[Federal Register Volume 63, Number 190 (Thursday, October 1, 1998)]
[Rules and Regulations]
[Pages 52615-52617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26290]


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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Parts 2200, 2210, 2240, 2250, and 2270

[WO-420-1050-00-24 1A]
RIN 1004-AC58


Exchanges: General Procedures; State Exchanges; National Park 
Exchanges; Wildlife Refuge Exchanges; Miscellaneous Exchanges

AGENCY: Bureau of Land Management, Interior.

ACTION: Final rule.

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SUMMARY: The Bureau of Land Management (BLM) is streamlining its 
exchange regulations at 43 CFR group 2200 by amending Sec. 2200.0-7 of 
part 2200 and by removing parts 2210, 2240, 2250, and 2270. Section 
2200.0-7 states that, apart from the Federal Land Policy and Management 
Act (FLPMA), the Secretary of the Interior administers various statutes 
authorizing land exchanges, and that those exchanges may involve BLM-
managed lands. If BLM-managed lands are involved, the other statutes 
will prevail over the regulations in part 2200 to the extent they are 
inconsistent with the regulations in part 2200. BLM is simultaneously 
removing parts 2210, 2240, 2250, and 2270 because the regulations in 
those parts largely restate the substance of the exchange statutes 
referenced in them and are, in that respect, redundant and unnecessary.

EFFECTIVE DATE: November 2, 1998.

ADDRESSES: You may send inquiries or suggestions to: Administrative 
Record (630), Bureau of Land Management, 1849 C Street, NW, Room 401LS, 
Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: Chris Fontecchio, Bureau of Land 
Management, 1849 C Street, N.W., Room 401LS, Washington, DC 20240; 
Telephone: 202-452-5012.

SUPPLEMENTARY INFORMATION:
I. Background
II. Final Rule as Adopted
III. Responses to Comments
IV. Procedural Matters

I. Background

    Land exchanges involving BLM-managed lands and interest in lands 
are generally governed by FLPMA of 1976, as amended, 43 U.S.C. 1701 et 
seq., and the implementing regulations at 43 CFR part 2200. However, 
various other statutes authorize certain site- and type-specific land 
exchanges that may involve BLM-managed lands or interests in lands. The 
terms of these statutes may not be fully consistent with BLM's general 
land exchange regulations in part 2200. To the extent that an exchange 
of BLM-managed lands involves such inconsistencies, the conflicting 
terms of the site- or type-specific statute will prevail over the part 
2200 regulations. Provisions currently found at 43 CFR parts 2210, 
2240, 2250, and 2270 refer to some of these other site- and type-
specific exchange statutes.
    In light of the regulatory reform initiative's goals of 
streamlining the Code of Federal Regulations, this final rule removes 
the parts which in large measure restate statutory terms and, also, 
amends section 2200.0-7 to generally advise the public that other 
statutes governing certain site- and type-specific exchanges will 
preempt the exchange regulations at part 2200, to the extent that the 
terms of the statute and the part 2200 regulations conflict. This can 
be accomplished without significantly affecting the rights of the 
United States, BLM's customers, or the public at large. This rule 
finalizes a proposed rule which was published on December 6, 1996, in 
the Federal Register at 61 FR 64658.

