Rule2024-17065
Temporary Closure and Restriction Orders
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 7, 2024
Effective
September 6, 2024
Issuing agencies
Interior DepartmentLand Management Bureau
Abstract
The Bureau of Land Management (BLM) is revising its regulations to modernize and streamline how the agency notifies the public of temporary closure and restriction orders; clarify that such orders may be issued to avoid conflicts among public land users and ensure the privacy of Tribal activities for traditional or cultural use; require that all orders specify the date and time that a temporary closure or restriction becomes effective and terminates; and harmonize the penalties for violating temporary closure and restriction orders consistent with current statutory authority.
Full Text
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<title>Federal Register, Volume 89 Issue 152 (Wednesday, August 7, 2024)</title>
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[Federal Register Volume 89, Number 152 (Wednesday, August 7, 2024)]
[Rules and Regulations]
[Pages 64383-64397]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-17065]
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Part 8360
[BLM_HQ_FRN_MO4500179077]
RIN 1004-AE89
Temporary Closure and Restriction Orders
AGENCY: Bureau of Land Management, Interior.
ACTION: Final rule.
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SUMMARY: The Bureau of Land Management (BLM) is revising its
regulations to modernize and streamline how the agency notifies the
public of temporary closure and restriction orders; clarify that such
orders may be issued to avoid conflicts among public land users and
ensure the privacy of Tribal activities for traditional or cultural
use; require that all orders specify the date and time that a temporary
closure or restriction becomes effective and terminates; and harmonize
the penalties for violating temporary closure and restriction orders
consistent with current statutory authority.
DATES: This final rule is effective on September 6, 2024.
FOR FURTHER INFORMATION CONTACT: Kevin Oliver, Division Chief, BLM
Headquarters Division of Recreation and Visitor Services at (801) 450-
3134 or via email at <a href="/cdn-cgi/l/email-protection#244f4b484d524156644648490a434b52"><span class="__cf_email__" data-cfemail="553e3a393c233027153739387b323a23">[email protected]</span></a>. For questions relating to
regulatory process issues, email Brittney D. Rodrigues at:
<a href="/cdn-cgi/l/email-protection#fa9888959e88939d8f9f89ba989697d49d958c"><span class="__cf_email__" data-cfemail="d3b1a1bcb7a1bab4a6b6a093b1bfbefdb4bca5">[email protected]</span></a>. Individuals in the United States who are deaf,
blind, hard of hearing, or have a speech disability may dial 711 (TTY,
TDD, or TeleBraille) to access telecommunications relay services.
Individuals outside the United States should use the relay services
offered within their country to make international calls to the point-
of-contact in the United States. For a summary of the final rule,
please see the final rule summary document in docket No. BLM-2023-0007
on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
SUPPLEMENTARY INFORMATION:
I. Background
II. Response to Comments on the Proposed Rule
III. Discussion of the Final Rule
IV. Procedural Matters
I. Background
The Federal Land Policy and Management Act (FLPMA) (43 U.S.C. 1701-
1787) establishes the BLM's multiple use and sustained yield mandate.
In managing the public lands in accordance with FLPMA, the BLM
occasionally issues temporary closure and restriction orders under 43
CFR 8364.1 to protect persons, property, public lands, and resources.
The need to temporarily close or restrict the use of public land arises
in various situations, including in response to an emergency or
unplanned event such as a flood, fire, hazardous material incident,
discovery of unexploded ordnance, public health emergency, or change in
public land use that creates a public safety hazard. For example, the
BLM has issued temporary closure or restriction orders to protect the
public from unsafe conditions in a community rock pit in Do[ntilde]a
Ana County, New Mexico (88 FR 42984 (July 5, 2023)); close 9 acres of
public land near Rowley, Utah, that were inundated with a hydrochloric
acid spill (79 FR 26265 (May 7, 2014)); close approximately 31,000
acres of public land in California to protect the public from exposure
to airborne asbestos (73 FR 24087 (May 1, 2008)); and close a
recreation site near Challis, Idaho, to protect the public from
dangerous flooding and ice jams (87 FR 25523 (April 29, 2022)).
The BLM also occasionally issues temporary closures or restrictions
to protect resources or avoid conflicts among visitor use activities.
In such situations, the BLM may restrict an area to certain types of
travel to facilitate resource restoration or close an area to public
access to facilitate special recreation events, such as the Burning Man
Project (88 FR 39863 (June 20, 2023)); the King of the Hammers off-road
race (87 FR 69300 (November 11, 2022)); the Reno Air Races (84 FR 31337
(July 1, 2019)); the Mint 400 off-road race in Las Vegas (88 FR 7994
(February 7, 2023)); and the Desert Classic racecourse (87 FR 20457
(April 7, 2022)).
As resource uses and demands for access to public lands have
increased,
[[Page 64384]]
the need for the BLM to issue temporary closure and restriction orders
under 43 CFR 8364.1 to protect persons, property, and public lands has
also increased. However, some aspects of 43 CFR 8364.1--such as the
requirement to publish temporary closure and restriction orders in the
Federal Register and the absence of a provision authorizing the BLM to
issue such orders with immediate full force and effect--can hinder the
BLM's ability to respond effectively to exigencies that arise on public
lands.
Streamlining and modernizing how the BLM notifies the public about
temporary closure and restriction orders, as well as providing managers
with the ability to issue such orders with immediate effect, will
enhance the BLM's ability to perform its mission to responsibly manage
public lands and protect public safety. Revising Sec. 8364.1 will also
make the BLM's temporary closure and restriction authorities more
consistent with those of the U. S. Forest Service (USFS), U.S. Fish and
Wildlife Service (FWS), and the National Park Service (NPS) (agencies
with which BLM-administered public lands often share a common boundary)
and will allow the BLM to be a more effective cooperator with other
Federal and local agencies when responding to multijurisdictional
demands, including emergency incidents or unforeseen events.
Section 310 of FLPMA, which authorizes the Secretary to promulgate
regulations to carry out the purposes of that Act and other laws with
respect to public lands, authorizes this revision of the BLM's
regulatory authority for temporarily closing and restricting the use of
public lands. Other statutes, such as the Archaeological Resources
Protection Act (16 U.S.C. 470aa-470mm), also authorize the Secretary to
promulgate regulations relating to closures and use restrictions in
certain contexts.
II. Response to Comments on the Proposed Rule
The BLM published a proposed rule on November 21, 2023 (88 FR
81022), soliciting public comments for 60 days. The BLM received 79
submissions from members of the public, including individuals, State
and local governments, regional law enforcement groups, livestock
grazing organizations, recreation groups, and wilderness organizations.
The BLM considered each comment in developing the final rule. Some
comments fully or partially supported the proposed rule. Other comments
were critical of the proposed rule and expressed concern regarding,
among other issues, its scope, how the BLM would notify the public
about temporary closure and restriction orders, how such orders would
comply with the National Environmental Policy Act (NEPA), the BLM's
ability to exempt certain persons from temporary closure and
restriction orders, the lack of a mandatory public participation
requirement, and the length of time that temporary closure and
restriction orders could remain in place. Additional comments expressed
a desire for the BLM's temporary closure and restriction authority to
align more closely with the temporary closure and restriction
authorities of other Federal agencies.
Comments that are similar in nature have been categorized by
subject and, in some instances, have been combined with related
comments.
A. Scope of the Proposed Rule
Comment: Several commenters expressed concern about the language in
the proposed rule providing that the BLM could issue temporary closure
and restriction orders to ``provide for implementation of management
responsibilities.'' Some commenters described this language as too
vague, while others expressed concern that it impermissibly expanded
the situations in which the agency could issue temporary closure and
restriction orders.
Response: The BLM originally proposed to include the clause
regarding the implementation of management responsibilities in Sec.
8364.1 to make the BLM's temporary closure and restriction authority
align more closely with the NPS's analogous regulation, which permits
temporary closures and public use limits ``based upon a determination
that such action is necessary for. . .implementation of management
responsibilities'' (36 CFR 1.5(a)). The BLM also intended to clarify
that the agency may currently close or restrict the use of public lands
temporarily to facilitate construction, demolition, resource
monitoring, invasive species control projects, and other typical
management responsibilities in which the BLM regularly engages.
However, while this clause would be consistent with the BLM's authority
to manage public lands under FLPMA, the BLM understands how it could be
misinterpreted to broaden the scope of the agency's temporary closure
and restriction authority. Accordingly, the BLM has excluded the clause
``provide for implementation of management responsibilities'' from the
text of the final rule. Excluding this clause from the text of the
final rule should not impair or otherwise affect the BLM's ability to
perform typical management responsibilities, as activities such as
construction, demolition, resource monitoring, and invasive species
control projects are already typically accompanied by a temporary
closure or restriction order under the existing regulations where
necessary to protect persons, property, public lands, or resources. As
a result, the BLM expects to continue to be able to issue temporary
closure and restriction orders to facilitate such activities under the
final rule.
Comment: Several commenters expressed concern that the proposed
rule would allow the BLM to implement large-scale conservation leasing
without adequate public input. According to the commenters, this
concern was driven, in part, by ambiguity concerning the language in
the proposed rule providing for the issuance of temporary closure and
restriction orders for the implementation of management
responsibilities.
Response: This final rule does not establish a leasing program or
authorize the BLM to permanently close public lands to recreational or
other uses. Rather, it will allow the BLM to protect persons, property,
public lands, or resources, avoid conflicts among public land users,
and ensure the privacy of Tribal activities for traditional or cultural
use in a more efficient and expeditious manner. The BLM has excluded
the language concerning implementation of management responsibilities
to help clarify the scope and intent of the final rule.
Comment: Several commenters stated that the BLM should not address
temporary closure and restriction orders relating to emergencies and
permitted events through a single regulatory provision. According to
these commenters, closures and restriction orders intended to address
emergency situations and permitted events differ significantly in their
nature, and attempting to address them through a single regulation
exacerbates those discrepancies.
