18338 Federal Register / Vol. 63, No. 72 /Wednesday, April 15, 1998 /Rules and Regulations

Dated: April 9, 1998.

James Jones,

Director, Registration Division, Office of

Pesticide Programs.

Therefore, 40 CFR chapter I is

amended as follows:

PART 180—[AMENDED]

1. The authority citation for part 180

continues to read as follows:

Authority : 21 U.S.C. 346a and 371.

2. In § 180.495, paragraphs (a) and (b)

are revised to read as follows:

§ 180.495 Spinosad; tolerances for

residues.

(a) General. Tolerances are

established for residues of the

insecticide Spinosad. Factor A is 2-[(6-

deoxy-2,3,4-tri-O-methyl-α-L-mannopyranosyl)oxy]-13-[[5-(dimethylamino)-

tetrahydro-6-methyl-2H-pyran-2-yl]oxy]-

9-ethyl2,3,3a,5a,5b,6,9,10,11,12,13,14,16a,6btetradecahydro-14-methyl-1H-asIndaceno[3,2-d]oxacyclododecin-7,15-

dione. Factor D is 2-[(6-deoxy-2,3,4-triO-methyl-α-L-manno-pyranosyl)oxy]-

13-[[5-(dimethylamino)-tetrahydri-6-

methyl-2H-pyran-2-yl]oxy]-9-ethyl2,3,3a,5a,5b,6,9,10,11,12,13,14,16a,16btetradecahydro-4,14-dimethyl-1H-asIndaceno[3,2-d]oxacyclododecin-7,15-

dione.

Commodity Parts per

million

Almonds .................................... 0.02

Almond hulls ............................. 2.0

Apples ....................................... 0.2

Apple pomace, wet ................... 0.5

Brassica (cole), leafy vegetables, greens subgroup .......... 10.0

Brassica (cole), leafy vegetables, head and stem subgroup ..................................... 2.0

Cattle, fat .................................. 0.6

Cattle, mbyp .............................. 0.2

Cattle, meat .............................. 0.04

Citrus fruits group ..................... 0.3

Citrus oil .................................... 3.0

Citrus pulp, dried ...................... 0.5

Cotton gin byproducts ............... 1.5

Cottonseed ................................ 0.02

Fruiting vegetables (except

cucurbits) group .................... 0.4

Goat, fat .................................... 0.6

Goat, mbyp ............................... 0.2

Goat, meat ................................ 0.04

Hogs, fat ................................... 0.6

Hogs, mbyp ............................... 0.2

Hogs, meat ............................... 0.04

Horses, fat ................................ 0.6

Horses, mbyp ............................ 0.2

Horses, meat ............................ 0.04

Leafy vegetables (except Brassica vegetables) group .......... 8.0

Commodity Parts per

million

Milk, fat ..................................... 0.5

Milk, whole ................................ 0.04

Sheep, fat ................................. 0.6

Sheep, mbyp ............................. 0.2

Sheep, meat ............................. 0.04

(b) Section 18 emergency exemptions.

[Reserved]

* * * * *

[FR Doc. 98–10023 Filed 4–14–98; 8:45 am]

BILLING CODE 6560–50–F

DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Part 4700

[NV–960–1060–00–24–1A]

RIN 1004–AD28

Wild Horse and Burro Adoptions;

Power of Attorney

AGENCY: Bureau of Land Management,

Interior.

ACTION: Final rule.

SUMMARY: The Bureau of Land

Management is amending its regulations

to prohibit anyone from adopting wild

horses and burros on behalf of another

person using a written authorization to

act as that person’s agent or attorney

(power of attorney). This action is

necessary to implement a portion of a

court-approved settlement agreement

between BLM and the Animal

Protection Institute of America, Inc. The

effect of this action is to eliminate the

potential for adopters to misuse the

power of attorney to obtain large

numbers of wild horses and burros for

commercial sale.

DATES: This rule is effective May 15,

1998.

FOR FURTHER INFORMATION CONTACT: Bud

Cribley, (202) 452–5073; or Lili Thomas,

(702) 785–6457.

SUPPLEMENTARY INFORMATION:

I. Background

II. Discussion of the Final Rule and Response

to Comments

III. Procedural Matters

I. Background

In 1971, Congress passed legislation

to protect, manage, and control wild

horses and burros on the public lands.

The Wild Free-Roaming Horses and

Burros Act (WHA) declared these

animals to be ‘‘living symbols of the

historic and pioneer spirit of the West.’’

