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[Federal Register: January 6, 2003 (Volume 68, Number 3)]
[Rules and Regulations]               
[Page 494-503]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06ja03-18]                         

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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: Final rule.

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SUMMARY: The Bureau of Land Management (BLM) amends its regulations 
pertaining to recordable disclaimers of interest in land. We are 
amending the regulation by: removing the 12-year regulatory filing 
deadline for states; removing the requirement that an applicant be a 
``present owner of record'' to be qualified under the Act; allowing any 
entity claiming title, not just current owners of record, to apply for 
a disclaimer of interest; defining the term ``state'' as it is used in 
this rule; clarifying how we will approve

[[Page 495]]

disclaimer applications involving another Federal land managing agency.


DATES: This rule is effective February 5, 2003. Any application for a 
recordable disclaimer pending on the effective date of this final rule 
will be subject to this final rule.


FOR FURTHER INFORMATION CONTACT: Jeff Holdren 202 452-7779. Individuals 
who use a telecommunications device for the deaf 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. What Is the Background of This Rulemaking?
II. How Did BLM Change the Proposed Rule in Response to Comments?
III. Responses to Comments
IV. How Did BLM Fulfill Its Procedural Obligations?


I. What Is the Background of This Rulemaking?


    Section 315 of the Federal Land Policy and Management Act (FLPMA) 
authorizes the Secretary of the Interior, through a delegation of 
authority to BLM, to issue a document of disclaimer of interest or 
interests in any lands in any form suitable for recordation, where the 
disclaimer will help remove a cloud on the title of such lands and 
where the Secretary determines a record interest of the United States 
in lands has terminated by operation of law or is otherwise invalid (43 
U.S.C. 1745(a)). BLM may issue recordable disclaimers to disclaim 
Federal title in a wide variety of instances, including avulsion, 
reliction, or accretion of lands, survey errors, clerical errors, or 
when applicants assert title previously created under now expired 
authority.
    The following statutory requirements must be met before the 
Secretary can issue a disclaimer:
    1. An applicant must file a written application with the Secretary.
    2. The Secretary must publish a notice in the Federal Register of 
the application setting forth the grounds supporting it at least ninety 
days before the issuance of the disclaimer.
    3. The applicant must pay the Secretary the administrative costs 
associated with issuance of the disclaimer. The Secretary determines 
the amount of the costs.
    4. The Secretary must consult with any affected Federal agency.
    BLM published regulations implementing the Secretary's authority 
under section 315 of FLPMA to issue recordable disclaimers in 1984 (49 
FR 35296). These regulations imposed requirements in addition to those 
identified in the statute. Specifically, the regulations restrict 
applicants for a disclaimer to ``any present owner of record'' (43 CFR 
1864.1-1). The regulations also specify information the applicant must 
submit in the application and the costs associated with submitting an 
application. For example, an applicant is required to submit ``[a]ll 
documents which show to the satisfaction of the authorized officer the 
applicant's title to the lands.'' (43 CFR 1864.1-2(c)(3)) This 
requirement may be waived if BLM believes it is not needed to properly 
adjudicate the application. The regulation requires that BLM deny an 
application if more than 12 years have passed since the owner knew or 
should have known of the alleged claim of the United States (43 CFR 
1864.1-3(a)(1)).
    ``Interest in land'' can pertain to various situations because 
there are different types of interests a property owner can hold. For 
example, for a specific parcel of land, interests could include surface 
rights, subsurface rights, mineral interests, timber interests and 
various other interests which, when combined, equate to a fee simple 
interest for that parcel. Interests in land can be sold, given away, 
leased, or otherwise transferred from one entity to another by means of 
various conveyance documents (e.g., deed or patent). They may also be 
temporarily transferred from the one entity to another by means of a 
lease, permit, license, or other such document.
    Some Federal property interests may transfer by operation of law to 
another entity. For example, the Submerged Lands Act (43 U.S.C. 1301-
1315), provides that title to the bed of navigable water bodies passes 
from Federal to state ownership when the state is admitted to the 
Union. The Act does not require that BLM either initiate or complete 
this title transfer of land, but by providing a recordable disclaimer 
of interest, BLM may lessen future disputes.
    On February 22, 2002, we published in the Federal Register (67 FR 
8216) a proposed rule to amend our regulations pertaining to 
Conveyances, Disclaimers, and Corrections Documents. The proposal 
sought to amend certain provisions of the regulations originally 
published in 1984. The proposed rule would further the purpose of 
section 315 of FLPMA to remove clouds on title to lands or interests in 
lands by allowing any entity claiming title, rather than only a present 
owner of record, to apply for a recordable disclaimer of interest. The 
proposed rule also sought to eliminate the application deadline in 
section 1864.1-3, as it applies to states. This change would conform 
the regulations more closely to the Quiet Title Act (28 U.S.C. 
2409a(g)) which, in most instances, exempts states from the 12-year 
statute of limitations under that act. These two technical changes are 
the only ones that BLM proposed in February 2002 to the 1984 
regulations.


