Land Withdrawals; Removal of Regulations Covering Emergency Withdrawals, 60212-60216 [E8-23823]
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Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Proposed Rules
External Affairs Divisions of the Office
of Pesticide Programs. The proposed
revisions are directed at antimicrobial
pesticides, not conventional pesticides,
biochemical and microbial pesticides or
product performance data requirements.
Nonetheless, all interested parties are
welcome and may benefit from the
discussions since two areas not
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microbial pesticide (72 FR 60988) data
requirements final rules are addressed
in the antimicrobial data requirements
proposed rule. These two areas are:
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the Program’s use of structure-activityrelationship (SAR).
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regarding the proposed rule and/or
material being presented and seek any
clarification they believe may assist
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docket for the proposed rule. Any
person wishing to comment on the
proposed rule must submit any
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timeframe set forth in the Notice of
Proposed Rulemaking for the proposed
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The proposed revisions were issued
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2008. A 90–day comment period will
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0110.
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161
Environmental protection,
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Dated: September 17, 2008.
Debra Edwards,
Director, Office of Pesticide Programs.
[FR Doc. E8–24025 Filed 10–9–08; 8:45 am]
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BILLING CODE 6560–50–S
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Part 2300
[WO–350–08 1430 PN]
RIN 1004–AE05
Land Withdrawals; Removal of
Regulations Covering Emergency
Withdrawals
AGENCY:
Bureau of Land Management,
Interior.
Proposed rule.
ACTION:
SUMMARY: This proposed rule would
remove regulations that provide for
emergency withdrawals. These
regulations are redundant, since public
lands can be protected without
substantial delay via conventional
withdrawal procedures, without
recourse to the regulations providing for
emergency withdrawals. Moreover,
constitutional issues may arise
whenever a Congressional committee
directs the Secretary of the Interior
(Secretary) to withdraw lands
immediately.
Send your comments on this
proposed rule to the BLM on or before
October 27, 2008. Comments received or
postmarked after this date may not be
considered in the decision-making
process on the issuance of the proposed
rule.
ADDRESSES: You may mail written
comments to the Director (630), Bureau
of Land Management, 1620 L Street,
NW., Room 401, Washington, DC 20036,
Attention: RIN 1004–AE05; or handdeliver written comments to the Bureau
of Land Management, Administrative
Record, Room 401, 1620 L Street, NW.,
Washington, DC 20036. Comments will
be available for public review at the L
Street address from 7:45 a.m. to 4:15
p.m., Eastern Time, Monday through
Friday, except Federal holidays. Federal
eRulemaking Portal: https://
www.regulations.gov.
DATES:
For
information on the substance of the
proposed 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 during business
hours. FIRS is available 24 hours a day,
7 days a week, to leave a message or
question with the above individuals.
FOR FURTHER INFORMATION CONTACT:
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You will receive a reply during normal
business hours.
SUPPLEMENTARY INFORMATION:
I. Public Comment Procedures
II. Background
A. Case Law
B. 1991 Rulemaking
III. Discussion of the Proposed Rule
A. The Two Processes
B. The Constitutional Issue
IV. Procedural Matters
I. Public Comment Procedures
Electronic Access and Filing Address:
You may view an electronic version of
this proposed rule at the BLM’s Internet
home page at https://www.blm.gov or at
https://www.regulations.gov. You may
comment via the Internet at: https://
www.regulations.gov. If you submit your
comments electronically, please include
your name and return address in your
Internet message.
Written Comments: You may mail
your comments to: Director (630),
Bureau of Land Management, 1620 L
Street, NW., Room 401, Washington, DC
20036, Attention: RIN 1004–AE05. You
may deliver comments to: 1620 L Street,
NW., Room 401, Washington, DC 20036.
Please make your comments as
specific as possible, confine them to
issues pertinent to the proposed rule,
and explain the reason for any changes
you recommend. Where possible, your
comments should reference the specific
section or paragraph of the proposed
rule that you are addressing.
Before including your address, phone
number, e-mail address, or other
personal identifying information in your
comment, be advised that your entire
comment—including your personal
identifying information—may be made
publicly available at any time. While
you can ask us in your comment to
withhold from public review your
personal identifying information, we
cannot guarantee that we will be able to
do so.
