[Federal Register Volume 73, Number 235 (Friday, December 5, 2008)]
[Rules and Regulations]
[Pages 74039-74047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28742]


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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Part 2300

[LLWO35000.L14300000.PN0000.24-1A]
RIN 1004-AE05


Land Withdrawals; Amendment of Regulations Regarding Emergency 
Withdrawals

AGENCY: Bureau of Land Management, Interior.

ACTION: Final rule.

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SUMMARY: This final rule amends the Bureau of Land Management's (BLM) 
emergency withdrawal regulation to remove language that directs the 
Secretary of the Interior (Secretary) to immediately make an emergency 
withdrawal upon notification by one of two congressional committees. 
Constitutional questions have arisen when this regulation and 
corresponding provisions in Section 204(e) of the Federal Land Policy 
and Management Act (FLPMA) have been used by a congressional committee 
to direct Secretarial action. A district court, however, found it 
unnecessary to rule on the constitutionality of the committee-directed 
provision in Section 204(e) of FLPMA because the Secretary had bound 
himself through regulations regarding special action on emergency 
withdrawal. This final rule removes from regulations only the provision 
that has been the subject of past constitutional questions.

DATES: This rule is effective January 5, 2009.

FOR FURTHER INFORMATION CONTACT: For information on the substance of 
the rule, please contact Jeff Holdren at 202-452-7779 or Vanessa Engle 
at 202-452-7776. For information on procedural matters, please contact 
Jean Sonneman at 202-785-6577. Persons who use a telecommunications 
device for the deaf (TDD) may call the Federal Information Relay 
Service (FIRS) at 1-800-877-8339 to contact the above individuals. FIRS 
is available 24 hours a day, 7 days a week, to leave a message or 
question with the above individuals. You will receive a reply during 
normal business hours.

SUPPLEMENTARY INFORMATION:

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

I. Background

    Section 204(e) of FLPMA provides that the Secretary of the Interior 
shall withdraw lands immediately upon a determination, either by the 
Secretary or by either of two committees of the Congress, that an 
emergency exists and that extraordinary measures need to be taken to 
protect natural resources or resource values that otherwise would be 
lost. The congressional notification authority may be exercised by the 
Committee on Natural Resources of the House of Representatives or by 
the Committee on Energy and Natural Resources of the Senate. 43 U.S.C. 
1714(e). The BLM's regulations at 43 CFR 2310.5 state that the 
Secretary shall immediately withdraw lands when the Secretary 
determines, or when the Secretary is notified by a Committee, that an 
emergency exists and that extraordinary measures must be taken to 
protect natural resources or resource values that would otherwise be 
lost.
    Over the years the Secretary has rarely invoked his authority to 
make an emergency withdrawal. In addition, the committee-directed 
emergency withdrawal provision has been controversial; the 
constitutionality of Section 204(e) has been the subject of litigation.
    In 1991, the BLM published a proposal to remove all regulations in 
43 CFR part 2300 related to emergency withdrawals (56 FR 59914 (Nov. 
26, 1991)). In addition to raising the constitutional issue, the 
preamble for that proposed rule included an explanation that the first 
sentence of Section 204(e) is redundant, since public lands can be 
protected rapidly through the normal exercise of the general withdrawal 
authority, without invoking FLPMA Section 204(e). That proposed rule 
was never finalized, and it was withdrawn from the Semi-Annual 
Regulatory Agenda in 1993.
    The BLM published another proposed rule on October 10, 2008 (73 FR 
60212 (2008)) that would remove all regulations that provide for 
emergency withdrawals. The rationale for that proposed rule was the 
same as that for the 1991 proposal--i.e., that the existing regulations 
are redundant and that the committee-directed withdrawal presents 
constitutional issues. The public comment period on the proposed rule 
closed on October 27, 2008.
    We received approximately 800 comments during the comment period. 
All comments were carefully reviewed. More than 90 percent of the 
comments were form letters or duplicates, some of which opposed the 
proposed rule, and some of which supported it. All relevant comments 
are discussed below.
    In response to many of these comments and after additional internal 
deliberation, we are now promulgating a final rule that, instead of 
removing the BLM's regulations regarding emergency withdrawals in their 
entirety, removes

[[Page 74040]]

only that portion of 43 CFR 2310.5 that implements the committee-
directed withdrawal provision of Section 204(e) of FLPMA. As set forth 
more fully below, the BLM continues to believe that the Secretary-
initiated emergency withdrawal regulations are redundant and 
unnecessary. However, in response to public comments desiring minimal 
changes to the Secretary's regulatory authority, the BLM has decided 
not to amend the regulations as they relate to the Secretary's 
authority to make emergency withdrawals. In addition to removing 
language pertaining to committee-directed withdrawals, this rule makes 
clarifying changes that do not affect the substance of the emergency 
withdrawal regulation (43 CFR 2310.5).

