[Federal Register Volume 67, Number 189 (Monday, September 30, 2002)]
[Rules and Regulations]
[Pages 61274-61276]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-24610]


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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Part 2880

[WO-350-1430-PE-24-1A]
RIN 1004-AD55


Rights-of-Way Under the Mineral Leasing Act; Timing of Approvals

AGENCY: Bureau of Land Management, Interior.

ACTION: Final rule.

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SUMMARY: The Bureau of Land Management (BLM) is issuing a rule which 
allows BLM to approve right-of-way grants for pipelines 24 inches or 
more in diameter as soon as it notifies the appropriate congressional 
committees. This final rule avoids the possibility that BLM will issue 
a right-of-way grant in a way that violates our own rules.

EFFECTIVE DATE: This final rule is effective November 29, 2002.

FOR FURTHER INFORMATION CONTACT: Michael H. Schwartz, Manager, 
Regulatory Affairs Group at (202) 452-5198. Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service at 1-800-877-8339, 24 hours a day, 7 days a 
week.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose
II. Final Rule as Adopted and Response to Comment
III. Procedural Matters

I. Background and Purpose

Why Is BLM Implementing This Rule?

    In 1979 the BLM issued rules regarding applying for and processing 
a right-of-way authorized by the Mineral Leasing Act of 1920, as 
amended. Since 1979 we have amended the various sections within part 
2880 on several occasions, the last being in 1989. On October 30, 1990, 
the President signed Public Law 101-475. This law amends section 
28(w)(2) of the Mineral Leasing Act (30 U.S.C. 185 (w)(2)) by allowing 
the Secretary of the Interior to issue a right-of-way for a pipeline 24 
inches or more in diameter as soon as the Secretary notifies the 
appropriate committees of the Congress. The previous law required the 
Secretary to allow 60 days to pass after notifying Congress before 
issuing the right-of-way. The current regulations reflect the 60-day 
requirement, thereby imposing a waiting period for issuing a right-of-
way that is no longer required by statute.
    On June 15, 1999 (64 FR 32106) we proposed a major revision to part 
2880 of our regulations and intend to publish the final rule within the 
year. The pertinent part of proposed section 2884.23 included the 
following language (see 64 FR 32141):


Sec.  2884.23  When will BLM issue the grant or permit?

    If the grant involves:
    (a) A pipeline 24 inches or more in diameter, BLM will not issue 
or renew the grant until after we notify the Congress;

    The purpose of today's rulemaking is to ensure that BLM may issue 
grants for pipelines 24 inches or more in diameter as soon as we notify 
the Congress without being in violation of our own regulations. This 
final rule avoids the possibility that BLM will issue a right-of-way 
grant in a way that violates our own rules. At the same time, the rule 
follows explicit statutory direction.
    Although we expect to issue comprehensive right-of-way rules before 
the end of the year, it is not certain we will. This section applies to 
all Federal right-of-way grants for pipelines 24 inches or more in 
diameter, including the Trans Alaska Pipeline (TAP) right-of-way grant 
renewal. It is important that today's change is in effect no later than 
January 22, 2004. At that time the original Federal TAP right-of-way 
grant will expire.
    While we will complete processing the application for renewing the 
TAP right-of-way grant before the original right-of-way grant expires, 
it is possible that we will be unable to do so and notify Congress 60 
days prior to the expiration of the original grant. If this were to 
occur, the current regulations would require us to shut the pipeline or 
issue a temporary use permit. The former is not realistic; the latter 
an unnecessary burden on both the pipeline company and ourselves. 
Therefore, we are choosing to expedite issuance of this provision of 
the comprehensive rule we proposed in 1999.

How Does This Rule Change Requirements for Processing Right-of-Way 
Applications?

    The only change this rule makes to current practice is that it 
allows BLM to issue a right-of-way grant for pipelines 24 inches or 
more in diameter immediately after notifying the appropriate committees 
of the Congress. After the effective date of this final rule, we will 
no longer have to wait 60 days after notifying Congress before we issue 
a right-of-way grant for a pipeline 24 inches or more in diameter.