The Department of the Interior (DOI)
may not necessarily consider or include
in the Administrative Record for the
proposed rule comments that we receive
after the close of the comments period
(see DATES) or comments delivered to an
address other than those listed above
(see ADDRESSES).
II. Background
This proposed rule would remove
regulations that provide for emergency
withdrawals. These regulations,
including 43 CFR 2310.5, provide that
the Secretary of the Interior shall
withdraw lands immediately upon
determining that an emergency exists
and that extraordinary measures need to
be taken to protect natural resources or
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resource values that otherwise would be
lost. Section 2310.5 also requires an
immediate withdrawal when either of
two committees of the Congress notifies
the Secretary that it has made the same
determination that would support an
emergency withdrawal initiated by the
Secretary. 43 CFR 2310.5(a). Section
204(e) of the Federal Land Policy and
Management Act (FLPMA) provides that
this 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). (Before 1994, Section 204(e)
referred to the House and Senate
Committees on Interior and Insular
Affairs.)
A. Case Law
In the years since the enactment of
section 204(e) in 1976, the emergency
withdrawal provisions, whether by
initiation of the Secretary or
Congressional committee, have been
used sparingly. 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
decision, the Federal 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
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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 reasoning that the
Secretary’s discretion to set the scope
and duration of the withdrawal saves
the statute. 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
environmental organizations 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 primary
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
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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).
B. 1991 Rulemaking
In 1991, the BLM published a
proposal to remove all regulations in 43
CFR part 2300 that are concerned with
emergency withdrawals (56 FR 59914
(Nov. 26, 1991)). That proposed rule
was never finalized, and it was
withdrawn from the Semi-Annual
Regulatory Agenda in 1993. In addition
to raising the constitutional issue, the
preamble for the 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).
The BLM received five comments
during a 30-day comment period. One
comment supported the 1991 proposed
rule as written. The other four
comments opposed the proposed rule.
One such comment expressed the
opinion that the executive branch has
the duty to ‘‘faithfully execute the laws’’
and should therefore not challenge the
constitutionality of a statute. That
comment also expressed the view that
the Department should leave the
emergency withdrawal provisions in
place in order to maintain a
‘‘harmonious relationship with
Congress.’’ Several comments expressed
the opinion that the Department should
not refuse to implement the portion of
section 204(e) providing for a
committee-directed withdrawal as
unconstitutional unless and until a
court makes the determination that the
statute is in fact unconstitutional. Those
comments also expressed the view that
the statute was not unconstitutional,
with one comment arguing that
although the committee notifies the
Secretary of the emergency, the
notification provision of section 204(e)
is constitutional because the Secretary
has the discretion to set the scope and
duration of the withdrawal and because
the limited purpose of that provision is
to give Congress time to act legislatively.
Thus, the comment argued that the
committee notification was not a
‘‘legislative act’’ under Chadha. Two
comments argued that the Property
Clause of the Constitution gives
Congress broad power over the public
lands, including the power to require a
withdrawal upon committee
notification.
Several comments voiced the belief
that the statute was not redundant. One
argued that the statute was not
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redundant because the committee
withdrawal provision was not available
under the normal withdrawal authority
conferred by FLPMA section 204 and
that the provision was necessary to force
the Secretary to act in emergency
situations.
One comment argued that the
proposed rule would create an
inconsistency between the statute and
the regulation and confuse Congress and
the public. That comment also stated
that, instead of proposing a rule, the
BLM should request public input on
how best to deal with the issue.
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III. Discussion of the Proposed Rule
As we proposed in 1991, we are now
proposing that in the future the policy
of the Department of the Interior will be
to shield natural resource values, when
immediate protection from the
operation of the general land laws
(including mining laws) is called for, by
means of the conventional withdrawal
process as prescribed in 43 CFR part
2300, and not through the issuance of
emergency withdrawal orders. This
proposed rule is in accordance with that
policy.
A. The Two Processes
The BLM’s experience indicates that
the procedures for issuing an emergency
withdrawal order do not result in the
protection of public lands more rapidly
than the completion of a more
conventional withdrawal process.
Conventional procedures enable the
BLM to protect public lands, without
substantial delay, for as long as 2 years
by publishing 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
notice is required to provide for a
suitable period of at least 90 days after
publication for public comment on the
requested action. 43 CFR 2310.3–
1(b)(2)(iv).
