05-23113. Permits for Recreation on Public Lands

AGENCY:

Bureau of Land Management, Interior.

ACTION:

Proposed rule.

SUMMARY:

This proposed rule would update the regulations of the Bureau of Land Management (BLM) that tell how to obtain recreation permits for commercial recreational operations, competitive events and activities, organized group activities and events, and individual recreational use of special areas.

The proposed rule is needed to remove from the regulations inconsistencies with the Federal Lands Recreation Enhancement Act (REA), which authorizes the Secretaries of the Interior and Agriculture to establish, modify, charge, and collect recreation fees at Federal recreation lands and waters for the next 10 years.

DATES:

You should submit your comments by January 23, 2006. BLM will not necessarily consider comments postmarked or received by messenger or electronic mail after the above date in the decisionmaking process on the proposed rule.

ADDRESSES:

 

Mail: Director (630), Bureau of Land Management, Administrative Record, Room 401-LS, Eastern States Office, 7450 Boston Boulevard, Springfield, Virginia 22153.

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

Federal eRulemaking Portal: http://www.regulations.gov.

Internet e-mail: [e-mail]. (Include “Attn: AD68”).

FOR FURTHER INFORMATION CONTACT:

Lee Larson at [phone] as to the substance of the proposed rule, or Ted Hudson at [phone] as to procedural matters. Persons who use a telecommunications device for the deaf (TDD) may contact either individual by calling the Federal Information Relay Service (FIRS) at [phone], 24 hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures

II. Background

III. Discussion of Proposed Rule

IV. Procedural Matters

I. Public Comment Procedures

A. How do I comment on the proposed rule?

If you wish to comment, you may submit your comments by any one of several methods.

• You may mail comments to Director (630), Bureau of Land Management, Administrative Record, Room 401 LS, Eastern States Office, 7450 Boston Boulevard, Springfield, Virginia 22153.
• You may deliver comments to Room 401, 1620 L Street, NW., Washington, DC 20036.
• You may comment on the rule at the Federal eRulemaking Portal: http://www.regulations.gov.
• You may also comment via e-mail to: [e-mail].

Please make your comments on the proposed rule as specific as possible, confine them to issues pertinent to the proposed rule, and explain the reason for any changes you recommend. 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 rule 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).

B. May I review comments submitted by others?

Comments, including names and street addresses of respondents, will be available for public review at the address listed under “ADDRESSES: Personal or messenger delivery” during regular business hours (7:45 a.m. to 4:15 p.m.), Monday through Friday, except holidays.

Individual respondents may request confidentiality, which we will honor to the extent allowable by law. If you wish to withhold your name or address, except for the city or town, you must state this prominently at the beginning of your comment. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

II. Background

The REA was passed in the 2005 Omnibus Appropriations bill signed into law on December 8, 2004. The Act provides authority for 10 years for the Secretaries of the Interior and Agriculture to establish, modify, charge, and collect recreation fees for use of some Federal recreation lands and waters.

Section 13 of REA repealed certain admission and use fee authorities, including Section 4(a) through (i) of the Land and Water Conservation Fund Act of 1965 (16 U.S.C. 460 l-6a et seq.), and Section 315 of the Department of the Interior and Related Agencies Appropriations Act, 1996 (as contained in section 101(c) of Public Law 104-134; 16 U.S.C. 460 l-6a). The latter provision authorized the Recreational Fee Demonstration Program, which BLM has used to fund many of our recreation sites. Because these authorities have been repealed, we need to amend BLM's recreation permit regulations to remove references to them.

Under REA, BLM will—

• Reinvest a majority of fees back to the site of collection to enhance visitor services and reduce the backlog of maintenance needs for recreation facilities (including trail maintenance, toilet facilities, boat ramps, hunting blinds, interpretive signs and programs);
• Participate in an interagency fee program that reduces the number of national passes from four to one allowing visitors access to all Federal recreation lands and sites;
• Provide more opportunities for public involvement in BLM's determination of recreation fee sites and fees; and
• Provide for cooperation with gateway communities through fee management agreements for visitor and recreation services, emergency medical services, and law enforcement services.

BLM does not and will not charge a fee for many recreation activities and sites on public lands. The REA includes additional provisions that build on BLM's past experiences in the recreation fee program and improve the fee program by clarifying the circumstances in which fees may be charged. Under the Act, BLM will not charge standard or expanded amenity recreation fees for—

• General access to BLM areas;
• Horseback riding, walking through, driving through, or boating through public lands where no facilities or services are used;
• Access to overlooks or scenic pullouts;
• Undesignated parking areas where no facilities are provided; or
• Picnicking along roads or trails.

