[Federal Register Volume 69, Number 85 (Monday, May 3, 2004)]
[Notices]
[Pages 24185-24188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9961]


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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

[WO-120-04-1630-PD]


Proposed Supplementary Rules for the Public Lands Administered by 
the Bureau of Land Management in Nevada Relating to the Unlawful Use of 
Alcohol and Drugs

AGENCY: Bureau of Land Management, Interior.

[[Page 24186]]


ACTION: Proposed supplementary rules for public lands within the State 
of Nevada.

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SUMMARY: The Bureau of Land Management (BLM) is establishing these 
proposed supplementary rules for application to the public lands within 
the State of Nevada. The rules relate to the illegal use of alcohol and 
drugs on public lands. The BLM needs supplementary rules to protect 
natural resources and the health and safety of public land users. These 
supplementary rules will allow BLM Law Enforcement Officers to enforce 
regulations pertaining to alcohol and drug laws on public lands in a 
manner consistent with current State of Nevada State Laws as contained 
in the Nevada Revised Statutes.

DATES: Send your comments by July 2, 2004. In developing final rules, 
the BLM may not consider comments postmarked or received in person or 
by electronic mail after this date.

ADDRESSES: Send comments to Erika Schumacher, Bureau of Land 
Management, Nevada State Office, 1340 Financial Blvd. Reno, Nevada 
89502 or to [email protected].

FOR FURTHER INFORMATION CONTACT: Donette Gordon, BLM Nevada State 
Office, P.O. Box 12000, Reno, Nevada 89520-0006, 775-861-6667.

I. Discussion of the Supplementary Rules

    These proposed supplementary rules would apply to all BLM-
administered public lands within the State of Nevada. In keeping with 
the BLM's performance goal to reduce threats to public health and 
safety and property, these proposed supplementary rules are necessary 
to protect the natural resources and to provide for safe public 
recreation and public health. Alcohol-related offenses are a growing 
problem on the public lands. Unlawful consumption of alcohol and drugs, 
and abuses of alcohol and drugs, such as driving under the influence, 
poses a significant health and safety hazard to users and uses of the 
public lands. This may result in the destruction of natural resources 
and property, and/or cause physical injury or death. In addition, drug 
related offenses, including the possession of drug paraphernalia, may 
encourage the illegal use of controlled substances by making the drug 
culture more visible and enticing. Further, the presence of drug 
paraphernalia on public lands may tend to promote, suggest, or increase 
the public acceptability of the illegal use of controlled substances. 
These proposed supplementary rules will assist BLM in reducing illegal 
use of drugs and alcohol on public lands. These proposed supplementary 
rules would allow BLM Law Enforcement Officers to enforce on public 
lands regulations pertaining to alcohol and drug laws in a manner 
patterning current State of Nevada laws as contained in the Nevada 
Revised Statues in an effort to further the working relationship and 
partnerships forms with numerous Sheriff's Departments throughout 
Nevada and the Nevada Highway Patrol.

II. Procedural Information

Executive Order 12866, Regulatory Planning and Review

    These 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 supplementary rules will not have an 
effect of $100 million or more on the economy. They are directed at 
preventing unlawful personal behavior on public lands for purposes of 
protecting public health or safety, State, local or tribal governments 
or communities. These proposed supplementary rules would not create a 
serious inconsistency or otherwise interfere with an action taken or 
planned by another agency; the supplementary rules would not alter the 
budgetary effects of entitlements, grants, user fees or loan programs 
or the right or obligations of their recipients; would not raise novel 
legal or policy issues. The supplementary rules would merely enable BLM 
law enforcement personnel to enforce regulations pertaining to unlawful 
possession/use of alcohol and drugs in a manner patterning current 
State of Nevada laws as contained in the Revised Statues, where 
appropriate on public lands.

Regulatory Flexibility Act

    Congress enacted the Regulatory Flexibility Act of 1980, as 
amended, 5 U.S.C. 601-612, (RFA) to ensure that Government regulations 
do not unnecessarily or disproportionately put a burden on small 
entities. The RFA requires a regulatory flexibility analysis if a rules 
would have a significant economic impact, either detrimental or on a 
substantial number of small entities. The final supplementary rules do 
not pertain specifically to commercial or governmental entities of any 
size, and do not regulate any legal business activity, but contain 
rules to protect the health and safety of individuals, property, and 
resources on the public lands. Therefore, BLM has determined under the 
RFA that these rules would not have a significant economic impact on a 
substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    These proposed supplementary rules would not constitute a ``major 
rule'' as defined at 5 U.S.C. 804(2). Again, the proposed supplementary 
rules only pertain to individuals who may unlawfully use alcohol or 
drugs on the public lands. The proposed rule will assist in the 
protection of the public lands and facilities and those including small 
business concessionaires and outfitters, who use them. The proposed 
supplementary rules would have no effect on business, commercial or 
industrial use of the public lands.