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 an 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
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Secretary also sends 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
sends a report to both committees
within 90 days. 43 CFR 2310.5(b) and
(c).
Initially, 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 2year segregative period, if warranted by
the purpose for which the withdrawal
was first made. 43 CFR 2310.4(a). In
contrast, 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.
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. The
conventional process takes appropriate
account of and considers the interests of
persons with ownership or other legally
recognized interests in land or other
natural resources. It also properly
accommodates public participation in
the Federal decision-making process. In
short, the emergency withdrawal
process is unnecessary because of the
segregative effect provided by the
conventional withdrawal process.
B. The Constitutional Issue
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 upon
the exercise of the Secretary’s
conventional withdrawal authority.
This rulemaking is not a forum for
resolving the validity of the Committeedirected withdrawal provision of
section 204(e). However, in view of the
district court’s ruling in National
Wildlife Federation v. Clark, we believe
the existing emergency-withdrawal
regulations may be an impediment to
resolving that question in an
appropriate forum.
The substantive changes in this rule
are the same as those proposed in 1991.
In addition, we have made
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nonsubstantive stylistic changes in
keeping with current format
requirements of the CFR. In these
circumstances, since the public has had
an opportunity to comment on the 1991
proposed rule, a comment period of 15
days provides adequate opportunity for
meaningful analysis, and reasonable
time within which to formulate
comments for submission.
IV. Procedural Matters
Executive Order 12866, Regulatory
Planning and Review
The Office of Management and Budget
has determined that this proposed rule
is not a ‘‘significant regulatory action’’
within the meaning of Executive Order
12866.
• This proposed 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 proposed rule will not create
any serious inconsistency or otherwise
interfere with any action taken or
planned by another agency.
• This proposed 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 proposed 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
The BLM has determined that this
proposed rule removing the provisions
for emergency withdrawals is of a
procedural nature. Therefore, this rule is
categorically excluded from
environmental review under section
102(2)(C) of the National Environmental
Policy Act, pursuant to 516
Departmental Manual (DM), Chapter 2,
Appendix 1, CX 1.10. In addition, this
rule does not present any of the 12
extraordinary circumstances listed in
516 DM, Chapter 2, Appendix 2.
Pursuant to the Council on
Environmental Quality regulations (40
CFR 1508.4) and the environmental
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
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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. The BLM has determined that
this proposed rule removing the
provisions for processing emergency
withdrawals will not have a significant
economic impact on a substantial
number of small entities under the RFA.
As stated above in the preamble, the
proposed rule would only remove the
administrative process for processing
emergency withdrawals.
Small Business Regulatory Enforcement
Fairness Act
This proposed 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.
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Unfunded Mandates Reform Act
This proposed 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 proposed
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 proposed rule is not a
government action capable of interfering
with constitutionally protected property
rights. Therefore, the DOI has
determined that the rule would not
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cause a taking of private property or
require further discussion of takings
implications under this Executive
Order.
Executive Order 13132, Federalism
This proposed 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. Therefore, in accordance
with Executive Order 13132, the BLM
has determined that this proposed 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
proposed 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
In accordance with Executive Order
13175, the BLM has determined that
this proposed rule will not result in
significant changes to BLM policy and
that tribal Governments will not be
unduly affected by this rule. 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. Governmentowned lands managed by the Bureau of
Indian Affairs.
Information Quality Act
In developing this proposed 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 proposed 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 proposed rule is administrative in
content, involving only changes
affecting issuance of emergency
withdrawals. The regulatory provisions
governing the conventional withdrawal
process, unlike those governing the
emergency withdrawal process, provide
for public participation. In proposing a
policy of using the conventional
withdrawal process instead of the
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emergency withdrawal process, we are
facilitating cooperative conservation.
Thus, this proposed 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
proposed 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.
Executive Order 12866, Clarity of
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 rule easier to understand, including
answers to questions such as the
following:
1. Are the requirements in the
proposed rule clearly stated?
2. Does the proposed rule contain
technical language or jargon that
interferes with its clarity?
3. Does the format of the proposed
rule (grouping and order of sections, use
of headings, paragraphing, etc.) aid or
reduce its clarity?
4. Would the proposed rule be easier
to understand if it were divided into
more (but shorter) sections?
