AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Proposed rule.

SUMMARY:

The U.S. Fish and Wildlife Service (Service, we) proposes to amend its refuge-specific regulations on Kenai National Wildlife Refuge (NWR) to allow State-regulated trapping, harvest of brown bears over bait, discharge of firearms along the Kenai and Russian Rivers during certain times of the year in accordance with State law, increased access for the public using bicycles and game carts, and the use of snowmobiles, all-terrain vehicles, and utility task vehicles on certain lakes when there is adequate snow and ice cover. The purpose of this proposed rule is to align public use regulations on Kenai NWR with State of Alaska regulations, align Service and State management of fish and wildlife to the extent practicable and consistent with Federal law, enhance consistency with harvest regulations on adjacent non-Federal lands and waters, and increase access to Federal lands in furtherance of Secretarial Orders 3347 and 3356.

DATES:

We must receive your comments on the proposed rule or the associated draft environmental assessment on or before August 10, 2020. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date.

ADDRESSES:

 

Comment submission: You may submit comments by one of the following methods:

• Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R7-NWRS-2017-0058, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rule box to locate this document. You may submit a comment by clicking on “Comment Now!”
• By hard copy: Submit your comments by U.S. mail to: Public Comments Processing, Attn: FWS-R7-NWRS-2017-0058, U.S. Fish and Wildlife Service, MS: JAO/1N, 5275 Leesburg Pike, Falls Church, VA 22041-3803.

We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Public Participation and Public Availability of Comments, below, for more information).

Availability of documents: To view supporting documents, including the draft environmental assessment and comments received on this proposed rule, go to http://www.regulations.gov and search for Docket No. FWS-R7-NWRS-2017-0058.

FOR FURTHER INFORMATION CONTACT:

Brian Glaspell, Alaska National Wildlife Refuge Chief, Alaska Regional Office, 1011 East Tudor Road, Anchorage, AK 99503; telephone: (907-786-3584).

SUPPLEMENTARY INFORMATION:

Background

This proposed rule addresses interests raised by the State of Alaska regarding the management of Alaska National Wildlife Refuges. Federal regulations regarding these refuges are found in title 50 of the Code of Federal Regulations at part 36.

Specifically, this proposed rule considers changes to public use regulations for Kenai NWR. The proposed regulatory changes relate to allowing the harvest of brown bears at registered bait stations, allowing for trapping under State law without a Federal permit, allowing the discharge of firearms along the Kenai and Russian Rivers at certain times of year, increasing access by bicycles and game carts, and allowing snowmobiles, all-terrain vehicles, and utility task vehicles on certain lakes when there is adequate snow and ice cover.

Refuge management is governed by Federal laws such as the National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd), as amended (Refuge Administration Act); the National Wildlife Refuge System Improvement Act of 1997, which amended the Refuge Administration Act (Pub. L. 105-57) (Refuge Improvement Act); and the Alaska National Interest Lands Conservation Act of 1980 (Pub. L. 96-487) (ANILCA); by regulations implementing these laws; by treaties; by Service policy; and by principles of sound resource management that establish standards for resource management or limit the range of potential activities (e.g., visitor use opportunities administered via special use permitting) that may be allowed on the Refuge.

ANILCA authorizes traditional activities such as subsistence; the exercise of valid commercial fishing rights; and hunting, fishing, and trapping in accordance with State and Federal laws. Under Service regulations implementing this direction, public recreational activities within the Alaska National Wildlife Refuges are authorized 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)). Such recreational activities include but are not limited to sightseeing, nature observations and photography, hunting, fishing, boating, camping, hiking, picnicking, and other related activities. The Refuge Administration Act, as amended by the Refuge Improvement Act, defines wildlife-dependent recreation and wildlife-dependent recreational use as hunting, fishing, wildlife observation and photography, or environmental education and interpretation. These uses are encouraged and will receive emphasis in management of public use on refuges (16 U.S.C. 668dd).