Unfunded Mandates Reform Act

    These proposed supplementary rules would not impose an unfunded 
mandate on State, local, or tribal governments or the private sector of 
more than $100 million per year; nor would these interim proposed 
supplementary rules have significant or unique effect on State, local, 
or tribal governments. The supplementary rules would be patterned on 
State law. Therefore, BLM is not required to prepare a statement 
containing the information required by the Unfunded Mandate Reform Act 
(2 U.S.C. 1531 et seq.)

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

    The proposed supplementary rules do not represent a government 
action capable of interfering with constitutionally protected property 
rights in any form, and so do not cause the impairment of any property 
rights. The rules would not provide for the surrender or confiscation 
of any legal personal or real property. Therefore, the Department of 
Interior has determined that the supplementary rules would not give 
rise of takings implications under this Executive Order.

Executive Order 13132, Federalism

    The proposed supplementary rules would 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 the 
responsibilities among the various levels of government. The 
supplementary rules apply only to one State, Nevada, and do not address 
jurisdictional issues involving the Nevada State government. Therefore, 
in accordance with Executive Order 13132,

[[Page 24187]]

BLM has determined that the proposed supplementary rules do not have 
sufficient federalism implications to warrant preparation of a 
federalism assessment.

Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments

    In accordance with E.O. 13175, we have found that these proposed 
supplementary rules would not include policies that have tribal 
implications. Since the rules do not change BLM policy and do not 
involve Indian reservation lands or resources, we have determined that 
the government-to-government relationships should remain unaffected. 
The proposed supplementary rules only prohibit the unlawful use of 
alcoholic beverages and illegal drugs on public lands.

Executive Order 12988, Civil Justice Reform

    Under Executive Order 12988, the Nevada State Office of BLM has 
determined that these proposed supplementary rules would not unduly 
burden the judicial system and that they meet the requirements of 
sections 3(a) and 3(b)(2) of the Order.

Paperwork Reduction Act

    These proposed supplementary rules do not contain information 
collection requirements that the Office of Management and Budget must 
approve under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et 
seq.

National Environmental Policy Act

    BLM has determined the supplementary rules are categorically 
excluded from environmental review under section 102(2)(C) of the 
National Environmental Policy Act, pursuant to 516 Departmental Manual 
(DM) Chapter 2, Appendix 1. In addition, the supplemental rules do not 
meet any of the 10 criteria for exceptions to categorical exclusions 
listed in 516 DM, Chapter 2 and Appendix 2. Pursuant to Council on 
Environmental Quality regulations (40 CFR 1508.4) and the environmental 
policies and procedures of the Department of Interior, the term 
``categorical exclusion'' means a category of actions which do not 
individually or cumulatively have a significant effect on the human 
environment and that have been found to have no such effect in 
procedures adopted by a Federal Agency, and for which neither an 
environmental assessment nor environmental impact statement is 
required.

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

    These proposed supplementary rules do not comprise a significant 
energy action. The rules would not have an adverse effect on energy 
supplies, production or consumption. They only address use of alcoholic 
beverages and drugs on public lands, and have no conceivable connection 
with energy policy.

Author

    The principal author of these supplementary rules is State Staff 
Ranger Erika Schumacher of the Nevada State Office, Bureau of Land 
Management, Department of the Interior.
    Under the authority of 43 CFR 8365.1-6, 43 U.S.C. 1733a, the Nevada 
State Director, Bureau of Land Management, issues supplementary rules 
for public lands in Nevada.

Supplementary Rules on Possession and Use of Drugs and Alcohol on 
Public Lands

    The Nevada State Office issues these supplementary rules under the 
Federal Land Policy and Management Act (FLPMA), 43 U.S.C. 1740 and 43 
CFR 8365.1-6. The State law as it pertains to driving under the 
influence, minors in possession, open container and drug paraphernalia 
that is now or later to be in effect is adopted and made part of the 
regulation.

1. Definitions

    The following definitions will apply to the proposed supplementary 
rules, unless modified within a specific part or regulation:
    a. Drug paraphernalia means equipment, products and materials of 
any kind which are used, intended for use, or designed for use in 
planting, propagating, cultivating, growing, harvesting, manufacturing, 
compounding, converting, producing, preparing, testing, analyzing, 
packaging, repackaging, storing, containing, concealing, injecting, 
ingesting, inhaling or otherwise introducing into the human body a 
controlled substance to include diluting agents or substances.
    b. Motor vehicle means any vehicle that is self-propelled by a non-
living power source, including a vehicle that is propelled by electric 
power. Exempt from this definition are motorized wheelchairs.
    c. Operator means any person who operates, drives, controls, or 
otherwise has charge of a mechanical mode of transportation or any 
other mechanical equipment.
    d. Public lands means any lands and interests in lands owned by the 
United States and administered by the Secretary of the Interior through 
the Bureau of Land Management without regard to how the United States 
acquired ownership. This includes, but is not limited to a paved or 
unpaved parking lot or other paved or unpaved area where vehicles are 
parked or areas where the public may drive a motorized vehicle, paved 
or unpaved roads, roads, routes or trails.

