANILCA ``to conserve fish and wildlife
populations, and habitats in their natural diversity,'' the first-
listed management purpose for each Alaska NWR. This effort to clarify
and define the natural diversity mandate is intended to provide a
better understanding of when predator control is allowed by FWS on
Alaska NWRs. Harvest techniques come in many forms, such as lengthening
seasons, increasing bag limits, government-funded control, and allowing
more effective means of pursuit. These techniques are, however, subject
to NWR System laws, regulations, and policies. It is for this reason
that we are making the regulatory changes set forth in this rule.
Predator and Prey Species Management
(51) Comment: Commenters expressed support for the proposal and
stated the State's current predator management practices do not
recognize the importance of apex predators, and many disagreed with BOG
predator control measures.
FWS Response: We note this comment.
(52) Comment: Commenters expressed the need to include a
prohibition against using Pittman-Robertson funds for predator control.
FWS Response: Addressing the use of Pittman-Robertson (Wildlife
Restoration or WR) grant funds is outside the scope of this rulemaking.
Regulations for the use of Federal assistance, including WR funds, are
uniform and national in scope (see 2 CFR part 200 and 50 CFR part 80).
Eligibility of WR funds specific to predator control is not currently
addressed in our regulations, but rather in FWS policy (521 FW 1).
(53) Comment: Commenters stated opinions that predator control is
effective for providing continued (ungulate) populations for
subsistence and nonsubsistence users.
FWS Response: FWS recognizes predator control as a management tool
and, as stated above, authorizes the technique when appropriate and
consistent with Federal laws and policies.
(54) Comment: Commenters were concerned the rule will negatively
[[Page 52265]]
impact hunting and other activities on Alaska's NWRs.
FWS Response: As stated above, the methods and means restrictions
do not apply to the take of fish and wildlife under the Federal
subsistence regulations. Because this rule follows practices
historically used by State wildlife regulators until only recently,
there will be minimal incremental impacts to nonsubsistence general
hunting through the implementation of the restrictions on certain
methods and means of take. The definition of ``predator control'' at 50
CFR 36.2 and the process of allowing predator control on NWRs in Alaska
are designed to clearly articulate to Refuge Managers and the public
under what circumstances and conditions FWS will consider predator
control programs. Not conducting active predator control programs
allows predator-prey populations to fluctuate naturally in response to
factors that drive these dynamics, including habitat conditions. As a
result, healthier populations of both predators and prey will exist but
will fluctuate and, at times, may either increase or decrease game
hunting opportunities. Predator control programs may temporarily
increase prey populations, but can have undesirable impacts such as
habitat damage, disease, or declines in herd fitness that also
negatively affect opportunities for hunting. This rule complies with
ANILCA's legislated purpose that the NWRs were established and shall be
managed to conserve fish and wildlife populations and habitats in their
natural diversity.
(55) Comment: Some commenters stated restrictions on predator
management would impact FWS' ability to maintain healthy predator-prey
populations.
FWS Response: The large landscapes within the NWR units in Alaska
are still largely intact and fully capable of supporting healthy
predator-prey populations without the need for human management actions
such as predator control programs. The relationships between predators,
prey, and habitat is complicated, subject to large population or
habitat condition swings that can be triggered by other factors,
including weather, fire, disease, and other wildlife species. When
considering predator-prey population dynamics, FWS must also carefully
consider human impacts that can affect these relationships, including
impacts from hunting (i.e., bag limits and seasons); disturbance,
particularly during critical periods such as calving or wintering;
potential for introduction of disease; human-caused habitat impacts
such as fire or climate change; barriers to movement; and other
factors. Successful management of these factors and preserving the
natural ecosystem functions of landscapes will enable us to continue to
maintain healthy, dynamic prey-predator populations.
(56) Comment: Several commenters are concerned that the term
``predator control'' is vague and could be taken out of context or
banned from use.
FWS Response: We have added clarifying language to the preamble of
this rule to help readers better understand predator control and its
context. The rule defines predator control as ``the intention to reduce
the population of predators for the benefit of prey species.'' For
clarity, this includes predator reduction practices, such as, but not
limited to, those undertaken by government officials or authorized
agents, aerial shooting, or same-day airborne take of predators. Other
less intrusive predator reduction techniques, such as, but not limited
to, live trapping and transfer, and authorization of particularly
effective public harvest methods and means, are also included. FWS
recognizes predator control as a management tool and uses the
technique, when appropriate and consistent with Federal laws and
policies governing Alaska NWRs. This rule clarifies, for the public and
agencies, how FWS complies with its ANILCA mandate to conserve fish and
wildlife populations and habitats in their natural diversity, the
first-listed management purpose for Alaska NWRs. This clarification of
the ANILCA natural diversity mandate is intended to provide a better
understanding of when predator control techniques are allowed on Alaska
NWRs.
(57) Comment: Commenters would like more flexibility in working
with resource managers in order to decide if and when predator control
is necessary.
FWS Response: Any predator control program proposed for NWRs in
Alaska must be consistent with Federal laws and policies. A purpose of
this rule is to implement a consistent approach for determining when
predator control will be conducted and to clarify how Alaska NWRs'
natural diversity mandate is linked to predator control management on
NWRs. Refuge Managers will continue to discuss refuge management issues
with tribal leaders, the State, and other interested parties.
(58) Comment: Commenters expressed that keeping healthy populations
of prey species could best be accomplished by maintaining healthy
populations of apex predator species.
FWS Response: The Service agrees with this comment.
(59) Comment: Commenters expressed concerns that ungulates are more
negatively affected by other factors than by predators.
FWS Response: There are many factors other than predators that
affect ungulate populations. Natural phenomena, such as weather and
fires, can have significant effects on habitat and wildlife. FWS must
also carefully consider human impacts that can affect ungulate
populations, including impacts from hunting (i.e., bag limits, methods
and seasons); disturbance, particularly during critical periods such as
calving or wintering; potential for introduction of disease; human-
caused habitat impacts such as fire or introduction of weed species;
barriers to movement; and other factors.
(60) Comment: Commenters drew parallels to the wilderness
characteristics at stake on Alaska's NWRs compared to what occurred at
Yellowstone and other National Parks with the loss of wolves (and
subsequent reintroduction), bears, and other predators.
