[Federal Register Volume 89, Number 152 (Wednesday, August 7, 2024)]
[Rules and Regulations]
[Pages 64383-64397]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-17065]


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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Part 8360

[BLM_HQ_FRN_MO4500179077]
RIN 1004-AE89


Temporary Closure and Restriction Orders

AGENCY: Bureau of Land Management, Interior.

ACTION: Final rule.

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SUMMARY: The Bureau of Land Management (BLM) is revising its 
regulations to modernize and streamline how the agency notifies the 
public of temporary closure and restriction orders; clarify that such 
orders may be issued to avoid conflicts among public land users and 
ensure the privacy of Tribal activities for traditional or cultural 
use; require that all orders specify the date and time that a temporary 
closure or restriction becomes effective and terminates; and harmonize 
the penalties for violating temporary closure and restriction orders 
consistent with current statutory authority.

DATES: This final rule is effective on September 6, 2024.

FOR FURTHER INFORMATION CONTACT: Kevin Oliver, Division Chief, BLM 
Headquarters Division of Recreation and Visitor Services at (801) 450-
3134 or via email at [email protected]. For questions relating to 
regulatory process issues, email Brittney D. Rodrigues at: 
[email protected]. Individuals in the United States who are deaf, 
blind, hard of hearing, or have a speech disability may dial 711 (TTY, 
TDD, or TeleBraille) to access telecommunications relay services. 
Individuals outside the United States should use the relay services 
offered within their country to make international calls to the point-
of-contact in the United States. For a summary of the final rule, 
please see the final rule summary document in docket No. BLM-2023-0007 
on https://www.regulations.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

II. Response to Comments on the Proposed Rule
III. Discussion of the Final Rule
IV. Procedural Matters

I. Background

    The Federal Land Policy and Management Act (FLPMA) (43 U.S.C. 1701-
1787) establishes the BLM's multiple use and sustained yield mandate. 
In managing the public lands in accordance with FLPMA, the BLM 
occasionally issues temporary closure and restriction orders under 43 
CFR 8364.1 to protect persons, property, public lands, and resources. 
The need to temporarily close or restrict the use of public land arises 
in various situations, including in response to an emergency or 
unplanned event such as a flood, fire, hazardous material incident, 
discovery of unexploded ordnance, public health emergency, or change in 
public land use that creates a public safety hazard. For example, the 
BLM has issued temporary closure or restriction orders to protect the 
public from unsafe conditions in a community rock pit in Do[ntilde]a 
Ana County, New Mexico (88 FR 42984 (July 5, 2023)); close 9 acres of 
public land near Rowley, Utah, that were inundated with a hydrochloric 
acid spill (79 FR 26265 (May 7, 2014)); close approximately 31,000 
acres of public land in California to protect the public from exposure 
to airborne asbestos (73 FR 24087 (May 1, 2008)); and close a 
recreation site near Challis, Idaho, to protect the public from 
dangerous flooding and ice jams (87 FR 25523 (April 29, 2022)).
    The BLM also occasionally issues temporary closures or restrictions 
to protect resources or avoid conflicts among visitor use activities. 
In such situations, the BLM may restrict an area to certain types of 
travel to facilitate resource restoration or close an area to public 
access to facilitate special recreation events, such as the Burning Man 
Project (88 FR 39863 (June 20, 2023)); the King of the Hammers off-road 
race (87 FR 69300 (November 11, 2022)); the Reno Air Races (84 FR 31337 
(July 1, 2019)); the Mint 400 off-road race in Las Vegas (88 FR 7994 
(February 7, 2023)); and the Desert Classic racecourse (87 FR 20457 
(April 7, 2022)).
    As resource uses and demands for access to public lands have 
increased,

[[Page 64384]]

the need for the BLM to issue temporary closure and restriction orders 
under 43 CFR 8364.1 to protect persons, property, and public lands has 
also increased. However, some aspects of 43 CFR 8364.1--such as the 
requirement to publish temporary closure and restriction orders in the 
Federal Register and the absence of a provision authorizing the BLM to 
issue such orders with immediate full force and effect--can hinder the 
BLM's ability to respond effectively to exigencies that arise on public 
lands.
    Streamlining and modernizing how the BLM notifies the public about 
temporary closure and restriction orders, as well as providing managers 
with the ability to issue such orders with immediate effect, will 
enhance the BLM's ability to perform its mission to responsibly manage 
public lands and protect public safety. Revising Sec.  8364.1 will also 
make the BLM's temporary closure and restriction authorities more 
consistent with those of the U. S. Forest Service (USFS), U.S. Fish and 
Wildlife Service (FWS), and the National Park Service (NPS) (agencies 
with which BLM-administered public lands often share a common boundary) 
and will allow the BLM to be a more effective cooperator with other 
Federal and local agencies when responding to multijurisdictional 
demands, including emergency incidents or unforeseen events.
    Section 310 of FLPMA, which authorizes the Secretary to promulgate 
regulations to carry out the purposes of that Act and other laws with 
respect to public lands, authorizes this revision of the BLM's 
regulatory authority for temporarily closing and restricting the use of 
public lands. Other statutes, such as the Archaeological Resources 
Protection Act (16 U.S.C. 470aa-470mm), also authorize the Secretary to 
promulgate regulations relating to closures and use restrictions in 
certain contexts.

II. Response to Comments on the Proposed Rule

    The BLM published a proposed rule on November 21, 2023 (88 FR 
81022), soliciting public comments for 60 days. The BLM received 79 
submissions from members of the public, including individuals, State 
and local governments, regional law enforcement groups, livestock 
grazing organizations, recreation groups, and wilderness organizations. 
The BLM considered each comment in developing the final rule. Some 
comments fully or partially supported the proposed rule. Other comments 
were critical of the proposed rule and expressed concern regarding, 
among other issues, its scope, how the BLM would notify the public 
about temporary closure and restriction orders, how such orders would 
comply with the National Environmental Policy Act (NEPA), the BLM's 
ability to exempt certain persons from temporary closure and 
restriction orders, the lack of a mandatory public participation 
requirement, and the length of time that temporary closure and 
restriction orders could remain in place. Additional comments expressed 
a desire for the BLM's temporary closure and restriction authority to 
align more closely with the temporary closure and restriction 
authorities of other Federal agencies.
    Comments that are similar in nature have been categorized by 
subject and, in some instances, have been combined with related 
comments.

A. Scope of the Proposed Rule

    Comment: Several commenters expressed concern about the language in 
the proposed rule providing that the BLM could issue temporary closure 
and restriction orders to ``provide for implementation of management 
responsibilities.'' Some commenters described this language as too 
vague, while others expressed concern that it impermissibly expanded 
the situations in which the agency could issue temporary closure and 
restriction orders.
    Response: The BLM originally proposed to include the clause 
regarding the implementation of management responsibilities in Sec.  
8364.1 to make the BLM's temporary closure and restriction authority 
align more closely with the NPS's analogous regulation, which permits 
temporary closures and public use limits ``based upon a determination 
that such action is necessary for. . .implementation of management 
responsibilities'' (36 CFR 1.5(a)). The BLM also intended to clarify 
that the agency may currently close or restrict the use of public lands 
temporarily to facilitate construction, demolition, resource 
monitoring, invasive species control projects, and other typical 
management responsibilities in which the BLM regularly engages. 
However, while this clause would be consistent with the BLM's authority 
to manage public lands under FLPMA, the BLM understands how it could be 
misinterpreted to broaden the scope of the agency's temporary closure 
and restriction authority. Accordingly, the BLM has excluded the clause 
``provide for implementation of management responsibilities'' from the 
text of the final rule. Excluding this clause from the text of the 
final rule should not impair or otherwise affect the BLM's ability to 
perform typical management responsibilities, as activities such as 
construction, demolition, resource monitoring, and invasive species 
control projects are already typically accompanied by a temporary 
closure or restriction order under the existing regulations where 
necessary to protect persons, property, public lands, or resources. As 
a result, the BLM expects to continue to be able to issue temporary 
closure and restriction orders to facilitate such activities under the 
final rule.
    Comment: Several commenters expressed concern that the proposed 
rule would allow the BLM to implement large-scale conservation leasing 
without adequate public input. According to the commenters, this 
concern was driven, in part, by ambiguity concerning the language in 
the proposed rule providing for the issuance of temporary closure and 
restriction orders for the implementation of management 
responsibilities.
    Response: This final rule does not establish a leasing program or 
authorize the BLM to permanently close public lands to recreational or 
other uses. Rather, it will allow the BLM to protect persons, property, 
public lands, or resources, avoid conflicts among public land users, 
and ensure the privacy of Tribal activities for traditional or cultural 
use in a more efficient and expeditious manner. The BLM has excluded 
the language concerning implementation of management responsibilities 
to help clarify the scope and intent of the final rule.
    Comment: Several commenters stated that the BLM should not address 
temporary closure and restriction orders relating to emergencies and 
permitted events through a single regulatory provision. According to 
these commenters, closures and restriction orders intended to address 
emergency situations and permitted events differ significantly in their 
nature, and attempting to address them through a single regulation 
exacerbates those discrepancies.
    Response: The BLM does not believe that separate regulatory 
provisions are necessary. The agency has long relied on a single 
regulatory provision to issue temporary closure and restriction orders 
for both emergencies and permitted events, and the revisions to 43 CFR 
8364.1 effectuated through this rulemaking do not warrant a different 
approach. While the elimination of a Federal Register notice 
requirement will enhance the BLM's ability to respond to emergency 
situations and other unforeseen events, the publication

