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[Federal Register Volume 90, Number 10 (Thursday, January 16, 2025)]
[Rules and Regulations]
[Pages 4669-4671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-00510]

[[Page 4669]]

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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 8

[Docket No. DOI-2024-0017; 256D0102DM, DS6CS00000, DLSN00000.000000, 
DX6CS25]
RIN 1093-AA29

Joint Policies of the Departments of the Interior and of the Army 
Relative to Reservoir Project Lands

AGENCY: Office of the Secretary, Interior.

ACTION: Direct final rule.

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SUMMARY: We, the Department of the Interior (DOI), are revising 
regulations that govern DOI's internal real property acquisition 
policies for reservoir lands. This direct final rule adds a section to 
allow deviations for the acquisition of less than fee title realty 
interests in and around reservoirs owned by DOI and typically only 
those constructed before 1962, a relatively infrequent occurrence.

DATES: This direct final rule is effective April 16, 2025 without 
further action, unless significant adverse comment is received by March 
17, 2025. If significant adverse comment is received, we will publish a 
timely withdrawal of the rule in the Federal Register.

ADDRESSES: You may submit comments by one of the following methods:
     Electronically: Go to the Federal eRulemaking Portal: 
https://www.regulations.gov and search for Docket Number DOI-2024-0017. 
Follow the instructions for submitting comments.
     By hard copy: Submit by U.S. mail to U.S. Department of 
the Interior, Office of the Solicitor, 960 South Broadway, Suite 400, 
Boise, ID 83706, Attention: Jeremiah Williamson.
    See Public Comments under SUPPLEMENTARY INFORMATION for more 
information about submitting comments.

FOR FURTHER INFORMATION CONTACT: Jeremiah Williamson, Senior Attorney, 
[email protected], (208) 334-1915. Individuals in the 
United States who are deaf, deafblind, hard of hearing, or have a 
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access 
telecommunications relay services. Individuals outside the United 
States should use the relay services offered within their country to 
make international calls to the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Purpose of Direct Final Rule and Next Steps

    The purpose of this direct final rule is to revise 43 CFR part 8 by 
adding section 8.7, Interior Deviations, which solely establishes 
internal DOI policy for acquisition of certain reservoir realty 
interests. This revision is only a change in internal policy for a 
particular and relatively infrequent circumstance; namely, the 
acquisition of interests in realty in and around reservoirs owned by 
Interior and typically only those constructed before February 21, 1962, 
when the policies in 43 CFR part 8 first took effect. It allows future 
DOI acquisitions to be consistent with historical acquisition practices 
on existing reservoirs that differed from the policies in 43 CFR part 
8.
    We are publishing this rule without a prior proposal because this 
is a noncontroversial action relating to agency management that, in the 
best interest of the public, should be undertaken as quickly as 
possible. This rule will be effective, as published in this document, 
on the effective date specified above in the DATES section of this 
document, unless we receive significant adverse comments on or before 
the comment due date specified above in DATES. Significant adverse 
comments are comments that provide strong justification as to why our 
rule should not be adopted or why it should be changed.
    If we receive significant adverse comments, we will publish a 
document in the Federal Register withdrawing this rule before the 
effective date, and we will determine whether to engage in the normal 
rulemaking process to promulgate changes to 43 CFR part 8.

Public Comments

    You may submit your comments regarding this direct final rule by 
one of the methods listed in ADDRESSES. Please include sufficient 
information with your comments that allows us to verify information you 
include. We will not consider comments sent by email or fax, or to an 
address not listed in ADDRESSES. We will not consider hand-delivered 
comments, or mailed comments that are not postmarked by the date 
specified in DATES.
    We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us. Before including your address, phone number, email address, or 
other personal information in your comment, you should be aware that 
your entire comment--including your personal identifying information--
may be made publicly available at any time. While you can ask us in 
your comment to withhold your personal identifying information from 
public review, we cannot guarantee that we will be able to do so.
    Comments we receive will be available for public inspection on the 
internet at http://www.regulations.gov. Please note that comments 
posted to https://www.regulations.gov are not immediately viewable. 
When you submit a comment, the system receives it immediately. However, 
the comment will not be publicly viewable until we post it, which might 
not occur until several days after submission.