Response: The BLM does not believe that separate regulatory
provisions are necessary. The agency has long relied on a single
regulatory provision to issue temporary closure and restriction orders
for both emergencies and permitted events, and the revisions to 43 CFR
8364.1 effectuated through this rulemaking do not warrant a different
approach. While the elimination of a Federal Register notice
requirement will enhance the BLM's ability to respond to emergency
situations and other unforeseen events, the publication
[[Page 64385]]
of a Federal Register notice is not the most effective way for the
public to learn of a temporary closure or restriction order, even in
non-emergency situations. Under the final rule, the bureau retains
discretion to publish a notice in the Federal Register or use other
means, such as social media and other online communication systems, to
inform the public of a temporary closure or restriction order. The BLM
therefore does not believe that temporary closure and restriction
orders related to emergencies and permitted events must be addressed in
separate regulatory provisions.
Comment: Several commenters agreed that procedures should be
available to the BLM to expedite temporary closure and restriction
orders that address emergencies. But many of these same commenters
contended that those same processes should not apply to non-emergency
situations, such as temporary closures intended to facilitate planned
events or avoid user conflicts, because the BLM is typically aware of
these situations well before they occur. These commenters believe that
adequate time exists to publish temporary closure and restriction
orders associated with non-emergencies in the Federal Register.
Response: Although non-emergency situations typically do not pose
the same time constraints as emergencies, the BLM does not believe that
temporary closure and restriction orders associated with non-
emergencies must be published in the Federal Register. Some situations
may not clearly constitute an emergency but may nevertheless warrant a
quick response. In such situations, BLM managers should not delay
taking action to protect persons, property, public land, or resources
because they are concerned that a particular situation does not
necessarily qualify as an ``emergency'' and, therefore, the agency's
response must follow a slower process. Instead, managers should have
the discretion, but not the requirement, to publish certain temporary
closure and restrictions in the Federal Register when appropriate, such
as when the closure or restriction affects an area with limited local
media outlets and the BLM believes that publication in the Federal
Register is necessary to communicate area and use limitations to the
public adequately. Moreover, eliminating the Federal Register notice
requirement aligns 43 CFR 8364.1 more closely with the closure and
restriction authorities of the USFS, FWS, and NPS, none of which
require Federal Register publication for many non-emergency closures
and restrictions.
Comment: Several commenters argued that the proposed rule should
permit temporary closure and restriction orders only for emergencies.
Some commenters suggested that allowing the BLM to issue temporary
closure and restriction orders based on non-emergency conditions could
be overly open-ended and would not be based on adequate public input.
Response: Since the original promulgation of 43 CFR 8364.1, the BLM
has had authority to temporarily close or restrict the use of public
lands to respond to emergencies and non-emergencies alike. The final
rule retains this authority, which is an essential tool in managing the
public lands for present and future generations.
Comment: Several commenters expressed concern that the proposed
rule would allow the BLM to issue temporary closure and restriction
orders based on climate emergencies or other impacts of climate change.
Commenters suggested that such closures could be overly open-ended or
could occur without appropriate NEPA review.
Response: Climate-related emergencies could necessitate a temporary
closure or restriction order to protect persons, property, public
lands, or resources. If temporary closure and restriction orders are
necessary to address climate-related emergencies, the BLM would issue
them in accordance with the same procedures used to issue other Sec.
8364.1 orders. For example, the BLM would need to comply with NEPA and
other applicable laws and specify in the order the date (and time) on
which the closure or restriction would terminate.
Comment: Some commenters asserted that it is unnecessary to
eliminate the Federal Register publication requirement to modernize and
streamline how the BLM communicates temporary closure and restriction
orders to the public. These commenters assert that it is legally
feasible to notify the public about temporary closures and restrictions
using both the Federal Register and other forms of communication.
Response: Retaining the requirement to publish notice of all
temporary closure and restriction orders in the Federal Register,
though legally feasible, would fail to achieve one of the other primary
aims of this rulemaking: enhancing the BLM's ability to address
emergencies and unforeseen events in a timely manner. Nevertheless,
under the final rule, the BLM retains the discretion to publish
temporary closure and restriction orders in the Federal Register where
appropriate, such as when time allows or when the agency believes that
other communication methods may not provide adequate notice to the
public.
Comment: Several commenters suggested that the proposed rule expand
opportunities for public participation by requiring the BLM to seek
public input prior to issuing a temporary closure or restriction order.
Response: The BLM does not believe that it is necessary to seek
public input prior to issuing a temporary closure or restriction order
for several reasons. First, the agency has never been required to
obtain public input before issuing a closure or restriction order under
43 CFR 8364.1, and the BLM does not think it is necessary to impose
such a requirement now. As stated above, the BLM is revising the final
rule, in part, to enhance its ability to respond to emergencies and
other unforeseen events in a timely manner. Requiring public input
prior to issuing a temporary closure or restriction order could
undermine that purpose. The BLM took a similar position when
promulgating 43 CFR 8341.2, a provision which allows for emergency
closures to off-road vehicle use. In response to commenters who
expressed concern about the absence of a provision for public
participation in that regulation, the BLM explained that the rule is
intended to provide the BLM with a ``tool to take timely emergency
action,'' and ``[a]dding a provision for public discussion would defeat
th[at] purpose.'' (44 FR 34834 (June 15, 1979)) Similar logic applies
here.
Second, the BLM is also revising 43 CFR 8364.1 to make it more
consistent with closure authorities of the USFS, FWS, and NPS, none of
which are generally required to seek public input before issuing
closure or restriction orders. Third, even though public participation
is not required prior to the BLM issuing a closure or restriction
order, the BLM provides for public participation in the form of being
able to appeal such orders to the Department of the Interior's Board of
Land Appeals (IBLA) in accordance with the regulations contained in 43
CFR part 4. As a result, members of the public retain an ability to
voice opposition to a closure or restriction order that they believe
was issued improperly. Finally, the fact that this final rule does not
require the BLM to seek public input does not mean that there will
never be opportunities for public participation before the BLM issues
temporary closure and restriction orders. Orders issued under this
section must comply with NEPA, and that process will often provide
opportunities for public participation. Moreover, depending on
[[Page 64386]]
the nature of the closure or restriction at issue, other statutory and
regulatory provisions may require public participation prior to
issuance of an order.
Comment: Several commenters expressed concerns with the proposed
rule providing authority to issue temporary closure and restriction
orders to avoid conflicts among public land users. These commenters
were concerned that the BLM could use this authority to give preference
to certain public land users over others.
Response: FLPMA obligates the BLM to manage the public lands for a
broad array of uses. This statutory requirement can occasionally lead
to conflicts among users. In response, the BLM must evaluate and choose
an appropriate balance of uses, a task which frequently involves making
tradeoffs between competing uses. Since it was originally promulgated,
43 CFR 8364.1 has provided for the BLM to issue temporary closure and
restriction orders, where necessary, to manage the appropriate balance
of resources through its authority to protect persons, public lands,
and resources. At times, the BLM has utilized this authority to issue
temporary closure and restriction orders to avoid user conflicts, such
as when the agency has closed areas of the public lands to general
access to facilitate a permitted off-road race. The final rule
reinforces this existing authority by clarifying that the BLM's ability
to issue temporary closure and restriction orders to protect persons
extends to avoiding user conflicts.
Comment: One commenter sought clarification about whether the
proposed rule applies to all BLM-managed lands, including national
monuments and other special designations.
Response: The final rule applies to all BLM-managed lands.
Temporary closure and restriction orders issued under 43 CFR 8364.1 can
apply to national monuments and other public lands managed by the BLM
under special designations. Moreover, the final rule is compatible with
other legal and regulatory authorities that allow the BLM to close or
restrict the use of public lands in specific contexts. For example, the
final rule does not constrain the BLM's discretion to implement the
closure provision at 43 CFR 8351.2, which authorizes the BLM to close
or restrict the use of certain lands and waters within the boundary of
a component of the National Wild and Scenic Rivers System, or the
provision at 43 CFR 9212.2, which authorizes the BLM to issue fire
prevention orders to prevent wildfire or facilitate its suppression.
B. Coordination, Communication, and NEPA
Comment: Several commenters requested that the BLM clarify how this
proposed rule interacts with requirements of the John. D. Dingell, Jr.
Conservation, Management, and Recreation Act (Dingell Act). For
example, one commenter requested that the final rule include language
regarding the Dingell Act's requirements to coordinate with state
agencies, to consider the impact of closures on hunting, fishing, and
recreational shooting, and to close the smallest area for the least
amount of time. Another commenter asked that the final rule specify
that the public have an opportunity to comment in accordance with
section 4103 of the Dingell Act if the agency is proposing to close
public lands to hunting, fishing, or recreational shooting.
Response: The final rule does not change how the BLM complies with
the Dingell Act. If a proposed closure to hunting, fishing, or
recreational shooting falls within the purview of the Dingell Act, the
BLM will publish a notice in the Federal Register, consult with state
wildlife agencies, provide an opportunity for public comment, and
satisfy the other procedural and substantive requirements of section
4103. It is therefore unnecessary to incorporate aspects of the Dingell
Act into the text of the final rule.
Comment: One commenter suggested that the BLM explain in further
detail where it would post notice of temporary closure and restriction
orders and recommended that the BLM use all forms of communication
available to inform the public.
Response: The BLM has not incorporated this suggestion into the
final rule. The final rule, which requires that notice of temporary
closure and restriction orders be posted in BLM offices with
jurisdiction over the relevant public lands, at or near places where
the order applies, in local media outlets, and on at least one BLM-
controlled, publicly available online communication system, provides
the BLM with discretion to ensure that the level of notice provided to
the public is commensurate with the scale and location of the closure
or restriction order at issue. In some instances, it may be necessary
to post notice on numerous BLM web pages, including the national,
state, district, and field office web pages. In other situations, more
limited online notification may suffice. The final rule provides the
flexibility necessary to ensure that the level of notice is uniquely
tailored to the closure or restriction order being issued.
Comment: One commenter asked the BLM to clarify what ``BLM-
controlled, publicly available online communication system'' means.
Response: This phrase refers to a BLM-controlled system that is
available to the public and facilitates the sharing of information or
communication over a computer network or other digital means.
Currently, many social media platforms and the BLM website would
qualify as BLM-controlled, publicly available communication systems.
However, because technology will change over time, the final rule
purposely utilizes flexible language to allow it to adapt to new
technologies.
