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[Federal Register: April 26, 2011 (Volume 76, Number 80)]
[Rules and Regulations]               
[Page 23198-23205]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26ap11-12]                         

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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Parts 2090 and 2800

[WO 300-1430-PQ]
RIN 1004-AE19

 
Segregation of Lands--Renewable Energy

AGENCY: Bureau of Land Management, Interior.

ACTION: Notice of interim temporary final rule and opportunity to 
comment.

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SUMMARY: The Bureau of Land Management (BLM) is issuing this interim 
temporary final rule (Interim Rule) to amend the BLM's regulations 
found in 43 CFR parts 2090 and 2800 by adding provisions allowing the 
BLM to temporarily segregate from the operation of the public land 
laws, by publication of a Federal Register notice, public lands 
included in a pending or future wind or solar energy generation right-
of-way (ROW) application, or public lands identified by the BLM for a 
potential future wind or solar energy generation ROW authorization 
under the BLM's ROW regulations, in order to promote the orderly 
administration of the public lands. If segregated under this rule, such 
lands will not be subject to appropriation under the public land laws, 
including location under the Mining Law of 1872 (Mining Law), but not 
the Mineral Leasing Act of 1920 (Mineral Leasing Act) or the Materials 
Act of 1947 (Materials Act), subject to valid existing rights, for a 
period of up to 2 years. This Interim Rule is effective immediately 
upon publication in the Federal Register for a period not to exceed 2 
years after publication, but public comments received within 60 days of 
the publication of this rule will be considered by the BLM. Any 
necessary changes will be made to the Interim Rule. The BLM is also 
publishing in today's Federal Register a proposed rule that would make 
this segregation authority permanent. At the completion of the notice 
and comment rulemaking process for the proposed rule, or at the end of 
2 years, whichever occurs first, this Interim Rule will expire.

DATES: Effective date: The Interim Rule is effective April 26, 2011 
through April 26, 2013.
    Comment deadline: You should submit your comments on the Interim 
Rule on or before June 27, 2011. The BLM need not consider, or include 
in the administrative record for the Interim Rule, comments that the 
BLM receives after the close of the comment period or comments 
delivered to an address other than those listed below (see ADDRESSES).

ADDRESSES: Mail: Director (630), Bureau of Land Management, U.S. 
Department of the Interior, 1849 C St., NW., Washington, DC 20240, 
Attention: 1004-AE19. Personal or messenger delivery: U.S. Department 
of the Interior, Bureau of Land Management, 20 M Street, SE., Room 
2134LM, Attention: Regulatory Affairs, Washington, DC 20003. Federal 
eRulemaking Portal: http://www.regulations.gov. Follow the instructions 
at this Web site.

FOR FURTHER INFORMATION CONTACT: Ray Brady at (202) 912-7312 or the 
Division of Lands, Realty, and Cadastral Survey at (202) 912-7350 for 
information relating to the BLM's renewable energy program or the 
substance of the Interim Rule, or Ian Senio at (202) 912-7440 for 
information relating to the rulemaking process generally. Persons who 
use a telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 1-800-877-8339, 24 hours a day, 
seven days a week to contact the above individuals.

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures
II. Background
III. Section-by-Section Analysis
IV. Procedural Matters

I. Public Comment Procedures

    While this Interim Rule is effective immediately upon publication 
in the Federal Register, the BLM still seeks the public's input and 
will consider any comments on the Interim Rule received within 60 days 
after the date of publication (see DATES).\1\ If the BLM

[[Page 23199]]

determines that substantive comments received during the comment period 
warrant it, the BLM may issue a further interim temporary final rule to 
address those comments and make any necessary changes. Any further 
interim temporary final rule would still be subject to the 2-year 
effective period as of the date of publication for this Interim Rule.
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    \1\ As noted above, the BLM has also published, concurrently 
with this Interim Rule, a proposed rule that would make permanent 
the segregation authority included here. There will be a separate 
opportunity for public comment on the proposed rule as outlined in 
the Federal Register notice for that rule.
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    If you wish to comment, you may submit your comments by one of 
several methods:
    You may mail comments to Director (630) Bureau of Land Management, 
U.S. Department of the Interior, Mail Stop 2143LM, 1849 C St., NW., 
Washington, DC 20240, Attention: 1004-AE19.
    You may deliver comments to U.S. Department of the Interior, Bureau 
of Land Management, 20 M Street, SE., Room 2134LM, Attention: 
Regulatory Affairs, Washington, DC 20003; or
    You may access and comment on the Interim Rule at the Federal 
eRulemaking Portal by following the instructions at that site (see 
ADDRESSES).
    Written comments on the Interim Rule should be specific, should be 
confined to issues pertinent to the Interim Rule, and should explain 
the reason for any recommended change. Where possible, comments should 
reference the specific section or paragraph of the Interim Rule that 
the comment is addressing.
    The BLM need not consider or include in the Administrative Record 
for the Interim Rule comments that we receive after the close of the 
comment period (see DATES) or comments delivered to an address other 
than those listed above (see ADDRESSES). Comments, including names and 
street addresses of respondents, will be available for public review at 
the U.S. Department of the Interior, Bureau of Land Management, 20 M 
Street, SE., Room 2134LM, Division of Regulatory Affairs, Washington, 
DC 20003 during regular hours (7:45 a.m. to 4:15 p.m.) Monday through 
Friday, except holidays. They will also be available at the Federal 
eRulemaking Portal http://www.regulations.gov. Follow the instructions 
at this Web site.
    Before including your address, telephone number, e-mail address, or 
other personal identifying information in your comment, be advised that 
your entire comment--including your personal identifying information--
may be made publicly available at any time. While you can ask in your 
comment to withhold your personal identifying information from public 
review, we cannot guarantee that we will be able to do so.

