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[Federal Register: May 17, 2010 (Volume 75, Number 94)]
[Rules and Regulations]
[Page 27452-27455]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17my10-19]

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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Part 8360

[LLWO25000--L12200000.PM000--241A.00]
RIN 1004-AD96

Visitor Services

AGENCY: Bureau of Land Management, Interior.

ACTION: Final rule.

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SUMMARY: The Bureau of Land Management (BLM) is amending its
regulations to remove the Land and Water Conservation Fund Act as one
of the authorities of its recreation regulations, in accordance with
the Federal Lands Recreation Enhancement Act of 2004 (REA). The final
rule amends and reorders the prohibitions to separate those that apply
specifically to campgrounds and picnic areas from those with more
general application. The reordering is necessary to broaden the scope
to include all areas where standard amenity, expanded amenity, and
special recreation permit fees are charged under REA. The final rule
also removes regulations that have been interpreted by the BLM Field
Offices to require the BLM to publish supplementary rules for each area
for failure to pay recreation fees, thus relieving the BLM from
publishing separate rules for each area. Finally, this rule makes
technical changes to maintain consistency with other BLM regulations.

DATES: This rule is effective on June 16, 2010.

ADDRESSES: Inquiries or suggestions should be delivered to U.S.
Department of the Interior, Director (630), Bureau of Land Management,
Mail Stop 401 LS, 1849 C St., NW., Attention: RIN: 1004-AD96,
Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: For information on the substance of
the rule, please contact Hal Hallett at (202) 912-7252 or Anthony Bobo
Jr. at (202) 912-7248. For information on procedural matters, please
contact Chandra Little at (202) 912-7403. Persons who use a
telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 1-800-877-8339 to contact the above
individuals during normal business hours. FIRS is available twenty-four
hours a day, seven days a week, to leave a message or question with
these individuals. You will receive a reply during normal business
hours.

SUPPLEMENTARY INFORMATION:

I. Background
II. Final Rule as Adopted and Response to Comments
III. Procedural Matters

I. Background

    The BLM is revising its fee management regulations, policies, and
procedures in accordance with the REA, 16 U.S.C. 6801 et seq., 43 CFR
part 2930 currently includes all recreation fee management regulations,
including the requirement that visitors pay fees before occupying a
campground or picnic area. The BLM is now amending 43 CFR part 8360 to
add regulatory changes made necessary by the REA, including the removal
of any language pertaining to recreation fees. In addition, the section
addressing the collection of fossils is modified to include common
plant fossils, reflecting long established BLM policies. The Omnibus
Public Land Management Act (OPLMA) became law on March 30, 2009, after
the publication of the proposed rule and includes provisions on
Paleontological Resources Preservation (PRP) (Title VI, Subtitle D
(Pub. L. 111-11, 123 Stat. 1172, 16 U.S.C. 470aaa et seq.)) The law
requires that the Secretary of the Interior develop regulations to
implement this subtitle. The OPLMA-PRP defines ``casual collecting'' as
``* * * the collecting of a reasonable amount of common invertebrate
and plant paleontological resources for non-commercial personal use,
either by surface collection or the use of non-powered hand tools
resulting in only negligible disturbance to the Earth's surface and
other resources.'' These regulations define terms as used in this
definition. However, the OPLMA-PRP does not change the BLM's basic
policy for allowing casual collecting of reasonable amounts of common
invertebrate and common plant fossils from public lands for personal
use without a permit, and therefore, the regulations at 43 CFR part
8360 do not conflict with the OPLMA-PRP.
    Other changes were made that group related regulations in the same
section to simplify language and clarify the intent, and to resolve
inconsistencies between the existing provisions.

II. Final Rule as Adopted and Response to Comments

    On October 3, 2008, the BLM published a proposed rule (73 FR 57564)
to implement REA with a 60-day public comment period that ended on
December 2, 2008. The BLM received four comments on the proposed rule.
These comments supported the proposed rule and suggested a few minor
revisions to make the regulations consistent with other BLM
regulations. The comments specifically addressed activities relating to
the recreational collection of rocks and paleontological resources on
BLM lands.

 Section 8360.0-3 Authority

    The final rule removes the Land and Water Conservation Fund Act
(LWCFA) (16 U.S.C. 4601-6a) as an authority for the regulations. The
enactment of the REA changed the BLM's authority to collect recreation
fees. Recreation fees that were previously authorized under the LWCFA
are now authorized under REA. The BLM's policies and procedures have
also been revised to reflect this new and revised authority. We
received no comment on this section and therefore the final rule
remains as proposed.

