2010-23719. Proposed Supplementary Rules on Public Land, Idaho

AGENCY:

Bureau of Land Management, Interior.

ACTION:

Proposed supplementary rules.

SUMMARY:

The Bureau of Land Management (BLM) Idaho State Office is proposing supplementary rules relating to the illegal use of alcohol and drugs on public lands in Idaho. The BLM is also proposing to prohibit the possession of an open alcoholic beverage container by operators or passengers in or on either a vehicle or off-highway vehicle, on public land in Idaho administered by the BLM. These supplementary rules are necessary to protect natural resources and the health and safety of public land users. These supplementary rules will allow BLM Law Enforcement personnel to continue enforcing existing public land regulations pertaining to alcohol and drug use in a manner consistent with current State of Idaho Statutes.

DATES:

You should submit your comments by November 22, 2010. Comments postmarked or received in person or by electronic mail after this date may not be considered in the development of the final supplementary rules.

ADDRESSES:

Please mail or hand-deliver comments to Keith McGrath, State Staff Law Enforcement Ranger, Bureau of Land Management, Idaho State Office, 1387 S. Vinnell Way, Boise, Idaho 83709; or e-mail comments to [e-mail].

FOR FURTHER INFORMATION CONTACT:

Keith McGrath, Bureau of Land Management, [phone], [e-mail]. Persons who use a telecommunications device for the deaf (TDD) may contact this 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. Other Procedural Matters

I. Public Comment Procedures

Written comments on the proposed supplementary rules should be specific and confined to issues pertinent to the proposed rule, and should explain the reason for any recommended change. Where possible, comments should reference the specific section or paragraph of the proposal that the commenter is addressing. The BLM is not obligated to consider, or include in the Administrative Record for the final supplementary rules, comments delivered to an address other than those listed above (See ADDRESSES) or comments that the BLM receives after the close of the comment period (See DATES), unless they are postmarked or electronically dated before the deadline.

Comments, including names, street addresses, and other contact information for respondents, will be available for public review at the BLM Idaho State Office address listed in ADDRESSES during regular business hours (7:45 a.m. to 3:45 p.m., Monday through Friday, except Federal holidays). Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

II. Background

Although two BLM Districts in the State of Idaho have issued rules mirroring the State of Idaho Statutes on underage possession and consumption of alcohol, the BLM has no statewide supplementary rules regarding the illegal possession or use of alcohol on public lands in Idaho. In the absence of specific regulations, law enforcement officers have regulated this illegal behavior under broader regulations, creating a lack of consistency with surrounding governing entities. These proposed supplementary rules will bring consistency to all BLM-administered land throughout the State and promote consistency between the BLM and other agencies, including the State of Idaho, County Sheriff's Offices, Idaho State Police, and various Federal agencies where working relationships and partnerships exist in public land management.

In keeping with the BLM's goal to reduce threats to public health, safety, and property, these proposed supplementary rules are necessary to protect natural resources, allow for safe public recreation, reduce the potential for damage to the environment, and enhance the safety of visitors and neighboring residents. Alcohol-related offenses are a growing problem on the public lands. Unlawful consumption of alcohol and drugs has the potential to pose a significant health and safety hazard to all users. Operation of motor vehicles while under the influence of alcohol or drugs has been demonstrated to result in the destruction of natural resources and property, and/or serious physical injury or death. Vandalism to public land resources resulting from illegal alcohol and drug use and the clear risks to public safety demonstrate the need for greater regulation of these activities.

For the purposes of these proposed supplementary rules, an alcoholic beverage will be any liquid or solid containing more than three percent of alcohol by weight. The BLM has chosen three percent alcohol by weight to account for 3.2 percent beer sold in Idaho. The State of Idaho defines an alcoholic beverage as a liquid or solid containing more than four percent of alcohol by weight, and addresses prohibition of open containers of beer in motor vehicles, including 3.2 percent beer, in a slightly different manner than BLM rules. The BLM has determined that setting the threshold at three percent would be the clearest way to account for all Idaho State prohibitions.

Possession of drug paraphernalia has frequently been linked to other illegal uses of controlled substances including cultivation, manufacture, and possession for distribution. The BLM, in keeping with the mandates of the President's Office of National Drug Control Policy 2009 National Drug Control Strategy, will continue its efforts to reduce illegal use of controlled substances on public lands. These proposed supplementary rules will provide for consistent application and enforcement of alcohol and drug regulations on public lands, further enhancing public safety by all public land users.

These proposed supplementary rules will supersede that portion of the existing supplementary rule enacted in the BLM Idaho Falls District (67 FR 30958) and the restriction orders (ID-060-20 and ID-420-05) currently in place for the BLM Coeur d'Alene District pertaining to the underage possession and consumption of alcoholic beverages and the possession of an open container of alcohol in a motor vehicle.

III. Procedural Matters

Executive Order 12866, Regulatory Planning and Review

The proposed 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. The proposed supplementary rules will not have an effect of $100 million or more on the economy. They 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. The proposed supplementary rules will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. The proposed supplementary rules do not materially alter the budgetary effects of entitlements, grants, user fees, or loan programs or the right or obligations of their recipients; nor do they raise novel legal or policy issues. The rules govern conduct for public use of a limited selection of public lands and provide greater consistency with the Idaho State Code to protect public health and safety.