2. Operating a Motor Vehicle Under the Influence of Alcohol or Drugs

    a. You must not operate or be in actual physical control of a motor 
vehicle on public lands while:
    i. Under the influence of alcohol, or a drug, or drugs or any 
combination thereof, to a degree that renders the operator incapable of 
safe operation of that vehicle; or
    ii. The alcohol concentration in your blood or breath is 0.08 grams 
or more of alcohol per 100 milliliters of blood or 210 liters of 
breath. If the State of Nevada establishes by statute a more 
restrictive standard of alcohol concentration than that defined in this 
supplemental rule, that more restrictive standard is hereby adopted and 
made a part of this supplemental rule and supersedes the standard 
specified in the preceding sentence.
    a. At the request or direction of a law enforcement officer who has 
probable cause to believe that you as an operator of a motor vehicle 
within public lands have violated a provision of paragraph (a) of this 
section, you must submit to one or more tests of the blood, breath, 
saliva or urine for the purpose of determining blood alcohol and drug 
content.
    b. Refusal by an operator to submit to a test is prohibited and 
proof of refusal may be admissible in any related judicial proceeding.
    c. Any test or tests for the presence of alcohol and drugs will be 
determined by and administered at the direction of an authorized 
person.
    d. Any test will be conducted by using accepted scientific methods 
and equipment of proven accuracy and reliability operated by personnel 
certified in its use.
    e. The results of chemical or other quantitative tests are intended 
to supplement the elements of probable cause used as the basis for the 
arrest of an operator charged with a violation of paragraph (a)(i) of 
this section. If the alcohol concentration in the operator's blood or 
breath at the time of testing is

[[Page 24188]]

less than alcohol concentrations specified in paragraph (a)(ii) of this 
section, this fact does not give rise to any presumption that the 
operator is or is not under the influence of alcohol.
    f. The provisions of paragraph (d) of this section are not intended 
to limit the introduction of any other competent evidence bearing upon 
the question of whether the operator, at the time of the alleged 
violation, was under the influence of alcohol, or a drug, or drugs, or 
any combination thereof.

3. Open Container of Alcoholic Beverage

    a. You must not carry or store a bottle, can or other receptacle 
containing an alcoholic beverage that is open, or has been opened, or 
whose seal is broken or the contents of which have been partially 
removed, within a motor vehicle on public lands.
    b. Each person within a motor vehicle is responsible for complying 
with the provision in this section that pertains to carrying an open 
container. The operator of a motor vehicle is the person responsible 
for complying with the provisions of this section that pertain to the 
storage of an open container.
    c. This section does not apply to:
    i. An open container stored in the trunk of a motor vehicle or, if 
a motor vehicle is not equipped with a trunk, to an open container 
stored in some other portion of the motor vehicle designed for the 
storage of luggage and not normally occupied by or readily accessible 
to the operator or passengers; or
    ii. An open container stored in the living quarters of a motor home 
or camper; or
    iii. Unless otherwise prohibited, an open container carried or 
stored in a motor vehicle that is parked and the vehicle's occupant(s) 
are camping.
    iv. For the purpose of paragraph (c)(i) of this section, a utility 
compartment or glove compartment is deemed to be readily accessible to 
the operator and passengers of a motor vehicle.

4. Possession of Alcohol by Minor

    a. The following are prohibited:
    i. Consumption or possession of any alcoholic beverage by a person 
under 21 years of age on public lands.
    ii. Selling, offering to sell, or otherwise furnishing or supplying 
any alcoholic beverage to a person under 21 years of age on public 
lands.
    b. This section does not apply to the selling, handling, serving or 
transporting of alcoholic beverages by a person in the course of his 
lawful employment by a licensed manufacturer, wholesaler or retailer of 
alcoholic beverages.

5. Possession of Drug Paraphernalia

    a. Possession of drug paraphernalia by any person on public lands 
is prohibited.
    b. Drug paraphernalia is defined as equipment, products and 
materials of any kind which are used, intended for use, or designed for 
use in planting, propagating, cultivating, growing, harvesting, 
manufacturing, compounding, converting, producing, preparing, testing, 
analyzing, packaging, repackaging, storing, containing, concealing, 
injecting, ingesting, inhaling or otherwise introducing into the human 
body a controlled substance.

Penalties

    Under the Federal Land Policy and Management Act of 1976, 43 U.S.C. 
1733(a), if you violate or fail to comply with these supplementary 
rules. You may be subjected to imprisonment for not more than 12 
months, or a fine in accordance with 18 U.S.C. 3571, other penalties in 
accordance with 43 U.S.C. 1733 or both.

Robert V. Abbey,
State Director.
[FR Doc. 04-9961 Filed 4-30-04; 8:45 am]
BILLING CODE 4310-HC-P