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[Federal Register Volume 78, Number 83 (Tuesday, April 30, 2013)]
[Rules and Regulations]
[Pages 25204-25213]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-10087]

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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Parts 2090 and 2800

[LLWO301000.L13400000]
RIN 1004-AE19

Segregation of Lands--Renewable Energy

AGENCY: Bureau of Land Management, Interior.

ACTION: Final rule.

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SUMMARY: The Bureau of Land Management (BLM) is amending its 
regulations to add 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 wind or solar 
energy generation right-of-way (ROW) application, and public lands that 
the BLM identifies for potential future wind or solar energy generation 
right-of-way applications under applicable legal requirements. The 
purpose of such segregation is to promote the orderly administration of 
the public lands. Lands segregated under this rule will not be subject 
to appropriation under the public land laws, including location under 
the Mining Law of 1872 (Mining Law), for up to two years from the date 
of publication of notice under this rule, subject to valid existing 
rights, but would remain open under the Mineral Leasing Act of 1920 
(MLA) and the Materials Act of 1947 (Materials Act).

DATES: This rule is effective May 30, 2013.

FOR FURTHER INFORMATION CONTACT: Ray Brady at (202) 912-7312 for 
information relating to the BLM's renewable energy program or the 
substance of this final rule or Ian Senio at (202) 912-7440 for 
information relating to the rulemaking process generally. Persons who 
use a telecommunication 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. Background
II. Discussion of Public Comments
III. Discussion of the Final Rule
IV. Procedural Matters

I. Background

    On April 26, 2011 (76 FR 23230), the BLM published a proposed rule 
to amend the regulations found in 43 CFR subpart 2091, Segregation and 
Opening of Lands, and 43 CFR part 2800, Rights-of-Way Under the Federal 
Land Policy and Management Act (43 U.S.C. 1701 et seq.) (FLPMA), to 
allow for the temporary segregation of public lands from the operation 
of the public land laws, including the Mining Law, within the 
application area of a pending solar or wind renewable energy generation 
project, or for public lands identified by the BLM under the ROW 
regulations for potential future wind or solar energy generation 
projects. Such segregations would be for a period of up to two years, 
subject to valid existing rights, but the affected public lands would 
remain open under the MLA and the Materials Act. Concurrently with the 
proposed rule, the BLM published an interim temporary final rule (ITFR) 
(76 FR 23198) that was substantively identical to the proposed rule 
except that the ITFR expires two years after its publication, or after 
the completion of the notice and comment rulemaking process for the 
proposed rule, whichever occurs first. As published, the ITFR is 
effective April 26, 2011 through April 26, 2013. Today's action will 
replace the ITFR with this final rule on May 30, 2013.
    The purpose of the proposed rule, the ITFR, and today's final rule 
is to allow for the orderly administration of the public lands 
associated with the BLM's consideration of renewable energy ROWs. As 
explained below, the BLM seeks to avoid the delays and uncertainty that 
could result from encumbrances placed on lands after a wind or solar 
energy generation ROW application has been filed or after the BLM has 
identified an area for such applications, but before the BLM is able to 
make a decision on any such ROW. While such situations are not common, 
they can be disruptive to the processing of a wind or solar energy ROW 
application. Today's action eliminates the potential for these 
conflicts and brings a higher level of certainty to the BLM's 
management of the lands in question. The BLM requested public comments 
on the proposed and ITFR rulemakings during a 60-day comment period. 
Those comment periods closed on June 27, 2011. You can find the 
discussion of comments and the BLM's responses in the Discussion of 
Public Comments section of this rule.
    Segregations under this rule take effect immediately upon the BLM's 
publication of a notice in the Federal Register announcing the 
segregation. The rule provides for a segregation period (1) of up to 
two years, (2) until the BLM makes a final decision on the ROW 
application, or (3) until the BLM publishes a notice terminating the 
segregation, whichever occurs first. Under this rule, a BLM State 
Director may extend the segregation period for up to an additional two 
years by issuing a Federal Register notice explaining the reasons for 
such extension. The State Director may extend a segregation period for 
a ROW application only once, for a total segregation of no longer than 
four years. The rule does not authorize the BLM to continue the 
segregation after a final decision on a ROW has been made. Segregations 
under this rule do not affect valid existing rights in mining claims 
located before any such segregation, and this rule does not allow the 
BLM to segregate lands covered by ROW applications for purposes other 
than wind or solar energy generation. Finally, not all wind or solar 
ROW applications would lead to a segregation under this rule, as the 
BLM may reject some applications and others may not require segregation 
because conflicts between uses are not anticipated.
    Segregations 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,'' see Byron v. United States, 
259 F. 371, 376 (9th Cir. 1919); Hopkins v. United States, 414 F. 2d 
464, 472 (9th Cir. 1969), 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. Marian Q. Kaiser, 65 I.D. 485 (Nov. 25, 1958). 
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 that could create encumbrances on the 
title of public lands identified for transfer out of Federal ownership 
under the applicable authorities during the BLM's consideration of such 
transfers prior to their consummation. Segregations under this final 
rule will serve a similar purpose.

