[Federal Register Volume 64, Number 187 (Tuesday, September 28, 1999)]
[Rules and Regulations]
[Pages 52239-52243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25181]
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Parts 3400 and 3420
[WO-320-3420-24 1A]
RIN 1004-AD27
Public Participation in Coal Leasing
AGENCY: Bureau of Land Management, Interior.
ACTION: Final rule.
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SUMMARY: This final rule clarifies terms of a settlement agreement and
a March 1995 law. In the settlement agreement, we agreed to establish
procedures where the public may participate in the regional coal
leasing process by regulations. In addition, this final rule amends the
regulations to conform to statutory changes under the Unfunded Mandates
Reform Act of 1995 exempting several types of meetings from Federal
Advisory Committee Act requirements. This final rule exempts Regional
Coal Team Meetings from the requirements of the Federal Advisory
Committee Act in accordance with this law.
EFFECTIVE DATE: This rule is effective on October 28, 1999.
FOR FURTHER INFORMATION CONTACT: Philip Allard, Solid Minerals Group,
[[Page 52240]]
Bureau of Land Management, Mail Stop 401LS, 1849 ``C'' Street, NW,
Washington, DC 20240; telephone (202) 452-5195. Individuals who use a
telecommunication device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 1-800-877-8339, 7 days a week, 24
hours a day, except holidays, for assistance to reach the above
contact.
SUPPLEMENTARY INFORMATION:
Contents
I. Background
II. Responses to Comments
III. Final Rule as Adopted
IV. Procedural Matters
I. Background
This final rule satisfies terms of a settlement agreement
negotiated in July 1997 and a March 1995 law. The Department of the
Interior's coal leasing regulations were challenged in a lawsuit,
Natural Resources Defense Council, Inc., et al. V. Jamison, et al.,
Civil No. 82-2763 (D.D.C.). In December 1992, the court decided that
the Department had not complied with section 202(f) of the Federal Land
Policy and Management Act, (43 U.S.C. 1712(f)).
The court held that although the Bureau of Land Management's (BLM)
competitive leasing handbook describes public participation procedures,
the Department should establish these procedures by regulations. During
the appeal process, the parties negotiated a settlement. In July 1997,
the Department and the plaintiffs entered into a settlement agreement
(Civil No. 82-2763 (D.C. Circuit No. 93-5029)).
In the settlement, the Department agreed to identify in our
regulations the points where the public may participate in regional
coal leasing decisions. The BLM already provides this information in
its competitive leasing handbook; therefore, public participation
opportunities in competitive leasing are not substantially altered.
On March 22, 1995, Congress passed the Unfunded Mandates Reform
Act. Section 204(b) of this law (2 U.S.C. 1534) states that the
requirements of the Federal Advisory Committee Act (FACA), 5 U.S.C.
Appendix 1, do not apply to intergovernmental communications when:
The meetings are exclusively between Federal officials and
elected officers of State, local and tribal governments or their
representatives; and
The meetings are only to exchange views, information, or
advice relating to Federal programs that share intergovernmental
responsibilities.
The Office of the Solicitor of the Department of the Interior
determined that these provisions exempt Regional Coal Team (RCT)
meetings from the requirements of FACA. The final rule amends the
reference and clarifies which portion of the FACA regulations apply to
RCTs because existing regulations at subpart 3400 incorporate FACA
regulations at subpart 1784.
The method BLM primarily uses to offer coal is to lease coal
competitively. The two types of competitive leasing are ``regional coal
leasing'' and ``leasing-on-application.'' The Department of the
Interior initiates the regional coal leasing process based on the
demand for Federal coal, national energy needs, and other factors. BLM
must determine whether to offer Federal coal lands for lease and which
coal to offer. Since issues surrounding coal leasing can vary greatly
from region to region, Federal coal production regions assist BLM in
this determination by grouping together areas with similar issues. The
leasing-on-application process is initiated by individuals or
companies, unlike the regional coal leasing process which is Government
initiated.