[[Page 64385]]

of a Federal Register notice is not the most effective way for the 
public to learn of a temporary closure or restriction order, even in 
non-emergency situations. Under the final rule, the bureau retains 
discretion to publish a notice in the Federal Register or use other 
means, such as social media and other online communication systems, to 
inform the public of a temporary closure or restriction order. The BLM 
therefore does not believe that temporary closure and restriction 
orders related to emergencies and permitted events must be addressed in 
separate regulatory provisions.
    Comment: Several commenters agreed that procedures should be 
available to the BLM to expedite temporary closure and restriction 
orders that address emergencies. But many of these same commenters 
contended that those same processes should not apply to non-emergency 
situations, such as temporary closures intended to facilitate planned 
events or avoid user conflicts, because the BLM is typically aware of 
these situations well before they occur. These commenters believe that 
adequate time exists to publish temporary closure and restriction 
orders associated with non-emergencies in the Federal Register.
    Response: Although non-emergency situations typically do not pose 
the same time constraints as emergencies, the BLM does not believe that 
temporary closure and restriction orders associated with non-
emergencies must be published in the Federal Register. Some situations 
may not clearly constitute an emergency but may nevertheless warrant a 
quick response. In such situations, BLM managers should not delay 
taking action to protect persons, property, public land, or resources 
because they are concerned that a particular situation does not 
necessarily qualify as an ``emergency'' and, therefore, the agency's 
response must follow a slower process. Instead, managers should have 
the discretion, but not the requirement, to publish certain temporary 
closure and restrictions in the Federal Register when appropriate, such 
as when the closure or restriction affects an area with limited local 
media outlets and the BLM believes that publication in the Federal 
Register is necessary to communicate area and use limitations to the 
public adequately. Moreover, eliminating the Federal Register notice 
requirement aligns 43 CFR 8364.1 more closely with the closure and 
restriction authorities of the USFS, FWS, and NPS, none of which 
require Federal Register publication for many non-emergency closures 
and restrictions.
    Comment: Several commenters argued that the proposed rule should 
permit temporary closure and restriction orders only for emergencies. 
Some commenters suggested that allowing the BLM to issue temporary 
closure and restriction orders based on non-emergency conditions could 
be overly open-ended and would not be based on adequate public input.
    Response: Since the original promulgation of 43 CFR 8364.1, the BLM 
has had authority to temporarily close or restrict the use of public 
lands to respond to emergencies and non-emergencies alike. The final 
rule retains this authority, which is an essential tool in managing the 
public lands for present and future generations.
    Comment: Several commenters expressed concern that the proposed 
rule would allow the BLM to issue temporary closure and restriction 
orders based on climate emergencies or other impacts of climate change. 
Commenters suggested that such closures could be overly open-ended or 
could occur without appropriate NEPA review.
    Response: Climate-related emergencies could necessitate a temporary 
closure or restriction order to protect persons, property, public 
lands, or resources. If temporary closure and restriction orders are 
necessary to address climate-related emergencies, the BLM would issue 
them in accordance with the same procedures used to issue other Sec.  
8364.1 orders. For example, the BLM would need to comply with NEPA and 
other applicable laws and specify in the order the date (and time) on 
which the closure or restriction would terminate.
    Comment: Some commenters asserted that it is unnecessary to 
eliminate the Federal Register publication requirement to modernize and 
streamline how the BLM communicates temporary closure and restriction 
orders to the public. These commenters assert that it is legally 
feasible to notify the public about temporary closures and restrictions 
using both the Federal Register and other forms of communication.
    Response: Retaining the requirement to publish notice of all 
temporary closure and restriction orders in the Federal Register, 
though legally feasible, would fail to achieve one of the other primary 
aims of this rulemaking: enhancing the BLM's ability to address 
emergencies and unforeseen events in a timely manner. Nevertheless, 
under the final rule, the BLM retains the discretion to publish 
temporary closure and restriction orders in the Federal Register where 
appropriate, such as when time allows or when the agency believes that 
other communication methods may not provide adequate notice to the 
public.
    Comment: Several commenters suggested that the proposed rule expand 
opportunities for public participation by requiring the BLM to seek 
public input prior to issuing a temporary closure or restriction order.
    Response: The BLM does not believe that it is necessary to seek 
public input prior to issuing a temporary closure or restriction order 
for several reasons. First, the agency has never been required to 
obtain public input before issuing a closure or restriction order under 
43 CFR 8364.1, and the BLM does not think it is necessary to impose 
such a requirement now. As stated above, the BLM is revising the final 
rule, in part, to enhance its ability to respond to emergencies and 
other unforeseen events in a timely manner. Requiring public input 
prior to issuing a temporary closure or restriction order could 
undermine that purpose. The BLM took a similar position when 
promulgating 43 CFR 8341.2, a provision which allows for emergency 
closures to off-road vehicle use. In response to commenters who 
expressed concern about the absence of a provision for public 
participation in that regulation, the BLM explained that the rule is 
intended to provide the BLM with a ``tool to take timely emergency 
action,'' and ``[a]dding a provision for public discussion would defeat 
th[at] purpose.'' (44 FR 34834 (June 15, 1979)) Similar logic applies 
here.
    Second, the BLM is also revising 43 CFR 8364.1 to make it more 
consistent with closure authorities of the USFS, FWS, and NPS, none of 
which are generally required to seek public input before issuing 
closure or restriction orders. Third, even though public participation 
is not required prior to the BLM issuing a closure or restriction 
order, the BLM provides for public participation in the form of being 
able to appeal such orders to the Department of the Interior's Board of 
Land Appeals (IBLA) in accordance with the regulations contained in 43 
CFR part 4. As a result, members of the public retain an ability to 
voice opposition to a closure or restriction order that they believe 
was issued improperly. Finally, the fact that this final rule does not 
require the BLM to seek public input does not mean that there will 
never be opportunities for public participation before the BLM issues 
temporary closure and restriction orders. Orders issued under this 
section must comply with NEPA, and that process will often provide 
opportunities for public participation. Moreover, depending on

[[Page 64386]]

the nature of the closure or restriction at issue, other statutory and 
regulatory provisions may require public participation prior to 
issuance of an order.
    Comment: Several commenters expressed concerns with the proposed 
rule providing authority to issue temporary closure and restriction 
orders to avoid conflicts among public land users. These commenters 
were concerned that the BLM could use this authority to give preference 
to certain public land users over others.
    Response: FLPMA obligates the BLM to manage the public lands for a 
broad array of uses. This statutory requirement can occasionally lead 
to conflicts among users. In response, the BLM must evaluate and choose 
an appropriate balance of uses, a task which frequently involves making 
tradeoffs between competing uses. Since it was originally promulgated, 
43 CFR 8364.1 has provided for the BLM to issue temporary closure and 
restriction orders, where necessary, to manage the appropriate balance 
of resources through its authority to protect persons, public lands, 
and resources. At times, the BLM has utilized this authority to issue 
temporary closure and restriction orders to avoid user conflicts, such 
as when the agency has closed areas of the public lands to general 
access to facilitate a permitted off-road race. The final rule 
reinforces this existing authority by clarifying that the BLM's ability 
to issue temporary closure and restriction orders to protect persons 
extends to avoiding user conflicts.
    Comment: One commenter sought clarification about whether the 
proposed rule applies to all BLM-managed lands, including national 
monuments and other special designations.
    Response: The final rule applies to all BLM-managed lands. 
Temporary closure and restriction orders issued under 43 CFR 8364.1 can 
apply to national monuments and other public lands managed by the BLM 
under special designations. Moreover, the final rule is compatible with 
other legal and regulatory authorities that allow the BLM to close or 
restrict the use of public lands in specific contexts. For example, the 
final rule does not constrain the BLM's discretion to implement the 
closure provision at 43 CFR 8351.2, which authorizes the BLM to close 
or restrict the use of certain lands and waters within the boundary of 
a component of the National Wild and Scenic Rivers System, or the 
provision at 43 CFR 9212.2, which authorizes the BLM to issue fire 
prevention orders to prevent wildfire or facilitate its suppression.

B. Coordination, Communication, and NEPA

    Comment: Several commenters requested that the BLM clarify how this 
proposed rule interacts with requirements of the John. D. Dingell, Jr. 
Conservation, Management, and Recreation Act (Dingell Act). For 
example, one commenter requested that the final rule include language 
regarding the Dingell Act's requirements to coordinate with state 
agencies, to consider the impact of closures on hunting, fishing, and 
recreational shooting, and to close the smallest area for the least 
amount of time. Another commenter asked that the final rule specify 
that the public have an opportunity to comment in accordance with 
section 4103 of the Dingell Act if the agency is proposing to close 
public lands to hunting, fishing, or recreational shooting.
    Response: The final rule does not change how the BLM complies with 
the Dingell Act. If a proposed closure to hunting, fishing, or 
recreational shooting falls within the purview of the Dingell Act, the 
BLM will publish a notice in the Federal Register, consult with state 
wildlife agencies, provide an opportunity for public comment, and 
satisfy the other procedural and substantive requirements of section 
4103. It is therefore unnecessary to incorporate aspects of the Dingell 
Act into the text of the final rule.
    Comment: One commenter suggested that the BLM explain in further 
detail where it would post notice of temporary closure and restriction 
orders and recommended that the BLM use all forms of communication 
available to inform the public.
    Response: The BLM has not incorporated this suggestion into the 
final rule. The final rule, which requires that notice of temporary 
closure and restriction orders be posted in BLM offices with 
jurisdiction over the relevant public lands, at or near places where 
the order applies, in local media outlets, and on at least one BLM-
controlled, publicly available online communication system, provides 
the BLM with discretion to ensure that the level of notice provided to 
the public is commensurate with the scale and location of the closure 
or restriction order at issue. In some instances, it may be necessary 
to post notice on numerous BLM web pages, including the national, 
state, district, and field office web pages. In other situations, more 
limited online notification may suffice. The final rule provides the 
flexibility necessary to ensure that the level of notice is uniquely 
tailored to the closure or restriction order being issued.
    Comment: One commenter asked the BLM to clarify what ``BLM-
controlled, publicly available online communication system'' means.
    Response: This phrase refers to a BLM-controlled system that is 
available to the public and facilitates the sharing of information or 
communication over a computer network or other digital means. 
Currently, many social media platforms and the BLM website would 
qualify as BLM-controlled, publicly available communication systems. 
However, because technology will change over time, the final rule 
purposely utilizes flexible language to allow it to adapt to new 
technologies.
    Comment: One commenter contended that there are generational 
differences in how the public obtains information. This commenter 
suggested that certain generations could be adversely impacted by the 
proposed rule's reliance on online communication systems in place of 
the Federal Register.
    Response: The final rule does not rely on the BLM's utilization of 
online communication systems to communicate all temporary closures and 
restrictions to the public. The BLM retains discretion to publish 
orders in the Federal Register or use other mechanisms to inform the 
public of temporary closure or restriction orders, where appropriate. 
Additionally, the final rule requires the BLM to post notices of 
temporary closure and restriction orders in the BLM offices with 
jurisdiction over the relevant public lands, at or near places where 
the order applies, and in local media outlets.
    Comment: Several commenters requested that temporary closures and 
restrictions continue to be published in the Federal Register to 
facilitate communication in rural communities and retain public input 
and appeal opportunities.
    Response: The final rule does not prohibit the BLM from publishing 
a notice in the Federal Register if the agency determines that doing so 
is appropriate. Thus, where the BLM determines that other forms of 
notice may prove insufficient, it may still elect to publish a notice 
in the Federal Register. The final rule, however, does not require the 
BLM to publish such a notice in all instances, even for temporary 
closures and restrictions in rural areas, in part because what 
constitutes ``rural'' can be relative, and demographics are not 
necessarily determinative of whether other notification methods are 
adequate. The

