[Federal Register: May 29, 2009 (Volume 74, Number 102)]
[Notices]
[Page 25767-25771]

DEPARTMENT OF THE INTERIOR
Bureau of Land Management

Establishment of Interim Final Supplementary Rules Within the South Spit Cooperative Management Area, Managed by the Arcata Field Office, California


SUMMARY: The Bureau of Land Management (BLM) Arcata Field Office, California, is issuing interim final supplementary rules for the South Spit Cooperative Management Area (CMA) and requesting public comment. The rules will be effective upon publication and remain in effect until the publication of final supplementary rules. The BLM has determined these interim final
supplementary rules are necessary to enhance the safety of visitors, protect natural resources, and protect public health.

These rules do not propose or implement any land use limitations or restrictions other than those included within the BLM's decision records for the South Spit CMA Management Plan and associated environmental assessments, or allowed under existing law or regulation.

DATES: The interim final supplementary rules are effective May 29, 2009.  We invite comments until July 28, 2009.

ADDRESSES: Submit all comments concerning the interim final supplementary rules to the Bureau of Land Management, Arcata Field Office, 1695 Heindon Road, Arcata, CA 95521; or you may access the Federal eRulemaking Portal: http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Robert Wick, Planning and Environmental Coordinator, Arcata Field Office, 1695 Heindon Road, Arcata, CA 95521, 707-825-2321. e-mail: rwick@ca.blm.gov.

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures

Written comments on the interim final supplementary rules should be specific, confined to issues pertinent to the interim final supplementary rules, and should explain the reason for any recommended change. Where possible, comments should reference the specific section or paragraph of the rule that the comment is addressing. BLM need not consider or include in the Administrative Record for the interim rules: (a) Comments that BLM receives after the close of the comment period (see DATES), unless they are postmarked or electronically dated before the deadline, or (b) comments delivered to an address other than those listed above (see ADDRESSES).

You may also access and comment on the interim final supplementary rules at the Federal eRulemaking Portal by following the instructions at that site (see ADDRESSES).

Comments, including names, street addresses, and other contact information of respondents, will be available for public review at the Arcata Field Office, 1695 Heindon Road, Arcata, CA 95521, during regular business hours (7:45 a.m. to 4:30 p.m.), Monday through Friday, except Federal holidays. Before including your address, telephone number, e-mail address, or other personal identifying information in your comment, be advised that your entire comment--including your personal identifying information--may be made publicly available at any
time. While you can ask us in your comment to withhold from public review your personal identifying information, we cannot guarantee that we will be able to do so.

II. Background

The BLM is establishing these interim final supplementary rules under the authority of 43 CFR 8365.1-6, which allows BLM State Directors to establish such rules for the protection of persons, property, and public lands and resources. This provision allows the BLM to issue rules of less than national effect without codifying the rules in the Code of Federal Regulations. The interim final supplementary rules will be available for inspection in the Arcata Field Office, and they will be published in a newspaper of general circulation in the affected vicinity. The overall program authority for the operation of this area is found in sections 302 and 310 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1732, 1740). The South Spit is located approximately 6 miles southwest of Eureka, Humboldt County, California, within the Humboldt Baseline and Meridian. These interim final supplementary rules will apply to approximately seven acres of BLM managed public lands within the South Spit CMA known as Lighthouse Ranch, and to approximately 600 acres where the State of California, through a deed of conservation easement, conveyed to the BLM an interest in and the right to manage the South Spit in all aspects of its use in perpetuity. A map of the area can be obtained by contacting the BLM Arcata Field Office (see ADDRESSES section) or by accessing the following Web site: http://www.blm.gov/ca/arcata.

BLM finds good cause to publish these supplementary rules on an interim basis, effective the date of publication, because of public safety and resource protection needs within the management area, and based on their localized impact. Visitor use is high at the South Spit CMA due to its close proximity to Eureka and Arcata, the population centers of Humboldt County. The area contains habitat for the Western Snowy Plover (Charadrius alexandrinus nivosus), a species listed as threatened in 1970 under the Endangered Species Act (ESA). Due to the dune habitat degradation that occurred prior to public acquisition of the area, only about 30-50 acres of nesting habitat occur on the approximately 4.5 miles of beach in the South Spit CMA. Human impacts contribute to low reproductive success of plovers in a variety of ways, including direct loss of eggs and chick mortality from pedestrians and vehicles, vandalism resulting in clutch loss, and nest abandonment from disturbance of adults tending eggs or chicks. These supplementary rules are intended to allow for certain compatible public uses while minimizing plover disturbance and meeting the requirements of the ESA.