5. Is the description of the proposed
rule in the SUPPLEMENTARY INFORMATION
section of this preamble helpful? How
could this description be more helpful
in making the proposed rule easier to
understand?
Please send any comments you have
on the clarity of the proposed rule to the
address specified above in the
ADDRESSES section.
Authors
The principal authors of this
proposed 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
Regulatory Affairs (WO) and the Office
of the Solicitor, Department of the
Interior.
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List of Subjects in 43 CFR Part 2300
Administrative practice and
procedure, electric power, Federal
Energy Regulatory Commission, public
lands-withdrawal.
Under the authorities cited below,
part 2300, group 2300, subchapter B,
chapter II of title 43 of the Code of
Federal Regulations is proposed to be
amended as follows:
C. Stephen Allred,
Assistant Secretary of the Interior, Land and
Minerals Management.
PART 2300—LAND WITHDRAWALS
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 2300—Withdrawals, General
§ 2300.0–1
[Amended]
2. Section 2300.0–1 is amended by
removing the last sentence in paragraph
(a).
Subpart 2310—Withdrawals, General—
Procedure
3. Section 2310.1 is amended by
revising the introductory text of
paragraph (a) to read as follows:
§ 2310.1
Procedures—general.
(a) The basic steps leading up to the
making, modification, or extension of a
withdrawal are:
*
*
*
*
*
4. Section 2310.1–2 is amended by
revising paragraphs (a), (c)(3), and (d) to
read as follows:
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§ 2310.1–2
Submission of applications.
(a) Applications for the making,
modification, or extension of a
withdrawal shall be submitted for filing,
in duplicate, in the proper Bureau of
Land Management office, as set forth in
§ 1821.2–1 of this chapter, except for
applications that are classified for
national security reasons. Applications
that are classified for national security
reasons shall be submitted, in duplicate,
to the Office of the Secretary,
Department of the Interior, Washington,
DC 20240.
*
*
*
*
*
(c) * * *
(3) If the lands that are subject to an
application are wholly or partially
under the administration of any
department or agency other than the
Department of the Interior, the Secretary
must make or modify a withdrawal only
with the consent of the head of the
department or agency concerned. In
VerDate Aug<31>2005
18:38 Oct 09, 2008
Jkt 217001
such case, a copy of the written consent
must accompany the application. The
requirements of section (e) of Executive
Order 10355 (17 FR 4831) must be
complied with in those instances where
the Order applies.
*
*
*
*
*
(d) If the preceding application
requirements have not been met, or if an
application seeks an action that is not
within the scope of the Secretary’s
authority, the authorized officer may
reject the application as a defective
application.
5. Section 2310.1–3 is amended by
revising paragraph (c), removing
paragraph (d), redesignating paragraph
(e) as paragraph (d), and revising newly
redesignated paragraph (d) to read as
follows:
§ 2310.1–3
petitions.
Submission of withdrawal
*
*
*
*
*
(c) If a petition is submitted
simultaneously with a withdrawal
application, the information
requirements pertaining to withdrawal
applications (See § 2310.1–2) shall
supersede the requirements of this
section.
(d) Upon the approval by the
Secretary of a petition for withdrawal,
the petition will be considered as a
Secretarial proposal for withdrawal, and
notice of the withdrawal proposal shall
be published immediately in the
Federal Register in accordance with
§ 2310.3–1(a).
6. Section 2310.3, which consists
solely of a heading, is revised to read as
follows:
§ 2310.3 Action on withdrawal applications
and withdrawal proposals.
7. Section 2310.3–1 is amended by
revising the first sentence in paragraph
(b)(1) to read as follows:
§ 2310.3–1 Publication and public meeting
requirements.
*
*
*
*
*
(b)(1) Except as otherwise provided in
paragraph (a) of this section, within 30
days of the submission for filing of a
withdrawal, extension, or modification
application, the authorized officer must
publish in the Federal Register a notice
to that effect. * * *
*
*
*
*
*
8. Section 2310.3–3 is amended by
revising paragraph (b)(2) to read as
follows:
§ 2310.3–3 Action by the Secretary: Public
land orders and notices of denial.
*
*
*
*
*
(b) * * *
(2) On the same day an order
withdrawing 5,000 or more acres in the
PO 00000
Frm 00025
Fmt 4702
Sfmt 4702
aggregate is signed, the Secretary must
advise each House of the Congress, in
writing, of the withdrawal action taken.