II. Background

    Congress has directed the Department of the Interior (Department) 
to facilitate the development of renewable energy resources. Promoting 
renewable energy is one of this Administration's and this Department's 
highest priorities. In Section 211 of the Energy Policy Act of 2005 
(119 Stat. 660, Aug. 8, 2005) (EPAct), Congress declared that before 
2015 the Secretary of the Interior should seek to have approved non-
hydropower renewable energy projects (solar, wind, and geothermal) on 
public lands with a generation capacity of at least 10,000 megawatts 
(MW) of electricity. Even before the EPAct was enacted by Congress, 
President Bush issued Executive Order 13212, ``Actions to Expedite 
Energy-Related Projects'' (May 18, 2001), which requires Federal 
agencies to expedite the production, transmission, or conservation of 
energy.
    After passage of the EPAct, the Secretary of the Interior issued 
several orders emphasizing the importance of renewable energy 
development on public lands. On January 16, 2009, Secretary Kempthorne 
issued Secretarial Order 3283, ``Enhancing Renewable Energy Development 
on the Public Lands,'' which states that its purpose is to 
``facilitate[ ] the Department's efforts to achieve the goal Congress 
established in Section 211 of the * * * [EPAct] to approve non-
hydropower renewable energy projects on the public lands with a 
generation capacity of at least 10,000 megawatts of electricity by 
2015.'' The order also declared that ``the development of renewable 
energy resources on the public lands will increase domestic energy 
production, provide alternatives to traditional energy resources, and 
enhance the energy security of the United States.''
    Approximately 1 year later, Secretary Salazar issued Secretarial 
Order 3285A1, ``Renewable Energy Development by the Department of the 
Interior'' (Feb. 22, 2010), which reemphasized the development of 
renewable energy as a priority for the Department. The order states: 
``Encouraging the production, development, and delivery of renewable 
energy is one of the Department's highest priorities. Agencies and 
bureaus within the Department will work collaboratively with each 
other, and with other Federal agencies, departments, states, local 
communities, and private landowners to encourage the timely and 
responsible development of renewable energy and associated transmission 
while protecting and enhancing the Nation's water, wildlife, and other 
natural resources.'' As a result of these and other initiatives, the 
interest in renewable energy development on public lands has increased 
significantly.
    In addition to these specific directives, the BLM is charged 
generally with managing the public lands for multiple uses under the 
Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1701, 
et seq., including for mining and energy development. In some 
instances, different uses may present conflicts. For example, a mining 
claim located within a proposed ROW for a utility-scale solar energy 
generation facility could impede the BLM's ability to process the ROW 
application because the Federal government's use of the surface cannot 
endanger or materially interfere with a properly located mining claim. 
In order to help avoid such conflicts while carrying out the 
Congressional and Executive mandates and direction to prioritize the 
development of renewable energy, the BLM is issuing the Interim Rule. 
The Interim Rule will help promote the orderly administration of the 
public lands by giving the BLM a tool to minimize potential resource 
conflicts between ROWs for proposed solar and wind energy generation 
facilities and other uses of the public lands. Under existing 
regulations, lands within a solar or wind energy generation ROW 
application or within an area identified by the BLM for such ROWs, 
unlike lands proposed for exchange or sale, remain open to 
appropriation under the public land laws, including location and entry 
under the Mining Law, while BLM is considering the ROW.
    Over the past 5 years, the BLM has processed 24 solar and wind 
energy development ROW applications. New mining claims were located on 
the public lands described in two of these proposed ROWs during the 
BLM's consideration of the applications. Many of the mining claims in 
the two proposed ROWs were not located until after the existence of the 
wind or solar ROW application or the identification of an area by the 
BLM for such ROWs became publicly known. In addition, over the past 2 
years, 437 new mining claims were located within wind energy ROW 
application areas in Arizona, California, Idaho, Nevada, Oregon, Utah, 
and Wyoming and 216 new mining claims were located within solar energy 
ROW application areas. In the BLM's experience, some of these claims 
are likely to be valid, but others are likely to be speculative and not 
located for true mining purposes. As such, the latter are likely filed 
for no other purpose than to provide a means for the