BLM must first begin the regional coal leasing process by creating
a land use plan, in which BLM-managed lands are reviewed to determine,
among other factors, the presence or absence of:
Coal;
Other resources that might preclude developing coal;
Other uses for the land that might be preferable to coal
development; and
Any qualified surface owners who oppose or favor coal
development.
This review allows BLM to identify the land that is acceptable for
further consideration for coal leasing. Second, the Secretary sets the
leasing level for the region after considering the land use plan, the
amount of leasing interest in the region, national energy needs, and
other factors. Third, BLM initiates ``regional coal activity planning''
during which BLM prepares environmental documents that analyze one or
more combinations of tracts that equal the leasing level and other
alternatives. Finally, the Secretary determines the lease sale schedule
based on the environmental analysis, public comments, comments from
State Governors, tribal governments, and other Federal agencies. The
schedule includes the number of tracts which will be offered for lease
and the timing of the lease sales.
Unlike the regional coal leasing process, the leasing-on-
application process begins when an individual or company applies for a
particular coal deposit. There is no need to establish a leasing level
because the amount of coal applied for provides the starting point for
the amount of coal to be analyzed. There is also no leasing schedule
because BLM usually offers coal tracts based on at most one or two
applications in leasing-on-application lease sales. The RCT located in
the applicable coal production region may review the applications and
may make recommendations on the application. For a number of years, BLM
has competitively leased Federal coal exclusively through the leasing-
on-application process.
Regional coal teams are composed of BLM employees and State
Governors or their designees in the States where the coal tracts are
located. The RCTs recommend the leasing level for regional coal
leasing, a target amount of coal that BLM may offer for sale, and the
lease sale schedule to the BLM Director. The BLM Director makes
recommendations to the Secretary of the Interior. The Secretary makes
the final decision on leasing levels and a lease sale schedule, taking
into account recommendations from the BLM Director, RCT, State
Governors, and other interested and affected groups including members
of the general public.
BLM divided Federally owned coal deposits into broad blocks called
``Federal coal production regions.'' There are six Federal coal
production regions located principally in the western United States.
The Federal coal production regions are:
The Southern Appalachian Region in northwestern Alabama;
The Fort Union Region of eastern Montana and western North
Dakota;
The Green River-Hams Fork Region of northwestern Colorado
and southern Wyoming;
The Powder River Region of northeastern Wyoming and
southeastern Montana;
The San Juan Region of northwestern New Mexico and
southwestern Colorado; and
The Uinta-Southwestern Utah Region of eastern Utah and
western Colorado.
BLM decertified the Federal coal production regions because we do not
believe the demand for new Federal coal leases is sufficient to justify
regional coal leasing at this time. RCTs will continue to meet on an ad
hoc basis to advise BLM on lease-on-application coal sales.
II. Responses to Comments
On March 11, 1999, (64 FR 12142), BLM published the Public
Participation
[[Page 52241]]
in Coal Leasing proposed rule in the Federal Register. The 60-day
public comment period on the Public Participation in Coal Leasing
proposed rule ended on May 10, 1999. We received no public comments on
this proposed rule. However, BLM received four comment letters from its
State Offices. One comment letter contained no substantive comments. We
considered the other comments when finalizing this rule.
Comment: The commenter stated that some of the information in the
case files studied by Regional Coal Teams (RCTs) is proprietary to
various individuals and corporations and, therefore, should be withheld
from disclosure.
Response: Proprietary information is protected from disclosure
under the Freedom of Information Act (5 U.S.C. 552) and the regulations
of the Department (43 CFR 2.13(c)). This rule makes no change to the
way BLM handles proprietary data. Proprietary information submitted
during the coal leasing process can still be protected from disclosure
as described in 43 CFR 3420.1-2(b).
Comment: The commenter expressed concerns over whether BLM
considered the requirements of the Executive Order on Environmental
Justice (E.O. 12898) in finalizing these regulations.