Under the Secretary’s authority in the
Act, the notices that are sent to Congress
must be accompanied by the
information required by section
204(c)(2) of the Act (43 U.S.C.
1714(c)(2)).
*
*
*
*
*
9. Section 2310.3–4 is amended by
removing paragraph (c), redesignating
paragraph (d) as paragraph (c), and
revising newly redesignated paragraph
(c) to read as follows:
§ 2310.3–4
Duration of withdrawals.
*
*
*
*
*
(c) Withdrawals of specific duration
may be extended, as provided for in
§ 2310.4.
§ 2310.5
[Removed]
10. Section 2310.5 is removed.
[FR Doc. E8–23823 Filed 10–9–08; 8:45 am]
BILLING CODE 4310–84–P
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Part 67
[Docket No. FEMA–B–1010]
Proposed Flood Elevation
Determinations
Federal Emergency
Management Agency, DHS.
ACTION: Proposed rule.
AGENCY:
SUMMARY: Comments are requested on
the proposed Base (1 percent annualchance) Flood Elevations (BFEs) and
proposed BFE modifications for the
communities listed in the table below.
The purpose of this notice is to seek
general information and comment
regarding the proposed regulatory flood
elevations for the reach described by the
downstream and upstream locations in
the table below. The BFEs and modified
BFEs are a part of the floodplain
management measures that the
community is required either to adopt
or show evidence of having in effect in
order to qualify or remain qualified for
participation in the National Flood
Insurance Program (NFIP). In addition,
these elevations, once finalized, will be
used by insurance agents, and others to
calculate appropriate flood insurance
premium rates for new buildings and
the contents in those buildings.
DATES: Comments are to be submitted
on or before January 8, 2009.
E:\FR\FM\10OCP1.SGM
10OCP1
Agencies
[Federal Register Volume 73, Number 198 (Friday, October 10, 2008)]
[Proposed Rules]
[Pages 60212-60216]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-23823]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Part 2300
[WO-350-08 1430 PN]
RIN 1004-AE05
Land Withdrawals; Removal of Regulations Covering Emergency
Withdrawals
AGENCY: Bureau of Land Management, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This proposed rule would remove regulations that provide for
emergency withdrawals. These regulations are redundant, since public
lands can be protected without substantial delay via conventional
withdrawal procedures, without recourse to the regulations providing
for emergency withdrawals. Moreover, constitutional issues may arise
whenever a Congressional committee directs the Secretary of the
Interior (Secretary) to withdraw lands immediately.
DATES: Send your comments on this proposed rule to the BLM on or before
October 27, 2008. Comments received or postmarked after this date may
not be considered in the decision-making process on the issuance of the
proposed rule.
ADDRESSES: You may mail written comments to the Director (630), Bureau
of Land Management, 1620 L Street, NW., Room 401, Washington, DC 20036,
Attention: RIN 1004-AE05; or hand-deliver written comments to the
Bureau of Land Management, Administrative Record, Room 401, 1620 L
Street, NW., Washington, DC 20036. Comments will be available for
public review at the L Street address from 7:45 a.m. to 4:15 p.m.,
Eastern Time, Monday through Friday, except Federal holidays. Federal
eRulemaking Portal: https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For information on the substance of
the proposed 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 during business hours. 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. Public Comment Procedures
II. Background
A. Case Law
B. 1991 Rulemaking
III. Discussion of the Proposed Rule
A. The Two Processes
B. The Constitutional Issue
IV. Procedural Matters
I. Public Comment Procedures
Electronic Access and Filing Address: You may view an electronic
version of this proposed rule at the BLM's Internet home page at http:/
/www.blm.gov or at https://www.regulations.gov. You may comment via the
Internet at: https://www.regulations.gov. If you submit your comments
electronically, please include your name and return address in your
Internet message.
Written Comments: You may mail your comments to: Director (630),
Bureau of Land Management, 1620 L Street, NW., Room 401, Washington, DC
20036, Attention: RIN 1004-AE05. You may deliver comments to: 1620 L
Street, NW., Room 401, Washington, DC 20036.
Please make your comments as specific as possible, confine them to
issues pertinent to the proposed rule, and explain the reason for any
changes you recommend. Where possible, your comments should reference
the specific section or paragraph of the proposed rule that you are
addressing.
