[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Pages 32351-32354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15994]



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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Part 2920

[WO-350-1430-00-24 1A; Circular No. 2661]
RIN 1004-AB51


Leases, Permits, and Easements; Effective Dates of Permit 
Decisions; Appeal Procedure

AGENCY: Bureau of Land Management, Interior.
ACTION: Final rule.

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SUMMARY: This final rule amends the general lease and permit 
regulations of the Bureau of Land Management (BLM). It provides that 
BLM general use, occupancy, and development permit decisions will take 
effect immediately if the contemplated uses meet the requirements for 
minimum impact permits under the existing regulations. Permits issued 
under such decisions will remain in effect during the pendency of any 
appeal to the Interior Board of Land Appeals (IBLA), unless IBLA stays 
the decision. The regulatory text in the rule pertains only to minimum 
impact permits. If a proposed use does not satisfy the requirements for 
a minimum impact permit under the existing regulations (that is, if the 
proposed use would conflict with BLM plans, policies, and programs for 
the affected lands, or local zoning ordinances, or cause appreciable 
damage to public lands or resources or improvements), the requested 
permit would not qualify as a minimum impact permit and the provision 
adopted today would not apply. In such a case, BLM would not issue a 
permit until the applicant meets all the requirements contained in the 
existing regulations. Appeals of permits other than minimum impact 
permits are not affected by this final rule. Similarly, appeals of BLM 
lease decisions are not affected by this rule. These appeals of BLM 
decisions to issue leases and non-minimum impact permits will continue 
to be governed by the general appeal procedures of the Department of 
the Interior, and the use authorizations appealed will not take 
immediate effect under this rule. The amendments to the appeals process 
in this final rule are needed to avoid delays in BLM's issuance of 
permits for environmentally benign public land uses.

EFFECTIVE DATE: July 24, 1996.

ADDRESSES: You may send inquiries or suggestions to: Director (350), 
Bureau of Land Management, 1849 C Street, NW, Washington, D.C. 20240.

FOR FURTHER INFORMATION CONTACT: Vanessa Engle, as to the permit 
program, (202) 452-7776, or Jeff Holdren, as to the rule or the permit 
program, (202) 452-7779.

SUPPLEMENTARY INFORMATION:

I. Background
II. Final Rule and Response to Comments
III. Procedural Matters

I. Background

A. Summary of the Bureau of Land Management Permit Program

    The existing regulations in 43 CFR part 2920 contain procedures for 
many types of land users to obtain authorizations in the form of 
permits, leases, and easements to use, occupy, and develop public lands 
and their resources. BLM's statutory authority to allow these uses is 
found in Section 302 of the Federal Land Policy and Management Act of 
1976 (43 U.S.C. 1732) (FLPMA). BLM's general authority for issuing 
regulations is found in Section 310 of FLPMA (43 U.S.C. 1740). This 
final rule relates only to permits issued for uses causing minimal 
environmental impacts on lands and resources, and does not pertain to 
leases, easements, or other permits.
    BLM authorizes only those uses that conform to applicable law, and 
to BLM plans, policies, objectives, and resource management programs. 
Permits are normally issued for short-term uses that do not exceed 3 
years. (Uses with terms shorter than 3 years but involving heavier 
impacts may require leases.) Permits are required for activities that 
disrupt normal visitor activity or other authorized uses, or involve 
the placement, storage, or use of temporary structures or facilities, 
or materials or equipment. BLM may terminate a permit immediately for 
noncompliance, or to allow another disposition or use of the lands. 
Typical uses requiring permits under these regulations are equipment 
storage, beekeeping, motion picture and advertising photography, and 
scientific research. The regulations in part 2920 do not cover specific 
activities governed by other regulations in this title, such as grazing 
(43 CFR part 4100), mining (parts 3700 and 3800), mineral leasing 
(parts 3100, 3200, 3400, and 3500), mineral material sales (part 3600), 
and timber sales (part 5400). Also, certain activities require no 
authorization, such as still photography not intended for advertising 
purposes. There is no need to apply for a permit or lease for such 
activities.
    Section 2920.2-2 authorizes the issuance of permits for activities 
that cause no appreciable impacts on the public lands, their resources 
or

[[Page 32352]]

improvements. If a proposed use qualifies for a minimum impact permit 
under section 2920.2-2, BLM is not required to publish a notice of 
realty action under section 2920.4.

