E9-16140. Final Supplementary Rules for the Hot Well Dunes Recreation Area, Public Lands Administered by the Bureau of Land Management Gila District and Safford Field Office, Graham County, AZ

AGENCY:

Bureau of Land Management, Interior.

ACTION:

Final supplementary rules.

SUMMARY:

The Bureau of Land Management (BLM) is issuing new supplementary rules for the Hot Well Dunes (HWD) Recreation Area, which is located in Graham County, Arizona, and is managed by the Gila District and Safford Field Office. The rules address vehicle rider capacity, clinging to or being towed by a vehicle, safety flags, vehicle use, public nudity, firearms, pets, speed limit, camping, waste disposal, and length of stay. All current supplementary rules for the HWD Recreation Area are rescinded and replaced by these revised rules.

DATES:

These rules will become effective August 10, 2009.

ADDRESSES:

Bureau of Land Management, Safford Field Office, 711 14th Avenue, Safford, Arizona 85546.

FOR FURTHER INFORMATION CONTACT:

Larry Ramirez, Law Enforcement Ranger, at the above address, telephone [phone], or [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

II. Public Comment

III. Discussion of Supplementary Rules

IV. Procedural Matters

I. Background and Purpose

The Hot Well Dunes Recreation Area is an off-highway vehicle (OHV) play area in southeastern Arizona that is managed by the BLM Safford Field Office.

Due to increases in visitation at the HWD and the types of vehicles in use, in light of the nature of the terrain and vegetation, the BLM proposed new supplementary rules to reduce threats to public health, safety, and property. The proposal was published in the Federal Register on October 16, 2008, with a 60-day public comment period that ended December 15, 2008 (see 73 FR 61437).

These supplementary rules will allow the BLM to increase law enforcement efforts that will help mitigate damage to natural resources and provide for public health and safe public recreation.

II. Public Comment

The 60-day public comment period closed December 15, 2008. The BLM received three comments. The first comment thanked the BLM for keeping the area open but asked the BLM to include a helmet requirement for riders less than 18 years of age. That requirement was not made part of the supplementary rules because it is part of Arizona Senate Bill 1167 that was passed by the Legislature, signed by the Governor, and became effective on January 1, 2009. The BLM will enforce the State requirement within the HWD, but will not include it in these supplementary rules in order to avoid redundancy.

The second comment commended the BLM on the proposed supplementary rules but expressed concern that there are not enough BLM law enforcement rangers to enforce them. That comment is not within the scope of the supplementary rules as it is a budget and staffing issue. The second comment also expressed a concern about people using shampoo in the hot tubs. BLM rangers already have the authority to cite recreation users for pollution or contamination of the water; this is covered by Title 43 Code of Federal Regulations (CFR) Part 8365.1-1. Therefore, a new supplementary rule addressing this problem is unnecessary.

The third comment related to vehicle rider capacity. The commenter was concerned that not allowing additional riders on all-terrain vehicles would prevent parents and grandparents from giving young children rides. He suggested amending the rule to allow double riding as long as the driver was at least 21 years old and the child was 6 years old or younger. We are not going to adopt this suggestion, in view of the purpose of enhancing public safety at the HWD. Children riding tandem with an adult can be injured, especially during busy times of the year and in areas where visibility is limited. Additionally there are hundreds of backcountry roads in the Safford Field Office where this restriction is not in place.

III. Discussion of Supplementary Rules

The BLM Gila District/Safford Field Office replaces all prior supplementary rules for the HWD Recreation Area with the new supplementary rules. This action falls within the Federal Land Policy and Management Act (FLPMA), Title 43 United States Code (U.S.C.) 1740 and Title 43 CFR 8365.1-6. The supplementary rules set forth requirements and prohibited acts that are applicable within the BLM's Hot Well Dunes Recreation Area, Graham County, Arizona.

IV. Procedural Matters

Executive Order 12866, Regulatory Planning and Review

These supplementary rules do not comprise a significant regulatory action and are not subject to review by the Office of Management and Budget under Executive Order 12866. The supplementary rules will not have an annual effect of $100 million or more on the economy. 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 materially 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. They merely impose rules of conduct on recreational visitors for health and safety reasons in a limited area of the public lands.

Clarity of the Supplementary Rules

Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. No public comments were received that questioned the clarity of the supplementary rules' language.

National Environmental Policy Act

The supplementary rules do 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, Title 42 U.S.C. 4332(2)(C). The Safford Field Office completed an Environmental Assessment of the rules (AZ-410-2008-0039). A Finding of No Significant Impact (FONSI) and Decision Record were signed by Acting Safford Field Manager Jeff Wilbanks on June 1, 2008.

Regulatory Flexibility Act

Congress enacted the Regulatory Flexibility Act (RFA) of 1980, as amended, Title 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 have a significant economic impact on entities of any size, but provide for the protection of persons, property, and resources on specific public lands. Therefore, the BLM has determined under the RFA that the supplementary rules will not have a significant economic impact on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act

These supplementary rules do not constitute a major rule as defined at Title 5 U.S.C. 804(2). They merely contain rules of conduct for recreational use of certain public lands. The supplementary rules will have little or no effect on the economy.

