01-28768. Notice of Interim Final Supplementary Rules on BLM Administered Public Lands Within the Imperial Sand Dunes Recreation Area

AGENCY:

Bureau of Land Management, El Centro Field Office, California Desert District, California State Office, Interior.

ACTION:

Interim final supplementary rules for BLM-administered public lands within the Imperial Sand Dunes Recreation Area, Imperial County, California.

SUMMARY:

The Bureau of Land Management's El Centro Field Office (BLM) is publishing interim final supplementary rules. These supplementary rules will apply to the Public Lands within the Imperial San Dunes Recreation Area.

The interim final supplementary rules promulgated in this notice include prohibitions of three specific activities and types of activities:

1. Public nudity on Public Lands within the Imperial Sand Dune Recreation Area.

2. Unauthorized organized activities, including musical events and band concerts, shows, organized parties.

3. Riding in open truckbeds or other situations where there are no proper means of securing passengers.

These supplementary rules are necessary for the protection of the public health and safety, and of the public lands and their resources.

DATES:

The interim final supplementary rules will be effective on November 19, 2001, and will remain in effect until publication of final supplementary rules. We will accept comments and publish final supplementary rules that respond to comments. Public comments will be accepted until December 19, 2001. In developing final supplementary rules, BLM may not consider comments postmarked or received in person or by electronic mail after this date.

ADDRESSES:

You may hand-deliver comments on the interim final supplementary rules to the originating office; Bureau of Land Management, El Centro Field Office Manager, 1661 South 4th Street, El Centro, CA, 92243 or mail comments to the same address. You may also comment via the Internet to: [e-mail].

FOR FURTHER INFORMATION CONTACT:

Greg Thomsen, El Centro Field Office Manager, 1661 South 4th Street, El Centro, CA, 92243, or telephone [phone].

SUPPLEMENTARY INFORMATION:

Public Comment Procedures

Your comments on the interim final supplementary rules should be specific, should be confined to issues pertinent to the interim final supplementary rules, and should explain the reason for any recommended change. Where possible, your comments should reference the specific section or paragraph of the proposal that you are addressing. BLM may not necessarily consider or include in the Administrative Record for the final supplementary rules comments that BLM receives after the close of the comment period (see DATES) or comments delivered to an address other than those listed above (see ADDRESSES).

BLM will make your comments, including your name and address, available for public review at the El Centro Field Office of BLM address listed in ADDRESSES above during regular business hours (7:45 a.m. to 4:30 p.m., Monday through Friday, except Federal holidays).

Under certain conditions, BLM can keep your personal information confidential. You must prominently state your request for confidentiality at the beginning of your comment. BLM will consider withholding your name, street address, and other identifying information on a case-by-case basis to the extent allowed by law. BLM will make available to the public all submissions from organizations and businesses and from individuals identifying themselves as representatives or officials of organizations or businesses.

II. Background

The Imperial Sand Dunes, sometimes called the Algodones Dunes, are the largest mass of sand dunes in California. The dune system extends for more than 40 miles along the eastern edge of the Imperial Valley in southeastern Imperial County, California. The Imperial Sand Dunes encompass the most intensively visited recreational area in the California Desert Conservation Area. The area is a popular destination for a variety of recreational activities, with primary focus on the operation of Off Highway Vehicles (OHV) and camping.

For the past 30 years, the Imperial Sand Dunes has been the premiere OHV recreation area in California. Over the past few years, BLM staff have witnessed a significant increase in visitation because of the area's close proximity to the metropolitan areas of southern California and Arizona. The population growth of both southern California and Arizona has been a significant factor in this increased visitation at the ISDRA. Increased visitation is also due in part to the increase in sales of all-terrain vehicles and dune buggies.

In Fiscal Year 2001, annual visitation at the ISDRA was estimated at about 700,000 visitors. Visitation is highest between October and May when the area receives thousands of OHV recreationists due to the warm winter temperatures of the California Desert. BLM estimates that visitation is sometimes greater than 70,000 visitors on weekends, especially major holiday weekends. During the high-use season, visits usually average two to four days, and the area is utilized both day and night by OHV recreationists.

In recent years, a relatively small population of the dune recreationists have engaged in a series of activities that seriously threaten public health and safety for visitors to the ISDRA, volunteer staff, park rangers, and BLM law enforcement officers. Specifically, there have been frequent complaints from visitors about drug and alcohol abuse, and associated lawless and unruly behavior by some visitors, especially at night. In the past, these abuses have culminated in assaults, fights, and general increase in lawless behavior, especially by groups and individuals not associated with the historic OHV recreation at the ISDRA.

BLM has been aggressively taking actions that are aimed at addressing the lawlessness in order to maintain a safe environment for the thousands of legitimate recreational visitors at the ISDRA. The proposed three supplemental rules will provide BLM law enforcement officers proactive tools to address significant law enforcement issues at the ISDRA.