[[Page 25205]]

    This rule is necessitated by the Administration's priority efforts 
to facilitate and promote the development of renewable energy on public 
lands and the potential for the location of mining claims to impede the 
BLM's ability to carry out its congressional and Executive mandates. 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 on public lands with a capacity of at least 10,000 megawatts 
(MW) of electricity.
    After passage of the EPAct, then Secretary of the Interior Dirk 
Kempthorne issued several orders emphasizing the importance of 
renewable energy development on public lands. On January 16, 2009, then 
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 Energy Policy Act of 
2005 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.''
    Shortly thereafter, then Secretary Ken Salazar issued Secretarial 
Order 3285, ``Renewable Energy Development by the Department of the 
Interior'' (Mar. 11, 2009), as amended by Order 3285A1 (Feb. 22, 2010), 
which reemphasized the development of renewable energy as a priority 
for the Department of the Interior (Department). This 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.''
    Separate from these specific directives related to renewable 
energy, FLPMA directs the BLM to manage the public lands for multiple 
uses, which means giving consideration to a combination of balanced and 
diverse resource uses that account for long-term needs of future 
generations for renewable and non-renewable resources, such as 
recreation, range, timber, minerals, watershed, wildlife, fish, and 
natural, scenic, scientific, and historic values. In some instances, 
various 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 under the Surface Resources Act (30 U.S.C. 601 et seq.), the 
Federal Government's (or its grantee's) use of the surface cannot 
endanger or materially interfere with a mining claim. However, FLPMA 
provides the BLM with broad authority and discretion to allow some uses 
to the exclusion of others. This final rule is consistent with FLPMA's 
multiple use mandate because it helps reduce the potential for resource 
use conflicts.
    The BLM previously lacked regulations specifically authorizing 
segregation in order to maintain the status quo on lands during the 
period between when it first publicly announced the receipt of a wind 
or solar energy generation ROW application or identified an area for 
such applications, and when it made a final decision on a wind or solar 
energy ROW. As a result, and unless there was another withdrawal or 
segregation, the public lands subject to or identified for such 
applications remained open to appropriation under the public land laws, 
including location and entry under the Mining Law. This situation 
creates the potential for resource use conflicts. In comparison, the 
BLM does not permit new encumbrances on lands proposed for exchange or 
sale after the exchange or sale is publicly announced, but before it is 
completed.
    For example, over the past five years, the BLM has processed 21 
solar and wind energy development ROW applications (13 solar and 8 
wind). New mining claims were located on the public lands described in 
two of these applications after they were publicly announced, but prior 
to any final decision by the BLM. Similarly, over the past two years, 
based on mining claim filings with the BLM, 437 new mining claims were 
located within wind energy ROW application areas in Arizona, 
California, Idaho, Nevada, Oregon, Utah, and Wyoming after those areas, 
consisting of approximately 20.6 million acres, were identified by the 
BLM in the 2005 Final Programmatic Environmental Impact Statement for 
Wind Energy Development (Wind PEIS) (70 FR 36651). Also, 216 new mining 
claims were located within solar energy ROW application areas after 
those areas were identified as Solar Energy Zones in the 2012 Final 
Programmatic Environmental Impact Statement for Solar Energy 
Development in Six Southwestern States (Solar PEIS) (77 FR 44267). In 
the BLM's experience, some of these mining claims are likely to be 
valid and/or filed without consideration of the pending ROW 
application, but others are likely to be speculative and not located 
for mining purposes. The latter are likely filed for no purpose other 
than to provide a means for the mining claimant to compel payment from 
the ROW applicant or grantee in exchange for relinquishing the mining 
claim. While it is relatively easy and inexpensive to locate a mining 
claim because a mining claim location requires no prior approval from 
the BLM, it can be difficult, time-consuming, and costly to extinguish 
a claim.
    The location of a new mining claim during the BLM's review of a ROW 
application could interfere with the administration of the public lands 
because it could, on a case-by-case basis, result in applicants' 
modifying their proposals for their use and occupancy of the public 
lands. This is because under the Surface Resources Act a ROW grantee 
cannot materially interfere with prospecting, mining, or processing 
operations, or reasonably incidental use on a mining claim. Therefore, 
a ROW applicant may choose to modify its application in response to 
subsequently-located mining claims or relocate its proposed surface use 
to avoid potential conflicts with the claims. Such modifications or 
relocations could increase the BLM's processing time and costs for the 
ROW application if those changes require the BLM to undertake any 
additional or supplemental analyses under the National Environmental 
Policy Act (NEPA) (42 U.S.C. 4321 et seq.). For these reasons, leaving 
areas covered by a ROW application (which can take over a year to 
process) or areas identified for such an application, open to mining 
claim location creates uncertainty that could complicate the financing 
for energy project developers and institutions that finance such 
development, which ultimately interferes with the BLM's administration 
of the public lands.
    By allowing the BLM to temporarily segregate public lands subject 
to a wind or solar energy generation facility ROW application or 
identified for such applications, this final rule provides the BLM with 
the necessary regulatory authority to minimize conflicts between new 
mining claims and future wind or solar energy generation facility ROW

[[Page 25206]]

applications before the BLM has taken action on those applications. 
This rule also facilitates the BLM's implementation of the 
congressional and executive mandates and direction to prioritize the 
development of renewable energy resources on public lands. The 
temporary segregation provided for under this rule is sufficient to 
achieve these objectives because after the BLM authorizes a ROW, any 
new mining claims in the area covered by the ROW would be subject to 
the authorized ROW use, and the mining claimant would know the location 
and nature of the authorized use before staking a new claim.

