[Federal Register Volume 67, Number 36 (Friday, February 22, 2002)]
[Proposed Rules]
[Pages 8216-8219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4137]


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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Part 1860

[WO-350-1864-24 1A]
RIN 1004-AD50


Conveyances, Disclaimers and Correction Documents

AGENCY: Bureau of Land Management, Interior.

ACTION: Proposed rule.

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SUMMARY: The Bureau of Land Management (BLM) proposes to amend its 
regulations pertaining to recordable disclaimers of interest in land. 
The proposed rule would allow any entity claiming title to lands or an 
interest in lands to apply for a disclaimer of interest. It would also 
exempt States from the requirement that an applicant request a 
disclaimer within 12 years of when it knew or should have known of a 
claim by the United States to the lands or interests in lands in 
question.

DATES: Send your comments to reach BLM on or before April 23, 2002. BLM 
will not necessarily consider comments postmarked, or received, after 
the above date during its decision on the proposed rule.

ADDRESSES: You may mail comments to Bureau of Land Management, Eastern 
States Office, 7450 Boston Boulevard, Springfield, Virginia 22153, 
Attention: RIN 1004-AD50.
    Personal or messenger delivery: You may also hand deliver comments 
to BLM at Room 401, 1620 L Street, NW., Washington, DC 20036.

FOR FURTHER INFORMATION CONTACT: Jeff Holdren, Lands and Realty Group 
202/452-7779. Individuals who use a telecommunications device for the 
deaf (TDD) may contact Mr. Holdren through the Federal Information 
Relay Service at 1-800/877-8339, 24 hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures
II. Background
III. Why Are We Proposing This Rule?
IV. Section-By-Section Description
V. Procedural Matters

I. Public Comment Procedures

A. Written Comments

    Written comments on the proposed rule should be as specific as 
possible, should be confined to issues pertinent to the proposed rule, 
and should explain the reason for any recommended change. Where 
possible, comments should reference the specific section or paragraph 
of the proposal which the commenter is addressing. BLM may not 
necessarily consider or include in the Administrative Record for the 
final rule comments that BLM receives after the close of the comment 
period (see DATES) or comments delivered to an address other than those 
listed above (see ADDRESSES).

B. May I Review Comments Others Submit?

    Comments, including names and street addresses of respondents, will 
be available for public review at the address listed under ``ADDRESSES: 
Personal or messenger delivery'' during regular business hours (7:45 
a.m. to 4:15 p.m.), Monday through Friday, except Federal holidays.
    Individual respondents may request confidentiality. If you wish to 
request that BLM consider withholding your name, street address, and 
other contact information (such as Internet address, FAX or phone 
number) from public review or from disclosure under the Freedom of 
Information Act, you must state this prominently at the beginning of 
your comment. BLM will honor all requests for confidentiality on a 
case-by-case basis to the extent allowable by law. BLM will make all 
submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety.

II. Background

    Section 315 of the Federal Land Policy and Management Act of 1976 
(FLPMA) (43 U.S.C. 1745) authorizes the Secretary of the Interior to 
issue a disclaimer of interest or interests in lands in specified 
situations if the disclaimer will help remove a cloud on the title to 
such lands. The Secretary may issue a disclaimer, for example, if the 
Secretary has determined that a record interest of the United States in 
lands or interests in lands has terminated by operation of law or is 
otherwise invalid. (43 U.S.C. 1745(a)). The Secretary must consult with 
any affected Federal agency before issuing a disclaimer. A document of 
disclaimer has the same effect as a quitclaim deed from the United 
States (43 U.S.C. 1745(c)).
    On September 6, 1984, BLM published final regulations (43 CFR 
subpart 1864) implementing the Secretary's authority to issue 
disclaimers. These regulations explain the objective of the recordable 
disclaimer, define terms used in this subpart, restrict applicants for 
a disclaimer to ``any present owner of

[[Page 8217]]

record'' (43 CFR 1864.1-1), and describe the application process, fee, 
and costs. The regulations also impose a filing deadline. The BLM must 
deny an application if ``[m]ore than 12 years have elapsed since the 
owner knew or should have known of the alleged claim attributed to the 
United States.'' (43 CFR 1864.1-3(a)(1)).