[[Page 64387]]

final rule does not alter the regulations with regard to public input 
or appeals.
    Comment: Some commenters requested that, in addition to posting 
notice of temporary closure and restriction orders through an online 
communication system and notifying local media outlets, the final rule 
require the BLM to directly notify grazing permittees and other people 
affected by a temporary closure or restriction order through certified 
mail or some other means. These commenters feel that online 
communications systems and local media outlets are not sufficient 
effective means of communication in certain rural areas.
    Response: The BLM has not incorporated this suggestion into the 
final rule. In most situations, online communication systems and local 
media outlets will be an effective means of communicating temporary 
closures and restrictions, even in rural areas. In those situations 
where online communication systems and local media outlets may not be 
effective means of communication, the final rule provides the BLM with 
sufficient flexibility to communicate the closures through other means 
of communication, such as directly notifying a permittee or other 
person affected by a temporary closure or restriction order. Generally, 
and as emergency conditions may dictate, the BLM will communicate with 
an affected permittee prior to implementing a closure. Furthermore, 
temporary closures implemented under the final rule will not 
necessarily impede a permittee's ability to manage livestock within a 
closure area, as Sec.  8364.1(a)(4) permits the authorized officer to 
identify persons or groups who are exempt from the closure or 
restrictions.
    Comment: Some commenters expressed concern that the proposed rule 
may cause changes to resource management plans (RMPs) without public 
input. The commenters emphasized that temporary closures should comply 
with applicable RMPs.
    Response: The final rule does not substitute for land use planning, 
a separate process governed by BLM regulations at 43 CFR part 1600. 
Temporary closure and restriction orders under 43 CFR 8364.1 do not 
amend or revise land use plans and are issued independent of the 
planning process (Utah Shared Access Alliance v. Carpenter, 463 F.3d 
1125, 1135-36 (10th Cir. 2006) (citing Humboldt County v. United 
States, 684 F.2d 1276 (9th Cir. 1982))). Implementation of the final 
rule will not change the content of RMPs. Under the final rule, all 
temporary closures and restrictions must conform to approved RMPs.
    Comment: Some commenters expressed the view that the proposed rule 
should require consultation or coordination with various stakeholders, 
including, but not limited to, local sheriffs, emergency services 
providers, State wildlife agencies, Tribes, and others.
    Response: Consultation and coordination with stakeholders is an 
important aspect of managing public lands, and, where possible, the BLM 
always encourages coordination with local sheriffs, State law 
enforcement, government officials, State wildlife agencies, rights-of-
way holders, permittees, and other interested stakeholders before 
temporarily closing or restricting the use of public lands. But 
consultation and coordination with external groups is not always 
feasible before implementing a closure or restriction order. For 
example, the BLM may not have time to engage in the suggested type of 
coordination when addressing an emergency. Additionally, which 
stakeholders are appropriate for the BLM to coordinate with will depend 
on the circumstances of the specific closure or restriction at issue. 
The BLM, therefore, has not incorporated a requirement to consult or 
coordinate with specific stakeholders prior to implementing a temporary 
closure or restriction order. Instead, the BLM has adopted a more 
individualized approach and intends to coordinate with appropriate 
stakeholders, the identity of which will depend on the circumstances 
giving rise to the need for the temporary closure or restriction order.
    Comment: One commenter implied that under section 202(c)(9) of 
FLPMA, the BLM must incorporate a requirement to coordinate with State 
and local governments prior to implementing a temporary closure or 
restriction order.
    Response: Consultation and coordination with State and local 
governments is an important aspect of managing public lands, and the 
BLM encourages land managers to do so in advance of issuing temporary 
closure and restriction orders where appropriate. However, section 
202(c)(9) of FLPMA requires the BLM to coordinate with State and local 
governments only when engaging in land use planning in accordance with 
43 CFR part 1600. As noted above, temporary closure and restriction 
orders under 43 CFR 8364.1 do not amend or revise land use plans and 
are issued independent of the planning process. Accordingly, section 
202(c)(9) does not require coordination with State and local 
governments prior to implementing a temporary closure or restriction 
order. Although not required, the BLM will continue to engage in such 
coordination where appropriate.
    Comment: One commenter stated that the proposed rule, which does 
not require coordination with stakeholders before the issuance of a 
temporary closure or restriction order, conflicts with the community 
engagement strategy laid out in the BLM's Blueprint for 21st Century 
Outdoor Recreation.
    Response: The final rule does not conflict with the Blueprint for 
21st Century Outdoor Recreation (Blueprint), which presents the BLM's 
strategy for diversifying recreation investments and considering 
current and future recreation demands and program needs. While the 
Blueprint identifies increasing and improving collaboration with 
community service providers as a general goal, it does not suggest that 
collaboration with community stakeholders must occur before the BLM 
takes specific actions, such as issuing temporary closure or 
restriction orders. The BLM will continue to coordinate as appropriate 
with stakeholders through implementation of the Blueprint and other 
activities.
    Comment: Two commenters requested that the BLM revise the proposed 
rule text to provide that the agency will issue a temporary closure or 
restriction order only after other management strategies and 
alternatives have been explored including, but not limited to, 
increased law enforcement, cooperative efforts with local governments, 
engineering, education, and outreach.
    Response: While the BLM typically considers other management 
strategies before closing or restricting the use of public lands, it 
has not incorporated this suggestion into the final rule. There may not 
be sufficient time in all situations to coordinate fully or document 
those efforts before a closure or restriction must be implemented to 
protect people or resources.
    Comment: Some commenters expressed concern that the proposed rule 
would not provide adequate opportunities for review or appeal of 
temporary closure or restriction orders.
    Response: The final rule does not affect the appealability of 
temporary closure and restriction orders, nor does it affect the 
public's ability to immediately challenge a temporary closure or 
restriction order in Federal court. Such orders will continue to be 
administratively appealable in accordance with the regulations 
contained in 43 CFR part 4. Under the final rule, however, temporary 
closure

[[Page 64388]]

and restriction orders may become effective upon issuance, similar to 
several other types of decisions issued by the agency, such as rights-
of-way, certain grazing and forestry decisions, and wild horse and 
burro removal decisions.
    Comment: One commenter questioned the need to provide that 
temporary closure and restriction orders are issued with immediate full 
force and effect, asserting that such orders tend not to be appealed.
    Response: Providing that temporary closure and restriction orders 
can have immediate full force and effect will not, nor is it intended 
to, limit the public's ability to appeal temporary closure and 
restriction orders. Providing that temporary closure and restriction 
orders may have immediate full force and effect is intended to enhance 
the BLM's ability to address emergencies and unforeseen events in a 
timely fashion. Previously, temporary closure and restriction orders 
were generally not effective until 30 days after their issuance, which 
hindered the agency's ability to protect public health, safety, 
property, and resources in a timely manner.
    Comment: One commenter stated that existing regulations, including 
43 CFR 4.21, 43 CFR 9212.2, and regulations allowing for alternative 
arrangements to comply with NEPA, provide adequate authority for the 
BLM to respond to emergency situations. This commenter therefore 
contended that the rule is not needed.
    Response: The BLM disagrees that the regulations cited by the 
commenter provide the agency with adequate authority to respond 
effectively to all emergencies and other unforeseen events in a timely 
fashion. Under 43 CFR part 4, the IBLA may provide that a decision has 
immediate full force and effect when the public interest requires. But 
that regulation does not provide the BLM with similar authority, and in 
many situations, having to make a request of the IBLA would prevent the 
BLM from acting with sufficient speed. The provisions at 43 CFR 9212.2 
are limited to fire prevention and suppression purposes, and the BLM 
must be able to close and restrict the use of public lands quickly in a 
broader set of circumstances. Finally, the BLM agrees that regulations 
promulgated by the Council on Environmental Quality and the Department 
of the Interior concerning the procedural requirements of NEPA would 
allow the BLM to make alternative arrangements for NEPA compliance when 
responding to an emergency. Those regulations, however, do not affect 
whether a temporary closure or restriction order needs to be published 
in the Federal Register or whether it will be effective immediately. As 
a result, reliance on those NEPA regulations alone is insufficient to 
allow the BLM to respond to emergency situations and other unforeseen 
events in a sufficiently timely manner.
    Comment: One commenter asserted that the proposed rule should not 
be used as a substitute for NEPA compliance for permits or planning.
    Response: The final rule does not affect how the BLM complies with 
NEPA. Temporary closure and restriction orders issued under 43 CFR 
8364.1 must comply with applicable law. Moreover, the final rule is not 
a substitute for land use planning. While the BLM has authority to 
temporarily close or restrict the use of public lands for a variety of 
reasons, the agency will continue to establish overarching goals, 
objectives, and management direction through the land use planning 
process in accordance with 43 CFR part 1600.
    Comment: Several commenters were concerned that removing the 
requirement for publishing temporary closure and restriction orders in 
the Federal Register would circumvent public participation and other 
requirements of NEPA.
    Response: The final rule does not change how the BLM complies with 
NEPA when issuing temporary closure and restriction orders. Before 
issuing a temporary closure or restriction order, the BLM must ensure 
that it is supported by an adequate environmental analysis, relies on a 
relevant categorical exclusion, or, in the case of emergencies, relies 
on alternative arrangements for NEPA compliance. The final rule does 
not change these requirements.
    Comment: One commenter suggested that the proposed rule should be 
analyzed through an environmental impact statement under NEPA.
    Response: Preparation of an environmental impact statement is 
unnecessary, as the rule is categorically excluded from further NEPA 
analysis under 43 CFR 46.210(i). The final rule is administrative and 
procedural in nature and, therefore, satisfies the first prong of Sec.  
46.210(i). The final rule is not self-executing in that its 
promulgation does not authorize or effectuate any specific closures or 
restrictions. The final rule merely clarifies the situations in which 
the agency may issue temporary closure and restriction orders, 
streamlines the process that the BLM uses to issue such orders, and 
updates the penalty provision to align with current statutory 
authority. Moreover, the final rule does not modify the public's 
ability to participate in the BLM's decision-making process. When 
considering whether to issue a temporary closure or restriction order, 
the BLM must still comply with NEPA and other laws providing for public 
participation.
    The final rule also satisfies the second prong of Sec.  46.210(i). 
The details of specific closures or restrictions that the BLM may 
impose in accordance with the final rule are uncertain. As a result, 
the environmental effects of such future closures or restrictions are 
currently too speculative and conjectural to lend themselves to 
meaningful analysis. The environmental effects of future closure or 
restriction orders issued under the final rule will later be subject to 
the NEPA process when the agency can account for the site specificity 
that will make such analysis meaningful. Finally, reliance on the 
categorical exclusion at 43 CFR 46.210(i) is appropriate because none 
of the extraordinary circumstances described in 43 CFR 26.215 apply to 
the final rule.
    Comment: Some commenters argued that the Burning Man Project, which 
was cited in the proposed rule as an example of a reason for issuing a 
non-emergency temporary closure, is a poor example because Burning Man 
is associated with a special recreation permit that is subject to NEPA 
and its attendant public participation requirements, whereas other 
temporary closures are not.
    Response: The final rule does not change or affect the BLM's 
obligation to comply with NEPA when issuing temporary closure and 
restriction orders, regardless of whether those orders are associated 
with emergencies or easily foreseen events. Some temporary closure 
orders are associated with large-scale public events authorized through 
a special recreation permit, such as the Burning Man Project and the 
Reno Air Races. These events can be complex in nature and may require 
the BLM to temporarily close or restrict the use of public lands to 
provide for public safety. In such situations, the BLM will typically 
evaluate the environmental impacts associated with any necessary 
temporary closures or restrictions in the NEPA document supporting 
authorization of the underlying special recreation permit. However, 
even in situations when a temporary closure or restriction order is 
unrelated to a special recreation permit or other authorization that 
must comply with NEPA, the temporary closure or restriction order 
constitutes a Federal action for which NEPA compliance is necessary. 
The circumstances surrounding specific

