23230 Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / Proposed Rules 

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: Proposed Rule. 

SUMMARY: The Bureau of Land 

Management (BLM) is proposing this 

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-ofway (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 would 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. The BLM is also publishing 

in today’s Federal Register an interim 

temporary final rule (Interim Rule) that 

is substantively similar to this proposed 

rule. The Interim Rule is effective 

immediately upon publication in the 

Federal Register for a period not to 

exceed 2 years after publication, or the 

completion of the notice and comment 

rulemaking process for this proposed 

rule whichever occurs first. 

DATES: You should submit your 

comments on the proposed rule on or 

before June 27, 2011. The BLM need not 

consider, or include in the 

administrative record for the final 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, Mail Stop 2143LM, 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 

proposed 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 

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 

proposed rule at the Federal 

eRulemaking Portal by following the 

instructions at that site (see ADDRESSES). 

Written comments on the proposed 

rule should be specific, should be 

confined to issues pertinent to the 

proposed rule, and should explain the 

reason for any recommended change. 

Where possible, comments should 

reference the specific section or 

paragraph of the proposed rule that the 

comment is addressing. 

The BLM need not consider or 

include in the Administrative Record 

for the proposed 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, 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 for 

the BLM 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 


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1This uncertainty may also discourage banks 

from financing such projects. 

2The 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). 

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 proposing this rule. 

This 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 

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.1 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. 

This proposed 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 would 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 pending or 

future wind or solar energy generation 

facility ROW applications, or public 

lands identified by the BLM for 

potential future wind or solar energy 

generation 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 proposed rule would supplement 

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.2

This proposed rule would not affect 

valid existing rights in mining claims 

located before any segregation made 

pursuant to the final rule. The proposed 

rule also would not affect ROW 

applications for uses other than wind or 

solar energy generation facilities. 

Segregations under the proposed 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 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
23232 Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / Proposed Rules 

3See Bryon v. United States, 259 F. 371, 376 (9th 

Cir. 1919); Hopkins v. United States, 414 F.2d 464, 

472 (9th Cir. 1969). 

4See, e.g., Marian Q. Kaiser, 65 I.D. 485 (Nov. 25, 

1958). 

5 ‘‘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). 

with the same level of notice that a 

Federal Register notice would 

accomplish. The proposed rule would 

provide for segregation periods of up to 

2 years, with the option, if deemed 

necessary by the appropriate BLM State 

Director, to extend the segregation of the 

lands for up to an additional 2 years. 

The proposed rule would 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 this proposed 

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,’’ 3 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.4 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. 

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. This proposed rule 

would 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 would 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 to carry out its 

Congressional and Executive mandate to 

facilitate renewable energy development 

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 proposed rule would 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. 

III. Section-by-Section Analysis 

This proposed rule would revise 43 

CFR sections 2091.3–1 and 2804.25 by 

adding language that would allow the 

BLM to segregate lands, if the BLM 

determines it to be necessary for the 

orderly administration of the public 

lands. This authority to segregate lands 

would be limited to 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, would 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 would 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; however, the rule provides that 

the segregation may be extended for an 

additional 2 years if the appropriate 

BLM State Director determines and 

documents in writing, prior to the 

expiration of the segregation, that an 

extension of the segregation is necessary 

for the orderly administration of the 

public lands. The BLM would publish 

an extension notice in the Federal 

Register, if it determines that an 

extension of the segregation is 

necessary. The extension of the 

segregation would not be for more than 

2 years. The maximum total segregation 

period would not exceed 4 years. 

IV. Procedural Matters 

Executive Order 12866, Regulatory 

Planning and Review 

This proposed rule is not a significant 

regulatory action 5 and is not subject to 

review by the Office of Management and 

Budget under Executive Order 12866. 

The proposed rule would provide 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. 

Wind—Wind energy ROW site testing 

and development applications are 

widely scattered in many western states. 

Most of the public lands with pending 


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Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / Proposed Rules 23233 

6With respect to any particular Plan of Operation 

or Notice that might be filed in areas segregated 

under the rule, the BLM would 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 or Notice. 

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 

of those new mining claims, or 109 new 

mining claims, would be located within 

wind application areas that would be 

segregated under this new regulation. 

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 would 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.6

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 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 

proposed 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 would reach 

the processing stage where a NOI is 

issued. Without trying to identify which 

ROWs would 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 

potentially be 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 would be 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 proposed 

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 


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23234 Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / Proposed Rules 

7With respect to any particular Plan of Operation 

or Notice that might be filed in areas segregated 

under the rule, the BLM would 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 or Notice. 

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.7

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 would 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 right-ofway 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 proposed rule would 

not have an annual effect of $100 

million or more on the economy. It 

would 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 proposed rule would not create a 

serious inconsistency or otherwise 

interfere with an action taken or 

planned by another agency. This 

proposed rule would not alter the 

budgetary effects of entitlements, grants, 

user fees or loan programs or the rights 

or obligations of their recipients; nor 

would 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 proposed rule easier to 

understand, including answers to 

questions such as the following: 

1. Are the requirements in the 

proposed rule clearly stated? 

2. Does the proposed rule contain 

technical language or jargon that 

interferes with its clarity? 