Pub. L. 92–195, section 1, 85 Stat. 649

(1971) (current version at 16 U.S.C. 1331

(1994)). Congress further declared that

all wild free-roaming horses and burros

are under the jurisdiction of the

Secretary of the Interior for the purpose

of management and protection, and that

the Secretary shall manage them in a

manner that is designed to achieve and

maintain a thriving natural ecological

balance on the public lands. 16 U.S.C.

1333(a). Section 3(b) of the WHA

authorized the Secretary, where an area

is found to be overpopulated, to cause

additional excess wild free-roaming

horses and burros to be captured and

removed for private maintenance under

humane conditions and care. Congress

also authorized the Secretary to issue

such regulations as the Secretary deems

necessary to further the purposes of the

law. 16 U.S.C. 1336.

The WHA protected wild horses and

burros so well that within a few years

their numbers exceeded the carrying

capacity of the Western rangelands and

posed a threat to wildlife, livestock, and

the improvement of range conditions.

To correct this problem, in 1978,

Congress passed amendments to the

WHA as part of the Public Rangelands

Improvement Act. Pub. L. 95–514,

section 14, 92 Stat. 1803, 1808 (1978)

(current version at 16 U.S.C. 1333(b)–

(d)). The amendments sought to

facilitate humane adoption of excess

animals by allowing adopters to take

title to up to 4 animals per year after

having successfully cared for them for

one year. 16 U.S.C. 1333(c). Under the

amendments, individuals can adopt (but

not take title to) more than 4 animals

per year if the Secretary finds they can

humanely care for more than four. 16

U.S.C. 1333(b)(2)(B).

To carry out this mandate, the

Secretary, acting through BLM, issued

regulations governing, among other

things, the adoption process and who is

eligible to adopt animals removed from

the public lands. These regulations were

proposed in 1984 (49 FR 49252,

December 18, 1984) and adopted in

1986 (51 FR 7410, March 3, 1986). See

43 CFR part 4700 (1997). The 1986

regulations limited adoptions to four

animals per year per person, but also

allowed a person to adopt animals on

behalf of another person through the use

of a power of attorney. A power of

attorney is a written document that

authorizes one person to act as an agent

or attorney for another. Under the

existing regulations, one agent could get

powers of attorney from several people

and adopt more animals than any one

person is allowed to adopt.

As discussed in the proposed rule,

several investigations of adopters of
Federal Register / Vol. 63, No. 72 /Wednesday, April 15, 1998 /Rules and Regulations 18339

large numbers of animals through power

of attorney indicate that individuals

have obtained large numbers of animals

to sell them for profit. In some cases, the

investigations have found that adopted

animals have been held in substandard,

if not inhumane, conditions awaiting

transfer of title from BLM to the

adopters of record and subsequent sale

or slaughter. While BLM was working

on a proposal to address this potential

for abuse, the Animal Protection

Institute of America, Inc. (API) initiated

legal action concerning a number of

issues related to the adoption program.

As a result, BLM and API entered into

a settlement agreement in October 1997

that, among other things, requires BLM

to propose a regulation eliminating the

use of powers of attorney in the

adoption program.

On November 10, 1997, BLM

published a proposed rule in the

Federal Register that would have

revised existing paragraph 43 CFR

4750.3–3(b) to read, ‘‘The Bureau of

Land Management will not allow the

use of a power of attorney for the

adoption of wild horses and burros.’’ 62

FR 60467. The proposal would also

have deleted existing paragraph 43 CFR

4750.3–3(c) which outlined the

information that a person holding a

power of attorney and adopting more

than four animals had to provide. By

proposing to specifically disallow use of

power of attorney in paragraph (b), the

proposal rendered the information

requirements in paragraph (c)

superfluous. As discussed in the

proposed rule, the intent of these

changes was to eliminate the use of

power of attorney.

The 60-day comment period closed on

January 9, 1998. BLM received 12

comment letters and electronic mail

messages. Seven of the comments were

from representatives of animal-advocacy

organizations; the other five came from

individuals, one of whom identified

herself as an individual adopter. Ten of

the comments were supportive of the

proposal; two of these offered specific

changes to the proposed text. Two

comments, both from individuals,

disagreed with the proposal. See the

discussion of comments in the next

section.

