[Federal Register Volume 76, Number 80 (Tuesday, April 26, 2011)]
[Proposed Rules]
[Pages 23230-23236]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10017]
[[Page 23230]]
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Parts 2090 and 2800
[WO 300-1430-PQ]
RIN 1004-AE19
Segregation of Lands--Renewable Energy
AGENCY: Bureau of Land Management, Interior.
ACTION: Proposed Rule.
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SUMMARY: The Bureau of Land Management (BLM) is proposing this rule to
amend the BLM's regulations found in 43 CFR parts 2090 and 2800 by
adding provisions allowing the BLM to temporarily segregate from the
operation of the public land laws, by publication of a Federal Register
notice, public lands included in a pending or future wind or solar
energy generation right-of-way (ROW) application, or public lands
identified by the BLM for a potential future wind or solar energy
generation ROW authorization under the BLM's ROW regulations, in order
to promote the orderly administration of the public lands. If
segregated under this rule, such lands would not be subject to
appropriation under the public land laws, including location under the
Mining Law of 1872 (Mining Law), but not the Mineral Leasing Act of
1920 (Mineral Leasing Act) or the Materials Act of 1947 (Materials
Act), subject to valid existing rights, for a period of up to 2 years.
The BLM is also publishing in today's Federal Register an interim
temporary final rule (Interim Rule) that is substantively similar to
this proposed rule. The Interim Rule is effective immediately upon
publication in the Federal Register for a period not to exceed 2 years
after publication, or the completion of the notice and comment
rulemaking process for this proposed rule whichever occurs first.
DATES: You should submit your comments on the proposed rule on or
before June 27, 2011. The BLM need not consider, or include in the
administrative record for the final rule, comments that the BLM
receives after the close of the comment period or comments delivered to
an address other than those listed below (see ADDRESSES).
ADDRESSES: Mail: Director (630) Bureau of Land Management, U.S.
Department of the Interior, Mail Stop 2143LM, 1849 C St., NW.,
Washington, DC 20240, Attention: 1004-AE19. Personal or messenger
delivery: U.S. Department of the Interior, Bureau of Land Management,
20 M Street, SE., Room 2134LM, Attention: Regulatory Affairs,
Washington, DC 20003. Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions at this Web site.
FOR FURTHER INFORMATION CONTACT: Ray Brady at (202) 912-7312 or the
Division of Lands, Realty, and Cadastral Survey at (202) 912-7350 for
information relating to the BLM's renewable energy program or the
substance of the proposed rule, or Ian Senio at (202) 912-7440 for
information relating to the rulemaking process generally. Persons who
use a telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 1-800-877-8339, 24 hours a day,
seven days a week to contact the above individuals.
SUPPLEMENTARY INFORMATION:
I. Public Comment Procedures
II. Background
III. Section-by-Section Analysis
IV. Procedural Matters
I. Public Comment Procedures
If you wish to comment, you may submit your comments by one of
several methods:
You may mail comments to Director (630) Bureau of Land Management,
U.S. Department of the Interior, Mail Stop 2143LM, 1849 C St., NW.,
Washington, DC 20240, Attention: 1004-AE19. You may deliver comments to
U.S. Department of the Interior, Bureau of Land Management, 20 M
Street, SE., Room 2134LM, Attention: Regulatory Affairs, Washington, DC
20003; or
You may access and comment on the proposed rule at the Federal
eRulemaking Portal by following the instructions at that site (see
ADDRESSES).
Written comments on the proposed rule should be specific, should be
confined to issues pertinent to the proposed rule, and should explain
the reason for any recommended change. Where possible, comments should
reference the specific section or paragraph of the proposed rule that
the comment is addressing.
The BLM need not consider or include in the Administrative Record
for the proposed rule comments that we receive after the close of the
comment period (see DATES) or comments delivered to an address other
than those listed above (see ADDRESSES). Comments, including names and
street addresses of respondents, will be available for public review at
the U.S. Department of the Interior, Bureau of Land Management, 20 M
Street, SE., Room 2134LM, Washington, DC 20003 during regular hours
(7:45 a.m. to 4:15 p.m.) Monday through Friday, except holidays. They
will also be available at the Federal eRulemaking Portal http://www.regulations.gov. Follow the instructions at this Web site.
Before including your address, telephone 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 in your
comment for the BLM to withhold your personal identifying information
from public review, we cannot guarantee that we will be able to do so.