[[Page 64389]]

temporary closure and restriction orders will determine how the BLM 
complies with NEPA when issuing such orders.

C. Closure Parameters--Timeframe and Size

    Comment: Several commenters expressed concern about the statement 
in the proposed rule that ``a temporary closure or restriction order 
would generally remain in effect until the situation it is addressing 
has ended or abated, it expires by its own terms, or the BLM issues a 
superseding decision, which can include incorporating the terms of a 
closure or restriction order into a resource management plan in 
accordance with the regulations at 43 CFR part 1600.'' Some commenters 
asserted that such an order would not be ``temporary,'' while others 
contended that the statement in the proposed rule is in tension with 
the requirement that a temporary closure or restriction order specify 
the time and date on which it begins and ends.
    Response: Temporary closure and restriction orders are generally 
intended to address emergencies or unforeseen events or facilitate 
time-limited uses that require specific restrictions. In many 
situations, such as when the BLM temporarily closes or restricts the 
use of public lands to protect persons during an off-road vehicle race, 
the BLM will know the specific duration that a closure or restriction 
must be in effect. In other situations, the necessary duration of a 
closure or restriction order is unknown, such as when the BLM closes an 
area to protect resources after an area has been burned in a fire. In 
both cases, the closure or restriction order issued by the BLM is 
temporary, in that the agency issues it outside of the land use 
planning process that the BLM uses to establish long-term management 
strategies. Additionally, in both cases, under the final rule, the BLM 
would specify in the temporary closure or restriction order the times 
and dates on which it takes effect and terminates. However, when the 
necessary duration of the order is unknown, the BLM may have to issue 
subsequent temporary closure or restriction orders that restrict public 
access or use until the situation posing a concern has abated, or to 
rescind an existing temporary closure or restriction order and issue a 
new order with a revised date or other changes to better reflect the 
purpose and intent of the order. By comparison, non-temporary closures 
and restrictions are those that the BLM issues through the land use 
planning process. Such closures and restrictions are part of the 
agency's long-term strategy for managing areas of public lands and are 
typically in place for longer durations. As a result, the agency issues 
such closures in accordance with 43 CFR part 1600, which provides 
multiple opportunities for public participation.
    Comment: Several commenters requested that the BLM define the term 
``temporary'' for purposes of this rule, while others suggested that 
the temporary closure and restriction orders issued under 43 CFR 8364.1 
be limited to a specific duration, such as 6 months or 45 days.
    Response: The BLM does not believe that it is necessary to define 
the term ``temporary'' for the purposes of the rule, nor does the BLM 
believe that temporary closure and restriction orders issued under 43 
CFR 8364.1 should be limited to a specific duration. As noted above, 
the BLM issues temporary closure and restriction orders to address a 
wide variety of circumstances. While some of those circumstances 
involve specific durations that are known in advance (e.g., race 
closures), others do not (e.g., wildfire recovery). Attempting to 
define the term ``temporary'' or limit the duration of orders issued 
under 43 CFR 8364.1 would hinder the BLM's ability to perform its 
multiple-use mission and protect persons, property, public lands, and 
resources.
    Comment: One commenter requested that closures longer than 90 days 
be published in the Federal Register.
    Response: Requiring that all temporary closure and restriction 
orders that last longer than 90 days be published in the Federal 
Register would neither enhance the BLM's ability to respond to 
emergencies in a timely fashion nor communicate closures and 
restrictions to the public in the most efficient manner. Temporary 
closures and restrictions that last longer than 90 days may need to be 
put into effect immediately, which could be hampered by a Federal 
Register publication requirement. Moreover, more direct forms of 
communication may prove more effective at notifying the public of such 
closures and restrictions.
    Comment: Many commenters stated that temporary closure end dates 
should be defined and expressed concern that the proposed rule would 
permit closures to last until land use plans are updated.
    Response: The final rule requires the BLM to specify the date and 
time that a temporary closure or restriction order will terminate. 
However, if the situation that a temporary closure or restriction order 
addresses continues beyond the order's end date, the BLM may issue a 
new order to extend the closure or restriction.
    Comment: Two commenters recommended that closures be limited to the 
smallest size possible.
    Response: The final rule requires that each closure be accompanied 
by a rationale for the closure or restriction, which can include a 
rationale for the geographic parameters of the closure. In general, the 
BLM strives to close or restrict the use of the smallest area of public 
lands possible.

D. Exemptions

    Comment: One commenter expressed concern that the proposed rule 
would permit the BLM to restrict third parties from monitoring events 
such as offroad races.
    Response: Under the final rule, each temporary closure or 
restriction order will specify the uses that are restricted, as well as 
any exemptions from the order. In the example given, the BLM would have 
discretion to exempt third-party race monitors from a restricted area. 
Notably, this rule does not change the requirement for the BLM to 
specify who is exempt from a temporary closure or restriction order.
    Comment: Two commenters requested that the proposed rule provide 
that temporary closure and restriction orders not apply to valid 
existing rights or travel routes under litigation.
    Response: Actions the BLM takes pursuant to FLPMA, including 
issuing temporary closure and restriction orders under 43 CFR 8364.1, 
are subject to valid existing rights. Additionally, under the final 
rule, the BLM will determine which individuals are exempt from 
temporary closure and restriction orders on a case-by-case basis. Where 
necessary and appropriate, the BLM will provide that certain 
individuals or groups are exempt from the limitations posed by a 
temporary closure or restriction order.
    Comment: Many commenters discussed the provision permitting 
closures and restrictions for the purpose of ensuring privacy for 
certain Tribal uses. In general, commenters asked the BLM to clarify 
the meaning of that provision and explain why the proposed rule 
specifically mentions Tribal uses. Some commenters suggested that the 
proposed rule should not refer to Tribal activities specifically, but 
instead should use general language applying to all public land users.
    Response: While FLPMA directs the BLM to manage public lands for a 
wide variety of uses and users, not all parcels of public lands must be 
made available to all uses (or users) at any one time. In certain 
places, and at certain times, the BLM may decide to facilitate specific 
uses, such as certain Tribal uses, over

[[Page 64390]]

others. The provision in the final rule authorizing the BLM to issue 
temporary closure and restriction orders to ensure privacy for certain 
Tribal uses stems from the United States' unique trust responsibility 
to Tribal Nations in the stewardship of public lands. Both Congress and 
the Executive Branch have declared it to be the policy of the United 
States to accommodate Tribal access to the public lands in certain 
circumstances. For example, the American Indian Religious Freedom Act 
provides that ``it shall be the policy of the United States to protect 
and preserve for American Indians their inherent right of freedom to 
believe, express, and exercise the traditional religions of the 
American Indian, Eskimo, Aleut, and Native Hawaiians, including but not 
limited to access to sites, use and possession of sacred objects, and 
the freedom to worship through ceremonials and traditional rites.'' (42 
U.S.C. 1996, emphasis added) Similarly, Executive Order (E.O.) 13007 
directs Federal agencies to accommodate access to and ceremonial use of 
Indian sacred sites on Federal lands by Indian religious practitioners. 
It also directs Federal agencies, where appropriate, to maintain the 
confidentiality of such sites. Additionally, Secretarial Order 3403 
(Joint Secretarial Order on Fulfilling the Trust Responsibility to 
Indian Tribes in the Stewardship of Federal Lands and Waters) directs 
Bureaus and Offices to ``manage Federal lands and waters in a manner 
that seeks to protect the treaty, religious, subsistence, and cultural 
interests of federally recognized Indian Tribes.''
    While the provisions of 43 CFR 8364.1 authorizing the BLM to issue 
temporary closure and restriction orders to protect persons and avoid 
user conflicts would seemingly also cover closure to ensure privacy for 
Tribal uses, the BLM thinks it is worth clarifying the agency's 
authority to temporarily close or restrict the use of public lands to 
ensure privacy for Tribal activities for traditional or cultural use 
consistent with the direction in the above-discussed authorities. 
Expressly providing that the BLM may temporarily close or restrict the 
use of public lands to ensure privacy for certain Tribal activities 
will also allow the BLM to implement aspects of the Best Practices 
Guide for Federal Agencies Regarding Tribal and Native Hawaiian Sacred 
Sites that was developed to operationalize the direction in E.O. 13007, 
as well as facilitate commitments the BLM may make to specific Tribes 
as part of co-stewardship agreements governing certain portions of the 
public lands. Moreover, because many Tribal traditional and cultural 
uses take place in the vicinity of cultural resources whose nature and 
location the BLM is required to keep confidential, this provision will 
help the BLM comply with related statutory obligations.
    Comment: A few commenters recommended that emergency services and 
law enforcement personnel be exempt from temporary closures and 
restrictions, and one commenter asked that the BLM clarify the process 
for exempting some groups such as local entities with jurisdictional 
authority (State wildlife agencies, for example) from temporary closure 
and restriction orders.
    Response: The existing regulation requires the BLM to identify any 
persons or groups who are exempt from a temporary closure or 
restriction order. Generally, the BLM exempts Federal, State, and local 
officers and employees, as well as members of organized rescue or 
firefighting forces, in the performance of their official duties from a 
temporary closure or restriction order. The agency may specify that 
additional persons or groups are exempt on a case-by-case basis.
    Comment: One commenter expressed concern that there were 
insufficient ``checks and balances'' and that the proposed rule could 
permit the BLM to improperly exempt ``preferred individuals'' from 
closure or restriction orders.
    Response: Prior to this rulemaking, 43 CFR 8364.1 required the BLM 
to identify the persons who are exempt from a temporary closure or 
restriction order. The final rule does not change that requirement. 
While the BLM's multiple-use mission inherently requires the agency to 
balance competing uses and users of the public lands, the agency does 
not intend to implement the final rule in a manner that gives 
preference to select members of the public. Additionally, all temporary 
closure and restriction orders must comply with NEPA and other 
applicable statutes. They are also subject to administrative appeal in 
accordance with 43 CFR part 4. Accordingly, the public has ample 
opportunity to express concerns with a temporary closure or restriction 
order, including concerns with individuals or groups exempted from its 
limitations.

