[Federal Register Volume 85, Number 38 (Wednesday, February 26, 2020)]
[Proposed Rules]
[Pages 11041-11043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03639]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 254

RIN 0596-AD41


Conveyance of Small Tracts

AGENCY: Forest Service, USDA.

ACTION: Proposed rule; request for comment.

-----------------------------------------------------------------------

SUMMARY: The United States Department of Agriculture (USDA), Forest 
Service is revising regulations to implement certain changes to the 
Small Tracts Act, enacted in the Agriculture Improvement Act of 2018, 
also known as the 2018 Farm Bill. These statutory changes create a new 
category of lands eligible for conveyance outside of the National 
Forest System under the Small Tracts Act for parcels of 40 acres or 
less that are physically isolated, inaccessible, or have lost National 
Forest System character. The statutory changes also create a new 
category of lands eligible for conveyance involving parcels of ten 
acres or less that are not eligible for conveyance under previous 
eligibility conditions and are encroached on by a permanent habitable 
improvement for which there is no evidence that the encroachment was 
intentional or negligent. These amendments to the Small Tracts Act are 
expected to provide the Forest Service with more flexibility for 
resolving property conflicts with private landowners, reduce the time 
and expense arising from a protracted boundary dispute, and alleviate 
management burden and expense to the Forest Service.

DATES: Comments must be received in writing by April 27, 2020.

ADDRESSES: Written comments concerning this notice should be addressed 
to Greg Smith, USDA, Forest Service, 201 14th Street SW, Washington, DC 
20250. Comments also may be submitted by following the instructions at 
the Federal eRulemaking portal at http://www.regulations.gov. If 
comments are sent by email, the public is requested not to send 
duplicate comments via regular mail. All comments, including names and 
addresses when provided, are placed in the record and made available 
for public inspection and copying. The public may inspect comments 
received at 201 14th Street SW, Washington, DC 20250. Visitors are 
encouraged to call ahead to 202-205-3563 to facilitate entry to the 
building.

FOR FURTHER INFORMATION CONTACT: Brad Tait, by phone at 971-806-2199, 
or via email at [email protected]. Individuals who use 
telecommunication devices for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. 
and 8:00 p.m., Eastern Standard Time, Monday through Friday.

SUPPLEMENTARY INFORMATION: 

Background

    Public Law 97-465, commonly known as the Small Tracts Act (16 
U.S.C. 521c-521i), was enacted in 1983 to help the Forest Service 
resolve land disputes and boundary mangement problems for parcels that 
generally were small in scale (less than ten acres) with land values 
that did not exceed $150,000. Eligible lands for sale, exchange, or 
interchange included National Forest System lands encumbered by an 
encroachment like a shed, house, or fence; roads or road rights-of-way 
in excess of Forest Service transportation needs; and ``mineral survey 
fractions,'' small parcels of National Forest System lands interspersed 
with or adjacent to lands transferred out of Federal ownership under 
the mining laws.

Discussion of Amendments to the Small Tracts Act

    The Small Tracts Act was amended by Section 8621 of the Agriculture 
Improvement Act of 2018, also known as the 2018 Farm Bill (Pub. L. 115-
334). The Agriculture Improvement Act of 2018 changes to the Small 
Tracts Act are being implemented in two phases. The first phase, 
implementing statutory revisions that are self-executing, was 
accomplished by revisions to 36 CFR part 254 by final rule without 
notice and comment on February 13, 2020 (85 FR 8180). The second phase, 
implementing changes that may entail agency discretion, would be 
accomplished by this proposed rule, for which notice and comment are 
warranted.
    The Agriculture Improvement Act of 2018 added two new paragraphs to 
the Small Tracts Act Section 3 (16 U.S.C. 521e) to resolve by 
conveyance certain encroachment, trespass, and boundary management 
problems: Paragraph (4) (16 U.S.C. 521e(4)), adding a limited 
conveyance authority for parcels of 40 acres or less that are 
determined by the Secretary to be physically isolated from other 
Federal lands, to be inaccessible, or to have lost National Forest 
character; and paragraph (5) (16 U.S.C. 521e(5)), addressing 
encroachments by permanent habitable improvements on parcels of 10 
acres or less. This proposed rule would implement paragraph (4) by 
adding a new 36 CFR 254.37, and would implement paragraph (5) by adding 
a new paragraph (b) to 36 CFR 254.32.
    Rulemaking is required for these specific amendments because 
Section 6 of the Small Tracts Act (codified at 16 U.S.C. 521(h)) 
provides that ``[t]he Secretary shall issue regulations to carry out 
the provisions of this Act, including specification of . . . criteria 
which shall be used in making the determination as to what constitutes 
the public interest.'' The public interest determination in Sec.  
254.36 will apply to the new paragraph 254.32(b) and new Sec.  254.37 
created by this proposed rule. Rulemaking, and particularly the 
solicitation of public comments, is further warranted because both 
amendments introduce new options to the Forest Service that rely on 
agency discretion for resolving eligible encroachments.
    The final rule published on February 13, 2020 (85 FR 8180), added a 
new paragraph (c) to 36 CFR 254.32. As noted above, this proposed rule 
would revise 36 CFR 254.32 to add a new paragraph (b); it would 
accordingly redesignate existing paragraph (b) as paragraph (c), which 
would in turn redesignate paragraph (c) added by the final rule as 
paragraph (d). The final rule also added 36 CFR 254.38. This proposed 
rule would revise the citations to other rule provisions in 36 CFR 
254.38(a) from 36 CFR 254.32(c) to 36 CFR 254.32(d), consistent with 
the revisions to Sec.  254.32 that would be made by this proposed rule, 
and would revise 36 CFR 254.38(b) to add a subparagraph (3).