III. Discussion of the Supplementary Rules

These supplementary rules will apply to the public lands within the Imperial Sand Dunes Recreation Area (ISDRA), managed by the Bureau of Land Management. BLM has determined these supplementary rules necessary for the protection of persons, property, and public lands and resources. Our objective is to provide a quality recreational experience to the general public, with minimal conflicts among users, and to prevent degradation of the public lands and resources. To accomplish this objective, we are promulgating these supplementary rules, which are directed to enable early proactive response to public activities which can lead to unruly group behavior. The goal is a reduction of these types of activities that threaten public safety to other visitors and staff of the ISDRA. The supplementary rules are not directed at the vast majority of the visitors who are attempting to pursue lawful and legitimate activities on the public lands.

The supplementary rules cover activities that seem to be at the core of many disturbances in the past. Summarized, the supplementary rules include the following three prohibitions:

1. Prohibition of public nudity on Public Lands within the Imperial Sand Dune Recreation Area.

2. Prohibition of unauthorized use or organized activities, including musical events and band concerts, shows, organized parties.

3. Prohibition of riding in open truckbeds or other situations where there are no proper means of securing passengers.

The public has demonstrated intense interest, over several decades, in many issues involved with management of ISDRA. This interest has been manifested over the last several years, in an increasingly collaborative approach to solving management issues in cooperation with the public. There is strong support for increased law enforcement at ISDRA, and timely implementation of these regulations is a critical step in meeting the public expectations to provide for health and safety among recreational users.

BLM finds good cause to publish these supplementary rules effective the date of publication, without prior notice and opportunity for public comment. Historically, weekends during the fall and winter season are the busiest periods, particularly holiday weekends, with the busiest such weekend being the Thanksgiving Day weekend. The situation has escalated over the past several years, with activities during the 1999 Thanksgiving Day weekend almost leading to a full scale riot, with members of the public and Federal and state law enforcement officers put at serious risk. It is essential that these interim final supplementary rules be in place by Thanksgiving 2001. These rules have been in development as an aftermath to the investigation of the 1999 Thanksgiving Day disturbances at ISDRA.

IV. Procedural Matters

Executive Order 12866, Regulatory Planning and Review

These supplementary rules are not a significant regulatory action and are not subject to review by Office of Management and Budget under Executive Order 12866. These supplementary rules will not have an effect of $100 million or more on the economy. They are not intended to affect commercial activity, but rather the safety of people and natural resources on certain public lands. 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. These interim final supplementary rules will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. The 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. While the supplementary rules are directed in part at exercises of First Amendment rights of public expression, and therefore are subject to careful scrutiny, there are ample precedents at all levels of government for requiring permits for concerts, parades, and other similar gatherings and activities.

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 interim final supplementary rules easier to understand, including answers to questions such as the following:

(1) Are the requirements in the interim final supplementary rules clearly stated?

(2) Do the interim final supplementary rules contain technical language or jargon that interferes with their clarity?

(3) Does the format of the interim final supplementary rules (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?

(4) Would the supplementary rules be easier to understand if they were divided into more (but shorter) sections? (A “section” appears in bold type and is preceded by the abbreviation “Sec.” and a numbered heading, for example, “Sec. 2 Under what authorities does BLM promulgate these Supplementary Rules?”)

(5) Is the description of the interim final supplementary rules in the SUPPLEMENTARY INFORMATION section of this preamble helpful in understanding the interim final supplementary rules? How could this description be more helpful in making the 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.

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. The supplementary rules do not pertain specifically to commercial or governmental entities of any size. Therefore, BLM has determined under the RFA that these interim final supplementary rules would not have a significant economic impact on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

These supplementary rules do not constitute a “major rule” as defined at 5 U.S.C. 804(2). Again, the supplementary rules pertain only to public and private organizations, groups, and individuals who wish to stage musical performances and to recreate on the public lands and facilities of the Imperial Sand Dunes Recreation Area. In this respect, the regulation of these activities is limited to that necessary to protect the public lands and facilities and those, including small business concessioners and outfitters, who use them. The supplementary rules have no significant effect on business—commercial or industrial—use of the public lands, other than the requirement to secure an advance permit. Promoters of impromptu unpermitted concerts, competitive and similar events, and video producers, that would be proscribed by these supplementary rules would have to obtain permits under BLM's recreation permit regulations or general permit regulations, incurring the costs applicable under those regulations.

Unfunded Mandates Reform Act

These 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 interim final supplementary rules have a significant or unique effect on state, local, or tribal governments or the private sector. The supplementary rules do not require anything of state, local, or tribal governments. Therefore, 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 supplementary rules do not represent a government action capable of interfering with constitutionally protected property rights. The supplementary rules provide that certain property may be seized and held as evidence, but only as part of a due process procedure under the Fourth Amendment. Therefore, the Department of the Interior has determined that the supplementary rules would not cause a taking of private property or require further discussion of takings implications under this Executive Order.