Response: Environmental justice was one of the factors BLM
considered when we evaluated the rule for compliance with the terms and
conditions of the National Environmental Policy Act (42 U.S.C. 4321 et
seq.). Environmental justice is also one of the factors we consider
when we evaluate Federal lands for coal leasing. This rule makes no
change to the standards BLM will use when evaluating potential coal
leases. BLM complies with the Executive Order on Environmental Justice
during the preparation of our environmental assessment or environmental
impact statement for a proposed coal lease sale.
Comment: One commenter proposed several changes to the text of the
preamble which we did not consider to be substantive. However, the
commenter also pointed out that the use of the phrase ``BLM will
publish a notice * * * for two consecutive weeks in a newspaper * * *''
could be read to require us to publish such a notice 14 times if the
newspaper happened to be a daily publication.
Response: BLM's intent is to have the notices described in the rule
published two times, one week apart. We have changed the final rule in
three places to more precisely express our intent.
III. Final Rule as Adopted
BLM adopts the amendments to 43 CFR Parts 3400 and 3420 in the
proposed rule which was published in the Federal Register on March 11,
1999, (64 FR 12142), as a final rule except for the changes described
below for three sections.
Section 3420.3-4 Regional Tract Ranking, Selection, Environmental
Analysis and Scheduling
The language in the proposed rule for Sec. 3420.304(d) stated that
we would publish a notice of the 60-day comment period and public
hearing on a draft environmental impact statement for two consecutive
weeks in a newspaper of general circulation in the area of the sale.
One comment letter pointed out that this could be read to require the
BLM to publish this notice for 14 days should the newspaper chosen for
this publication be a daily paper. This is a change from our present
practice of printing a notice of availability two times, one week
apart, in a newspaper of general circulation in the area of the sale.
We do not intend to change this practice. We have modified the language
to more precisely state our intent. Instead of using the phrase ``for
two consecutive weeks'' we now say ``at least once per week for two
consecutive weeks.''
Section 3422.1 Fair Market Value and Maximum Economic Recovery
The language in the proposed rule for Sec. 3422.1(a) stated that we
would publish a solicitation for comments on fair market value and
maximum economic recovery of coal tracts for two consecutive weeks in a
newspaper of general circulation in the area of the sale. One comment
letter pointed out that this could be read to require the BLM to
publish this solicitation for 14 days should the newspaper chosen for
this publication be a daily paper. This is a change from our present
practice of printing a solicitation of availability two times, one week
apart, in a newspaper of general circulation in the area of the sale.
We do not intend to change this practice.
We have modified the language to more precisely state our intent.
Instead of using the phrase ``for two consecutive weeks'' we now say
``at least once per week for two consecutive weeks.''
Section 3425.3 Environmental Analysis
The language in the proposed rule for Sec. 3425.3(a) stated that we
would publish a notice of the availability of and public hearing for
the environmental assessment or draft environmental impact statement
for two consecutive weeks in a newspaper of general circulation in the
area of the sale. One comment letter pointed out that this could be
read to require the BLM to publish this notice for 14 days should the
newspaper chosen for this publication be a daily paper. This is a
change from our present practice of printing a notice of availability
two times, one week apart, in a newspaper of general circulation in the
area of the sale. We do not intend to change this practice. We have
modified the language to more precisely state our intent. Instead of
using the phrase ``for two consecutive weeks'' we now say ``at least
once per week for two consecutive weeks.''
IV. Procedural Matters
Executive Order 12866, Regulatory Planning and Review
This final rule is not a significant rule and was not subject to
review by the Office of Management and Budget under Executive Order
12866. We have determined that this final rule does not have an annual
economic impact of $100 million or more; have an adverse impact in a
material way on the economy, environment, public health, safety, other
units of government, or sectors of the economy; pose a serious
inconsistency or interfere with an action taken or planned by another
agency; have novel legal or policy implications; or have material
effects on budgets or rights and obligations of recipients of
entitlements, fees, grants, or loans. Therefore, we do not have to
assess the potential costs and benefits of the rule under section
6(a)(3) of this order and no OMB review under the order is required.
