[Federal Register Volume 71, Number 178 (Thursday, September 14, 2006)]
[Rules and Regulations]
[Pages 54199-54202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-7661]


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

DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Part 2560

[WO-350-1410-00-24 1A]
RIN 1004-AD60


Alaska Native Veteran Allotments

AGENCY: Bureau of Land Management, Interior.

ACTION: Final rule.

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

SUMMARY: The Bureau of Land Management (BLM) is amending its 
regulations governing Alaska Native veteran allotments. The existing 
regulations allowed certain Alaska Native veterans another opportunity 
to apply for a Native allotment under the repealed Native Allotment Act 
of 1906. This final rule will remove the requirement that veteran 
applicants must have posted the land by marking all corners on the 
ground with their name and address prior to filing an application with 
BLM. This change to the regulations will make the processing of Alaska 
Native veteran allotments more like that of allotments adjudicated 
under the 1906 act.

[[Page 54200]]


DATES: Effective Date: This final rule is effective October 16, 2003.

FOR FURTHER INFORMATION CONTACT: Linda Resseguie, Division of 
Conveyance Management, Bureau of Land Management, 222 West 7th Avenue, 
13, Anchorage, Alaska 99513; telephone (907) 271-5422; or 
Kelly Odom, Bureau of Land Management, Regulatory Affairs Group, Mail 
Stop 401, 1620 L Street, NW., Washington, DC 20036; telephone (202) 
452-5028. Persons who use a telecommunications device for the deaf 
(TDD) may contact these persons through the Federal Information Relay 
Service (FIRS) at 1-800-877-8339, 24 hours a day, seven days a week.

SUPPLEMENTARY INFORMATION: 
I. Background
II. Final Rule as Adopted and Response to Comment
III. Procedural Matters

I. Background

    BLM published the proposed rule to remove the posting requirement 
in the Federal Register on October 7, 2005 (70 FR 58654), for a 60-day 
comment period ending on December 6, 2005. The Alaska Native Veterans 
Allotment Act of 1998 (Act), (Section 432 of Pub. L. 105-276), as 
amended, authorized allotments for certain Alaska Native veterans who 
served in the U.S. military during the Vietnam era. The Act provided an 
opportunity to file allotment applications for veterans who may have 
missed their chance to file under the 1906 Native Allotment Act as a 
direct result of their military service. The Act provided an 18-month 
application period, which began on July 31, 2000, and ended on January 
31, 2002. Regulations promulgated to implement the Act included a 
requirement for applicants to post the corners of their claims before 
filing their applications with BLM. BLM issued the regulations 
requiring posting before filing because we believed that physical 
markings on the land would facilitate the processing of the veteran 
applications and help finalize state and Native conveyance 
entitlements.

II. Final Rule as Adopted and Response to Comment

    One set of comments from a private individual was received during 
the comment period. The comments oppose the removal of the posting 
requirement for three primary reasons. First, the comments assert that 
the Alaska Native Veterans Allotment Act made posting a statutory 
requirement that could not be removed from the regulations regardless 
of equitable considerations. The Alaska Native veteran statute allows 
qualified applicants to ``be eligible for an allotment * * * under the 
Act of May 17, 1906, as such Act was in effect before December 18, 
1971.'' The comments assert that the regulations implementing the 
statute on the date of repeal required posting and that the emphasized 
language adopts all existing rules in effect on December 18, 1971.
    We do not believe this comment is legally correct. The Alaska 
Native veteran statute does not say ``as such Act and its implanting 
regulations were in effect before December 18, 1971.'' It only says 
such Act. So Congress did not wholesale lock those regulations existing 
in 1971 into the new law. While regulations implementing the Act did 
indeed include the posting requirement, the posting requirement itself 
is entirely a creature of the regulations and not the 1906 Act. So 
before December 18, 1971, BLM could have amended the regulations 
through notice and comment rule making to eliminate the posting 
requirement without violating the Act. This means that BLM may do the 
same now. While most of the 1906 regulations were applied to veteran 
allotments, the 1906 regulations only apply to the extent they are not 
inconsistent with more specific Alaska veteran allotment regulations. 
43 CFR 2568.21.
    Second, the comments also state that there never was a proper or 
effective waiver of the posting requirements in the regulations 
implementing the 1906 Act. The only posting requirement in the 1906 
regulations was for the Bureau of Indian Affairs to certify that the 
allotment was posted. In 1972, the Assistant Secretary, Land and Water 
Resources, waived enforcement of the posting certification, and BLM has 
processed allotment applications without that certification since that 
time. The comments reference a June 6, 1973, memorandum from the 
Assistant Secretary, Land and Water Resources, which the comment claims 
shows that the posting certification was still required. However, the 
June 6, 1973, instructions were superseded by an October 18, 1973, 
directive by the same Assistant Secretary that made no reference to the 
posting requirement and only required BIA to certify that the applicant 
was an Alaska Native. In any event, the Department is not proposing to 
waive a regulation but is properly removing a regulatory provision 
pursuant to the Administrative Procedures Act.
    Third, the comment asserts that removing the posting requirement 
will have adverse practical consequences. BLM assessed the practical 
implications of its policy decision and determined that no significant 
practical problems will ensue from removing the posting requirement at 
this time. The requirement was to post prior to application so its 
initial purpose has passed. Mapping and technology development since 
December 1971 closing of the original 1906 application period enable 
applicants and BLM to plat and locate the claimed allotments more 
accurately than was possible during the original allotment application 
period. Removing the regulatory posting requirement is legal, and will 
put Alaska Native veteran allotment applicants on the same footing as 
the rest of Alaska Native allotment applicants.
    Lastly, the comment questions the constitutionality of the Alaska 
Native Veterans Allotment Act. This matter is beyond the authority of 
this rule to determine.