[[Page 11042]]

Regulatory Certifications

Executive Order 12866

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) in the Office of Management 
and Budget will review all significant rules. OIRA has determined that 
this proposed rule is not significant.

Executive Order 13771

    The proposed rule has been reviewed in accordance with E.O. 13771 
on reducing regulation and controlling regulatory costs, and is 
considered an E.O. ``deregulatory'' action.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
OIRA designated this rule as not a major rule, as defined by 5 U.S.C. 
804(2).

Regulatory Flexibility Act Analysis

    The Agency has considered the proposed rule under the requirements 
of the Regulatory Flexibility Act (5 U.S.C. 602 et seq.). This proposed 
rule would not have any direct effect on small entities as defined by 
the Regulatory Flexibility Act. The proposed rule would not impose 
recordkeeping requirements on small entities; would not affect their 
competitive position in relation to large entities; and would not 
affect their cash flow, liquidity, or ability to remain in the market. 
Therefore, the Forest Service has determined that this proposed rule 
would not have a significant economic impact on a substantial number of 
small entities pursuant to the Regulatory Flexibility Act.

Federalism

    The Agency has considered this proposed rule under the requirements 
of E.O. 13132 Federalism. The Agency concluded that the proposed rule 
conforms with the federalism principles set out in this Executive 
Order; would not impose any compliance costs on the States; and would 
not have substantial direct effects on the States, on the relationship 
between the Federal Government and the States, nor on the distribution 
of power and responsibilities among the various levels of government. 
Therefore, the Agency concludes that this proposed rule does not have 
federalism implications.

Consultation With Tribal Governments

    Tribal consultation is not required for the revisions to the Small 
Tracts Act regulations to be effected in this proposed rule. Tribal 
consultation on individual proposed projects and local notification 
requirements to Tribes and other individuals for land adjustment 
activities will occur as required.

No Takings Implications

    The Agency has analyzed this proposed rule in accordance with the 
principles and criteria found in E.O. 12630, Governmental Actions and 
Interference with Constitutionally Protected Property Rights, and has 
determined that the rule does not pose the risk of taking of protected 
private property.

Controlling Paperwork Burdens on the Public

    This proposed rule does not contain any recordkeeping or reporting 
requirements or other information collection requirements as defined in 
5 CFR part 1320 that are not already required by law or are not already 
approved for use, and therefore imposes no additional paperwork burden 
on the public. Accordingly, the review provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501-3521), and its implementing 
regulations at 5 CFR part 1320, do not apply.

National Environmental Policy Act

    Agency regulations at 36 CFR 220.6(d)(2) (73 FR 43093) exclude from 
documentation in an environmental assessment or impact statement 
``rules, regulations, or policies to establish Service-wide 
administrative procedures, program processes, or instructions.'' The 
Agency has concluded that these proposed rules fall within this 
category of actions and that no extraordinary circumstances exist which 
would require preparation of an environment assessment or environmental 
impact statement.