Background

    In 1962, DOI and the Department of the Army (Army) published in the 
Federal Register a joint policy requiring each Department to obtain fee 
simple title to lands acquired for reservoir inundation, specifically 
those lands ``below the maximum flowage line of the reservoir.'' The 
policy did not permit exceptions for lands lying within the ``storage 
pool'' of the reservoir. Four years later, DOI and Army promulgated a 
direct final rule (31 FR 9108, July 2, 1966) to codify this policy at 
43 CFR part 8, Joint Policies of the Departments of the Interior and of 
the Army Relative to Reservoir Project Lands. Not long thereafter, in 
1969, the Government Accounting Office, now known as the Government 
Accountability Office, published a report criticizing the policy, 
finding it had resulted in excessive Federal expenditures on 
unnecessary realty acquisitions; specifically acquisitions of fee 
simple title when ``less costly flowage easements would have 
sufficed.'' Elmer B. Staats, Report to the Congress: Review of Policies 
and Practices for Acquiring Land for Reservoir Projects, Government 
Accounting Office (Feb. 3, 1969), https://www.gao.gov/assets/b-118634-087811.pdf.
    On January 15, 1979, the U.S. Army Corps of Engineers (Army Corps) 
promulgated a direct final rule at 32 CFR 644.4(b) (44 FR 3168) to 
revise Army's policy and treat the 43 CFR part 8 rule only as 
``guidelines.'' In 2018, Congress directed the Army Corps to ``first 
consider the minimum interest in real property necessary to support the 
water resources development project for which such interest is 
acquired,'' including ``a temporary easement or other interest designed 
to reduce the overall cost of the water resources development project 
for which such interest is acquired, reduce the time to complete such 
project, and minimize conflict with property owners related to

[[Page 4670]]

such project.'' 33 U.S.C. 598a. The Army Corps' Real Estate Handbook 
also treats the 43 CFR part 8 rule as guidelines and not mandatory. 
U.S. Army Corps of Engineers, Real Estate Handbook Ch. 12, sections 12-
5, 12-9, and 12-12.
    This direct final rule formalizes similar policy for DOI. This rule 
will allow DOI greater flexibility in its acquisition of realty 
interests for reservoir lands to account for site-specific 
circumstances that can warrant utilization of flowage easements, rather 
than fee simple title, where DOI determines it is in the best interests 
of the United States. Such site-specific circumstances can include, for 
example, new acquisition of realty interests in parcels on which DOI 
had previously acquired a less than fee title interest, such as a 
flowage easement. It will also allow for more consistency in Federal 
acquisition of reservoir lands. This flexibility is expected to 
accomplish similar goals that Congress sought for the Army Corps: 
namely, reductions in the cost and time to complete water resources 
development projects and minimization of conflicts with property 
owners.

Compliance With Other Laws, Executive Orders, and Department Policy

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866, as amended by Executive Order 14094, 
provides that the Office of Information and Regulatory Affairs in the 
Office of Management and Budget will review all significant rules. The 
Office of Information and Regulatory Affairs has determined that this 
rule is not significant.
    Executive Order 13563 reaffirms the principles of Executive Order 
12866 while calling for improvements in the Nation's regulatory system 
to promote predictability, to reduce uncertainty, and to use the best, 
most innovative, and least burdensome tools for achieving regulatory 
ends. Executive Order 13563 also directs agencies to consider 
regulatory approaches that reduce burdens and maintain flexibility and 
freedom of choice for the public where these approaches are relevant, 
feasible, and consistent with regulatory objectives. Executive Order 
13563 emphasizes further that regulations must be based on the best 
available science and that the rulemaking process must allow for public 
participation and an open exchange of ideas. We have developed this 
rule in a manner consistent with these requirements.

Regulatory Flexibility Act

    This rule will not have a significant regulatory effect on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.) because it only governs internal DOI policy 
for acquisition of reservoir lands.

Congressional Review Act

    The Congressional Review Act (CRA) defines a rule as major if it 
meets any of three criteria. The three criteria are:
    (a) Does the rule have an annual effect on the economy of $100 
million or more?
    (b) Will the rule cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions?
    (c) Does the rule have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises?
    This rule will not cause any of the aforementioned effects and thus 
is not a major rule under the CRA.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
Tribal governments or the private sector of more than $200 million per 
year. This rule does not have a significant or unique effect on State, 
local, or Tribal governments or the private sector. A statement 
containing information required by the Unfunded Mandates Reform Act (2 
U.S.C. 1531 et seq.) is not required.

Takings (Executive Order 12630)

    This rule does not affect a taking of private property or otherwise 
have taking implications under Executive Order 12630. This rule is not 
a government action capable of interfering with constitutionally 
protected property rights. A takings implication assessment is not 
required.

