[Federal Register Volume 74, Number 181 (Monday, September 21, 2009)]
[Notices]
[Pages 48096-48099]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-22608]


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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

[LLWO120900-L10200000-PA0000; HAG-08-0212]


Proposed Supplementary Rules for Public Land in Oregon and 
Washington

AGENCY: Bureau of Land Management, Interior.

ACTION: Proposed Supplementary Rules on Public Land in Oregon and 
Washington.

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SUMMARY: The Bureau of Land Management (BLM) Oregon State Office is 
proposing supplementary rules for public lands within the States of 
Oregon and Washington. These supplementary rules revise existing 
supplementary rules and will apply to all BLM-managed lands within the 
States of Oregon and Washington. These revisions are necessary in order 
to protect public land natural resources and provide for the public's 
health and safety, provide needed guidance in the areas of special 
forest products and recreation, allow for the assessment of penalties 
that are commensurate with the magnitude of prohibited acts, and 
promote consistency between the BLM and other natural resource 
agencies.

DATES: Comments on the proposed supplementary rules must be received or 
postmarked by November 20, 2009, to be assured consideration. In 
developing final supplementary rules, the BLM is not obligated to 
consider comments postmarked or received in person or by electronic 
mail after this date.

ADDRESSES: You may mail or hand-deliver comments to the Office of Law 
Enforcement, BLM, Oregon State Office, P.O. Box 2965, Portland, Oregon 
97208. You may also comment via the Internet e-mail address: [email protected]">ORWA_[email protected]. Include ``Attn: Law Enforcement'' in your subject 
line.

FOR FURTHER INFORMATION CONTACT: Michael Roop, Office of Law 
Enforcement and Security, Oregon State Office, P.O. Box 2965, Portland, 
Oregon 97208, telephone (503) 808-6410. Persons who use a 
telecommunications device for the hearing impaired (TDD) may contact 
this individual by calling the Federal Information Relay Service (FIRS) 
at (800) 877-8339, 24 hours a day, 7 days a week. You will receive a 
reply during business hours.

SUPPLEMENTARY INFORMATION:
I. Public Comment Procedures
II. Discussion of the Proposed Supplementary Rules
III. Procedural Matters

I. Public Comment Procedures

    You may mail or hand-deliver comments to the Office of Law 
Enforcement, BLM, Oregon State Office, P.O. Box 2965, Portland, Oregon 
97208. You may also comment on this proposed rule via the Internet mail 
address: [email protected]">ORWA_[email protected]. Please also include your name and 
return address in your Internet message, and include ``Attn: Law 
Enforcement'' in your subject line.
    Written comments on the proposed supplementary rules should be 
specific, be confined to issues pertinent to the proposed supplementary 
rules, and explain the reason for any recommended change. Where 
possible, comments should reference the specific section or paragraph 
of the proposal which the comment is addressing. The BLM may not 
necessarily consider, or include in the Administrative Record for the 
final rule, comments that the BLM receives after the close of the 
comment period (see DATES), unless they are postmarked or 
electronically dated before the deadline, or comments delivered to an 
address other than those listed above (see ADDRESSES).
    Comments, including names, street addresses, and other contact 
information of respondents, will be available for public review at 333 
SW. 1st Avenue, Portland, Oregon 97204, during regular business hours 
(8 a.m. to 4 p.m.), Monday through Friday, except Federal holidays.
    Before including your address, telephone number, e-mail address, or 
other personal indentifying information in your comment, you should be 
aware that your entire comment--including your personal indentifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

II. Discussion of the Proposed Supplementary Rules

    The BLM Oregon State Office is proposing supplementary rules for 
public lands that it manages within the States of Oregon and 
Washington. These supplementary rules revise existing supplementary 
rules. These revisions are necessary in order to protect public land 
natural resources and provide for the public's health and safety, 
provide needed guidance in the areas of special forest products and 
recreation, allow for the assessment of penalties that are commensurate 
with the magnitude of prohibited acts, and promote consistency between 
the BLM and other

