[Federal Register Volume 63, Number 72 (Wednesday, April 15, 1998)]
[Rules and Regulations]
[Pages 18338-18340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-10025]


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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Part 4700

[NV-960-1060-00-24-1A]
RIN 1004-AD28


Wild Horse and Burro Adoptions; Power of Attorney

AGENCY: Bureau of Land Management, Interior.

ACTION: Final rule.

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SUMMARY: The Bureau of Land Management is amending its regulations to 
prohibit anyone from adopting wild horses and burros on behalf of 
another person using a written authorization to act as that person's 
agent or attorney (power of attorney). This action is necessary to 
implement a portion of a court-approved settlement agreement between 
BLM and the Animal Protection Institute of America, Inc. The effect of 
this action is to eliminate the potential for adopters to misuse the 
power of attorney to obtain large numbers of wild horses and burros for 
commercial sale.

DATES: This rule is effective May 15, 1998.

FOR FURTHER INFORMATION CONTACT: Bud Cribley, (202) 452-5073; or Lili 
Thomas, (702) 785-6457.

SUPPLEMENTARY INFORMATION:

I. Background
II. Discussion of the Final Rule and Response to Comments
III. Procedural Matters

I. Background

    In 1971, Congress passed legislation to protect, manage, and 
control wild horses and burros on the public lands. The Wild Free-
Roaming Horses and Burros Act (WHA) declared these animals to be 
``living symbols of the historic and pioneer spirit of the West.'' Pub. 
L. 92-195, section 1, 85 Stat. 649 (1971) (current version at 16 U.S.C. 
1331 (1994)). Congress further declared that all wild free-roaming 
horses and burros are under the jurisdiction of the Secretary of the 
Interior for the purpose of management and protection, and that the 
Secretary shall manage them in a manner that is designed to achieve and 
maintain a thriving natural ecological balance on the public lands. 16 
U.S.C. 1333(a). Section 3(b) of the WHA authorized the Secretary, where 
an area is found to be overpopulated, to cause additional excess wild 
free-roaming horses and burros to be captured and removed for private 
maintenance under humane conditions and care. Congress also authorized 
the Secretary to issue such regulations as the Secretary deems 
necessary to further the purposes of the law. 16 U.S.C. 1336.
    The WHA protected wild horses and burros so well that within a few 
years their numbers exceeded the carrying capacity of the Western 
rangelands and posed a threat to wildlife, livestock, and the 
improvement of range conditions. To correct this problem, in 1978, 
Congress passed amendments to the WHA as part of the Public Rangelands 
Improvement Act. Pub. L. 95-514, section 14, 92 Stat. 1803, 1808 (1978) 
(current version at 16 U.S.C. 1333(b)-(d)). The amendments sought to 
facilitate humane adoption of excess animals by allowing adopters to 
take title to up to 4 animals per year after having successfully cared 
for them for one year. 16 U.S.C. 1333(c). Under the amendments, 
individuals can adopt (but not take title to) more than 4 animals per 
year if the Secretary finds they can humanely care for more than four. 
16 U.S.C. 1333(b)(2)(B).
    To carry out this mandate, the Secretary, acting through BLM, 
issued regulations governing, among other things, the adoption process 
and who is eligible to adopt animals removed from the public lands. 
These regulations were proposed in 1984 (49 FR 49252, December 18, 
1984) and adopted in 1986 (51 FR 7410, March 3, 1986). See 43 CFR part 
4700 (1997). The 1986 regulations limited adoptions to four animals per 
year per person, but also allowed a person to adopt animals on behalf 
of another person through the use of a power of attorney. A power of 
attorney is a written document that authorizes one person to act as an 
agent or attorney for another. Under the existing regulations, one 
agent could get powers of attorney from several people and adopt more 
animals than any one person is allowed to adopt.
    As discussed in the proposed rule, several investigations of 
adopters of

[[Page 18339]]