II. Discussion of the Final Rule

    The proposed rule would have removed the BLM's emergency withdrawal 
regulations in their entirety, although the statutory authority for 
those withdrawals would have remained in place. Part of the rationale 
for the proposed rule was that the emergency withdrawal process is 
redundant, as the BLM can protect public lands quickly via the 
segregative effect contained in the conventional withdrawal process 
found in Section 204 of FLPMA and in the BLM's regulations at 43 CFR 
part 2300.
    More specifically, the BLM's view is that the conventional 
withdrawal process results in the protection of lands quickly and just 
as effectively as the emergency withdrawal process. Conventional 
procedures enable the BLM to protect public lands, without substantial 
delay, for as long as 2 years by requiring that the BLM publish a 
Federal Register notice of the filing of a withdrawal application or 
proposal. Such publication temporarily segregates the public lands from 
settlement, sale, location, or entry under the public land laws, 
including the mining laws, to the extent specified in the notice. 43 
CFR 2310.2(a). The 2-year segregation period ends when an order is 
published withdrawing the lands, or when the Secretary denies or 
cancels a withdrawal application. 43 CFR 2310.2-1.
    If a petition seeks an emergency withdrawal, the petition is filed 
simultaneously with an application for withdrawal. 43 CFR 2310.1-3(d). 
If the Secretary approves a petition for an emergency withdrawal, the 
publication and notice provisions pertaining to emergency withdrawals 
are applicable. 43 CFR 2310.1-3(e). Those provisions, at 43 CFR 2310.5, 
include the immediate issuance of a withdrawal order signed by the 
Secretary which is effective when signed, does not exceed 3 years in 
duration, and may not be extended by the Secretary. 43 CFR 2310.5(a). 
The Secretary also must send a notice of the emergency withdrawal to 
the Committee on Natural Resources of the House of Representatives and 
the Committee on Energy and Natural Resources of the Senate the same 
day it is signed, and send a report to both committees within 90 days. 
43 CFR 2310.5(b) and (c).
    The 2-year segregation that occurs immediately upon notice of a 
conventional withdrawal proposal or application has the same effect as 
the first 2 years of a 3-year emergency withdrawal. However, the 
conventional process permits the extension of a withdrawal that is 
granted during the 2-year segregative period, if warranted by the 
purpose for which the withdrawal was first made. 43 CFR 2310.4(a). In 
addition, public notice and opportunities for comment under 
conventional withdrawal procedures (43 CFR 2310.3-1(b)(2)(iv)-(v) and 
(c)) do not occur for emergency withdrawals. Unlike the emergency 
process, the conventional process ensures that the BLM casts a wide net 
for information and takes appropriate account of, and considers the 
interests of, persons with legally recognized interests in land or 
other natural resources. An additional difference between segregation 
and an emergency withdrawal is that along with the notice to Congress, 
the Secretary must also undertake certain steps set forth at 43 U.S.C. 
1714(c)(2) within 3 months after an emergency withdrawal is made. Those 
steps are not required for segregation. An emergency withdrawal may not 
be extended by the Secretary. 43 CFR 2310.5(a). Lands involved in an 
emergency withdrawal may continue to be withdrawn past the expiration 
of the emergency withdrawal only via the conventional withdrawal 
procedures. Id. Thus, in sum, the emergency withdrawal process is 
unnecessary because of the segregative effect provided by the 
conventional withdrawal process.
    As set forth more fully in Part III below, many comments opposed 
the proposed rule out of a concern that the BLM was removing the 
authority granted to it by Congress to protect public lands on an 
emergency basis and that the emergency withdrawal regulations were not 
redundant. The BLM does have a strong desire to preserve its regulatory 
authority to protect public lands and continues to believe that such 
protection can occur quickly and just as effectively through the 
conventional process, with the added benefit of providing more 
opportunity for the public to participate. However, the assertion of 
redundancy did not resonate with some of the commenters. Therefore, the 
BLM has decided not to remove the emergency withdrawal regulations in 
their entirety. After today's rule becomes effective, the Secretary's 
regulatory authority to make emergency withdrawals (or any withdrawals, 
for that matter) remains unchanged. The regulations will continue to 
provide a procedure whereby the Secretary can protect natural resources 
or other values quickly via either the conventional or emergency 
withdrawal process.
    The rule, instead, removes the committee-directed withdrawal 
provision of the regulation. Constitutional questions about Section 
204(e) have arisen in some instances when a congressional committee has 
directed the Secretary to make an emergency withdrawal. By removing the 
corresponding provision in the regulation, a potential impediment to a 
judicial resolution of the issue of the constitutionality of the 
statutory provision is removed. As noted above, the Secretary's ability 
to protect lands via the conventional and emergency withdrawal process 
will remain unchanged by this rule.
    Two previous committee notices (both from the House Committee on 
Interior and Insular Affairs) led to litigation in which the 
constitutionality of Section 204(e) was challenged. See Pacific Legal 
Foundation v. Watt, 529 F. Supp. 982 (D. Montana 1981); National 
Wildlife Federation v. Watt, 571 F. Supp. 1145 (D.D.C. 1983) (granting 
preliminary injunction); National Wildlife Federation v. Clark, 577 F. 
Supp. 825 (D.D.C. 1984) (granting summary judgment).
    In Pacific Legal Foundation, the Secretary and other parties argued 
that FLPMA Section 204(e) was unconstitutional because its application 
through unilateral action by the committee: (a) Violated the separation 
of powers doctrine; (b) delegated executive power to the committee; (c) 
violated the requirement of bicameralism (i.e., legislation must be 
approved by both Houses of Congress); and (d) deprived the President of 
his veto power (known as the presentment requirement). At the time of 
that case, the U.S. Court of Appeals for the Ninth Circuit had set 
aside, as unconstitutional, a statutory provision that authorized 
either House of Congress to execute a legislative veto over decisions 
made by the Attorney General. Chadha v. Immigration and Naturalization 
Service, 634 F.2d 408 (9th Cir. 1980). Relying in part on that

[[Page 74041]]