III. Why Are We Proposing This Rule?

    The purpose of the recordable disclaimer statute is to create an 
administrative procedure for landowners and other claimants to remove 
clouds from their title to lands or interests in lands. This 
administrative procedure eliminates the need for judicial action or 
special legislation to remove clouds when the United States asserts no 
ownership or holds no valid interest in the property. (43 CFR 1864.0-
2(a); S. Rep. No. 94-583, 94th Cong., 1st Session, pp. 50-51 (1975); 
and H.R. Report No. 94-1163, 94th Cong., 2nd Session, p. 11 (1976)).
    BLM proposes to amend certain provisions of Subpart 1864 to:
    (1) Further the purpose of section 315 of FLPMA (43 USC 1745) to 
remove clouds on title to lands or interests in lands by allowing any 
entity claiming title--not just present owners of record--to apply for 
a recordable disclaimer of interest in the absence of other governing 
law or regulations;
    (2) Eliminate inconsistent administrative interpretations and 
application by eliminating the requirement that an applicant be a 
``present owner of record''; and
    (3) Eliminate the application deadline in Sec. 1864.1-3, as it 
applies to States. This change would conform the regulations to the 
Quiet Title Act (28 U.S.C. 2409a(g), which exempts States, in most 
instances, from the twelve-year statute of limitations under that act.

IV. Section-by-Section Description

Section 1864.1-1  Filing of Application

    Current paragraph (a) provides, in part, that any ``present owner 
of record may file an application to have a disclaimer of interest 
issued.'' The phrase ``present owner of record'' is not defined in 
subpart 1864.
    The FLPMA neither uses nor defines this phrase. In real property 
parlance, the term ``present owner of record'' usually refers to a 
property owner in whose name the title appears in the official records 
of a county recorder's office or other office of record. Thus, it 
appears that the phrase ``present owner of record'' in Sec. 1864.1-1 
potentially could limit applications for a disclaimer of interest in a 
way that would unduly restrict the Secretary's broad authority under 
section 315 of FLPMA.
    The BLM proposes to amend this paragraph by removing the phrase 
``present owner of record'' and replacing it with ``any entity claiming 
title to lands.'' This change would clarify that it is the interest in 
the lands, rather than record ownership, that determines whether an 
entity is eligible to apply for a disclaimer of interest. This change 
would also broaden the class of potential applicants for disclaimers of 
interest, which could include, among others, a state, corporation, 
county, or a single individual.

Section 1864.1-3  Action on Application

    Section 1864.1-3(a)(1) currently provides, in part, that the BLM 
will deny an application for a disclaimer if ``[m]ore than 12 years 
have elapsed since the owner knew or should have known of the alleged 
claim attributed to the United States.'' This deadline was modeled 
after the statute of limitations in the Quiet Title Act, which also 
includes a disclaimer provision. (28 U.S.C. 2409a(e)). The Quiet Title 
Act provides that ``any civil action under this section, except for an 
action brought by a State, will be barred unless it is commenced within 
twelve years of the date upon which it accrued. Such action will be 
deemed to have accrued on the date the plaintiff or his predecessor in 
interest knew or should have known of the claim of the United States.'' 
(28 U.S.C. 2409a(g)).
    As enacted in 1972, the Quiet Title Act subjected all parties, 
including States, to the 12-year limitation period. In 1986, Congress 
amended the Quiet Title Act to exempt States from this 12-year statute 
of limitations. However, BLM has not updated 43 CFR 1864.1-3(a), issued 
in 1984, to reflect the 1986 change in the Quiet Title Act. Thus, the 
BLM is proposing to amend this section to be consistent with the Quiet 
Title Act.
    The proposed rule would add language exempting States from the 
twelve-year time limit and allow States to apply for disclaimers of 
interest under FLPMA at any time. We are also proposing editorial 
changes to this section and bring up-to-date a reference to another 
section.