II. Discussion of Public Comments

    The BLM received nine comments on the proposed rule. Four comments 
came from mining associations and opposed the rule; three comments came 
from power associations or companies and supported the rule, and the 
State of Alaska sent comments from two different program offices, 
neither of which supported the rule as proposed and suggested changes. 
Below is a discussion of the significant issues raised by commenters.
    Intent of the rule. One commenter stated that the BLM is placing a 
higher value on solar and wind uses than on other uses of the public 
land in violation of FLPMA. This is incorrect. FLPMA provides the BLM 
with the discretion to manage public lands for multiple uses. The solar 
and wind energy generation ROWs that are the subject of this rule fit 
squarely within FLPMA's multiple use mandate. Moreover, the BLM's 
emphasis on such projects is consistent with applicable statutes, 
directives and policy. The EPAct directs the BLM to expedite energy 
related projects on public lands. Executive Order 13212 directs the BLM 
to accelerate the completion of projects that will increase the 
production of energy. Secretarial Order 3285A1 establishes renewable 
energy development as a priority for the Department. Therefore, the BLM 
did not revise the rule in response to this comment.
    Another commenter stated that the rule presumes the existence of 
land use conflicts where none may exist. This is incorrect. The rule 
does not presume conflicts exist, but rather the purpose of the rule is 
to prevent land use conflicts from arising. If there is no potential 
for conflict, the segregation authority available under this rule will 
not be exercised. The commenter points out that the BLM has other tools 
to address nuisance mining claims located after the filing of a ROW 
application (i.e., those located for the sole purpose of extracting 
something from the ROW applicant). The commenter contends that existing 
regulations permit BLM to address such claims through validity 
examinations, which would permit BLM to declare a claim invalid under 
certain circumstances. However, validity examinations take considerable 
time and expense and could delay important energy projects if they were 
the tool used to address all of the claims located after a proposed 
wind or solar energy ROW application is publicly announced by the BLM, 
but before the BLM is able to complete its review and take action on 
that application. The purpose of segregations under this rule is to 
allow the BLM to maintain the status quo while it processes a ROW 
application, in order to try to avoid delays in energy development that 
has been prioritized by both Congress and the Department.
    Finally, one commenter proposed amending section 2091.3-1(e)(1), as 
proposed by the BLM, to read as follows:

    In addition, the Bureau of Land Management may also segregate 
public lands that it identifies, in conjunction with the preparation 
or revision of a resource management plan or other planning process, 
for potential rights of way for electrical generation from wind or 
solar sources. The identification of such land will involve 
consultation with the public and opportunity for public comment.

    The comment suggests that this would clarify the rule by showing 
that:
    (1) The intent of the rule is narrow;
    (2) Public participation is part of the process; and
    (3) Planning is part of the process.
    While the BLM agrees with these three points, the BLM made no 
changes in the final rule in response to this comment. As drafted, the 
rule is narrow; it applies only to public lands either covered by a ROW 
application or lands that the BLM specifically identifies for such 
applications. In addition, the suggested revisions are already part of 
the BLM's planning regulations (43 CFR subpart 1610) and thus would be 
duplicative if added to today's final rule. Public lands available for 
wind and solar energy generation are identified through the BLM's land 
use planning process, which includes a robust public participation 
process.
    Excessive impact of the rule. Several commenters stated that the 
proposed rule would authorize BLM managers to segregate land even if 
there is no known interest in developing renewable energy. The 
commenters cite the statement ``or public lands identified by the BLM 
for a pending or future wind or solar energy ROW authorization'' (76 FR 
23232) as establishing this potential for arbitrary segregations. The 
scenario outlined by these commenters is contrary to the language of 
the rule, which limits segregations to those circumstances where there 
is an express interest in such development (e.g., when there is a site-
specific solar or wind energy ROW application pending), or where the 
BLM has identified an area as having the potential for such 
applications (e.g., when the BLM initiates a competitive process for 
solar or wind development on particular lands). For this reason, the 
final rule has not been revised in response to these comments.
    One commenter asserted that the rule is an over-reaction to a few 
bad actors. As explained below, the final rule is narrow. It only 
limits the location of mining claims after the segregation under this 
rule is announced and does not affect previously located claims. 
Moreover, segregations under this rule are not automatic; the BLM will 
only effect segregations on a case-by-case basis when it determines 
segregation to be necessary for the orderly administration of the 
public lands.
    One commenter stated that the BLM implies that it will use 
significant resources in its planning process for wind and solar to 
support ``sweeping withdrawals using wind and solar as an excuse.'' The 
BLM does not intend to conduct sweeping withdrawals related to wind and 
solar energy ROW grants. First, the BLM's withdrawal authority and 
regulations are not affected by this rule. Second, as explained above 
in response to the comment regarding extending the segregations, the 
temporary segregations authorized by the rule achieve the BLM's 
objectives related to the orderly processing of such applications, 
thereby making withdrawals unnecessary. History indicates that the BLM 
has not proposed sweeping withdrawals. Also, as noted above, the BLM 
will exercise its authority under this rule on a case-by-case basis. 
For example, if the BLM determines that the potential for conflict 
associated with a particular ROW is low, then the BLM will not 
segregate the land. Moreover, the 2005 Wind PEIS and the 2012 Solar 
PEIS already contain a comprehensive analysis of areas with potential 
for wind or solar energy development, contrary to the commenter's 
suggestion that significant additional planning resources will need to 
be devoted to such efforts in the near term.
    Another commenter voiced a concern that the segregations would take 
place without any opportunity for public input and that the rule should 
require the BLM to explain, in writing, why

[[Page 25207]]