II. Background
Congress has directed the Department of the Interior (Department)
to facilitate the development of renewable energy resources. Promoting
renewable energy is one of this Administration's and this Department's
highest priorities. In Section 211 of the Energy Policy Act of 2005
(119 Stat. 660, Aug. 8, 2005) (EPAct), Congress declared that before
2015 the Secretary of the Interior should seek to have approved non-
hydropower renewable energy projects (solar, wind, and geothermal) on
public lands with a generation capacity of at least 10,000 megawatts
(MW) of electricity. Even before the EPAct was enacted by Congress,
President Bush issued Executive Order 13212, ``Actions to Expedite
Energy-Related Projects'' (May 18, 2001), which requires Federal
agencies to expedite the production, transmission, or conservation of
energy.
After passage of the EPAct, the Secretary of the Interior issued
several orders emphasizing the importance of renewable energy
development on public lands. On January 16, 2009, Secretary Kempthorne
issued Secretarial Order 3283, ``Enhancing Renewable Energy Development
on the Public Lands,'' which states that its purpose is to
``facilitate[ ] the Department's efforts to achieve the goal Congress
established in Section 211 of the * * * [EPAct] to approve non-
hydropower renewable energy projects on the public lands with a
generation capacity of at least 10,000 megawatts of electricity by
2015.'' The order also declared that ``the development of renewable
energy resources on the public lands will increase domestic energy
production, provide alternatives to traditional energy resources, and
enhance the energy security of the United States.''
Approximately 1 year later, Secretary Salazar issued Secretarial
Order 3285A1, ``Renewable Energy Development by the Department of the
Interior'' (Feb. 22, 2010), which reemphasized the development of
[[Page 23231]]
renewable energy as a priority for the Department. The order states:
``Encouraging the production, development, and delivery of renewable
energy is one of the Department's highest priorities. Agencies and
bureaus within the Department will work collaboratively with each
other, and with other Federal agencies, departments, states, local
communities, and private landowners to encourage the timely and
responsible development of renewable energy and associated transmission
while protecting and enhancing the Nation's water, wildlife, and other
natural resources.'' As a result of these and other initiatives, the
interest in renewable energy development on public lands has increased
significantly.
In addition to these specific directives, the BLM is charged
generally with managing the public lands for multiple uses under the
Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1701,
et seq., including for mining and energy development. In some
instances, different uses may present conflicts. For example, a mining
claim located within a proposed ROW for a utility-scale solar energy
generation facility could impede the BLM's ability to process the ROW
application because the Federal government's use of the surface cannot
endanger or materially interfere with a properly located mining claim.
In order to help avoid such conflicts while carrying out the
Congressional and Executive mandates and direction to prioritize the
development of renewable energy, the BLM is proposing this rule. This
rule will help promote the orderly administration of the public lands
by giving the BLM a tool to minimize potential resource conflicts
between ROWs for proposed solar and wind energy generation facilities
and other uses of the public lands. Under existing regulations, lands
within a solar or wind energy generation ROW application or within an
area identified by the BLM for such ROWs, unlike lands proposed for
exchange or sale, remain open to appropriation under the public land
laws, including location and entry under the Mining Law, while BLM is
considering the ROW.
Over the past 5 years, the BLM has processed 24 solar and wind
energy development ROW applications. New mining claims were located on
the public lands described in two of these proposed ROWs during the
BLM's consideration of the applications. Many of the mining claims in
the two proposed ROWs were not located until after the existence of the
wind or solar ROW application or the identification of an area by the
BLM for such ROWs became publicly known. In addition, over the past 2
years, 437 new mining claims were located within wind energy ROW
application areas in Arizona, California, Idaho, Nevada, Oregon, Utah,
and Wyoming and 216 new mining claims were located within solar energy
ROW application areas. In the BLM's experience, some of these claims
are likely to be valid, but others are likely to be speculative and not
located for true mining purposes. As such, the latter are likely filed
for no other purpose than to provide a means for the mining claimant to
compel some kind of payment from the ROW applicant to relinquish the
mining claim. The potential for such a situation exists because, while
it is relatively easy and inexpensive to file a mining claim, it can be
difficult, time-consuming, and costly to prove that the mining claim
was not properly filed or does not contain a valid discovery.
Regardless of the merits of a particular claim, the location of a
mining claim in an area covered by a ROW application (or identified for
such an application) creates uncertainty that interferes with the
orderly administration of the public lands. This uncertainty makes it
difficult for the BLM, energy project developers, and institutions that
finance such development to proceed with such projects because a
subsequently located mining claim potentially precludes final issuance
of the ROW and increases project costs, jeopardizing the planned energy
development.
For example, the location of a new mining claim during the pendency
of the BLM's review process for a ROW application could preclude the
applicant from providing a concrete proposal for their use and
occupancy of the public lands. This is because under the Mining Law, a
ROW cannot materially interfere with a previously located mining claim.