[[Page 23200]]

mining claimant to compel some kind of payment from the ROW applicant 
to relinquish the mining claim. The potential for such a situation 
exists because, while it is relatively easy and inexpensive to file a 
mining claim, it can be difficult, time-consuming, and costly to prove 
that the mining claim was not properly filed or does not contain a 
valid discovery. Regardless of the merits of a particular claim, the 
location of a mining claim in an area covered by a ROW application (or 
identified for such an application) creates uncertainty that interferes 
with the orderly administration of the public lands. This uncertainty 
makes it difficult for the BLM, energy project developers, and 
institutions that finance such development to proceed with such 
projects because a subsequently located mining claim potentially 
precludes final issuance of the ROW and increases project costs, 
jeopardizing the planned energy development.
    For example, the location of a new mining claim during the pendency 
of the BLM's review process for a ROW application could preclude the 
applicant from providing a concrete proposal for their use and 
occupancy of the public lands. This is because under the Mining Law, a 
ROW cannot materially interfere with a previously located mining claim. 
Since all properly located claims are treated as valid until proven 
otherwise, the filing of any mining claim can substantially delay the 
processing of a ROW application. As a result, a ROW applicant could 
either wait for the BLM to determine the validity of a claim, or the 
applicant could choose to modify or relocate its proposed surface use 
to avoid conflicts with the newly located mining claim, leading to 
additional expense, which could jeopardize the renewable energy 
project.\2\ The BLM's processing time for the ROW application could be 
significantly increased if any changes necessitated by the newly 
located mining claim require the BLM to undertake any additional 
analyses, such as those required by the National Environmental Policy 
Act 42 U.S.C. 4321 et seq. (NEPA). Under these circumstances, the BLM's 
ability to administer the public lands in an orderly manner is impeded.
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    \2\ This uncertainty may also discourage banks from financing 
such projects.
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    This Interim Rule is needed to provide the BLM with the necessary 
authority to ensure the orderly administration of the public lands and 
to prevent conflicts between competing uses of those lands. By allowing 
for temporary segregation, it will enable the BLM to prevent new 
resource conflicts from arising as a result of new mining claims that 
may be located within land covered by any currently pending or future 
wind or solar energy generation facility ROW applications or in any 
areas identified by the BLM for such ROWs pursuant to its ROW 
regulations. Temporary segregation is generally sufficient because once 
a ROW has been authorized, subsequently located mining claims would be 
subject to the previously authorized use, and any future mining 
claimant would have notice of such use.
    The Interim Rule supplements the authority contained in 43 CFR 
subpart 2091 to allow the BLM to segregate from appropriation under the 
public land laws, including location under the Mining Law, but not the 
Mineral Leasing Act or the Materials Act, public lands included in a 
pending or future wind or solar energy generation ROW application or 
public lands identified by the BLM for a wind or solar energy 
generation ROW authorization under 43 CFR subpart 2804, subject to 
valid existing rights.\3\ This Interim Rule does not affect valid 
existing rights in mining claims located before any segregation made 
pursuant to this Interim Rule. The Interim Rule also does not affect 
ROW applications for uses other than wind or solar energy generation 
facilities.
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    \3\ The existing regulations define segregation as ``the removal 
for a limited period, subject to valid existing rights, of a 
specified area of the public lands from the operation of some or all 
of the public land laws, including the mineral laws, pursuant to the 
exercise by the Secretary of regulatory authority for the orderly 
administration of the public lands.'' 43 CFR 2091.0-5(b)
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    Segregations under the Interim Rule would be accomplished by 
publishing a notice in the Federal Register and would be effective upon 
the date of publication. The BLM considered a rule that would allow for 
segregation through notation to the public land records, but it 
rejected this approach because it would not provide the public with the 
same level of notice that a Federal Register notice would accomplish. 
The Interim Rule provides for segregation periods of up to 2 years. The 
Interim Rule does not authorize the BLM to continue the segregation 
after a final decision on a ROW has been made. Finally, not all wind or 
solar ROW applications would lead to a segregation, as the BLM may 
reject some applications and others may not require segregation because 
conflicts with mining claims are not anticipated.
    Segregation rules, like the Interim Rule, have been held to be 
``reasonably related'' to the BLM's broad authority to issue rules 
related to ``the orderly administration of the public land laws,'' \4\ 
because they allow the BLM to protect an applicant for an interest in 
such lands from ``the assertion by others of rights to the lands while 
the applicant is prevented from taking any steps to protect'' its 
interests because it has to wait for the BLM to act on its 
application.\5\ It is for this purpose that existing regulations at 43 
CFR subpart 2091 provide the BLM with the discretion to segregate lands 
that are proposed for various types of land disposals, such as land 
sales, land exchanges, and transfers of public land to local 
governments and other entities under the Recreation and Public Purposes 
Act of 1926. These regulatory provisions allowing segregations were put 
in place over the years to prevent resource conflicts, including 
conflicts arising from the location of new mining claims, which could 
create encumbrances on the title of the public lands identified for 
transfer out of Federal ownership under the applicable authorities.
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    \4\ See Bryon v. United States, 259 F. 371, 376 (9th Cir. 1919); 
Hopkins v. United States, 414 F.2d 464, 472 (9th Cir. 1969).
    \5\ See, e.g., Marian Q. Kaiser, 65 I.D. 485 (Nov. 25, 1958).
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    Such a situation occurred in Nevada, and the proposed land 
purchaser chose to pay the mining claimant to relinquish his claims in 
order to enable the sale to go forward. In fact, in the land sales 
context, the segregative period was increased from 270 days to a 
maximum term of 4 years, as it was found that the original segregative 
period was insufficient and that conflicting mining claims were being 
located before sales could be completed. The Interim Rule will provide 
the BLM the same flexibility it currently has for land disposals by 
allowing the BLM to temporarily segregate lands that are included in 
pending or future applications for solar and wind facility ROWs or on 
lands identified by the BLM for such ROWs. This will allow for the 
orderly administration of the public lands by eliminating the potential 
for conflicts with mining claims located after the BLM publishes a 
Federal Register notice of such ROW applications or areas.
    As noted above, the development of renewable energy is a high 
priority for the Department of the Interior and the BLM. The location 
of mining claims, however, under certain circumstances, may impede the 
BLM's ability to administer the public lands in an orderly manner and 
carry out its Congressional and Executive mandate to facilitate 
renewable energy development