E. Consistency With Other Legal Requirements

    Comment: Two commenters asserted that the proposed rule is not 
consistent with the NPS's closure authority at 36 CFR 1.5. These 
commenters pointed out that, except in the case of emergencies, Federal 
Register publication is required where an NPS closure or restriction is 
of a nature, magnitude, or duration that will result in a significant 
alteration in the public use pattern of the park area, adversely affect 
the park's natural, aesthetic, scenic or cultural values, requires a 
long-term or significant modification in the resource management 
objectives of the unit, or is of a highly controversial nature.
    The commenters suggested that the BLM adopt a similar framework for 
this rulemaking.
    Response: The final rule is not identical to 36 CFR 1.5. This 
rulemaking will nevertheless result in the BLM's temporary closure and 
restriction authority aligning more closely with the NPS regulation. 
For example, neither rule requires Federal Register publication of 
temporary closure and restriction orders that address emergency 
situations. Additionally, the final rule pertains only to temporary 
closure and restriction orders and not to land use planning, which is 
governed by 43 CFR part 1600, including requirements to publish certain 
land use planning-related notices in the Federal Register. The final 
rule also aligns with the NPS public notification processes set out in 
36 CFR 1.7, which directs the NPS to use one or more different 
communication methods, including electronic media, when invoking 
certain authorities to, for example, ``restrict or control a public use 
or activity'' or ``designate all or a portion of a park area as open or 
closed.'' Finally, while not addressed by the commenters, the final 
rule is similar to the USFS's and FWS's closure and restriction 
authority at 36 CFR 261.50 and 50 CFR 25.31, respectively, which do not 
require Federal Register publication for any closure or restriction 
orders.
    Comment: One commenter pointed out that the Alaska National 
Interest Lands Conservation Act (ANILCA), Alaska Native Claims 
Settlement Act (ANCSA), and other statutes impose Alaska-specific legal 
obligations on the BLM. The commenter requested that the BLM make clear 
that the final rule does not apply to Alaska and instead prepare an 
Alaska-specific regulation. Alternatively, the commenter asked the BLM 
to acknowledge in the final rule that Alaska-specific statutes, such as 
ANILCA, apply where temporary closure or restriction orders impact 
access for traditional activities on conservation system units, access 
for subsistence activities on public land, or temporary access in the 
National Petroleum Reserve-Alaska.

[[Page 64391]]

    Response: The BLM believes it is unnecessary to exempt Alaska from 
operation of the final rule or prepare an Alaska-specific temporary 
closure and restriction regulation. The final rule does not change or 
impact the requirements of ANILCA, ANCSA, or other statutes. It also 
does not revise, amend, or obviate any regulatory requirements not 
included in 43 CFR 8364.1, such as those implementing section 1110(a) 
of ANILCA at 43 CFR 36.11. The BLM has long recognized that those 
Alaska-specific legal requirements can work in tandem with the 
temporary closure and restriction authority provided in 43 CFR 8364.1 
(51 FR 31619 (September 4, 1986)). Accordingly, when implementing a 
temporary closure or restriction in Alaska, it may be necessary for the 
BLM to comply with both the final rule and certain Alaska-specific 
statutory and regulatory requirements. Ultimately, the legal 
requirements that apply to a temporary closure or restriction order 
impacting BLM-managed public lands in Alaska will depend on the facts 
and circumstances of the particular temporary closure or restriction.
    Comment: Several commenters were concerned that the proposed rule 
may conflict with the BLM's multiple-use mandate.
    Response: The final rule is consistent with FLPMA's mandate to 
manage public lands ``under the principles of multiple use and 
sustained yield.'' 43 U.S.C. 1732(a). When enacting FLPMA and 
establishing the BLM's multiple-use mandate, Congress declared it the 
policy of the United States that public lands ``be managed in a manner 
that will protect the quality of scientific, scenic, historical, 
ecological, environmental, air and atmospheric, water resource, and 
archeological values,'' and ``where appropriate, will preserve and 
protect certain public lands in their natural condition.'' 43 U.S.C. 
1701(a)(8). This policy is effectuated in the definition of ``multiple 
use,'' which means, in part, ``the use of some land for less than all 
of the resources'' and ``making the most judicious use of the land for 
some or all . . . resources.'' 43 U.S.C. 1702(c). Courts have affirmed 
that complying with FLPMA's multiple-use mandate requires the BLM to 
``make judgments about incompatible uses'' and does not ``preclude the 
agency from taking a cautious approach to assure preservation of 
natural and cultural resources.'' (Nat'l Mining Ass'n v. Zinke, 877 
F.3d 845, 872 (9th Cir. 2017) (citing New Mexico ex rel. Richardson v. 
Bureau of Land Mgmt., 565 F.3d 683, 710 (10th Cir. 2009)). Indeed, when 
performing the ``enormously complicated task of striking a balance 
among the many competing uses to which land can be put,'' (Norton v. S. 
Utah Wilderness Alliance, 542 U.S. 55, 58 (2004)), the BLM may decide 
that ``a particular parcel [of public land] need not be put to all 
feasible uses or to any particular use.'' (Nat'l Mining Ass'n, 877 F.3d 
at 872). Moreover, in exercising its multiple-use mandate, FLPMA 
requires the BLM to ``take any action necessary to prevent unnecessary 
or undue degradation of the [public] lands,'' 43 U.S.C. 1732(b), and 
courts have explained that closing or restricting the use of public 
land under 43 CFR 8364.1 to prevent such degradation ``is a lawful 
discharge of the BLM's duty'' under FLPMA. (Utah Shared Access Alliance 
v. Carpenter, 463 F.3d 1125, 1136 (10th Cir. 2006)). Accordingly, the 
final rule, which will help the BLM address competing uses of the 
public lands and enhance the agency's ability to protect persons, 
public lands, and resources, particularly in response to emergencies 
and unforeseen events, is consistent with both the text of FLPMA and 
courts' understanding of the BLM's multiple-use mission.
    Comment: One commenter suggested that the proposed rule discuss its 
implications on the Secretary's authority to hire and compensate 
personnel in certain emergency situations.
    Response: The issue raised is outside the scope of this rulemaking 
effort and is addressed separately by other statutes and regulations.

F. Need for the Proposed Rule

    Comment: Multiple commenters asserted that the BLM already has 
sufficient authorities to close or restrict the use of public lands in 
response to emergencies and unforeseen events and, therefore, this 
rulemaking is unnecessary.
    Response: The BLM disagrees. Protecting persons, public lands, and 
resources in an adequate fashion often requires a quick response and, 
as discussed above, the requirement to publish orders in the Federal 
Register and the general inability of the BLM to issue such orders with 
immediate full force and effect frequently hinders the BLM's ability to 
temporarily close or restrict the public lands to address emergencies 
and other unforeseen events in a timely manner. The USFS, FWS, and NPS 
have the requisite authority to close or restrict the use of Federal 
lands under their jurisdiction with little to no delay. Under the prior 
regulations, the BLM lacked that authority. This final rule will 
address that shortcoming and help align the BLM's procedures with those 
of other land management agencies.
    Comment: One commenter requested that the BLM identify the costs of 
implementing the final rule.
    Response: The BLM expects the final rule to decrease costs. 
Preparing Federal Register notices associated with temporary closure 
and restriction orders takes considerable time and effort, and 
publishing notices requires payment to the Office of the Federal 
Register. Instead, the agency will be able to focus its time, money, 
and effort on using more direct and expedient methods of communication 
to inform the public about how the agency is managing public lands.

III. Discussion of the Final Rule

A. Overview

    The existing regulation at 43 CFR 8364.1 sets out the BLM's 
authority and procedures for issuing temporary closure and restriction 
orders. Among other things, the existing regulation requires the BLM to 
publish temporary closure and restriction orders in the Federal 
Register and does not authorize the agency to make those orders 
effective immediately. Those restrictions, as well as other aspects of 
the existing rule, frequently impede the BLM's response to emergencies 
and other unforeseen events. Delays caused by the existing regulation 
have, in some cases, hindered the BLM's ability to reduce risks to 
public health, safety, property, and resources during such situations.
    The final rule revises 43 CFR 8364.1 to improve the BLM's ability 
to respond quickly to changing conditions on public lands and 
facilitate more modern and direct methods of communicating its actions 
to the public by eliminating the requirement to publish temporary 
closure and restriction orders issued under this rule in the Federal 
Register. In place of that notice requirement, the final rule directs 
the BLM to inform the public about temporary closure and restriction 
orders by notifying local media outlets and posting information about 
the closure or restriction on at least one BLM-controlled, publicly 
available online communication system. By no longer requiring the BLM 
to publish temporary closure and restriction orders in the Federal 
Register, the final rule better positions the agency to serve the 
public and manage the public lands. The final rule continues to require 
the BLM to post temporary closure and restriction orders at appropriate 
BLM offices and at or near the closed or restricted area.