Since all properly located claims are treated as valid until proven
otherwise, the filing of any mining claim can substantially delay the
processing of a ROW application. As a result, a ROW applicant could
either wait for the BLM to determine the validity of a claim, or the
applicant could choose to modify or relocate its proposed surface use
to avoid conflicts with the newly located mining claim, leading to
additional expense, which could jeopardize the renewable energy
project.\1\ The BLM's processing time for the ROW application could be
significantly increased if any changes necessitated by the newly
located mining claim require the BLM to undertake any additional
analyses, such as those required by the National Environmental Policy
Act, 42 U.S.C. 4321 et seq. (NEPA). Under these circumstances, the
BLM's ability to administer the public lands in an orderly manner is
impeded.
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\1\ This uncertainty may also discourage banks from financing
such projects.
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This proposed rule is needed to provide the BLM with the necessary
authority to ensure the orderly administration of the public lands and
to prevent conflicts between competing uses of those lands. By allowing
for temporary segregation, it would enable the BLM to prevent new
resource conflicts from arising as a result of new mining claims that
may be located within land covered by any pending or future wind or
solar energy generation facility ROW applications, or public lands
identified by the BLM for potential future wind or solar energy
generation ROWs pursuant to its ROW regulations. Temporary segregation
is generally sufficient because once a ROW has been authorized,
subsequently located mining claims would be subject to the previously
authorized use, and any future mining claimant would have notice of
such use.
The proposed rule would supplement the authority contained in 43
CFR subpart 2091 to allow the BLM to segregate from appropriation under
the public land laws, including location under the Mining Law, but not
the Mineral Leasing Act or the Materials Act, public lands included in
a pending or future wind or solar energy generation ROW application or
public lands identified by the BLM for a wind or solar energy
generation ROW authorization under 43 CFR subpart 2804, subject to
valid existing rights.\2\ This proposed rule would not affect valid
existing rights in mining claims located before any segregation made
pursuant to the final rule. The proposed rule also would not affect ROW
applications for uses other than wind or solar energy generation
facilities.
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\2\ The existing regulations define segregation as ``the removal
for a limited period, subject to valid existing rights, of a
specified area of the public lands from the operation of some or all
of the public land laws, including the mineral laws, pursuant to the
exercise by the Secretary of regulatory authority for the orderly
administration of the public lands.'' 43 CFR 2091.0-5(b).
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Segregations under the proposed rule would be accomplished by
publishing a notice in the Federal Register and would be effective upon
the date of publication. The BLM considered a rule that would allow for
segregation through notation to the public land records, but it
rejected this approach because it would not provide the public
[[Page 23232]]
with the same level of notice that a Federal Register notice would
accomplish. The proposed rule would provide for segregation periods of
up to 2 years, with the option, if deemed necessary by the appropriate
BLM State Director, to extend the segregation of the lands for up to an
additional 2 years. The proposed rule would not authorize the BLM to
continue the segregation after a final decision on a ROW has been made.
Finally, not all wind or solar ROW applications would lead to a
segregation, as the BLM may reject some applications and others may not
require segregation because conflicts with mining claims are not
anticipated.
Segregation rules, like this proposed rule, have been held to be
``reasonably related'' to the BLM's broad authority to issue rules
related to ``the orderly administration of the public land laws,'' \3\
because they allow the BLM to protect an applicant for an interest in
such lands from ``the assertion by others of rights to the lands while
the applicant is prevented from taking any steps to protect'' its
interests because it has to wait for the BLM to act on its
application.\4\ It is for this purpose that existing regulations at 43
CFR subpart 2091 provide the BLM with the discretion to segregate lands
that are proposed for various types of land disposals, such as land
sales, land exchanges, and transfers of public land to local
governments and other entities under the Recreation and Public Purposes
Act of 1926. These regulatory provisions allowing segregations were put
in place over the years to prevent resource conflicts, including
conflicts arising from the location of new mining claims, which could
create encumbrances on the title of the public lands identified for
transfer out of Federal ownership under the applicable authorities.
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\3\ See Bryon v. United States, 259 F. 371, 376 (9th Cir. 1919);
Hopkins v. United States, 414 F.2d 464, 472 (9th Cir. 1969).
\4\ See, e.g., Marian Q. Kaiser, 65 I.D. 485 (Nov. 25, 1958).
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Such a situation occurred in Nevada, and the proposed land
purchaser chose to pay the mining claimant to relinquish his claims in
order to enable the sale to go forward. In fact, in the land sales
context, the segregative period was increased from 270 days to a
maximum term of 4 years, as it was found that the original segregative
period was insufficient and that conflicting mining claims were being
located before sales could be completed. This proposed rule would
provide the BLM the same flexibility it currently has for land
disposals by allowing the BLM to temporarily segregate lands that are
included in pending or future applications for solar and wind facility
ROWs or on lands identified by the BLM for such ROWs. This would allow
for the orderly administration of the public lands by eliminating the
potential for conflicts with mining claims located after the BLM
publishes a Federal Register notice of such ROW applications or areas.