[[Page 23201]]

on those lands because the BLM currently lacks the ability to maintain 
the status quo on such lands while it is processing a ROW application 
for a wind or solar energy generation facility. This Interim Rule will 
help the BLM maintain the status quo and prevent potential resource use 
conflicts by allowing the BLM to temporarily segregate lands being 
considered for a wind or solar energy generation facility. Based on 
these considerations, the BLM has determined that it has ``good cause'' 
under the Administrative Procedure Act (APA) to forgo the APA's normal 
notice and comment requirements and make the provisions outlined below 
effective immediately for a temporary period, while it conducts a full 
notice and comment rulemaking process on a proposed rule, published 
concurrently in today's Federal Register, that would make the 
segregation authority permanent. The proposed rule would also allow 
segregations made under it to be extended under certain circumstances.
    Under the APA, agencies can dispense with the standard notice and 
comment procedures and make a rule effective immediately when such 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' 5 U.S.C. 553(b)(B), 553(d)(3). Publishing this Interim Rule 
for public comment prior to its implementation is contrary to the 
public interest because it could negate the rule's very purpose by 
resulting in a potential increase in the location of mining claims in 
areas covered by pending ROW applications or in areas included in 
future ROW applications prior to those applications being acted on by 
the BLM. The location of such mining claims could impede the 
Department's ability to process those ROW applications and potentially 
prevent the Department from meeting the renewable energy goals 
established by Congress and the Secretary of the Interior. For these 
reasons and those stated above, the BLM finds that it has ``good 
cause'' to publish this rule as an interim temporary final rule that is 
effective immediately. Recognizing, however, that the ``good cause'' 
exception is to be used sparingly by agencies and limited to 
circumstances in which the delay attributed to the notice-and-comment 
process would do genuine harm, the BLM is making this Interim Rule 
effective only on a temporary basis--for a period not to exceed 2 
years. As noted above, the BLM published today, in the same issue of 
the Federal Register, a proposed rule allowing for the temporary 
segregation of the public lands for the same purposes as described in 
this Interim Rule. The Interim Rule will expire after 2 years or upon 
the completion of the notice and comment rulemaking process for the 
proposed rule, whichever occurs first.
    While the comment process on the proposed rule involves the same 
regulatory provisions as outlined below, the BLM recognizes the 
importance of also receiving public input on this Interim Rule. 
Therefore, the BLM is also soliciting, as noted above, public comments 
as a part of this temporary interim final rulemaking process. After the 
comment period on the Interim Rule, the BLM will review the comments 
received and may issue a further temporary final rule with any 
necessary changes, prior to the expiration of the 2-year effective 
period for this Interim Rule.

III. Section-by-Section Analysis

    This Interim Rule revises 43 CFR 2091.3-1 and 2804.25 by adding 
language that allows the BLM to segregate, if the BLM determines it to 
be necessary for the orderly administration of the public lands, by 
publication of a Federal Register notice. This authority will be 
limited to public lands included in a pending or future wind or solar 
energy ROW application, or public lands identified by the BLM for a 
wind or solar energy generation ROW authorization under the BLM's ROW 
regulations. If segregated under this rule, such lands, during the 
limited segregation period, will not be subject to appropriation under 
the public land laws, including location under the Mining Law, but not 
the Mineral Leasing Act or the Materials Act, subject to valid existing 
rights.
    The new language also specifies that the segregative effect 
terminates and the lands will automatically reopen to appropriation 
under the public land laws, including the mining laws: (1) Upon the 
BLM's issuance of a decision regarding whether to issue a ROW 
authorization for the solar or wind energy generation proposal; (2) 
Upon publication of a Federal Register notice of termination of the 
segregation; or (3) Without further administrative action at the end of 
the segregation period provided for in the Federal Register notice 
initiating the segregation, whichever occurs first. The segregation 
would be effective for a period of up to 2 years. This Interim Rule is 
only effective for a period of 2 years from the date of its publication 
in the Federal Register.