These objectives are reflected in the 2010 Kenai NWR Revised Comprehensive Conservation Plan and Environmental Impact Statement (Revised CCP, p. J-6). In addition, “The Refuge will manage all recreation use to avoid crowded conditions and to minimize adverse effects to cultural resources, fish and wildlife, wilderness, and other special values of the Refuge. `Leave No Trace' will be the standard. The least intrusive means of managing use will be employed. Actions that may be taken to manage recreation include limiting commercial guiding and outfitting; regulating use and access subject to the provisions of section 1110(a) of ANILCA; and recommending changes in State and/or Federal fishing, hunting, and/or trapping regulations. When necessary, recreation opportunities may be seasonally or otherwise restricted to minimize user conflicts and to protect the natural or other values of a refuge. Any restrictions on public use will follow the public participation and closure procedures at 50 CFR 36, 43 CFR 36, or other applicable regulations.” (Revised CCP, p. J-31).

Secretarial Orders on Recreation and Coordination With Partners

This proposed rule advances the priorities of the Department of the Interior (DOI) to increase recreational access on the lands and waters it administers; improve collaboration with States, Tribes, and other partners in doing so; and align Federal and State regulations, to the extent practicable and consistent with Federal law. The Secretary has issued Secretarial Orders and associated guidance to advance these priorities.

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

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

In addition to generally supporting increased recreational access on Federal lands and waters, the Administration has made it a priority to align State regulations with Federal regulations. On September 10, 2018, the Secretary issued a Secretarial memorandum that was issued to the heads of DOI bureaus and offices recognizing States as the primary first-line authorities for fish and wildlife management and expressing a commitment to defer to States in this regard except as otherwise required by Federal law. The memorandum further directed agencies to review all regulations, policies, and guidance pertaining to fish and wildlife conservation and management, specifically provisions that are more restrictive than otherwise applicable State provisions.

Regulatory Review of Kenai Public Use Regulations

On October 2, 2017, the Service published a document in the Federal Register notifying the public that we were conducting a regulatory review of the public use regulations in 50 CFR 36.39 for the Kenai NWR (82 FR 45793). In cooperation with the State of Alaska, pursuant to the direction in Secretarial Orders 3347 and 3356, we reviewed the refuge's public use regulations to consider changes.

During the review, the State of Alaska asked the Service to reconsider refuge-specific regulations for Kenai NWR that restrict public access and hunting and fishing opportunities. First, they requested that the Service eliminate the prohibition on the harvest of brown bears at bait stations, as the regulation is not related to a conservation concern and existing State regulations are in effect for the harvest management of black and brown bears.

Secondly, the State requested that firearm discharge restrictions along the Kenai and Russian Rivers be removed, as the State already prohibits firearm discharge in this area during the peak public use time of June and July and does not consider it necessary to extend the restriction for public safety. Restricting firearm discharge in that area later in the year can limit the public's ability to use public lands for priority public uses, such as for moose and brown bear hunting, seasons for which begin on September 1.

Thirdly, the State commented that the restriction on non-motorized wheeled vehicles, including bicycles and game carts, is not commensurate with resource impacts and therefore requested that we reconsider their use. Finally, the State requested that off-road vehicles and snowmobiles be allowed for ice fishing, during adequate snow/ice cover, similar to the allowance of licensed highway vehicles, as they weigh considerably less and, as a result, can be safer than highway vehicles when ice depth is inconsistent.

On September 27, 2018, DOI sent a letter to the States from then-Deputy Secretary David Bernhardt asking for direct feedback on the regulatory review process, especially in situations where Federal prescriptions for fish and wildlife management are more restrictive and inconsistent with State policies, and to identify opportunities to reduce regulatory inefficiencies in furtherance of the Secretarial Orders. During consultation and in its January 2, 2019, response letter, the State of Alaska submitted these and additional requests for Kenai NWR regulations and programs to be reviewed. The State requested the Service requirement to obtain a Federal trapping permit at 50 CFR 36.32(c)(1)(iii) be rescinded, as duplicative with State requirements and an interference with wildlife management and public use. The State also renewed its longstanding requests to cooperatively reevaluate closures at 50 CFR 36.39(i) to accessing certain remote lakes by aircraft and on harvest opportunities within the Skilak Wildlife Recreation Area.

The Service will continue to coordinate with the State, Tribes, and other partners on management of public uses on Kenai NWR to ensure the intent of the Secretarial Orders 3347 and 3356, to the extent practicable and consistent with Federal law.

This Proposed Rule

The purpose of this proposed rule is to align public use regulations on Kenai NWR with State of Alaska regulations to the extent practicable and consistent with Federal law, enhance consistency with harvest regulations on surrounding non-Federal lands and waters, and increase access to Federal lands in furtherance of Secretarial Orders 3347 and 3356.

