[Federal Register: December 5, 2008 (Volume 73, Number 235)]
[Rules and Regulations]
[Page 74039-74047]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05de08-12]
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Part 2300
[LLWO35000.L14300000.PN0000.24-1A]
RIN 1004-AE05
Land Withdrawals; Amendment of Regulations Regarding Emergency
Withdrawals
AGENCY: Bureau of Land Management, Interior.
ACTION: Final rule.
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SUMMARY: This final rule amends the Bureau of Land Management's (BLM)
emergency withdrawal regulation to remove language that directs the
Secretary of the Interior (Secretary) to immediately make an emergency
withdrawal upon notification by one of two congressional committees.
Constitutional questions have arisen when this regulation and
corresponding provisions in Section 204(e) of the Federal Land Policy
and Management Act (FLPMA) have been used by a congressional committee
to direct Secretarial action. A district court, however, found it
unnecessary to rule on the constitutionality of the committee-directed
provision in Section 204(e) of FLPMA because the Secretary had bound
himself through regulations regarding special action on emergency
withdrawal. This final rule removes from regulations only the provision
that has been the subject of past constitutional questions.
DATES: This rule is effective January 5, 2009.
FOR FURTHER INFORMATION CONTACT: For information on the substance of
the rule, please contact Jeff Holdren at 202-452-7779 or Vanessa Engle
at 202-452-7776. For information on procedural matters, please contact
Jean Sonneman at 202-785-6577. Persons who use a telecommunications
device for the deaf (TDD) may call the Federal Information Relay
Service (FIRS) at 1-800-877-8339 to contact the above individuals. FIRS
is available 24 hours a day, 7 days a week, to leave a message or
question with the above individuals. You will receive a reply during
normal business hours.
SUPPLEMENTARY INFORMATION:
I. Background
II. Discussion of the Final Rule
III. Discussion of Public Comments
IV. Procedural Matters
I. Background
Section 204(e) of FLPMA provides that the Secretary of the Interior
shall withdraw lands immediately upon a determination, either by the
Secretary or by either of two committees of the Congress, that an
emergency exists and that extraordinary measures need to be taken to
protect natural resources or resource values that otherwise would be
lost. The congressional notification authority may be exercised by the
Committee on Natural Resources of the House of Representatives or by
the Committee on Energy and Natural Resources of the Senate. 43 U.S.C.
1714(e). The BLM's regulations at 43 CFR 2310.5 state that the
Secretary shall immediately withdraw lands when the Secretary
determines, or when the Secretary is notified by a Committee, that an
emergency exists and that extraordinary measures must be taken to
protect natural resources or resource values that would otherwise be
lost.
Over the years the Secretary has rarely invoked his authority to
make an emergency withdrawal. In addition, the committee-directed
emergency withdrawal provision has been controversial; the
constitutionality of Section 204(e) has been the subject of litigation.
In 1991, the BLM published a proposal to remove all regulations in
43 CFR part 2300 related to emergency withdrawals (56 FR 59914 (Nov.
26, 1991)). In addition to raising the constitutional issue, the
preamble for that proposed rule included an explanation that the first
sentence of Section 204(e) is redundant, since public lands can be
protected rapidly through the normal exercise of the general withdrawal
authority, without invoking FLPMA Section 204(e). That proposed rule
was never finalized, and it was withdrawn from the Semi-Annual
Regulatory Agenda in 1993.
The BLM published another proposed rule on October 10, 2008 (73 FR
60212 (2008)) that would remove all regulations that provide for
emergency withdrawals. The rationale for that proposed rule was the
same as that for the 1991 proposal--i.e., that the existing regulations
are redundant and that the committee-directed withdrawal presents
constitutional issues. The public comment period on the proposed rule
closed on October 27, 2008.
We received approximately 800 comments during the comment period.
All comments were carefully reviewed. More than 90 percent of the
comments were form letters or duplicates, some of which opposed the
proposed rule, and some of which supported it. All relevant comments
are discussed below.
In response to many of these comments and after additional internal
deliberation, we are now promulgating a final rule that, instead of
removing the BLM's regulations regarding emergency withdrawals in their
entirety, removes
[[Page 74040]]
only that portion of 43 CFR 2310.5 that implements the committee-
directed withdrawal provision of Section 204(e) of FLPMA. As set forth
more fully below, the BLM continues to believe that the Secretary-
initiated emergency withdrawal regulations are redundant and
unnecessary. However, in response to public comments desiring minimal
changes to the Secretary's regulatory authority, the BLM has decided
not to amend the regulations as they relate to the Secretary's
authority to make emergency withdrawals. In addition to removing
language pertaining to committee-directed withdrawals, this rule makes
clarifying changes that do not affect the substance of the emergency
withdrawal regulation (43 CFR 2310.5).
II. Discussion of the Final Rule
The proposed rule would have removed the BLM's emergency withdrawal
regulations in their entirety, although the statutory authority for
those withdrawals would have remained in place. Part of the rationale
for the proposed rule was that the emergency withdrawal process is
redundant, as the BLM can protect public lands quickly via the
segregative effect contained in the conventional withdrawal process
found in Section 204 of FLPMA and in the BLM's regulations at 43 CFR
part 2300.
More specifically, the BLM's view is that the conventional
withdrawal process results in the protection of lands quickly and just
as effectively as the emergency withdrawal process. Conventional
procedures enable the BLM to protect public lands, without substantial
delay, for as long as 2 years by requiring that the BLM publish a
Federal Register notice of the filing of a withdrawal application or
proposal. Such publication temporarily segregates the public lands from
settlement, sale, location, or entry under the public land laws,
including the mining laws, to the extent specified in the notice. 43
CFR 2310.2(a). The 2-year segregation period ends when an order is
published withdrawing the lands, or when the Secretary denies or
cancels a withdrawal application. 43 CFR 2310.2-1.