II. Final Rule as Adopted

    The parts which this rule removes, 43 CFR parts 2210, 2240, 2250, 
and 2270, are almost entirely devoted to repeating statutory 
provisions. To the extent that they are duplicative, these regulations 
serve only to provide information that can be found in the statutes 
themselves. Furthermore, the few provisions in these parts which go 
beyond the statutes are provisions which can and should be removed.
    For example, removing section 2240.0-3(f) deletes: (1) the 
requirement that States, political subdivisions thereof, or interested 
parties requesting public hearings to consider an exchange do so in 
writing; and (2) the definitions of National Park System and 
miscellaneous areas. These provisions constitute substance beyond that 
already contained in the Act of July 15, 1968, 16 U.S.C. 460l-22. 
However, BLM has determined that deleting these provisions does not 
meaningfully alter its administration of the Act's exchange provisions 
or significantly affect the rights of the United States or the public. 
BLM believes the benefits of streamlining and deleting unnecessary 
material such as part 2240 outweigh the impact of these minor 
substantive changes.
    Next, removing part 2250 eliminates regulatory language stating 
that lands eligible for exchange under the Act of August 22, 1957, 16 
U.S.C. 696, include federally owned property in Florida classified by 
the Secretary as suitable for exchange or disposal. In fact, the 
statute requires that lands be ``federally owned property in the State 
of Florida under [the Secretary of the Interior's] jurisdiction . . . 
.'' Therefore, any suggestion by the existing 43 CFR 2250.0-3(c) that 
the land need only be Federal land in Florida, regardless of the 
Secretary's jurisdiction, contradicts the law. Removing part 2250 will 
eliminate this confusion and will delete otherwise unnecessary 
language.
    Similarly, removing part 2270 will eliminate a few minor 
inconsistencies with the governing statutes, but in each case our 
intention is that these deletions will not have any substantive effect. 
For example, section 2271.0-3(a) adds the word ``approximately'' to the 
requirement that exchanges of Indian Reservation land under the Act of 
April 21, 1904, 43 U.S.C. 149, must be ``equal'' in area and value. In 
this particular statutory context, BLM has generally interpreted the 
word ``equal'' to mean ``approximately equal'' to allow the exchanging 
parties some flexibility in making the exchange as close to equal as is 
reasonably possible, without risking failure over negligible 
differences. Although removing part 2270 will eliminate this 
interpretation from the CFR, BLM advises that it will continue to 
interpret the term ``equal'' in this way. BLM also advises that 
eliminating part 2270 will cause several other minor changes, but none 
that involve any significant substance. To sum up, BLM believes that 
there are no variances between the statute and the regulations being 
removed which are significant enough to justify continued publication 
of these otherwise redundant and unnecessary regulations.
    In place of these redundant parts, this rule amends 43 CFR 2200.0-
7(b) to include a general provision rather than a reference to the 
deleted parts. The amended section informs the public that the rules in 
part 2200 will apply to all exchanges involving BLM-managed lands 
unless a statute authorizes an exchange to be conducted under different 
requirements or procedures. As amended, the regulation gives several 
examples of land exchanges, such as National Park System and National 
Wildlife Refuge System exchanges, which may require complying with

[[Page 52616]]

statutory terms that are not entirely consistent with the part 2200 
regulations. The final rule simply recognizes the manner in which BLM 
has conducted exchanges all along. The only difference is that you will 
need to look directly to the relevant site- or type-specific statutes 
to determine if there are inconsistencies, rather than depending upon 
regulations, if any, that may echo a relevant statute's terms.
    Finally, please note that BLM is proposing to remove 43 CFR subpart 
2202 in a separate rulemaking. Subpart 2202 is concerned with proposals 
relating to National Forest land exchanges administered by the 
Secretary of Agriculture through the Forest Service.

