03-8110. Public Conduct on Bureau of Reclamation Lands and Projects; Extension of Expiration Date

AGENCY:

Bureau of Reclamation, Interior.

ACTION:

Final rule.

SUMMARY:

This rule extends the expiration date for the rule governing public conduct on Reclamation lands and projects to April 17, 2005. The rule is currently set to expire on April 17, 2003. The additional time will allow the Bureau of Reclamation to prepare and publish a more comprehensive rule.

EFFECTIVE DATE:

Effective April 3, 2003, the expiration date of 43 CFR part 423, Public Conduct on Bureau of Reclamation Lands and Projects, is extended from April 17, 2003, to April 17, 2005.

ADDRESSES:

Address any questions concerning this rule to Larry Todd, Director, Security, Safety, and Law Enforcement, Bureau of Reclamation, 6th and Kipling, Building 67, Denver, CO 80225.

FOR FURTHER INFORMATION CONTACT:

Gary Anderson, Safety, and Law Enforcement, Bureau of Reclamation, 6th and Kipling, Building 67, Denver, CO 80225. Telephone [phone]

SUPPLEMENTARY INFORMATION:

 

I. Background

On September 11, 2001, terrorists launched attacks on targets within the United States. Following the terrorist attacks, on November 12, 2001, Congress enacted Public Law 107-69 (now codified at 43 U.S.C. 373b and 373c), for the purpose of providing law enforcement authority within Reclamation projects and on Reclamation lands. Section 1(a) of Public Law 107-69 law requires Reclamation to “issue regulations necessary to maintain law and order and protect persons and property within Reclamation projects and on Reclamation lands.” Pursuant to that statutory requirement, Reclamation issued a final rule, 43 CFR part 423, Public Conduct on Bureau of Reclamation Lands and Projects, on April 17, 2002 (now codified at 43 CFR 423.1-423.10). That rule's preamble set the rule to expire on April 17, 2003, based on Reclamation's intent to develop a more comprehensive public conduct rule by that date.

A more comprehensive rule is currently under development, but additional time is needed to complete that rulemaking. In order to avoid a period during which no rule is in place addressing public conduct on our lands and facilities, Reclamation has decided to extend the expiration date of the existing rule from April 17, 2003, to April 17, 2005.

II. Procedural Requirements

A. Determination To Issue Final Rule Without Notice and Comment, and Effective in Less Than 30 Days

The Administrative Procedure Act (APA) generally requires agencies to provide advance notice and an opportunity to comment on agency rulemakings. However, the APA allows an agency to promulgate rules without notice and comment when an agency, for good cause, finds that notice and public comment are “impracticable, unnecessary, or contrary to the public interest.” (5 U.S.C. 553(b)(3)(B)). To the extent that 5 U.S.C. section 553 applies to the rule, good cause exists to exempt this rulemaking from advance notice and comment.

Allowing a period for advance notice could result in the expiration of the existing rule before this rule, which extends the expiration date, goes into effect. A period without a rule in place addressing public conduct on Reclamation lands and projects would result in a serious disruption in the protection of Reclamation facilities and property, with accompanying confusion to employees and the public. Such disruption and confusion would be contrary to public and national security interests.

We expect to issue a comprehensive rule that would supersede the existing rule in the near future. Establishing a public comment period for the extension of the existing rule's expiration date is likely to create significant public confusion in that such a comment period might closely coincide with the comment period on the proposed comprehensive rule.

Finally, the existing rule which was issued on April 17, 2002, generated virtually no public reaction. Despite our request for comments on the rule, we received only one nonsubstantive comment. Therefore, it is not reasonable to expect that mere extension of the rule's expiration date would result in substantive comments from the public.

For the foregoing reasons, we conclude it is impracticable, unnecessary, and contrary to the public interest to request public comment on this rule.

We have also determined that good cause exists to waive the requirement of publication 30 days in advance of the rule's effective date under 5 U.S.C. 553(d)(3). As discussed above, it is essential that the existing rule's expiration date be extended before the rule expires. If the rule expired without any additional action, Reclamation would face a situation in which no rule exists governing public conduct on Reclamation facilities and property. Such a situation would be harmful to the security of Reclamation facilities and property and therefore not in the public interest, as well as national security interests. Also, a period during which no rule was in effect would create both legal and public confusion. Finally, even if the 30-day period were to end prior to the existing rule's expiration date, the effective result would be identical to having the expiration date removed immediately. Because an immediate effective date will sustain security, reduce the opportunity for legal and public confusion, and have no negative consequences, good cause exists for making this rule effective immediately as allowed by 5 U.S.C. 553(d)(3).

B. Review Under Procedural Statutes and Executive Orders

We have reviewed this final rule under the following statutes and executive orders governing rulemaking procedures: the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq.; the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.; the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801 et seq.; the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq.; the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.; Executive Order 12630 (Takings); Executive Order 12866 (Regulatory Planning and Review); Executive Order 12988 (Civil Justice Reform); Executive Order 13132 (Federalism); Executive Order 13175 (Tribal Consultation); and Executive Order 13211 (Energy Impacts). Since this rule merely extends the expiration date of the existing 43 CFR part 423, the information in the compliance statements that we published on April 17, 2002, with the existing rule continue to apply.

List of Subjects in 43 CFR part 423

• Dams
• Security measures
• Irrigation

Dated: March 27, 2003.

R. Thomas Weimer,

Deputy Assistant Secretary, Water and Science.