IV. Procedural Matters

Executive Order 12866, Regulatory Planning and Review

    This Interim Rule is not a significant regulatory action \6\ and is 
not subject to review by the Office of Management and Budget under 
Executive Order 12866. The Interim Rule provides the BLM with 
regulatory authority to segregate public lands included within a 
pending or future wind or solar energy generation ROW application, or 
public lands identified by the BLM for a potential future wind or solar 
energy generation ROW authorization, from appropriation under the 
public land laws, including location under the Mining Law, but not the 
Mineral Leasing Act or the Materials Act, if the BLM determines that 
segregation is necessary for the orderly administration of the public 
lands. To assess the potential economic impacts, the BLM must first 
make some assumptions concerning when and how often this segregation 
authority may be exercised. The purpose of any segregation would be to 
allow for the orderly administration of the public lands to facilitate 
the development of renewable energy resources by avoiding conflicts 
between renewable energy development and the location of mining claims.
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    \6\ ``Significant regulatory action'' means any regulatory 
action that is likely to result in a rule that may: (1) Have an 
annual effect on the economy of $100 million or more or adversely 
effect in a material way the economy * * *; (2) Create a serious 
inconsistency or otherwise interfere with an action taken or planned 
by another agency; (3) Materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs * * *; or (4) 
Raise novel legal and policy issues arising out of legal mandates, 
the President's priorities, or * * * this Executive Order.'' Exec. 
Order No. 12866, 58 FR 51738 (Oct. 4, 1993).
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    Wind--Wind energy ROW site testing and development applications are 
widely scattered in many western states. Most of the public lands with 
pending wind energy ROW applications are currently managed for multiple 
resource use, including being open to mineral entry under the mining 
laws. Over the past 2 fiscal years, 437 new mining claims were located 
within wind energy ROW application areas in Arizona, California, Idaho, 
Nevada, Oregon, Utah, and Wyoming. Based on the BLM's recent experience 
processing wind energy ROW applications, it is anticipated that 
approximately 25 percent of the lands with current wind energy ROW 
applications will reach the processing stage where a Notice of Intent 
(NOI) is issued. Without trying to identify specific locations of new 
mining claims located within those application areas, we assume a 
quarter

[[Page 23202]]

of those new mining claims, or 109 new mining claims, would be located 
within wind application areas that would be segregated under this rule.
    The actual number of claimants affected will likely be less than 
this estimate since a single claimant typically files and holds 
multiple mining claims. Of the 437 new mining claims filed within the 
wind energy ROW application areas in fiscal year (FY) 2009 and 2010, 
there was an average of about eight mining claims per claimant. 
Assuming that there was nothing unique about the number of claims and 
distribution of claims per claimant for FY 2009 and 2010, we estimate 
that 14 entities will be potentially precluded from filing new mining 
claims on lands that would be segregated within the identified wind 
energy ROW application areas under this rule. For these entities the 
economic impacts of the segregation are the delay in when they could 
locate their mining claims and a potential delay in the development of 
such claims because such development would be subject to any approved 
ROW issued during the segregative period. However, a meaningful 
estimate of the value of such delays is hard to quantify given the 
available data because it depends on the validity and commercial 
viability of any individual claim, and the fact that the location of a 
mining claim is an early step in a long process that may eventually 
result in revenue generating activity for the claimant.
    The other situation where entities might be affected by the 
segregation provision is if a new Plan of Operations or Notice is filed 
with the BLM during the 2-year segregation period. In such a situation, 
the BLM has the discretion under the Surface Management Regulations (43 
CFR subpart 3809) to require the preparation of a mineral examination 
report to determine if the mining claims were valid before the lands 
were segregated before it processes the Plan of Operations or accepts 
the filed Notice. If required, the operator is responsible to pay the 
cost of the examination and report.
    Within the past 2-year period, five Plans of Operations and two 
Notices were filed with the BLM within wind ROW application areas. 
Assuming (1) a quarter of those filings would be on lands segregated 
under this rule, (2) the number of Plan and Notice filings received in 
the past 2 years is somewhat reflective of what might occur within a 2-
year segregation period, and (3) the BLM would require mineral 
examination reports to determine claim validity on all Plans and 
Notices filed within the segregation period, we estimate two entities 
might be affected by this rule change.\7\
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    \7\ With respect to any particular Plan of Operation or Notice 
that might be filed in areas segregated under the Interim Rule, the 
BLM will separately determine, on a case-by-case basis and 
consistent with the requirements of 43 CFR 3809.100(a), whether to 
require a validity determination for such Plan and Notice.
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    Should the BLM require the preparation of mineral examination 
reports to determine claim validity, the entity filing the Plan or 
Notice would be responsible for the cost of making that validity 
determination. Understanding that every mineral examination report is 
unique and the costs will vary accordingly, we assume an average cost 
of $100,000 to conduct the examination and prepare the report. Based on 
the number of Plans and Notices filed within the wind energy right-of-
way application areas in FY 2009 and 2010, we estimate the total cost 
of this provision could be about $200,000 over the 2-year period.
    Solar--As noted above, the primary purpose of any segregation under 
this Interim Rule would be to allow for the orderly administration of 
the public lands to facilitate the development of valuable renewable 
resources and to avoid conflicts between renewable energy generation 
and mining claim location. The main resource conflict of concern 
involves mining claims that are located after the first public 
announcement that the BLM is evaluating a ROW application, and prior to 
when the BLM issues a final decision on the ROW application.
    Most of the public lands with pending solar energy ROW applications 
are currently managed for multiple resource use, including mineral 
entry under the mining laws. Where the BLM segregates lands from 
mineral entry, claimants would not be allowed to locate any new mining 
claims during the 2-year segregation period. Over the past 2 years, 216 
new mining claims were located within solar energy ROW application 
areas. Based on the BLM's recent experience processing solar energy ROW 
applications, it is anticipated that approximately 25 percent of the 
lands with current solar energy ROW applications will reach the 
processing stage where a NOI is issued. Without trying to identify 
which ROWs will be granted or the specific locations of new mining 
claims within those application areas, we assume a quarter of those new 
mining claims, or 54 new mining claims, would be located within solar 
ROW application areas that would be segregated under this rule.
    The actual number of claimants affected will likely be less than 
this estimate since a single claimant typically locates and holds 
multiple mining claims. Of the 216 new mining claims located within 
solar energy ROW application areas in the past 2 years, there was an 
average of about eight mining claims per claimant. Assuming that there 
was nothing unique about the number and distribution of claims per 
claimant for the past 2 years, we estimate seven entities would be 
potentially precluded from locating new mining claims on lands 
segregated within the identified solar energy ROW application areas 
under the rule change. For these entities the economic impacts of the 
segregation are the delay in when they can locate their mining claim 
and a potential delay in the development of such claim because such 
development would be subject to any approved ROW issued during the 
segregative period. However, a meaningful estimate of the value of such 
delays is hard to quantify given the available data because it depends 
on the validity and commercial viability of any individual claim, and 
the fact that the location of a mining claim is an early step in a long 
process that may eventually result in revenue generating activity for 
the claimant.
    The other situation where entities might be affected by the 
segregation provisions is where a new Plan of Operations or Notice is 
filed with the BLM during the 2-year segregation period. In such a 
situation, the BLM has the discretion under the Surface Management 
Regulations (43 CFR subpart 3809) to require a mineral examination to 
determine if the mining claims were valid before the lands were 
segregated before it approves the Plan of Operations or accepts the 
filed Notice. If required, the operator is responsible to pay the cost 
of the examination and report.
    Within the past 2-year period, two Plans of Operations and two 
Notices were filed with the BLM within solar ROW application areas. 
Assuming (1) a quarter of those filings would be on lands segregated 
under this rule, (2) the number of Plan and Notice filings received in 
the past 2 years is reflective of what might occur within a 2-year 
segregation period, and (3) the BLM would require mineral examination 
reports to determine claim validity on all Plans and Notices filed 
within the segregation period, we estimate one entity might be affected 
by this rule change.\8\
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    \8\ With respect to any particular Plan of Operation or Notice 
that might be filed in areas segregated under the Interim Rule, the 
BLM will separately determine, on a case-by-case basis and 
consistent with the requirements of 43 CFR 3809.100(a), whether to 
require a validity determination for such Plan and Notice.