large numbers of animals through power of attorney indicate that 
individuals have obtained large numbers of animals to sell them for 
profit. In some cases, the investigations have found that adopted 
animals have been held in substandard, if not inhumane, conditions 
awaiting transfer of title from BLM to the adopters of record and 
subsequent sale or slaughter. While BLM was working on a proposal to 
address this potential for abuse, the Animal Protection Institute of 
America, Inc. (API) initiated legal action concerning a number of 
issues related to the adoption program. As a result, BLM and API 
entered into a settlement agreement in October 1997 that, among other 
things, requires BLM to propose a regulation eliminating the use of 
powers of attorney in the adoption program.
    On November 10, 1997, BLM published a proposed rule in the Federal 
Register that would have revised existing paragraph 43 CFR 4750.3-3(b) 
to read, ``The Bureau of Land Management will not allow the use of a 
power of attorney for the adoption of wild horses and burros.'' 62 FR 
60467. The proposal would also have deleted existing paragraph 43 CFR 
4750.3-3(c) which outlined the information that a person holding a 
power of attorney and adopting more than four animals had to provide. 
By proposing to specifically disallow use of power of attorney in 
paragraph (b), the proposal rendered the information requirements in 
paragraph (c) superfluous. As discussed in the proposed rule, the 
intent of these changes was to eliminate the use of power of attorney.
    The 60-day comment period closed on January 9, 1998. BLM received 
12 comment letters and electronic mail messages. Seven of the comments 
were from representatives of animal-advocacy organizations; the other 
five came from individuals, one of whom identified herself as an 
individual adopter. Ten of the comments were supportive of the 
proposal; two of these offered specific changes to the proposed text. 
Two comments, both from individuals, disagreed with the proposal. See 
the discussion of comments in the next section.

II. Discussion of Final Rule and Response to Comments

A. Legal Basis for the Final Rule

    The Wild Free-Roaming Horses and Burros Act, as amended, authorizes 
the Secretary of the Interior to issue such regulations as the 
Secretary deems necessary to further the purposes of the law. 16 U.S.C. 
1336. The law also provides that excess animals be removed for private 
maintenance and care (adoption) provided that the Secretary can assure 
humane treatment and care. 16 U.S.C. 1333(b)(2)(B). The final rule 
adopted today is narrowly focused on ensuring that adopted animals 
receive humane treatment and care. The use of power of attorney to 
adopt large numbers of animals has been shown in specific cases to 
result in either mistreatment of the animals or abuse of the adoption 
program for the purpose of profiting from the sale of adopted animals, 
or both. These outcomes are clearly inconsistent with the spirit and 
intent of the Wild Free-Roaming Horses and Burros Act, as amended. To 
prevent these outcomes from occurring again in the future, BLM believes 
that its regulations should be changed, and the final rule adopted 
today is consistent with that position. BLM is adopting changes to its 
regulations that will prevent specific results while avoiding, to the 
extent possible and foreseeable, unintended negative impacts on 
legitimate individual adopters of wild horses and burros. Based on 
BLM's analysis of the issues involved, taking into account the purposes 
of the statutes and the administrative record of this rulemaking, 
including comments received from the public, this final rule is a 
proper and reasonable interpretation of the Wild Free-Roaming Horses 
and Burros Act.

B. General Comments

    Ten commenters supported the proposal because, in their view, it 
would:

--Reduce abuse of animals after adoption,
--Eliminate an opportunity for monetary gain from adoptions,
--Prevent illegal profit from animals,
--Prevent adoption of large numbers of animals for commercial gain,
--Reduce BLM's costs for compliance inspections,
--Remove the incentive to adopt for commercial purposes,
--Prevent misuse of the program,
--Enable BLM to visit all adopters,
--Prevent the slaughter of animals, and
--Ensure successful adoptions.

    BLM generally agrees with these comments.
    Two commenters disagreed with the proposal. One did not state a 
reason for her disagreement. The other asserted that the proposal 
amounted to only a trivial correction of the regulations and proposed a 
number of changes to other provisions of the existing regulations. BLM 
does not agree that the proposal was trivial. Elimination of the use of 
power of attorney in the adoption program is a significant change to 
regulations that have been in place for over a decade. As discussed 
above and in the proposed rule, this change eliminates a significant 
potential for abuse of the program.
    BLM has decided not to adopt the other changes suggested by the 
commenter at this time. Under the Administrative Procedures Act, an 
agency must publish notice of a proposed rulemaking in the Federal 
Register, including ``either the terms or substance of the proposed 
rule or a description of the subjects and issues involved.'' 5 U.S.C. 
553(b). The November 10, 1997 proposal only addressed the issue of use 
of power of attorney in the adoption program. Thus, the public did not 
have notice and opportunity to comment on other aspects of the program 
addressed by this commenter, such as when BLM should allow title to an 
animal to pass to an adopter. The specific changes recommended by the 
commenter pertain to issues outside the scope of the proposal. 
Therefore, it would not be proper for BLM to adopt those changes at 
this time. However, BLM has taken the commenter's recommendations under 
advisement and may, in the future, initiate a rulemaking that addresses 
those issues.