Basis and Purpose for the Final Rule


    This final rule removes certain restrictions from the current rule 
that are not required by section 315 of FLPMA (43 U.S.C. 1745). The 
final rule also reflects a change that Congress made to the Quiet Title 
Act in 1986 (28 U.S.C. 2409a). These amendments to 43 CFR subpart 1864 
will make the recordable disclaimer regulations more consistent with 
both section 315 of FLPMA and the Quiet Title Act. This rule will 
reduce the potentially inconsistent administrative interpretations and 
application of the recordable disclaimer regulations by eliminating the 
requirement that an applicant be a ``present owner of record.''
    Specifically, this final rule amends the regulations by 
incorporating the following changes to the way we process disclaimers 
of interest. The rule:
    [sbull] Eliminates the application deadline in 43 CFR 1864.1-3 as 
it applies to ``states.''
    [sbull] Allows any entity claiming title, not just current owners 
of record, to apply for a recordable disclaimer of interest.
    [sbull] Defines state as used in this rule.
    [sbull] Clarifies how BLM will evaluate disclaimer of interest 
applications pertaining to non-BLM federally managed lands.


II. How Did BLM Change the Proposed Rule in Response to Comments?


    In this preamble, we respond to significant comments we received on 
the February 22, 2002, proposed rule (67 FR 8216). Because a majority 
of responses were form letters opposing the rule, we address those 
comments generally. We have directly responded to individual 
substantive comments in support of or in opposition to the rule. In 
response to several comments we have:
    1. Included a definition of ``state,'' as it is used in this rule, 
and
    2. Clarified how BLM will process disclaimer of interest 
applications affecting non-BLM managed lands.


III. Responses to Comments


    During the 60-day comment period BLM received about 18,000 comments 
in support of, or in opposition to, the proposed rule. Most of the 
correspondence consisted of form letters


[[Page 496]]


expressing opposition to the proposed rule for a variety of reasons.


General Comments Opposing the Proposed Rule


    Letters opposing the rule generally stated the rule would:
    [sbull] Enable BLM to transfer large tracts of public lands to 
states;
    [sbull] Impact sensitive wilderness and roadless areas; and
    [sbull] Adversely affect wildlife and habitats by allowing states 
to build major thoroughfares through wild land areas.