II. Discussion of Final Rule and

Response to Comments

A. Legal Basis for the Final Rule

The Wild Free-Roaming Horses and

Burros Act, as amended, authorizes the

Secretary of the Interior to issue such

regulations as the Secretary deems

necessary to further the purposes of the

law. 16 U.S.C. 1336. The law also

provides that excess animals be

removed for private maintenance and

care (adoption) provided that the

Secretary can assure humane treatment

and care. 16 U.S.C. 1333(b)(2)(B). The

final rule adopted today is narrowly

focused on ensuring that adopted

animals receive humane treatment and

care. The use of power of attorney to

adopt large numbers of animals has

been shown in specific cases to result in

either mistreatment of the animals or

abuse of the adoption program for the

purpose of profiting from the sale of

adopted animals, or both. These

outcomes are clearly inconsistent with

the spirit and intent of the Wild FreeRoaming Horses and Burros Act, as

amended. To prevent these outcomes

from occurring again in the future, BLM

believes that its regulations should be

changed, and the final rule adopted

today is consistent with that position.

BLM is adopting changes to its

regulations that will prevent specific

results while avoiding, to the extent

possible and foreseeable, unintended

negative impacts on legitimate

individual adopters of wild horses and

burros. Based on BLM’s analysis of the

issues involved, taking into account the

purposes of the statutes and the

administrative record of this

rulemaking, including comments

received from the public, this final rule

is a proper and reasonable interpretation

of the Wild Free-Roaming Horses and

Burros Act.

B. General Comments

Ten commenters supported the

proposal because, in their view, it

would:

—Reduce abuse of animals after

adoption,

—Eliminate an opportunity for

monetary gain from adoptions,

—Prevent illegal profit from animals,

—Prevent adoption of large numbers of

animals for commercial gain,

—Reduce BLM’s costs for compliance

inspections,

—Remove the incentive to adopt for

commercial purposes,

—Prevent misuse of the program,

—Enable BLM to visit all adopters,

—Prevent the slaughter of animals, and

—Ensure successful adoptions.

BLM generally agrees with these

comments.

Two commenters disagreed with the

proposal. One did not state a reason for

her disagreement. The other asserted

that the proposal amounted to only a

trivial correction of the regulations and

proposed a number of changes to other

provisions of the existing regulations.

BLM does not agree that the proposal

was trivial. Elimination of the use of

power of attorney in the adoption

program is a significant change to

regulations that have been in place for

over a decade. As discussed above and

in the proposed rule, this change

eliminates a significant potential for

abuse of the program.

BLM has decided not to adopt the

other changes suggested by the

commenter at this time. Under the

Administrative Procedures Act, an

agency must publish notice of a

proposed rulemaking in the Federal

Register, including ‘‘either the terms or

substance of the proposed rule or a

description of the subjects and issues

involved.’’ 5 U.S.C. 553(b). The

November 10, 1997 proposal only

addressed the issue of use of power of

attorney in the adoption program. Thus,

the public did not have notice and

opportunity to comment on other

aspects of the program addressed by this

commenter, such as when BLM should

allow title to an animal to pass to an

adopter. The specific changes

recommended by the commenter pertain

to issues outside the scope of the

proposal. Therefore, it would not be

proper for BLM to adopt those changes

at this time. However, BLM has taken

the commenter’s recommendations

under advisement and may, in the

future, initiate a rulemaking that

addresses those issues.

C. Specific Comments

One commenter suggested that in

cases where a person would have to

travel a long distance to the site of an

adoption facility, it would be

convenient to allow that person to use

a power of attorney. The commenter

suggested limiting the potential for

abuse by allowing power of attorney ‘‘to

be used for one person for one horse (or

burro).’’ BLM has decided not to adopt

this suggestion because it would not

eliminate the potential for abuse.

Elimination of use of power of attorney

for adoption essentially limits qualified

adopters to those individuals who are

willing and able to travel to the

adoption location. Adopting a horse or

burro is a serious endeavor that entails

a significant commitment of time and

money. BLM does not believe that

having to travel to the adoption location

will be a hindrance to those who are

undertaking the larger commitment to

humane care and treatment.

One commenter suggested adding to

the proposal language that would

preclude, in addition to power of

attorney, ‘‘any other instrument or

writing authorizing another person to

act as an agent.’’ The intent of the

change is to clarify that no document in
18340 Federal Register / Vol. 63, No. 72 /Wednesday, April 15, 1998 /Rules and Regulations

which one person gives authority to

another to act as an agent, whether or

not it is styled ‘‘power of attorney,’’ will

be acceptable for purposes of adoption

of wild horses and burros. BLM has

decided to accept this clarification.