National Environmental Policy Act
BLM considers this final rule to be an administrative action to
incorporate current BLM policy on public participation in the coal
leasing process into the regulations. Therefore, it is categorically
excluded from environmental review under section 102(2)(C) of the
National Environmental Policy Act of 1969, pursuant to 516 Departmental
Manual (DM), Chapter 2, Appendix 1, Item 1.10. In addition, this final
rule does not meet any of the 10 criteria for exceptions to categorical
exclusions listed in 516 DM, Chapter 2, Appendix 2. Pursuant to Council
on Environmental Quality regulations (40 FR 1508.4) and the
environmental policies and procedures of the Department of the
Interior, the term ``categorical exclusions'' means a category of
actions which individually and cumulatively do not have a
[[Page 52242]]
significant effect on the human environment and that has been found to
have no such effect in procedures adopted by a Federal agency and for
which neither an environmental assessment nor an environmental impact
statement is required. This final rule does not directly affect the
environment. Any coal tract considered for leasing will be subject to
further NEPA analysis on a case-by-case basis.
Regulatory Flexibility Act
This final rule does not require a regulatory flexibility analysis.
Congress enacted the Regulatory Flexibility Act of 1980 (RFA), 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 has a significant
economic impact, either detrimental or beneficial, on a substantial
number of small entities. This final rule would not have significant
economic impacts on small entities under the RFA, 5 U.S.C. 601 et seq.
Small entities would not be affected adversely or beneficially by these
requirements but would be given the opportunity to participate in the
coal leasing process by regulations, rather than by internal agency
guidance.
Small Business Regulatory Enforcement Fairness Act
This final rule is not a ``major rule'' as defined by the Small
Business Regulatory Enforcement Fairness Act, 5 U.S.C. 804(2). This
final rule will not have a significant impact on the economy or on
small businesses in particular. This final rule would not substantially
change BLM's existing policy.
Unfunded Mandates Reform Act
This final rule does not impose an unfunded mandate on State, local
or tribal governments or the private sector of more than $100 million
per year. This final rule does not have a significant or unique effect
on State, local, or tribal governments or the private sector. This
final rule places current BLM policy on public participation in the
coal leasing process in the regulations. Therefore, we are not required
to prepare a statement containing the information required by the
Unfunded Mandates Reform Act, (2 U.S.C. 1531 et seq.).
Executive Order 12630, Takings
This final rule does not represent a government action capable of
interfering with constitutionally protected property rights. Therefore,
we have determined that this final rule would not cause a taking of
private property.
Executive Order 12612, Federalism
This final rule will not have a substantial direct effect on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. We designed the Federal Coal Management
Program to allow the maximum participation of affected States in
decisions about regional coal leasing and development through RCTs.
RCTs make recommendations to the BLM Director for the Secretary on the
regional coal leasing levels of coal to be analyzed for possible sale
and on the amount of coal offered. If the Secretary does not accept
their decisions, the Secretary must publicly state why. We have
determined that this final rule does not have sufficient Federalism
implications to warrant preparation of a Federalism assessment.
Executive Order 12988, Civil Justice Reform
The Office of the Solicitor has determined that this final rule
will not unduly burden the judicial system and that it meets the
requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
This final rule does not require an information collection from 10
or more parties and a submission under the Paperwork Reduction Act is
not required.
Authors
The principal author of this final rule is Philip Allard, Solid
Minerals Group, assisted by Shirlean Beshir, Regulatory Affairs Group.
List of Subjects in 43 CFR Part 3400
Coal, Intergovernmental relations, Mines, Public lands-
classification, Public lands-mineral resources.
List of Subjects in 43 CFR Part 3420
Administrative practice and procedure, Coal, Environmental
protection, Intergovernmental relations, Mines, Public lands-mineral
resources.
Dated: September 17, 1999.
Sylvia V. Baca,
Acting Assistant Secretary, Land and Minerals Management.