[[Page 48097]]

natural resource agencies, including the U.S. Forest Service, National 
Park Service, Oregon State Parks and Recreation Department, and the 
State of Washington Department of Natural Resources.
    These proposed supplementary rules would fill in gaps between 
existing supplementary rules, and provisions administered by other land 
management agencies. The existing supplementary rules for Oregon and 
Washington public lands were published in August of 2005. 70 FR 48584 
(Aug. 18, 2005).
    Currently, the BLM's forest and plant products program in Oregon 
and Washington lacks specific rules with penalties for theft or permit 
violations. From FY 2000 to FY 2007 the BLM in Oregon and Washington 
experienced 533 firewood theft and 372 forest product theft incidents. 
These incidents involved sales of firewood at makeshift sites located 
on public lands, and other unauthorized commercial uses of public 
lands. The proposed supplementary rules would enable the BLM to address 
such incidents.
    Additionally, the current regulations do not adequately protect the 
BLM's administrative and day-use sites in Oregon and Washington. 
Administrative sites include fire guard stations, maintenance 
buildings, ware yards, residences, and outbuildings. Day-use sites 
include the Dean Creek Elk Viewing Site, interpretive pull-outs, picnic 
areas, and other sites improved for public use during daylight hours. 
The proposed supplementary rules would prohibit unauthorized entry and 
overnight use of administrative and day-use sites.
    Supplementary rules are also necessary to address the Juniper Dunes 
Off-Highway Vehicle/All Terrain Vehicle (OHV/ATV) area. In the spring 
of 2007, the BLM obtained an easement for public access to the Juniper 
Dunes OHV/ATV area in Franklin County, which is located in southeast 
Washington State. The BLM undertook a planning process for parking 
areas and an informational kiosk. At that time, BLM determined that 
rules were needed for the area.
    The number of visitors to the Juniper Dunes OHV area has increased 
steadily. Since the 1980s, the number of unofficial, privately-owned 
OHV areas in southeast Washington State has decreased because many have 
been converted to commercial or residential purposes. Another factor 
has been improved public access to the Juniper Dunes due to the BLM's 
acquisition of an easement. The BLM has observed not only increasing 
numbers of visitors to the Juniper Dunes, but also increased numbers of 
accidents involving OHVs. The planning process revealed a need to add 
to the existing safety protocols in order to reduce the incidence and 
severity of accidents at the Juniper Dunes.
    In May 2007, the BLM posted temporary rules at the Dunes and in the 
Spokane BLM office. These rules were based on safety concerns, were 
modeled on the State of Washington's OHV/ATV regulations, and were 
intended to reduce conflicts with and damage to adjacent private lands. 
These proposed supplementary rules for the Juniper Dunes OHV/ATV area 
would replace the temporary rules which have successfully reduced 
safety issues and user/resident conflicts.
    Finally, supplementary rules are necessary because the current BLM 
regulations do not prohibit giving false information in the course of 
an investigation or on an application for a permit. The wording of the 
proposed supplementary rule is identical to the National Park Service 
(36 CFR 2.32 (a)(4)), and the U.S. Forest Service (36 CFR 261.3(b)) 
rules.
    The penalty provisions of the proposed supplementary rules are the 
same as the penalty provisions included in the existing supplementary 
rules. They are being re-proposed here to avoid any confusion about the 
penalties applicable violations of the proposed supplementary rules.
    The supplementary rules are proposed under the authority of the 
Federal Land Policy and Management Act (FLPMA), 43 U.S.C. 1740, that 
apply to public lands generally. The FLPMA sets penalties at the Class 
A misdemeanor level. The proposed supplementary rules are also under 
the authority of the Taylor Grazing Act, 43 U.S.C. 315a, which sets 
penalties at the Infraction level (Class C misdemeanor), and the Sikes 
Act, 16 U.S.C. 670h(c)(5), which sets penalties at the Petty Offense 
level (Class B misdemeanor).
    The Taylor Grazing Act applies to areas within grazing districts, 
leased grazing lands, and any lands that are not withdrawn from 
grazing, which encompasses most BLM public lands east of the Cascade 
Mountains in Oregon and Washington and lands in southwest Oregon. The 
Taylor Grazing Act directs the Secretary of the Interior to make such 
rules and regulations as are necessary to accomplish the purposes of 
the Taylor Grazing Act. These purposes include regulating the occupancy 
and use of public lands and preserving the land and its resources from 
destruction or unnecessary injury.
    The Sikes Act applies to areas where the BLM--in cooperation with 
State agencies and following comprehensive plans developed under 16 
U.S.C. 670h 0-- plans, develops, maintains, and coordinates programs 
for the conservation and rehabilitation of wildlife, fish, and game. 
This coordination occurs predominantly on public lands west of the 
Cascade Mountains under the Northwest Forest Plan. The FLPMA, the 
Taylor Grazing Act, and the Sikes Act are all cited as authorities for 
promulgating 43 CFR 8365.1-6, the guidance for creating supplementary 
rules.