Comment: One commenter contended that there are generational
differences in how the public obtains information. This commenter
suggested that certain generations could be adversely impacted by the
proposed rule's reliance on online communication systems in place of
the Federal Register.
Response: The final rule does not rely on the BLM's utilization of
online communication systems to communicate all temporary closures and
restrictions to the public. The BLM retains discretion to publish
orders in the Federal Register or use other mechanisms to inform the
public of temporary closure or restriction orders, where appropriate.
Additionally, the final rule requires the BLM to post notices of
temporary closure and restriction orders in the BLM offices with
jurisdiction over the relevant public lands, at or near places where
the order applies, and in local media outlets.
Comment: Several commenters requested that temporary closures and
restrictions continue to be published in the Federal Register to
facilitate communication in rural communities and retain public input
and appeal opportunities.
Response: The final rule does not prohibit the BLM from publishing
a notice in the Federal Register if the agency determines that doing so
is appropriate. Thus, where the BLM determines that other forms of
notice may prove insufficient, it may still elect to publish a notice
in the Federal Register. The final rule, however, does not require the
BLM to publish such a notice in all instances, even for temporary
closures and restrictions in rural areas, in part because what
constitutes ``rural'' can be relative, and demographics are not
necessarily determinative of whether other notification methods are
adequate. The
[[Page 64387]]
final rule does not alter the regulations with regard to public input
or appeals.
Comment: Some commenters requested that, in addition to posting
notice of temporary closure and restriction orders through an online
communication system and notifying local media outlets, the final rule
require the BLM to directly notify grazing permittees and other people
affected by a temporary closure or restriction order through certified
mail or some other means. These commenters feel that online
communications systems and local media outlets are not sufficient
effective means of communication in certain rural areas.
Response: The BLM has not incorporated this suggestion into the
final rule. In most situations, online communication systems and local
media outlets will be an effective means of communicating temporary
closures and restrictions, even in rural areas. In those situations
where online communication systems and local media outlets may not be
effective means of communication, the final rule provides the BLM with
sufficient flexibility to communicate the closures through other means
of communication, such as directly notifying a permittee or other
person affected by a temporary closure or restriction order. Generally,
and as emergency conditions may dictate, the BLM will communicate with
an affected permittee prior to implementing a closure. Furthermore,
temporary closures implemented under the final rule will not
necessarily impede a permittee's ability to manage livestock within a
closure area, as Sec. 8364.1(a)(4) permits the authorized officer to
identify persons or groups who are exempt from the closure or
restrictions.
Comment: Some commenters expressed concern that the proposed rule
may cause changes to resource management plans (RMPs) without public
input. The commenters emphasized that temporary closures should comply
with applicable RMPs.
Response: The final rule does not substitute for land use planning,
a separate process governed by BLM regulations at 43 CFR part 1600.
Temporary closure and restriction orders under 43 CFR 8364.1 do not
amend or revise land use plans and are issued independent of the
planning process (Utah Shared Access Alliance v. Carpenter, 463 F.3d
1125, 1135-36 (10th Cir. 2006) (citing Humboldt County v. United
States, 684 F.2d 1276 (9th Cir. 1982))). Implementation of the final
rule will not change the content of RMPs. Under the final rule, all
temporary closures and restrictions must conform to approved RMPs.
Comment: Some commenters expressed the view that the proposed rule
should require consultation or coordination with various stakeholders,
including, but not limited to, local sheriffs, emergency services
providers, State wildlife agencies, Tribes, and others.
Response: Consultation and coordination with stakeholders is an
important aspect of managing public lands, and, where possible, the BLM
always encourages coordination with local sheriffs, State law
enforcement, government officials, State wildlife agencies, rights-of-
way holders, permittees, and other interested stakeholders before
temporarily closing or restricting the use of public lands. But
consultation and coordination with external groups is not always
feasible before implementing a closure or restriction order. For
example, the BLM may not have time to engage in the suggested type of
coordination when addressing an emergency. Additionally, which
stakeholders are appropriate for the BLM to coordinate with will depend
on the circumstances of the specific closure or restriction at issue.
The BLM, therefore, has not incorporated a requirement to consult or
coordinate with specific stakeholders prior to implementing a temporary
closure or restriction order. Instead, the BLM has adopted a more
individualized approach and intends to coordinate with appropriate
stakeholders, the identity of which will depend on the circumstances
giving rise to the need for the temporary closure or restriction order.
Comment: One commenter implied that under section 202(c)(9) of
FLPMA, the BLM must incorporate a requirement to coordinate with State
and local governments prior to implementing a temporary closure or
restriction order.
Response: Consultation and coordination with State and local
governments is an important aspect of managing public lands, and the
BLM encourages land managers to do so in advance of issuing temporary
closure and restriction orders where appropriate. However, section
202(c)(9) of FLPMA requires the BLM to coordinate with State and local
governments only when engaging in land use planning in accordance with
43 CFR part 1600. As noted above, temporary closure and restriction
orders under 43 CFR 8364.1 do not amend or revise land use plans and
are issued independent of the planning process. Accordingly, section
202(c)(9) does not require coordination with State and local
governments prior to implementing a temporary closure or restriction
order. Although not required, the BLM will continue to engage in such
coordination where appropriate.
Comment: One commenter stated that the proposed rule, which does
not require coordination with stakeholders before the issuance of a
temporary closure or restriction order, conflicts with the community
engagement strategy laid out in the BLM's Blueprint for 21st Century
Outdoor Recreation.
Response: The final rule does not conflict with the Blueprint for
21st Century Outdoor Recreation (Blueprint), which presents the BLM's
strategy for diversifying recreation investments and considering
current and future recreation demands and program needs. While the
Blueprint identifies increasing and improving collaboration with
community service providers as a general goal, it does not suggest that
collaboration with community stakeholders must occur before the BLM
takes specific actions, such as issuing temporary closure or
restriction orders. The BLM will continue to coordinate as appropriate
with stakeholders through implementation of the Blueprint and other
activities.
Comment: Two commenters requested that the BLM revise the proposed
rule text to provide that the agency will issue a temporary closure or
restriction order only after other management strategies and
alternatives have been explored including, but not limited to,
increased law enforcement, cooperative efforts with local governments,
engineering, education, and outreach.
Response: While the BLM typically considers other management
strategies before closing or restricting the use of public lands, it
has not incorporated this suggestion into the final rule. There may not
be sufficient time in all situations to coordinate fully or document
those efforts before a closure or restriction must be implemented to
protect people or resources.
Comment: Some commenters expressed concern that the proposed rule
would not provide adequate opportunities for review or appeal of
temporary closure or restriction orders.
Response: The final rule does not affect the appealability of
temporary closure and restriction orders, nor does it affect the
public's ability to immediately challenge a temporary closure or
restriction order in Federal court. Such orders will continue to be
administratively appealable in accordance with the regulations
contained in 43 CFR part 4. Under the final rule, however, temporary
closure
[[Page 64388]]
and restriction orders may become effective upon issuance, similar to
several other types of decisions issued by the agency, such as rights-
of-way, certain grazing and forestry decisions, and wild horse and
burro removal decisions.
Comment: One commenter questioned the need to provide that
temporary closure and restriction orders are issued with immediate full
force and effect, asserting that such orders tend not to be appealed.
Response: Providing that temporary closure and restriction orders
can have immediate full force and effect will not, nor is it intended
to, limit the public's ability to appeal temporary closure and
restriction orders. Providing that temporary closure and restriction
orders may have immediate full force and effect is intended to enhance
the BLM's ability to address emergencies and unforeseen events in a
timely fashion. Previously, temporary closure and restriction orders
were generally not effective until 30 days after their issuance, which
hindered the agency's ability to protect public health, safety,
property, and resources in a timely manner.
Comment: One commenter stated that existing regulations, including
43 CFR 4.21, 43 CFR 9212.2, and regulations allowing for alternative
arrangements to comply with NEPA, provide adequate authority for the
BLM to respond to emergency situations. This commenter therefore
contended that the rule is not needed.
Response: The BLM disagrees that the regulations cited by the
commenter provide the agency with adequate authority to respond
effectively to all emergencies and other unforeseen events in a timely
fashion. Under 43 CFR part 4, the IBLA may provide that a decision has
immediate full force and effect when the public interest requires. But
that regulation does not provide the BLM with similar authority, and in
many situations, having to make a request of the IBLA would prevent the
BLM from acting with sufficient speed. The provisions at 43 CFR 9212.2
are limited to fire prevention and suppression purposes, and the BLM
must be able to close and restrict the use of public lands quickly in a
broader set of circumstances. Finally, the BLM agrees that regulations
promulgated by the Council on Environmental Quality and the Department
of the Interior concerning the procedural requirements of NEPA would
allow the BLM to make alternative arrangements for NEPA compliance when
responding to an emergency. Those regulations, however, do not affect
whether a temporary closure or restriction order needs to be published
in the Federal Register or whether it will be effective immediately. As
a result, reliance on those NEPA regulations alone is insufficient to
allow the BLM to respond to emergency situations and other unforeseen
events in a sufficiently timely manner.
Comment: One commenter asserted that the proposed rule should not
be used as a substitute for NEPA compliance for permits or planning.
Response: The final rule does not affect how the BLM complies with
NEPA. Temporary closure and restriction orders issued under 43 CFR
8364.1 must comply with applicable law. Moreover, the final rule is not
a substitute for land use planning. While the BLM has authority to
temporarily close or restrict the use of public lands for a variety of
reasons, the agency will continue to establish overarching goals,
objectives, and management direction through the land use planning
process in accordance with 43 CFR part 1600.
Comment: Several commenters were concerned that removing the
requirement for publishing temporary closure and restriction orders in
the Federal Register would circumvent public participation and other
requirements of NEPA.
Response: The final rule does not change how the BLM complies with
NEPA when issuing temporary closure and restriction orders. Before
issuing a temporary closure or restriction order, the BLM must ensure
that it is supported by an adequate environmental analysis, relies on a
relevant categorical exclusion, or, in the case of emergencies, relies
on alternative arrangements for NEPA compliance. The final rule does
not change these requirements.