3. Does the format of the proposed 

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 proposed 

rule in the SUPPLEMENTARY INFORMATION

section of this preamble helpful in 

understanding the proposed rule? How 

could this description be more helpful 

in making the proposed 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 

proposed rule is administrative in 

nature and involves only procedural 

changes addressing segregation 

requirements. This proposed rule would 

result in no new surface disturbing 

activities and therefore would have no 

effect on ecological or cultural 

resources. Potential effects from 

associated wind and/or solar ROWs 

would be analyzed as part of the sitespecific 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 proposed 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 proposed 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 would be small 

entities as defined by the Small 

Business Administration; however, we 

do not expect the potential impact to be 

significant. Therefore, the BLM has 

determined under the RFA that this 

proposed 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 proposed 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 


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Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / Proposed Rules 23235 

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. 

Unfunded Mandates Reform Act 

This proposed rule would 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 would it have a 

significant or unique effect on State, 

local, or Tribal governments. The rule 

would impose no requirements on any 

of these entities. 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 proposed rule is not a 

government action that interferes with 

constitutionally protected property 

rights. This proposed rule would set 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 Mining Law, 

but not the Mineral Leasing Act or the 

Materials Act for a period of up to 2 

years, with the authority to extend the 

segregation for up to an additional 2- 

year period, in order to promote the 

orderly administration of the public 

lands. Because any segregation under 

this proposed rule would be subject to 

valid existing rights, it does not interfere 

with constitutionally protected property 

rights. Therefore, the Department has 

determined that this proposed rule does 

not have significant takings implications 

and does not require further discussion 

of takings implications under this 

Executive Order. 

Executive Order 13132, Federalism 

The proposed rule would 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 would 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 

proposed 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 proposed 

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, the BLM has found that this 

proposed rule does not include policies 

that have Tribal implications. This rule 

would apply exclusively to lands 

administered by the BLM. It would not 

be applicable to and would have 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 proposed 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 proposed 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 rule 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 

proposed 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 proposed rule would 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 proposed 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 proposes to amend 43 CFR 

parts 2090 and 2800 as follows: 

Subchapter B—Land Resource 

Management (2000) 

PART 2090—SPECIAL LAWS AND 

RULES 

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 

2. Amend § 2091.3–1 by adding a new 

paragraph (e) to read as follows: 

§ 2091.3–1 Segregation 

* * * * * 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
23236 Federal Register / Vol. 76, No. 80 / Tuesday, April 26, 2011 / Proposed Rules 

(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 

Management may also segregate public 

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 unless, 

on a case-by-case basis, the Bureau of 

Land Management State Director 

determines and documents in writing, 

prior to the expiration of the segregation 

period, that an extension is necessary 

for the orderly administration of the 

public lands. If an extension is 

determined to be necessary, the Bureau 

of Land Management will publish a 

notice in the Federal Register, prior to 

expiration of the initial segregation 

period that the segregation is being 

extended for up to 2 years. Only one 

extension may be authorized; the total 

segregation period therefore cannot 

exceed 4 years. 

PART 2800—RIGHTS-OF-WAY UNDER 

THE FEDERAL LAND POLICY AND 

MANAGEMENT ACT 

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 

4. Amend § 2804.25 by adding a new 

paragraph (e) to read as follows: 

§ 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 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 unless, 

on a case by case basis, the BLM State 

Director determines and documents in 

writing, prior to the expiration of the 

segregation period, that an extension is 

necessary for the orderly administration 

of the public lands. If an extension is 

determined to be necessary, the BLM 

will publish a notice in the Federal 

Register, prior to expiration of the 

initial segregation period that the 

segregation is being extended for up to 

2 years. Only one extension may be 

authorized; the total segregation period 

therefore cannot exceed 4 years. 

Dated: April 6, 2011. 

Wilma A. Lewis, 

Assistant Secretary of the Interior, Land and 

Minerals Management. 

[FR Doc. 2011–10017 Filed 4–25–11; 8:45 am] 

BILLING CODE 4310–84–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 2, 3, 4, 7, 9, 11, 12, 13, 

14, 15, 16, 18, 37, 42, 52, and 53 

[FAR Case 2011–001; Docket 2011–0001; 

Sequence 1] 

RIN 9000–AL82 

Federal Acquisition Regulation; 

Organizational Conflicts of Interest 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Proposed rule. 

SUMMARY: DoD, GSA, and NASA are 

proposing to amend the Federal 

Acquisition Regulation (FAR) to provide 

revised regulatory coverage on 

organizational conflicts of interest 

(OCIs), provide additional coverage 

regarding contractor access to nonpublic 

information, and add related provisions 

and clauses. Section 841 of the Duncan 

Hunter National Defense Authorization 

Act for Fiscal Year 2009 required a 

review of the FAR coverage on OCIs. 

This proposed rule was developed as a 

result of a review conducted in 

accordance with Section 841 by the 

Civilian Agency Acquisition Council 

and the Defense Acquisition Regulations 

Council (the Councils) and the Office of 

Federal Procurement Policy (OFPP), in 

consultation with the Office of 

Government Ethics (OGE). This 

proposed rule was preceded by an 

Advance Notice of Proposed 

Rulemaking (ANPR), under FAR Case 

2007–018 (73 FR 15962), to gather 

comments from the public with regard 

to whether and how to improve the FAR 

coverage on OCIs. 


jlentini on DSKJ8SOYB1PROD with PROPOSALS