50196 Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Rules and Regulations 

National Environmental Policy Act 

The FHWA has analyzed this action 

for the purposes of the National 

Environmental Policy Act of 1969, as 

amended (42 U.S.C. 4321–4347) and has 

determined that this action will not 

have any effect on the quality of the 

environment. 

Executive Order 13175 (Tribal 

Consultation) 

The FHWA has analyzed this action 

under Executive Order 13175, dated 

November 6, 2000, and believes that the 

final rule would not have substantial 

direct effects on one or more Indian 

tribes; would not impose substantial 

compliance costs on Indian tribal 

governments; and will not preempt 

tribal law. Therefore, a tribal summary 

impact statement is not required. 

Executive Order 13211 (Energy Effects) 

We have analyzed this final rule 

under Executive Order 13211, Actions 

Concerning Regulations that 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a significant 

energy action under that order because 

it is not a significant regulatory action 

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution or use of 

energy. Therefore, a Statement of Energy 

Effects is not required. 

Regulation Identification Number 

A regulation identification number 

(RIN) is assigned to each regulatory 

section listed in the Unified Agenda of 

Federal Regulations. The Regulatory 

Information Service Center publishes 

the Unified Agenda in April and 

October of each year. The RIN contained 

in the heading of this document can be 

used to cross-reference this section with 

the Unified Agenda. 

List of Subjects in 23 CFR Part 630 

Reimbursement, Grants programs—

transportation, Highways and roads. 

Issued on: August 15, 2008. 

James D. Ray, 

Acting Federal Highway Administrator. 

■ In consideration of the foregoing, the 

FHWA amends Chapter I of title 23, 

Code of Federal Regulations, by revising 

Part 630, as set forth below. 

PART 630—PRECONSTRUCTION 

PROCEDURES 

■ 1. The authority citation for part 630 

is revised to read as follows: 

Authority: 23 U.S.C. 106, 109, 112, 115, 

315, 320, and 402(a); Sec. 1501 and 1503 of 

Public Law 109–59, 119 Stat. 1144; Public 

Law 105–178, 112 Stat. 193; Public Law 104–

59, 109 Stat. 582; Public Law 97–424, 96 Stat. 

2106; Public Law 90–495, 82 Stat. 828; Public 

Law 85–767, 72 Stat. 896; Public Law 84–

627, 70 Stat. 380; 23 CFR 1.32 and 49 CFR 

1.48(b). 

■ 2. Revise § 630.703 to read as follows: 

§ 630.703 Eligibility. 

(a) The State Department of 

Transportation (DOT) may proceed with 

a project authorized in accordance with 

title 23, United States Code: 

(1) Without the use of Federal funds; 

and 

(2) In accordance with all procedures 

and requirements applicable to the 

project other than those procedures and 

requirements that limit the State to 

implementation of a project—

(i) With the aid of Federal funds 

previously apportioned or allocated to 

the State; or 

(ii) With obligation authority 

previously allocated to the State. 

(b) The FHWA, on the request of a 

State and execution of a project 

agreement, may obligate all or a portion 

of the Federal share of a project 

authorized to proceed under this section 

from any category of funds for which 

the project is eligible. 

§ 630.709 [Amended] 

■ 3. Amend § 630.709 by removing the 

term ‘‘SHA’’ in each place it appears, 

and add in its place the term ‘‘State 

Department of Transportation.’’

[FR Doc. E8–19636 Filed 8–25–08; 8:45 am] 

BILLING CODE 4910–22–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2008–0823] 

RIN 1625–AA87 

Security Zone: Rocket Launch, NASA 

Wallops Flight Facility (WFF), Wallops 

Island, VA 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The U. S. Coast Guard is 

establishing a security zone extending 

12 nautical miles offshore from the MidAtlantic Regional Spaceport (MARS) 

Pad 0B launch complex for the launch 

of a large suborbital test rocket by the 

National Aeronautics and Space 

Administration (NASA). The NASA 

rocket launch is scheduled to occur 

between 2 a.m. and 4 p.m. on August 

21, 2008, on Wallops Island, VA. If the 

launch is postponed because of 

inclement weather or technical 

difficulties, it will be attempted between 

2 a.m. and 4 p.m. on each subsequent 

day after August 21, 2008, until the 

launch takes place or until 4 p.m. 