Clarity of the Supplementary Rules

Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. The BLM invites your comments on how to make these proposed supplementary rules easier to understand, including answers to questions such as the following:

(1) Are the requirements in the proposed supplementary rules clearly stated?

(2) Do the proposed supplementary rules contain technical language or jargon that interferes with their clarity?

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

(4) Would the proposed supplementary rules be easier to understand if they were divided into more (but shorter) sections?

(5) Is the description of the proposed supplementary rules in the SUPPLEMENTARY INFORMATION section of this preamble helpful to your understanding of the proposed supplementary rules? How could this description be more helpful in making the proposed supplementary rules easier to understand? Please send any comments you have on the clarity of the proposed supplementary rules to the address specified in the ADDRESSES section.

National Environmental Policy Act

The BLM has determined that this proposed supplementary rule is administrative in nature, and is therefore categorically excluded from environmental review under section 102(2)(C) of NEPA, pursuant to 43 CFR 46.205 and 46.210(c) and (i). The proposed supplementary rule does not meet any of the 12 criteria for exceptions to categorical exclusions listed at 43 CFR 46.215. Pursuant to the Council on Environmental Quality regulations (40 CFR 1508.4) and the environmental regulations, 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.

Regulatory Flexibility Act

Congress enacted the Regulatory Flexibility Act of 1980 (RFA), 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 proposed supplementary rules govern the conduct of the public using a limited area of public lands and should have no effect on business entities of any size. Therefore, the BLM has determined under the RFA that these proposed supplementary rules would not have a significant economic impact on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

These proposed supplementary rules do not constitute a “major rule” as defined at 5 U.S.C. 804(2). They would not result in an effect on the economy of $100 million or more, an increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. These rules merely establish the rules of conduct for public use of a limited area of public lands and do not affect commercial or business activities of any kind.

Unfunded Mandates Reform Act

These proposed 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 proposed supplementary rules have a significant or unique effect on State, local, or tribal governments or the private sector. These 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 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)

These proposed supplementary rules do not have significant takings implications, nor are they capable of interfering with constitutionally protected property rights. Therefore, the BLM has determined that these rules will not cause a “taking” of private property or require preparation of a takings assessment.

Executive Order 13132, Federalism

The proposed supplementary rules will not have a substantial direct effect 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 proposed supplementary rules do not conflict with any Idaho state law or regulation. Therefore, in accordance with Executive Order 13132, the BLM has determined that these proposed supplementary rules do not have sufficient federalism implications to warrant preparation of a Federalism Assessment.

Executive Order 12988, Civil Justice Reform

The BLM has determined that these proposed supplementary rules would not unduly burden the judicial system and that they meet the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.

Executive Order 13175, Consultation and Coordination With Indian Tribal Governments

The BLM has found that these supplementary rules do not include policies that have tribal implications. The supplementary rules prohibit the illegal use of alcoholic beverages and illegal drugs on public lands and do not involve Indian tribal rights.

Information Quality Act

The Information Quality Act (Section 515 of Pub. L. 106-554) requires Federal agencies to maintain adequate quality, objectivity, utility, and integrity of the information that they disseminate. In developing these supplementary rules, the BLM did not conduct or use a study, experiment, or survey or disseminate any information to the public.

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

These proposed supplementary rules do not constitute a significant energy action. The proposed supplementary rules will not have an adverse effect on energy supplies, production, or consumption, and have no connection with energy policy.

Paperwork Reduction Act

These proposed supplementary rules 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.

Author

The principal author of this supplementary rule is Keith McGrath, State Staff Law Enforcement Ranger, Bureau of Land Management.

For the reasons stated in the Preamble, and under the authority of 43 CFR 8365.1-6, the Idaho State Director, Bureau of Land Management, issues supplementary rules for public lands in Idaho, to read as follows:

Supplementary Rules for the State of Idaho

Definitions

Alcoholic beverage means any liquid or solid, patented or not, containing alcohol, spirits, or wine, and susceptible of being consumed by a human being, for beverage purposes, and containing more than 3 percent of alcohol by weight.

Alcohol means the product of distillation of any fermented liquor, rectified either once or more often, whatever may be the origin thereof, or synthetic ethyl alcohol.

Beer means any beverage obtained by the alcoholic fermentation of an infusion or decoction of barley, malt and/or other ingredients in drinkable water.

Wine means any alcoholic beverage obtained by the fermentation of the natural sugar content of fruits (grapes, apples, etc.) or other agricultural products containing sugar (honey, milk, etc.).

Vehicle means any motorized transportation conveyance designed and licensed for use on roadways, such as an automobile, bus, or truck, and any motorized conveyance originally equipped with safety belts.

Off Highway Vehicle means any motorized vehicle capable of, or designed for, travel on or immediately over land, water, or other natural terrain. On public land administered by the BLM within the State of Idaho, you must not:

A. Violate any state laws relating to the purchase, possession, supply, use or consumption of alcohol;

B. Drink from or possess an open alcoholic beverage containers, including beer or wine containers, while operating or as a passenger in or on either a vehicle or off highway vehicle; and

C. Possess any drug paraphernalia in violation of any State law.

Penalties: On public lands 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, 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 enhanced fines provided for by 18 U.S.C. 3571.

Peter J. Ditton,

Acting Idaho State Director.