Comment: One commenter suggested that the proposed rule should be
analyzed through an environmental impact statement under NEPA.
Response: Preparation of an environmental impact statement is
unnecessary, as the rule is categorically excluded from further NEPA
analysis under 43 CFR 46.210(i). The final rule is administrative and
procedural in nature and, therefore, satisfies the first prong of Sec.
46.210(i). The final rule is not self-executing in that its
promulgation does not authorize or effectuate any specific closures or
restrictions. The final rule merely clarifies the situations in which
the agency may issue temporary closure and restriction orders,
streamlines the process that the BLM uses to issue such orders, and
updates the penalty provision to align with current statutory
authority. Moreover, the final rule does not modify the public's
ability to participate in the BLM's decision-making process. When
considering whether to issue a temporary closure or restriction order,
the BLM must still comply with NEPA and other laws providing for public
participation.
The final rule also satisfies the second prong of Sec. 46.210(i).
The details of specific closures or restrictions that the BLM may
impose in accordance with the final rule are uncertain. As a result,
the environmental effects of such future closures or restrictions are
currently too speculative and conjectural to lend themselves to
meaningful analysis. The environmental effects of future closure or
restriction orders issued under the final rule will later be subject to
the NEPA process when the agency can account for the site specificity
that will make such analysis meaningful. Finally, reliance on the
categorical exclusion at 43 CFR 46.210(i) is appropriate because none
of the extraordinary circumstances described in 43 CFR 26.215 apply to
the final rule.
Comment: Some commenters argued that the Burning Man Project, which
was cited in the proposed rule as an example of a reason for issuing a
non-emergency temporary closure, is a poor example because Burning Man
is associated with a special recreation permit that is subject to NEPA
and its attendant public participation requirements, whereas other
temporary closures are not.
Response: The final rule does not change or affect the BLM's
obligation to comply with NEPA when issuing temporary closure and
restriction orders, regardless of whether those orders are associated
with emergencies or easily foreseen events. Some temporary closure
orders are associated with large-scale public events authorized through
a special recreation permit, such as the Burning Man Project and the
Reno Air Races. These events can be complex in nature and may require
the BLM to temporarily close or restrict the use of public lands to
provide for public safety. In such situations, the BLM will typically
evaluate the environmental impacts associated with any necessary
temporary closures or restrictions in the NEPA document supporting
authorization of the underlying special recreation permit. However,
even in situations when a temporary closure or restriction order is
unrelated to a special recreation permit or other authorization that
must comply with NEPA, the temporary closure or restriction order
constitutes a Federal action for which NEPA compliance is necessary.
The circumstances surrounding specific
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temporary closure and restriction orders will determine how the BLM
complies with NEPA when issuing such orders.
C. Closure Parameters--Timeframe and Size
Comment: Several commenters expressed concern about the statement
in the proposed rule that ``a temporary closure or restriction order
would generally remain in effect until the situation it is addressing
has ended or abated, it expires by its own terms, or the BLM issues a
superseding decision, which can include incorporating the terms of a
closure or restriction order into a resource management plan in
accordance with the regulations at 43 CFR part 1600.'' Some commenters
asserted that such an order would not be ``temporary,'' while others
contended that the statement in the proposed rule is in tension with
the requirement that a temporary closure or restriction order specify
the time and date on which it begins and ends.
Response: Temporary closure and restriction orders are generally
intended to address emergencies or unforeseen events or facilitate
time-limited uses that require specific restrictions. In many
situations, such as when the BLM temporarily closes or restricts the
use of public lands to protect persons during an off-road vehicle race,
the BLM will know the specific duration that a closure or restriction
must be in effect. In other situations, the necessary duration of a
closure or restriction order is unknown, such as when the BLM closes an
area to protect resources after an area has been burned in a fire. In
both cases, the closure or restriction order issued by the BLM is
temporary, in that the agency issues it outside of the land use
planning process that the BLM uses to establish long-term management
strategies. Additionally, in both cases, under the final rule, the BLM
would specify in the temporary closure or restriction order the times
and dates on which it takes effect and terminates. However, when the
necessary duration of the order is unknown, the BLM may have to issue
subsequent temporary closure or restriction orders that restrict public
access or use until the situation posing a concern has abated, or to
rescind an existing temporary closure or restriction order and issue a
new order with a revised date or other changes to better reflect the
purpose and intent of the order. By comparison, non-temporary closures
and restrictions are those that the BLM issues through the land use
planning process. Such closures and restrictions are part of the
agency's long-term strategy for managing areas of public lands and are
typically in place for longer durations. As a result, the agency issues
such closures in accordance with 43 CFR part 1600, which provides
multiple opportunities for public participation.
Comment: Several commenters requested that the BLM define the term
``temporary'' for purposes of this rule, while others suggested that
the temporary closure and restriction orders issued under 43 CFR 8364.1
be limited to a specific duration, such as 6 months or 45 days.
Response: The BLM does not believe that it is necessary to define
the term ``temporary'' for the purposes of the rule, nor does the BLM
believe that temporary closure and restriction orders issued under 43
CFR 8364.1 should be limited to a specific duration. As noted above,
the BLM issues temporary closure and restriction orders to address a
wide variety of circumstances. While some of those circumstances
involve specific durations that are known in advance (e.g., race
closures), others do not (e.g., wildfire recovery). Attempting to
define the term ``temporary'' or limit the duration of orders issued
under 43 CFR 8364.1 would hinder the BLM's ability to perform its
multiple-use mission and protect persons, property, public lands, and
resources.
Comment: One commenter requested that closures longer than 90 days
be published in the Federal Register.
Response: Requiring that all temporary closure and restriction
orders that last longer than 90 days be published in the Federal
Register would neither enhance the BLM's ability to respond to
emergencies in a timely fashion nor communicate closures and
restrictions to the public in the most efficient manner. Temporary
closures and restrictions that last longer than 90 days may need to be
put into effect immediately, which could be hampered by a Federal
Register publication requirement. Moreover, more direct forms of
communication may prove more effective at notifying the public of such
closures and restrictions.
Comment: Many commenters stated that temporary closure end dates
should be defined and expressed concern that the proposed rule would
permit closures to last until land use plans are updated.
Response: The final rule requires the BLM to specify the date and
time that a temporary closure or restriction order will terminate.
However, if the situation that a temporary closure or restriction order
addresses continues beyond the order's end date, the BLM may issue a
new order to extend the closure or restriction.
Comment: Two commenters recommended that closures be limited to the
smallest size possible.
Response: The final rule requires that each closure be accompanied
by a rationale for the closure or restriction, which can include a
rationale for the geographic parameters of the closure. In general, the
BLM strives to close or restrict the use of the smallest area of public
lands possible.
D. Exemptions
Comment: One commenter expressed concern that the proposed rule
would permit the BLM to restrict third parties from monitoring events
such as offroad races.
Response: Under the final rule, each temporary closure or
restriction order will specify the uses that are restricted, as well as
any exemptions from the order. In the example given, the BLM would have
discretion to exempt third-party race monitors from a restricted area.
Notably, this rule does not change the requirement for the BLM to
specify who is exempt from a temporary closure or restriction order.
Comment: Two commenters requested that the proposed rule provide
that temporary closure and restriction orders not apply to valid
existing rights or travel routes under litigation.
Response: Actions the BLM takes pursuant to FLPMA, including
issuing temporary closure and restriction orders under 43 CFR 8364.1,
are subject to valid existing rights. Additionally, under the final
rule, the BLM will determine which individuals are exempt from
temporary closure and restriction orders on a case-by-case basis. Where
necessary and appropriate, the BLM will provide that certain
individuals or groups are exempt from the limitations posed by a
temporary closure or restriction order.
Comment: Many commenters discussed the provision permitting
closures and restrictions for the purpose of ensuring privacy for
certain Tribal uses. In general, commenters asked the BLM to clarify
the meaning of that provision and explain why the proposed rule
specifically mentions Tribal uses. Some commenters suggested that the
proposed rule should not refer to Tribal activities specifically, but
instead should use general language applying to all public land users.
Response: While FLPMA directs the BLM to manage public lands for a
wide variety of uses and users, not all parcels of public lands must be
made available to all uses (or users) at any one time. In certain
places, and at certain times, the BLM may decide to facilitate specific
uses, such as certain Tribal uses, over
[[Page 64390]]
others. The provision in the final rule authorizing the BLM to issue
temporary closure and restriction orders to ensure privacy for certain
Tribal uses stems from the United States' unique trust responsibility
to Tribal Nations in the stewardship of public lands. Both Congress and
the Executive Branch have declared it to be the policy of the United
States to accommodate Tribal access to the public lands in certain
circumstances. For example, the American Indian Religious Freedom Act
provides that ``it shall be the policy of the United States to protect
and preserve for American Indians their inherent right of freedom to
believe, express, and exercise the traditional religions of the
American Indian, Eskimo, Aleut, and Native Hawaiians, including but not
limited to access to sites, use and possession of sacred objects, and
the freedom to worship through ceremonials and traditional rites.'' (42
U.S.C. 1996, emphasis added) Similarly, Executive Order (E.O.) 13007
directs Federal agencies to accommodate access to and ceremonial use of
Indian sacred sites on Federal lands by Indian religious practitioners.
It also directs Federal agencies, where appropriate, to maintain the
confidentiality of such sites. Additionally, Secretarial Order 3403
(Joint Secretarial Order on Fulfilling the Trust Responsibility to
Indian Tribes in the Stewardship of Federal Lands and Waters) directs
Bureaus and Offices to ``manage Federal lands and waters in a manner
that seeks to protect the treaty, religious, subsistence, and cultural
interests of federally recognized Indian Tribes.''
While the provisions of 43 CFR 8364.1 authorizing the BLM to issue
temporary closure and restriction orders to protect persons and avoid
user conflicts would seemingly also cover closure to ensure privacy for
Tribal uses, the BLM thinks it is worth clarifying the agency's
authority to temporarily close or restrict the use of public lands to
ensure privacy for Tribal activities for traditional or cultural use
consistent with the direction in the above-discussed authorities.