August 30, 2008. After August 30, 2008, 

the rule will no longer be in effect. This 

action is necessary to ensure the safety 

of persons and property, and to prevent 

terrorist acts or incidents on U.S. 

navigable waters during the rocket 

launch. This rule prohibits vessels and 

people from entering the security zone 

and requires vessels and persons in the 

security zone to depart the security 

zone. 

DATES: This rule is effective from 2 a.m. 

on August 21, 2008, through 4 p.m. on 

August 30, 2008. 

ADDRESSES: Documents indicated in this 

preamble as being available in the 

docket are part of docket USCG–2008–

0823 and are available online at 

http://www.regulations.gov. They are 

also available for inspection or copying 

in two locations: the Docket 

Management Facility (M–30), U.S. 

Department of Transportation, West 

Building Ground Floor, Room W12–140, 

1200 New Jersey Avenue, SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays; and the Sector 

Hampton Roads, Norfolk Federal 

Building, 200 Granby St., 7th Floor, 

Norfolk, VA 23510 between 9 a.m. and 

2 p.m., Monday through Friday, except 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this temporary 

rule, call LT Tiffany Duffy, Chief 

Waterways Management Division, 

Sector Hampton Roads at (757) 668–

5580. If you have questions on viewing 

the docket, call Renee V. Wright, 

Program Manager, Docket Operations, 

telephone 202–366–9826. 

SUPPLEMENTARY INFORMATION: 

Regulatory Information 

The Coast Guard is issuing this 

temporary final rule without prior 

notice and opportunity to comment 

pursuant to authority under section 4(a) 

of the Administrative Procedure Act 

(APA) (5 U.S.C. 553(b)). This provision 

authorizes an agency to issue a rule 

without prior notice and opportunity to 

comment when the agency for good 

cause finds that those procedures are 

‘‘impracticable, unnecessary, or contrary 

to the public interest.’’ Under 5 U.S.C. 

553(b)(B), the Coast Guard finds that 

good cause exists for not publishing a 

notice of proposed rulemaking (NPRM) 

with respect to this rule because any 


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delay encountered in this regulation’s 

effective date by publishing a NPRM 

would be contrary to public interest 

since immediate action is needed to 

prevent traffic from transiting the waters 

in the vicinity of Wallops Island, 

Virginia, in order to provide for the 

security of the launch and protection of 

life and property on navigable waters. 

This temporary security zone of short 

duration is necessary to coordinate 

security operations and establish a 

secure environment for NASA 

personnel and the public at large. If the 

launch occurs as planned on August 21, 

2008, the duration of the effective 

period for this temporary security zone 

on all subsequent days will not be 

enforced. The zone should have 

minimal impact on vessel transit since 

vessels can safely transit around the 

zone and are not precluded from using 

any portion of the waterway except the 

security zone itself. 

For the same reasons discussed above, 

the Coast Guard finds under 5 U.S.C. 

553(d)(3) that good cause exists for 

making this regulation effective less 

than 30 days after publication in the 

Federal Register. The measures 

contemplated by the rule are intended 

to protect NASA personnel and the 

public from waterborne security threats. 

Any delay in the effective date of this 

rule is contrary to public and national 

interests. 

Background and Purpose 

On August 21, 2008, NASA will 

attempt to launch a large suborbital 

rocket from Wallops Island, VA. As the 

lead federal agency for maritime 

homeland security, the Coast Guard has 

determined that the Coast Guard 

Captain of the Port must have the means 

to be aware of, deter, detect, intercept, 

and respond to asymmetric threats, acts 

of aggression, and attacks by terrorists 

on the American homeland while still 

maintaining our freedoms and 

sustaining the flow of commerce. This 

temporary security zone is to safeguard 

human life, vessels, and waterfront 

facilities against sabotage or terrorist 

attacks. 

Additionally, spectators will be 

observing from both land and sea. Due 

to the need to provide security for a 

satellite launch of a NASA rocket, and 

for the need to protect the launch 

vehicle and equipment, access in the 

vicinity of this event will be temporarily 

restricted. 