FWS Response: The long-term absence (70 years) of wolves in
Yellowstone National Park and their subsequent reintroduction is a
classic science-based example of the influence of apex predators in
sustaining naturally diverse and healthy ecosystems (http://www.cof.orst.edu/leopold/papers/RippleBeschtaYellowstone_BioConserv.pdf). The studies following wolf
reintroductions completed in 1995-1996 indicate substantial vegetation,
bio-diversity, and hydrologic responses related to reintroducing wolves
and their subsequent influence on prey species like elk. Elk density
and behavioral changes (primarily foraging) resulting from wolf
reintroductions have had cascading positive impacts throughout the
Yellowstone ecosystem. ANILCA and the Improvement Act mandate FWS to
manage NWRs using a natural diversity approach that maintains healthy
ecosystems and where natural biotic and abiotic processes and systems
continue to flourish. Maintaining a diverse and healthy population of
predators is essential to meeting these mandates, and this rule
supports FWS' ability to achieve these mandates while also providing
for subsistence and other uses as applicable.
Comment Period
(61) Comment: Commenters expressed concerns that the public comment
period was too short to allow for a review of the proposed rule and
environmental assessment.
[[Page 52266]]
FWS Response: Under the Administrative Procedure Act (see 5 U.S.C.
553), a general notice of proposed rulemaking shall be published in the
Federal Register, and after that publication, the agency must
ordinarily provide the public a reasonable opportunity to submit
written data, views, or arguments on the proposed rulemaking for
consideration by the agency. Executive Order 12866 establishes 60 days
as the standard for a proposed rule's comment period (see section
6(a)(1) of Executive Order 12866).
We published our proposed rule on January 8, 2016 (81 FR 887). The
comment period for our proposed rule, as extended (see 81 FR 9799;
February 26, 2016), lasted 90 days, ending April 7, 2016. In accordance
with the E-Government Act of 2002 (Pub. L. 107-347), FWS provided for
submission of comments by electronic means, as well as by hard copy or
in person or at public meetings, and made available online the comments
and other materials included in the rulemaking docket. We received over
3,600 comments, including substantial comments from the State, BOG,
Alaska Native Tribes, ANCSA corporations, RACs, Association of Fish and
Wildlife Agencies (AFWA), and numerous other Alaskan constituents,
organizations, and businesses. Electronic sites to notify the public
about the 30-day extension of the original 60-day comment period (81 FR
9799; February 26, 2016) for the proposed rule were updated immediately
on the Alaska NWR System Web site (February 25, 2016) and the Federal
eRulemaking Portal (http://www.regulations.gov) (February 26, 2016).
Both Web sites remained fully functional for the entire comment period.
Within the Alaska NWR system Web site, the extended comment period date
was highlighted in red text to attract and alert a reviewer to the new
comment period deadline. FWS posted phone and email contact information
on all social media, electronic Web site, and printed outreach
materials to ensure that anyone needing assistance to acquire documents
or comment on the proposed rule and EA could contact an FWS
representative for assistance. The extensive outreach history conducted
prior to and after publication of the proposed rule is well documented
in both this rule and the FONSI. FWS is confident, given our
comprehensive outreach history and the proposed rule's 90-day comment
period, that all interested constituents had a reasonable opportunity
to understand and comment on the proposed rule and EA.
(62) Comment: One commenter was concerned there may be last minute
language changes or additions to the rule that will not be part of the
public commenting process.
FWS Response: The intent of the formal comment period is to obtain
feedback and suggested changes on the proposed rule. The
notice[hyphen]and[hyphen]comment process enables anyone to submit a
comment on any part of the proposed rule. At the end of the process,
the agency must base its reasoning and conclusions on the rulemaking
record, consisting of the comments, scientific data, expert opinions,
and facts accumulated during the pre[hyphen]rule and proposed rule
stages. In the case of this rule, FWS has not relied on significant new
data or arguments received after the comment period, and we have
determined that any modifications to the proposed rule are a logical
outgrowth of the information made available to us during the rulemaking
period.
Regulations for Closures and Public Participation Procedures
(63) Comment: Commenters expressed agreement with FWS for adding
the Internet as a method of notifying affected people and organizations
about hearings pertaining to closures or restrictions.
FWS Response: We note this comment.
(64) Comment: Some commenters stated that Internet-based means of
soliciting comments might invite people who will never visit Alaska to
sway FWS' decision.
FWS Response: The mission of the NWR System is to administer a
national network of lands and waters for the conservation, management,
and where appropriate, restoration of fish, wildlife, and plant
resources and their habitats within the United States for the benefit
of present and future generations of Americans. Therefore, when we
propose a change to our NWR regulations, we accept all timely comments
regardless of their source. Everyone has a right to offer comments on
regulations affecting the public lands. FWS is committed to using a
wide variety of notification and comment methods to ensure everyone
with a vested interest in a given proposal has the opportunity to
comment. Utilization of Internet-based communications is in furtherance
of, and fully consistent with, the directives of Congress in the E-
Government Act of 2002 (see our response to Comment (61)). The
eRulemaking Program is a widely utilized method of communication for a
wide variety of interested members of the public covering a broad
geographic area, including many (not all) parts of Alaska. The public
comment process is not like a ballot initiative or an
up[hyphen]or[hyphen]down vote in a legislature; agencies cannot simply
base a final rule on the number of comments in support or against a
particular proposal. At the end of the comment process, the agency must
base its decision on the record before it which consists of the
comments, scientific and other data, expert opinions, laws, policies
and facts accumulated during the rulemaking process. A broader range of
views and opinions about any agency proposal is critical to FWS in
ensuring that the best resource decisions are made for the continuing
benefit of the American people. FWS is committed to utilizing a broad
range of communication methods to ensure all interested individuals
have an opportunity to participate in the process.
(65) Comment: Commenters expressed concern about FWS using the
Internet as a method to notify the public because Internet access is
limited in rural Alaska. Commenters expressed concerns that the rule
removes traditional methods of notification like radio and newspapers.
FWS Response: The rule does not reduce the methods used to conduct
public outreach but rather expands the methods that should be used to
communicate information to a broadly dispersed and diverse public that
includes Alaska and the rest of the United States. FWS is very
sensitive to the fact that electronic communication of information may
not be appropriate or reliable in rural areas of Alaska, and therefore
FWS will continue to use traditional means of communication such as
newspapers, postal mail, radio announcements, flyers, and so forth, in
addition to providing information via electronic methods like Web
sites, list serves, and email. This rule updates our regulations to
take advantage of our current options for communication by adding the
use of the Internet, broadcast media, or other available methods, in
addition to continuing to use the more traditional methods of
newspapers, signs, and radio.
(66) Comment: Several commenters indicated that public meetings and
hearings are appreciated, but the rule is inconsistent regarding
whether or not they are required, in particular as it relates to
closures.
FWS Response: We revised applicable paragraphs in the ``Public
participation and closure procedures'' section of this rule (50 CFR
36.42 in the Regulation Promulgation section, below) to address
[[Page 52267]]
this comment and to clarify when meetings and hearings are required.
(67) Comment: Multiple commenters expressed concern about the
closure procedures in the proposed rule. Concerns included increasing
the emergency closure period from 30 days to 60 days, which may
encompass most or all of an entire hunting season for some species; and
fear that temporary closures may extend for years, thus restricting
access for subsistence use. Others stated that the proposal for
temporary closures eliminates the need for permanent closures.
FWS Response: FWS recognizes that emergency closures may be
implemented at any time and may extend up to 60 days, thereby
potentially impacting all user groups, including hunters. If an
emergency closure is implemented, it is the intent of FWS to resolve
the emergency as quickly as possible to reduce impacts to all NWR user
groups. Invoking an emergency closure is a serious action that FWS
understands may have important consequences and hence will be invoked
only when absolutely necessary. FWS clarified language in this rule to
indicate that an emergency closure will not exceed 60 days. Closures
requiring longer than 60 days will require FWS to comply with temporary
or permanent nonemergency closure procedures that require consultation
with the State, affected Tribes, and Native Corporations as well as the
opportunity for public comment and a public hearing in the vicinity of
the area(s) affected. Based on public comments, the time for temporary
closures or restrictions related to the taking of fish and wildlife
will extend only for as long as necessary to achieve the purpose of the
closure or restriction, and may not exceed 12 months. Another temporary
closure or restriction may be allowed only after public comment,
hearing, and consultation with State, Native Corporations, and Tribes
as indicated in 50 CFR 36.42(d)(2). Permanent closures or restrictions
related to the taking of fish and wildlife have no time limit
associated with the closure period. This is distinctly different from
temporary closures, which are implemented with the intent of extending
only as long as necessary to achieve a desired purpose for the closure
or restriction.
(68) Comment: Some commenters are concerned FWS plans to remove the
requirement for FWS to hold a hearing on the emergency closure
procedure.
FWS Response: This rule does not change hearing procedures for
emergency closures. Emergency closures or restrictions relating to the
taking of fish and wildlife will be accompanied by notice pursuant to
50 CFR 36.42(f) with a subsequent hearing.
(69) Comment: Multiple commenters expressed concern about the
authority given to the Refuge Manager to initiate closures without
input from the public. Commenters suggested that there is consultation
with other entities before closures occur.
FWS Response: Only certain emergency closures can be implemented by
a Refuge Manager without receiving formal input from the public, State,
Tribes, and Native Corporations. For any closure extending beyond 60
days, the manager is required to consult with the State, Tribes, and
Native Corporations and provide the opportunity for public comment. To
date, there has been a very low level of emergency closures executed on
NWRs in Alaska.
Public Process and Involvement
(70) Comment: One commenter was concerned that if FWS received many
comments from special interest groups, those comments from
``outsiders'' might outnumber those received from persons directly
affected, such as tribal members.
FWS Response: The mission of the NWR System is to ``administer a
national network of lands and waters for the conservation, management,
and where appropriate, restoration of fish, wildlife, and plant
resources and their habitats within the United States for the benefit
of present and future generations of Americans.'' Therefore, all
Americans have vested interest in the management of NWRs, regardless of
where they live. The notice[hyphen]and[hyphen]comment process enables
anyone to submit a comment on any part of the proposed rule. This
process is not like a ballot initiative or an up[hyphen]or[hyphen]down
vote in a legislature. An agency is not allowed to base its final rule
on the number of comments in support of the rule over those in
opposition to it. The agency also does not weigh comments based on
where the commenter resides. At the end of the process, the agency must
base its reasoning and conclusions on the rulemaking record, consisting
of the substantive comments, scientific data, expert opinions, and
facts accumulated during the pre[hyphen]rule and proposed rule stages.
(71) Comment: One commenter was concerned that permanent closures
for the take of fish and wildlife would not require a public hearing.
FWS Response: Permanent closures or restrictions related to the
taking of fish and wildlife will be effective only after allowing for
the opportunity for public comment and a public hearing in the vicinity
of the area(s) affected and publication in the Federal Register. These
closures also require consultation with the State and affected Tribes
and Native Corporations.
(72) Comment: Commenters expressed discontent with certain ``public
process'' experiences, saying they do not believe Alaska residents and
other American citizen concerns are being heard.
FWS Response: As a result of public comments during scoping for the
proposed rule and EA, and from comments we received during the 90-day
public comment period on the proposed rule, FWS made several changes to
this rule (see table above titled, Summary of primary differences
between our proposed rule and this final rule). These changes are
documented in this final rule and the FONSI along with FWS' response to
comments. FWS strived to gather input on the proposed rule using a
broad array of outreach efforts that included public hearings, open
houses, meetings, and communicating the availability of the rule via
radio, television, newspapers, Web sites, listservs, emails, posters,
flyers, and phone calls. When distributing paper or electronic
information, FWS ensured that there was always a phone contact included
so that a person could call someone to receive materials or get
assistance on how to comment. As a result of this process, we gathered
over 3,600 comments, of which 409 were substantive.
(73) Comment: Commenter stated that conserving and enhancing
resources for the benefit of the people requires collaborating with the
State and enhancing public involvement in decision making.
FWS Response: FWS agrees, and throughout this regulatory process
FWS engaged the public, agencies, and nongovernmental organizations in
conversations. Public involvement is fundamental to our mission and
required by law. Public lands are held in trust for the American
people, and they have the right to provide input on how these lands
will be managed. Successful management of NWR resources is achieved by
working with our conservation partners, like the Alaska Department of
Fish and Game (ADFG). FWS prefers to defer to the State on regulations
of hunting and trapping on NWRs in Alaska, unless, when doing so, FWS
would not be in compliance with Federal laws and FWS policy.