If a petition seeks an emergency withdrawal, the petition is filed
simultaneously with an application for withdrawal. 43 CFR 2310.1-3(d).
If the Secretary approves a petition for an emergency withdrawal, the
publication and notice provisions pertaining to emergency withdrawals
are applicable. 43 CFR 2310.1-3(e). Those provisions, at 43 CFR 2310.5,
include the immediate issuance of a withdrawal order signed by the
Secretary which is effective when signed, does not exceed 3 years in
duration, and may not be extended by the Secretary. 43 CFR 2310.5(a).
The Secretary also must send a notice of the emergency withdrawal to
the Committee on Natural Resources of the House of Representatives and
the Committee on Energy and Natural Resources of the Senate the same
day it is signed, and send a report to both committees within 90 days.
43 CFR 2310.5(b) and (c).
The 2-year segregation that occurs immediately upon notice of a
conventional withdrawal proposal or application has the same effect as
the first 2 years of a 3-year emergency withdrawal. However, the
conventional process permits the extension of a withdrawal that is
granted during the 2-year segregative period, if warranted by the
purpose for which the withdrawal was first made. 43 CFR 2310.4(a). In
addition, public notice and opportunities for comment under
conventional withdrawal procedures (43 CFR 2310.3-1(b)(2)(iv)-(v) and
(c)) do not occur for emergency withdrawals. Unlike the emergency
process, the conventional process ensures that the BLM casts a wide net
for information and takes appropriate account of, and considers the
interests of, persons with legally recognized interests in land or
other natural resources. An additional difference between segregation
and an emergency withdrawal is that along with the notice to Congress,
the Secretary must also undertake certain steps set forth at 43 U.S.C.
1714(c)(2) within 3 months after an emergency withdrawal is made. Those
steps are not required for segregation. An emergency withdrawal may not
be extended by the Secretary. 43 CFR 2310.5(a). Lands involved in an
emergency withdrawal may continue to be withdrawn past the expiration
of the emergency withdrawal only via the conventional withdrawal
procedures. Id. Thus, in sum, the emergency withdrawal process is
unnecessary because of the segregative effect provided by the
conventional withdrawal process.
As set forth more fully in Part III below, many comments opposed
the proposed rule out of a concern that the BLM was removing the
authority granted to it by Congress to protect public lands on an
emergency basis and that the emergency withdrawal regulations were not
redundant. The BLM does have a strong desire to preserve its regulatory
authority to protect public lands and continues to believe that such
protection can occur quickly and just as effectively through the
conventional process, with the added benefit of providing more
opportunity for the public to participate. However, the assertion of
redundancy did not resonate with some of the commenters. Therefore, the
BLM has decided not to remove the emergency withdrawal regulations in
their entirety. After today's rule becomes effective, the Secretary's
regulatory authority to make emergency withdrawals (or any withdrawals,
for that matter) remains unchanged. The regulations will continue to
provide a procedure whereby the Secretary can protect natural resources
or other values quickly via either the conventional or emergency
withdrawal process.
The rule, instead, removes the committee-directed withdrawal
provision of the regulation. Constitutional questions about Section
204(e) have arisen in some instances when a congressional committee has
directed the Secretary to make an emergency withdrawal. By removing the
corresponding provision in the regulation, a potential impediment to a
judicial resolution of the issue of the constitutionality of the
statutory provision is removed. As noted above, the Secretary's ability
to protect lands via the conventional and emergency withdrawal process
will remain unchanged by this rule.
Two previous committee notices (both from the House Committee on
Interior and Insular Affairs) led to litigation in which the
constitutionality of Section 204(e) was challenged. See Pacific Legal
Foundation v. Watt, 529 F. Supp. 982 (D. Montana 1981); National
Wildlife Federation v. Watt, 571 F. Supp. 1145 (D.D.C. 1983) (granting
preliminary injunction); National Wildlife Federation v. Clark, 577 F.
Supp. 825 (D.D.C. 1984) (granting summary judgment).
In Pacific Legal Foundation, the Secretary and other parties argued
that FLPMA Section 204(e) was unconstitutional because its application
through unilateral action by the committee: (a) Violated the separation
of powers doctrine; (b) delegated executive power to the committee; (c)
violated the requirement of bicameralism (i.e., legislation must be
approved by both Houses of Congress); and (d) deprived the President of
his veto power (known as the presentment requirement). At the time of
that case, the U.S. Court of Appeals for the Ninth Circuit had set
aside, as unconstitutional, a statutory provision that authorized
either House of Congress to execute a legislative veto over decisions
made by the Attorney General. Chadha v. Immigration and Naturalization
Service, 634 F.2d 408 (9th Cir. 1980). Relying in part on that
[[Page 74041]]
decision, the U.S. District Court in Montana held that, but for one
distinguishing feature of Section 204(e), the Ninth Circuit's ruling in
Chadha would have ``compelled'' the district court to declare Section
204(e) unconstitutional. Pacific Legal Foundation v. Watt, 529 F. Supp.
982, 1002 (D. Montana 1981). According to the district court, the
saving feature of Section 204(e) was Secretarial discretion to
determine the scope and duration of an emergency withdrawal. Id. at
1000.
Subsequently, the Supreme Court affirmed the Ninth Circuit's
decision in Immigration and Naturalization Service v. Chadha, 462 U.S.
919 (1983). The breadth of the Supreme Court's ruling casts doubt on
the validity of the Montana court's decision. For example, the Court
stated, ``Congress' authority to delegate portions of its power to
administrative agencies provides no support for the argument that
Congress can constitutionally control administration of the laws by way
of a congressional veto.'' 462 U.S. at 953 n.16.