The Service proposes to amend its refuge-specific regulations for Kenai NWR at 50 CFR 36.39 to allow for the harvest of brown bears over bait as allowed by the State of Alaska's hunting regulations (title 5 of Alaska Administrative Code (AAC) at chapter 92.044), allow the discharge of firearms along the Kenai and Russian Rivers during certain times of the year, increase access by bicycles and game carts, and allow snowmobiles, all-terrain vehicles, and utility task vehicles on certain lakes when there is adequate snow and ice cover. These amendments will expand priority public use opportunities for all Americans, and complement State regulations on lands and waters surrounding the Kenai NWR to the extent practicable and consistent with Federal laws, including the Refuge Administration Act, the Refuge Improvement Act, and ANILCA. The Service further proposes to amend its regulations at 50 CFR 36.32(c)(1)(iii) to remove the Federal permit requirement for trapping within the Kenai NWR, allowing trapping within the refuge in accordance with State and Federal law. Consistent with both Congressional and Secretarial direction, the Service is considering and seeking public comment on whether a regulatory permit requirement remains necessary and appropriate to ensure trapping is compatible with refuge purposes.

This proposed rule reflects the Service's ongoing commitment to working with the State of Alaska and using State regulatory processes to the maximum extent allowed by Federal law in proposing changes to existing State regulations governing or affecting the taking of fish and wildlife in Alaska refuges, as required by Congress and affirmed in 43 CFR part 24, the Revised CCP, the 1982 Master Memorandum of Understanding between the Service and the State of Alaska, Secretarial Orders 3347 and 3356, and the 2016 refuge-specific rulemaking, 81 FR 27030 (May 5, 2016). The Service maintains its closure authority at 50 CFR 36.42 to ensure these public uses remain compatible with refuge purposes, including through requiring a refuge special use permit when determined to be necessary and appropriate to address resource-related concerns. The Service remains responsible for visitor management on the Alaska National Wildlife Refuge consistent with ANILCA and the Refuge Administration Act, which includes conducting planning efforts to determine how to best manage diverse public uses on the Kenai NWR.

Public Participation

It is the policy of DOI, whenever practicable, to afford the public an opportunity to participate in the rulemaking process. Accordingly, we will accept written comments and information from all interested parties during the comment period (see DATES) on the provisions in this proposed rule, as well as other provisions of 50 CFR 36.39(i). We are soliciting public comment and supporting data to gain information on the draft environmental assessment and the proposed rule. In addition, we are soliciting information that would help inform the Service's regulatory impacts analysis, such as costs and benefits and trade-offs associated with the changes to Kenai NWR public use regulations being proposed in this rulemaking. As a specific example, we are soliciting information or data that would help the Service quantify the effects of increasing opportunities for consumptive uses such as brown bear hunting through the proposed allowance of hunting this species over bait on opportunities for non-consumptive uses such as viewing and photography of brown bears on Kenai NWR, including any economic impacts which might result.

We will consider information and recommendations we receive during the comment period in our final determination on this proposed action. You may submit your comments and materials concerning the proposed rule by one of the methods listed in ADDRESSES. We will not accept comments submitted by fax, email, or in any way other than those methods listed in ADDRESSES.

Public Availability of Comments

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

Compliance With Other Laws, Executive Orders, and Department Policy

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has waived their review regarding their significance determination of this proposed rule.

Executive Order (E.O.) 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. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. The Service will develop this rule in a manner consistent with these requirements.

Executive Order 13771

We do not believe this proposed rule is an E.O. 13771 (“Reducing Regulation and Controlling Regulatory Costs”) (82 FR 9339, February 3, 2017) regulatory action because we believe this rule is not significant under E.O. 12866; however, the Office of Information and Regulatory Affairs has waived their review regarding their E.O. 12866 significance determination of this proposed rule.

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).

Amending the regulations as proposed may have small incremental changes on total visitor use days. Increasing access opportunities for bicycling, game carts, snowmobiles, all-terrain vehicles, and utility task vehicles may correspond with a slight increase in visitor use days (about 5,000 to 10,000 visitors per year). In addition, hunting days on the refuge may increase if hunters using bait stations are allowed to take brown bears, even though State seasons and harvest limits for brown bears will remain in effect. Conversely, wildlife watching activities may decrease if there are decreased opportunities to view bears. We estimate that the overall change in recreation use-days would represent less than 1 percent of the average recreation use-days on the refuge (1 million visitors annually).