[[Page 52268]]
Pubic Uses
(74) Comment: Multiple commenters expressed concern about real or
perceived decreased opportunities for wildlife viewing and photography
as a result of the State's predator control regulations and IM actions.
Commenters were concerned that hunters had higher priority than other
public uses and wanted NWRs to have a natural variety of wildlife
species.
FWS Response: FWS is mandated by the Improvement Act to permit for
a diversity of wildlife-dependent recreational opportunities that
includes both consumptive and nonconsumptive opportunities. This rule
facilities our ability to manage NWRs for natural diversity and BIDEH,
which in turn will facilitate providing a diversity of recreational
opportunities from wildlife observation and photography of predators to
harvest of predators.
(75) Comment: Commenters expressed concerns that only predators
would exist in the future for the public to view due to an unbalanced
ecosystem that has resulted from removal of predator control practices.
FWS Response: Maintaining healthy predator-prey relationships is an
important part of managing Alaska NWRs. Predators cannot survive
without prey. Indeed, predator and prey populations in Alaska co-
existed and fluctuated naturally for millennia without intensive
predator management.
Scientific Methods
(76) Comment: Commenters expressed concern about the science used
to support the proposed rule and were specifically concerned with FWS'
use of the terms ``potential'' and ``intent'' relative to proposed
management practices and outcomes.
FWS Response: The terms ``intent'' or ``potential'' are used in
this rule and the EA to express our interpretation or understanding of
information. The use of these terms is appropriate in that we do not
necessarily always have specific studies or references for specific
Alaska populations or NWRs, but rather we make decisions based on the
best available science. In the ideal scenario, we have the data and
analysis completed for a specific situation and location that can be
directly applied to a decision-making process. Sometimes, however, we
are charged with making decisions based on the best scientific
information available as well as the professional judgment of our
biologists and managers. The justifications for actions identified in
this final rule are soundly supported by the best available science and
do incorporate analyses of Alaska-specific data where available. FWS'
evaluation of the best available science data, along with the
professional judgment of our biologists and managers, indicate a strong
potential and/or intent that the specific methods and means of take
prohibited by this rule will have significant negative impacts to
specific populations and the overall conservation of NWR natural
ecological processes. It is not the intent of, nor is it appropriate
for, FWS to simply wait and document negative impacts of threats that
can be avoided. Rather, the prudent conservation approach is to be
proactive in our management by curtailing and protecting NWRs from
threats that we infer, based on best available science, will have
negative consequences (precautionary principal). Throughout the
rulemaking process, FWS worked to collect and apply the best available
scientific information to evaluate and develop the regulatory changes
set forth in this rule. There are substantial references cited in the
EA that document our current knowledge of the importance of predator-
prey relationships relative to sustaining healthy ecosystems and that
clearly outline the justification and rationale for the methods and
means prohibitions identified in this rule. This rule is not based on
achieving or maintaining any particular wildlife population levels, and
therefore did not require comprehensive data documenting those levels.
Rather, the rule reflects FWS' responsibility to manage NWRs for
natural processes, including predator-prey relationships, and responds
to practices that are intended to alter those relationships.
(77) Comment: Commenters expressed support for the proposed rule
and agreed with the science and philosophy used by FWS to support
regulatory changes and how wildlife is managed on NWRs. Commenters
questioned the science behind the purpose and need for the State's
current predator management practices, expressing that the State does
not recognize the scientific importance of maintaining healthy
populations of top predators and does not evaluate other important
factors influencing ungulate populations like habitat.
FWS Response: We note this comment.
General or Other Comments
(78) Comment: Commenter expressed concerns over the layout and
organization of the proposed rule document and offered suggestions for
improvements.
FWS Response: Editorial suggestions from commenters for the rule
focused on the layout of the table that summarized the changes proposed
to the existing procedures for public participation and closures at 50
CFR 36.42. The suggested edits were evaluated and incorporated as
appropriate to clarify rule changes.
(79) Comment: Commenters expressed strong support for the changes
proposed by FWS. Many commenters stated they believe the proposed rule
does not violate ANILCA and other laws and regulations, will allow for
continued subsistence use, and will help secure the BIDEH of the NWR
System for the continued benefit of present and future generations.
FWS Response: We note this comment.
(80) Comment: Commenters requested that FWS delete 50 CFR
36.12(d)(3) from the regulations or provide an exception for Unit 23
Selawik NWR. A commenter proposed modifying language to read, ``except
for in Unit 23, Selawik NWR, a snowmachine may be used to position a
caribou, wolf, or wolverine for harvest provided that the animals are
not shot from a moving snowmachine machine.'' Commenters indicated that
such use of machines is necessary to pursue and harvest wildlife,
especially predators.
FWS Response: This comment cannot be addressed as part of this
final rule because it is outside the scope of this rulemaking. We did
not include any proposed changes to 50 CFR 36.12 in the proposed rule,
and the public was not given notice or a chance to comment on the
change. To amend this section of the regulations would require a
separate rulemaking.
(81) Comment: Commenters expressed a concern that managing for
natural diversity is different in NWRs compared to National Parks.
FWS Response: Alaska NWRs have different management mandates from
National Parks and Monuments, as specified by ANILCA and other laws.
NWRs are managed differently than National Parks as illustrated in the
Senate Congressional Record that states that habitat manipulation and
predator control and other management techniques frequently employed on
NWR lands are inappropriate within National Parks and NPS Monuments
(ANILCA, Senate Record, Dec. 1980). Alaska NWRs may use habitat
manipulation, predator control, or other management techniques, as
appropriate, when there is a conservation concern and a sound
biological justification for the action.
[[Page 52269]]
Required Determinations
Plain Language Mandate
This rule, as well as the proposed rule, contains revisions to
regulations in order to comply with longstanding Presidential
directions to use plain language in regulations. Such revisions do not
modify the substance of the previous regulations. These types of
changes include using ``you'' to refer to the reader and ``we'' to
refer to the NWR System, using the word ``allow'' instead of ``permit''
when we do not require the use of a permit for an activity, and using
active voice (i.e., ``We restrict entry into the refuge'' vs. ``Entry
into the refuge is restricted'').