[[Page 64392]]

    The final rule authorizes the BLM to make temporary closure and 
restriction orders effective immediately, which will improve the BLM's 
capacity to respond quickly to emergencies and other unforeseen events 
affecting public lands. This change will help the BLM more effectively 
fulfill its multiple-use mission without preventing those who are 
adversely affected from appealing the issuance of an order to the IBLA.
    The final rule clarifies the broad range of situations in which the 
BLM may issue temporary closure and restriction orders. Under both the 
prior regulation and this final rule, the BLM may issue temporary 
closure and restriction orders to protect persons, property, and public 
lands and resources. The final rule also reinforces that the BLM may 
issue temporary closure and restriction orders to avoid conflicts among 
public land users and to ensure the privacy of Tribal activities for 
traditional or cultural use.
    The final rule requires all temporary closure and restriction 
orders issued under 43 CFR 8364.1 to state the date and time that a 
closure or restriction will become effective and the date and time it 
will terminate. The final rule also clarifies that the BLM may exempt 
groups, such as law enforcement, emergency response, and Tribes, from 
temporary closures and restrictions as appropriate. By comparison, the 
prior regulation only expressly required the BLM to identify persons 
who are exempt from temporary closure and restriction orders.
    Finally, the final rule harmonizes the penalty provision in 43 CFR 
8364.1 with current statutory authorities and makes several other 
changes that improve the final rule's organization and readability.
    The final rule does not itself close or restrict the use of any 
specific public land, nor will it require the BLM to issue any new or 
additional temporary closures or restrictions of public lands. Instead, 
the final rule makes administrative changes intended to modernize and 
streamline the procedures governing how the BLM issues temporary 
closure and restriction orders and, thereby, provides the public with 
better clarity about the scope of these orders and when they are 
effective. Under the final rule, the BLM will continue to consider 
other management strategies alongside or instead of temporary closures 
and restrictions including, but not limited to, increased law 
enforcement, cooperative efforts with local governments, engineering, 
education, and outreach.
    The final rule does not change any public participation 
requirements or opportunities. While the prior regulation required the 
BLM to publish temporary closure and restriction orders in the Federal 
Register, 43 CFR 8364.1 has never required the agency to solicit public 
feedback before temporarily closing or restricting the use of public 
lands. Under the final rule, public participation opportunities 
concerning temporary closure and restriction orders will continue to be 
governed by other laws including, but not limited to, NEPA, the Dingell 
Act, and the regulations implementing ANILCA. The final rule does not 
change or limit those opportunities or modify those authorities. For 
example, even though the final rule eliminates the Federal Register 
publication requirement in 43 CFR 8364.1, the BLM may still need to 
publish a Federal Register notice and provide the public with an 
opportunity to comment in accordance with section 4103 of the Dingell 
Act (16 U.S.C. 7913) if proposing to close public lands to hunting, 
fishing, or recreational shooting. The final rule does not, however, 
impose a requirement for the BLM to seek public feedback when not 
already required to do so by other legal authorities.
    Relatedly, the final rule does not diminish or eliminate the 
public's opportunity to challenge temporary closure or restriction 
orders, which will remain subject to appeal to the IBLA in accordance 
with 43 CFR part 4 or to judicial review in Federal court. The final 
rule, however, enhances the BLM's ability to protect persons, property, 
public lands, or resources in a timely fashion by making temporary 
closure and restriction orders effective immediately, pending a 
decision on appeal or judicial review or the issuance of an 
administrative or judicial stay.
    Each section of the final rule is discussed in further detail 
below.

B. Detailed Discussion

Paragraph (a)
    The final rule reorganizes paragraph (a) for readability, adds the 
word ``temporarily'' to clarify the nature of the closure and 
restriction orders that the BLM issues under 43 CFR 8364.1, and 
enumerates the situations in which the BLM may temporarily close or 
restrict the use of public lands; namely, to protect persons, property, 
public lands, or resources, to avoid conflict among public land users, 
and to ensure the privacy of Tribal activities for traditional or 
cultural use.
    The addition of the word ``temporarily'' is intended to 
differentiate temporary closures and restrictions issued under 43 CFR 
8364.1 from closures and restrictions that are established through the 
land use planning process. Closures and restrictions issued through the 
land use planning process are intended to be part of the BLM's long-
term management strategy for an area and remain in place until the BLM 
either revises or amends the applicable land use plan in accordance 
with 43 CFR part 1600. Temporary closure and restriction orders issued 
under the final rule, which are generally intended to address 
emergencies or unforeseen events or facilitate time-limited uses that 
require specific restrictions, serve a different and generally more 
limited purpose. For example, the BLM typically issues temporary 
closure and restriction orders under 43 CFR 8364.1 to facilitate time-
limited uses that require specific restrictions to avoid user conflicts 
or ensure public safety, privacy, or resource protection; to address 
emergencies that require timely responses; or to respond to events and 
circumstances that the BLM did not foresee when it was previously 
engaged in the land use planning process. Under the final rule, such 
orders are considered ``temporary'' in that they are implemented 
outside the land use planning process that typically guides how the BLM 
makes more long-term decisions. While the final rule requires the BLM 
to specify the time and date the closure or restriction imposed by such 
orders begins and ends, it does not impose any specific limitation on 
the duration that a temporary closure or restriction order may remain 
in place, nor does it prevent the BLM from issuing a new order that 
extends the time a temporary closure or restriction order is in effect, 
if necessary. Because not all situations requiring temporary closure or 
restriction orders will end within a preconceived timeframe, it may be 
necessary to issue a revised closure or restriction order to ensure the 
underlying situation has abated or the BLM has had an opportunity to 
address the situation in a longer-term fashion through the land use 
planning process.
    The final rule adds the phrase ``including roads, trails, and 
waterways'' for internal consistency with paragraph (b) and to clarify 
that public roads, trails, and waterways under the BLM's jurisdiction 
are components of public lands. This change is intended to be 
clarifying only and is not intended to expand the scope of the BLM's 
authority or alter its obligations under this regulation.
    The final rule revises paragraph (a) to provide that the BLM may 
issue temporary closure and restriction orders to avoid user conflicts 
on public lands. Although this authority was implicitly

[[Page 64393]]

contained in the existing provision authorizing the agency to issue 
temporary closure and restriction orders to protect persons, the final 
rule clarifies that such authority extends to issuing temporary closure 
and restriction orders to avoid user conflicts. As part of its 
multiple-use mission, the BLM is required to balance competing uses of 
the public lands. That task inherently requires the BLM to make 
judgments about incompatible uses and, at times, permit certain uses 
while prohibiting other, potentially conflicting, uses. For example, to 
avoid user conflicts during a permitted off-road race, the BLM might 
need to prohibit non-race uses of the course. The final rule clarifies 
that the BLM has authority to issue temporary closure and restriction 
orders to avoid such conflicts, thereby allowing the BLM to manage 
temporary user conflicts effectively and efficiently.
    The final rule revises paragraph (a) to provide that the BLM may 
issue temporary closure and restriction orders to ensure the privacy of 
Tribal activities for traditional or cultural use. Similar to the 
provision concerning the avoidance of user conflicts, the authority to 
temporarily close or restrict the use of public lands to ensure the 
privacy of Tribal activities for traditional or cultural use was 
implicitly contained in the existing provision authorizing the agency 
to issue temporary closure and restriction orders to protect persons. 
However, the BLM believes that authority should be made explicit given 
the Federal Government's unique trust responsibility to Tribal Nations 
in the stewardship of public lands and the direction in Secretarial 
Order 3403, which directs Department of the Interior bureaus and 
offices to ``manage Federal lands and waters in a manner that seeks to 
protect the treaty, religious, subsistence, and cultural interests of 
federally recognized Indian Tribes.'' Many Tribal Nations continue to 
use BLM-managed lands for traditional and cultural purposes, and in 
some cases those uses can be disrupted by simultaneous use by other 
members of the public. The final rule will help the BLM facilitate 
Tribal activities for traditional or cultural use on public lands 
without such disruptions.
    The proposed rule would have authorized the BLM to issue temporary 
closures and restrictions to ``provide for implementation of management 
responsibilities.'' The intent behind that proposal was to more closely 
align the BLM's temporary closure and restriction authority with the 
NPS's analogous regulation, which permits temporary closures and public 
use limits ``based upon a determination that such action is necessary 
for . . . implementation of management responsibilities.'' 36 CFR 
1.5(a). Moreover, the BLM intended inclusion of the phrase to more 
explicitly allow the BLM to temporarily close or restrict the use of 
public lands to facilitate construction, demolition, resource 
monitoring, invasive species control projects, and other typical 
management responsibilities in which the agency regularly engages. 
However, several commenters expressed concerns that the phrase 
``implementation of management responsibilities'' was vague and 
essentially removed all limits on the BLM's ability to close or 
restrict the use of public lands. The BLM agrees that the phrase, while 
commensurate with the BLM's authority to manage public lands under 
FLPMA, is potentially open to misinterpretation. Accordingly, the BLM 
has not included ``provide for implementation of management 
responsibilities'' as a reason for issuing a temporary closure or 
restriction order in the final rule. The deletion of the phrase from 
the final rule does not affect the BLM's ability to perform typical 
management responsibilities. Activities such as construction, 
demolition, resource monitoring, and invasive species control projects 
are already typically accompanied by a temporary closure or restriction 
order where necessary to protect persons, property, public lands, or 
resources. As a result, the BLM would still be able to issue such 
closures and restrictions under the authority that is included in the 
final rule.
Paragraph (b)
    Paragraph (b) of the final rule outlines the contents of temporary 
closure and restriction orders.
    The final rule revises paragraph (b)(1) to clarify that public 
roads, trails, or waterways are aspects of the public lands and, 
therefore, are subject to temporary closures or restrictions where 
appropriate. The prior text could arguably be interpreted to suggest 
that roads, trails, and waterways under the BLM's jurisdiction are not 
public lands, which is incorrect.
    The final rule revises paragraph (b)(3) to improve readability and 
clarify that each temporary closure and restriction order must state 
the date and time when it will become effective and the date and time 
when it will terminate. Including both of those dates and times will 
help clearly communicate to the public how long the BLM expects a 
temporary closure or restriction order to last. As noted above, 
however, temporary closure and restriction orders are occasionally 
issued to address situations that do not end or abate on a certain 
date. As a result, the final rule should not be understood to limit the 
BLM's authority to renew, extend, or modify temporary closures or 
restrictions. Where necessary, the BLM may renew, extend, or modify a 
temporary closure or restriction order by issuing a new order that 
contains different parameters following the same procedures that the 
agency uses to issue an order in the first instance.
    The final rule revises paragraph (b)(4) to clarify that the BLM can 
exempt groups or persons from a closure or restriction as circumstances 
warrant. For example, the BLM generally exempts Federal, State, and 
local officers and employees, as well as members of organized rescue or 
firefighting forces, from temporary closures and restrictions when 
necessary for them to perform their official duties. The BLM may also 
exempt Tribal members who may need to access an otherwise closed area 
for traditional or cultural uses. The final rule clarifies the BLM's 
authority to exempt such groups.
    The final rule moves former paragraphs (b)(5) and (6) to paragraph 
(c) to consolidate the notification requirements in one paragraph. 
Further revisions to those paragraphs are discussed below.
    The final rule renumbers and revises former paragraph (b)(7) to 
improve readability and for consistency with other provisions of the 
regulation. That revision is not intended to affect the BLM's duties 
under this regulation.
Paragraph (c)
    The final rule revises paragraph (c) by removing the requirement to 
publish temporary closure and restriction orders in the Federal 
Register and, instead, requires the BLM to alert the public by 
notifying local media outlets and posting information on at least one 
BLM-controlled publicly available online communication system. The 
final rule retains the requirements to post temporary closure and 
restriction orders at relevant BLM offices and at or near the closed or 
restricted area. This revision will allow the BLM to notify the public 
about temporary closure and restriction orders in a timelier fashion, 
which will enhance the agency's ability to effectively respond to 
emergencies and other unforeseen events. This change will provide the 
BLM with greater flexibility to ensure that the level of notice 
provided to the public is commensurate with the scale, location, and 
potential expediency of the closure or restriction.