The coastal dune habitat in the South Spit CMA also contains habitat for two endangered plant species; beach layia (Layia carnosa) and Humboldt Bay wallflower (Erysimum mensiezii ssp. eurekense). The BLM has instituted coastal dune restoration measures on approximately 50 acres of dune habitat. The supplementary rules will allow for vehicle use of specific corridors while protecting the dune habitat from cross-country vehicle use. The BLM consulted with the U.S. Fish and Wildlife Service (FWS) regarding management planning and habitat
restoration projects for the area in 2002 and 2008. The interim final supplementary rules will help implement conservation measures for federally listed species under the ESA as determined through consultation with the FWS on the South Spit Management Plan and Environmental Assessment and the associated Biological Opinion.

The South Spit was the site of a large encampment of homeless people prior to government acquisition. During this time, the area was also the site of frequent illegal dumping, and was declared to be a public health hazard by Humboldt County. Facilities in the management area are not designed to accommodate overnight use, and limiting public access to day-use only is necessary to prevent a recurrence of health and sanitation issues, and associated resource impacts.

III. Procedural Matters

Executive Order 12866, Regulatory Planning and Review

These interim final supplementary rules are not a significant regulatory action and are not subject to review by the Office of Management and Budget under Executive Order 12866. These interim final supplementary rules will not have an annual effect of $100 million or more on the economy. They are not intended to affect commercial activity, but contain rules of conduct for public use of a certain Cooperative Management Area. They will not adversely affect, in a material way, the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or Tribal governments or communities. These interim final supplementary rules will not create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency. The interim final supplementary rules do not materially alter the budgetary effects of entitlements, grants, user fees, or loan programs or the right or obligations of their recipients; nor do they raise novel legal or policy issues. They merely impose certain rules on recreational activities on a limited portion of the public lands in California in order to protect human health, safety, and the environment, including certain sensitive natural resources as described in the Background section of this SUPPLEMENTARY INFORMATION.

Clarity of the Interim Final Supplementary Rules

Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. We invite your comments on how to make these interim final supplementary rules easier to understand, including answers to questions such as the following:
(1) Are the requirements in the interim final supplementary rules clearly stated?
(2) Do the interim final supplementary rules contain technical language or jargon that interferes with their clarity?
(3) Does the format of the interim final supplementary rules (grouping and order of sections, use of headings, paragraphing, etc.) impair or reduce their clarity?
(4) Would the interim final supplementary rules be easier to understand if they were divided into more (but shorter) sections?
(5) Is the description of the interim final supplementary rules in the SUPPLEMENTARY INFORMATION section of this preamble helpful in understanding the interim final supplementary rules? How could this description be more helpful in making the interim final supplementary rules easier to understand?

Please send any comments you have on the clarity of the interim final supplementary rules to the address specified in the ADDRESSES section.

National Environmental Policy Act

These interim final supplementary rules do not constitute a major Federal action significantly affecting the quality of the human environment under Section 102(2)(C) of the National Environmental Policy Act of 1969, 42 U.S.C. 4332(2)(C). BLM has prepared an Environmental Assessment (EA) for the management plan which provides the basis for these interim final supplementary rules. This EA and its decision record are on file and available to the public as specified in the ADDRESSES section above. A Determination of NEPA Adequacy (DNA)
concluded that these rules conform to the applicable land use plan (RMP) and that the existing NEPA analysis for the South Spit Management Plan fully covers the rulemaking action and constitutes BLM's compliance with the requirements of NEPA.

Regulatory Flexibility Act

Congress enacted the Regulatory Flexibility Act (RFA) of 1980, as amended, 5 U.S.C. 601-612, to ensure that Government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. The interim final supplementary rules do not pertain specifically to commercial or governmental entities of any size, but to public recreational use of specific public lands. Therefore, BLM has determined under the RFA that these interim final supplementary rules would not have a significant economic impact on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

These interim final supplementary rules do not constitute a "major rule" as defined at 5 U.S.C. 804(2). The interim final supplementary rules merely contain rules of conduct for recreational use of certain public lands. The interim final supplementary rules have no effect on business, commercial, or industrial use of the public lands.

Unfunded Mandates Reform Act

These interim final supplementary rules do not impose an unfunded mandate on state, local, or Tribal governments in the aggregate, or the private sector, of more than $100 million per year; nor do they have a significant or unique effect on small governments. These interim final supplementary rules do not require anything of state, local, or Tribal governments. Therefore, BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.).

