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###### Department of the Interior

###### Bureau of Land Management 

          - 43 CFR Part 8360 
          - [WO-250-1220-PM-24 1A] 
          - RIN 1004-AD96 

# AGENCY:

Bureau of Land Management, Interior. 

# ACTION:

Proposed rule. 

# SUMMARY:

The Bureau of Land Management (BLM) proposes to amend its regulations to remove the Land and Water Conservation Fund Act (LWCFA) as one of the authorities of our Recreation regulations, in accordance with the Federal Lands Recreation Enhancement Act of 2004 (REA). The rule will also amend and reorder the prohibitions to separate those that apply specifically to campgrounds and picnic areas from those with more general applications. 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 proposed rule would remove an unnecessary provision that has been interpreted to require the BLM to publish supplementary rules concerning failure to pay fees established by the recreation regulations, thus relieving the BLM from publishing such separate specific supplementary rules for each area. Finally, it will make technical changes to maintain consistency with other BLM regulations. 

# DATES:

We will accept comments and suggestions on the proposed rule until December 2, 2008. The BLM will not necessarily consider any comments received after the above date in making its decision on the final rule. 

# ADDRESSES:

You may submit comments by any of the following methods listed below: 

*Mail:*                         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.                     

*Personal or messenger delivery:*                         1620 L Street, NW., Room 401, Washington, DC 20036.                     

*Federal eRulemaking Portal: www.regulations.gov.*

# FOR FURTHER INFORMATION CONTACT:

For information on the substance of the proposed rule, please contact Hal Hallett at (202) 452-7794 or Anthony Bobo Jr. at (202) 452-0333. For information on procedural matters, please contact Chandra Little at (202) 452-5030. 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 the above individuals. You will receive a reply during normal business hours. 

# SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures 

II. Background 

III. Discussion of Proposed Rule 

IV. Procedural Matters 

## I. Public Comment Procedures 

### Electronic Access and Filing Address 

                    You may view an electronic version of this proposed rule at the BLM's Internet home page at                     *www.blm.gov*                     or at                     *http://www.regulations.gov*. You may comment via the Internet to:                     *http://www.regulations.gov*. If you submit your comments electronically, please include your name and return address in your Internet message.                 

### Written Comments 

                    Confine written comments on the proposed rule to issues pertinent to the proposed rule and explain the reason for any recommended changes. Where possible, reference the specific section or paragraph of the proposal which you are addressing. The BLM need not consider or include in the Administrative Record for the final rule comments which it receives after the comment period close (see                     **DATES**                    ), or comments delivered to an address other than those listed above (see                     **ADDRESSES**                    ).                 

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying 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. 

### Reviewing Comments Submitted by Others 

                    Comments, including the names and street addresses, and other contact information, will be available for public review at the address listed under                     **ADDRESSES**                     during regular business hours (7:45 am to 4:15 pm), Monday through Friday, except holidays.                 

## II. Background 

                    The passage of the REA, 16 U.S.C. 6801*et seq.*, required the BLM to change its fee management regulations, policies, and procedures to bring them into compliance with this law. The BLM has already accomplished this by including in part 2930 all recreation fee management regulations including the requirement that visitors pay fees before occupying a campground or picnic area. The BLM is now amending part 8360 to complete the regulatory changes made necessary by the law, including removal of any language pertaining to recreation fees. In addition, the section dealing with the collection of fossils was modified to include common plant fossils, reflecting long established BLM policies. Other changes were made to group related regulations in the same section to simplify language and clarify the intent, and to resolve inconsistencies between existing provisions.                 

## III. Discussion of Proposed Rule 

### Section 8360.0-3 Authority 

                    The proposed rule removes the Land and Water Conservation Fund Act (LWCFA) (16 U.S.C. 460*l*                    -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 included under REA. The BLM's policies and procedures have also been revised to reflect this new and revised authority.                           ( print page 57565)    

### Section 8360.0-5 Definitions 

In paragraph (c), the proposed rule adds the word “recreation” as a modifier to 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 subpart to distinguish developed recreation sites and areas from other developed sites and areas used for non-recreation purposes. 

### Section 8365.1-5 Property and Resources 

In paragraph (b)(2), the proposed rule adds plant fossils to the list of resources that recreational visitors may collect for non-commercial purposes. This change will correct an oversight in this provision and clarify what has been a long-standing policy of the BLM to allow recreational collecting of common invertebrate and 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, invertebrate and plant fossils may be collected in reasonable amounts for non-commercial purposes without a permit. 

Also in paragraph (b)(2), the proposed rule removes rocks from the list because rocks are already included in and covered by “mineral materials” in paragraph (b)(4) of the same section. Otherwise, paragraphs (b)(2) and (b)(4) would remain in conflict concerning whether rocks can be collected by recreational visitors. This conflict has created problems in the past in the management of mineral materials. 