III. Procedural Matters

Executive Order 12866, Regulatory Planning and Review

    In accordance with the criteria in Executive Order 12866, this rule 
is not a significant regulatory action. OMB makes the final 
determination under Executive Order 12866.
    a. This rule will not have annual economic effect of $100 million 
or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. A cost-benefit and economic 
analysis is not required. This rule does not alter the budgetary 
effects of entitlements, grants, user fees, or loan programs or the 
rights or obligations of their recipients; nor does this rule raise 
novel legal or policy issues. Eliminating the posting requirements 
would have a positive effect on the limited number of individual Alaska 
Native veteran applicants, as well as the Interior bureaus, 
contractors, and compacters assisting them, because the applicant's 
failure to meet the posting requirements would otherwise cause their 
applications to be rejected and generate administrative appeals.
    b. This rule will not create inconsistencies with other agencies' 
actions. The effect of this rule will be on a limited number of 
individuals who are qualified to apply for allotments and the Interior 
Department agencies responsible for administering the allotment 
program. The allotment application period was limited by law to 18 
months and has passed; the existing staff of responsible agencies will 
process applications following most of the same rules that are 
currently in effect for allotment applications under the 1906 Native 
Allotment Act.

[[Page 54201]]

    c. This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
Eliminating the posting requirement would affect a limited number of 
individual Alaska Native veteran applicants, Interior agencies, and 
tribal offices that are assisting applicants. It will have not effect 
on budgetary entitlements, grants, user fees, or loan programs.
    d. This rule will not raise novel legal or policy issues. This rule 
will impose the same requirements on Alaska Native veteran applicants 
as those imposed on applicants who filed under the initial 1906 Native 
Allotment Act.

Regulatory Flexibility Act

    This rule will not have a significant economic effect on a 
substantial number of small entities as defined under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.). An initial Regulatory 
Flexibility Analysis is not required. Accordingly, a Small Entity 
Compliance Guide is not required. This rule will only apply to certain 
Alaska Native veterans and specific classes of heirs of Alaskan Native 
veterans who are eligible to apply for allotments. Therefore, the 
Department of the Interior certifies that this document will not have 
any significant impacts on a substantial number of small entities under 
the Regulatory Flexibility Act.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act.
    This rule:
    a. Does not have an annual effect on the economy of $100 million or 
more. This rule would result in some costs saving to allotment 
applicants because under this rule they would no longer be required to 
post the corners of the lands in their applications. The Department of 
the Interior will have to implement the allotment program over the next 
several years, but these costs will be far below $100 million per year. 
Enforcing the posting requirement would cost the Department more than 
eliminating the posting requirements, which we have determined to be 
unnecessary.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. This rule will result in some costs 
saving to allotment applicants.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises. 
Eliminating the posting requirement would have a positive impact on a 
limited number of individual Alaska Native veterans, Interior agencies, 
and tribal offices who are helping the applicants. No additional 
applications will be filed because of this revised rule. The original 
regulations provided for the filing of applications after all corners 
were marked on the ground and posted with the applicant's name and 
address.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    a. This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. 
Eliminating the posting requirement will potentially result in minimal 
savings to tribal governments assisting veteran applicants.
    b. This rule will not produce a Federal mandate of $100 million or 
greater in any year because it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act.