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[[Page 23203]]

    Should the BLM require a mineral examination to determine claim 
validity, the entity filing the Plan or Notice would be responsible for 
the cost of making that validity determination. Understanding that 
every mineral examination report is unique and the costs will vary 
accordingly, we assume an average cost of $100,000 to conduct the 
examination and prepare the report. Based on the number of Plans and 
Notices filed within the solar energy ROW application areas in the past 
2 years, we estimate the total cost of this provision could be about 
$100,000 over the 2-year period.
    It is not possible to estimate the number of future rights-of-way 
for wind or solar energy developments that could be filed on areas 
identified as having potential for either of these sources of energy. 
This is because there are many variables that could have an impact on 
such filings. Such variables include: The quantity and sustainability 
of wind at any one site, the intensity and quantity of available 
sunlight, the capability of obtaining financing for either wind or 
solar energy projects, the proximity of transmission facilities that 
could be used to carry the power generated from a specific wind or 
solar energy ROW project, and the topography of the property involved. 
The number of mining claims would also be based on speculation as to 
the mineral potential of an area, access to markets, potential for 
profitability, and a host of other geologic factors, such as type of 
mineral, depth of the mineral beneath the surface, quantity and quality 
of the mineral, and other such considerations.
    Based on this analysis, the BLM concludes that this Interim 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 
Interim Rule does not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. This 
Interim Rule does not alter the budgetary effects of entitlements, 
grants, user fees or loan programs or the rights or obligations of 
their recipients; nor does it raise novel legal or policy issues. The 
full economic analysis is available at the office listed under the 
ADDRESSES section of this preamble.

Clarity of the Regulation

    Executive Order 12866 requires each agency to write regulations 
that are simple and easy to understand. The BLM invites your comments 
on how to make this Interim Rule easier to understand, including 
answers to questions such as the following:
    1. Are the requirements in the Interim Rule clearly stated?
    2. Does the Interim Rule contain technical language or jargon that 
interferes with its clarity?
    3. Does the format of the Interim Rule (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity?
    4. Would the regulations be easier to understand if they were 
divided into more (but shorter) sections?
    5. Is the description of the Interim Rule in the SUPPLEMENTARY 
INFORMATION section of this preamble helpful in understanding the 
Interim Rule. How could this description be more helpful in making the 
Interim Rule easier to understand?
    Please send any comments you have on the clarity of the regulations 
to the address specified in the ADDRESSES section.

National Environmental Policy Act

    The BLM has determined that this Interim Rule is administrative in 
nature and involves only procedural changes addressing segregation 
requirements. This Interim Rule will result in no new surface 
disturbing activities and therefore will have no effect on ecological 
or cultural resources. Potential effects from associated wind and/or 
solar ROWs will be analyzed as part of the site-specific NEPA analysis 
for those activities. In promulgating this rule, the government is 
conducting routine and continuing government business of an 
administrative nature having limited context and intensity. Therefore, 
it is categorically excluded from environmental review under section 
102(2)(C) of NEPA, pursuant to 43 CFR 46.205. The Interim Rule does not 
meet any of the extraordinary circumstances criteria for categorical 
exclusions listed at 43 CFR 46.215. Pursuant to Council on 
Environmental Quality regulation (40 CFR 1508.4) and the environmental 
policies and procedures of the Department, the term ``categorical 
exclusion'' means a category of actions which do not individually or 
cumulatively have a significant effect on the human environment and 
which have been found to have no such effect on procedures adopted by a 
Federal agency and for which, therefore, neither an environmental 
assessment nor an environmental impact statement is required.