### 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 was 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 conformance with part 2930, which was previously rewritten in response to the REA. 

The proposed rule also amends this section by removing as a prohibited act failure to pay fees. This prohibition is already included in 43 CFR 2933.33, so it is unnecessary in these regulations. If the proposed rule is adopted, it will also no longer be necessary to include fee requirements in supplementary rules issued under section 8365.1-6. 

## IV. Procedural Matters 

### Executive Order 12866, Regulatory Planning and Review 

These proposed 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 proposed 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 proposed regulations will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. 

(3) These proposed 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 proposed 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 language. 

### Clarity of the Regulations 

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 regulations easier to understand, including answers to questions such as the following: 

1. Are the requirements in the proposed regulations clearly stated? 

2. Do the proposed regulations contain technical language or jargon that interferes with their clarity? 

3. Does the format of the proposed regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity? 

4. Would the regulations be easier to understand if they were divided into more (but shorter) sections? (A “section” appears in bold type and is preceded by the symbol “§” and a numbered heading, for example: § 8360.0-5 Definitions. 

                    5. Is the description of the proposed regulations in the                     **SUPPLEMENTARY INFORMATION**                     section of this preamble helpful in understanding the proposed regulations? How could this description be more helpful in making the proposed regulations easier to understand?                 

                    Please send any comments you have on the clarity of the regulations to the address specified in the                     **ADDRESSES**                     section.                 

### National Environmental Policy Act (NEPA) 

The BLM has determined that this proposed rule merely amends the statutory authority of our Recreation regulations from the LWCF to the REA. This proposed rule would bring our recreation regulations into compliance with the REA. The proposed 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 makes it clear that common plant fossils are available to recreational collectors without changing policy in that regard, and resolves minor inconsistencies between provisions. Therefore, it is categorically excluded from environmental review under Section 102(2)(C) of the National Environmental Policy Act, pursuant to 516 Departmental Manual (DM), Chapter 2, Appendix 1. In addition, the proposed rule does not meet any of the 10 criteria for exceptions to categorical exclusions listed in 516 DM, Chapter 2, Appendix 2. Pursuant to Council on Environmental Quality regulations (40 CFR 1508.4) and the environmental 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 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 (RFA) of 1980, 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. The proposed 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 proposed rule would not have a significant economic impact on a substantial number of small entities.                           ( print page 57566)    

### Small Business Regulatory Enforcement Fairness Act (SBREFA) 

This proposed 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 would not have an annual effect on the economy of $100 million or more; it would not result in major cost or price increases for consumers, industries, government agencies, or regions; and it would 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 proposed rule merely amends the regulations to change the statutory authority of the BLM's Recreation regulations from the LWCF to the REA, to make technical changes to bring our recreation regulations into compliance with the REA, and to make them internally consistent. The rule will also amend and reorder the prohibitions to separate those that apply specifically to campgrounds and picnic areas from those with more general application. 

### Unfunded Mandates Reform Act 

                    This proposed rule would 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 proposed rule have a significant or unique effect on state, local, or Tribal governments. The rule would impose no requirements on any of these entities. We have already shown, in the previous paragraphs of this section of the preamble, that the change proposed in this rule would 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 proposed 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 would not cause a taking of private property or require further discussion of takings implications under this Executive Order. 

### Executive Order 13132, Federalism 

This proposed 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 would 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 proposed rule does not have sufficient federalism implications to warrant preparation of a Federalism Assessment. 

### Executive Order 12988, Civil Justice Reform 

Under Executive Order 12988, we have determined that this proposed rule would 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, we have 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 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, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use 

In accordance with Executive Order 13211, the BLM has determined that this proposed 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 proposed 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, properly 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 of the Recreation and Visitor Services Division, Washington Office, BLM assisted by Chandra Little and Ted Hudson of the Regulatory Affairs Group, Washington Office, BLM. 

# List of Subjects in 43 CFR Part 8360

      - Penalties
      - Public lands
      - Reporting and recordkeeping requirements, and Wilderness areas

Dated: September 18, 2008.

C. Stephen Allred, 

Assistant Secretary of the Interior, Land and Minerals Management.

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

# PART 8360—VISITOR SERVICES 

1. The authority citation for part 8360 is revised 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.*, 16 U.S.C. 1241*et seq.*

# Subpart 8360—General 

2. Revise § 8360.0-3 to read as follows: 

§ 8360.0-3 

                            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 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.*).                                   ( print page 57567)    

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

§ 8360.0-5 

* * * * *

                            (c)                             *Developed recreation sites and areas*                             mean 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.                         

* * * * *

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

§ 8365.1-5 

* * * * *

(b) * * * 

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

* * * * *

5. Revise § 8365.2-3 to read as follows: 

§ 8365.2-3 

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. 

[FR Doc. E8-23258 Filed 10-2-08; 8:45 am] 

BILLING CODE 4310-84-P