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) in the Office of Management
and Budget will review all significant rules. OIRA has determined that
this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 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. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency must publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (small businesses,
small organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. SBREFA amended the RFA to require
Federal agencies to provide a statement of the factual basis for
certifying that the rule will not have a significant economic impact on
a substantial number of small entities. Thus, for a regulatory
flexibility analysis to be required, impacts must exceed a threshold
for ``significant impact'' and a threshold for a ``substantial number
of small entities.'' See 5 U.S.C. 605(b). SBREFA amended the Regulatory
Flexibility Act to require Federal agencies to provide a statement of
the factual basis for certifying that a rule would have a significant
economic impact on a substantial number of small entities.
As described above and in the January 8, 2016, proposed rule (81 FR
887), the changes in this rule will amend regulations for NWRs in
Alaska. This rule primarily: (1) Codifies how our existing mandates
relate to predator control in Alaska (50 CFR 36.1); (2) prohibits
several particularly effective methods and means for take of predators
(50 CFR 36.32); and (3) updates our public participation and closure
procedures (50 CFR 36.42). Predator control is prohibited on NWRs in
Alaska unless it is determined necessary to meet refuge purposes, is
consistent with Federal laws and policy, and is based on sound science
in response to a conservation concern. Demands for more wildlife to
harvest cannot be the sole or primary basis for predator control. This
rule does not change Federal subsistence regulations (36 CFR part 242
and 50 CFR part 100) or restrict taking of fish or wildlife for
subsistence uses under Federal subsistence regulations. Codifying how
our existing mandates relate to predator control in Alaska (50 CFR
36.1) will not result in a significant change of refuge use because
these practices were historically prohibited by the State, and thus
enforced as a matter of the adoption of non-conflicting provisions of
State law. The rule ensures that these prohibitions continue. Codifying
previously and currently prohibited sport hunting and trapping
practices will not have a significant impact because the few changes
that have occurred have been relatively recent, and this rule
constitutes a reinstatement of the prior status quo. State general
hunting and trapping regulations currently apply to NWRs in Alaska.
Therefore, the prohibition of particular methods and means for the take
of predators under State regulations on NWRs in Alaska that may affect
visitor use on those NWRs include the take of brown bears over bait,
take of wolves and coyotes during the denning season, and same-day
airborne take of bears. The take of black bear sows with cubs is only
allowed under State regulations in specific game management units for
customary and traditional use; therefore, it is not currently nor in
the past has it been legal for the general public to participate in
this activity outside of that framework. As a result, big game hunting
may decrease if a hunter's preferred hunting method is prohibited on a
NWR and they choose not to hunt elsewhere where such methods are not
prohibited. Conversely, wildlife watching activities may well increase
if there are increased opportunities to view wildlife, including bears,
wolves, and coyotes. From 2009 to 2013, big game hunting on NWRs in
Alaska averaged about 40,000 days annually and represented 2 percent of
wildlife-related recreation on NWRs. For Statewide hunting, big game
hunting on NWRs in Alaska represented only 4 percent of all big game
hunting days (1.2 million days). Due to the past ban on these
prohibited methods and means for take of predators, we estimate that
these hunting methods (take of brown bears over bait, take of wolves
and coyotes during the denning season, and same-day airborne take of
bears) represent a small fraction of all big game hunting on NWRs. As a
result, big game hunting on NWRs is expected to change minimally. This
change in opportunity will most likely be offset by other sites
(located outside of NWRs) gaining participants. Therefore, there may be
a substitute site for these hunting methods, and participation rates
will not necessarily change.
Hunters' spending contributes income to the regional economy and
benefits local businesses. Due to the unavailability of site-specific
expenditure data, we use the Alaska estimate from the 2011 National
Survey of Fishing, Hunting, and Wildlife Associated Recreation to
identify expenditures for food and lodging, transportation, and other
incidental expenses. Using the average trip-related expenditures for
big game hunting ($139 per day) yields approximately $5.9 million
annually in big game hunting-related expenditures on NWRs in Alaska.
Since only a small fraction of big game hunters are likely to choose
not to hunt on NWRs because of this rule, the impact will be minimal.
The net loss to the local communities should be no more than $5.9
million annually, and most likely considerably less because few hunters
use the prohibited methods and those hunters that do will likely choose
a substitute site.
[[Page 52270]]
Small businesses within the retail trade industry (such as hotels,
gas stations, taxidermy shops, etc.) may be impacted from some
decreased refuge visitation. A large percentage of these retail trade
establishments in local communities around NWRs qualify as small
businesses. We expect that the incremental recreational changes will be
scattered, and so we do not expect that the rule will have a
significant economic effect on a substantial number of small entities
in Alaska.
With the small change in overall spending anticipated from this
rule, it is unlikely that a substantial number of small entities will
have more than a small impact from the spending change near the
affected NWRs. Therefore, we certify that this rule will not have a
significant economic effect on a substantial number of small entities
as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
A regulatory flexibility analysis is not required. Accordingly, a small
entity compliance guide is not required.
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This rule is not a major rule under 5 U.S.C. 804(2), the SBREFA.
This rule:
a. Will 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. Will 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
As this rule applies to uses on federally owned and managed NWRs,
it will not impose an unfunded mandate on State, local, or tribal
governments or the private sector of more than $100 million per year.
The rule will not have a significant or unique effect on State, local,
or tribal governments or the private sector. A statement containing the
information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
et seq.) is not required.
Takings (E.O. 12630)
This rule does not effect a taking of private property or otherwise
have taking implications under E.O. 12630. This rule affects only the
public use and management of Federal lands managed by FWS in Alaska. A
takings implication assessment is not required.
Federalism (E.O. 13132)
As discussed in the Regulatory Planning and Review and Unfunded
Mandates Reform Act sections, above, this rule will not have sufficient
federalism implications to warrant the preparation of a federalism
summary impact statement under E.O. 13132. The rule's effect is limited
to Federal NWR lands managed by FWS in Alaska, and the rule will not
have a substantial direct effect on State and local governments in
Alaska. In preparing this rule, we worked with State governments. A
federalism summary impact statement is not required.
Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of E.O. 12988.
Specifically, this rule:
a. Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
b. Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
Consultation With Indian Tribes (E.O. 13175 and Department Policy) and
Alaska Native Claims Settlement Act Native Corporations
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951 (May 4, 1994)), Executive Order 13175
(Consultation and Coordination with Indian Tribal Governments; 65 FR
67249 (November 9, 2000)), and the Department of the Interior Manual,
512 DM 2, we readily acknowledge our responsibility to communicate
meaningfully with recognized Federal Tribes on a government-to-
government basis, and we did seek the Tribes' input in evaluating the
proposed rule. In addition, we evaluated the proposed rule in
accordance with 512 DM 4 under Department of the Interior Policy on
Consultation with Alaska Native Claims Settlement Act (ANCSA)
Corporations, August 10, 2012.
Prior to the development of the proposed rule, we sought feedback
from interested parties, including Tribal governments, ANCSA
corporations, the State of Alaska, and the Federal Subsistence RACs. We
contacted 146 Tribal governments, 12 regional and 106 village ANCSA
corporations, and 13 Native nonprofits, all within proximity to NWRs in
Alaska. In response to what we heard, we significantly narrowed the
scope and complexity of what we proposed (e.g., reducing the number of
proposed prohibited methods and means of take from 16 to 5; not opening
collection of natural resources (berries, mushrooms, downed timber);
and shortening the temporary closure from a maximum of 5 years to
maximum of 3 years and providing additional clarification, where
possible).
We sent out an initial invitation consultation to Tribal
governments, ANCSA corporations, and Native nonprofit organizations in
Alaska, and the Alaska Federation of Natives, on September 24, 2014. We
then sent a follow-up letter to the same contacts in the first week of
February 2015, and another in mid-May 2015. In December 2015, several
weeks prior to publication of the proposed rule and EA, we sent out a
fourth letter notifying the Tribal governments and ANCSA corporations
of the impending publication and scheduled hearings, and we provided an
overview of the proposed rule, as well as another invitation to consult
with us on the proposed rule. In early March 2016, we sent letters and/
or emails to all Tribal governments, ANCSA corporations, and Native
nonprofit organizations to notify them that we extended the comment
period on the proposed rule for another 30 days, ending April 7, 2016.
FWS conducted three Statewide Tribal consultation teleconferences
that included opportunity to dialogue with the Regional Director and
the Chief of NWRs for Alaska. These teleconferences were held in
November 2014 and February 2015. We also reached out to Tribal
governments, ANCSA corporations, and Native nonprofit organizations
through phone calls, emails, and meetings to notify them of our
availability for consultation and to encourage comment on the proposed
rule. Specific consultations requested during the comment period
occurred with the following: Allakaket Council and Alatna Council on
March 1, 2016; Doyon Corporation on March 7, 2016; Gwichyaa Zhee Tribal
Council on February 24, 2016; Kaktovik Tribal Council on February 16,
2016; Native Village of Venetie Tribal Council and the Venetie Village
Council on February 25, 2016; Nulato Tribe on February 3, 2016; and
Togiak Tribal Council on April 1, 2016.
We provided information on the proposed rule at conferences and
meetings including the Alaska Federation of Natives (October 2014 and
2015), Bureau of Indian Affairs Service Providers Conference (December
2014 and 2015), and the Federal Subsistence RACs meetings (September-
October
[[Page 52271]]
2014, February-March 2015, October-November 2015, and March 2016).
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 evaluated this rule
under the criteria in E.O. 13175 and under the Department's tribal
consultation and ANCSA corporation policies and determined that tribal
consultation is not required because the rule will have no substantial
direct effect on federally recognized Indian Tribes. While FWS has
determined the rule will have no substantial direct effect on federally
recognized Indian Tribes or ANCSA corporation lands, water areas, or
resources, FWS has consulted with Alaska Native Tribes and ANCSA
corporations on the proposed rule as indicated above.
Paperwork Reduction Act of 1995 (PRA)
This rule does not contain any new collections of information that
require approval by the Office of Management and Budget (OMB) under the
PRA (44 U.S.C. 3501 et seq.). The application (FWS Form 3-1383-G) for
the special use permit mentioned in this rule is already approved by
OMB under OMB control number 1018-0102, which expires on June 30, 2017.
We may not conduct or sponsor and a person is not required to respond
to a collection of information unless it displays a currently valid OMB
control number.
National Environmental Policy Act
FWS has analyzed this rule in accordance with the criteria of the
National Environmental Policy Act (42 U.S.C. 4321 et seq.) and the
Department of the Interior's manual at 516 DM. An environmental
assessment (EA) entitled ``Non-Subsistence Take of Wildlife: Proposed
Regulatory Updates to Methods and Means for Predator Harvest on
National Wildlife Refuges in Alaska Draft Environmental Assessment,
December 23, 2015'' was prepared to determine whether this rule will
have a significant impact on the quality of the human environment. The
draft EA was adopted without changes. This rule does not constitute a
major Federal action significantly affecting the quality of the human
environment, and an environmental impact statement is not required
because we reached a finding of no significant impact (FONSI). The EA
and FONSI are available online at http://www.regulations.gov under
Docket No. FWS-R7-NWRS-2014-0005.
Energy Supply, Distribution, or Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking actions that significantly affect
energy supply, distribution, or use. This rule is not a significant
regulatory action under E.O. 12866, and we do not expect it to
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant energy action, and no Statement of
Energy Effects is required.
Authors
The primary authors of this rule are Heather Abbey Tonneson,
Stephanie Brady, and Carol Damberg of the U.S. Fish and Wildlife
Service, Alaska Regional Office, with considerable review and input
from other Service Alaska refuge and Office of Subsistence Management
managerial and biological staff.
List of Subjects
50 CFR Part 32
Fishing, Hunting, Reporting and recordkeeping requirements,
Wildlife, Wildlife refuges.
50 CFR Part 36
Alaska, Recreation and recreation areas, Reporting and
recordkeeping requirements, Wildlife refuges.
Regulation Promulgation
For the reasons set forth in the preamble, the Service amends title
50, chapter I, subchapter C, of the Code of Federal Regulations as
follows:
PART 32--HUNTING AND FISHING
0
1. The authority citation for part 32 continues to read as follows:
Authority: 5 U.S.C. 301; 16 U.S.C. 460k, 664, 668dd-668ee, and
715i.
