[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Pages 32351-32354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15994]
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Part 2920
[WO-350-1430-00-24 1A; Circular No. 2661]
RIN 1004-AB51
Leases, Permits, and Easements; Effective Dates of Permit
Decisions; Appeal Procedure
AGENCY: Bureau of Land Management, Interior.
ACTION: Final rule.
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SUMMARY: This final rule amends the general lease and permit
regulations of the Bureau of Land Management (BLM). It provides that
BLM general use, occupancy, and development permit decisions will take
effect immediately if the contemplated uses meet the requirements for
minimum impact permits under the existing regulations. Permits issued
under such decisions will remain in effect during the pendency of any
appeal to the Interior Board of Land Appeals (IBLA), unless IBLA stays
the decision. The regulatory text in the rule pertains only to minimum
impact permits. If a proposed use does not satisfy the requirements for
a minimum impact permit under the existing regulations (that is, if the
proposed use would conflict with BLM plans, policies, and programs for
the affected lands, or local zoning ordinances, or cause appreciable
damage to public lands or resources or improvements), the requested
permit would not qualify as a minimum impact permit and the provision
adopted today would not apply. In such a case, BLM would not issue a
permit until the applicant meets all the requirements contained in the
existing regulations. Appeals of permits other than minimum impact
permits are not affected by this final rule. Similarly, appeals of BLM
lease decisions are not affected by this rule. These appeals of BLM
decisions to issue leases and non-minimum impact permits will continue
to be governed by the general appeal procedures of the Department of
the Interior, and the use authorizations appealed will not take
immediate effect under this rule. The amendments to the appeals process
in this final rule are needed to avoid delays in BLM's issuance of
permits for environmentally benign public land uses.
EFFECTIVE DATE: July 24, 1996.
ADDRESSES: You may send inquiries or suggestions to: Director (350),
Bureau of Land Management, 1849 C Street, NW, Washington, D.C. 20240.
FOR FURTHER INFORMATION CONTACT: Vanessa Engle, as to the permit
program, (202) 452-7776, or Jeff Holdren, as to the rule or the permit
program, (202) 452-7779.
SUPPLEMENTARY INFORMATION:
I. Background
II. Final Rule and Response to Comments
III. Procedural Matters
I. Background
A. Summary of the Bureau of Land Management Permit Program
The existing regulations in 43 CFR part 2920 contain procedures for
many types of land users to obtain authorizations in the form of
permits, leases, and easements to use, occupy, and develop public lands
and their resources. BLM's statutory authority to allow these uses is
found in Section 302 of the Federal Land Policy and Management Act of
1976 (43 U.S.C. 1732) (FLPMA). BLM's general authority for issuing
regulations is found in Section 310 of FLPMA (43 U.S.C. 1740). This
final rule relates only to permits issued for uses causing minimal
environmental impacts on lands and resources, and does not pertain to
leases, easements, or other permits.
BLM authorizes only those uses that conform to applicable law, and
to BLM plans, policies, objectives, and resource management programs.
Permits are normally issued for short-term uses that do not exceed 3
years. (Uses with terms shorter than 3 years but involving heavier
impacts may require leases.) Permits are required for activities that
disrupt normal visitor activity or other authorized uses, or involve
the placement, storage, or use of temporary structures or facilities,
or materials or equipment. BLM may terminate a permit immediately for
noncompliance, or to allow another disposition or use of the lands.
Typical uses requiring permits under these regulations are equipment
storage, beekeeping, motion picture and advertising photography, and
scientific research. The regulations in part 2920 do not cover specific
activities governed by other regulations in this title, such as grazing
(43 CFR part 4100), mining (parts 3700 and 3800), mineral leasing
(parts 3100, 3200, 3400, and 3500), mineral material sales (part 3600),
and timber sales (part 5400). Also, certain activities require no
authorization, such as still photography not intended for advertising
purposes. There is no need to apply for a permit or lease for such
activities.
