2011-14165. Final Supplementary Rules for Public Lands Managed by the California Desert District

AGENCY:

Bureau of Land Management, Interior.

ACTION:

Final supplementary rules.

SUMMARY:

In accordance with the Decision Record for the California Desert District (CDD) Supplementary Rules for Recreation Environmental Assessment, the Bureau of Land Management (BLM), CDD office and the five field offices within the CDD, are issuing Final Supplementary Rules for public lands administered by the BLM. Upon publication, these Final Supplementary Rules will supersede the Interim Final Supplementary Rules that the BLM published on June 25, 2010. These Final Supplementary Rules are necessary to enhance the safety of visitors, protect natural resources, improve recreation experiences and opportunities, and protect public health. These rules do not impose or implement any land use limitations or restrictions other than those included within the CDD Supplementary Rules for Recreation Environmental Assessment Decision Record.

DATES:

The Final Supplementary Rules are effective June 8, 2011.

ADDRESSES:

Bureau of Land Management, California Desert District Office, 22835 Calle San Juan De Los Lagos, Moreno Valley, California 92553. Phone: [phone]. Web site: http://www.blm.gov/​ca/​st/​en/​fo/​cdd/​cdd_​supplementary.html.

FOR FURTHER INFORMATION CONTACT:

Lynnette Elser, Planning and Environmental Coordinator, BLM, California Desert District Office, 22835 Calle San Juan De Los Lagos, Moreno Valley, California 92553, phone: [phone], or e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

Visitors to the CDD encounter inconsistent rules regarding appropriate conduct in recreational areas. This inconsistency hampers the BLM's ability to provide a safe recreational experience, and minimize conflicts among users. The BLM is establishing these rules to improve the consistency of rules for public lands within the CDD.

The BLM is establishing these Final Supplementary Rules under the authority of 43 CFR 8365.1-6, which allows BLM State Directors to establish supplementary rules for the protection of persons, property, and public lands and resources.

The CDD is located in southern California and includes all BLM-managed land in Imperial, Inyo, Kern, Riverside, Los Angeles, San Bernardino, and San Diego Counties, California. A map of the area can be obtained by contacting the CDD office (see ADDRESSES) or by accessing the following Web site: http://www.ca.blm.gov.

All of the Final Supplementary Rules implement decisions contained in the CDD Supplementary Rules for Recreation Environmental Assessment Decision Record (CA-670-10-38). A public involvement process with comment opportunities was employed in developing the decision and associated Environmental Assessment that provide a basis for the Final Supplementary Rules.

The following revisions have been made to the Interim Final Supplementary Rules: The prohibition against public nudity has been revised in response to public comments, and the definition of “Special Recreation Permit” has been revised to correct a citation error in the Interim Final Supplementary Rules. In addition, minor editorial changes were made as follows: (1) The definitions are now arranged in alphabetical order. (2) The terms that are defined are now indicated in italics. (3) Capitalization was corrected in the definition of “Developed sites and areas.” (4) The abbreviation “CDD” was added to the definition of “California Desert District.” (5) The definition of “California Desert District” was reorganized for clarity, and was revised to state that a map of the California Desert District is available at field offices as well as the district office. (6) The prohibition against use of firewood containing nails was revised grammatically. (7) The punctuation in the “Penalties” provision was corrected. The remaining rules remain unchanged.

The BLM finds good cause under 5 U.S.C. 553(d)(3) to make the Final Supplementary Rules effective on the date of publication because of immediate public safety and resource protection needs within the management area.

II. Discussion

On June 25, 2010, the BLM published a Notice of Interim Final Supplementary Rules for Public Lands Managed by the California Desert District (75 FR 36438). A 30-day public comment period began on the date of publication of the Interim Final Supplementary Rules, and ended on July 26, 2010. The BLM received 41 written comments were received during this period. The BLM has considered all relevant comments during the preparation of these Final Supplementary Rules. The following addresses the main areas of focus of the comments received.

Definitions

The Interim Final Supplementary Rules defined “Special Recreation Permit” as “a permit issued under the authority of 43 CFR 8372.1.” In fact, special recreation permits are issued under the authority of 43 CFR part 2930. The BLM has corrected the definition of “Special Recreation Permit” in the Final Supplementary Rules. In addition, the BLM has made the following minor editorial revisions to the definitions: (1) The definitions are now arranged in alphabetical order. (2) The terms that are defined are now indicated in italics. (3) Capitalization was corrected in the definition of “Developed sites and areas.” (4) The abbreviation “CDD” was added to the definition of California Desert District.” (5) The definition of “California Desert District” was reorganized for clarity, and was revised to state that a map of the California Desert District is available at field offices as well as the district office.

Public Nudity

The Interim Final Supplementary Rules prohibited public nudity “at all developed sites and areas and all [Off Road Vehicle (ORV)] open areas.” Several commenters stated that: (1) Nudity is not offensive. (2) The public supports nude recreation. (3) Many people enjoy clothing-optional recreation. (4) The BLM should first research to identify the specific problem then write a rule to address the specific issue. (5) Sexual or lewd acts, not nudity, should be regulated.

The BLM recognizes that clothing-optional recreation is desirable by some individuals and groups. However, it is in the interest of maintaining order to prohibit public nudity in areas where visitor use, recreation opportunities, and/or facilities draw large numbers of visitors. In such areas, public nudity can create controversy and conflicts among users, and cause crowd-control concerns. The intent of the Interim Final Supplementary Rules and the Final Supplementary Rules is to allow lands with a lower concentration of visitors, such as wilderness areas, to be clothing-optional.

One commenter requested that nudity be allowed in traditionally nude areas. The BLM is not aware of any traditionally nude areas that would be affected by these Final Supplementary Rules.

Several commenters did not understand the definition of the land that would be regulated under this rule, and expressed a concern that a nude recreational user could inadvertently enter a clothing-required area. The BLM has modified the Interim Final Supplementary Rules in response to this concern. The Interim Final Supplementary Rules prohibited public nudity “at all developed sites and areas and all ORV open areas,” and included the definition of “developed sites and areas” that is codified at 43 CFR 8360.0-5(c). In the Final Supplementary Rules, the BLM has modified the prohibition against public nudity so that compliance will be possible without referring to the definition of “developed sites and areas.” Instead, the areas where public nudity is prohibited are listed in the prohibition itself: (1) Developed camping and picnicking areas containing items such as a table or toilet facility, (2) visitor centers, and (3) all ORV open areas. The BLM has determined that this rule, as modified, provides sufficient clarity. Although the term “developed sites and areas” no longer appears in the prohibition against public nudity, it appears in other Final Supplementary Rules and is therefore included in these Final Supplementary Rules.

One commenter requested that the BLM follow the California State Cahill policy, which allows nude recreation unless there is a complaint. Unlike the BLM's adoption of the State's definition of “nudity” in these rules, the California State Cahill policy would be at odds with our goals to reduce the potential for controversy, conflicts among users, and crowd-control concerns in areas that draw large numbers of visitors. Therefore, the BLM has decided not to adopt that policy.

One commenter stated that a San Francisco court ruled that a female has the same right to be topless as a male. That ruling does not apply to public lands managed by the BLM.

Passengers in ORVs and Trailers

The Interim Final Supplementary Rules prohibited riding in, or transporting any person in or on, “a portion of an ORV or trailer that is not designed or intended for the transportation of passengers.” The BLM will finalize the rule as written in the Interim Final Supplementary Rules.

Some commenters expressed concern that this rule would not allow riding in truck beds, which they enjoy. This rule is specifically intended to prohibit riding in truck beds, since this is a dangerous practice. Should the truck be involved in an accident, or travel through rough terrain, the passengers in the truck bed could be thrown from the vehicle and injured. This rule is consistent with the California Vehicle Code 23116, which also prohibits riding in a truck bed. One commenter was concerned that utility vehicles with mounted, harnessed seats would not be allowed. A mounted, harnessed seat designed for passenger use is allowed under this rule.

Firewood Materials

The Interim Final Supplementary Rules prohibited the use and possession of “any firewood materials containing nails, screws, or other metal hardware, including, but not limited to, wood pallets and/or construction debris.” Many commenters stated that nails in firewood is not the problem, but that the real problem is that the nails are not picked up and discarded properly. One commenter requested that the BLM remove the nails from the fire rings after use.

The BLM agrees that the problem is nails that remain after wood has been burned. Past experience clearly shows that nails are not removed from the fire pits for proper disposal. It is not cost efficient or effective for the BLM to determine if nails are in each fire pit. Recreational opportunities on BLM-managed land include allowing recreational users to create fire pits near their campsites. The location of the fire pits often change with each camper. In many areas the wind will blow dirt over a past pit, covering the remaining debris left in the pit. A vehicle may drive over a spot that was previously used as a fire pit and experience tire damage from nails. Due to the level of damage and injury that can occur and the realistic ability to manage nails, the BLM will adopt the rule as published in the Interim Final Supplementary Rules, with the following minor editorial change to correct a grammatical error: The Interim Final Supplementary Rule began, “It is prohibited to use as firewood, or have in their possession, any firewood materials containing nails .* * * .” The Final Supplementary Rule begins, “It is prohibited to use as firewood, or possess, any firewood materials containing nails * * * .”

Glass Beverage Containers

The Interim Final Supplementary Rules prohibited the possession of glass beverage containers “in all developed sites and areas and all ORV open areas.” Numerous commenters stated that they prefer beer and wine in bottles rather than other types of containers. They stated that bottles left as debris was the main issue.

The BLM agrees that bottles left as trash is the main issue. However, since the bottles left as trash often break and are a safety hazard to people and tires, the BLM has determined that the rule should remain as published in the Interim Final Supplementary Rules.

One commenter stated that the use of glass containers for items such as pickles should be allowed. This type of glass container is allowed under the rule as written. Only glass containers that hold beverages are regulated by this rule. The BLM has noted that the majority of broken, discarded glass left on public land is from beverage containers. Other types of glass containers are not major contributors to this situation.

Some commenters on the glass beverage rule were concerned that employees of the BLM would enter their vehicles or camping facilities to search for glass containers. The BLM does not see any reason to modify the rule in response to these comments.

Non-Flexible Objects

The Interim Final Supplementary Rules prohibited placing into the ground any non-flexible object such as, but not limited to, metal or wood stakes, poles, or pipes, with the exception of small tent or awning stakes, at all developed sites and areas and all ORV open areas.

Several commenters stated that they enjoy playing horseshoes, which would not be allowed under this rule. Horseshoes can still be played by using a post that is not mounted in the ground or that is somewhat flexible.

Another commenter stated that mounting a display flag, solar lights, and windscreens should be allowed. These items may be mounted either to the user's vehicle or to the ground using a small stake. Another commenter stated that a stuck vehicle may require a winch and a non-flexible object to move the vehicle. A spare tire can be used with a winch to move a stuck vehicle.

One commenter requested that the BLM define “small stake”. A “small stake” is one which is necessary to hold awnings or tents in place. If a larger-than-usual stake is necessary due to windy or stormy weather, that stake would be a “small stake” in those circumstances.

One commenter requested the allowance of stakes or non-flexible objects marked with orange survey tape. It is the BLM's judgment that non-flexible objects, even when marked, can be difficult to avoid and therefore cause impact injuries. Marked non-flexible objects are prohibited in the Final Supplementary Rules, and this provision has been adopted as published in the Interim Final Supplementary Rules.

Competition Hill

The Interim Final Supplementary Rules prohibited camping within the areas commonly known as Competition Hill Corridor and Competition Hill located within the Dumont Dunes ORV Area, as shown on the map at the entrance kiosk. No comments were received for this provision, and it has been adopted as published in the Interim Final Supplementary Rules.

Reserving Camping Space

The Interim Final Supplementary Rules prohibited reserving or saving a camping space for another person at all developed sites and areas and all ORV open areas. Some commenters stated that saving spaces is necessary and this rule would prevent them from camping with friends and family when the arrival time is different. They also stated that “wagon wheel” camping would not be feasible with this rule. The BLM agrees that this provision may make it more difficult for groups to camp together in popular places, but also supports equal access for all recreational users. This provision has been adopted as published in the Interim Final Supplementary Rules.