As noted above, the development of renewable energy is a high
priority for the Department of the Interior and the BLM. The location
of mining claims, however, under certain circumstances, may impede the
BLM's ability to administer the public lands in an orderly manner and
to carry out its Congressional and Executive mandate to facilitate
renewable energy development on those lands because the BLM currently
lacks the ability to maintain the status quo on such lands while it is
processing a ROW application for a wind or solar energy generation
facility. This proposed rule would help the BLM maintain the status quo
and prevent potential resource use conflicts by allowing the BLM to
temporarily segregate lands being considered for a wind or solar energy
generation facility.
III. Section-by-Section Analysis
This proposed rule would revise 43 CFR sections 2091.3-1 and
2804.25 by adding language that would allow the BLM to segregate lands,
if the BLM determines it to be necessary for the orderly administration
of the public lands. This authority to segregate lands would be limited
to lands included in a pending or future wind or solar energy ROW
application, or public lands identified by the BLM for a wind or solar
energy generation ROW authorization under the BLM's ROW regulations. If
segregated under this rule, such lands, during the limited segregation
period, would not be subject to appropriation under the public land
laws, including location under the Mining Law, but not the Mineral
Leasing Act or the Materials Act, subject to valid existing rights.
The new language also specifies that the segregative effect
terminates and the lands would automatically reopen to appropriation
under the public land laws, including the mining laws: (1) Upon the
BLM's issuance of a decision regarding whether to issue a ROW
authorization for the solar or wind energy generation proposal; (2)
Upon publication of a Federal Register notice of termination of the
segregation; or (3) Without further administrative action at the end of
the segregation period provided for in the Federal Register notice
initiating the segregation, whichever occurs first. The segregation
would be effective for a period of up to 2 years; however, the rule
provides that the segregation may be extended for an additional 2 years
if the appropriate BLM State Director determines and documents in
writing, prior to the expiration of the segregation, that an extension
of the segregation is necessary for the orderly administration of the
public lands. The BLM would publish an extension notice in the Federal
Register, if it determines that an extension of the segregation is
necessary. The extension of the segregation would not be for more than
2 years. The maximum total segregation period would not exceed 4 years.
IV. Procedural Matters
Executive Order 12866, Regulatory Planning and Review
This proposed rule is not a significant regulatory action \5\ and
is not subject to review by the Office of Management and Budget under
Executive Order 12866. The proposed rule would provide the BLM with
regulatory authority to segregate public lands included within a
pending or future wind or solar energy generation ROW application, or
public lands identified by the BLM for a potential future wind or solar
energy generation ROW authorization, from appropriation under the
public land laws, including location under the Mining Law, but not the
Mineral Leasing Act or the Materials Act, if the BLM determines that
segregation is necessary for the orderly administration of the public
lands. To assess the potential economic impacts, the BLM must first
make some assumptions concerning when and how often this segregation
authority may be exercised. The purpose of any segregation would be to
allow for the orderly administration of the public lands to facilitate
the development of renewable energy resources by avoiding conflicts
between renewable energy development and the location of mining claims.
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\5\ ``Significant regulatory action'' means any regulatory
action that is likely to result in a rule that may: (1) Have an
annual effect on the economy of $100 million or more or adversely
effect in a material way the economy * * *; (2) Create a serious
inconsistency or otherwise interfere with an action taken or planned
by another agency; (3) Materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs * * * or (4) Raise
novel legal and policy issues arising out of legal mandates, the
President's priorities, or * * * this Executive Order.'' Exec. Order
No. 12866, 58 FR 51738 (Oct. 4, 1993).
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Wind--Wind energy ROW site testing and development applications are
widely scattered in many western states. Most of the public lands with
pending
[[Page 23233]]
wind energy ROW applications are currently managed for multiple
resource use, including being open to mineral entry under the mining
laws. Over the past 2 fiscal years, 437 new mining claims were located
within wind energy ROW application areas in Arizona, California, Idaho,
Nevada, Oregon, Utah, and Wyoming. Based on the BLM's recent experience
processing wind energy ROW applications, it is anticipated that
approximately 25 percent of the lands with current wind energy ROW
applications will reach the processing stage where a Notice of Intent
(NOI) is issued. Without trying to identify specific locations of new
mining claims located within those application areas, we assume a
quarter of those new mining claims, or 109 new mining claims, would be
located within wind application areas that would be segregated under
this new regulation.
The actual number of claimants affected will likely be less than
this estimate since a single claimant typically files and holds
multiple mining claims. Of the 437 new mining claims filed within the
wind energy ROW application areas in fiscal year (FY) 2009 and 2010,
there was an average of about eight mining claims per claimant.