Small businesses within the retail trade industry (such as hotels, gas stations, etc.) (NAIC 44) and accommodation and food service establishments (NAIC 72) may be impacted by spending generated by refuge visitation. Seventy-six percent of establishments in the Kenai Peninsula Borough qualify as small businesses. This statistic is similar for retail trade establishments (72 percent) and accommodation and food service establishments (65 percent). Due to the negligible change in average recreation days, this proposed rule would have a minimal effect on these small businesses.

With the negligible change in overall visitation anticipated from this proposed rule, it is unlikely that a substantial number of small entities would experience more than a small economic impact. Therefore, we certify that, if made final, this rule would not have a significant economic impact on a substantial number of small entities as defined under the RFA. An initial/final regulatory flexibility analysis is not required. Accordingly, a small entity compliance guide is not required.

Small Business Regulatory Enforcement Fairness Act

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

(a) Would not have an annual effect on the economy of $100 million or more.

(b) Would not cause a major increase in costs or prices for consumers; individual industries; Federal, State, or local government agencies; or geographic regions.

(c) Would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.)

This proposed rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule would not have a significant or unique effect on State, local, or tribal governments or the private sector. It addresses public use of refuge lands and imposes no requirements on other agencies or governments. A statement containing the information required by the Unfunded Mandates Reform Act is not required.

Takings (Executive Order 12630)

This proposed rule does not effect a taking of private property or otherwise have takings implications under Executive Order 12630. A takings implication assessment is not required.

Federalism (Executive Order 13132)

Under the criteria in section 1 of Executive Order 13132, the proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism summary impact statement is not required.

Civil Justice Reform (Executive Order 12988)

This proposed rule complies with the requirements of Executive Order 12988. This rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

Consultation With Indian Tribes (Executive Order 13175 and Department Policy)

The Department of the Interior strives to strengthen its government-to government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this proposed rule under the criteria in Executive Order 13175 and under the Department's tribal consultation and Alaska Native Claims Settlement Act Native Corporation policies. The Service notified Alaska Native tribes and corporations of its intent to undertake this rulemaking in October 2017 and invited them at that time to consult on the harvest of brown bears over bait, the discharge of firearms along the Kenai and Russian Rivers during certain times of the year in accordance with State law, increased access for the public using bicycles and game carts, and the use of snowmobiles, all-terrain vehicles, and utility task vehicles on certain lakes when there is adequate snow and ice cover. While no request for formal consultation was received, the Service initiated discussions on the rulemaking with one tribe and one corporation during the course of ongoing coordination with them. We will consult with all tribes and corporations that request formal consultation during this rulemaking process.

Paperwork Reduction Act (44 U.S.C. 3501 et seq.)

This proposed rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). OMB has previously approved the information collection requirements associated with Special Use Permits and assigned OMB Control Number 1018-0102 (expires 08/31/2020). You may view the information collection request at http://www.reginfo.gov/​public/​do/​PRAMain. An agency 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 (42 U.S.C. 4321 et seq.)

The Service is analyzing this proposed rule in accordance with the criteria of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4332(C)), 43 CFR part 46, and part 516 of the DOI Departmental Manual. We have completed a draft environmental assessment, which is available at http://www.regulations.gov in Docket No. FWS-R7-NWRS-2017-0058. We are soliciting public comment and supporting data to gain information on the draft environmental assessment and the proposed rule as set forth above in DATES and ADDRESSES.

Effects on the Energy Supply (Executive Order 13211)

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

Clarity of This Rule

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(1) Be logically organized;

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

(3) Use clear language rather than jargon;

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

(5) Use lists and tables wherever possible.

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

List of Subjects in 50 CFR Part 36

• Alaska
• Recreation and recreation areas
• Reporting and recordkeeping requirements
• Wildlife refuges

Proposed Regulation Promulgation

Accordingly, the Service proposes to amend 50 CFR part 36 as set forth below:

PART 36—ALASKA NATIONAL WILDLIFE REFUGES

1. 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., Pub. L. 115-20, 131 Stat. 86.

2. In § 36.32, revise paragraph (c)(1)(iii) by removing the word “Kenai” and the comma that follows it.

3. Amend § 36.39 by revising paragraphs (i)(3)(i), (i)(4)(ii)(E), (i)(5)(i) and (ii), and (i)(9)(iii) to read as follows: