04-14881. Supplemental Rule Requiring Permits To Enter Bureau of Land Management (BLM) Lands in Potter County, TX

AGENCY:

Bureau of Land Management, Interior.

ACTION:

Notice of supplementary rule.

SUMMARY:

The BLM's Amarillo Field Office is issuing a supplementary recreational permit rule. This rule is being issued to protect the unique natural resources present on BLM lands known as the Cross Bar from damage through over use by the public. On those public lands administered by the BLM in Potter County, Texas (Sections 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 45, and 48 in Block 5 of G.M. Survey; Sections 1, 3, and 4 in Block 4 of G.M. Survey; Sections 19, 21, 27, 29, and 35 in Block 21-W of G.C.&S.F.R.R. Survey), it is prohibited for members of the public to enter without permit authorization.

FOR FURTHER INFORMATION CONTACT:

Paul Tanner, Natural Resource Specialist, BLM, Amarillo Field Office, 801 S. Fillmore Street, Suite 500, Amarillo, Texas 79101-3545, [phone].

Discussion of the Supplementary Rule

This supplemental rule is to protect the unique natural resources present on the Cross Bar from damage through over use by the public. Cross Bar is approximately 12,000 acres of BLM lands acquired from Humble Oil and Refining Company on March 6, 1931, under the Acts of February 15, 1928, and January 25, 1929, which gave the Department of the Interior approval to acquire helium land to produce and transport helium gas. Due to the elimination of the Bureau of Mines (BOM) in 1997, the Helium Operations was transferred to the BLM. Thus management of these acquired lands and minerals then came under the authority of the Federal Land Policy and Management Act. Totally surrounded by private lands the Cross Bar BLM lands overlie an active gas field and helium storage dome. The Cross Bar property was completely closed to all public use from its 1931 acquisition until 1997 when the U.S. BOM Office in Amarillo, Texas, became part of the BLM. In spite of there being no legal physical access to the property, approximately 10,000 visitor-days use occur there each year. The Cross Bar is the only BLM-managed land in the State of Texas. Amarillo and its metropolitan area has a population of over 200,000 individuals and is only a 20-minute drive from the property. Unlimited public access to the Cross Bar property could cause unacceptable impacts by the public in a short period of time. The Cross Bar is adjacent to a highly utilized off-highway vehicle (OHV) area on the Canadian River owned by the State of Texas. The public utilizing the Canadian Riverbed for OHV purposes frequently cuts fences and drives their OHV's onto the Cross Bar lands. Large numbers of people walk onto the property from the river during a variety of hunting seasons. In order to control numbers and prevent over use of this unique area, BLM proposes to allow public access only under a closely controlled and monitored permit system.

Procedural Matters

Executive Order 12866, Regulatory Planning and Review

This supplementary rule is not a significant regulatory action and is not subject to review by the Office of Management and Budget under Executive Order 12866. This supplementary 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. This supplementary rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. This supplementary rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the right or obligations of their recipients; nor does it raise novel legal or policy issues. The supplementary rule simply requires the public to acquire a permit prior to recreating on the Cross Bar BLM lands to protect natural and cultural resources.

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 this supplementary rule easier to understand, including answers to questions such as the following:

1. Are the requirements in the supplementary rule clearly stated?

2. Does the supplementary rule contain technical language or jargon that interferes with their clarity?

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

4. Is the description of the supplementary rule in the SUPPLEMENTARY INFORMATION section of this preamble helpful in understanding the supplementary rule? How could this description be more helpful in making the supplementary rule easier to understand?

Please send any comments you have on the clarity of the rule to the address specified in the FOR FURTHER INFORMATION CONTACT section.

National Environmental Policy Act

The environmental effects of the proposed rule have been analyzed separately by Environmental Assessment 090-2004-002 dated April 2004 that anticipates this supplementary rule. In this document, BLM found that the supplementary rule would not constitute a major Federal action significantly affecting the quality of the human environment under section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C). The Finding of No Significant Impact was signed April 12, 2004. A detailed statement under NEPA is not required. The BLM has placed the Environmental Assessment and the Finding of No Significant Impact on file in the BLM Administrative Record at the address specified in the FOR FURTHER INFORMATION CONTACT section.

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. This supplementary rule simply requires the public to obtain a permit prior to recreating on the Cross Bar BLM lands to protect natural and cultural resources, and does not affect commercial or business activities of any kind. Therefore, BLM has determined under the RFA that this supplementary rule would not have a significant economic impact on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act

This supplementary rule is not a “major rule” as defined at 5 U.S.C. 804(2). The supplementary rule requires the public to obtain a permit prior to recreating on the Cross Bar BLM lands to protect natural and cultural resources, and does not affect commercial or business activities of any kind.

Unfunded Mandates Reform Act

This supplementary rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year; nor does it have a significant or unique effect on State, local, or tribal governments or the private sector. The supplementary rule requires the public to obtain a permit prior to recreating on the Cross Bar BLM lands to protect natural and cultural resources, and does not affect tribal, commercial, or business activities of any kind. 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)

The supplementary rule does not represent a Government action capable of interfering with Constitutionally-protected property rights. It requires the public to acquire a permit prior to recreating on the Cross Bar BLM lands to protect natural and cultural resources, and does not affect anyone's property rights. Therefore, the Department of the Interior has determined that this rule will not cause a taking of private property or require further discussion of takings implications under this Executive Order.

Executive Order 13132, Federalism

The supplementary rule 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 rule does not come into conflict with any state law or regulation. Therefore, in accordance with Executive Order 13132, the BLM has determined that the supplementary rule does 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 this rule will 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 the supplementary rule does not include policies that have tribal implications. None of the lands included in this rule affects Indian lands or Indian rights.

Paperwork Reduction Act

The supplementary rule does 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. The information collection requirements contained in this rule are exempt from the provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. 3518(c)(1). Federal criminal investigations or prosecutions may result from this rule and are exempt from the Paperwork Reduction Act.

Authors

The principal author of this supplementary rule is Paul W. Tanner, Natural Resource Specialist for the Bureau of Land Management.

Supplementary Rule

Under 43 CFR 8365.1-6, the BLM will enforce the following rule on public lands in Potter County, Texas:

1. On those public lands administered by the BLM in Potter County, Texas (Sections 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 45, and 48 in Block 5 of G. M. Survey; Sections 1, 3, and 4 in Block 4 of G.M. Survey; Sections 19, 21, 27, 29, and 35 in Block 21-W of G.C.& S.F.R.R. Survey), it is prohibited for members of the public to enter without permit authorization.

2. Permits will be available at the BLM, Amarillo Field Office, 801 S. Fillmore St., Suite 500, Amarillo, Texas, from Monday through Friday, 7:30 a.m. to 4:30 p.m. The permits will be for day use only, but use can be for any day of the week. Until such time as legal physical access is acquired to the Cross Bar BLM lands, the permits will only cover use by the recreating public willing to walk into the property from the Canadian River.

3. This special rule is in addition to existing rules and regulations previously established under title 43 CFR, as well as other Federal laws applicable to the use of public lands.

Penalties

Under section 303(a) of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1733(a)) and 43 CFR 8360.0-7, if you violate this supplementary rule on public lands within the boundaries established in the rule, you 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.

Dated: May 19, 2004.

Carsten F. Goff,

Acting State Director.