[Federal Register Volume 71, Number 223 (Monday, November 20, 2006)]
[Rules and Regulations]
[Pages 67066-67068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-19502]



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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Parts 2091 and 2710

[WO-350-05 1430 PN]
 RIN 1004-AD74


Public Sales

AGENCY: Bureau of Land Management, Interior.

ACTION: Final rule.

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SUMMARY: The Bureau of Land Management (BLM) amends its procedural 
regulations pertaining to the time allowed for the segregation of 
public lands proposed for sale. Under existing regulations, the BLM may 
segregate these lands from the operation of the public land and mineral 
laws for a period up to 270 days following publication of a Notice of 
Realty Action in the Federal Register. The Department of the Interior 
has imposed this time constraint under its discretion and not as a 
requirement of law. The current segregation period compresses the time 
necessary to address comments or protests the BLM receives after 
publication of a Notice of Realty Action. In order to address comments 
or protests in the normal course of business, as to future proposed 
sales, this final rule allows the BLM to segregate lands initially for 
a period of up to two years with the option to extend, if necessary, 
the initial period of segregation up to two additional years on a case-
by-case basis. The BLM also is amending its segregation regulation at 
43 CFR 2091.2-1 so that it will be consistent with the changes made in 
the BLM's public sale regulations.

DATES: This rule is effective December 20, 2006.

ADDRESSES: Further information or questions regarding this final rule 
should be addressed in writing to the Director (WO 300), Bureau of Land 
Management 1849 C Street, NW., Washington, DC, 20240.

FOR FURTHER INFORMATION CONTACT: Jeff Holdren of the BLM's Lands and 
Realty Group at 202 452-7779 for information about the content of this 
final rule, or for information regarding BLM's regulatory process, 
Cynthia Ellis of the BLM's Regulatory Affairs Group at 202 452-5012. 
Persons who use a telecommunications device for the deaf may contact 
these named individuals through the Federal Information Relay Service 
at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background
II. Discussion of the Final Rule
III. Procedural Matters

I. Background

    The Secretary of the Interior is authorized to sell public lands 
managed by the BLM pursuant to section 203 of the Federal Land Policy 
and Management Act of 1976 (43 U.S.C. 1713) (FLPMA). Regulations 
implementing the Secretary of the Interior's authority to sell such 
lands are located in 43 CFR part 2710. These regulations, issued in 
1980 and partially amended in 1984, explain the following:
     Policies pertaining to the BLM public land sale program 
(43 CFR 2710.0-6);
     Definitions of applicable terms (43 CFR 2710.0-5);
     The criteria and means by which lands are determined 
suitable for FLPMA section 203 sales (43 CFR 2710.0-3, 2710.0-8 and 
2711.1);
     The criteria for a qualified conveyee or purchaser (43 CFR 
2711.2);
     The procedure for sale, especially the notice, segregation 
provisions and the competitive, modified competitive, and non-
competitive methods (43 CFR 2711. 1-2, 2711.3); and
     Certain other procedural matters and requirements relating 
to conveyance documents (land patents) (43 CFR 2711.4 and 2711.5).
    In regulations issued in 1987 and in part amended in 1993, the BLM 
collected and reiterated all of the segregation rules stated throughout 
the BLM regulations, including the 270-day segregation rules pertaining 
to the proposed BLM section 203 sales (43 CFR 2091.2-1(b)).
    In general, the Administrative Procedure Act (APA) requires that 
federal agencies give notice and provide an opportunity for the public 
to comment whenever they propose a regulation or an amendment. However, 
unless precluded by statute, the APA allows exemptions from its notice 
and comment requirement for ``interpretive rules, general statements of 
policy or rules of agency organization, procedure, or practice'' (5 
U.S.C. 553(b)(3). The exception applies in this instance because this 
final rule amends the segregation rules that are part of the procedure 
for BLM sales (43 CFR 2711.1-2). Correspondingly, this final rule, 
being procedural in nature, likewise qualifies as a categorical 
exclusion, which exempts the rule from certain requirements of the 
National Environmental Policy Act (NEPA). See 42 U.S.C. 4332(C); 40 CFR 
1508.4.

