[Federal Register Volume 85, Number 189 (Tuesday, September 29, 2020)]
[Rules and Regulations]
[Pages 60913-60916]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21258]


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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: Final rule.

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SUMMARY: The United States Department of Agriculture (USDA), Forest 
Service is issuing this final rule to implement certain changes to the 
Small Tracts Act, which was enacted in the Agriculture Improvement Act 
of 2018, also known as the 2018 Farm Bill. These statutory changes 
create two new categories of lands eligible for conveyance outside of 
the National Forest System under the Small Tracts Act: parcels 40 acres 
or less that are physically isolated, inaccessible, or have lost 
National Forest System character; and 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.

DATES: This final rule is effective October 29, 2020.

ADDRESSES: Information on this final rule may be obtained via written 
request addressed to the Director, Lands and Realty Management, USDA 
Forest Service, 201 14th Street Southwest, Washington, DC 20250-1124 or 
by email to [email protected].

FOR FURTHER INFORMATION CONTACT: Brad Tait, Lands Staff, 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 management 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 house or fence; roads or road rights-of-way in 
excess of Forest Service transportation needs; and ``mineral survey 
fractions,'' or small parcels of National Forest System lands 
interspersed with or adjacent to lands transferred out of Federal 
ownership under 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 changes to the Small Tracts Act required by the Agriculture 
Improvement Act of 2018 are being implemented in two phases. The first 
phase, implementing statutory revisions that did not entail the 
exercise of agency discretion, was accomplished by revisions to 36 CFR 
part 254 by the final rule published in the Federal Register without 
notice and comment on February 13, 2020 (85 FR 8180). The second phase, 
implementing changes that may entail an exercise of agency discretion, 
is accomplished by this final rule.
    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 of Agriculture (hereafter ``Secretary'') to 
be physically isolated

[[Page 60914]]

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 final rule implements paragraph (4) by adding a new 
36 CFR 254.37, and implements paragraph (5) by adding a new paragraph 
(b) to 36 CFR 254.32. 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.
    Rulemaking is required for these specific amendments because 
Section 6 of the Small Tracts Act (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 final rule.
    A previous rule published on February 13, 2020 (85 FR 8180), added 
a new paragraph (c) to 36 CFR 254.32. As noted above, this final rule 
published September 29, 2020 revises 36 CFR 254.32 to add a new 
paragraph (b); accordingly, it redesignates existing paragraph (b) as 
paragraph (c), which in turn redesignates paragraph (c), added by the 
previous rule, as paragraph (d). The previous rule also added 36 CFR 
254.38. This final rule published September 29, 2020 revises 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 made by this final rule, and revises 36 CFR 254.38(b) to add a 
subparagraph (3).

Summary of Public Comments and Responses

Overview

    On February 26, 2020, the Forest Service published a proposed rule 
implementing provisions within Section 8621 of the Agriculture 
Improvement Act of 2018 in the Federal Register (85 FR 11041) with a 
60-day comment period ending April 27, 2020. The agency received 18 
comments, with approximately half of the respondents expressing support 
of the proposed rule and half expressing criticism. Comments in support 
of the rule tended to be general in nature: Some respondents described 
specific scenarios in which they would like to see the rule applied to 
resolve a management issue, or alternative ways to spend funds received 
from eligible conveyances. Several critical comments also were general 
in nature, or raised philosophical, rather than substantive, issues 
with the rule. Some critical comments did raise substantive concerns 
regarding specific applications of the rule that the Forest Service 
plans to address in directives instructing field-level personnel in how 
to implement this rule.

General Comments

    Comment: One respondent expressed concern that the regulations 
place no limitations on the number of conveyances to a single 
landowner. There were also concerns that a single parcel that is too 
large to qualify could be divided into smaller qualifying parcels.
    Response: These concerns are currently addressed in 36 CFR 
254.35(g), which limits the area conveyed to the ``minimum necessary to 
resolve encroachment or land management problems.''
    Comment: One respondent took issue with the acreage limitations 
contained in the rule, stating that the limitations do not take into 
account small acreage discrepancies that could disqualify otherwise 
eligible parcels.
    Response: Congress set clear acreage limitations within the 2018 
Farm Bill amendments to the Small Tracts Act, which the Forest Service 
is required to follow.
    Comment: One respondent supported the expanded conveyance 
categories, but preferred that the money generated go towards deferred 
maintenance rather than new land acquisition.
    Response: Congress made clear that money generated from eligible 
conveyances be deposited into a Sisk Act account, which limits 
expenditures to the acquisition of land within the same State the funds 
were generated.
    Comment: One respondent raised concerns that the rule would 
encourage squatting, or adverse possession, on Forest Service land in 
order eventually to gain ownership.
    Response: Squatting or other types of adverse possession are 
generally not applicable against the Federal government. While the 
Small Tracts Act provides an avenue for private landowners to gain 
ownership of Federal land underlying encroachments, Forest Service 
officials are required to consider ``factual evidence of claim of title 
or color of title'' in reaching a conveyance decision, among other 
factors and considerations.
    Comment: One respondent raised an issue with the maximum parcel 
sizes allowable for conveyance under the Small Tracts Act.
    Response: While the Small Tracts Act does specify parcel sizes for 
some of its conveyance categories, those acreage amounts represent the 
maximum allowable acreage for such transactions. Actual acreage will be 
determined on a case-by-case basis in accordance with factual and 
record evidence provided by the private landowner and will often be 
smaller than the maximum allowable acreage.
    Comment: One respondent took issue with the inclusion of the terms 
``shed'' and ``hunting blind'' in the definition of ``permanent 
habitable improvement'' because of the ability to move these structures 
easily.
    Response: The Forest Service has removed the terms ``shed'' and 
``hunting blind'' from the definition of ``permanent habitable 
improvement'' in section 254.31 of this final rule, based on the non-
permanent and non-habitable nature of such structures.
    Comment: One respondent generally supported the rule but encouraged 
the Forest Service to apply the public interest criteria at 36 CFR 
254.36 when considering conveyances of parcel 40 acres or less that are 
physically isolated, inaccessible, or have lost National Forest 
character.
    Response: Pursuant to 36 CFR 254.36(b), the Forest Service will 
apply the public interest criteria at 36 CFR 254.36 to all potential 
conveyances under the Small Tracts Act.
    Comment: One respondent stated that the Forest Service should not 
apply an existing categorical exclusion (CE) under the National 
Environmental Policy Act (NEPA) that excludes from further analysis in 
an environmental assessment or environmental impact statement the 
``sale or exchange of land or interests in land and resources where the 
resulting land uses remain essentially the same'' to the new category 
for parcels 40 acres or less that are physically isolated, 
inaccessible, or have lost National Forest character. The respondent 
offered three reasons for this: (1) The CE was enacted prior to this 
40-acre category and could not take into account properly its 
environmental effects; (2) the Forest Service has no basis to support a 
conclusion that the size and scope of the new 40-acre conveyance 
category will not have significant impacts on the human environment; 
and (3) the discretion afforded to agency officials to determine 
whether a parcel has lost National