Trash and Litter

The Interim Final Supplementary Rules required all persons to keep their sites free of trash and litter during the period of occupancy. One commenter questioned whether this rule would require someone to pick up the trash left by a previous occupant of the area. To clarify, a new occupant is required to keep the site free of trash, regardless of who discarded the trash. This provision has been adopted as published in the Interim Final Supplementary Rules.

Penalties

Several commenters requested that the BLM increase the fees for violations, increase jail time for offenders, and confiscate the vehicles of offenders. These consequences are set by Federal statutes and regulations and are beyond the authority of this rule making. One commenter requested that the BLM issue “fix it” tickets for trash violations. It is unnecessary to include this type of provision in the Final Supplementary Rules because law enforcement officers already have the authority and discretion to request that campers clean up their sites without imposing penalties. This provision has been adopted as published in the Interim Final Supplementary Rules, with the following minor editorial changes: The citation to Section 303(a) of the Federal Land Policy and Management Act is now in closed parentheses, the word “and” has been added before the citation to 43 CFR 2932.57(b), and one of the parentheses after the citation to 43 CFR 2932.57(b) has been removed.

Other Comments

Some comments were not relevant to this rulemaking, and instead provided information and opinions on other management issues. One commenter asked the BLM to define camping. The Interim Final Supplementary Rules included a definition of “camp,” and the BLM sees no reason to change that definition in the Final Supplementary Rules. A few commenters stated that new rules were not required, that the BLM should enforce the existing rules, and that the BLM should have more pressing things to do. Several commenters expressed support for many of the rules. The BLM did not revise these rules in response to these comments.

III. Procedural Matters

Executive Order 12866, Regulatory Planning and Review

These Final Supplementary Rules are not a significant regulatory action and are not subject to review by the Office of Management and Budget under Executive Order 12866. They will not have an effect of $100 million or more on the economy. They do not affect commercial activity. They will not adversely affect, in a material way, the economy, productivity, competition, jobs, environment, public health or safety, or state, local, or tribal governments or communities. They will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. They 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. These Final Supplementary Rules merely contain rules of conduct for public use of public land and provide a consistent set of rules of public conduct within the CDD.

National Environmental Policy Act (NEPA)

The BLM has prepared an Environmental Assessment (CA-670-10-38) and has determined that the Final Supplementary Rules would not constitute a major Federal action significantly affecting the quality of the human environment and therefore the preparation of an environmental impact statement was not necessary, 42 U.S.C. 4332(2)(C). The EA was posted on the CDD website and was available for a 30-day public comment period from October 20, 2009 through November 20, 2009. A Finding of No Significant Impact was signed February 1, 2010 and a Decision Record was signed February 1, 2010.

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. These Final Supplementary Rules merely establish rules of conduct for public recreational use of specific public lands. Therefore, the BLM has determined under the RFA that these Final Supplementary Rules would not have a significant economic impact on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act

These Final Supplementary Rules do not constitute a “major rule” as defined at 5 U.S.C. 804(2). These rules merely establish rules of conduct for recreational use of certain public lands and do not affect commercial or business activities of any kind.

Unfunded Mandates Reform Act

These Final 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 rules have a significant or unique effect on state, local, or tribal governments or the private sector. These Final Supplementary Rules have no effect on state, local, or tribal governments and do not impose any requirements on any of these entities. Therefore, the BLM has determined that no statement is 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)

These Final Supplementary Rules do not represent a government action capable of interfering with constitutionally protected property rights. These rules do not address property rights in any form, and do not cause the impairment of one's property rights. Therefore, the BLM has determined that these Final 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

These Final 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. These rules do not conflict with any California state law or regulation. Therefore, in accordance with Executive Order 13132, the BLM has determined that these 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 BLM California State Office has determined that these supplementary rules would not unduly burden the judicial system and that they meet 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, the BLM has found that these Final Supplementary Rules do not include policies that have tribal implications. The rules do not affect Indian resource, religious, or property rights.

Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

These Final Supplementary Rules do not comprise a significant energy action. The rules will not have an adverse effect on energy supply, production, or consumption and have no connection with energy policy.

Paperwork Reduction Act

These Final Supplementary Rules do 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.

Information Quality Act

In developing these Final Supplementary Rules, 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).

Author

The principal author of these Final Supplementary Rules is Lynnette Elser, Planning and Environmental Coordinator, BLM California Desert District.

SUPPLEMENTARY RULES FOR LANDS MANAGED BY THE BLM CALIFORNIA DESERT DISTRICT OFFICE

For the reasons stated in the Supplementary Information Section, above, and under the authority of 43 CFR 8365.1-6, the California State Director, Bureau of Land Management, issues supplementary rules for public lands managed by the California Desert District (CDD), to read as follows:

Section 1—Definitions

BLM California Desert District means public land, managed by the BLM, totaling over 11 million acres, primarily in the southern and eastern portions of California. The California Desert District (CDD) office is located in Moreno Valley, California and, under the authority of the District Manager, provides coordination and oversight to the five field offices of the CDD. The CDD includes all of the land managed by the BLM Ridgecrest Field Office, the BLM Barstow Field Office, the BLM Palm Springs-South Coast Field Office, the BLM Needles Field Office, and the BLM El Centro Field Office. A map of this land is available at the CDD office and at the field offices listed above.

Camp means day or overnight use of a tent, trailer, motor coach, fifth wheel, camper, or similar vehicle or structure.

Developed Sites and Areas means 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. This definition is consistent with 43 CFR part 8360.

Nudity means nudity as defined by 14 California Code of Regulations § 4322.

Off Road Vehicle (ORV) means ORV as defined by 43 CFR 8340.0-5.

Public Nudity means nudity in a place where a person may be observed by another person.

Special Recreation Permit means a permit issued under the authority of 43 CFR part 2930.

Section 2—Supplementary Rules

The following rules apply on public lands administered by the BLM CDD unless explicitly authorized by a permit or other authorization document issued by the BLM:

1. Public nudity is prohibited at all: (1) Developed camping and picnicking areas containing items such as a table or toilet facility, (2) visitor centers, and (3) all ORV open areas.

2. It is prohibited for a person to ride in or transport another person in or on a portion of an ORV or trailer that is not designed or intended for the transportation of passengers.

3. It is prohibited to use as firewood, or possess, any firewood materials containing nails, screws, or other metal hardware, including, but not limited to, wood pallets and/or construction debris.

4. Possession of glass beverage containers is prohibited in all developed sites and areas and all ORV open areas.

5. It is prohibited to place into the ground any non-flexible object, such as, but not limited to, metal or wood stakes, poles, or pipes, with the exception of small tent or awning stakes, at all developed sites and areas and all ORV open areas.

6. It is prohibited to camp within the areas commonly known as Competition Hill Corridor and Competition Hill located within the Dumont Dunes ORV Area, as shown in the map at the entrance kiosk.

7. It is prohibited to reserve or save a camping space for another person at all developed sites and areas and all ORV open areas.

8. All persons must keep their sites free of trash and litter during the period of occupancy.

Employees and agents of the BLM are exempt from these rules during the performance of specific official duties as authorized by the CDD Manager, or the Ridgecrest, Barstow, Needles, Palm Springs-South Coast or El Centro Field Managers.

Section 3—Penalties

On public lands under Section 303(a) of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1733(a)), 43 CFR 8360.0-7, and 43 CFR 2932.57(b), any person who violates any of these supplementary rules may be tried before a United States Magistrate and fined no more than $1,000 or imprisoned for no more than 12 months, or both.

Such violations may also be subject to the enhanced fines provided for by 18 U.S.C. 3571. Those who violate these rules may also be subject to civil action for

unauthorized use of the public lands, violations of special recreation permit terms, conditions, or stipulations, or for uses beyond those allowed by the permit under 43 CFR 2932.57(b)(2).

James Wesley Abbott,

Acting State Director, California State Office.