The second case in which the constitutionality of FLPMA Section
204(e) was at issue, National Wildlife Federation v. Watt, began when
plaintiffs brought suit against the Secretary seeking review of a
notice to receive and accept bids for the sale of coal leases. The
plaintiffs argued that the notice was in contravention of a resolution
adopted by the Interior and Insular Affairs Committee of the House of
Representatives, directing the Secretary to withdraw certain lands from
coal leasing temporarily. The court held that a forced withdrawal, like
the legislative veto that was invalidated by the Supreme Court in
Chadha, would probably be held to be legislative in character, since it
alters the legal rights and duties of the Secretary of the Interior.
Accordingly, the court found that the plaintiffs' attempt to
distinguish Section 204(e) from an invalid legislative-veto provision,
on the grounds that the withdrawal was temporary, was unlikely to
succeed. National Wildlife Federation v. Watt, 571 F. Supp. 1145, 1155
(D.D.C. 1983). However, the court found that the plaintiffs were likely
to prevail on the merits of their claim that the emergency-withdrawal
regulation (43 CFR 2310.5) was binding on the Secretary irrespective of
the validity of Section 204(e), since no action had been taken to
remove the regulation through notice-and-comment procedures. 571 F.
Supp. at 1158. In a subsequent decision granting the plaintiffs' motion
for summary judgment, the court found that it was unnecessary to reach
the constitutional question, and instead required that the Secretary
``honor his own regulation unless and until he has rescinded or amended
it after an appropriate rulemaking proceeding, or until the Committee
has vacated its Resolution.'' National Wildlife Federation v. Clark,
577 F. Supp. 825, 828-29 (D.D.C. 1984).
Thus, whenever a congressional committee directs the Secretary to
withdraw lands immediately, issues with regard to the constitutionality
of that action are likely to arise. Such issues do not arise when the
Secretary initiates and utilizes his conventional or emergency
withdrawal authority. This rulemaking is not a forum for resolving the
validity of the committee-directed withdrawal provision of Section
204(e). However, in view of the district court's ruling in National
Wildlife Federation v. Clark, the existing committee-directed provision
of the emergency-withdrawal regulation may be an impediment to
resolving that question in the future in an appropriate forum. Further,
as a matter of policy, the BLM does not wish to implement a statute of
such questionable constitutionality. However, the statutory language in
FLPMA Section 204(e) for a committee-directed emergency withdrawal
remains unchanged by this rulemaking and does remain in effect. We
should note that we received a June 25, 2008 communication from the
House Committee on Natural Resources, citing the committee-directed
provision in FLPMA Section 204(e) and the BLM's corresponding
regulation at 43 CFR 2310.5. As discussed above, this rule is
prospective and only affects the regulation, not the statute. Thus,
this rule has no impact on the June 25, 2008 communication.
In addition to removing language pertaining to committee-directed
withdrawals, this rule makes clarifying changes that do not affect the
substance of the emergency withdrawal regulation.
This final rule is a ``logical outgrowth'' of the proposed rule and
the public has therefore had adequate notice and opportunity for
comment. The proposed rule would have eliminated all of the emergency
withdrawal regulations, including the portion implementing the
committee-directed withdrawal provision of FLPMA Section 204(e) that is
removed by today's rule. Today's rule, in response to comments and upon
further deliberation, implements a portion of what was proposed. The
public has therefore had adequate notice and opportunity to comment on
the removal of the committee-directed withdrawal provision of the
regulation.
III. Discussion of Public Comments
Difficulty Submitting Comments
One comment complained of trying for 3 days to fax comments from
several locations, but was never able to get a fax through, and
remarked that it was convenient for the BLM to be able to say that they
received little public comment on this matter.
This commenter successfully submitted comments by one of the
methods provided for in the proposed rule: Hand-delivery, postal mail,
or posting on the Internet at regulations.gov. We believe that the
commenter received a BLM fax number from an organization that, at our
invitation, had faxed a copy of a letter to us. Subsequently, the
organization distributed the fax number widely to prospective comments.
When we began to receive comments by fax, we advised the organization
that we normally do not accept comments that are sent by fax. A
representative of that organization said a message would be sent that
comments should not be submitted by fax.
In any event, while we normally do not accept faxed comments and
faxing was not one of the methods for submitting comments provided for
in the proposed rule, in the circumstances of this rulemaking we have
included paper copies of all the faxed comments in the administrative
record and have considered the substance of the comments in our
deliberations. We will also post representative samples of repeated
faxed comments, as well as unique faxed comments, on regulations.gov.
Length of the Comment Period
Several comments indicated that the comment period should be longer
than the 15 days provided in the proposed rule. Generally, those
comments claimed that Executive Order 12866, Section 309(e) of FLPMA,
or the Administrative Procedure Act (APA) require longer periods. They
also claimed that the fact that the public already had a chance to
comment on the 1991 proposed rule was not an adequate justification for
the 15-day comment period. In addition, two organizations sent letters
requesting that the comment period be extended. Our letters denying
those organizations' requests are posted at regulations.gov.
For several reasons, these comments have not been adopted and the
comment period was not extended. First, as discussed in the preamble to
the proposed rule, Executive Order 12866 does not apply because the
Office of Management and Budget (``OMB'') has
[[Page 74042]]
determined that the rule is not ``significant'' as defined in that
Order. More specifically, one comment stated that the rule is
``significant'' and the comment period should be extended because the
rule may adversely affect the environment (including historical,
cultural, and governmental resources) across the West. The comment
specifically referenced a June 25, 2008 communication from the Chairman
of the House Natural Resources Committee directing the Secretary to
withdraw certain lands surrounding the Grand Canyon from mineral
location and entry.