Discussion of Rule 

The U.S. Coast Guard is establishing 

a security zone on the navigable waters 

of the Atlantic Ocean east of Wallops 

and Assawoman Islands in Virginia, and 

southeast of Assateague Island. This 

security zone, which extends out 12- 

nautical miles from shore, encompasses 

all navigable waters within a line 

beginning near the southeast tip of 

Assateague Island at37°51′89′′ N/ 

75°27′38′′ W;, thence southeasterly to a 

point 37°51′64′′ N/75°17′56′′ W, thence 

southeasterly to a point 37°39′32′′ N/ 

75°05′96′′ W, thence southwesterly to a 

point 37°30′94′′ N/75°16′72′′ W, thence 

northwesterly to a point 37°40′21′′ N/ 

75°31′96′′ W, thence north to a point 

37°46′62′′ N/75°30′71′′ W, thence back to 

the point of origin. 

There is an existing Army Corps of 

Engineers danger zone in 33 CFR 

334.130 that restricts access to waters 

closer to Wallops Islands. That 

regulation provides for a visual notice of 

intent to conduct rocket-launching 

operations involving the area. An intent 

to launch is indicated—

By a signal consisting of a large orangecolored, ‘‘blimp-shaped’’ balloon by day and 

a signal rotating alternately red and white 

beacon by night. The balloon shall be flown 

at latitude 37°50′38′′, longitude75°28′47′′ and 

the beacon shall be displayed about 200 feet 

above mean high water at latitude 37°50′16′′, 

longitude 75°29′07′′. The appropriate one of 

these signals shall be displayed 30 minutes 

prior to rocket-launching time and shall 

remain displayed until danger no longer 

exists. 

33 CFR 334.130(b)(3). In addition to 

watching for that intent to launch visual 

clue, for purposes of this security zone, 

mariners should listen for Coast Guard 

notifications of attempts to launch via 

maritime advisories. 

This temporary security zone will be 

in effect from 2 a.m. on August 21, 2008, 

to 4 p.m. on August 30, 2008. The zone 

will be enforced from 2 a.m. until 4 p.m. 

on August 21, 2008, and if the launch 

is postponed, the zone will be enforced, 

between 2 a.m. and 4 p.m., on each 

subsequent day the launch is attempted 

or until 4 p.m. August 30, 2008. 

After 4 p.m. on August 30, 2008, this 

rule will no longer be in effect. Except 

for participants and vessels authorized 

by the Captain of the Port 

Representative, no person or vessel may 

enter or remain in the security zone. 

Regulatory Analyses 

We developed this rule after 

considering numerous statutes and 

executive orders related to rulemaking. 

Below we summarize our analyses 

based on 13 of these statutes or 

executive orders. 

Regulatory Planning and Review 

This rule is not a significant 

regulatory action under section 3(f) of 

Executive Order 12866, Regulatory 

Planning and Review, and does not 

require an assessment of potential costs 

and benefits under section 6(a)(3) of that 

Order. The Office of Management and 

Budget has not reviewed it under that 

Order. Although this regulation restricts 

access to the security zone, the effect of 

this rule will not be significant because: 

(i) The security zone will be in effect for 

a limited duration; (ii) the zone is of 

limited size; and (iii) the Coast Guard 

will make notifications via maritime 

advisories so mariners can adjust their 

plans accordingly. 

Small Entities 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601–612), we have considered 

whether this rule would have a 

significant economic impact on a 

substantial number of small entities. 

The term ‘‘small entities’’ comprises 

small businesses, not-for-profit 

organizations that are independently 

owned and operated and are not 

dominant in their fields, and 

governmental jurisdictions with 

populations of less than 50,000. 

The U.S. Coast Guard certifies under 

5 U.S.C. 605(b) that this rule would not 

have a significant economic impact on 

a substantial number of small entities. 

However, this rule may affect the 

following entities, some of which may 

be small entities: the owners and 

operators of vessels intending to transit 

or anchor in the described portion of the 

security zone during the enforcement 

periods from 2 a.m. to 4 p.m. from 

August 21, 2008, through August 30, 

2008. The security zone will not have a 

significant impact on a substantial 

number of small entities. Maritime 

advisories will be issued, so the 

mariners can adjust their plans 

accordingly. 