III. Responses to Comments

    BLM received two comments to the proposed rule. One commenter had 
two specific concerns, and asked BLM to withdraw the rule, while the 
second expressed support and offered a minor suggestion.
    The first commenter felt that BLM should offer greater analysis of 
the statutes which in some respects may take precedence over the 
general exchange regulations at part 2200. BLM declines this suggestion 
to offer a lengthy analysis of all relevant statutes, because the 
existing statutes are numerous, because Congress may pass additional 
statutes or amendments in the future, and because any analysis of them 
is beside the point. The purpose of the general language added by this 
rule to 43 CFR 2200.0-7(b) is simply to point out that the regulations 
found at 43 CFR part 2200 describe how BLM will conduct certain 
exchanges unless a statute directs otherwise. It is axiomatic that 
statutes always take precedence over regulations, and regulations are 
ineffective to the extent that they conflict with governing statutory 
law. This final rule does nothing to change how various authorities 
interact to govern the conduct of land exchanges that the Secretary of 
the Interior may make.
    This first commenter also expressed a concern that by removing 
subpart 2240 BLM was eliminating protection of local residents' rights 
to a conveniently-located public hearing concerning exchanges affecting 
their community. Specifically, the existing language of 43 CFR 2240.0-
3(f)(1) says, ``[p]ublic hearings will be held in the area where the 
lands to be exchanged are located, if a written request therefor is 
submitted to the Secretary or his authorized officer prior to such 
exchange, by a State or a political subdivision thereof or by a party 
in interest.''
    This language will be removed, but BLM does not believe this will 
in any way deprive local residents of the meaningful and conveniently 
situated public hearing they may seek. The statute from which this 
provision derives, the Act of July 15, 1968 (16 U.S.C. 460L-22), 
contains the following language: ``Upon request of a State or a 
political subdivision thereof, or of a party in interest, prior to such 
exchange the Secretary or his designee shall hold a public hearing in 
the area where the lands to be exchanged are located.'' The statute 
continues to protect the right to public hearings that previously was 
recognized under the eliminated regulations. We therefore decline to 
act on this suggestion.
    The second comment suggests that BLM retain the language of 
existing 43 CFR 2271.0-3(a), which states that exchanged lands must be 
``approximately'' equal to each other in value and area. This provision 
derives from the Act of April 21, 1904 (43 U.S.C. 149), which says that 
exchanges must be ``equal'' in value. BLM declines to act on this 
suggestion. The proposed rule explained that while we feel that 
``approximately equal'' is a permissible interpretation of the 
statutory term ``equal,'' we do not feel that additional regulations 
are required to this effect. The regulations at part 2200.6(c) already 
govern when BLM may interpret ``equal'' to mean ``approximately 
equal,'' as well as when equalization payments must be made to complete 
the exchange. Removing part 2270 will not alter the rules in part 2200 
for equalizing exchange values.

IV. Procedural Matters

National Environmental Policy Act

    The BLM has prepared an environmental assessment (EA) and has found 
that the rule would not constitute a major federal action significantly 
affecting the quality of the human environment under section 102(2)(C) 
of the National Environmental Policy Act of 1969, 42 U.S.C. 4332(2)(C). 
The BLM has placed the EA and the Finding of No Significant Impact on 
file in the BLM Administrative Record for this rule at the address 
listed in the preamble.

Paperwork Reduction Act

    The final rule does not contain information collection requirements 
which the Office of Management and Budget must approve under the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Regulatory Flexibility Act

    Congress enacted the Regulatory Flexibility Act (RFA) of 1980, 5 
U.S.C. 601 et seq., to ensure that Government regulations do not 
unnecessarily or disproportionately burden small entities. The RFA 
requires a regulatory flexibility analysis if a rule would have a 
significant economic impact, either detrimental or beneficial, on a 
substantial number of small entities. Based on the discussion contained 
in the preamble above, this action will not have significant impact on 
small entities. Because it is limited to removing repetitive and 
unnecessary regulations, BLM anticipates that this final rule will not 
substantially burden any member of the public at large. Therefore, BLM 
has determined under the RFA that this final rule would not have a 
significant economic impact on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act

    These proposed regulations are not a ``major rule'' as defined by 
the Small Business Regulatory Enforcement Fairness Act, at 5 U.S.C. 
Sec. 804(2). The rule will not have a significant impact on the 
economy, or on small businesses in particular. As discussed above, this 
rule is limited to removing regulations which duplicate provisions 
found in existing statutes and adding an explanatory paragraph.

Unfunded Mandates Reform Act

    Amending 43 CFR section 2200.0-7 and removing parts 2210, 2240, 
2250, and 2270 will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year; nor do these proposed regulations have a significant or unique 
effect on State, local, or tribal governments or the private sector. As 
discussed above, this rule is limited to removing regulations which 
duplicate provisions found in existing statutes and adding an 
explanatory paragraph. Therefore, BLM is not required to prepare a 
statement containing the information required by the Unfunded Mandates 
Reform Act (2 U.S.C. 1531 et seq.)