decision, the U.S. District Court in Montana held that, but for one 
distinguishing feature of Section 204(e), the Ninth Circuit's ruling in 
Chadha would have ``compelled'' the district court to declare Section 
204(e) unconstitutional. Pacific Legal Foundation v. Watt, 529 F. Supp. 
982, 1002 (D. Montana 1981). According to the district court, the 
saving feature of Section 204(e) was Secretarial discretion to 
determine the scope and duration of an emergency withdrawal. Id. at 
1000.
    Subsequently, the Supreme Court affirmed the Ninth Circuit's 
decision in Immigration and Naturalization Service v. Chadha, 462 U.S. 
919 (1983). The breadth of the Supreme Court's ruling casts doubt on 
the validity of the Montana court's decision. For example, the Court 
stated, ``Congress' authority to delegate portions of its power to 
administrative agencies provides no support for the argument that 
Congress can constitutionally control administration of the laws by way 
of a congressional veto.'' 462 U.S. at 953 n.16.
    The second case in which the constitutionality of FLPMA Section 
204(e) was at issue, National Wildlife Federation v. Watt, began when 
plaintiffs brought suit against the Secretary seeking review of a 
notice to receive and accept bids for the sale of coal leases. The 
plaintiffs argued that the notice was in contravention of a resolution 
adopted by the Interior and Insular Affairs Committee of the House of 
Representatives, directing the Secretary to withdraw certain lands from 
coal leasing temporarily. The court held that a forced withdrawal, like 
the legislative veto that was invalidated by the Supreme Court in 
Chadha, would probably be held to be legislative in character, since it 
alters the legal rights and duties of the Secretary of the Interior. 
Accordingly, the court found that the plaintiffs' attempt to 
distinguish Section 204(e) from an invalid legislative-veto provision, 
on the grounds that the withdrawal was temporary, was unlikely to 
succeed. National Wildlife Federation v. Watt, 571 F. Supp. 1145, 1155 
(D.D.C. 1983). However, the court found that the plaintiffs were likely 
to prevail on the merits of their claim that the emergency-withdrawal 
regulation (43 CFR 2310.5) was binding on the Secretary irrespective of 
the validity of Section 204(e), since no action had been taken to 
remove the regulation through notice-and-comment procedures. 571 F. 
Supp. at 1158. In a subsequent decision granting the plaintiffs' motion 
for summary judgment, the court found that it was unnecessary to reach 
the constitutional question, and instead required that the Secretary 
``honor his own regulation unless and until he has rescinded or amended 
it after an appropriate rulemaking proceeding, or until the Committee 
has vacated its Resolution.'' National Wildlife Federation v. Clark, 
577 F. Supp. 825, 828-29 (D.D.C. 1984).
    Thus, whenever a congressional committee directs the Secretary to 
withdraw lands immediately, issues with regard to the constitutionality 
of that action are likely to arise. Such issues do not arise when the 
Secretary initiates and utilizes his conventional or emergency 
withdrawal authority. This rulemaking is not a forum for resolving the 
validity of the committee-directed withdrawal provision of Section 
204(e). However, in view of the district court's ruling in National 
Wildlife Federation v. Clark, the existing committee-directed provision 
of the emergency-withdrawal regulation may be an impediment to 
resolving that question in the future in an appropriate forum. Further, 
as a matter of policy, the BLM does not wish to implement a statute of 
such questionable constitutionality. However, the statutory language in 
FLPMA Section 204(e) for a committee-directed emergency withdrawal 
remains unchanged by this rulemaking and does remain in effect. We 
should note that we received a June 25, 2008 communication from the 
House Committee on Natural Resources, citing the committee-directed 
provision in FLPMA Section 204(e) and the BLM's corresponding 
regulation at 43 CFR 2310.5. As discussed above, this rule is 
prospective and only affects the regulation, not the statute. Thus, 
this rule has no impact on the June 25, 2008 communication.
    In addition to removing language pertaining to committee-directed 
withdrawals, this rule makes clarifying changes that do not affect the 
substance of the emergency withdrawal regulation.
    This final rule is a ``logical outgrowth'' of the proposed rule and 
the public has therefore had adequate notice and opportunity for 
comment. The proposed rule would have eliminated all of the emergency 
withdrawal regulations, including the portion implementing the 
committee-directed withdrawal provision of FLPMA Section 204(e) that is 
removed by today's rule. Today's rule, in response to comments and upon 
further deliberation, implements a portion of what was proposed. The 
public has therefore had adequate notice and opportunity to comment on 
the removal of the committee-directed withdrawal provision of the 
regulation.

III. Discussion of Public Comments

Difficulty Submitting Comments

    One comment complained of trying for 3 days to fax comments from 
several locations, but was never able to get a fax through, and 
remarked that it was convenient for the BLM to be able to say that they 
received little public comment on this matter.
    This commenter successfully submitted comments by one of the 
methods provided for in the proposed rule: Hand-delivery, postal mail, 
or posting on the Internet at regulations.gov. We believe that the 
commenter received a BLM fax number from an organization that, at our 
invitation, had faxed a copy of a letter to us. Subsequently, the 
organization distributed the fax number widely to prospective comments. 
When we began to receive comments by fax, we advised the organization 
that we normally do not accept comments that are sent by fax. A 
representative of that organization said a message would be sent that 
comments should not be submitted by fax.
    In any event, while we normally do not accept faxed comments and 
faxing was not one of the methods for submitting comments provided for 
in the proposed rule, in the circumstances of this rulemaking we have 
included paper copies of all the faxed comments in the administrative 
record and have considered the substance of the comments in our 
deliberations. We will also post representative samples of repeated 
faxed comments, as well as unique faxed comments, on regulations.gov.

Length of the Comment Period

    Several comments indicated that the comment period should be longer 
than the 15 days provided in the proposed rule. Generally, those 
comments claimed that Executive Order 12866, Section 309(e) of FLPMA, 
or the Administrative Procedure Act (APA) require longer periods. They 
also claimed that the fact that the public already had a chance to 
comment on the 1991 proposed rule was not an adequate justification for 
the 15-day comment period. In addition, two organizations sent letters 
requesting that the comment period be extended. Our letters denying 
those organizations' requests are posted at regulations.gov.
    For several reasons, these comments have not been adopted and the 
comment period was not extended. First, as discussed in the preamble to 
the proposed rule, Executive Order 12866 does not apply because the 
Office of Management and Budget (``OMB'') has

