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###### Department of the Interior

###### Bureau of Land Management

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

# AGENCY:

Bureau of Land Management, Interior.

# ACTION:

Proposed Supplementary Rules on Public Land in Oregon and Washington.

# 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:                         *ORWA_ Prop_Rule@blm.gov.*                         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:                     *ORWA_Prop_Rule@blm.gov.*                     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                           ( print 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                           ( print 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:                          ( print 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