Section 2920.2-2 authorizes the issuance of permits for activities
that cause no appreciable impacts on the public lands, their resources
or
[[Page 32352]]
improvements. If a proposed use qualifies for a minimum impact permit
under section 2920.2-2, BLM is not required to publish a notice of
realty action under section 2920.4.
B. Proposed Rules
The final rule published today is a stage of a rulemaking process
that will culminate in the comprehensive revision of the lease and
permit regulations in 43 CFR part 2920. The rule published today
addresses only the effective date of minimum impact land use permits.
This rule was preceded by publication of two proposed rules, the first
proposing to revise the entire part 2920, and the second proposing to
amend the part by adding new provisions or changing previously proposed
provisions.
The first proposed rule was published in the Federal Register on
November 21, 1990 (55 FR 48810). This proposed rule was intended to
streamline the land use approval process by removing a category of
authorizations (easements) and cumbersome administrative procedures.
The BLM invited public comments for 60 days, and received comments from
16 sources: 10 from offices of Federal agencies, 2 from business
entities, 1 from an association, and 3 from State government agencies.
After the public comment period closed, a controversy arose
concerning issuance of filming permits. Some parties expressed concerns
about potential environmental degradation related to commercial
activities, particularly permits for feature films. Other parties,
primarily filmmakers and those who provide services to them, including
State and local government agencies, objected to provisions that allow
delay when parties file administrative appeals of film permits.
The BLM published a further proposed rule in the Federal Register
on February 9, 1995 (60 FR 7878), which was intended to allow more
expeditious processing and issuance of permits. It also would have
provided for immediate implementation of certain types of permits. The
further proposed rule designated two categories of permits: ``minimum
impact permits'' and ``full permits.'' ``Minimum impact permits'' were
to be issued for activities having a minimal impact on the public lands
and their resources. These permits were to become effective immediately
upon execution by the BLM authorized officer and were not to be subject
to the general stay process in 43 CFR 4.21(a). ``Full permit''
decisions (and also lease issuance decisions) would have remained
subject to the 43 CFR 4.21 stay provisions. The further proposed rule
contained a set of criteria for determining when a full permit would be
required.
The BLM sought public response in the further proposed rule to
specific questions relating to permits and rental schedules. Only the
first question related to appeals, and is discussed below. The
remaining questions will be discussed when the final rule revising part
2920 is published. The first question read as follows:
1. Under the existing regulations, all permits and leases are
subject to a 30-day appeal period before they become effective. The
1990 proposed rule would make all leases and permits effective
immediately upon issuance by the BLM authorized officer. Under the
1995 further proposed rule, only minimum impact permits would be
effective immediately; leases and other permits would remain subject
to the 30-day waiting period prescribed in 43 CFR part 4. Which
approach do you think is appropriate?
The overwhelming public response to this question urged that all
permits and leases be effective immediately. This final rule adopts
this recommendation only as to the minimum impact permits provided for
in section 2920.2-2 of the regulations in the 1995 and earlier editions
of 43 CFR. General land use leases, and permits with more than minimal
effects, will remain subject to 43 CFR 4.21.
In the further proposed rule, BLM also invited public comment on
several other provisions that were not in the original proposed rule.
The further proposed rule would have added rental and fee schedules for
commercial filming and photography, and would have addressed hazardous
materials, outdoor advertising, criminal penalties, and conforming
applications to land use planning. The BLM will resolve these issues in
its forthcoming final rule revising part 2920.
The BLM received approximately 800 comments on the further proposed
rule from the filming and photography industries, State and local
government agencies, individuals and environmental organizations. The
great majority of the public comments opposed the further proposed rule
as overly complex, specific, and burdensome.
II. Final Rule and Response to Comments
New section 2920.0-9
This section explains the information collection requirements
contained in part 2920, and is added in the final rule to comply with
the publication requirements of the Code of Federal Regulations. The
material in this section appeared in the 1995 and earlier editions of
43 CFR as a ``Note'' at the beginning of Group 2900, and in the
preamble to the original proposed rule published on November 21, 1990.
This material must appear in the regulation text.
Amended section 2920.2-2 Minimum impact permits.