[[Page 74042]]

determined that the rule is not ``significant'' as defined in that 
Order. More specifically, one comment stated that the rule is 
``significant'' and the comment period should be extended because the 
rule may adversely affect the environment (including historical, 
cultural, and governmental resources) across the West. The comment 
specifically referenced a June 25, 2008 communication from the Chairman 
of the House Natural Resources Committee directing the Secretary to 
withdraw certain lands surrounding the Grand Canyon from mineral 
location and entry.
    As explained in the preamble to the proposed rule, segregation of 
lands provided for in the conventional withdrawal process is equally as 
effective to protect resources as are emergency withdrawals. Moreover, 
contrary to the comments' suggestion, the rule does not have any on-
the-ground effects. The rule does not open or close any lands to or 
from any public land laws; rather, this rule simply removes the 
procedure for a committee-directed emergency withdrawal of lands from 
the BLM's regulations. This rule is prospective only and will have no 
effect on the June 25, 2008 communication from the House Committee 
Chairman. Several commenters appear to believe that this rule will have 
environmental effects because an as-yet-unidentified tract of land may 
not be withdrawn in the future. But the amendment of the regulation to 
remove the committee-directed withdrawal portion is not tied to a 
particular tract of land and to link this rule with effects that may 
occur in the future is purely speculative. In any event, as explained 
above, we have chosen not to eliminate the Secretary-driven emergency 
withdrawal process from the regulations. Therefore, the Secretary's 
authority to make emergency withdrawals remains unchanged by this rule.
    Second, the APA does not prescribe a minimum comment period for 
informal rulemaking. The BLM believes a reasonable amount of time has 
been provided in this instance because the proposed rule is not 
complex. The proposed change removes regulatory text that sets forth a 
process that is articulated in FLPMA. The rule does not alter the 
relevant FLPMA language. Finally, the BLM believes the comment period 
was also reasonable in light of the 1991 rulemaking. At that time, the 
public had the opportunity to comment on the 1991 proposed rule. Those 
comments have been reviewed as part of this rulemaking. The substance 
of the proposed rule was identical to the rule proposed in 1991, and 
the issues remain the same. Furthermore, this final rule only 
implements a portion of that proposed rule. For these reasons, we also 
disagree with the comments indicating that the 1991 process is 
irrelevant.

The Constitutional Issue

    Some comments not in favor of the proposed rule argued that the 
statute was not unconstitutional and that the constitutional issue was 
not a valid reason for the proposed rule. In contrast, some comments in 
favor of the rule stated that Section 204(e) is unconstitutional. Some 
of those comments noted that the Department of Justice's Office of 
Legal Counsel (OLC) issued an opinion in 1983 stating that the 
committee-directed withdrawal provision of FLPMA Section 204(e) is 
unconstitutional.
    The BLM disagrees that the recurring constitutional questions that 
have been raised during the history of these regulations is not a valid 
reason for this rule. History has demonstrated that whenever a 
congressional committee directs the Secretary to withdraw lands 
immediately, issues with regard to the constitutionality of that action 
are likely to arise. The committee-directed withdrawal provision of the 
regulation implements a portion of FLPMA Section 204(e) that is of 
questionable constitutionality under Chadha, 462 U.S. 919, as a 
committee-directed withdrawal arguably alters the legal rights and 
duties of the Secretary of the Interior. This rulemaking is not the 
forum to finally resolve that issue. It is a decision for the courts. 
However, as noted above, under a DC District Court decision, the 
regulation itself is a potential impediment to judicial resolution of 
that issue. See Clark, 577 F.Supp. at 828-29. The BLM wishes to remove 
the regulation so as to avoid implementing a statute that is of such 
questionable constitutionality, and to remove a potential impediment to 
a future Court decision on that issue. Again, however, we note that 
this rule would have no effect on the relevant statutory language. The 
BLM believes that without the change, the uncertainty surrounding the 
constitutionality of the statute and the respective roles of the 
Legislative and Executive Branches will continue.
    Some comments stated that the Executive Branch has the duty to 
faithfully execute the laws and should therefore not challenge the 
constitutionality of a statute. They also stated that the BLM should 
leave the committee-directed emergency withdrawal provisions in place 
in order to maintain a harmonious relationship with Congress.
    The BLM disagrees with these comments. First, in this rulemaking 
the BLM is removing a potential impediment to judicial resolution of 
the constitutional issue based on past litigation on the provision, and 
is not making a direct constitutional challenge to the statute. Second, 
the Executive Branch has in the past taken the position that a statute 
is unconstitutional. In fact, that was exactly the position of the 
Executive Branch in Chadha, in which the Supreme Court agreed with the 
executive that the statute in that case was unconstitutional. As for 
maintaining a harmonious relationship with Congress on this topic, the 
BLM believes that by promulgating this final rule and thus potentially 
facilitating future resolution of this issue, there will be an 
opportunity to establish clearer expectations regarding committee-
directed emergency withdrawals.

Redundancy

    The BLM's view is that the conventional withdrawal process results 
in the protection of lands quickly and just as effectively as the 
emergency withdrawal process. This is because the conventional process 
authorizes the BLM to quickly segregate the lands from the public land 
laws, including the mining laws, while the withdrawal is considered. 
Segregation has the same practical effect as a withdrawal. Thus, 
natural resource values can be protected quickly by way of the 
conventional withdrawal process. In addition, the conventional 
withdrawal process is preferred because, unlike the emergency 
withdrawal process, it provides for substantial public participation 
and input.
    Several comments disagreed that the emergency withdrawal 
regulations were redundant, stating that the committee-directed 
withdrawal provision is not part of the conventional withdrawal 
process, and segregation under conventional withdrawal procedures does 
not provide the same level of protection as an emergency withdrawal. 
One comment argued that the two procedures do not provide the same 
level of protection because validity exams (i.e., examinations by the 
appropriate agency to determine the validity of a particular mining 
claim) are only required on withdrawn lands and are at the agency's 
discretion on segregated lands. Another comment stated that the 
conventional withdrawal procedures and emergency withdrawal procedures 
are not redundant because the Secretary must seek approval to