Before including your address, phone number, e-mail address, or
other personal identifying information in your comment, be advised that
your entire comment--including your personal identifying information--
may be made publicly available at any time. While you can ask us in
your comment to withhold from public review your personal identifying
information, we cannot guarantee that we will be able to do so.
The Department of the Interior (DOI) may not necessarily consider
or include in the Administrative Record for the proposed rule comments
that we receive after the close of the comments period (see DATES) or
comments delivered to an address other than those listed above (see
ADDRESSES).
II. Background
This proposed rule would remove regulations that provide for
emergency withdrawals. These regulations, including 43 CFR 2310.5,
provide that the Secretary of the Interior shall withdraw lands
immediately upon determining that an emergency exists and that
extraordinary measures need to be taken to protect natural resources or
[[Page 60213]]
resource values that otherwise would be lost. Section 2310.5 also
requires an immediate withdrawal when either of two committees of the
Congress notifies the Secretary that it has made the same determination
that would support an emergency withdrawal initiated by the Secretary.
43 CFR 2310.5(a). Section 204(e) of the Federal Land Policy and
Management Act (FLPMA) provides that this 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). (Before 1994, Section 204(e) referred to the House and
Senate Committees on Interior and Insular Affairs.)
A. Case Law
In the years since the enactment of section 204(e) in 1976, the
emergency withdrawal provisions, whether by initiation of the Secretary
or Congressional committee, have been used sparingly. 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
decision, the Federal 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 reasoning that the Secretary's
discretion to set the scope and duration of the withdrawal saves the
statute. 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
environmental organizations 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 primary
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).
B. 1991 Rulemaking
In 1991, the BLM published a proposal to remove all regulations in
43 CFR part 2300 that are concerned with emergency withdrawals (56 FR
59914 (Nov. 26, 1991)). That proposed rule was never finalized, and it
was withdrawn from the Semi-Annual Regulatory Agenda in 1993. In
addition to raising the constitutional issue, the preamble for the
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).
The BLM received five comments during a 30-day comment period. One
comment supported the 1991 proposed rule as written. The other four
comments opposed the proposed rule. One such comment expressed the
opinion that the executive branch has the duty to ``faithfully execute
the laws'' and should therefore not challenge the constitutionality of
a statute. That comment also expressed the view that the Department
should leave the emergency withdrawal provisions in place in order to
maintain a ``harmonious relationship with Congress.'' Several comments
expressed the opinion that the Department should not refuse to
implement the portion of section 204(e) providing for a committee-
directed withdrawal as unconstitutional unless and until a court makes
the determination that the statute is in fact unconstitutional. Those
comments also expressed the view that the statute was not
unconstitutional, with one comment arguing that although the committee
notifies the Secretary of the emergency, the notification provision of
section 204(e) is constitutional because the Secretary has the
discretion to set the scope and duration of the withdrawal and because
the limited purpose of that provision is to give Congress time to act
legislatively. Thus, the comment argued that the committee notification
was not a ``legislative act'' under Chadha. Two comments argued that
the Property Clause of the Constitution gives Congress broad power over
the public lands, including the power to require a withdrawal upon
committee notification.
Several comments voiced the belief that the statute was not
redundant. One argued that the statute was not
[[Page 60214]]
redundant because the committee withdrawal provision was not available
under the normal withdrawal authority conferred by FLPMA section 204
and that the provision was necessary to force the Secretary to act in
emergency situations.
One comment argued that the proposed rule would create an
inconsistency between the statute and the regulation and confuse
Congress and the public. That comment also stated that, instead of
proposing a rule, the BLM should request public input on how best to
deal with the issue.
III. Discussion of the Proposed Rule
As we proposed in 1991, we are now proposing that in the future the
policy of the Department of the Interior will be to shield natural
resource values, when immediate protection from the operation of the
general land laws (including mining laws) is called for, by means of
the conventional withdrawal process as prescribed in 43 CFR part 2300,
and not through the issuance of emergency withdrawal orders. This
proposed rule is in accordance with that policy.
A. The Two Processes
The BLM's experience indicates that the procedures for issuing an
emergency withdrawal order do not result in the protection of public
lands more rapidly than the completion of a more conventional
withdrawal process. Conventional procedures enable the BLM to protect
public lands, without substantial delay, for as long as 2 years by
publishing 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 notice is required to provide for a
suitable period of at least 90 days after publication for public
comment on the requested action. 43 CFR 2310.3-1(b)(2)(iv).