Unfunded Mandates Reform Act

The supplementary rules do not impose an unfunded mandate on State, local, or Tribal governments in the aggregate, or the private sector, of more than $100 million per year; nor will they have a significant or unique effect on small governments. These supplementary rules do not require anything of State, local, or Tribal governments. Therefore, the BLM is not required to prepare a statement containing the information required by section 202 of the Unfunded Mandates Reform Act (Title 2 U.S.C. 1532).

Executive Order 12630, Governmental Actions and Interference With Constitutionally Protected Property Rights (Takings)

The supplementary rules are not a government action capable of interfering with constitutionally protected property rights. The supplementary rules do not address property rights or cause the impairment of anybody's property rights. Therefore, the BLM has determined that these supplementary rules 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 rules will not have substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. The supplementary rules apply to a limited area of land in only one State, Arizona. Therefore, the BLM determined that the 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 BLM has determined that the supplementary rules will not unduly burden the judicial system and that the requirements of sections 3(a) and 3(b)(2) of the Order are met. The supplementary rules contain rules of conduct for recreational use of certain public lands to protect human health and the environment.

Executive Order 13175, Consultation and Coordination With Indian Tribal Governments

In accordance with Executive Order 13175, the BLM found that these supplementary rules do not include policies that have Tribal implications. The rules do not affect lands held for the benefit of Indians, Aleuts, or Eskimos.

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, Title 44 U.S.C. 3501 et seq.

Author

The principal author of the supplementary rules is Larry Ramirez, Law Enforcement Ranger for the BLM Gila District/Safford Field Office.

Supplementary Rules for the Hot Well Dunes Recreation Area, Graham County, Arizona

Under the Federal Land Policy and Management Act of 1976 (FLPMA), Title 43 U.S.C. 1740, and Title 43 Code of Federal Regulations (CFR) 8365.1-6, the Bureau of Land Management establishes the following supplementary rules for public lands within the Hot Well Dunes Recreation Area.

1. Vehicle Rider Capacity

A person operating an off-road vehicle within the HWD Recreation Area shall ride only on the permanent, regular seat attached to the off-road vehicle. The operator of an off-road vehicle shall not carry any additional person(s) on an off-road vehicle unless the vehicle is designed and manufactured to carry such additional person(s). No person shall ride an off-road vehicle unless the vehicle is designed and manufactured to carry that person.

2. Clinging to or Being Towed by a Vehicle

No person operating an off-road vehicle within the HWD Recreation Area shall attach the off-road vehicle to any object or person and tow such object or person. No person shall cling to, or be towed by, an off-road vehicle.

3. Safety Flags

Safety flags are required on all off-road vehicles used within the HWD Recreation Area. An exception to this requirement is made for Recreation Vehicles (RVs), Sport Utility Vehicles (SUVs), pickup trucks, and passenger sedans. Safety flags must be brilliant orange or red in color, and at least six (6) inches by 12 inches in size. Masts must be securely mounted on the off-road vehicle and extend eight (8) feet from the ground to the mast tip. Safety flags must be firmly attached to the top portion of a mast.

4. Vehicle Use

No off-road vehicle within the HWD Recreation Area will be allowed within areas enclosed by the metal, tube railings or where signed as prohibited.

5. Nudity

Public nudity within the HWD Recreation Area and, in particular, in the hot tubs there, is prohibited.

6. Firearms and Archery

Archery and the discharge of firearms or other weapons, including pneumatic and spring-loaded BB guns and pellet guns, are prohibited within the HWD Recreation Area.

7. Pets

Pets must be leashed or otherwise physically restricted at all times within the HWD Recreation Area.

8. Speed Limit

The speed limit for off-road vehicles within the HWD Recreation Area is 10 miles per hour on the main access road and within 50 feet on either side of the main access road. The speed limit is also 10 miles per hour within 50 feet of a campsite or any concentration of three (3) or more people. Operating an off-road vehicle above this speed is prohibited.

9. Camping

Camping within the HWD Recreation Area is not allowed within the designated parking area; within areas enclosed by metal, tube railings; or where signed as prohibited.

10. Waste Disposal

Dumping of sewage or gray water is prohibited within the HWD Recreation Area.

11. Length of Stay

To ensure that everyone has an opportunity to enjoy the area, camping is limited to 14 days within any 28-day period.

Penalties

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. 43 U.S.C. 1733(a); 43 CFR 8360.0-7; 43 CFR 2932.57(b). Such violations may also be subject to the enhanced fines provided for by 18 U.S.C. 3571. In accordance with 43 CFR 8365.1-7, State or local officials may also impose penalties for violations of Arizona law.

Authority: 43 CFR 8365.1-6(c).

Helen Hankins,

Arizona Associate State Director.