[[Page 74043]]

conventionally withdraw lands under the jurisdiction of another agency, 
while there is no such requirement for an emergency withdrawal. Another 
comment stated that the rule creates an inconsistency between the 
statute and the regulations and confuses Congress and the public and 
that the removal of the emergency regulations will seriously undermine 
the capacity of the Federal government to act quickly in extraordinary 
circumstances that threaten irreplaceable public resources. Other 
comments stated that the Secretary should not voluntarily remove one of 
the tools granted to him by Congress to protect public lands.
    Although the BLM disagrees with the conclusions of those comments 
they do highlight an area of possible confusion. The BLM agrees that 
the committee-directed withdrawal provision of the regulation (43 CFR 
2310.5) is not redundant in the sense that there is no analogous 
provision in the conventional withdrawal process. However, the same 
goal can be met by the Secretary; that is, he can ``preserve values 
that might otherwise be lost'' on an emergency basis via segregation. 
The remainder of the emergency withdrawal regulation (i.e., the 
emergency withdrawals made by the Secretary without direction from a 
congressional committee) is clearly redundant because of the BLM's 
authority to segregate the lands during the conventional withdrawal 
process. As pointed out above, segregation does in fact have the same 
effect as an emergency withdrawal whether the Secretary is reacting to 
a committee-directed withdrawal or on his own: it closes the specified 
land to application of the mining laws in the particular area at issue 
to the extent specified. See, e.g., Preamble to the BLM's final rule 
amending mining regulations, 65 FR 69998, at 70026 (2000) (``there is 
no difference between `segregated' lands and `withdrawn' lands during 
the period of the segregation''). In other words, if the Secretary 
believes that an emergency situation exists, he can protect the lands 
quickly and effectively through the conventional withdrawal process 
(because the lands will be segregated while the withdrawal is 
considered) as he could by invoking his authority to make an emergency 
withdrawal. Of course, a segregation is limited to 2 years, while an 
emergency withdrawal can be up to 3 years. However, the protection of 
the lands at the end of the segregation period can be continued if the 
lands are in fact withdrawn. In addition, the validity examination 
process is in fact applicable to both withdrawn and segregated lands. 
As pointed out in the preamble to the mining regulations referenced 
above, the BLM will examine the purpose of the segregation to determine 
if a validity exam is necessary on segregated lands; and, if so, 
perform that validity exam. 65 FR at 70026. A determination of 
invalidity has the same effect on both withdrawn and segregated lands.
    Finally, for similar reasons, the BLM disagrees with the comment 
stating that the two processes are not redundant because the Secretary 
must seek approval of conventional withdrawals on lands under another 
agency's jurisdiction. This comment compares the conventional 
withdrawal to an emergency withdrawal. The proper comparison is between 
an emergency withdrawal and segregation, which is part of the 
conventional withdrawal process. The Secretary need not seek the 
approval of another agency to segregate the lands while a conventional 
withdrawal is considered. Thus, just as he can through the emergency 
withdrawal process, the Secretary, through segregation, can remove 
lands from the operation of the public land laws on a temporary 
emergency basis without the consent of any other agency.
    However, although the BLM continues to believe that it can protect 
natural resource values quickly and effectively via the conventional 
withdrawal process, in response to the concerns raised by these 
comments and a desire to make minimal changes to the regulations, we 
have decided not to remove the regulations in their entirety. Thus, 
today's rule has no effect on the regulations dealing with the 
Secretary's authority to make emergency or conventional withdrawals. 
Both of these regulatory tools will remain at the Secretary's disposal.

General Environmental Concerns

    Some comments opposed to the rule expressed environmental concerns 
about mining and specifically about opening Federal lands to mining. 
Some of these comments specifically referenced uranium mining near 
Grand Canyon National Park and a June 25, 2008 communication from the 
Chairman of the House Natural Resources Committee directing the 
Secretary to withdraw certain lands surrounding the Grand Canyon from 
mineral location and entry under FLPMA Section 204(e).
    The BLM appreciates the concerns raised in these comments but 
disagrees that they are relevant to this rulemaking. First, the rule 
merely removes one regulatory process in order to remove a potential 
barrier to judicial resolution of FLPMA Section 204(e)'s 
constitutionality. The rule does not open any lands to mining. Further, 
the rule is prospective only and therefore does not have any effect on 
the June 25, 2008 communication relating to lands surrounding the Grand 
Canyon. Finally, as discussed more fully above, the final rule leaves 
in place the regulations authorizing the Secretary to, on his own 
initiative, effect an emergency withdrawal to protect natural resource 
or other values that might otherwise be lost. Amending the regulation 
to remove the portion addressing committee-directed withdrawals does 
not affect the Secretary's ability to protect lands, including park 
lands, on an emergency basis either through an emergency withdrawal or 
through the conventional withdrawal process.

National Environmental Policy Act

    Some comments stated that the proposed rule violated the National 
Environmental Policy Act (NEPA). Several comments stated that the 
Categorical Exclusion invoked in the proposed rule (516 DM, Chapter 2, 
Appendix 1, CX 1.10) is not applicable and therefore an Environmental 
Assessment or Environmental Impact Statement is required in order to 
comply with NEPA. Specifically, comments stated that the elimination of 
the committee-directed withdrawal provision is not ``of an 
administrative, financial, legal, technical, or procedural nature'' 
because it would have ``on-the-ground effects.'' In this regard, 
several comments referred to the June 25, 2008 communication from the 
Chairman of the House Natural Resources Committee directing the 
Secretary to make a withdrawal of certain lands surrounding the Grand 
Canyon from mineral location and entry and claimed that those lands 
would be affected by the removal of this regulation. Comments also 
claimed that the effects are not ``too broad, speculative, or 
conjectural to lend themselves to meaningful analysis'' because of 
environmental impacts from mining exploration or development in areas 
that would be withdrawn or segregated under FLPMA Section 204(e) and 
the implementing regulations. Finally, one comment stated that numerous 
activities that would occur in withdrawn or segregated areas, such as 
mining exploration activities less than 5 acres, would not later be 
subject to NEPA requirements.
    The categorical exclusion is applicable to this rule. First, we 
note that the categorical exclusion at issue has been amended effective 
November 14, 2008, to exclude from NEPA review:


[[Page 74044]]


    Policies, directives, regulations, and guidelines: That are of 
an administrative, financial, legal, technical, or procedural 
nature; or whose environmental effects are too broad, speculative, 
or conjectural to lend themselves to meaningful analysis and will 
later be subject to the NEPA process, either collectively or case-
by-case.