As explained in the preamble to the proposed rule, segregation of
lands provided for in the conventional withdrawal process is equally as
effective to protect resources as are emergency withdrawals. Moreover,
contrary to the comments' suggestion, the rule does not have any on-
the-ground effects. The rule does not open or close any lands to or
from any public land laws; rather, this rule simply removes the
procedure for a committee-directed emergency withdrawal of lands from
the BLM's regulations. This rule is prospective only and will have no
effect on the June 25, 2008 communication from the House Committee
Chairman. Several commenters appear to believe that this rule will have
environmental effects because an as-yet-unidentified tract of land may
not be withdrawn in the future. But the amendment of the regulation to
remove the committee-directed withdrawal portion is not tied to a
particular tract of land and to link this rule with effects that may
occur in the future is purely speculative. In any event, as explained
above, we have chosen not to eliminate the Secretary-driven emergency
withdrawal process from the regulations. Therefore, the Secretary's
authority to make emergency withdrawals remains unchanged by this rule.
Second, the APA does not prescribe a minimum comment period for
informal rulemaking. The BLM believes a reasonable amount of time has
been provided in this instance because the proposed rule is not
complex. The proposed change removes regulatory text that sets forth a
process that is articulated in FLPMA. The rule does not alter the
relevant FLPMA language. Finally, the BLM believes the comment period
was also reasonable in light of the 1991 rulemaking. At that time, the
public had the opportunity to comment on the 1991 proposed rule. Those
comments have been reviewed as part of this rulemaking. The substance
of the proposed rule was identical to the rule proposed in 1991, and
the issues remain the same. Furthermore, this final rule only
implements a portion of that proposed rule. For these reasons, we also
disagree with the comments indicating that the 1991 process is
irrelevant.
The Constitutional Issue
Some comments not in favor of the proposed rule argued that the
statute was not unconstitutional and that the constitutional issue was
not a valid reason for the proposed rule. In contrast, some comments in
favor of the rule stated that Section 204(e) is unconstitutional. Some
of those comments noted that the Department of Justice's Office of
Legal Counsel (OLC) issued an opinion in 1983 stating that the
committee-directed withdrawal provision of FLPMA Section 204(e) is
unconstitutional.
The BLM disagrees that the recurring constitutional questions that
have been raised during the history of these regulations is not a valid
reason for this rule. History has demonstrated that whenever a
congressional committee directs the Secretary to withdraw lands
immediately, issues with regard to the constitutionality of that action
are likely to arise. The committee-directed withdrawal provision of the
regulation implements a portion of FLPMA Section 204(e) that is of
questionable constitutionality under Chadha, 462 U.S. 919, as a
committee-directed withdrawal arguably alters the legal rights and
duties of the Secretary of the Interior. This rulemaking is not the
forum to finally resolve that issue. It is a decision for the courts.
However, as noted above, under a DC District Court decision, the
regulation itself is a potential impediment to judicial resolution of
that issue. See Clark, 577 F.Supp. at 828-29. The BLM wishes to remove
the regulation so as to avoid implementing a statute that is of such
questionable constitutionality, and to remove a potential impediment to
a future Court decision on that issue. Again, however, we note that
this rule would have no effect on the relevant statutory language. The
BLM believes that without the change, the uncertainty surrounding the
constitutionality of the statute and the respective roles of the
Legislative and Executive Branches will continue.
Some comments stated that the Executive Branch has the duty to
faithfully execute the laws and should therefore not challenge the
constitutionality of a statute. They also stated that the BLM should
leave the committee-directed emergency withdrawal provisions in place
in order to maintain a harmonious relationship with Congress.
The BLM disagrees with these comments. First, in this rulemaking
the BLM is removing a potential impediment to judicial resolution of
the constitutional issue based on past litigation on the provision, and
is not making a direct constitutional challenge to the statute. Second,
the Executive Branch has in the past taken the position that a statute
is unconstitutional. In fact, that was exactly the position of the
Executive Branch in Chadha, in which the Supreme Court agreed with the
executive that the statute in that case was unconstitutional. As for
maintaining a harmonious relationship with Congress on this topic, the
BLM believes that by promulgating this final rule and thus potentially
facilitating future resolution of this issue, there will be an
opportunity to establish clearer expectations regarding committee-
directed emergency withdrawals.
Redundancy
The BLM's view is that the conventional withdrawal process results
in the protection of lands quickly and just as effectively as the
emergency withdrawal process. This is because the conventional process
authorizes the BLM to quickly segregate the lands from the public land
laws, including the mining laws, while the withdrawal is considered.
Segregation has the same practical effect as a withdrawal. Thus,
natural resource values can be protected quickly by way of the
conventional withdrawal process. In addition, the conventional
withdrawal process is preferred because, unlike the emergency
withdrawal process, it provides for substantial public participation
and input.
Several comments disagreed that the emergency withdrawal
regulations were redundant, stating that the committee-directed
withdrawal provision is not part of the conventional withdrawal
process, and segregation under conventional withdrawal procedures does
not provide the same level of protection as an emergency withdrawal.
One comment argued that the two procedures do not provide the same
level of protection because validity exams (i.e., examinations by the
appropriate agency to determine the validity of a particular mining
claim) are only required on withdrawn lands and are at the agency's
discretion on segregated lands. Another comment stated that the
conventional withdrawal procedures and emergency withdrawal procedures
are not redundant because the Secretary must seek approval to
[[Page 74043]]
conventionally withdraw lands under the jurisdiction of another agency,
while there is no such requirement for an emergency withdrawal. Another
comment stated that the rule creates an inconsistency between the
statute and the regulations and confuses Congress and the public and
that the removal of the emergency regulations will seriously undermine
the capacity of the Federal government to act quickly in extraordinary
circumstances that threaten irreplaceable public resources. Other
comments stated that the Secretary should not voluntarily remove one of
the tools granted to him by Congress to protect public lands.
Although the BLM disagrees with the conclusions of those comments
they do highlight an area of possible confusion. The BLM agrees that
the committee-directed withdrawal provision of the regulation (43 CFR
2310.5) is not redundant in the sense that there is no analogous
provision in the conventional withdrawal process. However, the same
goal can be met by the Secretary; that is, he can ``preserve values
that might otherwise be lost'' on an emergency basis via segregation.