Assuming that there was nothing unique about the number of claims and
distribution of claims per claimant for FY 2009 and 2010, we estimate
that 14 entities would be potentially precluded from filing new mining
claims on lands that would be segregated within the identified wind
energy ROW application areas under this rule. For these entities, the
economic impacts of the segregation are the delay in when they could
locate their mining claims and a potential delay in the development of
such claims because such development would be subject to any approved
ROW issued during the segregative period. However, a meaningful
estimate of the value of such delays is hard to quantify given the
available data because it depends on the validity and commercial
viability of any individual claim, and the fact that the location of a
mining claim is an early step in a long process that may eventually
result in revenue generating activity for the claimant.
The other situation where entities might be affected by the
segregation provision is if a new Plan of Operations or Notice is filed
with the BLM during the 2-year segregation period. In such a situation,
the BLM has the discretion under the Surface Management Regulations (43
CFR subpart 3809) to require the preparation of a mineral examination
report to determine if the mining claims were valid before the lands
were segregated before it processes the Plan of Operations or accepts
the filed Notice. If required, the operator is responsible to pay the
cost of the examination and report.
Within the past 2-year period, five Plans of Operations and two
Notices were filed with the BLM within wind ROW application areas.
Assuming (1) A quarter of those filings would be on lands segregated
under this rule, (2) the number of Plan and Notice filings received in
the past 2 years is somewhat reflective of what might occur within a 2-
year segregation period, and (3) the BLM would require mineral
examination reports to determine claim validity on all Plans and
Notices filed within the segregation period, we estimate two entities
might be affected by this rule change.\6\
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\6\ With respect to any particular Plan of Operation or Notice
that might be filed in areas segregated under the rule, the BLM
would separately determine, on a case-by-case basis and consistent
with the requirements of 43 CFR 3809.100(a), whether to require a
validity determination for such Plan or Notice.
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Should the BLM require the preparation of mineral examination
reports to determine claim validity, the entity filing the Plan or
Notice would be responsible for the cost of making that validity
determination. Understanding that every mineral examination report is
unique and the costs vary accordingly, we assume an average cost of
$100,000 to conduct the examination and prepare the report. Based on
the number of Plans and Notices filed within the wind energy right-of-
way application areas in FY 2009 and 2010, we estimate the total cost
of this provision could be about $200,000 over the 2-year period.
Solar--As noted above, the primary purpose of any segregation under
this proposed rule would be to allow for the orderly administration of
the public lands to facilitate the development of valuable renewable
resources and to avoid conflicts between renewable energy generation
and mining claim location. The main resource conflict of concern
involves mining claims that are located after the first public
announcement that the BLM is evaluating a ROW application, and prior to
when the BLM issues a final decision on the ROW application.
Most of the public lands with pending solar energy ROW applications
are currently managed for multiple resource use, including mineral
entry under the mining laws. Where the BLM segregates lands from
mineral entry, claimants would not be allowed to locate any new mining
claims during the 2-year segregation period. Over the past 2 years, 216
new mining claims were located within solar energy ROW application
areas. Based on the BLM's recent experience processing solar energy ROW
applications, it is anticipated that approximately 25 percent of the
lands with current solar energy ROW applications would reach the
processing stage where a NOI is issued. Without trying to identify
which ROWs would be granted or the specific locations of new mining
claims within those application areas, we assume a quarter of those new
mining claims, or 54 new mining claims, would be located within solar
ROW application areas that would be segregated under this rule.
The actual number of claimants affected will likely be less than
this estimate since a single claimant typically locates and holds
multiple mining claims. Of the 216 new mining claims located within
solar energy ROW application areas in the past 2 years, there was an
average of about eight mining claims per claimant. Assuming that there
was nothing unique about the number and distribution of claims per
claimant for the past 2 years, we estimate seven entities would
potentially be precluded from locating new mining claims on lands
segregated within the identified solar energy ROW application areas
under the rule change. For these entities the economic impacts of the
segregation would be the delay in when they can locate their mining
claim and a potential delay in the development of such claim because
such development would be subject to any approved ROW issued during the
segregative period. However, a meaningful estimate of the value of such
delays is hard to quantify given the available data because it depends
on the validity and commercial viability of any individual claim, and
the fact that the location of a mining claim is an early step in a long
process that may eventually result in revenue generating activity for
the claimant.
The other situation where entities might be affected by the
proposed segregation provisions is where a new Plan of Operations or
Notice is filed with the BLM during the 2-year segregation period. In
such a situation, the BLM has the discretion under the Surface
Management Regulations (43 CFR subpart 3809) to require a mineral
examination to determine if the mining claims were valid before the
lands were segregated before it approves the Plan of Operations or
accepts the filed Notice. If required, the operator is responsible to
pay the cost of the examination and report.