there is a need for a segregation. As explained in the proposed rule 
and the ITFR, the purpose of the temporary segregations under the rule 
is narrow. Segregations are intended to maintain the status quo after a 
wind or solar energy ROW application has been filed or the BLM has 
identified an area as appropriate for such applications. The status quo 
can only be maintained if the segregations are effective immediately; 
otherwise, actions could be taken that interfere with the underlying 
purposes of the segregation, the orderly administration of the public 
lands. This is why all of the BLM's existing segregation authorities 
make the segregation effective immediately (i.e., none are subject to 
public comment).
    Finally, one commenter pointed out that solar panel fields will 
prevent other land uses and that this would conflict with the FLPMA's 
mandate to manage public lands for multiple use. The commenter goes on 
to say that the proposed rule improperly singles out locatable 
minerals. The BLM agrees that solar panels may prevent some uses of the 
same piece of land during the same period of time, but the BLM has 
discretion as to what activities it allows on any parcel of land at any 
particular time. FLPMA's multiple use mandate does not require all uses 
to be permitted on every acre. Thus, the final rule does not 
impermissibly single out locatable minerals; it simply gives the BLM 
the ability to temporarily segregate lands identified for or covered by 
a wind or solar energy ROW application from the operation of the Mining 
Law because the location of a mining claim does not require BLM 
approval and could interfere with the BLM's processing of such ROW 
application. The final rule was not revised as a result of this 
comment.
    Length of Segregations. One commenter stated that segregations 
under the rule will become permanent. It cited the BLM-managed 
withdrawals in Alaska, which the Alaska Native Claims Settlement Act 
authorized, as well as other closures to mineral entry pending 
designation of conservation system units. The situation for these long 
term closures is unique to Alaska pursuant to other statutory and 
regulatory authority. The segregations permitted by this rule, on the 
other hand, are temporary; lands would not be closed to the location of 
mining claims beyond the maximum timeframes established in this rule. 
The two-year timeframe, with a possible one time extension of up to two 
years, under this rule is consistent with other segregation 
authorities.
    Another commenter believes the four-year limit for a segregation is 
too short. It cited its own application which is currently the subject 
of an environmental impact statement (EIS) having a current schedule 
lasting four years and two months. The commenter asked that the final 
rule extend the time period to three years and allow an additional 
three-year extension. It based its timeframe on the BLM's Wind Energy 
Development Policy (IM 2009-043), which establishes an initial three-
year time period for energy site testing and monitoring. The commenter 
goes on to say that the segregations should continue for the term of 
the ROW grant if the BLM approves the project. In addition, it urges 
the BLM to not approve discretionary mineral activities on public lands 
overlain by a renewable energy ROW and to continue the segregation so 
as to prohibit entry under the Mining Law after the ROW grant is 
issued.
    The BLM believes that the two-year timeframe, with the possibility 
of a one-time extension, for segregations under this rule provides 
sufficient time for the agency to make decisions on most applications. 
With respect to the commenter's suggestion that the rule allow for 
segregations to continue after the ROW grant is issued, the BLM notes 
two responses. First, after the BLM issues a solar or wind energy ROW 
grant, the ROW grant holder has a priority right over any subsequently 
located mining claim(s), which makes continuing the segregation during 
the term of a ROW grant unnecessary. With respect to discretionary 
mineral activities under the MLA or Materials Act, after issuance of a 
wind or solar ROW grant, the BLM would not authorize such activities 
for lands covered by such a ROW grant unless the activities will not 
have an adverse impact on the pre-existing ROW grant. Second, 
segregations are by definition temporary. The continuation of the 
segregation urged by the commenter would be tantamount to a withdrawal, 
which is beyond the scope of this rule and subject to other legal 
authorities and requirements.
    Authority. One commenter stated that the BLM lacks the authority to 
issue the rule. The BLM disagrees. FLPMA (43 U.S.C. 1740) states 
``[t]he Secretary, with respect to the public lands, shall promulgate 
rules and regulations to carry out the purposes of this Act.'' This 
section grants the Secretary broad regulatory powers to administer the 
public lands. As explained above, the orderly administration of the 
public lands includes the authority to segregate lands in order to 
avoid resource use conflicts. The commenter also stated that FLPMA does 
not allow segregation for the BLM's convenience. However, as explained 
above, the purpose of this rule is not administrative convenience, but 
rather to maintain the status quo and avoid land use conflicts that 
would restrict the efficient use of the public lands while the BLM is 
considering a wind or solar energy ROW application, but before it 
actually makes a decision on a grant. This is because, as explained 
above, the staking of a mining claim after the location of a wind or 
solar energy facility application is announced, but before a decision 
is made on the application, potentially interferes with or delays the 
BLM's evaluation of the proposed surface use. By preventing such 
conflicts, the rule facilitates the BLM's administration of the public 
lands. Moreover, after the temporary segregation period concludes under 
this rule, the covered lands would be open again to location under the 
Mining Law.
    Make a quick decision. Another commenter stated that the rule 
should require the BLM to decide ``immediately upon receiving an 
application'' whether to segregate the land under application. In the 
commenter's view, this would prevent speculative mining claims. A 
provision in the rule stating that the BLM would make an immediate 
decision regarding segregation would also eliminate what the commenter 
believes is a lack of clarity in the proposed rule as to when, or if, 
the BLM would segregate lands after a renewable energy ROW application 
has been filed. The commenter acknowledged that the BLM might not 
segregate lands covered by an application if it considers the potential 
for conflicts with new mining claims to be small. As explained above, 
the purpose of the rule is not to segregate all lands subject to a wind 
or solar energy ROW application, but rather to temporarily segregate 
the lands covered by such applications when the BLM determines that it 
is necessary for the orderly administration of the public lands. The 
completed Wind and Solar PEISs give the BLM a good indication of 
whether and where the BLM needs to segregate lands when it receives a 
wind or solar energy ROW application. For many projects the BLM may 
very well determine that no segregation is necessary. For example, 
segregations associated with a solar or wind energy application would 
not be necessary in areas with relatively low mineral development 
potential. That said, given the analyses contained in the Wind PEIS and 
Solar PEIS and other information available, the BLM should be able to

