02-4137. Conveyances, Disclaimers and Correction Documents

AGENCY:

Bureau of Land Management, Interior.

ACTION:

Proposed rule.

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 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 § 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 § 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 § and a numbered heading, for example, § 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 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, § 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:

§ 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 § 1821.10 of this title.

3. Revise § 1864.1-3 to read as follows:

§ 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.

(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.