[Federal Register Volume 73, Number 166 (Tuesday, August 26, 2008)]
[Rules and Regulations]
[Pages 50199-50201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19745]


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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Part 2740

[WO-350-08 1430 PN-24 1A]
RIN 1004-AE03


Recreation and Public Purposes Act; Solid Waste Disposal

AGENCY: Bureau of Land Management, Interior.

ACTION: Final rule.

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SUMMARY: The Bureau of Land Management (BLM) amends a procedural 
regulation pertaining to the issuance of patents for public lands 
leased on or before November 9, 1988, for solid waste disposal or 
related purposes. The existing regulation requires the express approval 
of the Director of the Bureau of Land Management (BLM) before the 
lessee may receive a patent to such lands. In 1992, when the regulation 
was promulgated, most of the BLM's employees with the necessary 
expertise were centralized in the BLM's headquarters in Washington, DC, 
and express approval by the Director was deemed necessary. This is no 
longer the case, since employees with the necessary expertise are now 
located in State Offices of the BLM. Consistent with Department of the 
Interior policy to delegate responsibility to the lowest appropriate 
organizational levels, this rule removes the requirement for express 
approval by the Director. As this administrative final rule amends an 
internal agency procedure, it is exempt from the usual requirement for 
notice and an opportunity for public comment, under the Administrative 
Procedure Act.

DATES: This rule is effective October 27, 2008.

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

FOR FURTHER INFORMATION CONTACT: For information on the substance of 
the proposed rule, please contact Jeff Holdren at 202-452-7779. 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 twenty-four hours a day, seven days a week, to leave a 
message or question with the above individuals. You will receive a 
reply during normal business hours.

SUPPLEMENTARY INFORMATION: 

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

I. Background

    The Secretary of the Interior is authorized to transfer or lease 
certain public lands to State and local governmental agencies and to 
nonprofit corporations and associations for recreation and public 
purposes under the Act of June 14, 1926 (43 U.S.C. 869 et seq.), 
commonly known as the Recreation and Public Purposes (R&PP) Act. 
Regulations implementing the Secretary of the Interior's authority to 
sell or lease lands under the R&PP Act are located in 43 CFR part 2740. 
These regulations explain the following:
     Policies pertaining to the BLM's implementation of the 
R&PP Act (43 CFR 2740.0-6);
     Definitions of applicable terms (43 CFR 2740.0-5);
     Lands subject to disposition (43 CFR 2741.1);
     The criteria for qualified applicants (43 CFR 2741.2);
     The guidelines for conveyance and lease under the act (43 
CFR 2741.5); and
     Certain other procedural matters and requirements relating 
to public lands conveyed by patent for the purpose of solid waste 
disposal. (43 CFR subpart 2743).
    The BLM promulgated the regulations at 43 CFR subpart 2743 in order 
to reduce or avoid Federal liabilities that might arise from the 
conveyance of landfills contaminated by hazardous substances. Some of 
the regulations directly implement amendments to the R&PP Act that 
became effective on November 10, 1988. One such regulation is 43 CFR 
2743.2(a)(5), which requires an investigation to determine whether or 
not any hazardous substance is present on public lands before conveying 
them by patent for new solid waste disposal sites. 43 U.S.C. 869-
2(b)(2).
    With respect to lands leased before November 9, 1988, the BLM 
exercised its rulemaking discretion to promulgate a similar 
investigative requirement, and to require the express approval of the 
Director of the BLM before the lessee may receive a patent to such 
lands. 43 CFR 2743.3. Neither of these requirements appears in the R&PP 
Act. However, at the time, the BLM deemed both provisions necessary 
because the Bureau's environmental expertise was concentrated at its 
headquarters in Washington, DC. In contrast, each BLM State Office now 
employs one or more environmental professionals with the expertise to 
review locally conducted investigations. It is for this reason that 
this rule removes the requirement for express approval by the Director.
    In general, the Administrative Procedure Act (APA) requires that 
Federal agencies give notice and provide an opportunity for the public 
to comment before promulgating a final rule. However, the APA provides 
that prior notice and comment are not required for ``interpretive 
rules, general statements of policy or rules of agency organization, 
procedure, or practice.'' 5 U.S.C. 553(b)(A). This exception applies in 
this instance because this final rule simply amends the BLM's internal 
administrative procedures for patenting land. As discussed below, this 
final rule is also an action that is categorically excluded from 
certain requirements of the National Environmental Policy Act (NEPA). 
See 42 U.S.C. 4332(2)(C); 40 CFR 1508.4; 516 Departmental Manual (DM), 
Chapter 2, Appendix 1, CX 1.10.

II. Discussion of the Final Rule

    The existing regulation states that when a lessee requests or 
concurs in the issuance of a patent to lands included in a lease, or 
portion of a lease, issued on or before November 9, 1988, that have 
been used, as specified in the plan of development, for solid waste 
disposal or for any other purposes that may have

[[Page 50200]]

resulted in or included the disposal, placement, or release of any 
hazardous substance on the land, the patent may only be issued with the 
express approval of the Director, BLM. This rule was adopted following 
enactment of Public Law 100-648 which provided special procedures for 
conveyance of public lands for solid waste disposal purposes. The rule 
was promulgated in 1992 at a time when BLM State Offices did not 
routinely have qualified environmental specialists on staff and most of 
the BLM's environmental expertise was located in its headquarters in 
Washington, DC. The environmental investigative report which precedes 
patent approval was, at that time, submitted to and reviewed in the 
BLM's headquarters in Washington, DC.
    The requirement for express approval by the Director, BLM, is no 
longer needed because each BLM State Office now employs one or more 
environmental professionals with the expertise necessary to evaluate 
and document the conditions of the leased lands prior to patent. The 
existing requirement is inconsistent with Department of the Interior 
policy to delegate authority to the lowest appropriate organizational 
levels, and impedes the BLM policy goal to process requests for patents 
expeditiously. This final rule removes a procedural step that has 
become superfluous, as it is no longer necessary for full compliance 
with statutory intent.

