82 FR 52009 - Effectuating Congressional Nullification of the Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska Under the Congressional Review Act

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service

Federal Register Volume 82, Issue 216 (November 9, 2017)

By operation of the Congressional Review Act (CRA), the ``Non- subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska'' (non-subsistence take of wildlife rule) shall be treated as if it had never taken effect. The U.S. Fish and Wildlife Service issues this document to effect the removal of any amendments, deletions, or other modifications made by the nullified rule and the reversion to the text of the regulations in effect immediately prior to the effective date of the non-subsistence take of wildlife rule.

[Federal Register Volume 82, Number 216 (Thursday, November 9, 2017)]
[Rules and Regulations]
[Pages 52009-52011]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-24324]


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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 178 
Obligation # 4500093321]
RIN 1018-BA31


Effectuating Congressional Nullification of the Non-Subsistence 
Take of Wildlife, and Public Participation and Closure Procedures, on 
National Wildlife Refuges in Alaska Under the Congressional Review Act

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule; CRA revocation.

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SUMMARY: By operation of the Congressional Review Act (CRA), the ``Non-
subsistence Take of Wildlife, and Public Participation and Closure 
Procedures, on National Wildlife Refuges in Alaska'' (non-subsistence 
take of wildlife rule) shall be treated as if it had never taken 
effect. The U.S. Fish and Wildlife Service issues this document to 
effect the removal of any amendments, deletions, or other modifications 
made by the nullified rule and the reversion to the text of the 
regulations in effect immediately prior to the effective date of the 
non-subsistence take of wildlife rule.

DATES: This rule is effective November 9, 2017.

ADDRESSES: Previous documents related to the Non-subsistence Take of 
Wildlife, and Public Participation and Closure Procedures, on National 
Wildlife Refuges in Alaska rule (non-subsistence take of wildlife rule) 
of August 5, 2016 (81 FR 52248), may be found on the internet at 
www.regulations.gov in Docket No. FWS-R7-NWRS-2014-0005.

FOR FURTHER INFORMATION CONTACT: Stephanie Brady, Chief of Conservation 
Planning and Policy, National Wildlife Refuge System, Alaska Regional 
Office, 1011 E. Tudor Rd., Mail Stop 211,

[[Page 52010]]

Anchorage, AK 99503; telephone (907) 306-7448. If you use a 
telecommunications device for the deaf (TDD), call the Federal Relay 
Service at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Background

    The U.S. Fish and Wildlife Service published the Non-subsistence 
Take of Wildlife, and Public Participation and Closure Procedures, on 
National Wildlife Refuges in Alaska (non-subsistence take of wildlife 
rule) on August 5, 2016 (81 FR 52248). The rule became effective on 
September 6, 2016. On February 16, 2017, the United States House of 
Representatives passed a resolution of disapproval [H.J. Res. 69] of 
the non-subsistence take of wildlife rule under the Congressional 
Review Act (CRA), 5 U.S.C. 801 et seq. The Senate then passed a 
resolution of disapproval [S.J. Res. 18] on March 21, 2017 (Cong. Rec. 
p. S1884). President Trump then signed the resolution into law as 
Public Law 115-20 on April 3, 2017. Therefore, under the terms of the 
CRA, the U.S. Fish and Wildlife Service non-subsistence take of 
wildlife rule shall be ``treated as though such rule had never taken 
effect.'' 5 U.S.C. 801(f).
    However, because the CRA does not include direction regarding the 
removal, by the Office of the Federal Register or otherwise, of the 
voided language from the Code of Federal Regulations (CFR), the U.S. 
Fish and Wildlife Service must publish this document to effect the 
removal of the voided text. This document will enable the Office of the 
Federal Register to effectuate congressional intent to remove the 
voided text of the non-subsistence take of wildlife rule as if it had 
never taken effect, and restore the previous language and prior state 
of the CFR.
    This action is not an exercise of the Department's rulemaking 
authority under the Administrative Procedure Act, because the 
Department is not ``formulating, amending, or repealing a rule'' under 
5 U.S.C. 551(5). Rather, the Department is effectuating changes to the 
CFR to reflect what congressional action has already accomplished--
namely, the nullification of any changes purported to have been made to 
the CFR by the non-subsistence take of wildlife rule and the reversion 
to the regulatory text in effect immediately prior to September 6, 
2016, the effective date of the non-subsistence take of wildlife rule. 
Accordingly, the Department is not soliciting comments on this action. 
Moreover, this action is not a final agency action subject to judicial 
review.

Executive Order 13771

    This final rule is considered an E.O. 13771 deregulatory action. We 
estimate the cost savings of this rule to be negligible. 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 national wildlife refuges (NWRs) in Alaska. Since only 
a small fraction of big game hunters would likely have chosen to not 
hunt on NWRs because of the original rule, the impact is minimal. The 
effect to the local communities is far less than $5.9 million annually 
because few hunters use the prohibited methods and those hunters that 
do would have likely chosen a substitute site.

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, and under the authority 
of the Congressional Review Act (5 U.S.C. 801 et seq.) and Public Law 
115-20 (April 3, 2017), 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 is revised to read as follows:

    Authority:  5 U.S.C. 301; 16 U.S.C. 460k, 664, 668dd-668ee, and 
715i; Pub. L. 115-20, 131 Stat. 86.

0
2. Amend Sec.  32.2 by revising the last sentence of paragraph (h) to 
read as follows:


Sec.  32.2  What are the requirements for hunting on areas of the 
National Wildlife Refuge System?

* * * * *
    (h) * * * (Baiting is 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 is revised to read as follows:

    Authority:  16 U.S.C. 460(k) et seq., 668dd-668ee, 3101 et seq., 
Pub. L. 115-20, 131 Stat. 86.