In addition, individuals under 16 will not be charged an entrance or standard amenity fee.

Under the REA, BLM will form and use Recreation Resource Advisory Committees for BLM sites and areas, or in lieu of a Recreation Resource Advisory Committee, may use a Resource Advisory Committee under another provision of law, to give communities additional opportunities to provide input on the establishment of a specific recreation fee site or the implementation of a fee, and will provide other opportunities for notice and public participation before establishing a new fee. We will also keep the visiting public informed on how we are using fee revenues to improve visitor facilities and services.

III. Discussion of Proposed Rule

The proposed rule makes changes in the existing regulations on permits for recreation on public lands in order to bring them into conformance with the law, including the REA. This section of the preamble describes the changes made in each section of the regulations.

Section 2931.3 What are the authorities for these regulations?

The proposed rule would amend this section to remove references to the repealed authority, portions of the Land and Water Conservation Fund Act, 16 U.S.C. 460 l-6a, and add reference to the REA. It explains that the REA authorizes BLM to collect fees for recreational use of certain kinds of areas, and to issue special recreation permits for group activities, such as commercial outings, and recreation events, such as races or traditional assemblies. The rule also clarifies the authority contained in Section 303 of the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. 1733. It also restates the functions of 18 U.S.C. 3571 and 3581 et seq., that they establish penalties of fines and imprisonment for violation of regulations. Finally, in this section, the rule removes paragraph (b) discussing 36 CFR part 71, because the regulations there are outdated.

Section 2932.57 Prohibited acts and penalties.

In this section, which covers prohibited acts and penalties related to special recreation permits, the proposed rule would amend paragraph (b)(3) by removing reference to the Land and Water Conservation Fund Act and adding the REA in its place.

Section 12(d) of the REA establishes limits on penalties for failure to pay recreation fees established under the Act. It provides for such failures to be punishable as Class A or Class B misdemeanors, but limits fines for a first offense to $100. (Under 18 U.S.C. 3571 and 3581, a Class A misdemeanor is subject to a penalty of not more than $100,000 for an individual ($200,000 for an organization) or one year in jail. A Class B misdemeanor is subject to a fine of not more than $5,000 for an individual ($10,000 for an organization) or six months in jail.) We have also revised paragraph (b) of section 2932.57 to reflect this provision of the REA.

Section 2933.33 Prohibited acts and penalties.

The proposed rule would amend this section, which states prohibitions and imposes penalties related to recreation use permits, by removing references to the Land and Water Conservation Fund Act, and substituting REA, where appropriate. To conform the prohibited acts in paragraph (a) of the section with the table of penalties in paragraph (d), we have added a provision to paragraph (a) requiring compliance with recreation use permit stipulations and conditions. The proposed rule would also remove unnecessary internal cross-references in this section, and correct inaccurate legal citations.

IV. Procedural Matters

Regulatory Planning and Review (E.O. 12866)

This document is not a significant rule and was not subject to review by the Office of Management and Budget under Executive Order 12866.

(1) This rule will not have an effect of $100 million or more on the economy. It 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) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. The rule implements a new statute that affects all land managing agencies. The other agencies are cooperating with BLM in developing general guidelines for implementing the statute.

(3) This rule does not alter the budgetary effects or entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. It maintains current policies on user fees.

(4) This rule does not raise novel legal or policy issues. It cites new statutory authority that does not have substantially different effects on the program or the public.