Sec. 32.2 [Amended]
0
2. Amend Sec. 32.2(h) by removing the words, ``(Baiting is authorized
in accordance with State regulations on national wildlife refuges in
Alaska)'' and adding in their place the words, ``(Black bear baiting
and use of bait to trap furbearers are authorized in accordance with
State regulations on national wildlife refuges in Alaska.)''.
PART 36--ALASKA NATIONAL WILDLIFE REFUGES
0
3. The authority citation for part 36 continues to read as follows:
Authority: 16 U.S.C. 460(k) et seq., 668dd-668ee, 3101 et seq.
Subpart A--Introduction and General Provisions
0
4. Amend Sec. 36.1 by:
0
a. Redesignating paragraphs (a), (b), and (c) as paragraphs (b), (c),
and (d), respectively; and
0
b. Adding a new paragraph (a) to read as follows:
Sec. 36.1 How do the regulations in this part apply to me and what do
they cover?
(a) National Wildlife Refuges in Alaska are maintained to conserve
species and habitats in their natural diversity and to ensure
biological integrity, diversity, and environmental health of these
refuges are maintained for the continuing benefit of present and future
generations.
* * * * *
0
5. Amend Sec. 36.2 by adding, in alphabetical order, definitions for
``Bait'', ``Big game'', ``Cub bear'', ``Furbearer'', ``Natural
diversity'', ``Predator control'', ``Sport hunting'', and ``Trapping''
to read as follows:
Sec. 36.2 What do these terms mean?
* * * * *
Bait means any material excluding a scent lure that is placed to
attract an animal by its sense of smell or taste; however, those parts
of legally taken animals that are not required to be salvaged and which
are left at the kill site are not considered bait.
Big game means black bear, brown bear, bison, caribou, Sitka black-
tailed deer, elk, mountain goat, moose, muskox, Dall sheep, wolf, and
wolverine.
Cub bear means a brown (grizzly) bear in its first or second year
of life, or a black bear (including the cinnamon and blue phases) in
its first year of life.
* * * * *
Furbearer means a beaver, coyote, arctic fox, red fox, lynx,
marten, mink, least weasel, short-tailed weasel, muskrat, river (land)
otter, flying squirrel, ground squirrel, red squirrel, Alaskan marmot,
hoary marmot, woodchuck, wolf, or wolverine.
Natural diversity means the existence of all fish, wildlife, and
plant populations within a particular wildlife refuge system unit in
the natural mix and in a healthy condition for the long-term benefit of
current and future generations. Managing for natural diversity includes
avoiding emphasis of management activities favoring some species to the
detriment of others and assuring that habitat diversity is maintained
through natural means, avoiding artificial developments and
[[Page 52272]]
habitat manipulation programs whenever possible.
* * * * *
Predator control is the intention to reduce the population of
predators for the benefit of prey species.
* * * * *
Sport hunting means the taking of or attempting to take wildlife
under State hunting or trapping regulations. In Alaska, this is
commonly referred to as general hunting and trapping and includes State
subsistence hunts and general permits open to both Alaska residents and
nonresidents.
* * * * *
Trapping means taking furbearers under a trapping license.
Subpart B--Subsistence Uses
Sec. 36.11 [Amended]
0
6. Amend Sec. 36.11 by removing paragraph (d) and by redesignating
paragraph (e) as paragraph (d).
0
7. Revise Sec. 36.13 to read as follows:
Sec. 36.13 Subsistence fishing.
Fish may be taken by federally qualified subsistence users, as
defined at 50 CFR 100.5, for subsistence uses on Alaska National
Wildlife Refuges where subsistence uses are allowed in compliance with
this subpart and 50 CFR part 100.
0
8. Revise Sec. 36.14 to read as follows:
Sec. 36.14 Subsistence hunting and trapping.
Federally qualified subsistence users, as defined at 50 CFR 100.5,
may hunt and trap wildlife for subsistence uses on Alaska National
Wildlife Refuges where subsistence uses are allowed in compliance with
this subpart and 50 CFR part 100.
Subpart D--Non-Subsistence Uses
0
9. Revise the heading of subpart D to read as set forth above.
0
10. Revise Sec. 36.32 to read as follows:
Sec. 36.32 Taking of fish and wildlife.
(a) The taking of fish and wildlife for sport hunting and trapping
and for sport fishing is authorized in accordance with applicable State
and Federal law, and such laws are hereby adopted and made a part of
these regulations, except as set forth in this section and provided
however, that the Refuge Manager, pursuant to Sec. 36.42, may
designate areas where, and establish periods when, no taking of a
particular population of fish or wildlife will be allowed.
(b) Predator control is prohibited on National Wildlife Refuges in
Alaska, unless it is determined necessary to meet refuge purposes, is
consistent with Federal laws and policy, and is based on sound science
in response to a conservation concern. Demands for more wildlife for
human harvest cannot be the sole or primary basis for predator control.
A Refuge Manager will authorize predator control activities on a
National Wildlife Refuge in Alaska only if:
(1) Alternatives to predator control have been evaluated as a
practical means of achieving management objectives;
(2) Proposed actions have been evaluated in compliance with the
National Environmental Policy Act (42 U.S.C. 4321 et seq.);
(3) A formal refuge compatibility determination has been completed,
as required by law; and
(4) The potential effects of predator control on subsistence uses
and needs have been evaluated through an ANILCA section 810 analysis.
(c) The exercise of valid commercial fishing rights or privileges
obtained pursuant to existing law, including any use of refuge areas
for campsites, cabins, motorized vehicles, and aircraft landing
directly incident to the exercise of such rights or privileges, is
authorized; Provided, however, that the Refuge Manager may restrict or
prohibit the exercise of these rights or privileges or uses of
federally owned lands directly incident to such exercise if the Refuge
Manager determines, after conducting a public hearing in the affected
locality, that they are inconsistent with the purposes of the refuge
and that they constitute a significant expansion of commercial fishing
activities within such refuge beyond the level of such activities in
1979.