Sec.  36.1   [Amended]

0
4. Amend Sec.  36.1 by:
0
a. Removing paragraph (a); and
0
b. Redesignating paragraphs (b), (c), and (d) as paragraphs (a), (b), 
and (c), respectively.


Sec.  36.2  [Amended]

0
5. Amend Sec.  36.2 by removing the definitions for ``Bait'', ``Big 
game'', ``Cub bear'', ``Furbearer'', ``Natural diversity'', ``Predator 
control'', ``Sport hunting'', and ``Trapping''.

0
6. Amend Sec.  36.11 by redesignating paragraph (d) as paragraph (e) 
and adding a new paragraph (d) to read as follows:


Sec.  36.11  Purpose and policy.

* * * * *
    (d) The State of Alaska is authorized to regulate the taking of 
fish and wildlife for subsistence uses within Alaska National Wildlife 
Refuges to the extent such regulation is consistent with applicable 
Federal law, including but not limited to ANILCA.
* * * * *

0
7. Revise Sec.  36.13 to read as follows:


Sec.  36.13  Subsistence fishing.

    Fish may be taken by local rural residents for subsistence uses in 
compliance with applicable State and Federal law. To the extent 
consistent with the provisions of this part and other Federal law, 
applicable State laws and regulations governing the taking of fish 
which are now or will hereafter be in effect are hereby incorporated by 
reference as a part of these regulations.

0
8. Revise Sec.  36.14 to read as follows:


Sec.  36.14  Subsistence hunting and trapping.

    Local rural residents may hunt and trap wildlife for subsistence 
uses in Alaska National Wildlife Refuges in compliance with applicable 
State and Federal laws. To the extent consistent with the provisions of 
this part and other Federal law, applicable State laws and regulations 
governing the taking of wildlife which are now or will hereafter be in 
effect are hereby incorporated by reference as a part of these 
regulations.

0
9. Revise the heading of subpart D to read as follows:

Subpart D--Other Refuge Uses

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, trapping, 
and 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; Provided

[[Page 52011]]

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 shall be permitted.
    (b) 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 he 
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.
    (c) The following provisions shall 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 shall secure and 
possess all required State licenses and shall comply with the 
applicable provisions of State law unless further restricted by Federal 
law;
    (ii) Each person shall comply with the applicable provisions of 
Federal law; and
    (iii) In addition to the requirements of paragraphs (a) and (b) of 
this section, each person shall 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 shall be unlawful for a person having been airborne to use 
a firearm or any other weapon to take or assist in taking a wolf or 
wolverine until after 3:00 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.
    (2) Sport and commercial fishing. (i) Each person shall secure and 
possess all required State licenses and shall comply with the 
applicable provisions of State law unless further restricted by Federal 
law; and
    (ii) Each person shall comply with the applicable provisions of 
Federal law.
    (d) Nothing in this section shall apply to the taking of fish and 
wildlife for subsistence uses.
    (e) Nothing in these rules shall be interpreted as waiving the 
requirements of other fish and wildlife conservation statutes such as 
the Airborne Hunting Act or those provisions of subchapter C of title 
50 CFR regarding the taking of depredating wildlife. Animal control 
programs shall 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) Authority. The Refuge Manager may close an area or restrict an 
activity on an emergency, temporary, or permanent basis.
* * * * *
    (c) Emergency closures or restrictions. (1) Emergency closures or 
restrictions relating to the use of aircraft, snowmachines, motorboats, 
or non-motorized surface transportation shall be made after notice and 
hearing;
    (2) Emergency closures or restrictions relating to the taking of 
fish and wildlife shall be accompanied by notice with a subsequent 
hearing;
    (3) Other emergency closures or restrictions shall become effective 
upon notice as prescribed in paragraph (f) of this section; and
    (4) No emergency closure or restriction shall be for a period 
exceeding 30 days.
    (d) Temporary closures or restrictions. (1) Temporary closures or 
restrictions relating to the use of aircraft, snowmachines, motorboats 
or non-motorized surface transportation, or to the taking of fish and 
wildlife, shall not be effective prior to notice and hearing in the 
vicinity of the area(s) affected by such closures or restriction, and 
other locations as appropriate;
    (2) Other temporary closures shall be effective upon notice as 
prescribed in paragraph (f) of this section; and
    (3) Temporary closures or restrictions shall extend only for so 
long as necessary to achieve their purposes, and in no case may exceed 
12 months or be extended beyond that time.
    (e) Permanent closures or restrictions. Permanent closures or 
restrictions shall be made only after notice and public hearings in the 
affected vicinity and other locations as appropriate, and after 
publication in the Federal Register.
    (f) Notice. Emergency, temporary, or permanent closures or 
restrictions shall be:
    (1) Published in at least one newspaper of general circulation in 
the State and in at least one local newspaper if available, posted at 
community post offices within the vicinity affected, made available for 
broadcast on local radio stations in a manner reasonably calculated to 
inform residents in the affected vicinity, and designated on a map 
which shall be available for public inspection at the office of the 
Refuge Manager and other places convenient to the public; or
    (2) Designated by the posting of appropriate signs; or
    (3) Both.
    (g) Openings. In determining whether to open an area to public use 
or activity otherwise prohibited, the Refuge Manager shall provide 
notice in the Federal Register and shall, upon request, hold a hearing 
in the affected vicinity and other location, as appropriate, prior to 
making a final determination.
    (h) Prohibitions. Except as otherwise specifically permitted under 
the provisions of this part, entry into closed areas or failure to 
abide by restrictions established under this section is prohibited.

    Dated: August 30, 2017.
Todd Willens,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2017-24324 Filed 11-8-17; 8:45 am]
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