[[Page 64394]]

    Although the Federal Register may have been an effective way to 
notify the public of access and use limitations when 43 CFR 8364.1 was 
promulgated in 1983, that is less true today, when tools to communicate 
with stakeholders and the public have become more numerous and direct. 
Government agencies have been increasingly using online systems, and 
new online systems are already evolving that may soon supersede or 
supplant those used today as the most effective means for informing 
public land users about government actions. The final rule is intended 
to describe the communication systems in common use today, while at the 
same time using sufficiently flexible language to account for new 
systems and rapidly emerging best practices in communications and 
public affairs. By intentionally incorporating flexibility into the 
wording of the final rule, the BLM hopes to avoid the need to update 
the rule again as communication methods and platforms continue to 
evolve.
    Under the final rule, the BLM may post notices on multiple BLM web 
pages, including national, state, district, and field office web pages. 
In other situations, more limited online notification may be 
appropriate. The final rule permits the BLM to use the best methods 
available to reach the public depending on the circumstances of the 
closure or restriction, which can vary widely. Members of the public 
will still have reliable ways to learn about temporary closures and 
restrictions, including through posts at the relevant BLM offices and 
closed or restricted areas, the BLM's online communication systems, 
such as web pages, and local media.
    The final rule's notification procedures will apply to all orders 
issued under 43 CFR 8364.1, including those unrelated to emergencies. 
Many commenters expressed that the agency should retain the Federal 
Register publication requirement for non-emergency temporary closure 
and restriction orders because they do not need to be issued urgently 
and, therefore, are not hindered by the time it takes to publish a 
notice in the Federal Register. While the BLM agrees that non-emergency 
situations may not always pose the same time constraints as emergency 
situations, it does not believe that imposing different notification 
procedures is necessary or prudent. Some situations may not clearly 
constitute an emergency but may nevertheless warrant a quick response. 
For example, if a dignitary unexpectedly visits public lands, it may be 
necessary for security reasons to issue a temporary closure or 
restriction order quickly. Similarly, maintenance needs at campgrounds 
and other facilities may arise that cannot be foreseen in advance but 
nevertheless warrant timely action by the BLM. In such situations, BLM 
managers should not delay taking action to protect persons, property, 
public land, or resources because they are concerned that the instant 
situation may not fall within a specific definition of ``emergency'' 
and, therefore, a related temporary closure or restriction order must 
be published in the Federal Register.
    The final rule is designed to avoid such situations by not 
requiring Federal Register publication in any circumstance and instead 
providing managers the discretion to publish certain temporary closure 
and restrictions in the Federal Register as circumstances warrant, such 
as when the closure or restriction affects an area with limited local 
media outlets and the BLM believes that Federal Register publication is 
necessary to adequately communicate the order's attendant limitations 
to the public. Additionally, in some circumstances, other authorities 
aside from this rule may require the BLM to publish temporary closure 
and restriction orders in the Federal Register. For example, section 
4103 of the Dingell Act may require the BLM to publish a Federal 
Register notice and provide the public with an opportunity to comment 
if proposing to close public lands to hunting, fishing, or recreational 
shooting. This final rule does not affect how the BLM complies with the 
Dingell Act or other authorities requiring Federal Register notices.
    Paragraph (c) of the final rule also incorporates the posting 
requirements that were previously included in paragraph (b) of 43 CFR 
8364.1. The internal reorganization is intended to consolidate the 
final rule's notification requirements in a single paragraph, which 
will make it easier for the public to understand how to learn about 
potential temporary closures and restrictions on public lands.
    Elimination of the requirement to publish temporary closure and 
restriction orders in the Federal Register will more closely align the 
BLM's regulatory authority to that of other land management agencies. 
The USFS's closure authority at 36 CFR 261.50 does not require Federal 
Register publication. Instead, it requires closure and restriction 
orders to be placed in the offices of the responsible Forest Supervisor 
and District Ranger and displayed in such locations and manner as to 
reasonably bring the prohibitions to the attention of the public. The 
NPS similarly does not need to publish closure and restriction orders 
in the Federal Register in a wide variety of situations, such as in 
emergencies or for closures or restrictions that will not result in a 
significant alteration in the public use pattern of a park area and 
will not adversely affect a park's natural, aesthetic, scenic, or 
cultural values. And 50 CFR 25.31 provides the FWS with discretion to 
determine the best way to notify the public where access and use has 
been temporarily curtailed. Eliminating the Federal Register 
publication requirement in 43 CFR 8364.1 will enhance the BLM's ability 
to coordinate with other Federal land management agencies (as well as 
Tribal, State, and local government agencies), especially in situations 
where the agencies manage adjacent or nearby lands.
Paragraph (d)
    The final rule adds a new paragraph (d), which authorizes the BLM 
to make temporary closure or restriction orders effective immediately. 
Prior to the final rule becoming effective, temporary closure and 
restriction orders issued under 43 CFR 8364.1 would typically not take 
effect during the 30-day period in which the order is appealable to the 
IBLA. However, emergencies and changing circumstances on public lands 
often require a quicker response, and the delay in a closure or 
restriction order taking effect has, in some cases, compromised the 
BLM's ability to carry out its mission and protect the public. To 
adequately meet the public's expectation for the BLM to protect health, 
safety, property, and resources, the agency needs the ability to issue 
temporary closure or restriction orders that are effective immediately 
when necessary. Under paragraph (d), temporary closure and restriction 
orders issued under 43 CFR 8364.1 will be effective upon issuance or a 
date and time established in the order. This change will enhance the 
BLM's ability to respond to emergencies and other unforeseen conditions 
while preserving the public's ability to appeal an order to the IBLA in 
accordance with 43 CFR part 4.
    Like the elimination of the Federal Register notice requirement 
discussed above, allowing the BLM to issue temporary closure and 
restriction orders with immediate full force and effect will make 43 
CFR 8364.1 more consistent with the closure and restriction authorities 
of the USFS, FWS, and NPS, all of which can issue temporary closure and 
restriction orders with immediate full force and effect. Aligning its 
authority with that of other land

[[Page 64395]]

management agencies will allow the BLM to be an effective partner and 
take more concerted action with those agencies.
Paragraph (e)
    Former paragraph (d) addressed the penalties for violating 
temporary closure and restriction orders. The final rule renumbers that 
paragraph and updates it to be consistent with current legal 
authorities. The Sentencing Reform Act of 1984, 18 U.S.C. 3571, which 
passed the year after 43 CFR 8364.1 was promulgated, authorizes fines 
that supersede those set out in FLPMA at 43 U.S.C. 1743. Under the 
final rule, the penalty provision will refer directly to 18 U.S.C. 
3571, which will make it less likely that the BLM will need to revise 
the rule if Congress updates 18 U.S.C. 3571 in the future. The final 
rule also revises the penalty provision to refer to 43 U.S.C. 1733, 
which sets out the BLM's enforcement authority under FLPMA. Notably, 
neither of these revisions effect a substantive change, as 43 CFR 
8364.1 has always been subject to these overarching statutory 
authorities. The change in the final rule is only intended to make the 
regulation reflect these statutory realities.

IV. Procedural Matters

Regulatory Planning and Review (Executive Orders 12866, 14094, and 
13563)

    E.O. 12866, as amended by E.O. 14094, provides that the Office of 
Management and Budget's (OMB) Office of Information and Regulatory 
Affairs (OIRA) will review all significant rules. OIRA has determined 
that the rule does not meet the criteria for significance under section 
3(f) of E.O. 12866, as amended by E.O. 14094.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the Nation's regulatory system to promote 
predictability, reduce uncertainty, and use the best, most innovative, 
and least burdensome tools for achieving regulatory ends. The E.O. 
directs agencies to consider regulatory approaches that reduce burdens 
and maintain flexibility and freedom of choice for the public where 
these approaches are relevant, feasible, and consistent with regulatory 
objectives. E.O. 13563 emphasizes further that regulations must be 
based on the best available science and that the rulemaking process 
must allow for public participation and an open exchange of ideas. The 
BLM has developed this final rule in a manner consistent with these 
requirements.
    The BLM reviewed the requirements of the final rule and determined 
that it 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. For more detailed information, see the 
Economic and Threshold analysis prepared for the final rule. This 
analysis has been posted in the docket for the final rule on the 
Federal eRulemaking Portal: https://www.regulations.gov. In the 
searchbox, enter ``RIN 1004-AE89'', click the ``Search'' button, open 
the Docket Folder, and look under Supporting Documents.

