U.S. DEPARTMENT OF THE INTERIORBUREAU OF LAND MANAGEMENT
 
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UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
WASHINGTON, D.C. 20240
http://www.blm.gov/
 
July 12, 2013
 
In Reply Refer To:
8365 (250/630) P
 
EMS TRANSMISSION 07/18/2013
Instruction Memorandum No. 2013-161
Expires:  09/30/2014
 
To:               All Field Office Officials
                    Attn: State, District, and Field Office Program Leaders including Recreation, National Landscape Conservation System and Planning Leads
 
From:           Principal Deputy Director           
 
Subject:        Processing and Approving Supplementary Rules
 
Program Area:  Recreation, Planning.
 
Purpose:   The purpose of this guidance is to clarify the process to publish Proposed, Interim and Final Supplementary Rules in the Federal Register.
 
Policy/Action: All state and field offices must process supplementary rules in accordance with the policies and procedures contained in this guidance.   
 
1.      Purpose of Supplementary Rules (43 CFR 8365.1-6)
 
The state director may establish supplementary rules to provide for the protection of persons, property, and public lands and resources. Supplementary rules are used to support objectives of 43 CFR Subpart 8365, “Rules of Conduct” for the protection of public lands and resources, and for the protection, comfort and well-being of the public in its use of recreation areas, sites and  facilities on public lands. Supplementary rules should not duplicate or conflict with these or other Federal regulations. 

Supplementary rules may be proposed in circumstances where existing regulations are not sufficient to manage resource use conflicts or to protect resources and may also be needed to implement decisions in resource management plans or other planning documents.

2.      Process 

A.     National Environmental Policy Act (NEPA) Compliance 
The establishment of supplementary rules is considered a federal action which must be supported by appropriate NEPA analysis. In many instances, supplementary rules are needed to enforce decisions made in Resource Management Plans (RMP) or implementation level plans (e.g., travel management plans). In certain instances, RMPs and their corresponding environmental impact statements (EIS) will have sufficiently analyzed the impacts of the proposed rules. When these circumstances exist, a Determination of NEPA Adequacy (DNA) may be issued.  However, in other cases, the RMP/EIS will not have specifically analyzed the impacts of the proposed rules. In these cases, additional NEPA analysis will be necessary.  
  • Categorical Exclusions (CX) – CXs may apply in limited circumstances in the absence of extraordinary circumstances.
  • Determination of NEPA Adequacy (DNA) – A DNA may be used in situations where impacts of the proposed rules are sufficiently analyzed in an existing environmental assessment (EA) or EIS.
  • Environmental Assessment (EA) – An EA must be prepared in the absence of applicable CXs and DNAs, where impacts of the proposed rules are not expected to be significant.
  • Environmental Impact Statements (EIS) – An EIS must be prepared where the impacts of the proposed rules are expected to be significant. 
Ensure that all interested and affected parties are aware of the proposed action. The degree of public involvement varies with the different types of NEPA compliance and decision-making. (H-1790-1-National Environmental Policy Act Handbook 6.9).
B.     Federal Register Publication 
Compliance with Section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553) is necessary to establish supplementary rules. Section 553 requires Federal agencies to comply with the following rulemaking procedures: 
1.      Publication of a general notice of proposed rulemaking in the Federal Register.
2.      An opportunity for public comment.
3.      A concise general statement of the rules’ basis and purpose.
4.      Publication of final rules at least 30 days before their effective date. 
Departmental Policy (Part 318 DM, Chapter 4), with respect to the first step (the notice of proposed rulemaking) provides that if the public comment period is less than 60 calendar days, the notice must explain the reasons for the shorter comment period. 

In most circumstances supplementary rules are first published as “proposed.” Final rules are then published after a 60 day review period. In limited circumstances, supplementary rules may be published initially as interim final supplementary rules that take effect without the prior notice-and-comment procedures that are normally required. Interim final supplementary rules are rare and require an explanation of “good cause” where “notice and public procedure … are impracticable, unnecessary or contrary to the public interest” (5 U.S.C. 553(b)(3)(B)).  For example, there may be “good cause” to omit prior notice-and-comment procedures because of immediate public safety and resource protection needs within a management area. Interim final supplementary rules generally go into effect 30 days after publication, but may go into effect immediately upon a separate finding of “good cause” under 5 U.S.C. 553(d)(3). 

Even in the case of interim final supplementary rules, the Bureau of Land Management (BLM) offers the public an opportunity to comment after publication. If the BLM receives substantive public comment on interim final supplementary rules, the BLM is required to publish a final supplementary rule responding to substantive public comment. Field officials should contact the field or regional solicitors’ office to verify the need and/or justification for interim final supplementary rules prior to submitting the rules to the Washington Office (WO) for review. 
Proposed, final, and interim final supplementary rules must comply with the Federal Register Document Drafting Handbook (www.archives.gov/federal-register/write/handbook) and must follow the guidance provided in WO Instruction Memorandum (IM) No. 2012-094, Guidance on Preparing Federal Register Notices.  Supplementary rules must address background, discussion (of each of the supplementary rules), procedural matters, exemptions and penalties. Attachment 1,   “Proposed Supplementary Rule Outline” and Attachment 2, “Final Supplementary Rule Outline” provide examples of how proposed and final supplementary rules should be formatted. 
3. Washington Office Submission
 
Washington Office IM 2012-094, provides guidance on Federal Register notice submission to the WO. The External Affairs Office of the submitting BLM State Office must submit all draft supplementary rules, properly formatted for publication in the Federal Register, a briefing paper summarizing the issues and need for the rules, and other supporting documentation such as maps, aerial, or other photographs, to the Division of Regulatory Affairs for clearance.  

Supplementary rules will be reviewed by BLM Program Staff, Office of the Solicitor, BLM Assistant Director(s), BLM Director’s Office, and the Department of the Interior’s Executive Secretariat.  Comments, edits, and questions will be referred to External Affairs from the submitting BLM State Office. The Division of Regulatory Affairs will arrange for publication in the Federal Register upon approval.

Timeframe:  This policy is effective immediately. 

Budget Impact:  None.
 
Background:  Clarification is needed on the requirements and processes to establish supplementary rules. As resource use and demands for public access have increased, so has the need for the BLM to establish supplementary rules in order to protect resources, safeguard public health, and ensure safety.  Supplementary rules must be established in accordance with applicable authorities, and the Department of the Interior and BLM policies and procedures. 
 
Manuals/Handbook Sections Affected: None. 
 
Coordination: This IM and its contents were prepared in collaboration among the Recreation and Visitor Services Division (WO-250), Decision Support, Planning, and NEPA Division (WO-210), National Landscape Conservation System Division (WO-410), and the Regulatory Affairs Division (WO-630).
 
Contact: Questions regarding this guidance should be directed to Dorothy Morgan (WO-250) at 202-912-7412, Chandra Little (WO-630) at 202-912-7403, or Jean Sonneman (WO-630) at
202-912-7405.
 
 
Signed by:                                                       Authenticated by:
Jamie E. Connell                                               Robert M. Williams
Acting, Principal Deputy Director                        Division of IRM Governance,WO-560
 
 
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Last updated: 07-22-2013