The remainder of the emergency withdrawal regulation (i.e., the
emergency withdrawals made by the Secretary without direction from a
congressional committee) is clearly redundant because of the BLM's
authority to segregate the lands during the conventional withdrawal
process. As pointed out above, segregation does in fact have the same
effect as an emergency withdrawal whether the Secretary is reacting to
a committee-directed withdrawal or on his own: it closes the specified
land to application of the mining laws in the particular area at issue
to the extent specified. See, e.g., Preamble to the BLM's final rule
amending mining regulations, 65 FR 69998, at 70026 (2000) (``there is
no difference between `segregated' lands and `withdrawn' lands during
the period of the segregation''). In other words, if the Secretary
believes that an emergency situation exists, he can protect the lands
quickly and effectively through the conventional withdrawal process
(because the lands will be segregated while the withdrawal is
considered) as he could by invoking his authority to make an emergency
withdrawal. Of course, a segregation is limited to 2 years, while an
emergency withdrawal can be up to 3 years. However, the protection of
the lands at the end of the segregation period can be continued if the
lands are in fact withdrawn. In addition, the validity examination
process is in fact applicable to both withdrawn and segregated lands.
As pointed out in the preamble to the mining regulations referenced
above, the BLM will examine the purpose of the segregation to determine
if a validity exam is necessary on segregated lands; and, if so,
perform that validity exam. 65 FR at 70026. A determination of
invalidity has the same effect on both withdrawn and segregated lands.
Finally, for similar reasons, the BLM disagrees with the comment
stating that the two processes are not redundant because the Secretary
must seek approval of conventional withdrawals on lands under another
agency's jurisdiction. This comment compares the conventional
withdrawal to an emergency withdrawal. The proper comparison is between
an emergency withdrawal and segregation, which is part of the
conventional withdrawal process. The Secretary need not seek the
approval of another agency to segregate the lands while a conventional
withdrawal is considered. Thus, just as he can through the emergency
withdrawal process, the Secretary, through segregation, can remove
lands from the operation of the public land laws on a temporary
emergency basis without the consent of any other agency.
However, although the BLM continues to believe that it can protect
natural resource values quickly and effectively via the conventional
withdrawal process, in response to the concerns raised by these
comments and a desire to make minimal changes to the regulations, we
have decided not to remove the regulations in their entirety. Thus,
today's rule has no effect on the regulations dealing with the
Secretary's authority to make emergency or conventional withdrawals.
Both of these regulatory tools will remain at the Secretary's disposal.
General Environmental Concerns
Some comments opposed to the rule expressed environmental concerns
about mining and specifically about opening Federal lands to mining.
Some of these comments specifically referenced uranium mining near
Grand Canyon National Park and a June 25, 2008 communication from the
Chairman of the House Natural Resources Committee directing the
Secretary to withdraw certain lands surrounding the Grand Canyon from
mineral location and entry under FLPMA Section 204(e).
The BLM appreciates the concerns raised in these comments but
disagrees that they are relevant to this rulemaking. First, the rule
merely removes one regulatory process in order to remove a potential
barrier to judicial resolution of FLPMA Section 204(e)'s
constitutionality. The rule does not open any lands to mining. Further,
the rule is prospective only and therefore does not have any effect on
the June 25, 2008 communication relating to lands surrounding the Grand
Canyon. Finally, as discussed more fully above, the final rule leaves
in place the regulations authorizing the Secretary to, on his own
initiative, effect an emergency withdrawal to protect natural resource
or other values that might otherwise be lost. Amending the regulation
to remove the portion addressing committee-directed withdrawals does
not affect the Secretary's ability to protect lands, including park
lands, on an emergency basis either through an emergency withdrawal or
through the conventional withdrawal process.
National Environmental Policy Act
Some comments stated that the proposed rule violated the National
Environmental Policy Act (NEPA). Several comments stated that the
Categorical Exclusion invoked in the proposed rule (516 DM, Chapter 2,
Appendix 1, CX 1.10) is not applicable and therefore an Environmental
Assessment or Environmental Impact Statement is required in order to
comply with NEPA. Specifically, comments stated that the elimination of
the committee-directed withdrawal provision is not ``of an
administrative, financial, legal, technical, or procedural nature''
because it would have ``on-the-ground effects.'' In this regard,
several comments referred to the June 25, 2008 communication from the
Chairman of the House Natural Resources Committee directing the
Secretary to make a withdrawal of certain lands surrounding the Grand
Canyon from mineral location and entry and claimed that those lands
would be affected by the removal of this regulation. Comments also
claimed that the effects are not ``too broad, speculative, or
conjectural to lend themselves to meaningful analysis'' because of
environmental impacts from mining exploration or development in areas
that would be withdrawn or segregated under FLPMA Section 204(e) and
the implementing regulations. Finally, one comment stated that numerous
activities that would occur in withdrawn or segregated areas, such as
mining exploration activities less than 5 acres, would not later be
subject to NEPA requirements.
The categorical exclusion is applicable to this rule. First, we
note that the categorical exclusion at issue has been amended effective
November 14, 2008, to exclude from NEPA review:
[[Page 74044]]
Policies, directives, regulations, and guidelines: That are of
an administrative, financial, legal, technical, or procedural
nature; or whose environmental effects are too broad, speculative,
or conjectural to lend themselves to meaningful analysis and will
later be subject to the NEPA process, either collectively or case-
by-case.
73 FR 61292, 61319 (Oct. 15, 2008); 43 CFR 46.210 (emphasis added). As
explained in the preamble to the rule amending the categorical
exclusion, the exclusion was modified in error in 2004 to include an
``and'' after the first clause. The recent rulemaking corrects that
error by inserting the word ``or.'' Thus, if this rule meets either the
first or second part of the categorical exclusion, the exclusion will
apply.