Assistance for Small Entities 

Under section 213(a) of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (Pub. L. 104–121), 

we offer to assist small entities in 

understanding this rule so that they can 

better evaluate its effects on them and 

participate in the rulemaking process. 

Small businesses may send comments 

on the actions of Federal employees 

who enforce, or otherwise determine 

compliance with, Federal regulations to 

the Small Business and Agriculture 

Regulatory Enforcement Ombudsman 

and the Regional Small Business 

Regulatory Fairness Boards. The 

Ombudsman evaluates these actions 

annually and rates each agency’s 

responsiveness to small business. If you 

wish to comment on actions by 

employees of the Coast Guard, call 1–

888–REG–FAIR (1–888–734–3247). The 


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50198 Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Rules and Regulations 

Coast Guard will not retaliate against 

small entities that question or complain 

about this rule or any policy or action 

of the Coast Guard. 

Collection of Information 

This rule will call for no new 

collection of information under the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501–3520). 

Federalism 

A rule has implications for federalism 

under Executive Order 13132, 

Federalism, if it has a substantial direct 

effect on State or local governments and 

would either preempt State law or 

impose a substantial direct cost of 

compliance on them. We have analyzed 

this rule under that Order and have 

determined that it does not have 

implications for federalism. 

Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (2 U.S.C. 1531–1538) requires 

Federal agencies to assess the effects of 

their discretionary regulatory actions. In 

particular, the Act addresses actions 

that may result in the expenditure by a 

State, local, or tribal government, in the 

aggregate, or by the private sector of 

$100,000,000 or more in any one year. 

Though this rule will not result in such 

an expenditure, we do discuss the 

effects of this rule elsewhere in this 

preamble. 

Taking of Private Property 

This rule will not affect a taking of 

private property or otherwise have 

taking implications under Executive 

Order 12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights. 

Civil Justice Reform 

This rule meets applicable standards 

in sections 3(a) and 3(b)(2) of Executive 

Order 12988, Civil Justice Reform, to 

minimize litigation, eliminate 

ambiguity, and reduce burden. 

Protection of Children 

We have analyzed this rule under 

Executive Order 13045, Protection of 

Children from Environmental Health 

Risks and Safety Risks. This rule is not 

an economically significant rule and 

does not create an environmental risk to 

health or risk to safety that may 

disproportionately affect children. 

Indian Tribal Governments 

This rule does not have tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it does not have a substantial 

direct effect on one or more Indian 

tribes, on the relationship between the 

Federal Government and Indian tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. 

Energy Effects 

We have analyzed this rule under 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order because 

it is not a ‘‘significant regulatory action’’

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. The Administrator of the Office 

of Information and Regulatory Affairs 

has not designated it as a significant 

energy action. Therefore, it does not 

require a Statement of Energy Effects 

under Executive Order 13211. 

Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

Environment 

We have analyzed this rule under 

Department of Homeland Security 

Management Directive 5100.1 and 

Commandant Instruction M16475.lD, 

which guide the U.S. Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded under the Instruction 

that there are no factors in this case that 

would limit the use of a categorical 

exclusion under section 2.B.2 of the 

Instruction. Therefore, this rule is 

categorically excluded, under figure 2–

1, paragraph (34)(g), of the Instruction, 

from further environmental 

documentation. Under figure 2–1, 

paragraph (34)(g), of the Instruction, an 

environmental analysis checklist and a 

categorical exclusion determination will 

be available in the docket where 

indicated under ADDRESSES. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, and 

Waterways. 

■ For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 

Chapter 701; 50 U.S.C. 191, 195; 33 CFR 

1.05–1(g), 6.04–1, 6.04–6 and 160.5; Pub. L. 

107–295, 116 Stat. 2064; Department of 

Homeland Security Delegation No. 0170.1 

■ 2. Add Temporary § 165.T05–0823, to 

read as follows: 

§ 165.T05–0823 Security Zone; Rocket 

Launch, NASA Wallops Flight Facility 

(WFF), Wallops Island, VA. 