Section 8360.0-5 Definitions

    In paragraph (c), the proposed rule added the word ``recreation''
as a modifier to the term ``developed sites and areas'' in order to
clarify that the definition is specific to developed recreation sites
and areas. The same language is inserted elsewhere in this rule to
distinguish developed recreation sites and areas from other developed
sites and areas used for non-recreation purposes. We received no
comment on this section, thus the final rule remains as proposed.

Section 8365.1-5 Property and Resources

    We received three comments on this section that stated that
removing the term ``rocks'' from the current 43 CFR 8365.1-5(b)(2), as
proposed, would lead to uncertainty about the collecting of rocks as a
hobby without a permit on public lands. The commenters suggested that
we retain the term ``rocks'' consistent with the current regulations
and with the BLM's policy of allowing recreational collection of rocks
and minerals on public lands. The BLM stated in the preamble to the
proposed rule that the term ``rocks'' should be removed because it was
already covered in regulations at 43 CFR 8365.1-5(b)(4) which by
reference to 43 CFR subpart 3604 allows the recreational collection of
``common'' rocks without a permit. However, the regulations at 43 CFR
part 3600 do not address the recreational collection of rocks on public
lands without a permit. The Materials Act does not allow recreational
collection of rocks and payment is required. Section 8365.1-5(b) makes
an exception for the

[[Page 27453]]

recreational collection of rocks in reasonable quantities for personal
use under Section 302(a) and (b) of the Federal Land Policy and
Management Act. Because of this and to address the commenters' concern,
in the final rule the BLM did not remove the word ``rocks'' from
section 8365.1-5(b)(2).
    We received two comments on this section that asked that the final
rule show that the regulation applies to ``common plant fossils'' as
well as ``common invertebrate fossils.'' The commenters said that the
intent of this revision is to make clear the BLM's longstanding policy
to allow the recreational collection of ``common invertebrate fossils''
as well as ``common plant fossils.'' Adding ``common'' in front of
``plant'' clarifies the BLM's intent that only ``common plant fossils''
may be collected. The commenters also suggested that by specifically
mentioning fossil plants in the regulations, the BLM gives equal
regulatory weight to both types of fossils and more clearly states the
BLM's intent in a single place. We agree with the commenters and have
revised the final rule. Allowing the hobby collections of ``common
fossil plants'' would not cause a significant loss of paleontological
information since the public is currently allowed to collect common
plant fossils, and it would provide the public continued opportunities
to pursue this aspect of recreational collecting. In addition to
responding to the comment, this change will correct an oversight in
this provision and clarify what has been a long-standing BLM policy to
allow the recreational collecting of common invertebrate and common
plant fossils, not just common invertebrate fossils. This policy was
previously incorporated into BLM Handbook H-8270-1, ``General
Procedural Guidance for Paleontological Resources Management,'' which
provides that, subject to the provisions of 43 CFR subpart 8365, and
unless otherwise prohibited by land use plans or other authorities,
common invertebrate and common plant fossils may be collected in
reasonable amounts for noncommercial purposes without a permit.
Furthermore, this clarification is in agreement with the new law for
paleontological resources preservation (OPLMA-PRP), and will benefit
the public when casually collecting common invertebrate and common
plant fossils from public lands.
    Therefore, in the final rule we revised section 8365.1-5(b)(2) to
read as set forth in the regulatory text of this final rule.
    Two comments suggested the need to clarify the BLM's policy of
prohibiting the sale or barter not only between commercial fossil
dealers, but also to hobby collectors. This revision would clarify the
BLM's policy of prohibiting the sale of fossils. However, the new
paleontological resources preservation provision in (OPLMA-PRP) defines
``casual collecting'' as ``* * * the collecting of a reasonable amount
of common invertebrate and plant paleontological resources for non-
commercial personal use, either by surface collection or the use of
non-powered hand tools resulting in only negligible disturbance to the
Earth's surface and other resources.'' The BLM will propose regulations
in the near future that will implement the OPLMA-PRP and will define
the terms in that rulemaking. Therefore, the BLM does not believe that
it is necessary to provide clarifying language at this time.

Section 8365.2-3 Occupancy and Use

    The provisions in this section have been reordered to separate
those that apply specifically to campgrounds and picnic areas from
those that apply to all developed recreation sites and areas, including
campgrounds and picnic areas. The restructuring is in response to a
need to include all areas where standard amenity, expanded amenity, and
special recreation fees are authorized under the REA. This also brings
this section into compliance with 43 CFR part 2930, which was
previously rewritten in response to the REA.
    The rule also amends this section by removing as a prohibited act
the failure to pay fees. This prohibition is already included in 43 CFR
2933.33, so it is unnecessary in these regulations. As a result of this
rule change, it is also no longer necessary to include fee requirements
in supplementary rules issued under section 8365.1-6. We received no
comments on these revisions and therefore the final rule remains as
proposed.