Second, this rule is of both a legal and procedural nature. As
explained above, it does not have any on-the-ground effects. The rule
does not open or close any lands to or from any public land laws;
rather, this rule simply removes one procedure for the withdrawal of
lands from the BLM's regulations. Moreover, this rule is prospective
only and will have no effect on the June 25, 2008 communication from
the House Committee Chairman. Several comments appeared to believe that
the proposed rule will have environmental effects because an as-yet-
unidentified tract of land may not be withdrawn in the future. But the
removal of the committee-directed provision of the emergency withdrawal
regulation is not tied to a particular tract of land and to link this
rule with effects that may occur in the future is purely speculative.
One comment also stated that even if the categorical exclusion
applies by its terms, extraordinary circumstances exist that preclude
its use. More specifically, that comment stated that extraordinary
circumstances exist because the lands covered by the June 25, 2008
communication contain properties eligible for listing under the
National Historic Preservation Act (NHPA), including Indian Sacred
Sites, and are in close proximity to the Grand Canyon. Thus, the
comment claimed that two of the BLM's extraordinary circumstances
apply: (1) Actions that may have significant impacts on properties
listed or eligible for listing under the NHPA and (2) actions that may
have significant impacts on natural resources and unique geographic
characteristics.
None of the extraordinary circumstances applies to this rule. As
noted above, this rule in no way affects the June 25, 2008
communication relating to lands surrounding the Grand Canyon. This rule
removes the committee-directed emergency withdrawal procedure from the
BLM's regulations. While mining in a particular area may affect
properties listed or eligible for listing under NHPA, or might affect
the natural and cultural resources or sites present in that area, this
rule does not open or close any lands to the operation of the public
land laws, including mining laws. Therefore, the comment's statement
that the rule will impact any particular area, including the lands
covered by the June 25, 2008 communication, is incorrect.
Endangered Species Act
Some comments stated that the proposed rule violated the Endangered
Species Act (ESA) because the BLM did not enter into consultation with
the U.S. Fish and Wildlife Service and the National Marine Fisheries
Service regarding the rule. One of the comments stated that mineral
operations ``implicated'' by the promulgation of the rule ``may
affect'' threatened or endangered species. The comment again referred
to the June 25, 2008 communication as an example.
Consultation under the ESA is not required for two reasons. Under
the ESA and its implementing regulations, the consultation requirement
only applies to ``actions'' of Federal agencies, which are further
defined as all ``activities or programs'' authorized, funded, or
carried out by an agency. 15 U.S.C. 1536; 50 CFR 402.02. Here,
amendment of the regulations to remove a certain procedure (i.e.,
committee-directed emergency withdrawals) is not an ``activity or
program'' of the BLM; it is simply removing a certain procedure. While
the ESA regulations include ``promulgation of regulations'' in the
definition of ``action,'' this does not mean that every rule
necessitates consultation. Here, the amendment of the emergency
withdrawal regulation to remove the portion dealing with committee-
directed withdrawals does not authorize, fund, or carry out an activity
or program. As such, the ESA does not apply. Second, even if the
amendment of the regulation is an ``action'' for purposes of Section 7
of the ESA, it will have no effect on listed species or designated
critical habitat because the removal of this procedure from the BLM's
regulations will not cause any environmental effects whatsoever. As
explained above, this rule does not open any lands to mining. Nor does
the rule alter the Secretary's authority to protect lands and resources
through an emergency or conventional withdrawal. As such, this rule
will not cause any direct effects or any indirect effects that are
reasonably certain to occur. See 50 CFR 402.02.
National Historic Preservation Act
Some comments stated that the BLM is required to conduct
consultation under the National Historic Preservation Act (NHPA) with
affected Native American Tribes because Native American sacred,
cultural and historical sites and land would potentially be affected by
the rule.
The consultation requirement of the NHPA applies only to
``undertakings'' of a Federal agency, which are defined as a ``project,
activity, or program funded in whole or in part under the direct or
indirect jurisdiction of a Federal agency.'' 36 CFR 800.16(y). The
amendment of the emergency withdrawal regulation to remove that portion
dealing with committee-directed withdrawals is not a ``project,
activity, or program'' as defined by the regulations of the Advisory
Council on Historic Preservation. Accordingly, the Act does not apply.
FLPMA
Some comments stated that the proposed rule violates FLPMA 204(e)
because FLPMA directs the Secretary to promulgate rules and regulations
to implement the Act and the Act contains an emergency withdrawal
provision. One of these comments also stated that the proposed rule
does not comply with the FLPMA requirement to prevent ``unnecessary or
undue degradation'' of the public lands.
The rule does not violate FLPMA. FLPMA does not require that the
BLM issue regulations to implement each and every provision of FLPMA;
instead, it requires the Secretary to issue regulations that are
necessary to implement the Act. 43 U.S.C. 1733(a). As explained herein
and in the proposed rule, the BLM does not believe that the emergency
withdrawal regulations are necessary to implement the Act. However,
although the BLM continues to believe that the conventional withdrawal
process can provide effective protection to resources or resource
values on an emergency basis, we have decided to leave in place the
regulations dealing with the Secretary-initiated emergency withdrawal
process. The comment has not explained how the rule would cause
``unnecessary or undue degradation,'' and no such causal link can be
made between the rule and any on-the-ground effects.
Keeping Lands Open to Mining
Some commenters supported the proposed rule because they believe it
will open lands to mining. For example, one comment supported the
proposed
[[Page 74045]]
rule as a means of ensuring the reasonable entry of mining on the
plateaus on the north and south side of the Grand Canyon. Similarly,
some comments were in favor of the proposed rule because they have a
vested interest in ensuring that lands remain open to mineral entry,
and were of the view that the rule will protect access to mineral
deposits on public lands open to mineral entry, and protect the right
to use and occupy those lands for prospecting, mining, and processing
operations and all uses reasonably incident thereto. These comments
also stated that it is important for the United States to utilize and
produce domestic sources of the minerals required to maintain our
economy, our national security and our standard of living. Some of
these comments stated that for national security and national economic
security reasons, withdrawal should always be the last approach for
protection of public lands.