Within the past 2-year period, two Plans of Operations and two
Notices were filed with the BLM within solar
[[Page 23234]]
ROW application areas. Assuming (1) a quarter of those filings would be
on lands segregated under this rule, (2) the number of Plan and Notice
filings received in the past 2 years is reflective of what might occur
within a 2-year segregation period, and (3) the BLM would require
mineral examination reports to determine claim validity on all Plans
and Notices filed within the segregation period, we estimate one entity
might be affected by this rule change.\7\
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\7\ With respect to any particular Plan of Operation or Notice
that might be filed in areas segregated under the rule, the BLM
would separately determine, on a case-by-case basis and consistent
with the requirements of 43 CFR 3809.100(a), whether to require a
validity determination for such Plan or Notice.
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Should the BLM require a mineral examination to determine claim
validity, the entity filing the Plan or Notice would be responsible for
the cost of making that validity determination. Understanding that
every mineral examination report is unique and the costs would vary
accordingly, we assume an average cost of $100,000 to conduct the
examination and prepare the report. Based on the number of Plans and
Notices filed within the solar energy ROW application areas in the past
2 years, we estimate the total cost of this provision could be about
$100,000 over the 2-year period.
It is not possible to estimate the number of future rights-of-way
for wind or solar energy developments that could be filed on areas
identified as having potential for either of these sources of energy.
This is because there are many variables that could have an impact on
such filings. Such variables include: the quantity and sustainability
of wind at any one site, the intensity and quantity of available
sunlight, the capability of obtaining financing for either wind or
solar energy projects, the proximity of transmission facilities that
could be used to carry the power generated from a specific wind or
solar energy right-of-way project, and the topography of the property
involved. The number of mining claims would also be based on
speculation as to the mineral potential of an area, access to markets,
potential for profitability, and a host of other geologic factors, such
as type of mineral, depth of the mineral beneath the surface, quantity
and quality of the mineral, and other such considerations.
Based on this analysis, the BLM concludes that this proposed rule
would not have an annual effect of $100 million or more on the economy.
It would not adversely affect in a material way the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or Tribal governments or communities. This
proposed rule would not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency. This
proposed rule would not alter the budgetary effects of entitlements,
grants, user fees or loan programs or the rights or obligations of
their recipients; nor would it raise novel legal or policy issues. The
full economic analysis is available at the office listed under the
ADDRESSES section of this preamble.
Clarity of the Regulation
Executive Order 12866 requires each agency to write regulations
that are simple and easy to understand. The BLM invites your comments
on how to make this proposed 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 regulations be easier to understand if they were
divided into more (but shorter) sections?
5. Is the description of the proposed rule in the SUPPLEMENTARY
INFORMATION section of this preamble helpful in understanding the
proposed rule? 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 regulations to
the address specified in the ADDRESSES section.
National Environmental Policy Act
The BLM has determined that this proposed rule is administrative in
nature and involves only procedural changes addressing segregation
requirements. This proposed rule would result in no new surface
disturbing activities and therefore would have no effect on ecological
or cultural resources. Potential effects from associated wind and/or
solar ROWs would be analyzed as part of the site-specific NEPA analysis
for those activities. In promulgating this rule, the government is
conducting routine and continuing government business of an
administrative nature having limited context and intensity. Therefore,
it is categorically excluded from environmental review under section
102(2)(C) of NEPA, pursuant to 43 CFR 46.205. The proposed rule does
not meet any of the extraordinary circumstances criteria for
categorical exclusions listed at 43 CFR 46.215. Pursuant to Council on
Environmental Quality regulation (40 CFR 1508.4) and the environmental
policies and procedures of the Department, the term ``categorical
exclusion'' means a category of actions which do not individually or
cumulatively have a significant effect on the human environment and
which have been found to have no such effect on procedures adopted by a
Federal agency and for which, therefore, neither an environmental
assessment nor an environmental impact statement is required.
Regulatory Flexibility Act
The Congress enacted the Regulatory Flexibility Act (RFA) of 1980,
as amended, 5 U.S.C. 601-612, to ensure that Government regulations do
not unnecessarily or disproportionately burden small entities. The RFA
requires a regulatory flexibility analysis if a rule would have a
significant economic impact, either detrimental or beneficial, on a
substantial number of small entities. The RFA requires agencies to
analyze the economic impact of regulations to determine the extent to
which there is anticipated to be a significant economic impact on a
substantial number of small entities. We anticipate that the proposed
rule could potentially affect a few entities that might otherwise have
located new mining claims on public lands covered by a wind or solar
energy facility ROW application currently pending or filed in the
future. We further anticipate that most of these entities would be
small entities as defined by the Small Business Administration;
however, we do not expect the potential impact to be significant.