Executive Order 13132, Federalism

The supplementary rules 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. The supplementary rules affect land in only one state, California, and do not address jurisdictional issues involving the State government. Therefore, in accordance with Executive Order 13132, BLM has determined that these interim final supplementary rules do not have sufficient Federalism implications to warrant preparation of a Federalism Assessment.

Executive Order 12988, Civil Justice Reform

Under Executive Order 12988, the Office of the Solicitor has determined that these interim final supplementary rules 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 final rule does not include policies that have tribal implications. The rules affect only recreationists on public land in one National Recreation Area in California, and prohibit certain activities and regulate others. These activities, while Indians may participate in them, are not activities peculiar to Indians or Indian tribes.

Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (E.O. 13211)

This rule is not a significant energy action. It will not have an adverse effect on energy supplies. The rule applies only to recreation-related activities on public lands in a recreation area in California.

Paperwork Reduction Act

These 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.

Author

The principal authors of these supplementary rules are Gregory Thomsen, El Centro Field Office Manager, CA, and James Keeler, National Off-highway Vehicle Coordinator, Washington DC Office, assisted by Mark Conley, Outdoor Recreation Planner, of the California State Office, and Ted Hudson of the Regulatory Affairs Group, Washington Office.

For the reasons stated in the Preamble, and under the authority of 43 CFR 8365.1-6, the California State Director, Bureau of Land Management, issues supplementary rules for the Imperial Sand Dunes Recreation Area, to read as follows:

Dated: November 6, 2001.

Mike Pool,

State Director.

Supplementary Rules for Imperial Sand Dunes Recreation Area

Sec.

1 Why is BLM promulgating these Supplementary Rules?

2 Under what authorities does BLM promulgate these Supplementary Rules?

3 Definitions.

4 To what lands do these supplementary rules apply?

5 Prohibited acts.

6 What are the penalties for violations of these rules?

Sec. 1 Why is BLM promulgating these supplementary rules?

These supplementary rules are necessary to protect natural resources and the public health and safety on public lands at the Imperial Sand Dunes Recreation Area.

Sec. 2 Under what authority does BLM promulgate these supplementary rules?

43 CFR 8365.1-6, issued under section 303 of the Federal Land Policy and Management Act (43 U.S.C. 1733), authorizes BLM State Directors to issue supplementary rules that may provide for the protection of persons, property, and public lands and resources.

Sec. 3 Definitions.

As used in these supplementary rules the term:

“Unauthorized organized activity” means the staging or playing of videos or movies, playing of recorded music through a public address system or a live band or exhibition, to or before an assembly or audience consisting of at least 20 people or spectators in any public place or in any place exposed to public view, regardless of profit, without a land use or special recreation permit.

“Land use permit” means a permit issued under the authority of 43 CFR 2920.1-1 by BLM Field Offices.

“Special Recreation Permit” means a permit issued under the authority of 43 CFR 8372.1 by BLM Field Offices.

“Public nudity” means being nude in any place where a person may be observed by another person. Any person is nude if the person has failed to cover the rectal area, pubic area, or genitals. A female person is also nude if she has failed to cover both breasts below a point immediately above the top of the areola. Each such covering must be fully opaque.

“Stage” means to organize and present an event or performance for public viewing.

Sec. 4 To what lands do these supplementary rules apply?

BLM will enforce the following rules on the public lands within the Imperial Sand Dunes Recreation Area, Imperial County, California.

Sec. 5 Prohibited acts.

a. Public nudity. Within the Imperial Sand Dunes Recreation Area, you may not engage in public nudity in any public place, in any place exposed to public view, or any place open to the public.

b. Unauthorized organized activities.

1. You may not stage, carry out, participate in, or sponsor an unauthorized organized event on public lands within the Imperial Sand Dunes Recreation Area.

2. BLM may seize, store as evidence, and properly dispose of any vehicles or equipment used in unauthorized organized activities under paragraph b.1. of this section.

c. Riding in pickup beds and other unsafe activities. 1. You may not transport any person in or on the back of a pickup truck or a flatbed motortruck on or off a highway.

2. You may not ride in or on the back of a pickup truck or flatbed motortruck being driven on or off a highway.

3. You may not carry passengers on or off highway in or on any part of a motor vehicle not designed for passengers.

4. You may not ride as a passenger on or off highway in or on any part of a motor vehicle not designed for passengers.

Sec. 6 What are the penalties for violations of these rules?

Under the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1733(a)), if you knowingly and willfully violate or fail to comply with any of the supplementary rules provided in this notice, you may be subject to a fine under 18 U.S.C. 3571 or other penalties in accordance with 43 U.S.C. 1733.