III. Procedural Matters

Executive Order 12866, Regulatory Planning and Review

    The proposed 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. The proposed supplementary rules 
will not have an effect of $100 million or more on the economy. 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. The proposed supplementary 
rules will not create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency. The proposed 
supplementary rules do not alter the budgetary effects of entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients nor do they raise novel legal or policy issues. They 
merely impose rules of conduct and impose other limitations on certain 
recreational and commercial activities on certain public lands to 
protect natural resources and human health and safety.

National Environmental Policy Act

    The BLM has found that the proposed supplementary rules are of a 
procedural nature and thus are categorically excluded from 
environmental review under Section 102(2)(C) of the Environmental 
Protection Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C), pursuant to 43 CFR 
46.210(i). In addition, the proposed supplementary rules do not present 
any of the 12 extraordinary circumstances listed at 43 CFR 46.215. 
Pursuant to the Council on Environmental Quality regulations (40 CFR 
1508.4) and the environmental regulations, policies, and procedures of 
the Department of the Interior, the term ``categorical exclusions'' 
means a category of actions which do not individually or cumulatively 
have a significant effect on the human

[[Page 48098]]

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 an environmental impact statement is 
required.

Regulatory Flexibility Act

    Congress enacted the Regulatory Flexibility Act of 1980 (RFA), 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. These proposed supplementary 
rules should have no effect on business entities of any size. They 
would merely impose reasonable restrictions on certain recreational or 
commercial activities on public lands in order to protect natural 
resources and the environment, and provide for human health and safety. 
Therefore, the BLM has determined under the RFA that these proposed 
supplementary rules would not have a significant economic impact on a 
substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    The proposed supplementary rules are not a ``major rule'' as 
defined at 5 U.S.C. 804(2). They would not result in an effect on the 
economy of $100 million or more, an increase in costs or prices, or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic and 
export markets. They would merely impose reasonable restrictions on 
certain recreational and illegal commercial activities on certain 
public lands to protect natural resources, the environment, and human 
health and safety.

Unfunded Mandates Reform Act

    The proposed supplementary rules do not impose an unfunded mandate 
on State, local, or Tribal governments or the private sector of more 
than $100 million per year; nor do these proposed supplementary rules 
have a significant or unique effect on State, local, or Tribal 
governments or the private sector. They would merely impose reasonable 
restrictions on certain recreational activities on certain public lands 
to protect natural resources and the environment and human health and 
safety. They also specifically call for compliance with State laws and 
regulations. Therefore, the 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 proposed supplementary rules do not comprise a government 
action capable of interfering with constitutionally protected property 
rights. Therefore, the BLM has determined that the rule would not cause 
a taking of private property or require preparation of a takings 
assessment 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 Federal 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. The proposed 
supplementary rules in several instances call for compliance with State 
law. Therefore, in accordance with Executive Order 13132, the BLM has 
determined that these proposed supplementary rules do not have 
sufficient Federalism implications to warrant preparation of a 
Federalism Assessment.

Executive Order 12988, Civil Justice Reform

    The BLM has determined that this proposed rule does not unduly 
burden the judicial system and meets the requirements of sections 3(a) 
and 3(b)(2) of Executive Order 12988.

Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments

    The BLM has assessed the impact of these proposed supplementary 
rules on Tribal trust resources, on access to sacred sites, and on 
treaty rights. The BLM has determined that these proposed supplementary 
rules would not have Tribal implications as defined by Executive Order 
13175, and therefore advance consultation with Indian Tribal 
Governments is not required.

Information Quality Act

    In developing this proposed rule, 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.).

Executive Order 13211, Effects on the Nation's Energy Supply

    This proposed rule revises a supplementary rule in order to protect 
natural resources and provide for public safety. This rule has no 
implications under Executive Order 13211.

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.

Clarity of the 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 proposed supplementary rules easier to understand, 
including answers to questions such as the following:
    (1) Are the requirements in the proposed supplementary rules 
clearly stated?
    (2) Do the proposed supplementary rules contain technical language 
or jargon that interferes with their clarity?
    (3) Does the format of the proposed supplementary rules (grouping 
and order of sections, use of headings, paragraphing, etc.) aid or 
reduce clarity?
    (4) Would the supplementary rules be easier to understand if they 
were divided into more (but shorter) sections?
    (5) Is the description of the proposed supplementary rules in the 
SUPPLEMENTARY INFORMATION section of this preamble helpful to your 
understanding of the proposed supplementary rules? How could this 
description be more helpful in making the proposed supplementary rules 
easier to understand?
    Please send any comments you have on the clarity of the 
supplementary rules to the address specified in the ADDRESSES section.

Author

    The principal author of these proposed supplementary rules is Mike 
Roop, State Staff Ranger, Oregon State Office, P.O. Box 2965, Portland, 
Oregon 97208.
    For the reasons stated in the preamble and under the authorities 
for supplementary rules found under 43 CFR 8365.1-6, 43 U.S.C. 1740, 16 
U.S.C. 670h(c)(5), and 43 U.S.C. 315a, the BLM Oregon/Washington State 
Director proposes to issue supplementary rules for public lands managed 
by the BLM in Oregon and Washington, to read as follows:

[[Page 48099]]