Executive Order 12612, Federalism

    The final rule will not have a substantial direct effect on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 12612, BLM has determined that this final rule does not have 
sufficient federalism

[[Page 52617]]

implications to warrant preparation of a Federalism Assessment.

Executive Order 12630, Governmental Actions and Interference With 
Constitutionally Protected Property Rights (Takings)

    The final rule does not represent a government action capable of 
interfering with constitutionally protected property rights. Section 
2(a)(1) of Executive Order 12630 specifically exempts actions 
abolishing regulations or modifying regulations in a way that lessens 
interference with private property use from the definition of 
``policies that have takings implications.'' Since the primary function 
of the final rule is to abolish unnecessary regulations, there will be 
no private property rights impaired as a result. Therefore, BLM has 
determined that the rule would not cause a taking of private property 
or require further discussion of takings implications under the 
Executive Order.

Executive Order 12866, Regulatory Planning and Review

    According to the criteria listed in section 3(f) of Executive Order 
12866, BLM has determined that the final rule is not a significant 
regulatory action and was not subject to review by Office of Management 
and Budget. This final rule will not have an effect of $100 million or 
more on the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities. This final rule will not create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency. 
This rule does not alter the budgetary effects of entitlements, grants, 
user fees, or loan programs or the right or obligations of their 
recipients; nor does it raise novel legal or policy issues.

Executive Order 12988, Civil Justice Reform

    Under Executive Order 12988, the Office of the Solicitor has 
determined that this final rule would not unduly burden the judicial 
system and that it meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.

Author

    The principal author of this proposed rule is Christopher D. 
Fontecchio, Regulatory Management Team, Bureau of Land Management, 1849 
C Street, NW, Room 401LS, Washington, DC 20240; Telephone 202-452-5012.

List of Subjects

43 CFR Part 2200

    National forests; Public lands.

43 CFR Part 2210

    Public lands.

43 CFR Part 2240

    National parks; Recreation and recreation areas; Seashores.

43 CFR Part 2250

    Wildlife refuges.

43 CFR Part 2270

    Indians-lands; National trails system; National wild and scenic 
rivers system; Public lands.

    Dated: September 25, 1998.
Bob Armstrong,
Assistant Secretary, Land and Minerals Management.

    For the reasons stated in the preamble, and under the authority of 
43 U.S.C. 1740, parts 2200, 2210, 2240, 2250, and 2270, subchapter B, 
chapter II of Title 43 of the Code of Federal Regulations are amended 
as set forth below:

PART 2200--EXCHANGES: GENERAL PROCEDURES

    1. The authority for part 2200 continues to read as follows:

    Authority: 43 U.S.C. 1716, 1740.

    2. Section 2200.0-7 is amended by revising paragraph (b) to read as 
follows:


Sec. 2200.0-7  Scope.

* * * * *
    (b) The rules contained in this part apply to all land exchanges, 
made under the authority of the Secretary, involving Federal lands, as 
defined in 43 CFR 2200.0-5(i). Apart from the Federal Land Policy and 
Management Act of 1976 (FLPMA), as amended, 43 U.S.C. 1701 et seq., 
there are a variety of statutes, administered by the Secretary, that 
authorize land trades which may include Federal lands, as for example, 
certain National Wildlife Refuge System and National Park System 
exchange acts. The procedures and requirements associated with or 
imposed by any one of these other statutes may not be entirely 
consistent with the rules in this part, as the rules in this part are 
intended primarily to implement the FLPMA land exchange provisions. If 
there is any such inconsistency, and if Federal lands are involved, the 
inconsistent procedures or statutory requirements will prevail. 
Otherwise, the regulations in this part will be followed. The rules in 
this part also apply to the exchange of interests in either Federal or 
non-Federal lands including, but not limited to, minerals, water 
rights, and timber.
* * * * *

PARTS 2210, 2240, 2250, 2270--[REMOVED]

    3. Parts 2210, 2240, 2250, and 2270 are removed in their entirety.

[FR Doc. 98-26290 Filed 9-30-98; 8:45 am]
BILLING CODE 4310-84-P