(d) The following provisions apply to any person while engaged in
the taking of fish and wildlife within an Alaska National Wildlife
Refuge:
(1) Trapping and sport hunting. (i) Each person must secure and
possess all required State licenses and must comply with the applicable
provisions of State law unless further restricted by Federal law.
(ii) Each person must comply with the applicable provisions of
Federal law.
(iii) In addition to the requirements of paragraphs (a) and (c) of
this section, each person must continue to secure a trapping permit
from the appropriate Refuge Manager prior to trapping on the Kenai,
Izembek, and Kodiak Refuges and the Aleutian Islands Unit of the Alaska
Maritime Refuge.
(iv) It is 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, wolf, or wolverine until after 3 a.m. on the day following the
day in which the flying occurred, except that a trapper may use a
firearm or any other weapon to dispatch a legally caught wolf or
wolverine in a trap or snare on the same day in which the flying
occurred. This prohibition does not apply to flights on regularly
scheduled commercial airlines between regularly maintained public
airports.
(v) The following methods and means for take of wildlife are
prohibited:
------------------------------------------------------------------------
Prohibited acts Exceptions
------------------------------------------------------------------------
(A) Using snares, nets, or traps to None.
take any species of bear.
(B) Using bait....................... (1) Bait may be used to trap
furbearers.
(2) Bait may be used to hunt
black bears.
(C) Taking wolves and coyotes from None.
May 1 through August 9.
(D) Taking bear cubs or sows with In accordance with Alaska State
cubs. law and regulation, resident
hunters may take black bear cubs
or sows with cubs under
customary and traditional use
activities at a den site October
15-April 30 in game management
units 19A, 19D, 21B, 21C, 21D,
24, and 25D.
------------------------------------------------------------------------
(2) Sport and commercial fishing. (i) Each person must secure and
possess all required State licenses and must comply with the applicable
provisions of State law unless further restricted by Federal law.
(ii) Each person must comply with the applicable provisions of
Federal law.
(e) Persons transporting fish or wildlife through Alaska National
Wildlife Refuges must carry an Alaska State hunting or fishing license,
or in cases where a person is transporting game for another person,
they are required to carry an Alaska State ``Transfer of Possession
Form'' on their person and make these available when
[[Page 52273]]
requested by law enforcement personnel.
(f) Nothing in this section applies to or restricts the taking or
transporting of fish and wildlife by federally qualified subsistence
users under Federal subsistence regulations.
(g) Animal control programs will only be conducted in accordance
with a special use permit issued by the Refuge Manager.
0
11. Amend Sec. 36.42 by revising paragraphs (a), (c), (d), (e), (f),
(g), and (h) to read as follows:
Sec. 36.42 Public participation and closure procedures.
(a) Applicability and authority. The Refuge Manager may close an
area or restrict an activity in an Alaska National Wildlife Refuge on
an emergency, temporary, or permanent basis in accordance with this
section.
(b) * * *
(c) Emergency closures or restrictions. (1) Emergency closures or
restrictions relating to the use of aircraft, snowmachines, motorboats,
or nonmotorized surface transportation will be made after notice
pursuant to paragraph (f) of this section and hearing;
(2) Emergency closures or restrictions relating to the taking of
fish and wildlife will be accompanied by notice pursuant to paragraph
(f) of this section with a subsequent hearing;
(3) Other emergency closures or restrictions will become effective
upon notice as prescribed in paragraph (f) of this section; and
(4) No emergency closure or restriction will exceed 60 days.
Closures or restrictions requiring longer than 60 days will follow
nonemergency closure procedures (i.e., temporary or permanent; see
paragraphs (d) and (e), respectively, of this section).
(d) Temporary closures or restrictions. (1) Temporary closures or
restrictions relating to the use of aircraft, snowmachines, motorboats,
or nonmotorized surface transportation will be effective only after
notice pursuant to paragraph (f) of this section and hearing in the
vicinity of the area(s) affected by such closures or restriction, and
other locations as appropriate.
(2) Temporary closures or restrictions related to the taking of
fish and wildlife will be effective only after notice pursuant to
paragraph (f) of this section and after allowing for the opportunity
for public comment and a public hearing in the vicinity of the area(s)
affected, and other locations as appropriate. Temporary closures or
restrictions related to the taking of fish and wildlife also require
consultation with the State and affected Tribes and Native
Corporations.
(3) Other temporary closures will be effective upon notice as set
forth at paragraph (f) of this section.
(4) Temporary closures or restrictions will extend only for as long
as necessary to achieve the purpose of the closure or restriction, and
may not exceed 12 months; Provided, however, a new temporary closure or
restriction may be adopted thereafter by following the applicable
procedures set forth at paragraph (d)(1), (d)(2), or (d)(3) of this
section.
(e) Permanent closures or restrictions. Permanent closures or
restrictions related to the use of aircraft, snowmachines, motorboats,
or nonmotorized surface transportation, or taking of fish and wildlife,
will be effective only after notice pursuant to paragraph (f) of this
section, and shall be published by rulemaking in the Federal Register
with a minimum public comment period of 60 days and shall not be
effective until after a public hearing(s) is held in the affected
vicinity and other locations as appropriate. Permanent closures or
restrictions related to the taking of fish and wildlife require
consultation with the State and affected Tribes and Native
Corporations.
(f) Notice. Emergency, temporary, or permanent closures or
restrictions will be published on the U.S. Fish and Wildlife Service's
Web site at http://www.fws.gov/alaska/nwr/ak_sp_hunt_regs.htm.
Additional means of notice reasonably likely to inform residents in the
affected vicinity will also be provided where available, such as:
(1) Publication in a newspaper of general circulation in the State
and in local newspapers;
(2) Use of electronic media, such as the Internet and email lists;
(3) Broadcast media (radio, television, etc.); or
(4) Posting of signs in the local vicinity or at the Refuge
Manager's office.
(g) Openings. In determining whether to open an area to public use
or activity otherwise prohibited, the Refuge Manager will provide
notice in the Federal Register and will, upon request, hold a public
meeting in the affected vicinity and other locations, as appropriate,
prior to making a final determination.
(h) Except as otherwise specifically allowed under the provisions
of this part, entry into closed areas or failure to abide by
restrictions established under this section is prohibited.
Dated: July 22, 2016.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2016-18117 Filed 8-4-16; 8:45 am]
BILLING CODE 4333-15-P