Executive Order 12630, Governmental Actions and Interference With Constitutionally Protected Property Rights (Takings)

The interim final supplementary rules are not a government action capable of interfering with constitutionally protected property rights. The interim final supplementary rules do not address property rights in any form, and do not cause the impairment of anybody's property rights. Therefore, the Department of the Interior has determined that these interim final supplementary rules would not cause a taking of private property or require further discussion of takings implications under this Executive Order.

Executive Order 13132, Federalism

The interim final supplementary rules will not have a substantial direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. The interim final supplementary rules affect land in only one state, California. BLM has determined that these interim final supplementary rules do not have sufficient Federalism implications to warrant preparation of a Federalism Assessment.

Executive Order 12988, Civil Justice Reform

Under Executive Order 12988, the Office of the Solicitor has determined that these interim final supplementary rules will not unduly burden the judicial system and that the requirements of sections 3(a) and 3(b)(2) of the Order are met. The interim final supplementary rules impose penalties for prohibited acts, but they are straightforward and not confusing, and their enforcement should not unreasonably burden the United States Magistrate who will try any persons cited for violating them.

Executive Order 13175, Consultation and Coordination With Indian Tribal Governments

In accordance with Executive Order 13175, the BLM has found that these interim final supplementary rules do not include policies that have Tribal implications. The interim final supplementary rules do not affect lands held for the benefit of Indians, Aleuts, or Eskimos. To comply with Executive Orders regarding government-to-government relations with Native Americans, formal and informal contacts were made with the Table Bluff Reservation-Wiyot Tribe, the federally-recognized tribal entity in the area of the CMA, for consultation purposes. BLM provided the tribe a copy of the plan, and contacted the tribe directly to request comments and assess the need for a briefing. The tribe expressed no concerns about the South Spit Management Plan, or specifically the decisions related to these interim final supplementary rules.

Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

In accordance with Executive Order 13211, the BLM has determined that the proposed rule will not have substantial direct effects on the energy supply, distribution or use, including a shortfall in supply or price increase. The interim final supplementary rules merely contain rules of conduct for recreational use of certain public lands.

Executive Order 13352, Facilitation of Cooperative Conservation

In accordance with Executive Order 13352, BLM has determined that the interim final supplementary rules would not impede facilitating cooperative conservation; would take appropriate account of and consider the interests of persons with ownership or other legally recognized interests in land or other natural resources; properly accommodate local participation in the Federal decision-making process; and provide that the programs, projects, and activities are consistent with protecting public health and safety. The interim final
supplementary rules merely contain rules of conduct for recreational use of certain public lands. Furthermore, a primary purpose of the rules is to implement a cooperative effort between local, state, and federal agencies to protect the resource values of the South Spit.

Paperwork Reduction Act

These interim final supplementary rules do not contain information collection requirements that the Office of Management and Budget must approve under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Information Quality Act

In developing these supplementary rules, the BLM did not conduct or use a study, experiment or survey requiring peer review under the Information Quality Act (Section 515 of Pub. L. 106-554).

Author

The principal author of these interim final supplementary rules is Bob Wick, Planning and Environmental Coordinator, Arcata Field Office, Bureau of Land Management.

For the reasons stated in the preamble and under the authority for supplementary rules found in 43 CFR 8365.1-6, the California State Director, Bureau of Land Management hereby issues interim final supplementary rules, effective upon publication, for lands managed by the BLM, including those managed under a Deed of Conservation Easement from the State of California, in the South Spit Cooperative Management Area to read as follows:

Supplementary Rules for the South Spit Cooperative Management Area

Section 1; Definitions

Habitat Restoration Area--This area begins approximately 1,500 feet south of the South Jetty and extends along the mean high tide line approximately 3,000 feet further south along the beach. The protection area extends inland from the mean high tide line approximately 300 feet into the dunes and includes approximately 24 acres. The area is identified with signing.

Temporary plover protection areas--Areas containing an active nest, a brood that frequents the area for over a week, or numerous wintering plovers that need temporary protection from public use impacts. Each area will be clearly marked using symbolic fencing and signs that state the area is closed to the public. Upon verification that plovers are no longer using an area, the signs and fencing will be removed and the temporary protection area will be discontinued.

Waveslope--The area of the beach that shows evidence of having been washed by waves during the last tidal cycle.