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 an 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 sends 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 sends a report to both committees within 90 days. 43 CFR
2310.5(b) and (c).
Initially, 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 contrast, 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.
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. The conventional process takes appropriate account of and
considers the interests of persons with ownership or other legally
recognized interests in land or other natural resources. It also
properly accommodates public participation in the Federal decision-
making process. In short, the emergency withdrawal process is
unnecessary because of the segregative effect provided by the
conventional withdrawal process.
B. The Constitutional Issue
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 upon the
exercise of the Secretary's conventional 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, we believe the existing emergency-withdrawal regulations may be
an impediment to resolving that question in an appropriate forum.
The substantive changes in this rule are the same as those proposed
in 1991. In addition, we have made nonsubstantive stylistic changes in
keeping with current format requirements of the CFR. In these
circumstances, since the public has had an opportunity to comment on
the 1991 proposed rule, a comment period of 15 days provides adequate
opportunity for meaningful analysis, and reasonable time within which
to formulate comments for submission.
IV. Procedural Matters
Executive Order 12866, Regulatory Planning and Review
The Office of Management and Budget has determined that this
proposed rule is not a ``significant regulatory action'' within the
meaning of Executive Order 12866.
This proposed 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 proposed rule will not create any serious
inconsistency or otherwise interfere with any action taken or planned
by another agency.
This proposed 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 proposed 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
The BLM has determined that this proposed rule removing the
provisions for emergency withdrawals is of a procedural nature.
Therefore, this rule is categorically excluded from environmental
review under section 102(2)(C) of the National Environmental Policy
Act, pursuant to 516 Departmental Manual (DM), Chapter 2, Appendix 1,
CX 1.10. In addition, this rule does not present any of the 12
extraordinary circumstances listed in 516 DM, Chapter 2, Appendix 2.
Pursuant to the Council on Environmental Quality regulations (40 CFR
1508.4) and the environmental 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
[[Page 60215]]
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. The BLM has determined that this
proposed rule removing the provisions for processing emergency
withdrawals will not have a significant economic impact on a
substantial number of small entities under the RFA. As stated above in
the preamble, the proposed rule would only remove the administrative
process for processing emergency withdrawals.
Small Business Regulatory Enforcement Fairness Act
This proposed 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 proposed 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 proposed
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 proposed rule is not a government action capable of
interfering with constitutionally protected property rights. Therefore,
the DOI 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
This proposed 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. Therefore, in accordance with Executive Order
13132, the BLM has determined that this proposed 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 proposed 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
In accordance with Executive Order 13175, the BLM has determined
that this proposed rule will not result in significant changes to BLM
policy and that tribal Governments will not be unduly affected by this
rule. 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.
Information Quality Act
In developing this proposed 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 proposed 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 proposed rule is administrative in content, involving only
changes affecting issuance of emergency withdrawals. The regulatory
provisions governing the conventional withdrawal process, unlike those
governing the emergency withdrawal process, provide for public
participation. In proposing a policy of using the conventional
withdrawal process instead of the emergency withdrawal process, we are
facilitating cooperative conservation. Thus, this proposed 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 proposed 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.
Executive Order 12866, Clarity of 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 rule easier to understand, including answers to questions
such as the following:
1. Are the requirements in the proposed rule clearly stated?
2. Does the proposed rule contain technical language or jargon that
interferes with its clarity?
3. Does the format of the proposed rule (grouping and order of
sections, use of headings, paragraphing, etc.) aid or reduce its
clarity?
4. Would the proposed rule be easier to understand if it were
divided into more (but shorter) sections?
5. Is the description of the proposed rule in the SUPPLEMENTARY
INFORMATION section of this preamble helpful? How could this
description be more helpful in making the proposed rule easier to
understand?
Please send any comments you have on the clarity of the proposed
rule to the address specified above in the ADDRESSES section.
Authors
The principal authors of this proposed 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
Regulatory Affairs (WO) and the Office of the Solicitor, Department of
the Interior.
[[Page 60216]]
List of Subjects in 43 CFR Part 2300
Administrative practice and procedure, electric power, Federal
Energy Regulatory Commission, public lands-withdrawal.