[[Page 60915]]

Forest character is too broad to remove it from analysis under NEPA. 
The respondent also requests that the agency provide more guidance to 
officials tasked with determining whether a parcel is isolated, 
inaccessible, or has lost National Forest character.
    Response: The final rule does not make any changes to the NEPA 
process. Each conveyance proposed under this new 40-acre category will 
be examined and subject to an appropriate level of NEPA analysis. 
Generally, the public will have an opportunity to provide input.
    Regarding the request to provide more guidance to officials on what 
qualifies as isolated, inaccessible, or having lost National Forest 
character, the agency intends to amend its directives implementing the 
Small Tracts Act to include guidelines for agency officials to consider 
when determining whether a parcel meets any of these categories.
    Comment: One respondent expressed concern that the expansion of 
categories offered under the Farm Bill amendment to the Small Tracts 
Act will result in a ``death by a thousand paper-cuts'' scenario where 
public forest land is converted to private use at too great of a scale.
    Response: The Small Tracts Act is considered a relief authority, 
only to be used in specific instances to resolve specific title claims, 
innocent encroachments, and management inefficiencies (see Forest 
Service Handbook 5509.11, ch. 21.1). Since 2007, the Forest Service has 
conveyed less than 500 acres using the Small Tracts Act, which is 
greatly offset by the number of acres it acquires under authorities 
such as the Land and Water Conservation Fund. Public interest 
determinations indicate most land conveyed to private entities under 
the Small Tracts Act no longer meets the mission and purpose of the 
agency, ultimately guiding public resources towards more suitable lands 
and resources. Moreover, the use of the conveyance authority in the 
Small Tracts Act is discretionary and subject to public interest 
considerations contained in the Act and 36 CFR 254.36.

Regulatory Certifications

Executive Order 12866

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

Executive Order 13771

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

Federalism

    The Department has considered this final rule under the 
requirements of E.O. 13132, Federalism. The Department has concluded 
that the final rule conforms with the federalism principles set out in 
this executive order; will not impose any compliance costs on the 
States; and will 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 Department concludes that this final rule 
does not have federalism implications.

Consultation With Tribal Governments

    Tribal consultation is not required for the revisions to the Small 
Tracts Act regulations effected in this final 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 Department has analyzed this final 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 a taking of 
protected private property.

Controlling Paperwork Burdens on the Public

    This final 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 
Department has concluded that the revisions to regulations effected in 
this final rule 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 final rule has been reviewed under E.O. 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use.'' The Department has determined that this final 
rule does not constitute a significant energy action as defined in E.O. 
13211.

Civil Justice Reform

    The Department has analyzed this rule in accordance with the 
principles and criteria of Executive Order 12988, Civil Justice Reform. 
The Department 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 final rule, if implemented, will 
preempt the State or local laws or regulations found to be in conflict. 
However, in that case, (1) no retroactive effect will be given to this 
final rule; and (2) the USDA will 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 Department has assessed the effects of this 
final rule on State, local, and Tribal governments and

[[Page 60916]]

the private sector. This final 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 
sections 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 is amending 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:  Public Law 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, 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 National Forest System 
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.
    (b) This subpart also allows conveyance of parcels of 10 acres or 
less that are not eligible for conveyance under subsection (a) 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 subsections (a) and (b):
    (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.

    (a) This subpart allows conveyance of parcels of 40 acres or less 
that are determined by Forest Service officials to:
    (1) be physically isolated from other Federal land; or
    (2) be inaccessible; or
    (3) have lost National Forest character.
    (b) [Reserved]

0
5. Amend Sec.  254.38 by revising paragraph (a) and adding paragraph 
(b)(3) to read as follows:
    (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.

James E. Hubbard,
Undersecretary, Natural Resources and Environment.
[FR Doc. 2020-21258 Filed 9-28-20; 8:45 am]
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