Although the BLM appreciates the concerns raised by these comments,
this rule does not open or close any lands to the operation of the
public land laws, including mining laws. Nor does the rule protect
access to mineral deposits or the right of claimants to prospect or
mine. As explained above, this rule merely amends the emergency
withdrawal regulation to remove that portion dealing with the
committee-directed emergency withdrawals. Through this rule, the BLM is
not taking any position on when a withdrawal--emergency or otherwise--
is appropriate.
Opportunity for Public Input
Some comments which supported the proposed rule stated that removal
of the emergency withdrawal regulations is long overdue. They stated
that the emergency withdrawal process, unlike the conventional
withdrawal process, does not provide public notice and opportunities
for comment by people who own or have other interests in the land and
its natural resources and that select congressional committees should
not be allowed to bypass or restrict the valuable input of those
affected, and leave them with little recourse.
The BLM agrees that the conventional withdrawal process provides
more opportunities for public input than does the emergency withdrawal
process and that this may be a reason to use conventional withdrawal
procedures instead of the emergency withdrawal process. Although
today's rule does not remove the emergency withdrawal regulations in
their entirety as proposed, it does not affect the BLM's ability to
choose the conventional procedure to protect lands and values quickly
so as to allow for greater public input. The Secretary and the BLM are
free, as they have been in the past, to choose either procedure.
Executive Order 13132, Federalism
Some comments objected to the finding in the proposed rule that
this 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 levels of
government. One comment stated that the rule will limit the ability of
the national Legislative Branch to directly represent the desires of
the states and their citizens. Another commented that states are well
situated--perhaps better than distant Federal officials--to recognize
that an emergency situation exists regarding resource values on Federal
lands within a state.
The BLM disagrees with this comment. The committee-directed
emergency withdrawal provision in FLPMA itself (Section 204(e)) is not
removed by operation of this rule. Moreover, although removal of the
regulation providing for a committee-directed withdrawal may
potentially affect relations between branches of the Federal
Government, it does not have a substantial direct effect on the
relationship between the Federal Government and the states.
Executive Order 13175, Consultation and Coordination With Indian Tribal
Governments
Some comments objected to the finding in the proposed rule that
tribal governments will not be unduly affected by this rule, and claim
that effects on tribal governments would have been revealed if the BLM
had consulted with tribes under the National Historic Preservation Act.
The BLM disagrees with these comments. As explained above, the
consultation requirement of the NHPA applies only to ``undertakings''
of a Federal agency, which are defined as a ``project, activity, or
program funded in whole or in part under the direct or indirect
jurisdiction of a Federal agency.'' 36 CFR 800.16(y). The removal of
the committee-directed emergency withdrawal provision of the regulation
is not a ``project, activity, or program'' as defined by the
regulations of the Advisory Council on Historic Preservation. Moreover,
this rule has no bearing on trust lands, or on lands for which title is
held in fee status by Indian tribes or U.S. Government-owned lands
managed by the Bureau of Indian Affairs. Thus, this rule will not
result in significant changes to BLM policy, and tribal Governments
will not be unduly affected by this rule.
Executive Order 13352, Facilitation of Cooperative Conservation
One comment objected to the finding in the proposed rule that this
rule facilitates cooperative conservation by announcing a policy of
using the conventional withdrawal process, which provides for public
participation. The comment stated that the proposed rule eliminates a
path to public involvement through the Legislative Branch.
Although the BLM disagrees with this comment, it no longer is
announcing a policy to use the conventional process as opposed to the
emergency withdrawal process. As discussed above, this final rule does
not amend the regulations relating to the Secretary's authority to make
an emergency withdrawal. The Secretary may choose either the
conventional or emergency withdrawal process. Moreover, the committee-
directed emergency withdrawal provision in FLPMA itself (43 U.S.C.
1714(e)) is not removed by operation of this rule. Also, this rule does
not in any way affect Congress's ability to pass legislation to
withdraw lands. Thus, this rule does not impede the facilitation of
cooperative conservation. This rule takes appropriate account of and
considers the interests of persons with ownership or other legally
recognized interests in land or other natural resources; properly
accommodates local participation in the Federal decisionmaking process;
and provides that the programs, projects, and activities of the agency
are consistent with protecting public health and safety.
IV. Procedural Matters
Executive Order 12866, Regulatory Planning and Review
The Office of Management and Budget (OMB) has determined that this
rule is not a ``significant regulatory action'' within the meaning of
Executive Order 12866. Some comments expressed disagreement with this
determination. This comment does not affect the validity of this rule,
since Executive Order 12866:
Is intended only to improve the internal management of the Federal
Government and does not create any right or benefit, substantive or
procedural, enforceable at law or equity by any party against the
United States, its agencies or instrumentalities, its officers or
employees, or any other person.
[[Page 74046]]
E.O. 12866, section 10. The determination of the OMB reflects the
following findings:
This rule will not have an annual effect on the economy of
$100 million or more, and will not adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health or safety, or state, local, or tribal
governments or communities.
This rule will not create any serious inconsistency or
otherwise interfere with any action taken or planned by another agency.
This rule will not materially alter the budgetary impact
of entitlements, grants, user fees, or loan programs, or the rights and
obligations of their recipients.
This rule will not raise novel legal or policy issues
arising out of legal mandates, the President's priorities, or the
principles set forth in Executive Order 12866.
National Environmental Policy Act
This rule is categorically excluded from environmental review under
Section 102(2)(C) of the National Environmental Policy Act (NEPA). In
accordance with the Department's NEPA regulations (43 CFR 46.205; 43
CFR 46.210) this categorical exclusion excludes from NEPA review:
Policies, directives, regulations, and guidelines: That are of
an administrative, financial, legal, technical, or procedural
nature; or whose environmental effects are too broad, speculative,
or conjectural to lend themselves to meaningful analysis and will
later be subject to the NEPA process, either collectively or case-by
case.