[[Page 61275]]

II. Final Rule as Adopted and Response to Comment

    The final rule differs from the proposed rule in that we change the 
wording from ``notify the Congress'' to ``notify the appropriate 
committees of Congress in accordance with 30 U.S.C. 185(w).'' This 
change is intended to be more consistent with the intent of Congress 
which named the House Committee on Interior and Insular Affairs and the 
Senate committee on Energy and Natural Resources as the places where 
BLM should send notification. In fact, the House Committee on Interior 
and Insular Affairs is now named the House Resources Committee. Because 
committee names and functions change, we believe it prudent to 
substitute the term ``appropriate committees'' for the names of 
specific committees. This does not sacrifice clarity because the 
committee with jurisdiction is readily understood by those with a 
continuous interest in these issues and individuals having a unique or 
occasional interest in pipeline issues may easily obtain the 
information. Moreover, the phrase ``in accordance with 30 U.S.C. 
185(w)'' better conveys the notion that BLM's notice to Congress will 
be accompanied by the Secretary's or agency head's detailed findings as 
to the terms and conditions to be proposed, as required by 30 U.S.C. 
185(w).
    We also renumbered the final rule to fit into BLM's existing 
regulatory structure in our part 2880 right-of-way regulations.
    We received a single comment on proposed section 2884.23, which 
asked why BLM would ``refer'' the application to the Committee and 
noted that the word ``notify'' has a meaning distinct from ``refer.'' 
The commenter is correct and the change we are making today reflects 
that concern.

III. Procedural Matters

Executive Order 12866, Regulatory Planning and Review

    This rule is not a significant regulatory action and was not 
reviewed by the Office of Management and Budget under Executive Order 
12866. The rule will not have an annual effect of $100 million or more 
on the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities. This regulation will not create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency. 
The regulation does not materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights or 
obligations of their recipients; nor does it raise novel legal or 
policy issues. The regulation merely follows existing law which allows 
BLM to issue certain grants 60 days sooner than current regulations 
allow.

Executive Order 12866, Clarity of the Regulations

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand, including answers to such questions as 
the following:
    1. Are the requirements in the rule clearly stated?
    2. Does the rule contain technical language or jargon that 
interferes with its clarity?
    3. Does the format of the rule (grouping and order of sections, use 
of headings, paragraphing, etc.) aid or reduce its clarity?
    4. Would the rule be easier to understand if it were divided into 
more (but shorter) sections?
    5. Is the description of the rule in the SUPPLEMENTARY INFORMATION 
section of this preamble helpful in understanding the rule? How could 
this description be more helpful in making the regulation easier to 
understand?
    Send a copy of any comments that say how we could make this rule 
easier to understand to: Director (630), Bureau of Land Management, 
Administrative Record, Eastern States Office, 7450 Boston Boulevard, 
Springfield, Virginia 22153, Attention: RIN 1004-AD55.

National Environmental Policy Act

    BLM has determined that this rule is categorically excluded from 
environmental review under section 102(2)(C) of the National 
Environmental Policy Act, under 516 Departmental Manual (DM), Chapter 
2, Appendix 1, Item 1.10, and has concluded that the rule does not meet 
any of the ten exceptions to the categorical exclusions listed in 516 
DM, Chapter 2, Appendix 2. Under 516 DM, Chapter 2, Appendix 1, Sec.  
1.10, this rule qualifies as a categorical exclusion because it is a 
regulation of an administrative, legal, or procedural nature. Pursuant 
to Council on Environmental Quality regulations (40 CFR 1508.4) and the 
environmental policies and procedures of the Department of the 
Interior, the term ``categorical exclusion'' means a category of 
actions which do not individually or cumulatively have a significant 
effect on the human environment and that have been found to have no 
such effect in procedures adopted by a Federal agency and for which 
neither an environmental assessment nor an environmental impact 
statement is required.