B. Proposed Rules

    The final rule published today is a stage of a rulemaking process 
that will culminate in the comprehensive revision of the lease and 
permit regulations in 43 CFR part 2920. The rule published today 
addresses only the effective date of minimum impact land use permits. 
This rule was preceded by publication of two proposed rules, the first 
proposing to revise the entire part 2920, and the second proposing to 
amend the part by adding new provisions or changing previously proposed 
provisions.
    The first proposed rule was published in the Federal Register on 
November 21, 1990 (55 FR 48810). This proposed rule was intended to 
streamline the land use approval process by removing a category of 
authorizations (easements) and cumbersome administrative procedures. 
The BLM invited public comments for 60 days, and received comments from 
16 sources: 10 from offices of Federal agencies, 2 from business 
entities, 1 from an association, and 3 from State government agencies.
    After the public comment period closed, a controversy arose 
concerning issuance of filming permits. Some parties expressed concerns 
about potential environmental degradation related to commercial 
activities, particularly permits for feature films. Other parties, 
primarily filmmakers and those who provide services to them, including 
State and local government agencies, objected to provisions that allow 
delay when parties file administrative appeals of film permits.
    The BLM published a further proposed rule in the Federal Register 
on February 9, 1995 (60 FR 7878), which was intended to allow more 
expeditious processing and issuance of permits. It also would have 
provided for immediate implementation of certain types of permits. The 
further proposed rule designated two categories of permits: ``minimum 
impact permits'' and ``full permits.'' ``Minimum impact permits'' were 
to be issued for activities having a minimal impact on the public lands 
and their resources. These permits were to become effective immediately 
upon execution by the BLM authorized officer and were not to be subject 
to the general stay process in 43 CFR 4.21(a). ``Full permit'' 
decisions (and also lease issuance decisions) would have remained 
subject to the 43 CFR 4.21 stay provisions. The further proposed rule 
contained a set of criteria for determining when a full permit would be 
required.
    The BLM sought public response in the further proposed rule to 
specific questions relating to permits and rental schedules. Only the 
first question related to appeals, and is discussed below. The 
remaining questions will be discussed when the final rule revising part 
2920 is published. The first question read as follows:

    1. Under the existing regulations, all permits and leases are 
subject to a 30-day appeal period before they become effective. The 
1990 proposed rule would make all leases and permits effective 
immediately upon issuance by the BLM authorized officer. Under the 
1995 further proposed rule, only minimum impact permits would be 
effective immediately; leases and other permits would remain subject 
to the 30-day waiting period prescribed in 43 CFR part 4. Which 
approach do you think is appropriate?

    The overwhelming public response to this question urged that all 
permits and leases be effective immediately. This final rule adopts 
this recommendation only as to the minimum impact permits provided for 
in section 2920.2-2 of the regulations in the 1995 and earlier editions 
of 43 CFR. General land use leases, and permits with more than minimal 
effects, will remain subject to 43 CFR 4.21.
    In the further proposed rule, BLM also invited public comment on 
several other provisions that were not in the original proposed rule. 
The further proposed rule would have added rental and fee schedules for 
commercial filming and photography, and would have addressed hazardous 
materials, outdoor advertising, criminal penalties, and conforming 
applications to land use planning. The BLM will resolve these issues in 
its forthcoming final rule revising part 2920.
    The BLM received approximately 800 comments on the further proposed 
rule from the filming and photography industries, State and local 
government agencies, individuals and environmental organizations. The 
great majority of the public comments opposed the further proposed rule 
as overly complex, specific, and burdensome.

II. Final Rule and Response to Comments

New section 2920.0-9

    This section explains the information collection requirements 
contained in part 2920, and is added in the final rule to comply with 
the publication requirements of the Code of Federal Regulations. The 
material in this section appeared in the 1995 and earlier editions of 
43 CFR as a ``Note'' at the beginning of Group 2900, and in the 
preamble to the original proposed rule published on November 21, 1990. 
This material must appear in the regulation text.