Accordingly, under the authority of the Mineral Leasing Act of
February 25, 1920, as amended (30 U.S.C. 181 et seq.), the Mineral
Leasing Act for Acquired Lands, as amended (30 U.S.C. 351-359), the
Federal Land Policy and Management Act of 1976 (43 U.S.C. 1740), and
the Secretary's enforcement powers, BLM adopts as final the amendments
to 43 CFR Parts 3400 and 3420, as set forth below:
PART 3400--COAL MANAGEMENT: GENERAL
1. The authority citation for part 3400 continues to read as
follows:
Authority: 30 U.S.C. 189, 359, 1211, 1251, 1266, and 1273; 43
U.S.C. 1461, 1733, and 1740.
2. Amend Sec. 3400.4 by revising paragraph (g) to read:
Sec. 3400.4 Federal/state government cooperation.
* * * * *
(g) The regional coal team will function under the public
participation procedures at Secs. 1784.4-2, 1784.4-3, and 1784.5 of
this chapter.
3. The authority citation for part 3420 continues to read as
follows:
Authority: The Mineral Leasing Act of 1920, as amended and
supplemented (30 U.S.C. 181 et seq.), the Mineral Leasing Act for
Acquired Lands of 1947, as amended (30 U.S.C. 351-359), the Multiple
Mineral Development Act of 1954 (30 U.S.C. 521-531 et seq.), the
Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1201
et seq.), the Department of Energy Organization Act of 1977 (42
U.S.C. 7101 et seq.), the Federal Land Policy and Management Act of
1976 (43 U.S.C. 1701 et seq.), and the Small Business Act of 1953,
as mended (15 U.S.C. 631 et seq.).
PART 3420--COMPETITIVE LEASING
4. Amend Sec. 3420.1-4 by revising paragraph (a) to read:
Sec. 3420.1-4 General requirements for land use planning.
(a) The Secretary may not hold a lease sale under this part unless
the lands containing the coal deposits are included in a comprehensive
land use plan or land use analysis. The land use plan or land use
analysis will be conducted with public notice and opportunity for
participation at the points specified in Sec. 1610.2(f) of this title.
The sale must be compatible with, and subject to, any relevant
stipulations, guidelines, and standards set out in that plan or
analysis.
* * * * *
5. Amend Sec. 3420.2 by removing the last sentence of paragraph
(a)(1), and adding in its place two sentences as set forth below,
revising the last sentence of paragraph (a)(4), removing ``and'' from
the end of paragraph (c)(8), redesignating current paragraph (c)(9) as
[[Page 52243]]
paragraph (c)(10), and adding a new (c)(9) to read:
Sec. 3420.2 Regional leasing levels.
(a)(1) * * * This range of initial leasing levels must be based on
information available to the State Director including: land use
planning data; the results of the call for coal resource information
held under Sec. 3420.1-2 of this subpart; the results of the call for
expressions of leasing interest held under Sec. 3420.3-2 of this
subpart; and other considerations. The State Director will consider
comments received from the public in writing and at hearings, and input
and advice from the Governors of the affected States regarding
assumptions, data, and other factors pertinent to the region;
* * * * *
(a)(4) * * * The team also must transmit to the Secretary, without
change, all comments and recommendations of the Governor and the
public.
* * * * *
(c) * * *
(9) Comments received from the public in writing and at public
hearings; and
* * * * *
6. Amend Sec. 3420.3-1 by adding a new paragraph (d) to read:
Sec. 3420.3-1 Area identification process.
* * * * *
(d) Public notice and opportunity for participation in activity
planning must be appropriate to the area and the people involved. The
Bureau of Land Management will make available a calendar listing of the
points in the planning process at which the public may participate,
including:
(1) The regional coal team meeting to recommend initial leasing
levels (see Sec. 3420.2(a)(4));
(2) The regional coal team meeting for tract ranking (see
Sec. 3420.3-4(a));
(3) Publication of the regional coal lease sale environmental
impact statement (see Sec. 3420.3-4(c)); and
(4) The regional coal team meeting to recommend specific tracts for
a lease sale and a lease sale schedule (see Sec. 3420.3-4(g)).