Therefore, the BLM has determined under the RFA that this proposed rule
would not have a significant economic impact on a substantial number of
small entities. A copy of the analysis that supports this determination
is available at the office listed under the ADDRESSES section of this
preamble.
Small Business Regulatory Enforcement Fairness Act
For the same reasons as discussed under the Executive Order 12866,
Regulatory Planning and Review section of this preamble, this proposed
rule is not a ``major rule'' as defined at 5 U.S.C. 804(2). That is, it
would not have an annual effect on the economy of $100 million or more;
it would not result in major cost or price increases for consumers,
industries, government agencies, or regions; and it would not
[[Page 23235]]
have significant adverse effects on competition, employment,
investment, productivity, innovation, or the ability of U.S.-based
enterprises to compete with foreign-based enterprises. A copy of the
analysis that supports this determination is available at the office
listed under the ADDRESSES section of this preamble.
Unfunded Mandates Reform Act
This proposed rule would not impose an unfunded mandate on State,
local, or Tribal governments, in the aggregate, or the private sector
of $100 million or more per year; nor would it have a significant or
unique effect on State, local, or Tribal governments. The rule would
impose no requirements on any of these entities. Therefore, the BLM
does not need to prepare a statement containing the information
required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.).
Executive Order 12630, Governmental Actions and Interference With
Constitutionally Protected Property Rights (Takings)
This proposed rule is not a government action that interferes with
constitutionally protected property rights. This proposed rule would
set out a process, by publication of a notice in the Federal Register,
that could be used to segregate public lands included within a pending
or future solar or wind energy generation ROW application, or public
lands identified by the BLM for a potential future wind or solar energy
generation ROW authorization. This segregation would remove public
lands from the operation of the public land laws, including the
location of new mining claims under the Mining Law, but not the Mineral
Leasing Act or the Materials Act for a period of up to 2 years, with
the authority to extend the segregation for up to an additional 2-year
period, in order to promote the orderly administration of the public
lands. Because any segregation under this proposed rule would be
subject to valid existing rights, it does not interfere with
constitutionally protected property rights. Therefore, the Department
has determined that this proposed rule does not have significant
takings implications and does not require further discussion of takings
implications under this Executive Order.
Executive Order 13132, Federalism
The proposed rule would not have a substantial direct effect on the
States, or the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
levels of government. It would not apply to States or local governments
or State or local government entities. 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
Under Executive Order 12988, the BLM has determined that this
proposed rule would not unduly burden the judicial system and that it
meets the requirements of sections 3(a) and 3(b)(2) of the Order.
Executive Order 13175, Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, the BLM has found that
this proposed rule does not include policies that have Tribal
implications. This rule would apply exclusively to lands administered
by the BLM. It would not be applicable to and would have no bearing on
trust or Indian lands or resources, or on lands for which title is held
in fee status by Indian Tribes, or on 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, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
In accordance with Executive Order 13211, the BLM has determined
that this proposed rule is not likely to have a significant adverse
effect on energy supply, distribution, or use, including a shortfall in
supply, price increase, or increased use of foreign supplies. The BLM's
authority to segregate lands under this rule would be of a temporary
nature for the purpose of encouraging the orderly administration of
public lands, including the generation of electricity from wind and
solar resources on the public lands. Any increase in energy production
as a result of this rule from wind or solar sources is not easily
quantified, but the proposed rule is expected to relieve obstacles and
hindrances to energy development on public lands.
Executive Order 13352--Facilitation of Cooperative Conservation
In accordance with Executive Order 13352, the BLM has determined
that this proposed rule would not impede the facilitation of
cooperative conservation. The rule takes appropriate account of and
respects 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 proposed rule does not contain information collection
requirements that the Office of Management and Budget must approve
under the Paperwork Reduction Act of 1995.
Author
The principal author of this rule is Jeff Holdren, Realty
Specialist, Division of Lands and Realty, assisted by the Division of
Regulatory Affairs, Washington Office, Bureau of Land Management,
Department of the Interior.
List of Subjects
43 CFR Part 2090
Airports; Alaska; Coal; Grazing lands; Indian lands; Public lands;
Public lands--classification; Public lands--mineral resources; Public
lands--withdrawal; Seashores.
43 CFR Part 2800
Communications; Electric power; Highways and roads; Penalties;
Pipelines; Public lands--rights-of-way; Reporting and recordkeeping
requirements.