II. Discussion of the Final Rule

    When public lands are to be offered for sale, pursuant to FLPMA 
section 203, the BLM must publish a Notice of Realty Action (NORA) in 
the Federal Register and send the NORA to interested parties within 60 
days prior to the sale (43 CFR 2711.1-2(a)). The notice also provides 
for a 45-day comment period on the proposed public land sale. The 
existing regulation states that when the NORA is published in the 
Federal Register, the lands proposed for sale are segregated from 
appropriation under the public land and mineral laws for a term not to 
exceed 270 days (43 CFR 2711.1-2(d) and 2091.2-1(b)).
    FLPMA does not provide expressly for a segregation period in 
conjunction with a FLPMA section 203 sale (43 U.S.C. 1713). However, 
when the sale regulations were amended in 1984, the BLM added a 
segregation provision, limited to maximum duration of 270 days. The 
270-day period has continued in effect since that time.
    The existing 270-day limit on segregation of public lands proposed 
for FLPMA section 203 sales makes it difficult for BLM to fulfill all 
steps associated with a sale in BLM's normal course of business. 
Providing the BLM additional time would allow, in the normal course of 
business: (i) The research and documentation needed to ensure that a 
proposed sale is in compliance with planning as well as a variety of 
other requirements; (ii) the opportunity to respond to the comments of 
the public and interested parties; and (iii) the leeway to consider and 
resolve any protests lodged by the public or interested parties 
regarding a proposed sale. The BLM is, therefore, publishing this final 
rule to enlarge the period of time needed for segregation to meet these 
objectives.
    This final rule will allow a BLM State Director to extend, if 
deemed necessary in that official's judgment, the duration of a period 
of segregation for up to a maximum of two additional years on a case-
by-case basis. Finally, the rule amends the BLM's segregation 
regulations in 43 CFR part 2091 to be consistent with the changes this 
rule makes relative to the FLPMA section 203 public land sale 
regulations in 43 CFR part 2710.

III. Procedural Matters

Executive Order 12866, Regulatory Planning and Review: Clarity of the 
Regulations.

    This final rule is not a ``significant regulatory action'' as 
defined in section 3(f) of Executive Order 12866. The final rule simply 
allows the BLM needed additional time to process FLPMA section 203 
public land sale actions by extending the segregation period

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relative to such sales. Therefore, this final rule does not require an 
assessment of potential benefits and costs, nor does it require an 
explanation pertaining to the manner in which the regulatory action is 
consistent with a statutory mandate. To the extent allowed by law, this 
final rule promotes the President's priorities and avoids undue 
interference with state, local, and tribal governments in the exercise 
of their governmental functions. This rule is not a ``significant 
regulatory action''; therefore, the Office of Management and Budget has 
not reviewed this rule under Executive Order 12866.

Regulatory Flexibility Act

    Congress enacted The Regulatory Flexibility Act of 1980 (RFA) (5 
U.S.C. 601-612) as amended, 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 
final rule, revising CFR 2091.2-1(b) and 2711.1-2(d) to provide for a 
longer segregation period of lands being considered for public sales 
under the FLPMA section 203, will not have a significant economic 
impact on a substantial number of small entities under the RFA.
    As stated above in the preamble, this final rule only enlarges the 
segregation period so that the BLM has sufficient time to conduct the 
necessary reviews and other administrative actions in the normal course 
of business. Small entities could actually gain an advantage under this 
final rule because it allows additional time for their comments on 
proposed sales to be fully considered.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This final 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, nor will it result in major cost or price increases 
for consumers, industries, government agencies, or regions. This final 
rule will not increase the costs for any entities having an interest in 
the sale of the Federal land because new procedures are not being 
added. The BLM is only increasing the time provided for the segregation 
of lands being considered for sale to ensure that all applicable 
requirements and procedures are completed properly in the normal course 
of business. The new rule 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. The new rule may actually provide a reduction in 
costs to consumers and others because the BLM will have more time to 
provide input into a proposed sale decision, thus eliminating the need 
for extra staffing, or overtime that could otherwise be required to 
meet the deadlines under the existing (former) regulations.

Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(UMRA) (2 U.S.C. 1532), the BLM must prepare a budgetary impact 
statement to accompany any proposed rule that includes a Federal 
mandate that may result in estimated costs to State, local, or tribal 
governments in the aggregate, or to the private sector, of $100 million 
or more. We expect the estimated costs to States, local, or tribal 
governments will remain the same, and may be reduced in some instances 
by reducing potential overtime costs or other costs necessary to 
provide pertinent data within the existing timeframes. Therefore, this 
final rule is revising 43 CFR 2091.2-1(b) to provide a longer 
segregation period for lands being considered for public sales under 
section 203 of FLPMA and will not result in any unfunded mandates.

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

    In accordance with Executive Order 12630, the BLM has found that 
this final rule does not have significant takings implications. The 
revision of 43 CFR 2711.1-2(d) will merely provide a longer segregation 
period for lands being considered for public sales under FLPMA section 
203. No takings of personal or real property will occur as a result of 
this final rule. A takings implication analysis is not required.

Executive Order 13132, Federalism

    In accordance with Executive Order 13132, the BLM finds that this 
final rule does not have sufficient federalism implications to warrant 
the preparation of a federalism summary impact statement. The rule does 
not have 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 does not preempt state law.

Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, the BLM finds that this 
rule will not result in significant changes to BLM policy and that 
Tribal Governments will not be unduly affected by this rule. This 
rulemaking 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.