Expressly providing that the BLM may temporarily close or restrict the
use of public lands to ensure privacy for certain Tribal activities
will also allow the BLM to implement aspects of the Best Practices
Guide for Federal Agencies Regarding Tribal and Native Hawaiian Sacred
Sites that was developed to operationalize the direction in E.O. 13007,
as well as facilitate commitments the BLM may make to specific Tribes
as part of co-stewardship agreements governing certain portions of the
public lands. Moreover, because many Tribal traditional and cultural
uses take place in the vicinity of cultural resources whose nature and
location the BLM is required to keep confidential, this provision will
help the BLM comply with related statutory obligations.
Comment: A few commenters recommended that emergency services and
law enforcement personnel be exempt from temporary closures and
restrictions, and one commenter asked that the BLM clarify the process
for exempting some groups such as local entities with jurisdictional
authority (State wildlife agencies, for example) from temporary closure
and restriction orders.
Response: The existing regulation requires the BLM to identify any
persons or groups who are exempt from a temporary closure or
restriction order. Generally, the BLM exempts Federal, State, and local
officers and employees, as well as members of organized rescue or
firefighting forces, in the performance of their official duties from a
temporary closure or restriction order. The agency may specify that
additional persons or groups are exempt on a case-by-case basis.
Comment: One commenter expressed concern that there were
insufficient ``checks and balances'' and that the proposed rule could
permit the BLM to improperly exempt ``preferred individuals'' from
closure or restriction orders.
Response: Prior to this rulemaking, 43 CFR 8364.1 required the BLM
to identify the persons who are exempt from a temporary closure or
restriction order. The final rule does not change that requirement.
While the BLM's multiple-use mission inherently requires the agency to
balance competing uses and users of the public lands, the agency does
not intend to implement the final rule in a manner that gives
preference to select members of the public. Additionally, all temporary
closure and restriction orders must comply with NEPA and other
applicable statutes. They are also subject to administrative appeal in
accordance with 43 CFR part 4. Accordingly, the public has ample
opportunity to express concerns with a temporary closure or restriction
order, including concerns with individuals or groups exempted from its
limitations.
E. Consistency With Other Legal Requirements
Comment: Two commenters asserted that the proposed rule is not
consistent with the NPS's closure authority at 36 CFR 1.5. These
commenters pointed out that, except in the case of emergencies, Federal
Register publication is required where an NPS closure or restriction is
of a nature, magnitude, or duration that will result in a significant
alteration in the public use pattern of the park area, adversely affect
the park's natural, aesthetic, scenic or cultural values, requires a
long-term or significant modification in the resource management
objectives of the unit, or is of a highly controversial nature.
The commenters suggested that the BLM adopt a similar framework for
this rulemaking.
Response: The final rule is not identical to 36 CFR 1.5. This
rulemaking will nevertheless result in the BLM's temporary closure and
restriction authority aligning more closely with the NPS regulation.
For example, neither rule requires Federal Register publication of
temporary closure and restriction orders that address emergency
situations. Additionally, the final rule pertains only to temporary
closure and restriction orders and not to land use planning, which is
governed by 43 CFR part 1600, including requirements to publish certain
land use planning-related notices in the Federal Register. The final
rule also aligns with the NPS public notification processes set out in
36 CFR 1.7, which directs the NPS to use one or more different
communication methods, including electronic media, when invoking
certain authorities to, for example, ``restrict or control a public use
or activity'' or ``designate all or a portion of a park area as open or
closed.'' Finally, while not addressed by the commenters, the final
rule is similar to the USFS's and FWS's closure and restriction
authority at 36 CFR 261.50 and 50 CFR 25.31, respectively, which do not
require Federal Register publication for any closure or restriction
orders.
Comment: One commenter pointed out that the Alaska National
Interest Lands Conservation Act (ANILCA), Alaska Native Claims
Settlement Act (ANCSA), and other statutes impose Alaska-specific legal
obligations on the BLM. The commenter requested that the BLM make clear
that the final rule does not apply to Alaska and instead prepare an
Alaska-specific regulation. Alternatively, the commenter asked the BLM
to acknowledge in the final rule that Alaska-specific statutes, such as
ANILCA, apply where temporary closure or restriction orders impact
access for traditional activities on conservation system units, access
for subsistence activities on public land, or temporary access in the
National Petroleum Reserve-Alaska.
[[Page 64391]]
Response: The BLM believes it is unnecessary to exempt Alaska from
operation of the final rule or prepare an Alaska-specific temporary
closure and restriction regulation. The final rule does not change or
impact the requirements of ANILCA, ANCSA, or other statutes. It also
does not revise, amend, or obviate any regulatory requirements not
included in 43 CFR 8364.1, such as those implementing section 1110(a)
of ANILCA at 43 CFR 36.11. The BLM has long recognized that those
Alaska-specific legal requirements can work in tandem with the
temporary closure and restriction authority provided in 43 CFR 8364.1
(51 FR 31619 (September 4, 1986)). Accordingly, when implementing a
temporary closure or restriction in Alaska, it may be necessary for the
BLM to comply with both the final rule and certain Alaska-specific
statutory and regulatory requirements. Ultimately, the legal
requirements that apply to a temporary closure or restriction order
impacting BLM-managed public lands in Alaska will depend on the facts
and circumstances of the particular temporary closure or restriction.
Comment: Several commenters were concerned that the proposed rule
may conflict with the BLM's multiple-use mandate.
Response: The final rule is consistent with FLPMA's mandate to
manage public lands ``under the principles of multiple use and
sustained yield.'' 43 U.S.C. 1732(a). When enacting FLPMA and
establishing the BLM's multiple-use mandate, Congress declared it the
policy of the United States that public lands ``be managed in a manner
that will protect the quality of scientific, scenic, historical,
ecological, environmental, air and atmospheric, water resource, and
archeological values,'' and ``where appropriate, will preserve and
protect certain public lands in their natural condition.'' 43 U.S.C.
1701(a)(8). This policy is effectuated in the definition of ``multiple
use,'' which means, in part, ``the use of some land for less than all
of the resources'' and ``making the most judicious use of the land for
some or all . . . resources.'' 43 U.S.C. 1702(c). Courts have affirmed
that complying with FLPMA's multiple-use mandate requires the BLM to
``make judgments about incompatible uses'' and does not ``preclude the
agency from taking a cautious approach to assure preservation of
natural and cultural resources.'' (Nat'l Mining Ass'n v. Zinke, 877
F.3d 845, 872 (9th Cir. 2017) (citing New Mexico ex rel. Richardson v.
Bureau of Land Mgmt., 565 F.3d 683, 710 (10th Cir. 2009)). Indeed, when
performing the ``enormously complicated task of striking a balance
among the many competing uses to which land can be put,'' (Norton v. S.
Utah Wilderness Alliance, 542 U.S. 55, 58 (2004)), the BLM may decide
that ``a particular parcel [of public land] need not be put to all
feasible uses or to any particular use.'' (Nat'l Mining Ass'n, 877 F.3d
at 872). Moreover, in exercising its multiple-use mandate, FLPMA
requires the BLM to ``take any action necessary to prevent unnecessary
or undue degradation of the [public] lands,'' 43 U.S.C. 1732(b), and
courts have explained that closing or restricting the use of public
land under 43 CFR 8364.1 to prevent such degradation ``is a lawful
discharge of the BLM's duty'' under FLPMA. (Utah Shared Access Alliance
v. Carpenter, 463 F.3d 1125, 1136 (10th Cir. 2006)). Accordingly, the
final rule, which will help the BLM address competing uses of the
public lands and enhance the agency's ability to protect persons,
public lands, and resources, particularly in response to emergencies
and unforeseen events, is consistent with both the text of FLPMA and
courts' understanding of the BLM's multiple-use mission.
Comment: One commenter suggested that the proposed rule discuss its
implications on the Secretary's authority to hire and compensate
personnel in certain emergency situations.
Response: The issue raised is outside the scope of this rulemaking
effort and is addressed separately by other statutes and regulations.
F. Need for the Proposed Rule
Comment: Multiple commenters asserted that the BLM already has
sufficient authorities to close or restrict the use of public lands in
response to emergencies and unforeseen events and, therefore, this
rulemaking is unnecessary.
Response: The BLM disagrees. Protecting persons, public lands, and
resources in an adequate fashion often requires a quick response and,
as discussed above, the requirement to publish orders in the Federal
Register and the general inability of the BLM to issue such orders with
immediate full force and effect frequently hinders the BLM's ability to
temporarily close or restrict the public lands to address emergencies
and other unforeseen events in a timely manner. The USFS, FWS, and NPS
have the requisite authority to close or restrict the use of Federal
lands under their jurisdiction with little to no delay. Under the prior
regulations, the BLM lacked that authority. This final rule will
address that shortcoming and help align the BLM's procedures with those
of other land management agencies.
Comment: One commenter requested that the BLM identify the costs of
implementing the final rule.
Response: The BLM expects the final rule to decrease costs.
Preparing Federal Register notices associated with temporary closure
and restriction orders takes considerable time and effort, and
publishing notices requires payment to the Office of the Federal
Register. Instead, the agency will be able to focus its time, money,
and effort on using more direct and expedient methods of communication
to inform the public about how the agency is managing public lands.
III. Discussion of the Final Rule
A. Overview
The existing regulation at 43 CFR 8364.1 sets out the BLM's
authority and procedures for issuing temporary closure and restriction
orders. Among other things, the existing regulation requires the BLM to
publish temporary closure and restriction orders in the Federal
Register and does not authorize the agency to make those orders
effective immediately. Those restrictions, as well as other aspects of
the existing rule, frequently impede the BLM's response to emergencies
and other unforeseen events. Delays caused by the existing regulation
have, in some cases, hindered the BLM's ability to reduce risks to
public health, safety, property, and resources during such situations.
The final rule revises 43 CFR 8364.1 to improve the BLM's ability
to respond quickly to changing conditions on public lands and
facilitate more modern and direct methods of communicating its actions
to the public by eliminating the requirement to publish temporary
closure and restriction orders issued under this rule in the Federal
Register. In place of that notice requirement, the final rule directs
the BLM to inform the public about temporary closure and restriction
orders by notifying local media outlets and posting information about
the closure or restriction on at least one BLM-controlled, publicly
available online communication system. By no longer requiring the BLM
to publish temporary closure and restriction orders in the Federal
Register, the final rule better positions the agency to serve the
public and manage the public lands. The final rule continues to require
the BLM to post temporary closure and restriction orders at appropriate
BLM offices and at or near the closed or restricted area.