73 FR 61292, 61319 (Oct. 15, 2008); 43 CFR 46.210 (emphasis added). As 
explained in the preamble to the rule amending the categorical 
exclusion, the exclusion was modified in error in 2004 to include an 
``and'' after the first clause. The recent rulemaking corrects that 
error by inserting the word ``or.'' Thus, if this rule meets either the 
first or second part of the categorical exclusion, the exclusion will 
apply.
    Second, this rule is of both a legal and procedural nature. As 
explained above, it does not have any on-the-ground effects. The rule 
does not open or close any lands to or from any public land laws; 
rather, this rule simply removes one procedure for the withdrawal of 
lands from the BLM's regulations. Moreover, this rule is prospective 
only and will have no effect on the June 25, 2008 communication from 
the House Committee Chairman. Several comments appeared to believe that 
the proposed rule will have environmental effects because an as-yet-
unidentified tract of land may not be withdrawn in the future. But the 
removal of the committee-directed provision of the emergency withdrawal 
regulation is not tied to a particular tract of land and to link this 
rule with effects that may occur in the future is purely speculative.
    One comment also stated that even if the categorical exclusion 
applies by its terms, extraordinary circumstances exist that preclude 
its use. More specifically, that comment stated that extraordinary 
circumstances exist because the lands covered by the June 25, 2008 
communication contain properties eligible for listing under the 
National Historic Preservation Act (NHPA), including Indian Sacred 
Sites, and are in close proximity to the Grand Canyon. Thus, the 
comment claimed that two of the BLM's extraordinary circumstances 
apply: (1) Actions that may have significant impacts on properties 
listed or eligible for listing under the NHPA and (2) actions that may 
have significant impacts on natural resources and unique geographic 
characteristics.
    None of the extraordinary circumstances applies to this rule. As 
noted above, this rule in no way affects the June 25, 2008 
communication relating to lands surrounding the Grand Canyon. This rule 
removes the committee-directed emergency withdrawal procedure from the 
BLM's regulations. While mining in a particular area may affect 
properties listed or eligible for listing under NHPA, or might affect 
the natural and cultural resources or sites present in that area, this 
rule does not open or close any lands to the operation of the public 
land laws, including mining laws. Therefore, the comment's statement 
that the rule will impact any particular area, including the lands 
covered by the June 25, 2008 communication, is incorrect.

Endangered Species Act

    Some comments stated that the proposed rule violated the Endangered 
Species Act (ESA) because the BLM did not enter into consultation with 
the U.S. Fish and Wildlife Service and the National Marine Fisheries 
Service regarding the rule. One of the comments stated that mineral 
operations ``implicated'' by the promulgation of the rule ``may 
affect'' threatened or endangered species. The comment again referred 
to the June 25, 2008 communication as an example.
    Consultation under the ESA is not required for two reasons. Under 
the ESA and its implementing regulations, the consultation requirement 
only applies to ``actions'' of Federal agencies, which are further 
defined as all ``activities or programs'' authorized, funded, or 
carried out by an agency. 15 U.S.C. 1536; 50 CFR 402.02. Here, 
amendment of the regulations to remove a certain procedure (i.e., 
committee-directed emergency withdrawals) is not an ``activity or 
program'' of the BLM; it is simply removing a certain procedure. While 
the ESA regulations include ``promulgation of regulations'' in the 
definition of ``action,'' this does not mean that every rule 
necessitates consultation. Here, the amendment of the emergency 
withdrawal regulation to remove the portion dealing with committee-
directed withdrawals does not authorize, fund, or carry out an activity 
or program. As such, the ESA does not apply. Second, even if the 
amendment of the regulation is an ``action'' for purposes of Section 7 
of the ESA, it will have no effect on listed species or designated 
critical habitat because the removal of this procedure from the BLM's 
regulations will not cause any environmental effects whatsoever. As 
explained above, this rule does not open any lands to mining. Nor does 
the rule alter the Secretary's authority to protect lands and resources 
through an emergency or conventional withdrawal. As such, this rule 
will not cause any direct effects or any indirect effects that are 
reasonably certain to occur. See 50 CFR 402.02.

National Historic Preservation Act

    Some comments stated that the BLM is required to conduct 
consultation under the National Historic Preservation Act (NHPA) with 
affected Native American Tribes because Native American sacred, 
cultural and historical sites and land would potentially be affected by 
the rule.
    The consultation requirement of the NHPA applies only to 
``undertakings'' of a Federal agency, which are defined as a ``project, 
activity, or program funded in whole or in part under the direct or 
indirect jurisdiction of a Federal agency.'' 36 CFR 800.16(y). The 
amendment of the emergency withdrawal regulation to remove that portion 
dealing with committee-directed withdrawals is not a ``project, 
activity, or program'' as defined by the regulations of the Advisory 
Council on Historic Preservation. Accordingly, the Act does not apply.

FLPMA

    Some comments stated that the proposed rule violates FLPMA 204(e) 
because FLPMA directs the Secretary to promulgate rules and regulations 
to implement the Act and the Act contains an emergency withdrawal 
provision. One of these comments also stated that the proposed rule 
does not comply with the FLPMA requirement to prevent ``unnecessary or 
undue degradation'' of the public lands.
    The rule does not violate FLPMA. FLPMA does not require that the 
BLM issue regulations to implement each and every provision of FLPMA; 
instead, it requires the Secretary to issue regulations that are 
necessary to implement the Act. 43 U.S.C. 1733(a). As explained herein 
and in the proposed rule, the BLM does not believe that the emergency 
withdrawal regulations are necessary to implement the Act. However, 
although the BLM continues to believe that the conventional withdrawal 
process can provide effective protection to resources or resource 
values on an emergency basis, we have decided to leave in place the 
regulations dealing with the Secretary-initiated emergency withdrawal 
process. The comment has not explained how the rule would cause 
``unnecessary or undue degradation,'' and no such causal link can be 
made between the rule and any on-the-ground effects.