Regulatory Flexibility Act

    Congress enacted the Regulatory Flexibility Act of 1980, as amended 
(5 U.S.C. 601-612) (RFA), 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 regulation merely allows BLM to issue certain grants 60 days 
sooner than current regulations allow and therefore will not have a 
significant economic impact on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million or 
more.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. The rule would not affect costs or 
prices for consumers since the actions associated with the rule would 
have minimal economic impact on the industry.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.
    The rule is strictly administrative in nature and will not have an 
economic impact on any of the above.

Unfunded Mandates Reform Act

    The regulation does not impose an unfunded mandate on State, local, 
or tribal governments or the private sector of more than $100 million 
per year; nor does the regulation have a significant or unique effect 
on State, local, or tribal governments or the private sector. The 
regulation merely allows BLM to issue certain grants 60 days sooner 
than previous regulations allowed. Therefore, 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.).

[[Page 61276]]

Executive Order 12630, Government Action and Interference With 
Constitutionally Protected Property Rights (Takings)

    The rule does not represent a government action capable of 
interfering with constitutionally protected property rights. The rule 
merely allows BLM to issue certain grants 60 days sooner than current 
regulations allow. Therefore, the Department of the Interior has 
determined that the rule would not cause a taking of private property 
or require further discussion of takings implications under this 
Executive Order.

Executive Order 13132, Federalism

    The 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 various 
levels of government. The rule is strictly administrative in nature. 
Therefore, in accordance with Executive Order 13132, BLM has determined 
that this rule does not have sufficient Federalism implications to 
warrant preparation of a Federalism Assessment.

Executive Order 12988, Civil Justice Reform

    Under Executive Order 12988, the Office of the Solicitor has 
determined that this 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, BLM finds that this rule 
does not include policies that have tribal implications.
    Any consultations with tribes that are necessary for approving a 
right-of-way grant under our regulations will occur before we notify 
Congress.

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

    In accordance with Executive Order 13211, BLM has determined that 
this rule will not have substantial direct effects on the energy 
supply, distribution or use, including a shortfall in supply or price 
increase. The rule would merely remove the requirement that BLM 
withhold approval of a right-of-way grant for a pipeline 24 inches or 
more in diameter for 60 days. This previous requirement could have had 
an adverse impact on distribution of energy supplies because it could 
have delayed approval of pipeline right-of-way grants. The rule would 
therefore improve the timing of distribution of energy supplies.

Paperwork Reduction Act

    These regulations do not contain information collection 
requirements that the Office of Management and Budget must approve 
under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.

Authors

    The principal authors of this rule are Ian Senio and Michael H. 
Schwartz of the Regulatory Affairs Group, Washington Office, Bureau of 
Land Management. The Office of the Solicitor assisted.

List of Subjects for 43 CFR Part 2880

    Administrative practice and procedures, Common carriers, Pipelines, 
Public lands rights-of-way, and Reporting and recordkeeping 
requirements.


    Accordingly, for the reasons stated in the preamble, and under the 
authorities cited below, amend Title 43 of the Code of Federal 
Regulations, Group 2800, part 2880 as set forth below:

    Dated: September 13, 2002.
Rebecca W. Watson,
Assistant Secretary, , Land and Minerals Management.

PART 2880--RIGHTS-OF-WAY UNDER THE MINERAL LEASING ACT

    1. Revise the authority citation for part 2880 to read as follows:

    Authority: 30 U.S.C. 185.

    2. In Sec.  2882.3, revise paragraph (a) to read as follows:


Sec.  2882.3  Application processing.

    (a) If the grant involves a pipeline 24 inches or more in diameter, 
BLM will not issue or renew the grant until after we notify the 
appropriate committees of Congress in accordance with 30 U.S.C. 185(w).
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[FR Doc. 02-24610 Filed 9-27-02; 8:45 am]
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