During fiscal year 2004, BLM issued just over 109,000 Special Recreation Permits of all kinds, with revenues totaling a little over $8 million deposited into the Land and Water Conservation Fund (LWCF), the Fee Demonstration Project, and other miscellaneous accounts. These numbers are derived from the Public Land Statistics, and represent an increase of slightly more than fivefold since 1996. On the other hand, according to the American Recreation Coalition, Americans spent more than $108 billion on wildlife-related recreation (fishing, hunting, birdwatching, and so forth) alone. We give these numbers to illustrate that the fees charged under BLM's recreation program are minuscule compared with those realized by the overall national recreation industry. Special Recreation Permits are generally obtained by commercial outfitters and guides, river running companies, sponsors of competitive events, “snow bird” seasonal mobile home campers who use BLM's long-term visitor areas, and private individuals and groups using certain special areas. Under current regulations, use fees are established by the BLM Director, who may adjust them from time to time to reflect changes in costs and the market, and published periodically in the Federal Register. BLM may charge actual costs, subject to certain limitations. During fiscal year 2004, BLM issued just over 655,000 Recreation Use Permits for use of fee sites, with revenues totaling a little over $5,200,000. We state these figures to give some idea of the scope of the BLM recreation program in economic terms, and to show that the revenues from the program do not approach $100 million annually. The REA makes changes in the authorities for BLM's recreation fees, but Section 3 of the Act does not change the policy for setting those fees: “The amount of the recreation fee shall be commensurate with the benefits and services provided to the visitor,” and “[t]he Secretary shall consider comparable fees charged elsewhere and by other public agencies and by nearby private sector operators.” Thus, it is clear that the changes in the proposed rule will not have economic effects exceeding $100 million annually.

Regulatory Flexibility Act

The Department of the Interior certifies that this proposed rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). BLM recognizes that most commercial recreation enterprises—outfitters, guides, river-running companies, local retail outlets—are small businesses, and that over 5,000 of them annually hold BLM commercial or competitive permits. Nevertheless, this proposed rule does not change permit fees, but rather updates the regulations to reflect changes in authorities for the fees and changes their allocation. Penalties for non-payment of fees would not affect outfitters, event organizers, and other commercial permittees, who must pay the fees before receiving permits.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

• Does not have an annual effect on the economy of $100 million or more. See the discussion under Regulatory Planning and Review, above.
• Will not cause a major increase in costs or prices for consumers, individual industries, Federal, state, or local government agencies, or geographic regions. The rule will have no effect on the 3 percent basic use fee that BLM s fee schedule (set by the 1984 policy, not regulations) requires outfitters to pay.
• Does 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 changes in the regulations required by enactment of the REA will not lead to increases in user fees or any other cost factors that would impel recreationists to travel to comparable foreign recreation destinations.

Unfunded Mandates Reform Act

This rule does not impose an unfunded mandate on state, local, or Tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on state, local, or Tribal governments or the private sector. The rule has no effect on governmental or Tribal entities. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

Takings (E.O. 12630)

In accordance with Executive Order 12630, BLM finds that the rule does not have significant takings implications. The proposed rule does not provide for forfeiture or derogation of private property rights. It merely updates the regulations to reflect changes in statutory authorities for the BLM recreation program covered by the regulations. A takings implications assessment is not required.

Federalism (E.O. 13132)

In accordance with Executive Order 13132, BLM finds that the rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. The rule does not have substantial direct effects 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 rule does not preempt state law.

Civil Justice Reform (E.O. 12988)

In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and 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 rule has no effect on Tribal lands, and affect member of Tribes only to the extent that they use public lands and facilities for recreation. The rule merely updates the regulations to reflect changes in statutory authorities.

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

This rule is not a significant energy action. It will not have an adverse effect on energy supplies. The rule does not limit land use by energy companies. It applies only to permits for recreational use of public lands, how BLM collects revenues and applies them to the program.

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.

National Environmental Policy Act

BLM has determined that this proposed rule updating the recreation permit regulations to recognize and reflect changes in statutory authorities governing the payment and allocation of permit fees and the penalties for nonpayment is a regulation of an administrative, financial, legal, and procedural nature. 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. Therefore, a detailed statement under the National Environmental Policy Act of 1969 is not required.

Author

The principal author of this proposed rule is Lee Larson of the Recreation Group, Washington Office, BLM, assisted by Ted Hudson of the Regulatory Affairs Group, Washington Office, BLM.

List of Subjects in 43 CFR Part 2930

• Penalties; Public lands; Recreation and recreation areas; Reporting and recordkeeping requirements; Surety bonds

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:

Dated: October 24, 2005.

Chad Calvert,

Acting Assistant Secretary of the Interior, Land and Minerals Management.

PART 2930—PERMITS FOR RECREATION ON PUBLIC LANDS

1. The authority citation for part 2930 is revised to read as follows:

Authority: 43 U.S.C. 1740; 16 U.S.C. 6802.

Subpart 2931—Permits for Recreation; General

2. Revise section 2931.3 to read as follows:

§ 2931.3

What are the authorities for these regulations?