Keeping Lands Open to Mining

    Some commenters supported the proposed rule because they believe it 
will open lands to mining. For example, one comment supported the 
proposed

[[Page 74045]]

rule as a means of ensuring the reasonable entry of mining on the 
plateaus on the north and south side of the Grand Canyon. Similarly, 
some comments were in favor of the proposed rule because they have a 
vested interest in ensuring that lands remain open to mineral entry, 
and were of the view that the rule will protect access to mineral 
deposits on public lands open to mineral entry, and protect the right 
to use and occupy those lands for prospecting, mining, and processing 
operations and all uses reasonably incident thereto. These comments 
also stated that it is important for the United States to utilize and 
produce domestic sources of the minerals required to maintain our 
economy, our national security and our standard of living. Some of 
these comments stated that for national security and national economic 
security reasons, withdrawal should always be the last approach for 
protection of public lands.
    Although the BLM appreciates the concerns raised by these comments, 
this rule does not open or close any lands to the operation of the 
public land laws, including mining laws. Nor does the rule protect 
access to mineral deposits or the right of claimants to prospect or 
mine. As explained above, this rule merely amends the emergency 
withdrawal regulation to remove that portion dealing with the 
committee-directed emergency withdrawals. Through this rule, the BLM is 
not taking any position on when a withdrawal--emergency or otherwise--
is appropriate.

Opportunity for Public Input

    Some comments which supported the proposed rule stated that removal 
of the emergency withdrawal regulations is long overdue. They stated 
that the emergency withdrawal process, unlike the conventional 
withdrawal process, does not provide public notice and opportunities 
for comment by people who own or have other interests in the land and 
its natural resources and that select congressional committees should 
not be allowed to bypass or restrict the valuable input of those 
affected, and leave them with little recourse.
    The BLM agrees that the conventional withdrawal process provides 
more opportunities for public input than does the emergency withdrawal 
process and that this may be a reason to use conventional withdrawal 
procedures instead of the emergency withdrawal process. Although 
today's rule does not remove the emergency withdrawal regulations in 
their entirety as proposed, it does not affect the BLM's ability to 
choose the conventional procedure to protect lands and values quickly 
so as to allow for greater public input. The Secretary and the BLM are 
free, as they have been in the past, to choose either procedure.

Executive Order 13132, Federalism

    Some comments objected to the finding in the proposed rule that 
this 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. One comment stated that the rule will limit the ability of 
the national Legislative Branch to directly represent the desires of 
the states and their citizens. Another commented that states are well 
situated--perhaps better than distant Federal officials--to recognize 
that an emergency situation exists regarding resource values on Federal 
lands within a state.
    The BLM disagrees with this comment. The committee-directed 
emergency withdrawal provision in FLPMA itself (Section 204(e)) is not 
removed by operation of this rule. Moreover, although removal of the 
regulation providing for a committee-directed withdrawal may 
potentially affect relations between branches of the Federal 
Government, it does not have a substantial direct effect on the 
relationship between the Federal Government and the states.

Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments

    Some comments objected to the finding in the proposed rule that 
tribal governments will not be unduly affected by this rule, and claim 
that effects on tribal governments would have been revealed if the BLM 
had consulted with tribes under the National Historic Preservation Act.
    The BLM disagrees with these comments. As explained above, the 
consultation requirement of the NHPA applies only to ``undertakings'' 
of a Federal agency, which are defined as a ``project, activity, or 
program funded in whole or in part under the direct or indirect 
jurisdiction of a Federal agency.'' 36 CFR 800.16(y). The removal of 
the committee-directed emergency withdrawal provision of the regulation 
is not a ``project, activity, or program'' as defined by the 
regulations of the Advisory Council on Historic Preservation. Moreover, 
this rule has no bearing on trust lands, or on lands for which title is 
held in fee status by Indian tribes or U.S. Government-owned lands 
managed by the Bureau of Indian Affairs. Thus, this rule will not 
result in significant changes to BLM policy, and tribal Governments 
will not be unduly affected by this rule.

Executive Order 13352, Facilitation of Cooperative Conservation

    One comment objected to the finding in the proposed rule that this 
rule facilitates cooperative conservation by announcing a policy of 
using the conventional withdrawal process, which provides for public 
participation. The comment stated that the proposed rule eliminates a 
path to public involvement through the Legislative Branch.
    Although the BLM disagrees with this comment, it no longer is 
announcing a policy to use the conventional process as opposed to the 
emergency withdrawal process. As discussed above, this final rule does 
not amend the regulations relating to the Secretary's authority to make 
an emergency withdrawal. The Secretary may choose either the 
conventional or emergency withdrawal process. Moreover, the committee-
directed emergency withdrawal provision in FLPMA itself (43 U.S.C. 
1714(e)) is not removed by operation of this rule. Also, this rule does 
not in any way affect Congress's ability to pass legislation to 
withdraw lands. Thus, this rule does not impede the facilitation of 
cooperative conservation. This rule 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 decisionmaking process; 
and provides that the programs, projects, and activities of the agency 
are consistent with protecting public health and safety.

IV. Procedural Matters

Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has determined that this 
rule is not a ``significant regulatory action'' within the meaning of 
Executive Order 12866. Some comments expressed disagreement with this 
determination. This comment does not affect the validity of this rule, 
since Executive Order 12866:

Is intended only to improve the internal management of the Federal 
Government and does not create any right or benefit, substantive or 
procedural, enforceable at law or equity by any party against the 
United States, its agencies or instrumentalities, its officers or 
employees, or any other person.