C. Specific Comments

    One commenter suggested that in cases where a person would have to 
travel a long distance to the site of an adoption facility, it would be 
convenient to allow that person to use a power of attorney. The 
commenter suggested limiting the potential for abuse by allowing power 
of attorney ``to be used for one person for one horse (or burro).'' BLM 
has decided not to adopt this suggestion because it would not eliminate 
the potential for abuse. Elimination of use of power of attorney for 
adoption essentially limits qualified adopters to those individuals who 
are willing and able to travel to the adoption location. Adopting a 
horse or burro is a serious endeavor that entails a significant 
commitment of time and money. BLM does not believe that having to 
travel to the adoption location will be a hindrance to those who are 
undertaking the larger commitment to humane care and treatment.
    One commenter suggested adding to the proposal language that would 
preclude, in addition to power of attorney, ``any other instrument or 
writing authorizing another person to act as an agent.'' The intent of 
the change is to clarify that no document in

[[Page 18340]]

which one person gives authority to another to act as an agent, whether 
or not it is styled ``power of attorney,'' will be acceptable for 
purposes of adoption of wild horses and burros. BLM has decided to 
accept this clarification. Consequently, the final rule provides that, 
``[BLM] will not allow the use of a power of attorney or any other 
instrument or writing authorizing one person to act as an agent for 
another in the adoption of wild horses and burros.''

III. Procedural Matters

National Environmental Policy Act

    BLM has prepared an environmental assessment (EA) and has found 
that this final rule will 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 placed the EA and the Finding of No 
Significant Impact (FONSI) on file in the BLM Administrative Record, 
Room 401, 1620 L Street, NW, Washington, D.C. To obtain a copy, please 
contact one of the individuals listed under For Further Information 
Contact.

Paperwork Reduction Act

    This rule does 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.

Regulatory Flexibility Act

    Congress enacted The Regulatory Flexibility Act of 1980, 5 U.S.C. 
601 et seq., 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. This final rule is a technical change to the 
wild horse and burro adoption regulations to preclude use of power of 
attorney for adoptions. The rule will prevent some individuals from 
adopting wild horses and burros if the individuals are unable to travel 
to the adoption location, select the animals for adoption, and sign the 
private maintenance and care agreement. However, the power of attorney 
adoption was used only 12 times in 1997. Therefore, BLM has determined 
under the RFA that this final rule will not have a significant economic 
impact on a substantial number of small entities.

Unfunded Mandates Reform Act

    Revision of 43 CFR part 4700 will not result in any unfunded 
mandate to State, local, or tribal governments in the aggregate, or to 
the private sector, of $100 million or more in any one year.

Executive Order 12612

    The final rule 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. Therefore, in accordance with Executive 
Order 12612, BLM has determined that this final rule does not have 
sufficient federalism implications to warrant preparation of a 
Federalism Assessment.

Executive Order 12630

    The final rule does not represent a government action capable of 
interfering with constitutionally protected property rights. Therefore, 
the Department of the Interior has determined that the rule would not 
cause a taking of private property or require further discussion of 
takings implications under this Executive Order.

Executive Order 12866

    According to the criteria listed in section 3(f) of Executive Order 
12866, BLM has determined that the final rule is not a significant 
regulatory action. As such, the final rule is not subject to Office of 
Management and Budget review under section 6(a)(3) of the order.

Executive Order 12988

    The Department of the Interior has determined that this rule meets 
the applicable standards provided in sections 3(a) and 3(b)(2) of 
Executive Order 12988.

Author

    The principal author of this final rule is Patrick W. Boyd, 
Regulatory Affairs Group, Bureau of Land Management, 1849 C Street, 
NW., Washington, DC 20240; Telephone: (202) 452-5030.

List of Subjects in 43 CFR Part 4700

    Animal welfare, Horses, Penalties, Public lands, Range management, 
Reporting and recordkeeping requirements, Wildlife.

    Dated: April 8, 1998.
Sylvia V. Baca,
Deputy Assistant Secretary--Land and Minerals Management.

    Accordingly, BLM proposes to amend 43 CFR part 4700 as set forth 
below:
    1. The authority citation for part 4700 continues to read as 
follows:

    Authority: 16 U.S.C. 1331-1340; 18 U.S.C. 47; 43 U.S.C. 315 and 
1740.

    2. Amend Sec. 4750.3-3 by revising paragraph (b) to read as follows 
and by removing paragraph (c):


Sec. 4750.3-3  Supporting information and certification for private 
maintenance of more than 4 wild horses or burros.

* * * * *
    (b) The Bureau of Land Management will not allow the use of a power 
of attorney or any other instrument or writing authorizing one person 
to act as an agent for another in the adoption of wild horses and 
burros.

[FR Doc. 98-10025 Filed 4-14-98; 8:45 am]
BILLING CODE 4310-84-P