Camping--The erecting of a tent or shelter of natural or synthetic material, preparing a sleeping bag or other bedding material for use, parking of a motor vehicle, motor home, or trailer, for the apparent purpose of overnight occupancy.

Firewood cutting--Use of any mechanical, motorized, or hand-powered tools for the purpose of separating wood material into smaller parts.

Firewood collecting--Gathering wood material for transport out of the South Spit--CMA in quantities greater than a "reasonable amount" as defined below.

Symbolic fencing--Series of posts linked by rope surrounding plover protection areas to identify locations closed to public access.

South Spit Cooperative Management Area (CMA)--Public or state owned lands in all or portions of the following public land survey sections: Humboldt Meridian, California
T. 4 N., R. 2 W. Secs. 7, 12, 13, 14, 23, 24, 26, and 27.

A map of the South Spit CMA can be found at: www.blm.gov/arcata, or by contacting the BLM (see ADDRESSES section above).

Section 2; Supplementary Rules of Conduct

The following rules apply to all visitors to the South Spit CMA unless explicitly stated otherwise in a particular rule. Employees and agents of the BLM will be exempt from these rules during performance of specific official duties as authorized by the Arcata Field Manager.

1. The area is open for day-use only from one hour before sunrise to one hour after sunset. An exception is made for the black brandt (Branta bernicla) hunting season. Dates for this season are set by the CDFG and vary annually. During this season, the public will be allowed access to the area from 4 a.m. until one hour after sunset. Camping is not allowed.

2. The following are designated as vehicle use corridors, with the remainder of the area closed to all motor vehicle use:

a. South Jetty Road.
b. Cove Road.
c. Vehicle access corridors marked by signs and bounded by post/cable fencing which run west from South Jetty Road to the beach.
d. Access corridor that runs east along the jetty from the jetty parking area.
e. Waveslope.
f. Signed access routes from South Jetty Road east to the shore of Humboldt Bay.

3. The following are additional restrictions on vehicle use in the designated corridors:

a. Speed limit of 25 mph for South Jetty and Cove Roads.
b. Speed limit of 15 mph for the waveslope.
c. Street legal vehicles only are allowed on South Jetty and Cove Roads.
d. The portion of the waveslope adjacent to the Habitat Restoration Area is closed to all vehicles March 1-September 15.
e. The signed access routes from South Jetty Road east to the shore of Humboldt Bay are open to vehicles only for purposes of loading and unloading hunting supplies during waterfowl hunting season (October-January). When not being directly used for loading and unloading, vehicles must be moved from the access corridors and parked at pulloffs along South Jetty Road. These access corridors are closed to vehicles the remainder of the year.
f. Portions of the waveslope within marked temporary plover protection areas may be closed to all vehicles if it is determined that plovers will be impacted by this use. These areas will be marked with signing visible from the waveslope indicating that they are closed to vehicles.
g. One or more of the vehicle access corridors running west from the South Jetty Road to the beach may be temporarily closed if the adjoining beach is occupied by plovers.

4. Dogs must be leashed on the west side of South Jetty Road March 1-September 15, and must be under the owner's control at all times.

5. Public use within the Habitat Restoration Area is not allowed March 1-September 15. For temporary plover protection areas, public use is not allowed as long as the protection area and associated signing remains in place.

6. Use of kites, model airplanes, and campfires are not allowed within 300 feet of temporary or permanent plover protection areas.

7. Lands west of South Jetty Road are open to equestrian use; all other lands are closed to such use.

8. Firewood cutting or collecting is allowed by permit only September 16-February 28 (February 29 in a leap year). Casual, personal use of a reasonable amount of wood as described in 43 CFR 8365.1-5 (b)5 is allowed year-round. A reasonable amount of wood material would be the amount of wood that could fit into a personal backpack or that could be carried by hand in a five-gallon bucket or similar container.

9. Firearm use is allowed only for the lawful hunting of waterfowl during CDFG established seasons. Target shooting (including bow and arrow, rifle, pistol, shotgun, air rifle, or paintball gun) is not allowed.

10. Fireworks are not allowed.

Section 3; Penalties

Any person who violates any of these supplementary rules may be tried before a United States Magistrate and fined no more than $1,000 or imprisoned for no more than 12 months, or both. 43 U.S.C. 1733(a); 43 CFR 8360.0-7; 43 CFR 2932.57(b). Such violations may also be subject to the enhanced fines provided for by 18 U.S.C. 3571.

James Wesley Abbott, Acting State Director.
[FR Doc. E9-12515 Filed 5-28-09; 8:45 am]