Amended section 2920.2-2 Minimum impact permits.

    New paragraph 2920.2-2(b) is added to cover appeals of minimum 
impact permit decisions. Appeals were provided for in subpart 2924 in 
the 1990 proposed rule. In the further proposed rule, part 2920 was 
reorganized so that section 2921.8 pertained to appeals. Designation of 
the appeals section in the rule adopted today is dictated by the 
organization of part 2920 as presently constituted. Existing section 
2920.2 is an umbrella heading addressing public-initiated land use 
proposals. Existing section 2920.2-2 allows the issuance of minimum 
impact permits in appropriate circumstances. New paragraph 2920.2-2(b) 
covers appeals of decisions on these permits and makes it clear that 
its provisions pertain only to minimum impact permits issued under 
section 2920.2-2. This final rule does not affect appeals of penalties 
for unauthorized use and appeals of determinations that land use 
proposals do not conform to approved land use plans. New paragraph 
2920.2-2(b) may be renumbered and amended when a comprehensive final 
rule revising part 2920 is published.
    The final rule published today provides that all BLM permit 
decisions made under section 2920.2-2 will be effective immediately and 
remain in effect during the time allowed for filing an administrative 
appeal to the IBLA. Section 2920.2-2 applies only to land uses that 
have minimum impacts on the public lands and resources. To meet this 
standard, the use must be in conformance with BLM resource management 
plans or other plans for the particular lands affected, and with BLM 
policies and programs. The use must also conform with local zoning 
ordinances and all other legal requirements, including the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). The 
permitted use must not cause appreciable damage or disturbance to 
public lands, their resources or improvements. The BLM will not grant a 
permit under section 2920.2-2 if the permit proposal fails to meet any 
one of these requirements.
    Lease applications, and permit proposals that do not meet the 
minimum impact standards stated in section 2920.2-2, are not effective 
immediately upon issuance. For example, if BLM finds that the proposed

[[Page 32353]]

use does not conform to resource management plans, or local zoning, BLM 
does not authorize the use until the procedures contained in the 
remainder of part 2920 have been followed and until the applicant meets 
its requirements.
    Based on its recent experience in administering the film permit 
program, the BLM expects that the great majority of permits issued 
under part 2920 will meet the standards set forth in section 2920.2-2, 
and that problems arising during the consideration of these permits 
will be resolved by consultation among BLM, the applicant, and other 
interested persons. In some instances, a person may wish to appeal and 
seek a stay of BLM's decision to issue a permit under section 2920.2-2 
until the appeal is resolved. When the appeal is filed, the procedures 
in 43 CFR 4.21(b) will be applicable. However, the permit issued will 
remain in effect until IBLA grants a stay.
    Most respondents addressing the date a permit would become 
effective in the further proposed rule wanted all permits to be made 
effective immediately and to remain in effect while an administrative 
appeal is pending. Respondents emphasized the need to rely on the 
discretion of local BLM managers to gather data and make an informed 
decision, while complying with the National Environmental Policy Act of 
1969 (NEPA) (42 U.S.C. 4321 et seq.), and other environmental laws. As 
stated earlier, BLM anticipates that, under the final rule, most 
permits will meet the requirements for minimum impact permits in 
section 2920.2-2(a), and will be issued in full force and effect under 
section 2920.2-2(b).
    One respondent suggested that the rule should provide appellants 
the option of petitioning the State Director for a stay, before 
appealing to IBLA, to allow a more expeditious remedy. The BLM has not 
adopted this suggestion in the final rule because it would create an 
unnecessarily cumbersome and burdensome bureaucratic step in the permit 
appeal process.
    Finally, an editorial amendment is made in section 2920.2-2 as it 
appeared in the 1995 and earlier editions of 43 CFR. This section is 
redesignated as paragraph (a) in the rule published today. Because 
``permit'' is defined as an authorization in section 2920.0-5, the word 
``authorization'' in the phrase ``permit for a land use authorization'' 
is redundant and has been removed in this final rule.