New paragraph 2920.2-2(b) is added to cover appeals of minimum
impact permit decisions. Appeals were provided for in subpart 2924 in
the 1990 proposed rule. In the further proposed rule, part 2920 was
reorganized so that section 2921.8 pertained to appeals. Designation of
the appeals section in the rule adopted today is dictated by the
organization of part 2920 as presently constituted. Existing section
2920.2 is an umbrella heading addressing public-initiated land use
proposals. Existing section 2920.2-2 allows the issuance of minimum
impact permits in appropriate circumstances. New paragraph 2920.2-2(b)
covers appeals of decisions on these permits and makes it clear that
its provisions pertain only to minimum impact permits issued under
section 2920.2-2. This final rule does not affect appeals of penalties
for unauthorized use and appeals of determinations that land use
proposals do not conform to approved land use plans. New paragraph
2920.2-2(b) may be renumbered and amended when a comprehensive final
rule revising part 2920 is published.
The final rule published today provides that all BLM permit
decisions made under section 2920.2-2 will be effective immediately and
remain in effect during the time allowed for filing an administrative
appeal to the IBLA. Section 2920.2-2 applies only to land uses that
have minimum impacts on the public lands and resources. To meet this
standard, the use must be in conformance with BLM resource management
plans or other plans for the particular lands affected, and with BLM
policies and programs. The use must also conform with local zoning
ordinances and all other legal requirements, including the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). The
permitted use must not cause appreciable damage or disturbance to
public lands, their resources or improvements. The BLM will not grant a
permit under section 2920.2-2 if the permit proposal fails to meet any
one of these requirements.
Lease applications, and permit proposals that do not meet the
minimum impact standards stated in section 2920.2-2, are not effective
immediately upon issuance. For example, if BLM finds that the proposed
[[Page 32353]]
use does not conform to resource management plans, or local zoning, BLM
does not authorize the use until the procedures contained in the
remainder of part 2920 have been followed and until the applicant meets
its requirements.
Based on its recent experience in administering the film permit
program, the BLM expects that the great majority of permits issued
under part 2920 will meet the standards set forth in section 2920.2-2,
and that problems arising during the consideration of these permits
will be resolved by consultation among BLM, the applicant, and other
interested persons. In some instances, a person may wish to appeal and
seek a stay of BLM's decision to issue a permit under section 2920.2-2
until the appeal is resolved. When the appeal is filed, the procedures
in 43 CFR 4.21(b) will be applicable. However, the permit issued will
remain in effect until IBLA grants a stay.
Most respondents addressing the date a permit would become
effective in the further proposed rule wanted all permits to be made
effective immediately and to remain in effect while an administrative
appeal is pending. Respondents emphasized the need to rely on the
discretion of local BLM managers to gather data and make an informed
decision, while complying with the National Environmental Policy Act of
1969 (NEPA) (42 U.S.C. 4321 et seq.), and other environmental laws. As
stated earlier, BLM anticipates that, under the final rule, most
permits will meet the requirements for minimum impact permits in
section 2920.2-2(a), and will be issued in full force and effect under
section 2920.2-2(b).
One respondent suggested that the rule should provide appellants
the option of petitioning the State Director for a stay, before
appealing to IBLA, to allow a more expeditious remedy. The BLM has not
adopted this suggestion in the final rule because it would create an
unnecessarily cumbersome and burdensome bureaucratic step in the permit
appeal process.
Finally, an editorial amendment is made in section 2920.2-2 as it
appeared in the 1995 and earlier editions of 43 CFR. This section is
redesignated as paragraph (a) in the rule published today. Because
``permit'' is defined as an authorization in section 2920.0-5, the word
``authorization'' in the phrase ``permit for a land use authorization''
is redundant and has been removed in this final rule.
III. Procedural Matters
The principal author of this final rule is Jeff Holdren of the Use
Authorization Team, BLM, Washington, DC.
