[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]
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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.
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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]
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