For the reasons stated in the preamble and under the authorities
stated below, the BLM proposes to amend 43 CFR parts 2090 and 2800 as
follows:
Subchapter B--Land Resource Management (2000)
PART 2090--SPECIAL LAWS AND RULES
1. The authority citation for part 2090 continues to read as
follows:
Authority: 43 U.S.C. 1740.
Subpart 2091--Segregation and Opening of Lands
2. Amend Sec. 2091.3-1 by adding a new paragraph (e) to read as
follows:
Sec. 2091.3-1 Segregation
* * * * *
[[Page 23236]]
(e)(1) The Bureau of Land Management may segregate, if it finds it
to be necessary for the orderly administration of the public lands,
lands included in a right-of-way application for the generation of
electrical energy under 43 CFR subpart 2804 from wind or solar sources.
In addition, the Bureau of Land Management may also segregate public
lands that it identifies for potential rights-of-way for electricity
generation from wind or solar sources. Upon segregation, such lands
will not be subject to appropriation under the public lands laws,
including location under the General Mining Law, but not the Mineral
Leasing Act of 1920 (30 U.S.C. 181 et seq.) or the Materials Act of
1947 (30 U.S.C. 601 et seq.). The Bureau of Land Management will effect
such segregation by publishing a Federal Register notice that includes
a description of the lands covered by the segregation. The Bureau of
Land Management may impose a segregation in this way on both pending
and new right-of-way applications.
(2) The effective date of segregation is the date of publication of
the notice in the Federal Register and the date of termination of the
segregation is the date that is the earliest of the following:
(i) Upon issuance of a decision by the authorized officer granting,
granting with modifications, or denying the application for a right-of-
way;
(ii) Automatically at the end of the segregation period provided
for in the Federal Register notice initiating the segregation, without
further action by the authorized officer; or
(iii) Upon publication of a Federal Register notice of termination
of the segregation.
(3) The segregation period may not exceed 2 years from the date of
publication of the Federal Register notice initiating the segregation
unless, on a case-by-case basis, the Bureau of Land Management State
Director determines and documents in writing, prior to the expiration
of the segregation period, that an extension is necessary for the
orderly administration of the public lands. If an extension is
determined to be necessary, the Bureau of Land Management will publish
a notice in the Federal Register, prior to expiration of the initial
segregation period that the segregation is being extended for up to 2
years. Only one extension may be authorized; the total segregation
period therefore cannot exceed 4 years.
PART 2800--RIGHTS-OF-WAY UNDER THE FEDERAL LAND POLICY AND
MANAGEMENT ACT
3. The authority citation for part 2800 continues to read as
follows:
Authority: 43 U.S.C. 1733, 1740, 1763, and 1764.
Subpart 2804--Applying for FLPMA Grants
4. Amend Sec. 2804.25 by adding a new paragraph (e) to read as
follows:
Sec. 2804.25 How will BLM process my application?
* * * * *
(e)(1) The BLM may segregate, if it finds it to be necessary for
the orderly administration of the public lands, lands included within a
right-of-way application under 43 CFR subpart 2804 for the generation
of electricity from wind or solar sources. In addition, the BLM may
segregate public lands that it identifies for potential rights-of-way
for electricity generation from wind or solar sources under the BLM's
right-of-way regulations. Upon segregation, such lands will not be
subject to appropriation under the public land laws, including location
under the General Mining Law, but not from the Mineral Leasing Act of
1920 (30 U.S.C. 181 et seq.) or the Materials Act of 1947 (30 U.S.C.
601 et seq.). The BLM will effect such segregation by publishing a
Federal Register notice that includes a description of the lands
covered by the segregation. The Bureau of Land Management may impose a
segregation in this way on both pending and new right-of-way
applications.
(2) The segregative effect of the Federal Register notice
terminates on the date that is the earliest of the following:
(i) Upon issuance of a decision by the authorized officer granting,
granting with modifications, or denying the application for a right-of-
way;
(ii) Automatically at the end of the segregation period provided
for in the Federal Register notice initiating the segregation, without
further action by the authorized officer; or
(iii) Upon publication of a Federal Register notice of termination
of the segregation.
(3) The segregation period may not exceed 2 years from the date of
publication of the Federal Register notice initiating the segregation
unless, on a case by case basis, the BLM State Director determines and
documents in writing, prior to the expiration of the segregation
period, that an extension is necessary for the orderly administration
of the public lands. If an extension is determined to be necessary, the
BLM will publish a notice in the Federal Register, prior to expiration
of the initial segregation period that the segregation is being
extended for up to 2 years. Only one extension may be authorized; the
total segregation period therefore cannot exceed 4 years.
Dated: April 6, 2011.
Wilma A. Lewis,
Assistant Secretary of the Interior, Land and Minerals Management.
[FR Doc. 2011-10017 Filed 4-25-11; 8:45 am]
BILLING CODE 4310-84-P