[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