[[Page 25208]]

identify areas where there is the potential for conflicts between solar 
and wind energy development and mining claims, mineral leases or sales, 
or other land disposals determine that a segregation is necessary, and 
issue the corresponding segregation notice quickly. The BLM has 
provided additional guidance to our field offices on the use of the 
segregation authority in the ITFR, and that guidance will be carried 
forward to implement this final rule.
    Narrow the rule. One comment asked the BLM to narrow the rule to 
prevent ``anti-mining groups and others'' from filing renewable ROW 
applications over existing mining claims. The final rule was not 
revised as a result of this comment because such filings would have no 
impact. Valid existing mining claims could not be affected by 
segregations under the rule, as they would pre-date the wind or solar 
ROW application and any associated segregation. Moreover, the BLM's 
policies require wind and solar energy generation ROW applicants to 
show that their application represents a serious proposal before the 
BLM accepts the application, let alone consider segregating the land 
covered by it. Consistent with past practice and as currently outlined 
in Instruction Memorandum (IM) 2011-061 the BLM considers a number of 
criteria before processing an application, which include a requirement 
that proponents present a detailed plan of development for any proposed 
Project. Satisfaction of these requirements is a prerequisite to the 
BLM's acceptance of an application for processing, and by extension 
practically provides a threshold as to when the BLM will initiate 
segregation for a particular application. As a result, segregations 
would only occur for projects supported by substantial applications, 
thus the hypothetical applications identified by the commenter would be 
unlikely to meet BLM's criteria for acceptance, let alone be considered 
for segregations. In fact, since the effective date of the ITFR, the 
BLM has segregated only three areas with pending solar energy ROW 
applications and four areas with pending wind energy applications.
    Another commenter asked the BLM to narrow the rule so that 
segregations are allowed only when mining claims are located after the 
application. Specifically, this group asked that there be no 
segregation for claims ``that were located prior to the submission of 
a[n] application * * *.'' In other words, the group requests that where 
mining claims had been filed prior to the filing of a ROW renewable 
energy application that segregations not be allowed. No changes to the 
final rule were necessary as a result of this comment because, as 
explained above, segregations under this rule would not affect valid 
mining claims located prior to the publication of a segregation notice 
in the Federal Register. Practically, this means that valid mining 
claims located prior to the submission of a wind or solar energy 
generation ROW application for a particular area or the identification 
of such area by the BLM for a ROW application would not be affected by 
segregation under this rule.
    One commenter suggested that the BLM narrow the scope of the rule 
by using stipulations rather than segregations to prevent the filing of 
mining claims. As explained above, segregations under this rule would 
not affect valid existing mining claims. Moreover, the commenter did 
not identify a mechanism by which the BLM could impose stipulations 
that would address potential resource use conflicts created by mining 
claims that are located after a wind or solar energy application is 
announced, as the location of such claims occurs without BLM approval. 
The same commenter also views this rule as inconsistent with the BLM's 
2006 Energy and Non-energy Mineral Policy. However, the 2006 policy 
simply expresses a preference that lands remain open to the location of 
mining claims unless actions closing lands are clearly justified.\1\ 
The final rule is consistent with this preference.
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    \1\ Note: The 2006 Mineral Policy was superseded by the 2008 
Bureau of Land Management Energy and Mineral Policy, signed by BLM 
Director Caswell. This rule is also consistent with the 2008 
policy's expressed preference that the lands be open to mining claim 
filings.
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    Impact on some small-scale miners. One commenter stated that the 
cost of validity examinations would create a burden on small-scale 
miners. This rule does not affect valid existing mining claims or those 
claims located prior to the publication of a segregation notice under 
this rule, nor does it modify the surface management regulations or 
change the circumstances under which validity examinations are 
required.
    To the extent the commenter is referring to the circumstances where 
a new Plan of Operations or Notice for a prior mining claim in a 
segregated area is filed with the BLM during the two-year segregation 
period, the BLM has the discretion under the surface management 
regulations (43 CFR 3809.100(a)) to require the preparation of a 
mineral examination report before it processes the Plan of Operations 
or accepts the filed Notice. With respect to any particular Plan of 
Operation or Notice, the BLM would separately determine, on a case-by-
case basis and consistent with the requirements of the surface 
management regulations, whether to require a validity determination for 
such Plan or Notice. If the BLM requires a validity examination, the 
operator is responsible for the cost of the examination and report. 
However, knowing this it possible that operators would choose not to 
file a Notice or Plan of Operations during the segregation period for 
existing claims in segregated areas in order to avoid facing a validity 
examination, which in fact appears to be what has happened: For FYs 
2009 and 2010, 19 Plans of Operations (10 in solar application areas 
and 9 in wind application areas) and 50 Notices (12 in solar 
application areas and 38 in wind application areas) were filed with the 
BLM. No Plans of Operation or Notices were filed in FYs 2011 and 2012, 
after the ITFR was implemented. Moreover, the evaluation of a Plan of 
Operations or Notice for a mining claim filed before a segregation 
takes place would be no different from the evaluation of such a claim 
where a segregation did not exist. Therefore, the BLM has not modified 
the final rule in response to this comment.
    Working collaboratively. One commenter suggested that instead of 
segregations, the BLM require parties to work collaboratively. The BLM 
agrees that in many cases this is a preferred and effective approach. 
If existing mining claims fall within the area of a proposed renewable 
energy project, the BLM intends to pursue collaboration among the 
parties to resolve any resource use conflicts. At the same time, this 
final rule provides a valuable tool for reducing the potential for 
resource use conflicts that could occur after the BLM announces the 
receipt of a wind or solar energy application, but before the BLM 
completes its processing of that application, and thereby promotes 
collaboration.
    Alaska-specific issues. Commenters indicated concern with the way 
the rule would address State filings and withdrawals under the Alaska 
National Interest Lands Conservation Act (ANILCA). This rule does not 
create problems with respect to State filings and withdrawals under 
ANILCA. First, the rule permits segregations under certain 
circumstances, which simply provides a tool for the BLM's orderly 
administration of the public lands that can be invoked on a case-by-
case basis in connection with wind or solar energy development. The 
authority provided by this rule would not affect or amend existing 
withdrawals or withdrawal