Executive Order 12988, Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor has determined that this final rule 
does not unduly burden the judicial system and meets the requirements 
of sections 3(a) and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

    The BLM has determined that this rulemaking does not contain any 
new information collection which the Office of Management and Budget 
must approve under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

National Environmental Policy Act

    The BLM has determined that this final rule addresses procedural 
matters, and the FLPMA section 203 sales themselves represent the 
culmination of a planning process that fulfills BLM's NEPA obligations 
(43 CFR 2710.0-6(a) and 43 CFR 1600--Planning). Therefore, this final 
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. In addition, this 
final rule does not meet any of the 10 criteria for exceptions to 
categorical exclusions 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 (516 DM 2.3 A(1)), the term ``categorical exclusions'' 
means a category of actions which do not individually or cumulatively 
have a significant effect on the human environment and that have been 
found to have no such effect in procedures adopted by a Federal agency 
and for which neither an environmental assessment nor an environmental 
impact statement is required.

Executive Order 13352, Facilitation of Cooperative Conservation

    In accordance with Executive Order 13352, the BLM has determined 
that

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this final rule is administrative in content, involving only procedural 
changes addressing time constraints. This final rule does not impede 
facilitating 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.

Executive Order 13211, Effects on the Nation's Energy Supply (Executive 
Order 13211)

    This final rule is a purely administrative regulatory action and 
has no implications under Executive Order 13211.

Executive Order 12866, Clarity of the Regulations

    Executive Order 12866 requires each agency to write regulations 
that are simple and easy to understand. The BLM invites your comments 
on how to make these regulations easier to understand, including 
answers to questions such as the following:
    1. Are the requirements in the final regulations clearly stated?
    2. Do the final regulations contain technical language or jargon 
that interferes with clarity?
    3. Does the format of the final regulations (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce their 
clarity?
    4. Would the final regulations be easier to understand if they were 
divided into more (but shorter) sections?
    5. Is the description of the final regulation in the SUPPLEMENTARY 
INFORMATION section of this preamble helpful in making the final 
regulation easier to understand?
    Please send any written comments you have on the clarity of these 
regulations to the address specified above in the ADDRESSES section.

List of Subjects

43 CFR Part 2091

    Administrative practices and procedures, Segregation and opening of 
lands

43 CFR Part 2710

    Administrative practices and procedures, Public lands--mineral 
resources, and Public lands--sale.

    Dated: November 3, 2006.
C. Stephen Allred,
Assistant Secretary, Land and Minerals Management.

0
Accordingly, for the reasons stated in the preamble and under the 
authority of the FLPMA (43 U.S.C. 1740), the BLM amends Sec.  Sec.  
2091.2-1(b) and revises 2711.1-2(d), Title 43 of the Code of Federal 
Regulations as set forth below:

PART 2090--SPECIAL LAWS AND RULES

0
1. Revise the authority citation for part 2090 to read as follows:

    Authority: 43 U.S.C. 1740.


0
2. Amend Sec.  2091.2-1(b) by adding two sentences at the end of 
paragraph (b) to read as follows:


Sec.  2091.2-1  Segregation.

* * * * *
    (b) * * * The sales provisions of section 43 CFR 2711.1-2(d) 
provide for a segregation period, not to exceed two years unless, on a 
case-by-case basis, the BLM State Director determines that the 
extension is necessary and documents, in writing, why the extension is 
needed. Such an extension will not be renewable and cannot be extended 
beyond the additional two years.

PART 2710--SALES; FEDERAL LAND POLICY AND MANAGEMENT ACT

0
3. Revise the authority citation for part 2710 to read as follows:

    Authority: 43 U.S.C. 1740.


0
4. Revise Sec.  2711.1-2(d) to read as follows:


Sec.  2711.1-2  Notice of realty action.

* * * * *
    (d) The publication of the notice of realty action in the Federal 
Register segregates the public lands covered by the notice of realty 
action to the extent that they will not be subject to appropriation 
under the public land laws, including the mining laws. Any subsequent 
application will not be accepted, will not be considered as filed, and 
will be returned to the applicant if the notice segregates from the use 
applied for in the application. The segregative effect of the notice of 
realty action terminates: (i) Upon issuance of a patent or other 
document of conveyance to such lands; (ii) upon publication in the 
Federal Register of a termination of the segregation; or (iii) at the 
end of the specified segregation period, whichever occurs first. The 
segregation period may not exceed two years unless, on a case-by-case 
basis, the BLM State Director determines that the extension is 
necessary and documents, in writing, why the extension is needed. Such 
an extension will not be renewable and cannot be extended beyond the 
additional two years. If an extension is deemed necessary, the BLM will 
publish a notice following the same procedure as that stated in 
paragraph (c) of this section.
* * * * *
[FR Doc. E6-19502 Filed 11-17-06; 8:45 am]
BILLING CODE 4310-84-P