V. Procedural Matters

Executive Order 12866, Regulatory Planning and Review

    As described in the ``Regulatory Flexibility Act'' analysis below, 
the proposed rule affects applicants who want to remove either real or 
perceived clouds on title to land or interests in land. Under the BLM's 
implementation of the current rule, the application filing fee has been 
set at $100, and this fee will not change as a result of this proposed 
rulemaking. In addition, the BLM may waive the filing fee if deemed to 
be in the public interest. BLM will continue to place the money it 
collects into the U.S. Treasury for use for various public purposes.
    This proposed rule is, therefore, not a significant regulatory 
action and was not reviewed by the Office of Management and Budget 
under Executive Order 12866. The proposed 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 proposed regulation will not create a 
serious inconsistency or otherwise interfere with an action taken or 
planned by another agency. The proposed regulations do not alter the 
budgetary effects of entitlements, grants, user fees, or loan programs 
of the right or obligations of their recipients; nor do they raise 
novel legal or policy issues.

Executive Order 12866, Clarity of the Regulations

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this proposed rule easier to understand, including answers to such 
questions as the following:
    1. Are the requirements in the proposed rule clearly stated?
    2. Does the proposed rule contain technical language or jargon that 
interferes with its clarity?
    3. Does the format of the proposed rule (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity?
    4. Would the rule be easier to understand if it were divided into 
more (but shorter) sections?

(A ``section'' appears in bold type and is preceded by the symbol 
Sec. and a numbered heading, for example, Sec. 1864.1-3  Action on 
Application.)
    5. Is the description of the proposed rule in the SUPPLEMENTARY 
INFORMATION section of this preamble helpful in understanding the 
proposed rule? How could this description be more helpful in making the 
proposed regulations easier to understand? Send a copy of any comments 
that concern how we could make this proposed rule easier to understand 
to: Director (630), Bureau of Land Management, Administrative

[[Page 8218]]

Records, Eastern States Office, 7450 Boston Boulevard, Springfield, 
Virginia 22153, Attention: RIN 1004-AD50.

National Environmental Policy Act

    BLM has determined that this proposed rule is categorically 
excluded from environmental review under section 102(2)(C) of the 
National Environmental Policy Act, under 516 Departmental Manual (DM), 
Chapter 2, Appendix I, Item 1.10, and has concluded that the proposed 
rule does not meet any of the ten exceptions to the categorical 
exclusions listed in 516 DM, Chapter 2, Appendix 2. Under 516 DM, 
Chapter 2, Appendix 1, Sec. 1.10, this proposed rule qualifies as a 
categorical exclusion because it is procedural in nature, therefore its 
environmental effect is too broad, speculative or conjectural to 
analyze.

Regulatory Flexibility Act

    Congress enacted the Regulatory Flexibility Act of 1980 (RFA), as 
amended, 5 U.S.C. 601-612, 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. BLM has determined that this 
proposed rule would not have a significant economic impact on a 
substantial number of small entities under the RFA (5 U.S.C. 601 et 
seq.). The proposed changes to the current rules would have no impact 
on an applicant's costs for filing or processing an application for a 
disclaimer of interest which currently consist of a one time filing fee 
of $100 and fact-specific processing costs with provisions for a fee 
waiver.
    The changes BLM proposes are intended to clarify existing 
requirements and qualifications. These changes would positively affect 
all applicants, whether small entities or not.

Unfunded Mandates Reform Act

    BLM has determined that this proposed rule is not significant under 
the Unfunded Mandates Reform Act of 1995, 2 U.S.C. section 1532, 
because it will not result in State, local and tribal government, or 
private sector expenditures of $100 million or more in any one year. 
This proposed rule will not significantly or uniquely affect small 
governments.

Executive Order 12630, Government Action and Interference With 
Constitutionally Protected Property Rights (Takings)

    In accordance with Executive Order 12360, BLM has found that the 
rule does not have significant takings implications. No takings of 
personal or real property will occur as a result of this rule. The rule 
broadens the opportunity for the United States to issue disclaimers of 
interest in land, thereby making it easier to remove clouds on title to 
certain lands. A takings implication analysis is not required.