General Comments Supporting the Proposed Rule


    Letters supporting the rule generally stated the rule would:
    [sbull] Maintain access to public lands on existing routes in rural 
areas;
    [sbull] Support state control over routes in rural places; and
    [sbull] Ease the process whereby BLM could transfer public land to 
states.
    We are responding to these general comments as they arise in the 
context of more specific substantive comments on the proposed rule.
    Several commenters claimed that the proposed rule is illegal 
because 43 U.S.C. 1745 does not allow BLM to alter the intent of the 
statute from the present owner of record to ``any entity claiming title 
to lands.'' Other commenters asserted that the proposed changes are 
inconsistent with 43 CFR Subpart 1864 because they do not further the 
purpose of 43 U.S.C. 1745 and would lead to an increase in inconsistent 
administrative interpretations, and would allow anyone to make a claim, 
not just the existing owners of record.
    We disagree. The term ``present owner of record'' is not found in 
FLPMA. In the existing regulations, published in 1984, BLM required the 
applicant to be a present owner of record to prelude third parties 
having no property interest in the lands in question from applying for 
a recordable disclaimer. We think this present-owner-of-record 
requirement is inconsistent with the actual language of section 315 of 
FLPMA. The present-owner-of-record concept artificially limits FLPMA's 
goal of eliminating clouds on title. A cloud on title is less likely 
when there is also an actual present owner of record. Land title 
disputes often arise with parties who have gained title by operation of 
law, such as states that obtained title under the Submerged Lands Act 
to lands under navigable bodies of water. For example, a state applying 
for a recordable disclaimer may not have a record of the state's title 
to the lands in question in a county clerk's office. Nevertheless, 
Congress has passed title to the state by virtue of the Submerged Lands 
Act. Moreover, today's rule does not increase the potential for 
inconsistent administrative interpretations. Applications containing 
invalid claims will be rejected regardless of whether they were filed 
by present owners of record or others.
    A significant number of comments asked about the relationship 
between the proposed rule and R.S. 2477. A coalition of California 
conservation organizations expressed concern that the proposed rule was 
intended to facilitate disclaimers by the United States of its interest 
in lands that are used for recreation, conservation, wilderness and 
other public purposes, as a result of R.S. 2477 right-of-way claims by 
individuals and local and state governments. The commenters believe 
that the FLPMA disclaimer-of-interest procedure was not intended to 
include R.S. 2477 claims within its scope and that BLM has no legal 
authority to employ the disclaimer provisions to process, acknowledge 
or determine the existence or extent of R.S. 2477 rights-of-way.
    Revised Statutes (R.S.) 2477, first enacted as section 8 of the 
Mining Act of 1866, states that ``the right-of-way for the construction 
of highways over public lands, not reserved for public uses, is hereby 
granted.'' 43 U.S.C. 932 (repealed 1976). R.S. 2477 was repealed by 
FLPMA on October 21, 1976 (Pub. L. 94-579, Sec. 706(a), 90 Stat. 2744, 
2793). FLPMA did not terminate valid rights-of-way existing on the date 
of its approval (Sec. 509(a), 90 Stat. 2781, 43 U.S.C. 1769; Sec. 
701(a), 90 Stat. 2786, 43 U.S.C. 1701 note). In most instances, R.S. 
2477 rights-of-way were not recorded on the public land records or in 
official county records because R.S. 2477 did not require any formal 
approval from the Secretary of the Interior or other Federal government 
official. The uncertainty resulting from unrecorded rights-of-way under 
R.S. 2477 has created clouds on title.
    FLPMA authorizes the Secretary of the Interior to issue recordable 
disclaimers of interest in lands in specified cases if the disclaimer 
will help remove a cloud on the title to lands or interests in lands 
and if the Secretary finds no Federal interest (43 U.S.C. 1745(a)). 
Recordable disclaimers may be issued where applicants assert title 
previously created under now expired authorities. For example, after 
adjudicating the claim, BLM may issue a recordable disclaimer of 
interest to disclaim the United States' interest in a highway right-of-
way under R.S. 2477.
    Many commenters, including a consortium of 14 environmental groups, 
expressed concern about the relationship of this rulemaking to the 1996 
Congressional moratorium placed on the Department and other Federal 
agencies on R.S. 2477 rulemakings. The commenters expressed the view 
that the proposed rule would be illegal because section 108 of the 
Omnibus Interior Appropriations Act for Fiscal Year 1997 prohibits 
Federal agencies from placing into effect any final rule or regulation 
pertaining to the recognition, management or validity of a right-of-way 
pursuant to R.S. 2477 unless expressly authorized by an Act of Congress 
(110 Stat. 3009-200).
    We do not believe that the Congressional moratorium on R.S. 2477 
rulemaking precludes BLM from making effective this final rule 
implementing the Secretary of the Interior's authority to issue 
recordable disclaimers of interest in lands. On August 1, 1994, the 
Department of the Interior proposed new regulations (59 FR 39216) to 
create an administrative process for resolving right-of-way claims made 
under R.S. 2477. Before the R.S. 2477 proposed rule was published as a 
final rule, Congress enacted a moratorium prohibiting any Federal 
agency from preparing, promulgating, or implementing any rule or 
regulation regarding R.S. 2477 rights-of-way until September 30, 1996. 
This provision was an amendment to the National Highway System 
Designation Act of 1995 (Pub. L. 104-59, 109 Stat. 568, 617-18 (1995)). 
Congress extended the prohibition on ``developing, promulgating, and 
thereafter implementing a rule concerning rights-of-way under section 
2477 of the Revised Statutes' in the Fiscal Year 1996 Interior and 
Related Agencies Appropriations Act (Pub. L. 104-134, 110 Stat. 1321, 
1321-177 (1996)). In section 108 of the Fiscal Year 1997 Department of 
the Interior and Related Agencies Appropriations Act (Interior 
Appropriations Act, 1997) (Pub. L. 104-208, 110 Stat. 3009, 3009-200 
(1996)), Congress stated that:
    No final rule or regulation of any agency of the Federal Government 
pertaining to the recognition, management, or validity of a right-of-
way pursuant to Revised Statute 2477 (43 U.S.C. 932) shall take effect 
unless expressly authorized by an Act of Congress subsequent to the 
date of enactment of this Act.
    Section 108 could be construed as either permanent legislation or 
as having expired at the end of fiscal year 1997. If section 108 is 
construed as permanent legislation, it would prohibit the Department 
from making effective a