[[Page 64392]]
The final rule authorizes the BLM to make temporary closure and
restriction orders effective immediately, which will improve the BLM's
capacity to respond quickly to emergencies and other unforeseen events
affecting public lands. This change will help the BLM more effectively
fulfill its multiple-use mission without preventing those who are
adversely affected from appealing the issuance of an order to the IBLA.
The final rule clarifies the broad range of situations in which the
BLM may issue temporary closure and restriction orders. Under both the
prior regulation and this final rule, the BLM may issue temporary
closure and restriction orders to protect persons, property, and public
lands and resources. The final rule also reinforces that the BLM may
issue temporary closure and restriction orders to avoid conflicts among
public land users and to ensure the privacy of Tribal activities for
traditional or cultural use.
The final rule requires all temporary closure and restriction
orders issued under 43 CFR 8364.1 to state the date and time that a
closure or restriction will become effective and the date and time it
will terminate. The final rule also clarifies that the BLM may exempt
groups, such as law enforcement, emergency response, and Tribes, from
temporary closures and restrictions as appropriate. By comparison, the
prior regulation only expressly required the BLM to identify persons
who are exempt from temporary closure and restriction orders.
Finally, the final rule harmonizes the penalty provision in 43 CFR
8364.1 with current statutory authorities and makes several other
changes that improve the final rule's organization and readability.
The final rule does not itself close or restrict the use of any
specific public land, nor will it require the BLM to issue any new or
additional temporary closures or restrictions of public lands. Instead,
the final rule makes administrative changes intended to modernize and
streamline the procedures governing how the BLM issues temporary
closure and restriction orders and, thereby, provides the public with
better clarity about the scope of these orders and when they are
effective. Under the final rule, the BLM will continue to consider
other management strategies alongside or instead of temporary closures
and restrictions including, but not limited to, increased law
enforcement, cooperative efforts with local governments, engineering,
education, and outreach.
The final rule does not change any public participation
requirements or opportunities. While the prior regulation required the
BLM to publish temporary closure and restriction orders in the Federal
Register, 43 CFR 8364.1 has never required the agency to solicit public
feedback before temporarily closing or restricting the use of public
lands. Under the final rule, public participation opportunities
concerning temporary closure and restriction orders will continue to be
governed by other laws including, but not limited to, NEPA, the Dingell
Act, and the regulations implementing ANILCA. The final rule does not
change or limit those opportunities or modify those authorities. For
example, even though the final rule eliminates the Federal Register
publication requirement in 43 CFR 8364.1, the BLM may still need to
publish a Federal Register notice and provide the public with an
opportunity to comment in accordance with section 4103 of the Dingell
Act (16 U.S.C. 7913) if proposing to close public lands to hunting,
fishing, or recreational shooting. The final rule does not, however,
impose a requirement for the BLM to seek public feedback when not
already required to do so by other legal authorities.
Relatedly, the final rule does not diminish or eliminate the
public's opportunity to challenge temporary closure or restriction
orders, which will remain subject to appeal to the IBLA in accordance
with 43 CFR part 4 or to judicial review in Federal court. The final
rule, however, enhances the BLM's ability to protect persons, property,
public lands, or resources in a timely fashion by making temporary
closure and restriction orders effective immediately, pending a
decision on appeal or judicial review or the issuance of an
administrative or judicial stay.
Each section of the final rule is discussed in further detail
below.
B. Detailed Discussion
Paragraph (a)
The final rule reorganizes paragraph (a) for readability, adds the
word ``temporarily'' to clarify the nature of the closure and
restriction orders that the BLM issues under 43 CFR 8364.1, and
enumerates the situations in which the BLM may temporarily close or
restrict the use of public lands; namely, to protect persons, property,
public lands, or resources, to avoid conflict among public land users,
and to ensure the privacy of Tribal activities for traditional or
cultural use.
The addition of the word ``temporarily'' is intended to
differentiate temporary closures and restrictions issued under 43 CFR
8364.1 from closures and restrictions that are established through the
land use planning process. Closures and restrictions issued through the
land use planning process are intended to be part of the BLM's long-
term management strategy for an area and remain in place until the BLM
either revises or amends the applicable land use plan in accordance
with 43 CFR part 1600. Temporary closure and restriction orders issued
under the final rule, which are generally intended to address
emergencies or unforeseen events or facilitate time-limited uses that
require specific restrictions, serve a different and generally more
limited purpose. For example, the BLM typically issues temporary
closure and restriction orders under 43 CFR 8364.1 to facilitate time-
limited uses that require specific restrictions to avoid user conflicts
or ensure public safety, privacy, or resource protection; to address
emergencies that require timely responses; or to respond to events and
circumstances that the BLM did not foresee when it was previously
engaged in the land use planning process. Under the final rule, such
orders are considered ``temporary'' in that they are implemented
outside the land use planning process that typically guides how the BLM
makes more long-term decisions. While the final rule requires the BLM
to specify the time and date the closure or restriction imposed by such
orders begins and ends, it does not impose any specific limitation on
the duration that a temporary closure or restriction order may remain
in place, nor does it prevent the BLM from issuing a new order that
extends the time a temporary closure or restriction order is in effect,
if necessary. Because not all situations requiring temporary closure or
restriction orders will end within a preconceived timeframe, it may be
necessary to issue a revised closure or restriction order to ensure the
underlying situation has abated or the BLM has had an opportunity to
address the situation in a longer-term fashion through the land use
planning process.
The final rule adds the phrase ``including roads, trails, and
waterways'' for internal consistency with paragraph (b) and to clarify
that public roads, trails, and waterways under the BLM's jurisdiction
are components of public lands. This change is intended to be
clarifying only and is not intended to expand the scope of the BLM's
authority or alter its obligations under this regulation.
The final rule revises paragraph (a) to provide that the BLM may
issue temporary closure and restriction orders to avoid user conflicts
on public lands. Although this authority was implicitly
[[Page 64393]]
contained in the existing provision authorizing the agency to issue
temporary closure and restriction orders to protect persons, the final
rule clarifies that such authority extends to issuing temporary closure
and restriction orders to avoid user conflicts. As part of its
multiple-use mission, the BLM is required to balance competing uses of
the public lands. That task inherently requires the BLM to make
judgments about incompatible uses and, at times, permit certain uses
while prohibiting other, potentially conflicting, uses. For example, to
avoid user conflicts during a permitted off-road race, the BLM might
need to prohibit non-race uses of the course. The final rule clarifies
that the BLM has authority to issue temporary closure and restriction
orders to avoid such conflicts, thereby allowing the BLM to manage
temporary user conflicts effectively and efficiently.
The final rule revises paragraph (a) to provide that the BLM may
issue temporary closure and restriction orders to ensure the privacy of
Tribal activities for traditional or cultural use. Similar to the
provision concerning the avoidance of user conflicts, the authority to
temporarily close or restrict the use of public lands to ensure the
privacy of Tribal activities for traditional or cultural use was
implicitly contained in the existing provision authorizing the agency
to issue temporary closure and restriction orders to protect persons.
However, the BLM believes that authority should be made explicit given
the Federal Government's unique trust responsibility to Tribal Nations
in the stewardship of public lands and the direction in Secretarial
Order 3403, which directs Department of the Interior bureaus and
offices to ``manage Federal lands and waters in a manner that seeks to
protect the treaty, religious, subsistence, and cultural interests of
federally recognized Indian Tribes.'' Many Tribal Nations continue to
use BLM-managed lands for traditional and cultural purposes, and in
some cases those uses can be disrupted by simultaneous use by other
members of the public. The final rule will help the BLM facilitate
Tribal activities for traditional or cultural use on public lands
without such disruptions.
The proposed rule would have authorized the BLM to issue temporary
closures and restrictions to ``provide for implementation of management
responsibilities.'' The intent behind that proposal was to more closely
align the BLM's temporary closure and restriction authority with the
NPS's analogous regulation, which permits temporary closures and public
use limits ``based upon a determination that such action is necessary
for . . . implementation of management responsibilities.'' 36 CFR
1.5(a). Moreover, the BLM intended inclusion of the phrase to more
explicitly allow the BLM to temporarily close or restrict the use of
public lands to facilitate construction, demolition, resource
monitoring, invasive species control projects, and other typical
management responsibilities in which the agency regularly engages.
However, several commenters expressed concerns that the phrase
``implementation of management responsibilities'' was vague and
essentially removed all limits on the BLM's ability to close or
restrict the use of public lands. The BLM agrees that the phrase, while
commensurate with the BLM's authority to manage public lands under
FLPMA, is potentially open to misinterpretation. Accordingly, the BLM
has not included ``provide for implementation of management
responsibilities'' as a reason for issuing a temporary closure or
restriction order in the final rule. The deletion of the phrase from
the final rule does not affect the BLM's ability to perform typical
management responsibilities. Activities such as construction,
demolition, resource monitoring, and invasive species control projects
are already typically accompanied by a temporary closure or restriction
order where necessary to protect persons, property, public lands, or
resources. As a result, the BLM would still be able to issue such
closures and restrictions under the authority that is included in the
final rule.
Paragraph (b)
Paragraph (b) of the final rule outlines the contents of temporary
closure and restriction orders.
The final rule revises paragraph (b)(1) to clarify that public
roads, trails, or waterways are aspects of the public lands and,
therefore, are subject to temporary closures or restrictions where
appropriate. The prior text could arguably be interpreted to suggest
that roads, trails, and waterways under the BLM's jurisdiction are not
public lands, which is incorrect.
The final rule revises paragraph (b)(3) to improve readability and
clarify that each temporary closure and restriction order must state
the date and time when it will become effective and the date and time
when it will terminate. Including both of those dates and times will
help clearly communicate to the public how long the BLM expects a
temporary closure or restriction order to last. As noted above,
however, temporary closure and restriction orders are occasionally
issued to address situations that do not end or abate on a certain
date. As a result, the final rule should not be understood to limit the
BLM's authority to renew, extend, or modify temporary closures or
restrictions. Where necessary, the BLM may renew, extend, or modify a
temporary closure or restriction order by issuing a new order that
contains different parameters following the same procedures that the
agency uses to issue an order in the first instance.
The final rule revises paragraph (b)(4) to clarify that the BLM can
exempt groups or persons from a closure or restriction as circumstances
warrant. For example, the BLM generally exempts Federal, State, and
local officers and employees, as well as members of organized rescue or
firefighting forces, from temporary closures and restrictions when
necessary for them to perform their official duties. The BLM may also
exempt Tribal members who may need to access an otherwise closed area
for traditional or cultural uses. The final rule clarifies the BLM's
authority to exempt such groups.
The final rule moves former paragraphs (b)(5) and (6) to paragraph
(c) to consolidate the notification requirements in one paragraph.
Further revisions to those paragraphs are discussed below.
The final rule renumbers and revises former paragraph (b)(7) to
improve readability and for consistency with other provisions of the
regulation. That revision is not intended to affect the BLM's duties
under this regulation.
Paragraph (c)
The final rule revises paragraph (c) by removing the requirement to
publish temporary closure and restriction orders in the Federal
Register and, instead, requires the BLM to alert the public by
notifying local media outlets and posting information on at least one
BLM-controlled publicly available online communication system. The
final rule retains the requirements to post temporary closure and
restriction orders at relevant BLM offices and at or near the closed or
restricted area. This revision will allow the BLM to notify the public
about temporary closure and restriction orders in a timelier fashion,
which will enhance the agency's ability to effectively respond to
emergencies and other unforeseen events. This change will provide the
BLM with greater flexibility to ensure that the level of notice
provided to the public is commensurate with the scale, location, and
potential expediency of the closure or restriction.
[[Page 64394]]
Although the Federal Register may have been an effective way to
notify the public of access and use limitations when 43 CFR 8364.1 was
promulgated in 1983, that is less true today, when tools to communicate
with stakeholders and the public have become more numerous and direct.
Government agencies have been increasingly using online systems, and
new online systems are already evolving that may soon supersede or
supplant those used today as the most effective means for informing
public land users about government actions. The final rule is intended
to describe the communication systems in common use today, while at the
same time using sufficiently flexible language to account for new
systems and rapidly emerging best practices in communications and
public affairs. By intentionally incorporating flexibility into the
wording of the final rule, the BLM hopes to avoid the need to update
the rule again as communication methods and platforms continue to
evolve.
Under the final rule, the BLM may post notices on multiple BLM web
pages, including national, state, district, and field office web pages.
In other situations, more limited online notification may be
appropriate. The final rule permits the BLM to use the best methods
available to reach the public depending on the circumstances of the
closure or restriction, which can vary widely. Members of the public
will still have reliable ways to learn about temporary closures and
restrictions, including through posts at the relevant BLM offices and
closed or restricted areas, the BLM's online communication systems,
such as web pages, and local media.
The final rule's notification procedures will apply to all orders
issued under 43 CFR 8364.1, including those unrelated to emergencies.
Many commenters expressed that the agency should retain the Federal
Register publication requirement for non-emergency temporary closure
and restriction orders because they do not need to be issued urgently
and, therefore, are not hindered by the time it takes to publish a
notice in the Federal Register. While the BLM agrees that non-emergency
situations may not always pose the same time constraints as emergency
situations, it does not believe that imposing different notification
procedures is necessary or prudent. Some situations may not clearly
constitute an emergency but may nevertheless warrant a quick response.
For example, if a dignitary unexpectedly visits public lands, it may be
necessary for security reasons to issue a temporary closure or
restriction order quickly. Similarly, maintenance needs at campgrounds
and other facilities may arise that cannot be foreseen in advance but
nevertheless warrant timely action by the BLM. In such situations, BLM
managers should not delay taking action to protect persons, property,
public land, or resources because they are concerned that the instant
situation may not fall within a specific definition of ``emergency''
and, therefore, a related temporary closure or restriction order must
be published in the Federal Register.
The final rule is designed to avoid such situations by not
requiring Federal Register publication in any circumstance and instead
providing managers the discretion to publish certain temporary closure
and restrictions in the Federal Register as circumstances warrant, such
as when the closure or restriction affects an area with limited local
media outlets and the BLM believes that Federal Register publication is
necessary to adequately communicate the order's attendant limitations
to the public. Additionally, in some circumstances, other authorities
aside from this rule may require the BLM to publish temporary closure
and restriction orders in the Federal Register. For example, section
4103 of the Dingell Act may require the BLM to publish a Federal
Register notice and provide the public with an opportunity to comment
if proposing to close public lands to hunting, fishing, or recreational
shooting. This final rule does not affect how the BLM complies with the
Dingell Act or other authorities requiring Federal Register notices.
Paragraph (c) of the final rule also incorporates the posting
requirements that were previously included in paragraph (b) of 43 CFR
8364.1. The internal reorganization is intended to consolidate the
final rule's notification requirements in a single paragraph, which
will make it easier for the public to understand how to learn about
potential temporary closures and restrictions on public lands.
Elimination of the requirement to publish temporary closure and
restriction orders in the Federal Register will more closely align the
BLM's regulatory authority to that of other land management agencies.
The USFS's closure authority at 36 CFR 261.50 does not require Federal
Register publication. Instead, it requires closure and restriction
orders to be placed in the offices of the responsible Forest Supervisor
and District Ranger and displayed in such locations and manner as to
reasonably bring the prohibitions to the attention of the public. The
NPS similarly does not need to publish closure and restriction orders
in the Federal Register in a wide variety of situations, such as in
emergencies or for closures or restrictions that will not result in a
significant alteration in the public use pattern of a park area and
will not adversely affect a park's natural, aesthetic, scenic, or
cultural values. And 50 CFR 25.31 provides the FWS with discretion to
determine the best way to notify the public where access and use has
been temporarily curtailed. Eliminating the Federal Register
publication requirement in 43 CFR 8364.1 will enhance the BLM's ability
to coordinate with other Federal land management agencies (as well as
Tribal, State, and local government agencies), especially in situations
where the agencies manage adjacent or nearby lands.
Paragraph (d)
The final rule adds a new paragraph (d), which authorizes the BLM
to make temporary closure or restriction orders effective immediately.
Prior to the final rule becoming effective, temporary closure and
restriction orders issued under 43 CFR 8364.1 would typically not take
effect during the 30-day period in which the order is appealable to the
IBLA. However, emergencies and changing circumstances on public lands
often require a quicker response, and the delay in a closure or
restriction order taking effect has, in some cases, compromised the
BLM's ability to carry out its mission and protect the public. To
adequately meet the public's expectation for the BLM to protect health,
safety, property, and resources, the agency needs the ability to issue
temporary closure or restriction orders that are effective immediately
when necessary. Under paragraph (d), temporary closure and restriction
orders issued under 43 CFR 8364.1 will be effective upon issuance or a
date and time established in the order. This change will enhance the
BLM's ability to respond to emergencies and other unforeseen conditions
while preserving the public's ability to appeal an order to the IBLA in
accordance with 43 CFR part 4.
Like the elimination of the Federal Register notice requirement
discussed above, allowing the BLM to issue temporary closure and
restriction orders with immediate full force and effect will make 43
CFR 8364.1 more consistent with the closure and restriction authorities
of the USFS, FWS, and NPS, all of which can issue temporary closure and
restriction orders with immediate full force and effect. Aligning its
authority with that of other land
[[Page 64395]]
management agencies will allow the BLM to be an effective partner and
take more concerted action with those agencies.
Paragraph (e)
Former paragraph (d) addressed the penalties for violating
temporary closure and restriction orders. The final rule renumbers that
paragraph and updates it to be consistent with current legal
authorities. The Sentencing Reform Act of 1984, 18 U.S.C. 3571, which
passed the year after 43 CFR 8364.1 was promulgated, authorizes fines
that supersede those set out in FLPMA at 43 U.S.C. 1743. Under the
final rule, the penalty provision will refer directly to 18 U.S.C.
3571, which will make it less likely that the BLM will need to revise
the rule if Congress updates 18 U.S.C. 3571 in the future. The final
rule also revises the penalty provision to refer to 43 U.S.C. 1733,
which sets out the BLM's enforcement authority under FLPMA. Notably,
neither of these revisions effect a substantive change, as 43 CFR
8364.1 has always been subject to these overarching statutory
authorities. The change in the final rule is only intended to make the
regulation reflect these statutory realities.
IV. Procedural Matters
Regulatory Planning and Review (Executive Orders 12866, 14094, and
13563)
E.O. 12866, as amended by E.O. 14094, provides that the Office of
Management and Budget's (OMB) Office of Information and Regulatory
Affairs (OIRA) will review all significant rules. OIRA has determined
that the rule does not meet the criteria for significance under section
3(f) of E.O. 12866, as amended by E.O. 14094.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the Nation's regulatory system to promote
predictability, reduce uncertainty, and use the best, most innovative,
and least burdensome tools for achieving regulatory ends. The E.O.
directs agencies to consider regulatory approaches that reduce burdens
and maintain flexibility and freedom of choice for the public where
these approaches are relevant, feasible, and consistent with regulatory
objectives. E.O. 13563 emphasizes further that regulations must be
based on the best available science and that the rulemaking process
must allow for public participation and an open exchange of ideas. The
BLM has developed this final rule in a manner consistent with these
requirements.
The BLM reviewed the requirements of the final rule and determined
that it will not adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or Tribal
governments or communities. For more detailed information, see the
Economic and Threshold analysis prepared for the final rule. This
analysis has been posted in the docket for the final rule on the
Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In the
searchbox, enter ``RIN 1004-AE89'', click the ``Search'' button, open
the Docket Folder, and look under Supporting Documents.