Executive Order 13132, Federalism

    In accordance with Executive Order 13132, BLM finds that the rule 
does not have sufficient Federalism implications to warrant the 
preparation of a federalism summary impact assessment. The rule does 
not have substantial direct effects on States, on the relationship 
between the national government and States, or on the distribution of 
power and responsibilities among the various levels of government. The 
rule does not preempt State law. The rule broadens the opportunity for 
States and other entities to apply for a disclaimer of interest in 
land, thereby removing clouds on the title to certain lands.

Executive Order 12988, Civil Justice Reform

    The Department of the Interior has determined that this proposed 
rule meets the applicable standards provided in sections 3(a) and 
3(b)(2) of Executive Order 12988.

Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments

    In accordance with Executive Order 13175, BLM finds that this 
proposed rule does not propose significant changes to BLM policy and 
that Tribal Governments will not be unduly affected by this proposed 
rule.

Executive Order 13211, Action Concerning Regulations that Significantly 
Effect Energy Supply, Distribution, or Use

    In accordance with Executive Order 13211, BLM finds that this 
proposed rule is not likely to have a significant adverse effect on the 
supply, distribution, or use of energy. The distribution of or use of 
energy will not be unduly affected by this proposed rule.

Paperwork Reduction Act

    BLM has determined these proposed regulations do not contain any 
new information collection requirements that the Office of Management 
and Budget must approve under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.).

Author

    This rule was written by Jeff Holdren, BLM Lands and Realty Deputy 
Group Manager, assisted by Cynthia Ellis of the BLM Regulatory Affairs 
Group and the Office of the Solicitor.

List of Subjects at 43 CFR Part 1860

    Administrative practice and procedure, Public lands.

    Dated: February 6, 2002.
J. Steven Griles,
Deputy Secretary of the Interior.
    Accordingly, for the reasons stated in the preamble and under the 
authority of the FLPMA (43 U.S.C. 1740), BLM proposes to amend part 
1860, subpart 1864 of title 43 of the Code of Federal Regulations as 
set forth below:

PART 1860--CONVEYANCES, DISCLAIMERS, AND CORRECTIONS DOCUMENTS

Subpart 1864--Recordable Disclaimers of Interest in Land

    1. The authority citation for subpart 1864 is added to read as 
follows:

    Authority: 43 U.S.C. 1201, 1740, and 1745.

    2. Revise 1864.1-1 to read as follows:


Sec. 1864.1-1  Filing of application.

    (a) Any entity claiming title to lands may file an application to 
have a disclaimer of interest issued if there is reason to believe that 
a cloud exists on the title to the lands as a result of a claim or 
potential claim by the United States and that such lands are not 
subject to any valid claim of the United States.
    (b) Before you actually file an application you should meet with 
BLM to determine if the regulations in this subpart apply to you.
    (c) You must file your application for a disclaimer of interest 
with the proper BLM office as listed in Sec. 1821.10 of this title.
    3. Revise Sec. 1864.1-3 to read as follows:


Sec. 1864.1-3  Action on Application.

    (a) BLM will not approve an application, except for an application 
filed by a state, if more than 12 years have elapsed since the 
applicant knew, or should have known, of the claim by the United 
States.

[[Page 8219]]

    (b) BLM will disapprove an application if:
    (1) The application pertains to a security interest or water 
rights; or,
    (2) The application pertains to trust or restricted Indian lands.
    (c) BLM will, if the application meets the requirements for further 
processing, determine the amount of deposit we need to cover the 
administrative costs of processing the application and issuing a 
disclaimer.
    (d) The applicant must submit a deposit in the amount BLM 
determines.
    (e) If the application includes what may be omitted lands, BLM will 
process it in accordance with the applicable provisions of part 9180 of 
this title. If BLM determines the application involves omitted lands, 
BLM will notify the applicant in writing.

[FR Doc. 02-4137 Filed 2-21-02; 8:45 am]
BILLING CODE 4310-84-P