(a) Location. The following area is a 

security zone: All waters of the Atlantic 

Ocean east of Wallops and Assawoman 

Islands in Virginia, and southeast of 

Assateague Island encompassed by a 

line beginning near the southeast tip of 

Assateague Island at 37°51′89′′ N/ 

75°27′38′′ W, thence southeasterly to a 

point 37°51′64′′ N/75°17′56′′ W, thence 

southeasterly to a point 37°39′32′′ N/ 

75°05′96′′ W, thence southwesterly to a 

point 37°30′94′′ N/75°16′72′′ W, thence 

northwesterly to a point 37°40′21′′ N/ 

75°31′96′′ W, thence north to a point 

37°46′62′′ N/75°30′71′′ W, thence back to 

the point of origin. 

(b) Definition: For purposes of 

enforcement of this section, Captain of 

the Port Representative means any U.S. 

Coast Guard commissioned, warrant or 

petty officer who has been authorized 

by the Captain of the Port, Hampton 

Roads, Virginia to act on his behalf. 

(c) Regulation: (1) In accordance with 

the general regulations in § 165.33 of 

this part, entry into the security zone 

described in paragraph (a) of this 

section is prohibited unless authorized 

by the Captain of the Port, Hampton 

Roads, Virginia, or the Captain of the 

Port Representative. 

(2) The operator of any vessel granted 

permission to enter this security zone 

must: 

(i) Stop the vessel immediately upon 

being directed to do so by any 

commissioned, warrant or petty officer 

on board a vessel displaying a U.S. 

Coast Guard Ensign; and 


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(ii) Proceed as directed by any 

commissioned, warrant or petty officer 

on board a vessel displaying a U.S. 

Coast Guard Ensign. 

(3) The Captain of the Port, Hampton 

Roads, Virginia can be contacted at 

telephone number (757) 668–5555. 

(4) U.S. Coast Guard vessels enforcing 

the security zone can be contacted on 

VHF–FM marine band radio, channel 13 

(156.65 MHz) and channel 16 (156.8 

MHz). 

(d) Effective period: This section is 

effective from 2 a.m. on August 21, 2008 

to 4 p.m. on August 30, 2008. 

(e) Enforcement period: This section 

will be enforced from 2 a.m. to 4 p.m. 

on August 21, 2008, and each 

subsequent day a rocket launch at the 

NASA Wallops Flight Facility, Wallops 

Island, VA, is attempted until 4 p.m. 

August 30, 2008. 

Dated: August 18, 2008. 

Jeffrey P. Novotny, 

Commander, U.S. Coast Guard, Acting 

Captain of the Port, Hampton Roads. 

[FR Doc. E8–19739 Filed 8–25–08; 8:45 am] 

BILLING CODE 4910–15–P 

DEPARTMENT OF THE INTERIOR 

Bureau of Land Management 

43 CFR Part 2740 

[WO–350–08 1430 PN–24 1A] 

RIN 1004–AE03 

Recreation and Public Purposes Act; 

Solid Waste Disposal 

AGENCY: Bureau of Land Management, 

Interior. 

ACTION: Final rule. 

SUMMARY: The Bureau of Land 

Management (BLM) amends a 

procedural regulation pertaining to the 

issuance of patents for public lands 

leased on or before November 9, 1988, 

for solid waste disposal or related 

purposes. The existing regulation 

requires the express approval of the 

Director of the Bureau of Land 

Management (BLM) before the lessee 

may receive a patent to such lands. In 

1992, when the regulation was 

promulgated, most of the BLM’s 

employees with the necessary expertise 

were centralized in the BLM’s 

headquarters in Washington, DC, and 

express approval by the Director was 

deemed necessary. This is no longer the 

case, since employees with the 

necessary expertise are now located in 

State Offices of the BLM. Consistent 

with Department of the Interior policy 

to delegate responsibility to the lowest 

appropriate organizational levels, this 

rule removes the requirement for 

express approval by the Director. As this 

administrative final rule amends an 

internal agency procedure, it is exempt 

from the usual requirement for notice 

and an opportunity for public comment, 

under the Administrative Procedure 

Act. 

DATES: This rule is effective October 27, 

2008. 