7. Amend Sec. 3420.3-4 by removing the third sentence in paragraph
(a)(1), and adding in its place four sentences as set forth below,
adding two sentences after the first sentence in paragraph (a)(5),
adding a new sentence at the end of paragraph (d), revising paragraph
(f), and removing the first sentence in paragraph (g) and adding in its
place two new sentences as set forth below:
Sec. 3420.3-4 Regional tract ranking, selection, environmental
analysis and scheduling.
(a)(1) * * * The subfactors the regional coal team will consider
under each category are those the regional coal team determines are
appropriate for that region. The regional coal team will make its
determination after publishing notice in the Federal Register that the
public has 30 days to comment on the subfactors. The regional coal team
will then consider any comments it receives in determining the
subfactors. BLM will publish the subfactors in the regional lease sale
environmental impact statement required by this section.* * *
* * * * *
(5) * * * BLM will publish the notice no later than 45 days before
the meeting. The notice will list potential topics for discussion.***
* * * * *
(d) * * * BLM will publish a notice in the Federal Register of the
60-day comment period and the public hearing on the draft environmental
impact statement. BLM also will publish the notice at least once per
week for two consecutive weeks in a newspaper of general circulation in
the area of the sale.
* * * * *
(f) When the comment period on the draft environmental impact
statement closes, the regional coal team will analyze the comments and
make any appropriate revisions in the tract ranking and selection. The
final regional lease sale environmental impact statement will reflect
such revisions and will include all comments received.
(g) When BLM completes and releases the final regional lease sale
environmental impact statement, the regional coal team will meet and
recommend specific tracts for lease sale and a lease sale schedule. The
regional coal team will provide notice in the Federal Register of the
date and location at least 45 days before its meeting.* * *
* * * * *
8. Amend Sec. 3420.5-2 by adding two sentences at the end of
paragraph (a) to read:
Sec. 3420.5-2 Revision.
(a) * * * BLM will publish a notice in the Federal Register and
provide a 30-day comment period before it makes any revision increasing
the number or frequency of sales, or the amount of coal offered. BLM
will publish any revision in the Federal Register.
* * * * *
9. Amend Sec. 3422.1 by adding a sentence after the first sentence
in paragraph (a) to read:
Sec. 3422.1 Fair market value and maximum economic recovery.
(a) * * * BLM will publish the solicitation in the Federal Register
and at least once per week for two consecutive weeks in a newspaper of
general circulation in the area of the sale.* * *
* * * * *
10. Amend Sec. 3422.2 by removing the third sentence in paragraph
(a) and adding in its place two sentences to read as follows:
Sec. 3422.2 Notice of sale and detailed statement.
(a) * * * BLM will post notice of the sale in BLM State Office
where the coal lands are managed. BLM will also mail notice to any
surface owner of lands noticed for sale and to any other person who has
requested notice of sales in the area.* * *
* * * * *
11. Amend Sec. 3425.1-9 by adding a sentence at the end of this
section to read:
Sec. 3425.1-9 Modification of application area.
* * * If an environmental assessment of the modification is
required, BLM will solicit and consider public comments on the modified
application.
12. Amend Sec. 3425.3(a) by adding two sentences at the end of
paragraph (a) to read:
Sec. 3425.3 Environmental analysis.
(a) * * * BLM will publish a notice in the Federal Register, and at
least once per week for two consecutive weeks in a newspaper of general
circulation in the area of the sale, announcing the availability of the
environmental assessment or draft environmental impact statement and
the hearing required by Sec. 3425.4(a)(1). BLM also will mail to the
surface owner a notice of any lands to be offered for sale and to any
person who has requested notice of sales in the area.
* * * * *
[FR Doc. 99-25181 Filed 9-27-99; 8:45 am]
BILLING CODE 4310-84-P