Supplementary Rules for Oregon and Washington

Definitions

    ATV/OHV: any motor vehicle designed for or capable of cross country 
travel on or immediately over land, water, sand, snow, ice, marsh, 
swamp land, or other natural terrain.
    Authorized Employee: any employee of the Bureau of Land Management 
who has been designated the authority to perform the duties in these 
rules.
    Commercial Use: a use or activity for which an entry or 
participation fee is charged or for which the primary purpose is the 
sale of a good or service and, in either case, regardless of whether 
the use or activity is intended to produce a profit.
    Damage: to injure, mutilate, deface, destroy, cut, chop, girdle, 
dig, excavate, or kill.
    Day Use Area: An area that is to be utilized in the hours of 
daylight or within the posted hours of operation. No overnight camping 
is allowed.
    Forest or Plant Product: all vegetative material that is not 
normally measured in board feet but can be sold or removed from public 
lands by means of the issuance of a contract or permit.
    1. Forest or Plant Products
    (a) You must not cut or otherwise damage any timber, tree, other 
forest product or plant, either live or dead, except as authorized by 
written permit, special-use authorization, contract, Federal law or 
regulation, or with written permission from an authorized employee.
    (b) You must not remove any timber, tree, other forest product or 
plant, either live or dead, without authorization by written permit, 
special-use authorization, contract, or Federal law or regulation or 
without written permission from an authorized employee.
    (c) You must properly tag, mark, or transport any forest product or 
plant, either live or dead, as required by Federal or State regulation 
or law.
    (d) You must properly fill out and have in your possession permit 
paperwork as required by Federal or State permit stipulations, 
regulation, or law.
    (e) You must not violate the terms or conditions of any BLM-issued 
forest or plant permit.
    (f) You must not dispose of, burn, or possess any type of firewood 
or wood pallets containing nails, screws, or other metal hardware.
    (g) You must not introduce new species without authorization.
    (h) You must not posses, use, or store any hay, straw, or mulch 
that has not been certified as free of prohibited noxious vegetative 
parts and/or seeds at any time of the year. Certification must comply 
with the State, Regional, or Federal Weed-Free Forage Certification 
Standards.
    2. Day-Use Areas
    (a) You may only enter a day use area during the posted use hours.
    (b) You must not enter any day use area closed as indicated by 
signage.
    3. Commercial Use Permits
    (a) You must not operate any commercial business on public lands 
without a permit or written permission from an authorized employee.
    (b) You must not violate the terms or conditions of any BLM-issued 
commercial use permit.
    (c) You must not conduct research projects or scientific studies 
without coordination with the local BLM office.
    4. Juniper Dunes OHV/ATV Use Area
    (a) You must wear an industry approved safety helmet when operating 
a motorcycle or OHV/ATV on all BLM lands or lands leased by the BLM and 
roads within the Juniper Dunes area.
    (b) You must not carry a passenger when operating a motorcycle or 
ATV/OHV on BLM public lands unless the ATV/OHV is designed by the 
manufacturer to carry a passenger.
    (c) You must not operate a motorcycle or ATV/OHV without a safety 
flag while on BLM lands in the Juniper Dunes. All such vehicles must 
have a whip mast and a 6 inch x 12 inch red/orange safety flag. Flags 
may be of pennant, triangle, square, or rectangular shape. Safety flags 
must be attached within 10 inches of the tip of the whip mast with club 
or other flags mounted below the safety flag or on another whip. Masts 
must be a minimum of 6 feet in height/length or industry standard 
height/length.
    (d) You must not operate a motorcycle or ATV/OHV without a safety 
flag on the Peterson Road, Juniper Road, Smith Canyon Road, and 
Wilderness Road. Safety flags are not required for street-legal four 
wheeled passenger vehicles on those roads.
    (e) You must not race or drive recklessly or carelessly on Peterson 
Road, Juniper Road, Smith Canyon Road, or Wilderness Road.
    (f) You must not use wood pallets for any type of fire on BLM 
public lands or roads in the Juniper Dunes area.
    5. Administrative Sites
    (a) You must not enter or climb on any BLM buildings or structures, 
occupied or unoccupied, unless authorized.
    (b) You must not operate or park any motorized vehicle on any 
closed service road, any closed BLM residential road, or any area 
adjacent to BLM-owned building.
    (c) You must not stay or park overnight on the grounds of any BLM 
residential building, unless authorized.
    (d) You must not enter any closed BLM residential or work area, 
unless authorized.
    6. Conduct
    You must not give any false, fictitious or fraudulent report or 
other misleading information:
    (a) to a BLM officer investigating an accident or violation of law 
or regulation; (b) to or an authorized employee engaged in his/her 
official duties; or
    (c) on an application for a permit.

Penalties

    Any person who violates any of these supplementary rules, on public 
lands in grazing districts (see 43 U.S.C. 315a) or on public lands 
leased for grazing under 43 U.S.C. 315m, may be tried before a United 
States Magistrate and fined no more than $500.00. Such violations may 
also be subject to the enhanced fines provided for by 18 U.S.C. 3571.
    Any person who violates any of these supplementary rules, on public 
lands subject to a conservation and rehabilitation program implemented 
by the Secretary of the Interior under 16 U.S.C. 670g et seq. (Sikes 
Act), may be tried before a United States Magistrate and fined no more 
than $500.00 or imprisoned for no more than six months or both. Such 
violations may also be subject to the enhanced fines provided for by 18 
U.S.C. 3571.
    Under Section 303(a) of the Federal Land Policy and Management Act 
of 1976 (43 U.S.C. 1733(a)) and 43 CFR 8360-7, any person who violates 
any of these supplementary rules on public lands 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. Such violations may also be subject 
to the enhanced fines provided for by 18 U.S.C. 3571.

Edward W. Shepard,
State Director, Oregon/Washington.
[FR Doc. E9-22608 Filed 9-18-09; 8:45 am]
BILLING CODE 4310-33-P