[[Page 25209]]

authorities in Alaska or elsewhere. Second, and to the extent the 
commenter was also referring to lands selected under the Alaska Native 
Claims Settlement Act (ANCSA), the BLM does not anticipate that BLM 
lands selected for conveyance in Alaska are likely to be included in 
any renewable energy ROW applications. Part of the process of 
identifying appropriate locations for wind or solar projects includes 
an assessment of the land status of a project site under consideration. 
Therefore, theoretically, while there could be a solar or wind energy 
ROW application on lands previously selected where the selection has 
yet to be approved for conveyance, the BLM believes this is unlikely to 
occur. Put another way, the fact that a parcel had been selected under 
ANCSA could call into question the appropriateness of a proposed site 
for wind or solar energy development. Moreover, as noted above, 
segregations under this rule are not automatic and the authority will 
only be invoked when circumstances dictate as outlined above. 
Furthermore, the segregation of land under this rule would only be for 
a two-year period, with the potential for a one-time two-year 
extension. Finally, the BLM will follow ANILCA Section 906(k)(1), which 
requires state concurrence for any ROW filings made on lands selected 
by the State as part of the review process.
    Two commenters pointed out that ANILCA withdrawals exceeding 5,000 
acres require congressional approval within a year. One of the 
commenters added that segregation is the equivalent of a withdrawal and 
requires the same congressional action as a withdrawal. These 
assertions are incorrect. Segregations under this rule are not 
withdrawals. Temporary segregations are different from withdrawals in 
that segregations prevent certain uses of public lands for a short 
period of time, not to exceed four years for any type of segregation, 
while withdrawals are generally for longer terms (generally 20 years) 
and must be approved by an Assistant Secretary or a higher ranked 
position within the Department.

III. Discussion of the Final Rule

    This rule revises 43 CFR 2091.3-1 and 2804.25 by adding language 
that allows the BLM to segregate lands if the BLM determines it is 
necessary for the orderly administration of the public lands. This 
authority to segregate lands is limited to lands included in a pending 
or future wind or solar energy ROW application, or public lands the BLM 
identifies for such applications. 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 would remain open under the MLA and the Materials Act, 
subject to valid existing rights.
    The final rule does not differ from the proposed rule or the ITFR 
in any substantive way. Some language in the final rule has been 
revised to shorten sentences to make the rule easier to read and 
understand and to cite statutes already discussed in the proposal and 
ITFR. Because today's rule replaces the ITFR, the ITFR's provisions 
limiting segregations to two years (see sections 2091.3-1(e)(3) and 
2804.25(e)(3)) are no longer necessary and have been removed from the 
final rule. See the discussion below of the authority for a BLM State 
Director to extend a segregation, with sufficient justification, for an 
additional period not to exceed two years.
    Segregations under this rule end after two years (unless extended 
for up to two additional years) and the lands automatically reopen to 
appropriation under the public land laws, including the mining laws. 
Segregations under this rule may end sooner if, prior to the end of the 
two-year period:
    (1) The BLM issues a decision on the wind or solar energy ROW 
application associated with the segregation; or
    (2) The BLM publishes a Federal Register notice terminating the 
segregation.
    (3) This final rule allows a BLM State Director to extend the 
segregation for up to an additional two years if a 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. If the State Director 
determines that an extension is necessary, the BLM will publish an 
extension notice in the Federal Register. The extension of the 
segregation would not be for more than two years. The maximum total 
segregation period under the rule may not exceed four years.

IV. Procedural Matters

Executive Order 12866, Regulatory Planning and Review

    This rule is not a significant regulatory action \2\ and is not 
subject to review by the Office of Management and Budget under 
Executive Order 12866. The 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 MLA 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 made some assumptions concerning when and how 
often this segregation authority may be exercised. The purpose of any 
segregation would be to facilitate the orderly administration of the 
public lands by avoiding potential resource use conflicts between 
renewable energy developments and mining claims located after the lands 
for such development have been identified.
---------------------------------------------------------------------------

    \2\ `` `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 
affect in a material way the economy[hellip]; (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[hellip]; or (4) 
Raise novel legal and policy issues arising out of legal mandates, 
the President's priorities, or[hellip] this Executive Order.'' Exec. 
Order No. 12866, 58 FR 51738 (Oct. 4, 1993).
---------------------------------------------------------------------------

    Wind--Wind energy ROW site-testing and development applications are 
widely distributed across many western states. 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. 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 
Law. In fiscal years (FY) 2009 and 2010, more than 400 new mining 
claims were located within wind energy ROW application areas in 
Arizona, California, Idaho, Nevada, Oregon, Utah, and Wyoming. There 
were about 50 claimants or an average of about eight claims per 
claimant. Without trying to identify specific locations of new mining 
claims located within those application areas, based on the economic 
analysis prepared in 2011 for the proposed rule, the BLM assumed a 
quarter of those new mining claims, or over 100 new mining claims, 
would be prevented from being located within wind application areas 
that would be segregated under this rule and that approximately 300 new 
claims would be filed. However, since implementing the ITFR to 
segregate lands where the BLM

[[Page 25210]]