III. Procedural Matters

Executive Order 12866, Regulatory Planning and Review

    These final regulations are not a significant regulatory action and
are not subject to review by Office of Management and Budget under
Executive Order 12866.
    (1) These final regulations 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.
    (2) These final regulations will not create a serious inconsistency
or otherwise interfere with an action taken or planned by another
agency.
    (3) These final regulations do not alter the budgetary effects of
entitlements, grants, user fees, or loan programs or the right or
obligations of their recipients.
    (4) These final regulations do not raise novel legal or policy
issues.
    The BLM policies and procedures have merely been amended to reflect
new statutory authority, and to remove inconsistencies in previous
language.

National Environmental Policy Act (NEPA)

    The BLM has determined that this final rule merely amends the
statutory authority of our recreation regulations from the LWCFA to the
REA. This final rule will bring the BLM's recreation regulations into
compliance with the REA. The final rule amends and reorders the
prohibitions to separate those that apply specifically to campgrounds
and picnic areas from those with more general application, but does not
change their effect. It clarifies that common plant fossils are
available to recreational collectors, without changing the BLM's
policy. This rule also resolves minor inconsistencies between existing
provisions. The BLM has analyzed this rule in accordance with the
National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et
seq., Council on Environmental Quality (CEQ) regulations, 40 CFR part
1500. The CEQ regulations, at 40 CFR 1508.4, define a ``categorical
exclusion'' as a category of actions that do not individually or
cumulatively have a significant effect on the human environment. The
regulations further direct each department to adopt NEPA procedures,
including categorical exclusions (40 CFR 1507.3). The BLM has
determined that this rule is categorically excluded from further
environmental analysis under NEPA in accordance with 43 CFR 46.210(i),
which categorically excludes ``[p]olicies, directives, regulations and
guidelines: that are an administrative, financial, legal, technical, or
procedural nature. * * *'' In addition, the BLM has determined that
none of the extraordinary circumstances listed in 43 CFR 46.215 applies
to this rule.

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

[[Page 27454]]

will have a significant economic impact, either detrimental or
beneficial, on a substantial number of small entities. The final rule
pertains to individuals and families recreating on the public lands and
not to small businesses or other small entities. Therefore, the BLM has
determined under the RFA that this final rule will not have a
significant economic impact on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This final rule is not a ``major rule'' as defined at 5 U.S.C.
804(2), the Small Business Regulatory Enforcement Fairness Act. That
is, it will not have an annual effect on the economy of $100 million or
more; it will not result in major cost or price increases for
consumers, industries, government agencies, or regions; and it will 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. The final rule
merely amends the regulations to change the statutory authority of the
BLM's recreation regulations from the LWCFA to the REA, makes technical
changes to bring our recreation regulations into compliance with the
REA, and makes them internally consistent. The rule also amends and
reorders the prohibitions to separate those that apply specifically to
campgrounds and picnic areas from those with more general application.

Unfunded Mandates Reform Act

    This final rule will not impose an unfunded mandate on state,
local, or Tribal governments or the private sector, in the aggregate,
of $100 million or more per year; nor does this rule have a significant
or unique effect on state, local, or Tribal governments. The rule
imposes no requirements on any of these entities. The BLM has already
shown, in the previous paragraphs of this section of the preamble, that
the change in this rule will not have effects approaching $100 million
per year on the private sector. 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)

    This final rule is not a government action capable of interfering
with constitutionally protected property rights. It merely updates the
regulations to reflect changes in authority for the BLM recreation
program covered by the regulations, and makes editorial changes as
discussed in this preamble. Therefore, the Department of the Interior
has determined that the rule will not cause a taking of private
property or require further discussion of takings implications under
this Executive Order.

Executive Order 13132, Federalism

    This final rule will 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
levels of government. It will not apply to states or local governments
or state or local governmental entities. Therefore, in accordance with
Executive Order 13132, the BLM has determined that this rule does not
have sufficient federalism implications to warrant preparation of a
Federalism Assessment.

Executive Order 12988, Civil Justice Reform

    Under Executive Order 12988, the BLM has determined that this final
rule will not unduly burden the judicial system and that it meets the
requirements of sections 3(a) and 3(b)(2) of the Order.