Federal Actions To Address Environmental Justice in Minority or Low-
Income Populations (E.O. 12898)
E.O 12898 requires that, to the extent practicable and permitted by
law, each Federal agency must make achieving environmental justice part
of its mission. E.O. 12898 provides that each Federal agency conduct
its programs, policies, and activities that substantially affect human
health or the environment in a manner that ensures that such programs,
policies, and activities do not have the effect of excluding persons
(including populations) from participation in, denying persons
(including populations) the benefits of, or subjecting persons
(including populations) to discrimination under such programs,
policies, and activities because of their race, color, or national
origin.
This final rule revises the process the BLM uses to issue temporary
closure and restriction orders. The final rule is not self-executing,
in that it does not, in and of itself, temporarily close or restrict
the use of any public lands, and it is not expected to affect any
particular population. Therefore, this final rule is not expected to
negatively impact any community or cause any disproportionately high or
adverse impacts to minority or low-income communities.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires that
Federal agencies prepare a regulatory flexibility analysis for rules
subject to the notice-and-comment rulemaking requirements under the
Administrative Procedure Act (5 U.S.C. 500 et seq.), if the rule will
have a significant economic impact, whether detrimental or beneficial,
on a substantial number of small entities. See 5 U.S.C. 601-612.
Congress enacted the RFA to ensure that government regulations do not
unnecessarily or disproportionately burden small entities. Small
entities include small businesses, small governmental jurisdictions,
and small not-for-profit enterprises. The final rule will not have a
significant impact on a substantial number of small entities. This
certification is based on information contained in the economic and
threshold analysis prepared for this rule. Therefore, neither a final
regulatory flexibility analysis nor a small entity compliance guide is
required.
Congressional Review Act
Based upon the BLM's economic and threshold analysis, this final
rule does not meet the criteria under 5 U.S.C. 804(2), the
Congressional Review Act. This rule will not:
(a) Have an annual effect on the economy of $100 million or more;
(b) Cause a major increase in costs or prices for consumers,
individual industries, Federal, State, or local government agencies, or
geographic regions; and
(c) 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
Under the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1531 et
seq.), agencies must prepare a written statement about benefits and
costs prior to issuing a proposed or final rule that may result in
aggregate expenditure by State, local, and Tribal governments, or by
the private sector, of $100 million or more in any one year.
This final rule is not subject to the requirements under the UMRA.
The final rule does not contain a Federal mandate that may result in
expenditures of $100 million or more for State, local, and Tribal
governments, in the aggregate, or to the private sector in any one
year. The final rule will not significantly or uniquely affect small
governments. A statement containing the information required by the
UMRA is not required.
Takings (E.O. 12630)
This final rule will not affect a taking of private property or
otherwise have taking implications under E.O. 12630. The final rule
will only affect the management of public lands. Accordingly, a takings
implication assessment is not required.
Federalism (E.O. 13132)
Under the criteria in section 1 of E.O. 13132, this final rule does
not have
[[Page 64396]]
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement. The final rule will not have
substantial direct effects 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. The BLM
will coordinate with State and local governments, as appropriate, when
deciding whether to temporarily close or restrict the use of public
lands under this final rule. A federalism summary impact statement is
not required.
Civil Justice Reform (E.O. 12988)
This final rule complies with the requirements of E.O. 12988.
Specifically, this final rule:
(a) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
Consultation With Indian Tribes (E.O. 13175 and Departmental Policy)
The Department of the Interior strives to strengthen its
government-to-government relationship with Indian Tribes through a
commitment to consultation with Indian Tribes and recognition of their
right to self-governance and Tribal sovereignty.
In accordance with E.O. 13175, the BLM has evaluated this final
rule and determined that it will not have substantial direct effects on
federally recognized Indian Tribes. Nevertheless, the BLM consulted on
a government-to-government basis with Tribal governments that wished to
discuss the rule.
On March 22, 2023, the BLM sent a letter to federally-recognized
Indian Tribes and Alaska Native Corporations notifying them about the
BLM's intent to pursue this proposed rulemaking. In that letter, the
BLM invited the Tribes and Corporations to engage in government-to-
government consultation. Two Tribes requested additional information
and engaged in consultation about aspects of the proposed rulemaking:
one Tribe was concerned about the proposed rule and how it might affect
management of lands for which the Tribe manages all surface rights;
another Tribe shared that the proposed rule could play an important
role in protecting Tribal cultural resources and facilitating cultural
practices. In both cases, the consultation concluded with no
objections, no requests to modify the proposed rule, and no requests
for follow-up consultation.
Paperwork Reduction Act (44 U.S.C. 3501 et seq.)
This final rule does not contain information collection
requirements, and a submission to the OMB under the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.) is not required.
National Environmental Policy Act
The BLM has determined that the final rule is not a major Federal
action significantly affecting the quality of the human environment. A
detailed statement under NEPA is not required because the final rule is
categorically excluded from further analysis or documentation in
accordance with 43 CFR 46.210(i). That categorical exclusion covers
policies, directives, regulations, and guidelines that are of an
administrative, financial, legal, technical, or procedural nature or
whose environmental effects are too broad, speculative, or conjectural
to lend themselves to meaningful analysis and will later be subject to
the NEPA process, either collectively or case-by-case. The BLM has
documented the applicability of the categorical exclusion concurrently
with development of the final rule.
The final rule is procedural and administrative in nature and,
therefore, satisfies the first prong of Sec. 46.210(i). The final rule
will not result in access being prohibited or use being restricted on
any specific public lands. The final rule also will not limit or reduce
any current public participation opportunities. The final rule
clarifies the situations in which the agency may issue temporary
closure and restriction orders, streamlines the administrative process
through which the BLM issues and publicizes temporary closure and
restriction orders, and updates the penalty provision in Sec. 8364.1
to align with current statutory authority. When the BLM considers using
the final rule to issue a temporary closure or restriction order, the
agency will need to comply with NEPA and other applicable laws,
including those requiring public participation.
The final rule also satisfies the second prong of 43 CFR 46.210(i).
As noted above, the final rule does not prohibit access or restrict use
of any specific public lands, and the potential environmental effects
of future orders issued under the final rule that do prohibit access or
restrict the use of public land are too speculative and conjectural to
lend themselves to meaningful analysis at this time. However, the
effects of such orders will be individually subject to NEPA prior to
being authorized.
The BLM has determined that the final rule does not involve any of
the extraordinary circumstances listed in 43 CFR 46.215 that require
further analysis under NEPA.
Effects on the Energy Supply (E.O. 13211)
Federal agencies must prepare and submit to OMB a Statement of
Energy Effects for any proposed significant energy action. A
``significant energy action'' is defined as any action by an agency
that: (1) Is a significant regulatory action under E.O. 12866, or any
successor order; (2) Is likely to have a significant adverse effect on
the supply, distribution, or use of energy; or (3) Is designated by the
Administrator of OIRA as a significant energy action. The final rule is
not a significant action within the meaning of E.O. 12866 or any
successor order. The final rule does not affect energy supply or
distribution. Accordingly, a statement of energy effects is not
required.
Authors
The principal authors of this final rule are: David Jeppesen, Cory
Roegner, Kevin Oliver, and Greg Wolfgang, Recreation and Visitor
Services; Nicole Hanna, Tribal Relations; Russell Scofield and Sandra
McGinnis, National Experienced Workforce Solutions; Brittney Rodrigues,
Regulatory Affairs; Rebecca Moore and Jeff Childers, Decision Support,
Planning and NEPA; Heather Feeney, Public Affairs; Stephanie Rice and
Pat Johnston, Wildlife, Aquatics and Environmental Protection; Stacy
Silvester and Carmen Drieling, Forest, Rangeland and Vegetation
Resources; Ernesto Felix, Law Enforcement and Security; assisted by the
Office of the Solicitor.
Signing Authority
This action by the Principal Deputy Assistant Secretary is taken
pursuant to an existing delegation of authority.
Steven H. Feldgus,
Principal Deputy Assistant Secretary, Land and Minerals Management.
List of Subjects in 43 CFR Part 8360
Penalties, Public lands, Recreation and recreation areas.
For the reasons set out in the preamble, the Bureau of Land
Management amends 43 CFR part 8360 as follows:
[[Page 64397]]
PART 8360--VISITOR SERVICES
0
1. The authority citation for part 8360 continues to read as follows:
Authority: 16 U.S.C. 470aaa, et seq.; 670, et seq.; 877, et
seq.; 1241, et seq.; and 1281c; and 43 U.S.C. 315a and 1701 et seq.
0
2. Revise Sec. 8364.1 to read as follows:
Sec. 8364.1 Temporary closure and restriction orders.
(a) The authorized officer may issue an order to temporarily close
or restrict the use of designated public lands, including roads,
trails, and waterways, to protect persons, property, public lands, or
resources; avoid conflict among public land users; or ensure the
privacy of Tribal activities for traditional or cultural use.
(b) Each order shall:
(1) Identify the public lands, including roads, trails, or
waterways, that are closed to entry or restricted as to use;
(2) Specify the uses that are restricted;
(3) Specify the date and period of time that the closure or
restriction order will become effective and the date and time that the
order will terminate;
(4) Identify any persons or groups who are exempt from the closure
or restriction; and
(5) Identify the reasons for the closure or restriction.
(c) When issuing closure or restriction orders pursuant to this
section, the authorized officer shall provide public notice by:
(1) Posting the order in a Bureau of Land Management (BLM) Office
having jurisdiction over the public lands, including roads, trails, or
waterways, to which the order applies;
(2) Posting the order at places near or within the area to which
the closure or restriction applies, in such manner and location as is
reasonable to bring prohibitions to the attention of users;
(3) Notifying local media outlets; and
(4) Posting information on at least one BLM-controlled, publicly
available online communication system.
(d) Notwithstanding any contrary provisions in part 4 of this
title, the authorized officer will provide that orders issued pursuant
to this section will be effective upon issuance or at a date and time
established in the order. If appealed, such orders shall remain in
effect pending the decision on appeal unless a stay is granted.
(e) Any person who violates a temporary closure or restriction
order may be tried before a United States magistrate and fined in
accordance with 18 U.S.C. 3571, imprisoned no more than 12 months under
43 U.S.C. 1733(a) and Sec. 8360.0-7, or both.
[FR Doc. 2024-17065 Filed 8-6-24; 8:45 am]
BILLING CODE 4331-30-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.