02-24610. Rights-of-Way Under the Mineral Leasing Act; Timing of Approvals

AGENCY:

Bureau of Land Management, Interior.

ACTION:

Final rule.

SUMMARY:

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

EFFECTIVE DATE:

This final rule is effective November 29, 2002.

FOR FURTHER INFORMATION CONTACT:

Michael H. Schwartz, Manager, Regulatory Affairs Group at [phone]. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service at 1-800-877-8339, 24 hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

II. Final Rule as Adopted and Response to Comment

III. Procedural Matters

I. Background and Purpose

Why Is BLM Implementing This Rule?

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

On June 15, 1999 (64 FR 32106) we proposed a major revision to part 2880 of our regulations and intend to publish the final rule within the year. The pertinent part of proposed section 2884.23 included the following language (see 64 FR 32141):

§ 2884.23

When will BLM issue the grant or permit?

If the grant involves:

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

The purpose of today's rulemaking is to ensure that BLM may issue grants for pipelines 24 inches or more in diameter as soon as we notify the Congress without being in violation of our own regulations. This final rule avoids the possibility that BLM will issue a right-of-way grant in a way that violates our own rules. At the same time, the rule follows explicit statutory direction.

Although we expect to issue comprehensive right-of-way rules before the end of the year, it is not certain we will. This section applies to all Federal right-of-way grants for pipelines 24 inches or more in diameter, including the Trans Alaska Pipeline (TAP) right-of-way grant renewal. It is important that today's change is in effect no later than January 22, 2004. At that time the original Federal TAP right-of-way grant will expire.

While we will complete processing the application for renewing the TAP right-of-way grant before the original right-of-way grant expires, it is possible that we will be unable to do so and notify Congress 60 days prior to the expiration of the original grant. If this were to occur, the current regulations would require us to shut the pipeline or issue a temporary use permit. The former is not realistic; the latter an unnecessary burden on both the pipeline company and ourselves. Therefore, we are choosing to expedite issuance of this provision of the comprehensive rule we proposed in 1999.

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

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

II. Final Rule as Adopted and Response to Comment

The final rule differs from the proposed rule in that we change the wording from “notify the Congress” to “notify the appropriate committees of Congress in accordance with 30 U.S.C. 185(w).” This change is intended to be more consistent with the intent of Congress which named the House Committee on Interior and Insular Affairs and the Senate committee on Energy and Natural Resources as the places where BLM should send notification. In fact, the House Committee on Interior and Insular Affairs is now named the House Resources Committee. Because committee names and functions change, we believe it prudent to substitute the term “appropriate committees” for the names of specific committees. This does not sacrifice clarity because the committee with jurisdiction is readily understood by those with a continuous interest in these issues and individuals having a unique or occasional interest in pipeline issues may easily obtain the information. Moreover, the phrase “in accordance with 30 U.S.C. 185(w)” better conveys the notion that BLM's notice to Congress will be accompanied by the Secretary's or agency head's detailed findings as to the terms and conditions to be proposed, as required by 30 U.S.C. 185(w).

We also renumbered the final rule to fit into BLM's existing regulatory structure in our part 2880 right-of-way regulations.

We received a single comment on proposed section 2884.23, which asked why BLM would “refer” the application to the Committee and noted that the word “notify” has a meaning distinct from “refer.” The commenter is correct and the change we are making today reflects that concern.

III. Procedural Matters

Executive Order 12866, Regulatory Planning and Review

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

Executive Order 12866, Clarity of the Regulations

Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to such questions as the following:

1. Are the requirements in the rule clearly stated?

2. Does the rule contain technical language or jargon that interferes with its clarity?

3. Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity?

4. Would the rule be easier to understand if it were divided into more (but shorter) sections?

5. Is the description of the rule in the SUPPLEMENTARY INFORMATION section of this preamble helpful in understanding the rule? How could this description be more helpful in making the regulation easier to understand?

Send a copy of any comments that say how we could make this rule easier to understand to: Director (630), Bureau of Land Management, Administrative Record, Eastern States Office, 7450 Boston Boulevard, Springfield, Virginia 22153, Attention: RIN 1004-AD55.

National Environmental Policy Act

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

Regulatory Flexibility Act

Congress enacted the Regulatory Flexibility Act of 1980, as amended (5 U.S.C. 601-612) (RFA), to ensure that government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities.

The regulation merely allows BLM to issue certain grants 60 days sooner than current regulations allow and therefore will not have a significant economic impact on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million or more.

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. The rule would not affect costs or prices for consumers since the actions associated with the rule would have minimal economic impact on the industry.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

The rule is strictly administrative in nature and will not have an economic impact on any of the above.

Unfunded Mandates Reform Act

The regulation does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year; nor does the regulation have a significant or unique effect on State, local, or tribal governments or the private sector. The regulation merely allows BLM to issue certain grants 60 days sooner than previous regulations allowed. Therefore, BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.).

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

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

Executive Order 13132, Federalism

The rule will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. The rule is strictly administrative in nature. Therefore, in accordance with Executive Order 13132, BLM has determined that this rule does not have sufficient Federalism implications to warrant preparation of a Federalism Assessment.

Executive Order 12988, Civil Justice Reform

Under Executive Order 12988, the Office of the Solicitor has determined that this rule would not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order.

Executive Order 13175, Consultation and Coordination With Indian Tribal Governments

In accordance with Executive Order 13175, BLM finds that this rule does not include policies that have tribal implications.

Any consultations with tribes that are necessary for approving a right-of-way grant under our regulations will occur before we notify Congress.

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

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

Paperwork Reduction Act

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

Authors

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

List of Subjects for 43 CFR Part 2880

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

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

Dated: September 13, 2002.

Rebecca W. Watson,

Assistant Secretary, , Land and Minerals Management.

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

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

Authority: 30 U.S.C. 185.

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

§ 2882.3

Application processing.

(a) If the grant involves a pipeline 24 inches or more in diameter, BLM will not issue or renew the grant until after we notify the appropriate committees of Congress in accordance with 30 U.S.C. 185(w).

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