Regulatory Flexibility Act

    The Congress enacted the Regulatory Flexibility Act (RFA) of 1980, 
as amended, 5 U.S.C. 601-612, to ensure that Government regulations do 
not unnecessarily or disproportionately burden small entities. The RFA 
requires a regulatory flexibility analysis if a rule would have a 
significant economic impact, either detrimental or beneficial, on a 
substantial number of small entities. The RFA requires agencies to 
analyze the economic impact of regulations to determine the extent to 
which there is anticipated to be a significant economic impact on a 
substantial number of small entities. We anticipate that the Interim 
Rule could potentially affect a few entities that might otherwise have 
located new mining claims on public lands covered by a wind or solar 
energy facility ROW application currently pending or filed in the 
future. We further anticipate that most of these entities will be small 
entities as defined by the Small Business Administration; however, we 
do not expect the potential impact to be significant. Please see the 
Economic and Threshold Analysis at the address in the ADDRESSES section 
of this rule for additional information. Therefore, the BLM has 
determined under the RFA that this Interim Rule would not have a 
significant economic impact on a substantial number of small entities. 
A copy of the analysis that supports this determination is available at 
the office listed under the ADDRESSES section of this preamble.

Small Business Regulatory Enforcement Fairness Act

    For the same reasons as discussed under the Executive Order 12866, 
Regulatory Planning and Review section of this preamble, this Interim 
Rule is not a ``major rule'' as defined at 5 U.S.C. 804(2). That is, it 
would not have an annual effect on the economy of $100 million or more; 
it would not result in major cost or price increases for consumers, 
industries, government agencies, or regions; and it would 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. A copy of the analysis that 
supports this determination is available at the office listed under the 
ADDRESSES section of this preamble.

[[Page 23204]]

Unfunded Mandates Reform Act

    This Interim Rule does not impose an unfunded mandate on State, 
local, or tribal governments, in the aggregate, or the private sector 
of $100 million or more per year; nor does this Interim Rule have a 
significant or unique effect on State, local, or tribal governments. 
The rule imposes no requirements on any of these entities. This Interim 
Rule will not have effects approaching $100 million per year on the 
government or the private sector. Therefore, the BLM does not need to 
prepare a statement containing the information required by the Unfunded 
Mandates Reform Act (2 U.S.C. 1531 et seq.).

Executive Order 12630, Governmental Actions and Interference With 
Constitutionally Protected Property Rights (Takings)

    This Interim Rule is not a government action that interferes with 
constitutionally protected property rights. This Interim Rule sets out 
a process, by publication of a notice in the Federal Register, that 
could be used to segregate public lands included within a pending or 
future solar or wind energy generation ROW application, or public lands 
identified by the BLM for a potential future wind or solar energy 
generation ROW authorization. This segregation would remove public 
lands from the operation of the public land laws, including the 
location of new mining claims under the General Mining Law, but not the 
Mineral Leasing Act or the Materials Act, for a period of up to 2 years 
in order to promote the orderly administration of the public lands. 
Because any segregation under this Interim Rule would be subject to 
valid existing rights, it does not interfere with constitutionally 
protected property rights. Therefore, the Department has determined 
that this Interim Rule does not have significant takings implications 
and does not require further discussion of takings implications under 
this Executive Order.

Executive Order 13132, Federalism

    This Interim Rule will not have a substantial direct effect on the 
States, or the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
levels of government. It does not apply to States or local governments 
or State or local government entities. Therefore, in accordance with 
Executive Order 13132, the BLM has determined that this Interim 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 BLM has determined that this 
Interim Rule will 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, the BLM has found that 
this Interim Rule does not include policies that have tribal 
implications. This rule applies exclusively to lands administered by 
the BLM. It is not applicable to and has no bearing on trust or Indian 
lands or resources, or on lands for which title is held in fee status 
by Indian tribes, or on U.S. Government-owned lands managed by the 
Bureau of Indian Affairs.

Information Quality Act

    In developing this Interim Rule, the BLM did not conduct or use a 
study, experiment, or survey requiring peer review under the 
Information Quality Act (Section 515 of Pub. L. 106-554).

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

    In accordance with Executive Order 13211, the BLM has determined 
that this Interim Rule is not likely to have a significant adverse 
effect on energy supply, distribution, or use, including a shortfall in 
supply, price increase, or increased use of foreign supplies. The BLM's 
authority to segregate lands under this rulemaking would be of a 
temporary nature for the purpose of encouraging the orderly 
administration of public lands, including the generation of electricity 
from wind and solar resources on the public lands. Any increase in 
energy production as a result of this rule from wind or solar sources 
is not easily quantified, but the Interim Rule is expected to relieve 
obstacles and hindrances to energy development on public lands.

Executive Order 13352--Facilitation of Cooperative Conservation

    In accordance with Executive Order 13352, the BLM has determined 
that this Interim Rule does not impede the facilitation of cooperative 
conservation. The rule takes appropriate account of and respects the 
interests of persons with ownership or other legally recognized 
interests in land or other natural resources; properly accommodates 
local participation in the Federal decision-making process; and 
provides that the programs, projects, and activities are consistent 
with protecting public health and safety.