The statutory authorities underlying the regulations in this part are the Federal Land Policy and Management Act, 43 U.S.C. 1701 et seq., and the Federal Land Recreation Enhancement Act, 16 U.S.C. 6801 et seq.

(a) The Federal Land Policy and Management Act (FLPMA) contains the Bureau of Land Management's (BLM's) general land use management authority over the public lands, and establishes outdoor recreation as one of the principal uses of those lands (43 U.S.C. 1701(a)(8)). Section 302(b) of FLPMA directs the Secretary of the Interior to regulate through permits or other instruments the use of the public lands, which includes commercial recreation use. Section 303 of FLPMA authorizes BLM to promulgate and enforce regulations, and establishes the penalties for violations of the regulations.

(b) The Federal Land Recreation Enhancement Act (REA) authorizes BLM to collect fees for recreational use in areas meeting certain criteria (16 U.S.C. 6802(f) and (g)(2)), and to issue special recreation permits for group activities and recreation events (16 U.S.C. 6802(h).

(c) 18 U.S.C. 3571 and 3581 et seq. establish sentences of fines and imprisonment for violation of regulations.

Subpart 2932—Special Recreation Permits for Commercial Use, Competitive Events, Organized Groups, and Recreation Use in Special Areas [Amended]

3. Amend section 2932.57 by revising paragraph (b) to read as follows:

§ 2932.57

Prohibited acts and penalties.

* * * * *

(b) Penalties. (1) If you are convicted of any act prohibited by paragraphs (a)(2)-(a)(7) of this section, you may be subject to a sentence of a fine or imprisonment or both for a Class A misdemeanor in accordance with 18 U.S.C. 3571 and 3581 et seq. under the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1733(a)).

(2) If you are convicted of any act prohibited by paragraph (a)(1) of this section, you may be subject to a sentence of a fine not to exceed $100 for the first offense, or a sentence of a fine and or imprisonment for a Class A or B misdemeanor in accordance with 18 U.S.C. 3571 and 3581 et seq. for all subsequent offenses.

(3) You may also be subject to civil action for unauthorized use of the public lands or related waters and their resources, for violations of permit terms, conditions, or stipulations, or for uses beyond those allowed by permit.

Subpart 2933—Recreation Use Permits for Fee Areas

4. Amend section 2933.33 by revising paragraphs (a), (b), and (d) to read as follows:

§ 2933.33

Prohibited acts and penalties.

(a) Prohibited acts. You must not—

(1) Fail to obtain a use permit or pay any fees required by this subpart;

(2) Violate the stipulations or conditions of a permit issued under this subpart;

(3) Fail to pay any fees within the time specified;

(4) Fail to display any required proof of payment of fees;

(5) Willfully and knowingly possess, use, publish as true, or sell to another, any forged, counterfeited, or altered document or instrument used as proof of or exemption from fee payment;

(6) Willfully and knowingly use any document or instrument used as proof of or exemption from fee payment, that BLM issued to or intended another to use; or

(7) Falsely represent yourself to be a person to whom BLM has issued a document or instrument used as proof of or exemption from fee payment.

(b) Evidence of nonpayment. BLM will consider failure to display proof of payment on your unattended vehicle parked within a fee area, where payment is required to be prima facie evidence of nonpayment.

* * * * *

(d) Types of penalties. You may be subject to the following fines or penalties for violating the provisions of this subpart:

If you are convicted of * * *	then you may be subject to * * *	under * * *
(1) Any act prohibited by paragraph (a)(4), (5), or (6) of this section	A sentence of a fine and/or imprisonment for a Class A misdemeanor in accordance with 18 U.S.C. 3571 and 3581 et seq	The Federal Land Policy and Management Act of 1976 (43 U.S.C. 1733(a)).
(2) Violating any regulation in this subpart or any condition of a Recreation Use Permit	A sentence of a fine and/or imprisonment for a Class A misdemeanor in accordance with 18 U.S.C. 3571 and 3581 et seq	The Federal Land Policy and Management Act of 1976 (43 U.S.C. 1733(a)).
(3) Any act prohibited by paragraph (a)(1), (2), or (3) of this section	A fine not to exceed $100 for the first offense, or a sentence of a fine and/or imprisonment for a Class A or B misdemeanor in accordance with 18 U.S.C. 3571 and 3581 et seq. for all subsequent offenses	The Federal Lands Recreation Enhancement Act (16 U.S.C. 6811).