Executive Order 12630, Governmental Actions and Interference With 
Constitutionally Protected Property Rights (Takings)

    In accordance with Executive Order 12630, we find that the rule 
does not have significant takings implications. A taking implication 
assessment is not required. This rule does not represent a government 
action capable of interfering with constitutionally protected property 
rights. Eliminating the posting requirement will have no effect on the 
use or value of protected property rights. Therefore, the Department of 
the Interior determines that this rule will not cause a taking of 
private property or require further discussion of takings implications 
under this Executive Order.

Executive Order 13132, Federalism

    In accordance with Executive Order 13132, we find that the rule 
does not have significant Federalism effects. A Federalism assessment 
is not required. This rule would not have substantial direct effect on 
the States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Eliminating the posting requirement would 
have a neutral effect on the State of Alaska. Therefore, in accordance 
with Executive Order 13132, the BLM has determined that this proposed 
rule does not have sufficient Federalism implications to warrant 
preparation of a Federalism Assessment.

Executive Order 12988, Civil Justice Reform

    Under Executive Order 12988, the Office of the Solicitor has 
determined that the final rule would not unduly burden the judicial 
system and that these regulations meet the requirements of sections 
(3)(a) and 3(b)(2) of the Order. We have reviewed these regulations to 
eliminate drafting errors and ambiguity. They have been written to 
minimize litigation, provide clear legal standards for affected conduct 
rather than general standards, and promote simplification. Drafting the 
regulations in clear language and working closely with legal counsel 
assisted in all of these areas.

Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    In accordance with Executive Order 13211, this regulation does not 
have a significant effect on the nation's energy supply, distribution, 
or use, or cause a shortfall in supply or price increase. This rule is 
not a significant energy action. It will not have an adverse effect on 
energy supplies. This rule will apply only to Alaska Native veterans 
and to a specific class of Alaskan Native veterans' heirs who are 
eligible to apply for allotments.

Paperwork Reduction Act

    The BLM has determined this rule does 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.).

National Environmental Policy Act

    We have analyzed this rule in accordance with the criteria of the 
National Environmental Policy Act and 516 DM. An environmental 
assessment is not required. Section 910 of the Alaska National Interest 
Lands Conservation Act (ANILCA) of December 2, 1980, 43 U.S.C. 1638, 
made conveyances, regulations, and other actions which lead to the 
issuance of conveyances to Natives under Alaska Native Claims 
Settlement Act of 1971 (43 U.S.C. 1601 et seq.) exempt from NEPA 
compliance requirements. Since the Alaska Veterans Allotment Act is 
part of ANCSA, NEPA does not apply.

Author

    The principal author of this rule is Linda Resseguie, Division of

[[Page 54202]]

Conveyance Management, Bureau of Land Management, Alaska State Office, 
Anchorage, Alaska; assisted by Kelly Odom of the Regulatory Affairs 
Group, Bureau of Land Management, Washington, DC.

List of Subjects in 43 CFR Part 2560

    Alaska, Homesteads, Indian lands, Public lands, Public lands--sale, 
and Reporting and recordkeeping requirements, Alaska Native allotments 
for certain veterans.

    Dated: August 31, 2006.
Julie Jacobson,
Deputy Assistant Secretary, Land and Minerals Management.

0
For the reasons set forth in the preamble and under the authority of 
the Alaska Native Veterans Allotment Act of 1998 (Section 432, Pub. L. 
105-276), part 2560 of Title 43 of the Code of Federal Regulations is 
amended as set forth below:

PART 2560--ALASKA OCCUPANCY AND USE

0
1. Revise the authority citation for part 2560 to read as follows:
* * * * *

    Authority: 43 U.S.C. 1629g(e).


0
2. Revise paragraph (d) of Sec.  2568.74 to read as follows:


Sec.  2568.74  What else must I file with my application?

* * * * *
    (d) A legal description of the land for which you are applying. If 
there is a discrepancy between the map and the legal description, the 
map will control. The map must be sufficient to allow BLM to locate the 
parcel on the ground. You must also estimate the number of acres in 
each parcel.


Sec.  2568.77  [Reserved]

0
3. Remove and reserve Sec.  2568.77.

[FR Doc. 06-7661 Filed 9-13-06; 8:45 am]
BILLING CODE 4310-84-M