Paperwork Reduction Act

    The Interim Rule does not contain information collection 
requirements that the Office of Management and Budget must approve 
under the Paperwork Reduction Act of 1995.

Author

    The principal author of this rule is Jeff Holdren, Realty 
Specialist, Division of Lands and Realty, assisted by the Division of 
Regulatory Affairs, Washington Office, Bureau of Land Management, 
Department of the Interior.

List of Subjects

43 CFR Part 2090

    Airports; Alaska; Coal; Grazing lands; Indian lands; Public lands; 
Public lands--classification; Public lands--mineral resources; Public 
lands--withdrawal; Seashores.

43 CFR Part 2800

    Communications; Electric power; Highways and roads; Penalties; 
Pipelines; Public lands--rights-of-way; Reporting and recordkeeping 
requirements.

    For the reasons stated in the preamble and under the authorities 
stated below, the BLM amends 43 CFR parts 2090 and 2800 as follows:

Subchapter B--Land Resource Management (2000)

PART 2090--SPECIAL LAWS AND RULES

0
1. The authority citation for part 2090 continues to read as follows:

    Authority:  43 U.S.C. 1740.

Subpart 2091--Segregation and Opening of Lands

0
2. Amend Sec.  2091.3-1 by adding a new paragraph (e) to read as 
follows:

Sec.  2091.3-1  Segregation.

* * * * *
    (e)(1) The Bureau of Land Management may segregate, if it finds it 
to be necessary for the orderly administration of the public lands, 
lands included in a right-of-way application for the generation of 
electrical energy under 43 CFR subpart 2804 from wind or solar sources. 
In addition, the Bureau of Land

[[Page 23205]]

Management may also segregate lands that it identifies for potential 
rights-of-way for electricity generation from wind or solar sources. 
Upon segregation, such lands will not be subject to appropriation under 
the public lands laws, including location under the General Mining Law, 
but not the Mineral Leasing Act of 1920 (30 U.S.C. 181 et seq.) or the 
Materials Act of 1947 (30 U.S.C. 601 et seq.). The Bureau of Land 
Management will effect such segregation by publishing a Federal 
Register notice that includes a description of the lands covered by the 
segregation. The Bureau of Land Management may impose a segregation in 
this way on both pending and new right-of-way applications.
    (2) The effective date of segregation is the date of publication of 
the notice in the Federal Register, and the date of termination of the 
segregation is the date that is the earliest of the following:
    (i) Upon issuance of a decision by the authorized officer granting, 
granting with modifications, or denying the application for a right-of-
way;
    (ii) Automatically at the end of the segregation period provided 
for in the Federal Register notice initiating the segregation, without 
further action by the authorized officer; or
    (iii) Upon publication of a Federal Register notice of termination 
of the segregation.
    (3) The segregation period may not exceed 2 years from the date of 
publication of the Federal Register notice initiating the segregation.
    (4) The effective period of this subsection of this part will not 
exceed two years from the date of its publication in the Federal 
Register.

PART 2800--RIGHTS-OF-WAY UNDER THE FEDERAL LAND POLICY AND 
MANAGEMENT ACT

0
3. The authority citation for part 2800 continues to read as follows:

    Authority:  43 U.S.C. 1733, 1740, 1763, and 1764.

Subpart 2804--Applying for FLPMA Grants

0
4. Amend Sec.  2804.25 by adding a new paragraph (e) to read as 
follows:

Sec.  2804.25  How will BLM process my application?

* * * * *
    (e)(1) The BLM may segregate, if it finds it to be necessary for 
the orderly administration of the public lands, lands included within a 
right-of-way application under 43 CFR subpart 2804 for the generation 
of electricity from wind or solar sources. In addition, the BLM may 
also segregate public lands that it identifies for potential rights-of-
way for electricity generation from wind or solar sources under the 
BLM's right-of-way regulations. Upon segregation, such lands will not 
be subject to appropriation under the public land laws, including 
location under the General Mining Law, but not from the Mineral Leasing 
Act of 1920 (30 U.S.C. 181 et seq.) or the Materials Act of 1947 (30 
U.S.C. 601 et seq.). The BLM will effect such segregation by publishing 
a Federal Register notice that includes a description of the lands 
covered by the segregation. The Bureau of Land Management may impose a 
segregation in this way on both pending and new right-of-way 
applications.
    (2) The segregative effect of the Federal Register notice 
terminates on the date that is the earliest of the following:
    (i) Upon issuance of a decision by the authorized officer granting, 
granting with modifications, or denying the application for a right-of-
way;
    (ii) Automatically at the end of the segregation period provided 
for in the Federal Register notice initiating the segregation, without 
further action by the authorized officer; or
    (iii) Upon publication of a Federal Register notice of termination 
of the segregation.
    (3) The segregation period may not exceed 2 years from the date of 
publication of the Federal Register notice initiating the segregation.
    (4) The effective period of this subsection of this part will not 
exceed two years from the date of its publication in the Federal 
Register.

    Dated: April 6, 2011.
Wilma A. Lewis,
Assistant Secretary of the Interior, Land and Minerals Management.
[FR Doc. 2011-10019 Filed 4-25-11; 8:45 am]
BILLING CODE 4310-84-P
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