[[Page 74046]]


E.O. 12866, section 10. The determination of the OMB reflects the 
following findings:
     This rule will not have an annual effect on the economy of 
$100 million or more, and will not adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or state, local, or tribal 
governments or communities.
     This rule will not create any serious inconsistency or 
otherwise interfere with any action taken or planned by another agency.
     This rule will not materially alter the budgetary impact 
of entitlements, grants, user fees, or loan programs, or the rights and 
obligations of their recipients.
     This rule will not raise novel legal or policy issues 
arising out of legal mandates, the President's priorities, or the 
principles set forth in Executive Order 12866.

National Environmental Policy Act

    This rule is categorically excluded from environmental review under 
Section 102(2)(C) of the National Environmental Policy Act (NEPA). In 
accordance with the Department's NEPA regulations (43 CFR 46.205; 43 
CFR 46.210) this categorical exclusion excludes from NEPA review:

    Policies, directives, regulations, and guidelines: That are of 
an administrative, financial, legal, technical, or procedural 
nature; or whose environmental effects are too broad, speculative, 
or conjectural to lend themselves to meaningful analysis and will 
later be subject to the NEPA process, either collectively or case-by 
case.

    This rule is of a legal and procedural nature and is covered by the 
categorical exclusion. Moreover, no extraordinary circumstances exist 
that would prevent use of the categorical exclusion. See 43 CFR 46.205; 
43 CFR 46.215.

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 
rule removing the provision for committee-directed emergency 
withdrawals will not have a significant economic impact on a 
substantial number of small entities under the RFA.

Small Business Regulatory Enforcement Fairness Act

    This 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 changes in 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 Reform 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. 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 BLM has determined that this rule does not have a substantial 
direct effect on the relationship between the Federal Government and 
the states. 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

    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

    The removal of the committee-directed portion of the emergency-
withdrawal regulation is not a ``project, activity, or program'' as 
defined by the regulations of the Advisory Council on Historic 
Preservation. Moreover, this rule has no bearing on trust lands, or on 
lands for which title is held in fee status by Indian tribes or U.S. 
Government-owned lands managed by the Bureau of Indian Affairs. 
Therefore, in accordance with Executive Order 13175, the BLM has 
determined that this rule will not result in significant changes to BLM 
policy and that tribal Governments will not be unduly affected by this 
rule.

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 (Section 515 of Pub. L. 106-554.).

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

    This rule has no implications under Executive Order 13211.

Executive Order 13352, Facilitation of Cooperative Conservation

    In accordance with Executive Order 13352, the BLM has determined 
that this rule is administrative in content, involving only changes 
affecting issuance of emergency withdrawals. Secretarial authority for 
making conventional and emergency withdrawals remains unchanged by this 
rule. Thus, this rule does not impede the facilitation of cooperative 
conservation; takes appropriate account of and considers the interests 
of persons with ownership or other legally recognized interests in land 
or other natural resources; properly accommodates local participation 
in the Federal decision-making process; and provides that the programs, 
projects, and activities are consistent with protecting public health 
and safety.

Paperwork Reduction Act

    The BLM has determined that this rule does not contain information 
collection requirements that the Office of Management and Budget must 
approve under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et 
seq.

Authors

    The principal authors of this rule are Jeff Holdren and Vanessa 
Engle of the Division of Lands, Realty, and Cadastral Survey, BLM 
Washington Office (WO), with assistance from the Division of

[[Page 74047]]

Regulatory Affairs (WO) and the Office of the Solicitor, Department of 
the Interior.

List of Subjects in 43 CFR Part 2300

    Administrative practice and procedure, Electric power, Federal 
Energy Regulatory Commission, Public lands--withdrawal.

C. Stephen Allred,
Assistant Secretary of the Interior, Land and Minerals Management.

0
Under the authorities cited below, part 2300, group 2300, subchapter B, 
chapter II of title 43 of the Code of Federal Regulations is amended as 
follows:

PART 2300--LAND WITHDRAWALS

0
1. The authority citation for part 2300 continues to read as follows:

    Authority: 43 U.S.C. 1201; 43 U.S.C. 1740; Executive Order No. 
10355 (17 FR 4831, 4833).

Subpart 2310--Withdrawals, General: Procedure

0
2. Section 2310.5 is revised to read as follows:


Sec.  2310.5  Special action on emergency withdrawals.

    (a) When the Secretary makes an emergency withdrawal under Section 
204(e) of the Act (43 U.S.C. 1714(e)), the withdrawal will be made 
immediately and will be limited in scope and duration to the emergency. 
An emergency withdrawal will be effective when signed, will not exceed 
3 years in duration, and may not be extended by the Secretary. If it is 
determined that the lands involved in an emergency withdrawal should 
continue to be withdrawn, a withdrawal application should be submitted 
to the Bureau of Land Management in keeping with the normal procedures 
for processing a withdrawal as provided for in this subpart. Such 
applications will be subject to the provisions of Section 204(c) of the 
Act (43 U.S.C. 1714(c)), or Section 204(d) of the Act (43 U.S.C. 
1714(d)), whichever is applicable, as well as Section 204(b)(1) of the 
Act (43 U.S.C. 1714(b)(1)).
    (b) When an emergency withdrawal is signed, the Secretary must, on 
the same day, send a notice of the withdrawal to the two Committees of 
the Congress that are specified for that purpose in Section 204(e) of 
the Act (43 U.S.C. 1714(e)).
    (c) The Secretary must forward a report to each of the 
aforementioned committees within 90 days after filing with them the 
notice of Secretarial emergency withdrawal. Reports for all such 
withdrawals, regardless of the amount of acreage withdrawn, will 
contain the information specified in Section 204(c)(2) of the Act (43 
U.S.C. 1714(c)(2)).

 [FR Doc. E8-28742 Filed 12-4-08; 8:45 am]
BILLING CODE 4310-84-P