Federal Actions To Address Environmental Justice in Minority or Low-
Income Populations (E.O. 12898)

    E.O 12898 requires that, to the extent practicable and permitted by 
law, each Federal agency must make achieving environmental justice part 
of its mission. E.O. 12898 provides that each Federal agency conduct 
its programs, policies, and activities that substantially affect human 
health or the environment in a manner that ensures that such programs, 
policies, and activities do not have the effect of excluding persons 
(including populations) from participation in, denying persons 
(including populations) the benefits of, or subjecting persons 
(including populations) to discrimination under such programs, 
policies, and activities because of their race, color, or national 
origin.
    This final rule revises the process the BLM uses to issue temporary 
closure and restriction orders. The final rule is not self-executing, 
in that it does not, in and of itself, temporarily close or restrict 
the use of any public lands, and it is not expected to affect any 
particular population. Therefore, this final rule is not expected to 
negatively impact any community or cause any disproportionately high or 
adverse impacts to minority or low-income communities.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires that 
Federal agencies prepare a regulatory flexibility analysis for rules 
subject to the notice-and-comment rulemaking requirements under the 
Administrative Procedure Act (5 U.S.C. 500 et seq.), if the rule will 
have a significant economic impact, whether detrimental or beneficial, 
on a substantial number of small entities. See 5 U.S.C. 601-612. 
Congress enacted the RFA to ensure that government regulations do not 
unnecessarily or disproportionately burden small entities. Small 
entities include small businesses, small governmental jurisdictions, 
and small not-for-profit enterprises. The final rule will not have a 
significant impact on a substantial number of small entities. This 
certification is based on information contained in the economic and 
threshold analysis prepared for this rule. Therefore, neither a final 
regulatory flexibility analysis nor a small entity compliance guide is 
required.

Congressional Review Act

    Based upon the BLM's economic and threshold analysis, this final 
rule does not meet the criteria under 5 U.S.C. 804(2), the 
Congressional Review Act. This rule will not:
    (a) Have an annual effect on the economy of $100 million or more;
    (b) Cause a major increase in costs or prices for consumers, 
individual industries, Federal, State, or local government agencies, or 
geographic regions; and
    (c) Have significant adverse effects on competition, employment, 
investment, productivity, innovation, or the ability of U.S. based 
enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

    Under the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1531 et 
seq.), agencies must prepare a written statement about benefits and 
costs prior to issuing a proposed or final rule that may result in 
aggregate expenditure by State, local, and Tribal governments, or by 
the private sector, of $100 million or more in any one year.
    This final rule is not subject to the requirements under the UMRA. 
The final rule does not contain a Federal mandate that may result in 
expenditures of $100 million or more for State, local, and Tribal 
governments, in the aggregate, or to the private sector in any one 
year. The final rule will not significantly or uniquely affect small 
governments. A statement containing the information required by the 
UMRA is not required.

Takings (E.O. 12630)

    This final rule will not affect a taking of private property or 
otherwise have taking implications under E.O. 12630. The final rule 
will only affect the management of public lands. Accordingly, a takings 
implication assessment is not required.

Federalism (E.O. 13132)

    Under the criteria in section 1 of E.O. 13132, this final rule does 
not have

[[Page 64396]]

sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement. The final rule will not have 
substantial direct effects 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 BLM 
will coordinate with State and local governments, as appropriate, when 
deciding whether to temporarily close or restrict the use of public 
lands under this final rule. A federalism summary impact statement is 
not required.

Civil Justice Reform (E.O. 12988)

    This final rule complies with the requirements of E.O. 12988. 
Specifically, this final rule:
    (a) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

Consultation With Indian Tribes (E.O. 13175 and Departmental Policy)

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Indian Tribes through a 
commitment to consultation with Indian Tribes and recognition of their 
right to self-governance and Tribal sovereignty.
    In accordance with E.O. 13175, the BLM has evaluated this final 
rule and determined that it will not have substantial direct effects on 
federally recognized Indian Tribes. Nevertheless, the BLM consulted on 
a government-to-government basis with Tribal governments that wished to 
discuss the rule.
    On March 22, 2023, the BLM sent a letter to federally-recognized 
Indian Tribes and Alaska Native Corporations notifying them about the 
BLM's intent to pursue this proposed rulemaking. In that letter, the 
BLM invited the Tribes and Corporations to engage in government-to-
government consultation. Two Tribes requested additional information 
and engaged in consultation about aspects of the proposed rulemaking: 
one Tribe was concerned about the proposed rule and how it might affect 
management of lands for which the Tribe manages all surface rights; 
another Tribe shared that the proposed rule could play an important 
role in protecting Tribal cultural resources and facilitating cultural 
practices. In both cases, the consultation concluded with no 
objections, no requests to modify the proposed rule, and no requests 
for follow-up consultation.

Paperwork Reduction Act (44 U.S.C. 3501 et seq.)

    This final rule does not contain information collection 
requirements, and a submission to the OMB under the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et seq.) is not required.

National Environmental Policy Act

    The BLM has determined that the final rule is not a major Federal 
action significantly affecting the quality of the human environment. A 
detailed statement under NEPA is not required because the final rule is 
categorically excluded from further analysis or documentation in 
accordance with 43 CFR 46.210(i). That categorical exclusion covers 
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. The BLM has 
documented the applicability of the categorical exclusion concurrently 
with development of the final rule.
    The final rule is procedural and administrative in nature and, 
therefore, satisfies the first prong of Sec.  46.210(i). The final rule 
will not result in access being prohibited or use being restricted on 
any specific public lands. The final rule also will not limit or reduce 
any current public participation opportunities. The final rule 
clarifies the situations in which the agency may issue temporary 
closure and restriction orders, streamlines the administrative process 
through which the BLM issues and publicizes temporary closure and 
restriction orders, and updates the penalty provision in Sec.  8364.1 
to align with current statutory authority. When the BLM considers using 
the final rule to issue a temporary closure or restriction order, the 
agency will need to comply with NEPA and other applicable laws, 
including those requiring public participation.
    The final rule also satisfies the second prong of 43 CFR 46.210(i). 
As noted above, the final rule does not prohibit access or restrict use 
of any specific public lands, and the potential environmental effects 
of future orders issued under the final rule that do prohibit access or 
restrict the use of public land are too speculative and conjectural to 
lend themselves to meaningful analysis at this time. However, the 
effects of such orders will be individually subject to NEPA prior to 
being authorized.
    The BLM has determined that the final rule does not involve any of 
the extraordinary circumstances listed in 43 CFR 46.215 that require 
further analysis under NEPA.

Effects on the Energy Supply (E.O. 13211)

    Federal agencies must prepare and submit to OMB a Statement of 
Energy Effects for any proposed significant energy action. A 
``significant energy action'' is defined as any action by an agency 
that: (1) Is a significant regulatory action under E.O. 12866, or any 
successor order; (2) Is likely to have a significant adverse effect on 
the supply, distribution, or use of energy; or (3) Is designated by the 
Administrator of OIRA as a significant energy action. The final rule is 
not a significant action within the meaning of E.O. 12866 or any 
successor order. The final rule does not affect energy supply or 
distribution. Accordingly, a statement of energy effects is not 
required.

Authors

    The principal authors of this final rule are: David Jeppesen, Cory 
Roegner, Kevin Oliver, and Greg Wolfgang, Recreation and Visitor 
Services; Nicole Hanna, Tribal Relations; Russell Scofield and Sandra 
McGinnis, National Experienced Workforce Solutions; Brittney Rodrigues, 
Regulatory Affairs; Rebecca Moore and Jeff Childers, Decision Support, 
Planning and NEPA; Heather Feeney, Public Affairs; Stephanie Rice and 
Pat Johnston, Wildlife, Aquatics and Environmental Protection; Stacy 
Silvester and Carmen Drieling, Forest, Rangeland and Vegetation 
Resources; Ernesto Felix, Law Enforcement and Security; assisted by the 
Office of the Solicitor.

Signing Authority

    This action by the Principal Deputy Assistant Secretary is taken 
pursuant to an existing delegation of authority.

Steven H. Feldgus,
Principal Deputy Assistant Secretary, Land and Minerals Management.

List of Subjects in 43 CFR Part 8360

    Penalties, Public lands, Recreation and recreation areas.
    For the reasons set out in the preamble, the Bureau of Land 
Management amends 43 CFR part 8360 as follows:

[[Page 64397]]

PART 8360--VISITOR SERVICES

0
1. The authority citation for part 8360 continues to read as follows:

    Authority: 16 U.S.C. 470aaa, et seq.; 670, et seq.; 877, et 
seq.; 1241, et seq.; and 1281c; and 43 U.S.C. 315a and 1701 et seq.

0
2. Revise Sec.  8364.1 to read as follows:


Sec.  8364.1  Temporary closure and restriction orders.

    (a) The authorized officer may issue an order to temporarily close 
or restrict the use of designated public lands, including roads, 
trails, and waterways, to protect persons, property, public lands, or 
resources; avoid conflict among public land users; or ensure the 
privacy of Tribal activities for traditional or cultural use.
    (b) Each order shall:
    (1) Identify the public lands, including roads, trails, or 
waterways, that are closed to entry or restricted as to use;
    (2) Specify the uses that are restricted;
    (3) Specify the date and period of time that the closure or 
restriction order will become effective and the date and time that the 
order will terminate;
    (4) Identify any persons or groups who are exempt from the closure 
or restriction; and
    (5) Identify the reasons for the closure or restriction.
    (c) When issuing closure or restriction orders pursuant to this 
section, the authorized officer shall provide public notice by:
    (1) Posting the order in a Bureau of Land Management (BLM) Office 
having jurisdiction over the public lands, including roads, trails, or 
waterways, to which the order applies;
    (2) Posting the order at places near or within the area to which 
the closure or restriction applies, in such manner and location as is 
reasonable to bring prohibitions to the attention of users;
    (3) Notifying local media outlets; and
    (4) Posting information on at least one BLM-controlled, publicly 
available online communication system.
    (d) Notwithstanding any contrary provisions in part 4 of this 
title, the authorized officer will provide that orders issued pursuant 
to this section will be effective upon issuance or at a date and time 
established in the order. If appealed, such orders shall remain in 
effect pending the decision on appeal unless a stay is granted.
    (e) Any person who violates a temporary closure or restriction 
order may be tried before a United States magistrate and fined in 
accordance with 18 U.S.C. 3571, imprisoned no more than 12 months under 
43 U.S.C. 1733(a) and Sec.  8360.0-7, or both.

[FR Doc. 2024-17065 Filed 8-6-24; 8:45 am]
BILLING CODE 4331-30-P