III. Procedural Matters

    The principal author of this final rule is Jeff Holdren of the Use 
Authorization Team, BLM, Washington, DC.
    The BLM has determined in an environmental analysis that this final 
rule does not constitute a major Federal action significantly affecting 
the quality of the human environment, and that no detailed statement 
pursuant to section 102(2)(C) of the National Environmental Policy Act 
of 1969 (42 U.S.C. 4332(2)(C)) is required. The rule merely simplifies 
and streamlines the permit process for uses found to have minimum 
environmental impact. Under this rule, all applications for permits or 
leases remain subject to environmental analysis, and if an 
environmental impact statement is necessary, minimum impact permits 
will not be issued.
    This rule was not subject to review by the Office of Management and 
Budget under Executive Order 12866.
    The rule will have little effect on costs or prices for consumers, 
nor will there be a need for increasing Federal, State, or local agency 
budget or personnel requirements. By promulgating regulations that 
merely streamline the permit issuance process, the rule will result in 
little or no change in revenue for the United States, although improved 
efficiency should reduce administrative costs. Any revenue changes 
realized would not have a measurable impact on the economy and would 
not approach $100 million annually. The rule will have no other 
expected economic effects and contain no increased costs to the United 
States or users of the public lands.
    For the same reasons, the Department has determined under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) that the rule will 
not have a significant economic impact on a substantial number of small 
entities. The rule favors no demographic group, and imposes no direct 
or indirect costs on small entities. It merely expedites the process of 
issuing permits.
    Because the rule will result in no taking of private property and 
no impairment of property rights, the Department certifies that this 
rule does not represent a governmental action capable of interference 
with constitutionally protected property rights, as required by 
Executive Order 12630.
    BLM has determined that this rule is not significant under the 
Unfunded Mandates Reform Act of 1995, because it will not result in the 
expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $100 million or more in any one year, as 
stated above.
    This rule does not contain information collection requirements that 
require approval by the Office of Management and Budget under 44 U.S.C. 
3501 et seq..

List of Subjects in 43 CFR Part 2920

    Public lands, Reporting and recordkeeping requirements.

    Dated: June 5, 1996.
Sylvia V. Baca,
Acting Assistant Secretary of the Interior.
    Under the authority of Sections 102, 302, 303, 304, and 310 of the 
Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701, 1732, 
1733, 1734 and 1740) part 2920, Group 2900, Subchapter B, Chapter II of 
the Code of Federal Regulations, is amended as follows:

PART 2920--LEASES, PERMITS AND EASEMENTS

    1. The Note at the beginning of Group 2900 is removed.
    2. The authority citation for part 2920 is revised to read as 
follows:

    Authority: 43 U.S.C. 1740.

    3. Section 2920.0-9 is added to read as follows:


Sec. 2920.0-9  Information collection.

    (a) The information collection requirements contained in Part 2920 
have been approved by the Office of Management and Budget under 44 
U.S.C. 3501 et seq., and assigned clearance number 1004-0009. The BLM 
will use the information in considering land use proposals and 
applications. You must respond to obtain a benefit under Section 302 of 
the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1732).
    (b) Public reporting burden for this information is estimated to 
average 7.43 hours, including the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information. 
Send comments regarding this burden estimate or any other aspect of 
this collection of information, including suggestions for reducing the 
burden, to the Information Collection Clearance Officer, Bureau of Land 
Management (DW-101), Building 50, Denver Federal Center, P.O. Box 
25047, Denver, Colorado 80225, and to the Office of Management and 
Budget, Paperwork Reduction Project, 1004-0009, Washington, D.C. 20503.
    4. Section 2920.2-2 is amended by redesignating the existing text 
as

[[Page 32354]]

paragraph (a), by removing the word ``authorization'' from paragraph 
(a), and by adding paragraph (b) to read as follows:


Sec. 2920.2-2  Minimum impact permits.

* * * * *
    (b) Permit decisions made under paragraph (a) of this section take 
effect immediately upon execution, and remain in effect during the 
period of time specified in the decision to issue the permit. Any 
person whose interest is adversely affected by a decision to grant or 
deny a permit under paragraph (a) of this section may appeal to the 
Board of Land Appeals under part 4 of this title. However, decisions 
and permits issued under paragraph (a) of this section will remain in 
effect until stayed.

[FR Doc. 96-15994 Filed 6-21-96; 8:45 am]
BILLING CODE 4310-84-P