ADDRESSES: Information or questions 

regarding this final rule should be 

addressed in writing to the Director, 

Bureau of Land Management, 1849 C 

Street, NW., Washington, DC 20240. 

FOR FURTHER INFORMATION CONTACT: For 

information on the substance of the 

proposed rule, please contact Jeff 

Holdren at 202–452–7779. For 

information on procedural matters, 

please contact Jean Sonneman at 202–

785–6577. Persons who use a 

telecommunications device for the deaf 

(TDD) may call the Federal Information 

Relay Service (FIRS) at 1–800–877–8339 

to contact the above individuals during 

business hours. FIRS is available 

twenty-four hours a day, seven days a 

week, to leave a message or question 

with the above individuals. You will 

receive a reply during normal business 

hours. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Discussion of the Final Rule 

III. Procedural Matters 

I. Background 

The Secretary of the Interior is 

authorized to transfer or lease certain 

public lands to State and local 

governmental agencies and to nonprofit 

corporations and associations for 

recreation and public purposes under 

the Act of June 14, 1926 (43 U.S.C. 869 

et seq.), commonly known as the 

Recreation and Public Purposes (R&PP) 

Act. Regulations implementing the 

Secretary of the Interior’s authority to 

sell or lease lands under the R&PP Act 

are located in 43 CFR part 2740. These 

regulations explain the following: 

• Policies pertaining to the BLM’s 

implementation of the R&PP Act (43 

CFR 2740.0–6); 

• Definitions of applicable terms (43 

CFR 2740.0–5); 

• Lands subject to disposition (43 

CFR 2741.1); 

• The criteria for qualified applicants 

(43 CFR 2741.2); 

• The guidelines for conveyance and 

lease under the act (43 CFR 2741.5); and 

• Certain other procedural matters 

and requirements relating to public 

lands conveyed by patent for the 

purpose of solid waste disposal. (43 CFR 

subpart 2743). 

The BLM promulgated the regulations 

at 43 CFR subpart 2743 in order to 

reduce or avoid Federal liabilities that 

might arise from the conveyance of 

landfills contaminated by hazardous 

substances. Some of the regulations 

directly implement amendments to the 

R&PP Act that became effective on 

November 10, 1988. One such 

regulation is 43 CFR 2743.2(a)(5), which 

requires an investigation to determine 

whether or not any hazardous substance 

is present on public lands before 

conveying them by patent for new solid 

waste disposal sites. 43 U.S.C. 869–

2(b)(2). 

With respect to lands leased before 

November 9, 1988, the BLM exercised 

its rulemaking discretion to promulgate 

a similar investigative requirement, and 

to require the express approval of the 

Director of the BLM before the lessee 

may receive a patent to such lands. 43 

CFR 2743.3. Neither of these 

requirements appears in the R&PP Act. 

However, at the time, the BLM deemed 

both provisions necessary because the 

Bureau’s environmental expertise was 

concentrated at its headquarters in 

Washington, DC. In contrast, each BLM 

State Office now employs one or more 

environmental professionals with the 

expertise to review locally conducted 

investigations. It is for this reason that 

this rule removes the requirement for 

express approval by the Director. 

In general, the Administrative 

Procedure Act (APA) requires that 

Federal agencies give notice and 

provide an opportunity for the public to 

comment before promulgating a final 

rule. However, the APA provides that 

prior notice and comment are not 

required for ‘‘interpretive rules, general 

statements of policy or rules of agency 

organization, procedure, or practice.’’ 5 

U.S.C. 553(b)(A). This exception applies 

in this instance because this final rule 

simply amends the BLM’s internal 

administrative procedures for patenting 

land. As discussed below, this final rule 

is also an action that is categorically 

excluded from certain requirements of 

the National Environmental Policy Act 

(NEPA). See 42 U.S.C. 4332(2)(C); 40 

CFR 1508.4; 516 Departmental Manual 

(DM), Chapter 2, Appendix 1, CX 1.10. 

II. Discussion of the Final Rule 

The existing regulation states that 

when a lessee requests or concurs in the 

issuance of a patent to lands included 

in a lease, or portion of a lease, issued 

on or before November 9, 1988, that 

have been used, as specified in the plan 

of development, for solid waste disposal 

or for any other purposes that may have 


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