III. Procedural Matters

Executive Order 12866, Regulatory Planning and Review

    This final rule is not a significant regulatory action and is not 
subject to review by the Office of Management and Budget under 
Executive Order 12866. This final rule will not have an 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 final rule will not create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency. This final rule does not alter the budgetary effects 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.

National Environmental Policy Act

    The BLM has determined that this final rule removing the 
requirement for express approval by the Director of BLM prior to patent 
issuance for lands leased prior to November 9, 1988, is of a procedural 
nature whose environmental effects are too broad, speculative, or 
conjectural to lend themselves to meaningful analysis; further, the 
action(s) of patent issuance will later be subject to the NEPA process, 
either collectively or case-by-case. Therefore, this rule is 
categorically excluded from environmental review under section 
102(2)(C) of the National Environmental Policy Act, pursuant to 516 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 
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 (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 
final rule, removing the requirement for the Director of the BLM to 
expressly approve a patent to lands leased prior to November 9, 1988, 
will not have a significant economic impact on a substantial number of 
small entities under the RFA. As stated above in the preamble, the 
final rule only changes the administrative process for patent approval 
in a limited number of instances.

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; it will not result in major cost or price increases 
for consumers, industries, government agencies, or regions; and it will 
not have significant adverse effects on competition, employment, 
investment, productivity, innovation, or the ability of United States-
based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on state, local, or 
tribal governments or the private sector, in the aggregate, of $100 
million or more per year; nor does the rule have a significant or 
unique effect on state, local, or tribal governments. The rule would 
impose no requirements on these entities. The BLM has already shown in 
the previous paragraphs of this section of the preamble that the change 
effected by this rule would not have effects approaching $100 million 
per year on the private sector. Therefore, the BLM is not required to 
prepare a statement containing the information required by the Unfunded 
Mandates Report Act (2 U.S.C. 1531 et seq.).

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

    This rule is not a government action capable of interfering with 
constitutionally protected property rights. The purpose of the rule is 
to be able to respond more quickly to requests for issuance of patent 
documents. Therefore, the BLM has determined that the rule would not 
cause a taking of private property or require further discussion of 
takings implications under this Executive Order.

Executive Order 13132, Federalism

    The 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. It would not apply to states or local governments or state 
or local governmental entities. Therefore, in accordance with Executive 
Order 13132, the BLM has determined that this rule does not have 
sufficient Federalism implications to warrant preparation of a 
Federalism Assessment.

Executive Order 12988, Civil Justice Reform

    In accordance with Executive Order 12988, the BLM has determined 
that this rule does not unduly burden the judicial system and meets the 
requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.

Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, the BLM finds that this 
rule will

[[Page 50201]]

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.

Information Quality Act

    In developing this rule, the BLM did not conduct or use a study, 
experiment or survey requiring peer review under the Information 
Quality Act, 44 U.S.C. 3516 note.

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

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

Executive Order 13352, Facilitation of Cooperative Conservation

    In accordance with Executive Order 13352, the BLM has determined 
that this rule is administrative in content, effecting only procedural 
change affecting issuance of land patents. This 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.

Paperwork Reduction Act

    The BLM has determined that this regulation 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 regulation easier to understand, including answers to 
questions such as the following:
    1. Are the requirements in the final regulation clearly stated?
    2. Does the final regulation contain technical language or jargon 
that interferes with its clarity?
    3. Does the format of the final regulation (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity?
    4. Would the regulation be easier to understand if it was divided 
into more (but shorter) sections?
    5. Is the description of the final regulation in the SUPPLEMENTARY 
INFORMATION section of this preamble helpful in understanding the 
regulation? How could this description be more helpful in making the 
regulation easier to understand?
    Please send any comments you have on the clarity of the regulation 
to the address specified above in the ADDRESSES section.

Authors

    The principal author of this rule is Linda Resseguie of the BLM's 
Division of Lands and Realty, Washington Office, assisted by Jean 
Sonneman of the BLM's Division of Regulatory Affairs, Washington 
Office.

List of Subjects in 43 CFR Part 2740

    Intergovernmental relations; Land Management Bureau; Public lands--
sale; Recreation and recreation sites; Reporting and recordkeeping 
requirements.

Julie Jacobson,
Deputy Assistant Secretary, Land and Minerals Management.

0
Accordingly, for the reasons stated in the preamble and under the 
authority of the R&PP Act (43 U.S.C. 869 et seq.), the BLM amends part 
2740 of Title 43 of the Code of Federal Regulations as set forth below:

PART 2740--RECREATION AND PUBLIC PURPOSES ACT

0
1. The authority citation for part 2740 continues to read as follows:

    Authority: 43 U.S.C. 869 et seq., 43 U.S.C. 1701 et seq., and 31 
U.S.C. 9701.


0
2. Amend Sec.  2743.3 by revising the introductory text of paragraph 
(a) to read as follows:


Sec.  2743.3  Leased disposal sites.

    (a) Upon request by or with the concurrence of the lessee, the 
authorized officer may issue a patent for those lands covered by a 
lease, or portion thereof, issued on or before November 9, 1988, that 
have been or will be used, as specified in the plan of development, for 
solid waste disposal or for any other purpose that the authorized 
officer determines may result in or include the disposal, placement, or 
release of any hazardous substance, subject to the following 
provisions:
* * * * *

[FR Doc. E8-19745 Filed 8-25-08; 8:45 am]
BILLING CODE 4310-84-P