has reached the NOI stage of the applications for wind energy ROW 
authorizations, only 13 new mining claims have been filed in three 
states on the non-segregated areas with wind energy application areas.
    The actual number of claimants affected will likely be less than 
the number of claims filed, because a single claimant typically files 
and holds multiple mining claims. Of the new mining claims filed within 
the wind energy ROW application areas in FYs 2009 through 2012, 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 those years, the BLM estimates that 14 entities 
would be potentially precluded from filing new mining claims on lands 
that would be segregated in the future 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 ROW grants 
issued during the temporary segregation period. However, a meaningful 
estimate of the value of such delays is difficult to quantify given the 
available data as it depends on commercial viability of any individual 
claim. Also, the location of a mining claim is an early step in a long 
process that may or may not ultimately result in revenue generating 
activity for the claimant.
    The other situation in which entities might be affected by the 
segregation provision is if a new Plan of Operations or Notice for a 
prior mining claim is filed with the BLM during a two-year segregation. 
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 before it processes the Plan of 
Operations or accepts the filed Notice. If required, the operator is 
responsible for paying the cost of the examination and report. However, 
the evaluation of a plan of operations or notice for a mining claim 
filed before a segregation takes place would be no different than the 
evaluation of such a claim where a segregation did not exist.
    In 2009 and 2010, nine Plans of Operations and 38 Notices were 
filed with the BLM on claims located within wind ROW application areas. 
No plans or notices were filed in 2011 or 2012. Assuming; (1) a quarter 
of those filings were on lands segregated under this rule, (2) the 
number of Plan and Notice filings received between FYs 2009 and 2012 is 
representative of the number of filings that might occur in the future 
on segregated lands, and (3) the BLM required mineral examination 
reports to determine claim validity on all Plans and Notices filed on 
lands that may be segregated, the BLM estimates that two entities might 
be affected by this rule over a two-year period.\3\ However, it is also 
possible that operators would choose not to file a Notice or Plan of 
Operations during the segregation period in order to avoid facing a 
validity examination. Should the BLM require the preparation of mineral 
examination reports while the lands are segregated to determine mining 
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, the BLM assumes 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, and the number of entities anticipated to be 
affected, the BLM estimates the total cost of this provision would be 
about $100,000 per year.
---------------------------------------------------------------------------

    \3\ With 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.
---------------------------------------------------------------------------

    Solar--Like wind, most of the public lands with pending solar 
energy ROW applications are currently managed for multiple resource 
use, including mineral entry under the Mining Law. Where the BLM 
segregates lands from mineral entry, claimants would not be allowed to 
locate any new mining claims during the segregation period. Over the 
past two years, 26 new mining claims were located within solar energy 
ROW application areas that were not segregated by the ITFR. For the 
prior two years (2009 and 2010), over 200 new mining claims were filed. 
Based on the BLM's recent experience processing solar energy ROW 
applications, the BLM anticipates that approximately 25 percent of the 
lands with current solar energy ROW applications would reach the 
processing stage where an NOI is issued and therefore the BLM could 
segregate the areas. Without trying to identify which ROWs would be 
granted or the specific locations of new mining claims within those 
application areas, the BLM assumes based on the economic analysis 
prepared in connection with this rule that a quarter of those new 
mining claims, or about 50 new mining claims, would be prevented from 
being located within solar ROW application areas that could be 
segregated under this rule and that approximately 150 new claims would 
be located in the non-segregated solar energy application areas.
    The actual number of claimants affected will likely be less than 50 
because a single claimant typically locates and holds multiple mining 
claims. Of the existing mining claims located within solar energy ROW 
application areas, 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, the BLM estimates six to 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 could locate their 
mining claim and a potential delay in the development of such claim 
because such development would be subject to any ROW grants issued 
during the temporary segregation period. However, a meaningful estimate 
of the value of such delays is difficult to quantify given the 
available data as it depends on the 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 or may not ultimately result in 
revenue generating activity for the claimant.
    As with wind, the other situation in which entities might be 
affected by these segregation provisions is when a new Plan of 
Operations or Notice for an existing mining claim is filed with the BLM 
during a two-year segregation for a solar project. In such a situation, 
the BLM has the discretion under the Surface Management Regulations (43 
CFR subpart 3809) to require a mineral examination report 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. However, the evaluation of a plan of operations 
or notice for a mining claim filed before a segregation takes place 
would be no different than the evaluation of such a claim where a 
segregation did not exist.
    For FYs 2009 and 2010, 10 Plans of Operations and 12 Notices were 
filed with the BLM for existing claims within solar ROW application 
areas. No Plans of Operation or Notices were filed in FYs 2011 and 
2012. Assuming: (1) A quarter of those filings in 2009 and 2010

[[Page 25211]]

were on lands now segregated under this rule; (2) the number of Plan 
and Notice filings received in FYs 2009 through 2012 is representative 
of the number of filings that might occur on lands that may be 
segregated; and (3) the BLM required mineral examination reports to 
determine claim validity on all Plans and Notices filed within 
segregated lands, the BLM estimates one entity might be affected by 
this rule.\4\ However, it is also possible that operators would choose 
not to file a notice or plan of operations during the segregation 
period in order to avoid facing a validity examination. Should the BLM 
require a mineral examination while the lands are segregated to 
determine mining claim validity, the entity filing the Plan or Notice 
would be responsible for the cost of making that validity 
determination. As above, the BLM assumes 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 four years, and the number of entities anticipated to be 
affected, the BLM estimates the total cost of this provision would 
average about $50,000 per year.
---------------------------------------------------------------------------

    \4\ With 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.
---------------------------------------------------------------------------

    It is not possible to estimate the number of future ROWs 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 
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 a given 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. We used an analysis of 
activity in 2009 and 2010 to predict the amount of activity that would 
occur or be prevented in 2011 and 2012. The actual activity in 2011 and 
2012, when the ITFR was in effect, was much less than predicted. 
However, we consider our use of the 2009 and 2010 data to be a 
reasonable basis for the economic impacts of this rule.
    Based on this analysis, the BLM concludes that this rule does not 
have an annual effect of $100 million or more on the economy. It does 
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 rule does not create 
a serious inconsistency or otherwise interfere with an action taken or 
planned by another agency. This 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.