This rule is of a legal and procedural nature and is covered by the
categorical exclusion. Moreover, no extraordinary circumstances exist
that would prevent use of the categorical exclusion. See 43 CFR 46.205;
43 CFR 46.215.
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. The BLM has determined that this
rule removing the provision for committee-directed emergency
withdrawals will not have a significant economic impact on a
substantial number of small entities under the RFA.
Small Business Regulatory Enforcement Fairness Act
This rule is not a ``major rule''' as defined at 5 U.S.C. 804(2)
because it will not have an annual effect on the economy greater than
$100 million; it will not result in major cost or price increases for
consumers, industries, government agencies, or regions; and it will not
have significant adverse effects on competition, employment,
investment, productivity, innovation, or the ability of United States-
based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on state, local, or
tribal governments or the private sector, in the aggregate, of $100
million or more per year; nor does the rule have a significant or
unique effect on state, local, or tribal governments. The rule would
impose no requirements on these entities. The changes in this rule
would not have effects approaching $100 million per year on the private
sector. 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, Government Action and Interference With
Constitutionally Protected Property Rights (Takings)
This rule is not a government action capable of interfering with
constitutionally protected property rights. Therefore, the BLM has
determined that the rule would not cause a taking of private property
or require further discussion of takings implications under this
Executive Order.
Executive Order 13132, Federalism
The BLM has determined that this rule does not have a substantial
direct effect on the relationship between the Federal Government and
the states. Therefore, in accordance with Executive Order 13132, the
BLM has determined that this rule does not have sufficient Federalism
implications to warrant preparation of a Federalism Assessment.
Executive Order 12988, Civil Justice Reform
The BLM has determined that this rule does not unduly burden the
judicial system and meets 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 removal of the committee-directed portion of the emergency-
withdrawal regulation is not a ``project, activity, or program'' as
defined by the regulations of the Advisory Council on Historic
Preservation. Moreover, this rule has no bearing on trust lands, or on
lands for which title is held in fee status by Indian tribes or U.S.
Government-owned lands managed by the Bureau of Indian Affairs.
Therefore, in accordance with Executive Order 13175, the BLM has
determined that this rule will not result in significant changes to BLM
policy and that tribal Governments will not be unduly affected by this
rule.
Information Quality Act
In developing this rule, 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.).
Executive Order 13211, Effects on the Nation's Energy Supply
This rule has no implications under Executive Order 13211.
Executive Order 13352, Facilitation of Cooperative Conservation
In accordance with Executive Order 13352, the BLM has determined
that this rule is administrative in content, involving only changes
affecting issuance of emergency withdrawals. Secretarial authority for
making conventional and emergency withdrawals remains unchanged by this
rule. Thus, this rule does not impede the facilitation of cooperative
conservation; takes appropriate account of and considers the interests
of persons with ownership or other legally recognized interests in land
or other natural resources; properly accommodates local participation
in the Federal decision-making process; and provides that the programs,
projects, and activities are consistent with protecting public health
and safety.
Paperwork Reduction Act
The BLM has determined that this 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.
Authors
The principal authors of this rule are Jeff Holdren and Vanessa
Engle of the Division of Lands, Realty, and Cadastral Survey, BLM
Washington Office (WO), with assistance from the Division of
[[Page 74047]]
Regulatory Affairs (WO) and the Office of the Solicitor, Department of
the Interior.
List of Subjects in 43 CFR Part 2300
Administrative practice and procedure, Electric power, Federal
Energy Regulatory Commission, Public lands--withdrawal.
C. Stephen Allred,
Assistant Secretary of the Interior, Land and Minerals Management.
0
Under the authorities cited below, part 2300, group 2300, subchapter B,
chapter II of title 43 of the Code of Federal Regulations is amended as
follows:
PART 2300--LAND WITHDRAWALS
0
1. The authority citation for part 2300 continues to read as follows:
Authority: 43 U.S.C. 1201; 43 U.S.C. 1740; Executive Order No.
10355 (17 FR 4831, 4833).
Subpart 2310--Withdrawals, General: Procedure
0
2. Section 2310.5 is revised to read as follows:
Sec. 2310.5 Special action on emergency withdrawals.
(a) When the Secretary makes an emergency withdrawal under Section
204(e) of the Act (43 U.S.C. 1714(e)), the withdrawal will be made
immediately and will be limited in scope and duration to the emergency.
An emergency withdrawal will be effective when signed, will not exceed
3 years in duration, and may not be extended by the Secretary. If it is
determined that the lands involved in an emergency withdrawal should
continue to be withdrawn, a withdrawal application should be submitted
to the Bureau of Land Management in keeping with the normal procedures
for processing a withdrawal as provided for in this subpart. Such
applications will be subject to the provisions of Section 204(c) of the
Act (43 U.S.C. 1714(c)), or Section 204(d) of the Act (43 U.S.C.
1714(d)), whichever is applicable, as well as Section 204(b)(1) of the
Act (43 U.S.C. 1714(b)(1)).
(b) When an emergency withdrawal is signed, the Secretary must, on
the same day, send a notice of the withdrawal to the two Committees of
the Congress that are specified for that purpose in Section 204(e) of
the Act (43 U.S.C. 1714(e)).
(c) The Secretary must forward a report to each of the
aforementioned committees within 90 days after filing with them the
notice of Secretarial emergency withdrawal. Reports for all such
withdrawals, regardless of the amount of acreage withdrawn, will
contain the information specified in Section 204(c)(2) of the Act (43
U.S.C. 1714(c)(2)).
[FR Doc. E8-28742 Filed 12-4-08; 8:45 am]
BILLING CODE 4310-84-P