Energy Effects

    This proposed rule has been reviewed under E.O. 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. It has been determined that this proposed rule 
does not constitute a significant energy action as defined in E.O. 
13211.

Civil Justice Reform

    The Agency has analyzed this rule in accordance with the principles 
and criteria of E.O. 12988, Civil Justice Reform. The Agency has not 
identified any State or local laws or regulations that conflict with 
this regulation or that would impede full implementation of this rule. 
Nevertheless, in the event that such conflicts were to be identified, 
the proposed rule, if implemented, would preempt the State or local 
laws or regulations found to be in conflict. However, in that case, (1) 
no retroactive effect would be given to this proposed rule; and (2) the 
USDA would not require the use of administrative proceedings before 
parties could file suit in court challenging its provisions.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), the agency has assessed the effects of this proposed 
rule on State, local, and Tribal governments and the private sector. 
This proposed rule does not compel the expenditure of $100 million or 
more by any State, local, or Tribal governments or anyone in the 
private sector. Therefore, statements as described under section 202 
and 205 of the Act are not required.

List of Subjects in 36 CFR Part 254

    Community facilities, National forests.

    Therefore, for the reasons set forth in the preamble, the Forest 
Service proposes to revise part 254 of title 36 of the Code of Federal 
Regulations as follows:

PART 254--LANDOWNERSHIP ADJUSTMENT

Subpart C--Conveyance of Small Tracts

0
1. The authority citation for part 254, subpart C continues to read:

    Authority: Pub. L. 97-465; 96 Stat. 2535.

0
2. Amend Sec.  254.31 by adding, in alphabetical order, the definition 
of ``Permanent Habitable Improvement'' to read as follows:


Sec.  254.31  Definitions.

* * * * *
    Permanent Habitable Improvement means a dwelling, improvement, 
house, shed, hunting blind, or other structure presently being used as 
a residence or domicile for a lasting or indefinite period of time.
* * * * *
0
3. Revise Sec.  254.32 to read as follows:


Sec.  254.32  Encroachments and other improvements.

    (a) This subpart allows conveyance of parcels of 10 acres or less, 
which will resolve encroachments by persons on NFS lands:
    (1) To whom no advance notice was given that the improvements 
encroached or would encroach, and
    (2) Who in good faith relied on an erroneous survey, title search, 
or other land description which did not reveal such encroachment.

[[Page 11043]]

    (b) This subpart also allows conveyance of parcels of 10 acres or 
less that are not eligible for conveyance under paragraph (a) of this 
section but are encroached on by a permanent habitable improvement for 
which there is no evidence that the encroachment was intentional or 
negligent.
    (c) Forest Service officials shall consider the following factors 
when determining whether to convey lands upon which encroachments exist 
under paragraphs (a) and (b) of this section:
    (1) The location of the property boundaries based on historical 
location and continued acceptance and maintenance,
    (2) Factual evidence of claim of title or color of title,
    (3) Notice given to persons encroaching on National Forest System 
lands,
    (4) Degree of development in the encroached upon area, and
    (5) Creation of an uneconomic remnant.
    (d) This subpart also allows conveyance of parcels that are used as 
a cemetery (including a parcel of not more than one acre adjacent to 
the parcel used as a cemetery), a landfill, or a sewage treatment plant 
under a special use authorization issued or otherwise authorized by a 
Forest Service official.
0
4. Add Sec.  254.37 to read as follows:


Sec.  254.37  Conveyance of parcels 40 acres or less that no longer 
meet National Forest System objectives.

    This subpart allows conveyance of parcels of 40 acres or less that 
are determined by Forest Service officials to:
    (a) Be physically isolated from other Federal land; or
    (b) Be inaccessible; or
    (c) Have lost National Forest character.
0
5. Amend Sec.  254.38 by revising paragraph (a) and adding paragraph 
(b)(3) to read as follows:


Sec.  254.38  Disposition of proceeds.

    (a) The net proceeds derived from any sale or exchange of parcels 
in Sec.  254.32(b) and (d) and Sec.  254.37 shall be deposited in the 
fund commonly known as the ``Sisk Act'' account.
    (b) * * *
    (3) Reimbursement for costs incurred in preparing a sale conducted 
under Sec.  254.37 if the sale is a competitive sale.

    Dated: February 14, 2020.
James E. Hubbard,
Undersecretary, Natural Resources and Environment.
[FR Doc. 2020-03639 Filed 2-25-20; 8:45 am]
BILLING CODE P