Under the authorities cited below, part 2300, group 2300,
subchapter B, chapter II of title 43 of the Code of Federal Regulations
is proposed to be amended as follows:
C. Stephen Allred,
Assistant Secretary of the Interior, Land and Minerals Management.
PART 2300--LAND WITHDRAWALS
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 2300--Withdrawals, General
Sec. 2300.0-1 [Amended]
2. Section 2300.0-1 is amended by removing the last sentence in
paragraph (a).
Subpart 2310--Withdrawals, General--Procedure
3. Section 2310.1 is amended by revising the introductory text of
paragraph (a) to read as follows:
Sec. 2310.1 Procedures--general.
(a) The basic steps leading up to the making, modification, or
extension of a withdrawal are:
* * * * *
4. Section 2310.1-2 is amended by revising paragraphs (a), (c)(3),
and (d) to read as follows:
Sec. 2310.1-2 Submission of applications.
(a) Applications for the making, modification, or extension of a
withdrawal shall be submitted for filing, in duplicate, in the proper
Bureau of Land Management office, as set forth in Sec. 1821.2-1 of
this chapter, except for applications that are classified for national
security reasons. Applications that are classified for national
security reasons shall be submitted, in duplicate, to the Office of the
Secretary, Department of the Interior, Washington, DC 20240.
* * * * *
(c) * * *
(3) If the lands that are subject to an application are wholly or
partially under the administration of any department or agency other
than the Department of the Interior, the Secretary must make or modify
a withdrawal only with the consent of the head of the department or
agency concerned. In such case, a copy of the written consent must
accompany the application. The requirements of section (e) of Executive
Order 10355 (17 FR 4831) must be complied with in those instances where
the Order applies.
* * * * *
(d) If the preceding application requirements have not been met, or
if an application seeks an action that is not within the scope of the
Secretary's authority, the authorized officer may reject the
application as a defective application.
5. Section 2310.1-3 is amended by revising paragraph (c), removing
paragraph (d), redesignating paragraph (e) as paragraph (d), and
revising newly redesignated paragraph (d) to read as follows:
Sec. 2310.1-3 Submission of withdrawal petitions.
* * * * *
(c) If a petition is submitted simultaneously with a withdrawal
application, the information requirements pertaining to withdrawal
applications (See Sec. 2310.1-2) shall supersede the requirements of
this section.
(d) Upon the approval by the Secretary of a petition for
withdrawal, the petition will be considered as a Secretarial proposal
for withdrawal, and notice of the withdrawal proposal shall be
published immediately in the Federal Register in accordance with Sec.
2310.3-1(a).
6. Section 2310.3, which consists solely of a heading, is revised
to read as follows:
Sec. 2310.3 Action on withdrawal applications and withdrawal
proposals.
7. Section 2310.3-1 is amended by revising the first sentence in
paragraph (b)(1) to read as follows:
Sec. 2310.3-1 Publication and public meeting requirements.
* * * * *
(b)(1) Except as otherwise provided in paragraph (a) of this
section, within 30 days of the submission for filing of a withdrawal,
extension, or modification application, the authorized officer must
publish in the Federal Register a notice to that effect. * * *
* * * * *
8. Section 2310.3-3 is amended by revising paragraph (b)(2) to read
as follows:
Sec. 2310.3-3 Action by the Secretary: Public land orders and notices
of denial.
* * * * *
(b) * * *
(2) On the same day an order withdrawing 5,000 or more acres in the
aggregate is signed, the Secretary must advise each House of the
Congress, in writing, of the withdrawal action taken. Under the
Secretary's authority in the Act, the notices that are sent to Congress
must be accompanied by the information required by section 204(c)(2) of
the Act (43 U.S.C. 1714(c)(2)).
* * * * *
9. Section 2310.3-4 is amended by removing paragraph (c),
redesignating paragraph (d) as paragraph (c), and revising newly
redesignated paragraph (c) to read as follows:
Sec. 2310.3-4 Duration of withdrawals.
* * * * *
(c) Withdrawals of specific duration may be extended, as provided
for in Sec. 2310.4.
Sec. 2310.5 [Removed]
10. Section 2310.5 is removed.
[FR Doc. E8-23823 Filed 10-9-08; 8:45 am]
BILLING CODE 4310-84-P