Consequently, the final rule provides

that, ‘‘[BLM] will not allow the use of

a power of attorney or any other

instrument or writing authorizing one

person to act as an agent for another in

the adoption of wild horses and burros.’’

III. Procedural Matters

National Environmental Policy Act

BLM has prepared an environmental

assessment (EA) and has found that this

final rule will not constitute a major

Federal action significantly affecting the

quality of the human environment

under section 102(2)(C) of the National

Environmental Policy Act of 1969, 42

U.S.C. 4332(2)(C). BLM has placed the

EA and the Finding of No Significant

Impact (FONSI) on file in the BLM

Administrative Record, Room 401, 1620

L Street, NW, Washington, D.C. To

obtain a copy, please contact one of the

individuals listed under FOR FURTHER

INFORMATION CONTACT.

Paperwork Reduction Act

This rule does not contain

information collection requirements that

the Office of Management and Budget

must approve under the Paperwork

Reduction Act, 44 U.S.C. 3501 et seq.

Regulatory Flexibility Act

Congress enacted The Regulatory

Flexibility Act of 1980, 5 U.S.C. 601 et

seq., to ensure that Government

regulations do not unnecessarily or

disproportionately burden small

entities. The RFA requires a regulatory

flexibility analysis if a rule would have

a significant economic impact, either

detrimental or beneficial, on a

substantial number of small entities.

This final rule is a technical change to

the wild horse and burro adoption

regulations to preclude use of power of

attorney for adoptions. The rule will

prevent some individuals from adopting

wild horses and burros if the

individuals are unable to travel to the

adoption location, select the animals for

adoption, and sign the private

maintenance and care agreement.

However, the power of attorney

adoption was used only 12 times in

1997. Therefore, BLM has determined

under the RFA that this final rule will

not have a significant economic impact

on a substantial number of small

entities.

Unfunded Mandates Reform Act

Revision of 43 CFR part 4700 will not

result in any unfunded mandate to

State, local, or tribal governments in the

aggregate, or to the private sector, of

$100 million or more in any one year.

Executive Order 12612

The final rule will not have a

substantial direct effect on the States, on

the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government. Therefore, in

accordance with Executive Order 12612,

BLM has determined that this final rule

does not have sufficient federalism

implications to warrant preparation of a

Federalism Assessment.

Executive Order 12630

The final rule does not represent a

government action capable of interfering

with constitutionally protected property

rights. Therefore, the Department of the

Interior has determined that the rule

would not cause a taking of private

property or require further discussion of

takings implications under this

Executive Order.

Executive Order 12866

According to the criteria listed in

section 3(f) of Executive Order 12866,

BLM has determined that the final rule

is not a significant regulatory action. As

such, the final rule is not subject to

Office of Management and Budget

review under section 6(a)(3) of the

order.

Executive Order 12988

The Department of the Interior has

determined that this rule meets the

applicable standards provided in

sections 3(a) and 3(b)(2) of Executive

Order 12988.

Author

The principal author of this final rule

is Patrick W. Boyd, Regulatory Affairs

Group, Bureau of Land Management,

1849 C Street, NW., Washington, DC

20240; Telephone: (202) 452–5030.

List of Subjects in 43 CFR Part 4700

Animal welfare, Horses, Penalties,

Public lands, Range management,

Reporting and recordkeeping

requirements, Wildlife.

Dated: April 8, 1998.

Sylvia V. Baca,

Deputy Assistant Secretary—Land and

Minerals Management.

Accordingly, BLM proposes to amend

43 CFR part 4700 as set forth below:

1. The authority citation for part 4700

continues to read as follows:

Authority: 16 U.S.C. 1331–1340; 18 U.S.C.

47; 43 U.S.C. 315 and 1740.

2. Amend § 4750.3–3 by revising

paragraph (b) to read as follows and by

removing paragraph (c):

§ 4750.3–3 Supporting information and

certification for private maintenance of

more than 4 wild horses or burros.

* * * * *

(b) The Bureau of Land Management

will not allow the use of a power of

attorney or any other instrument or

writing authorizing one person to act as

an agent for another in the adoption of

wild horses and burros.

[FR Doc. 98–10025 Filed 4–14–98; 8:45 am]

BILLING CODE 4310–84–P