The BLM has determined in an environmental analysis that this final
rule does not constitute a major Federal action significantly affecting
the quality of the human environment, and that no detailed statement
pursuant to section 102(2)(C) of the National Environmental Policy Act
of 1969 (42 U.S.C. 4332(2)(C)) is required. The rule merely simplifies
and streamlines the permit process for uses found to have minimum
environmental impact. Under this rule, all applications for permits or
leases remain subject to environmental analysis, and if an
environmental impact statement is necessary, minimum impact permits
will not be issued.
This rule was not subject to review by the Office of Management and
Budget under Executive Order 12866.
The rule will have little effect on costs or prices for consumers,
nor will there be a need for increasing Federal, State, or local agency
budget or personnel requirements. By promulgating regulations that
merely streamline the permit issuance process, the rule will result in
little or no change in revenue for the United States, although improved
efficiency should reduce administrative costs. Any revenue changes
realized would not have a measurable impact on the economy and would
not approach $100 million annually. The rule will have no other
expected economic effects and contain no increased costs to the United
States or users of the public lands.
For the same reasons, the Department has determined under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) that the rule will
not have a significant economic impact on a substantial number of small
entities. The rule favors no demographic group, and imposes no direct
or indirect costs on small entities. It merely expedites the process of
issuing permits.
Because the rule will result in no taking of private property and
no impairment of property rights, the Department certifies that this
rule does not represent a governmental action capable of interference
with constitutionally protected property rights, as required by
Executive Order 12630.
BLM has determined that this rule is not significant under the
Unfunded Mandates Reform Act of 1995, because it will not result in the
expenditure by State, local, and tribal governments, in the aggregate,
or by the private sector, of $100 million or more in any one year, as
stated above.
This rule does not contain information collection requirements that
require approval by the Office of Management and Budget under 44 U.S.C.
3501 et seq..
List of Subjects in 43 CFR Part 2920
Public lands, Reporting and recordkeeping requirements.
Dated: June 5, 1996.
Sylvia V. Baca,
Acting Assistant Secretary of the Interior.
Under the authority of Sections 102, 302, 303, 304, and 310 of the
Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701, 1732,
1733, 1734 and 1740) part 2920, Group 2900, Subchapter B, Chapter II of
the Code of Federal Regulations, is amended as follows:
PART 2920--LEASES, PERMITS AND EASEMENTS
1. The Note at the beginning of Group 2900 is removed.
2. The authority citation for part 2920 is revised to read as
follows:
Authority: 43 U.S.C. 1740.
3. Section 2920.0-9 is added to read as follows:
Sec. 2920.0-9 Information collection.
(a) The information collection requirements contained in Part 2920
have been approved by the Office of Management and Budget under 44
U.S.C. 3501 et seq., and assigned clearance number 1004-0009. The BLM
will use the information in considering land use proposals and
applications. You must respond to obtain a benefit under Section 302 of
the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1732).
(b) Public reporting burden for this information is estimated to
average 7.43 hours, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.
Send comments regarding this burden estimate or any other aspect of
this collection of information, including suggestions for reducing the
burden, to the Information Collection Clearance Officer, Bureau of Land
Management (DW-101), Building 50, Denver Federal Center, P.O. Box
25047, Denver, Colorado 80225, and to the Office of Management and
Budget, Paperwork Reduction Project, 1004-0009, Washington, D.C. 20503.
4. Section 2920.2-2 is amended by redesignating the existing text
as
[[Page 32354]]
paragraph (a), by removing the word ``authorization'' from paragraph
(a), and by adding paragraph (b) to read as follows:
Sec. 2920.2-2 Minimum impact permits.
* * * * *
(b) Permit decisions made under paragraph (a) of this section take
effect immediately upon execution, and remain in effect during the
period of time specified in the decision to issue the permit. Any
person whose interest is adversely affected by a decision to grant or
deny a permit under paragraph (a) of this section may appeal to the
Board of Land Appeals under part 4 of this title. However, decisions
and permits issued under paragraph (a) of this section will remain in
effect until stayed.
[FR Doc. 96-15994 Filed 6-21-96; 8:45 am]
BILLING CODE 4310-84-P