Executive Order 13175, Consultation and Coordination With Indian Tribal
Governments

    In accordance with Executive Order 13175, the BLM has found that
this rule does not include policies that have tribal implications. This
rule has no effect on Tribal lands, and it affects members of Tribes
only to the extent that they use public lands and facilities for
recreation. This rule will bring our recreation regulations into
compliance with the REA.

Information Quality Act

    In developing this final 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, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

    In accordance with Executive Order 13211, the BLM has determined
that this final rule will not have substantial direct effects on energy
supply, distribution, or use, including a shortfall in supply or price
increase. The rule has no bearing on energy development, but merely
changes the authority provisions for and rearranges certain prohibited
act provisions for recreational visitors on the public lands. This rule
should have no effect on the volume of visitation or on consumption of
energy supplies.

Executive Order 13352, Facilitation of Cooperative Conservation

    In accordance with Executive Order 13352, the BLM has determined
that this rule is administrative in nature and only reflects changes in
authority, and reorganizes and clarifies certain provisions. It does
not impede facilitating cooperative conservation. It does not affect
the interests of persons with ownership or other legally recognized
interests in land or other natural resources, improperly fail to
accommodate local participation in the Federal decision-making process,
or relate to the protection of public health and safety.

Paperwork Reduction Act

    These regulations 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.

Authors

    The principal authors of this rule are Hal Hallet and Anthony Bobo,
Jr. of the Recreation and Visitor Services Division, Washington Office,
BLM, assisted by Chandra Little of the Division of Regulatory Affairs,
Washington Office, BLM.

List of Subjects in 43 CFR Part 8360

    Penalties, Public lands, reporting and recordkeeping requirements,
and Wilderness areas.

0
For the reasons explained in the preamble, and under the authority of
43 U.S.C. 1740, amend chapter II, subtitle B of title 43 of the Code of
Federal Regulations as follows:

PART 8360--VISITOR SERVICES

0
1. Revise the authority citation for part 8360 to read as follows:

    Authority:  43 U.S.C. 1701 et seq., 43 U.S.C. 315a, 16 U.S.C.
1281c, 16 U.S.C. 670 et seq., and 16 U.S.C. 1241 et seq.

Subpart 8360--General

0
2. Revise Sec.  8360.0-3 to read as follows:

Sec.  8360.0-3  Authority.

    The regulations of this part are issued under the provisions of the
Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et
seq.), the Sikes Act (16 U.S.C. 670g), the Taylor Grazing

[[Page 27455]]

Act (43 U.S.C. 315a), the Wild and Scenic Rivers Act (16 U.S.C. 1281c),
the Act of September 18, 1960, as amended, (16 U.S.C. 877 et seq.), and
the National Trails System Act (16 U.S.C. 1241 et seq.).

0
3. Amend Sec.  8360.0-5 by revising paragraph (c) to read as follows:

Sec.  8360.0-5  Definitions.

* * * * *
    (c) Developed recreation sites and areas means sites and areas that
contain structures or capital improvements primarily used by the public
for recreation purposes. Such sites or areas may include such features
as: Delineated spaces for parking, camping or boat launching; sanitary
facilities; potable water; grills or fire rings; tables; or controlled
access.
* * * * *

Subpart 8365--Rules of Conduct

0
4. Revise Sec.  8365.1-5(b)(2) to read as follows:

Sec.  8365.1-5  Property and resources.

* * * * *
    (b) * * *
    (2) Nonrenewable resources such as rock and mineral specimens,
common invertebrate and common plant fossils, and semiprecious
gemstones;
* * * * *

0
5. Revise Sec.  8365.2-3 to read as follows:

Sec.  8365.2-3  Occupancy and use.

    In developed camping and picnicking areas, no person shall, unless
otherwise authorized:
    (a) Pitch any tent, park any trailer, erect any shelter or place
any other camping equipment in any area other than the place designed
for it within a designated campsite;
    (b) Leave personal property unattended for more than 24 hours in a
day use area, or 72 hours in other areas. Personal property left
unattended beyond such time limit is subject to disposition under the
Federal Property and Administration Services Act of 1949, as amended
(40 U.S.C. 484(m));
    (c) Build any fire except in a stove, grill, fireplace or ring
provided for such purpose;
    (d) Enter or remain in campgrounds closed during established night
periods except as an occupant or while visiting persons occupying the
campgrounds for camping purposes;
    (e) Occupy a site with more people than permitted within the
developed campsite; or.
    (f) Move any table, stove, barrier, litter receptacle or other
campground equipment.

Wilma A. Lewis,
Assistant Secretary, Land and Minerals Management.
[FR Doc. 2010-11612 Filed 5-14-10; 8:45 am]
BILLING CODE 4310-84-P
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