Federalism (Executive Order 13132)

    Under the criteria in Section 1 of Executive Order 13132, this rule 
does not have sufficient federalism implications to warrant the 
preparation of a federalism summary impact statement. It does not have 
a substantial direct effect on the States, on the relationship between 
the Federal Government and the States, or on the distribution of power 
and responsibilities among the levels of government. A federalism 
summary impact statement is not required.

Civil Justice Reform (Executive Order 12988)

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule:
    (a) meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation, and
    (b) meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

Consultation With Indian Tribes (Executive Order 13175)

    The DOI strives to strengthen its government-to-government 
relationship with Indian Tribes through a commitment to consultation 
with Indian Tribes and recognition of their right to self-governance 
and Tribal sovereignty. We have evaluated this rule under DOI's 
consultation policy and under the criteria in Executive Order 13175 and 
have concluded it will have no substantial direct effects on any 
federally recognized Indian Tribes, on the relationship between the 
Federal Government and Indian Tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian Tribes, 
and that consultation is not required. Because, however, the rule will 
have the indirect effect of allowing the Cle Elum pool raise project in 
central Washington to proceed as planned, the Department has consulted 
informally with the Yakama Nation, whose views DOI has fully considered 
in this rule. No other potential indirect effects to any federally 
recognized Indian Tribes have been identified.

Paperwork Reduction Act of 1995

    This rule does not contain information collection requirements and 
does not require a submission to the Office of Management and Budget 
under the Paperwork Reduction Act.

National Environmental Policy Act

    This rule is categorically excluded from National Environmental 
Policy Act of 1969 (NEPA) under the DOI categorical exclusion codified 
at 43 CFR 46.210(i), which applies to ``Policies, directives, 
regulations, and guidelines: that are of an administrative, financial, 
legal, technical, or procedural nature; or whose environmental effects 
are too broad, speculative, or conjectural to lend themselves to 
meaningful analysis and will later be subject to the NEPA process, 
either collectively, or case-by-case.'' This rule establishes internal 
policy on DOI's reservoir realty

[[Page 4671]]

acquisitions. The policy is administrative (how DOI chooses to own real 
property), financial (how much DOI expends for real property), and 
legal (how different property interests serve legal needs on individual 
reservoir projects). The type of realty interest DOI owns for reservoir 
inundation will not alter the effects resulting from inundation, which 
are subject to project specific NEPA analysis. While this rule could 
theoretically have negligible causally removed socioeconomic effects 
related to different opportunities available to owners of inundated 
parcels subject to flowage easements versus landowners who have 
relinquished title in a fee simple acquisition, any such potential 
effects are so intertwined with site specific conditions as to be too 
broad, speculative, and conjectural to support meaningful analysis. 
Those effects, if any, would be considered in project specific NEPA 
analysis in situations where this rule could apply.

Effects on the Energy Supply (Executive Order 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211 and does not require a Statement of Energy 
Effects.

List of Subjects in 43 CFR Part 8

    Reservoir project lands, Acquisition of easements.

Promulgation of Direct Final Rule

    For the reasons stated in the preamble, DOI is amending part 8 of 
title 43 of the CFR as set forth below:

PART 8--JOINT POLICIES OF THE DEPARTMENTS OF THE INTERIOR AND OF 
THE ARMY RELATIVE TO RESERVOIR PROJECT LANDS

0
1. The authority citation for part 8 continues to read as follows:

    Authority:  Sec. 7, 32 Stat. 389; sec. 14, 53 Stat. 1197; 43 
U.S.C. 421, 389.

0
2. Add Sec.  8.7 to read as follows:

Sec.  8.7  Interior deviations.

    On Department of the Interior projects, a bureau director or 
secretarial officer may authorize acquisition of easements in lieu of 
fee title to property to allow reservoir inundation of lands if the 
acquisition meets a combined total of at least five conditions listed 
in Sec.  8.3 and in this section:
    (a) The reservoir was originally constructed before February 21, 
1962.
    (b) The current reservoir has utilized more than de minimis 
acquisition of easements for inundation.
    (c) The acquisition of less than fee title is in the best interests 
of the United States.

Joan M. Mooney,
Principal Deputy Assistant Secretary Exercising the Delegated Authority 
of the Assistant Secretary--Policy, Management, and Budget.
[FR Doc. 2025-00510 Filed 1-15-25; 8:45 am]
BILLING CODE 4334-63-P
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