National Environmental Policy Act

    The BLM has determined that this rule is administrative in nature 
and involves only procedural changes addressing segregation 
requirements. Temporary segregations under this rule would result in no 
new surface disturbing activities and, therefore, would have no effect 
on ecological or cultural resources. Potential effects from the wind 
and/or solar ROWs associated with such segregations would 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. As result, 
it is categorically excluded from environmental review under section 
102(2)(C) of NEPA, pursuant to 43 CFR 46.205 and 46.210(f), (i). The 
rule does not meet any of the extraordinary circumstances criteria for 
categorical exclusions listed at 43 CFR 46.215. Under Council on 
Environmental Quality regulations (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 has 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. The BLM anticipates that this 
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 applications either currently pending or filed in 
the future. Based on the economic analysis prepared for this rule, the 
BLM further anticipates that most of these entities would be small 
entities as defined by the Small Business Administration; however, as 
explained in this preamble and in the proposed rule, the BLM does not 
expect the potential impact to be significant. Therefore, the BLM has 
determined under the RFA that this rule will 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 rule is 
not a ``major rule'' as defined at 5 U.S.C. 804(2). That is, it will 
not have an annual effect on the economy of $100 million or more; it 
will not result in major cost or price increases for consumers, 
industries, government agencies, or regions; and it will 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.

Unfunded Mandates Reform Act

    This rule will 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 will it have a significant or unique 
effect on State, local, or tribal governments. The rule will not impose 
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.).

[[Page 25212]]

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

    This rule is not a government action that interferes with 
constitutionally protected property rights. This rule sets out a 
process which could be used to temporarily segregate, by publication of 
a notice in the Federal Register, 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. Such segregations would remove 
those public lands from the operation of the public land laws, 
including the location of new mining claims under the Mining Law, but 
not the MLA or the Materials Act, for a period of up to two years. The 
rule allows a BLM State Director to extend the segregation for up to an 
additional two-year period based on a written finding that such 
extension is necessary to promote the orderly administration of the 
public lands. Because any segregation under this rule would be subject 
to valid existing rights, it does not interfere with constitutionally 
protected property rights. Therefore, the Department has determined 
that this 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 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 will 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 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 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 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 lands held in trust for the benefit of tribes or individual Indians 
that are managed by the Bureau of Indian Affairs.

Information Quality Act

    In developing this final rule, the BLM did not conduct or use a 
study, experiment, or survey requiring peer review under the 
Information Quality Act (Section 515 of Public Law 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 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 is 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 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 rule will 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 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, and the Office of the Solicitor, 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

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 paragraph (e) to read as follows:

Sec.  2091.3-1  Segregation.

* * * * *
    (e)(1) The Bureau of Land Management may segregate, if it finds it 
necessary for the orderly administration of the public lands, lands 
included in a right-of-way application under 43 CFR subpart 2804 for 
the generation of electrical energy from wind or solar sources. In 
addition, the Bureau of Land Management may also segregate lands that 
it identifies for potential rights-of-way for electricity generation 
from wind or solar sources when initiating a competitive process for 
solar or wind development on particular lands. Upon segregation, such 
lands will not be subject to appropriation under the public land laws, 
including location under the Mining Law of 1872, (30 U.S.C. 22 et 
seq.), but would remain open under 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

[[Page 25213]]

seq.). The BLM will effect a segregation by publishing a Federal 
Register notice that includes a description of the lands being 
segregated. The BLM may effect segregation in this way for 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. The segregation terminates 
consistent with subpart 2091.3-2 and the lands automatically open on 
the date that is the earliest of the following:
    (i) When the BLM issues a decision granting, granting with 
modifications, or denying the application for a right-of-way;
    (ii) Automatically at the end of the segregation period stated in 
the Federal Register notice initiating the segregation, or
    (iii) Upon publication of a Federal Register notice terminating the 
segregation and opening the lands in question.
    (3) The segregation period may not exceed 2 years from the date of 
publication in the Federal Register of the notice initiating the 
segregation, unless the 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 the State Director determines an extension is necessary, the 
Bureau of Land Management will extend the segregation for up to 2 years 
by publishing a notice in the Federal Register, prior to the expiration 
of the initial segregation period. Segregations under this part may 
only be extended once and the total segregation period may not exceed 4 
years.

PART 2800--RIGHTS-OF-WAY UNDER THE FEDERAL LAND POLICY 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 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 necessary for the 
orderly administration of the public lands, lands included in a right-
of-way application under 43 CFR subpart 2804 for the generation of 
electrical energy from wind or solar sources. In addition, the Bureau 
of Land Management may also segregate lands that it identifies for 
potential rights-of-way for electricity generation from wind or solar 
sources when initiating a competitive process for solar or wind 
development on particular lands. Upon segregation, such lands would not 
be subject to appropriation under the public land laws, including 
location under the Mining Law of 1872 (30 U.S.C. 22 et seq.), but would 
remain open under 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 
would effect a segregation by publishing a Federal Register notice that 
includes a description of the lands being segregated. The BLM may 
effect segregation in this way for 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. Consistent with 43 CFR 2091-3.2, 
the segregation terminates and the lands automatically open on the date 
that is the earliest of the following:
    (i) When the BLM issues a decision granting, granting with 
modifications, or denying the application for a right-of-way;
    (ii) Automatically at the end of the segregation period stated in 
the Federal Register notice initiating the segregation; or
    (iii) Upon publication of a Federal Register notice terminating the 
segregation and opening the lands.
    (3) The segregation period may not exceed 2 years from the date of 
publication in the Federal Register of the notice initiating the 
segregation, unless the 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 the State Director determines an extension is necessary, the 
BLM will extend the segregation for up to 2 years by publishing a 
notice in the Federal Register, prior to the expiration of the initial 
segregation period. Segregations under this part may only be extended 
once and the total segregation period may not exceed 4 years.

    Dated: April 23, 2013.
Tommy P. Beaudreau,
Acting Assistant Secretary of the Interior, Land and Minerals 
Management.
[FR Doc. 2013-10087 Filed 4-29-13; 8:45 am]
BILLING CODE 4310-84-P
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