[[Page 497]]


final rule or regulation pertaining to the ``recognition, management, 
or validity'' of a right-of-way pursuant to R.S. 2477. In 1997, the 
General Counsel of the General Accounting Office (GAO) issued an 
opinion concluding that section 108 is permanent law and did not expire 
at the end of the 1997 fiscal year (Letter of Robert P. Murphy, General 
Counsel, GAO, B-277719, at 1 (Aug. 20, 1997)).
    Even if section 108 is permanent legislation, it only applies to 
``final rules or regulations'' relating to the ``recognition, 
management, or validity of a right-of-way'' pursuant to R.S. 2477. 
Because today's final rule merely amends BLM's existing regulations, 
which define the administrative process by which an entity can apply 
for a recordable disclaimer of interest under section 315 of FLPMA, the 
section 108 moratorium does not apply to this final rule.
    If section 108 were interpreted to prevent BLM from promulgating a 
regulation relating to recordable disclaimers of interest, section 108 
would, in essence, partially repeal sections 310 and 315 of FLPMA (43 
U.S.C. 1740, 1745). Under section 310, BLM is authorized to 
``promulgate rules and regulations to carry out the purposes of this 
Act and of other laws applicable to the public lands.'' Section 315 is 
the specific substantive authority for BLM's disclaimer regulations (43 
U.S.C. 1745(c)). As a general rule, courts do not favor repeals by 
implication. In Morton v. Mancari (417 U.S. 535, 550 (1974)), the 
Supreme Court stated: ``In the absence of some affirmative showing of 
an intention to repeal, the only permissible justification for a repeal 
by implication is when the earlier and later statutes are 
irreconcilable.'' In Tennessee Valley Authority v. Hill (437 U.S. 153, 
190 (1978)), the Supreme Court stated that the doctrine disfavoring 
repeals by implication applies with even greater force when the claimed 
repeal rests solely on an appropriations act.
    Although repeals by implication are especially disfavored in the 
appropriations context, Congress nonetheless may amend substantive law 
in an appropriations statute if Congress does so clearly. (Robertson v. 
Seattle Audubon Society, 503 U.S. 429, 440 (1992)). The question 
depends on the intention of Congress as expressed in the statute. See 
United States v. Mitchell, 109 U.S. 146, 150 (1883). Therefore, unless 
Congress clearly intended to amend sections 310 and 315 of FLPMA, 
section 108 of the Interior Appropriations Act, 1997, and sections 310 
and 315 of FLPMA are all effective.
    Section 108 contains broad language and does not indicate which 
final rules or regulations are encompassed by the words ``pertaining to 
the recognition, management, or validity of a right of way pursuant to 
Revised Statute 2477.'' The legislative history, however, indicates 
that Congress enacted section 108 to prevent the Department of the 
Interior from promulgating final rules and regulations setting out 
specific standards for R.S. 2477 rights-of-way. (See H.R. Rep. No. 104-
625, at 58 (1996)). Instead, Congress itself wanted to enact 
legislation defining the key terms and scope of grants for R.S. 2477 
rights-of-way. The House Committee on Appropriations stated that:
    [T]he public interest will be better served if these grants [for 
highway rights-of-way across Federal land] to States and their 
political subdivisions are not put in jeopardy by the Department 
pending Congressional clarification of these issues. Section 109 does 
not limit the ability of the Department to acknowledge or deny the 
validity of claims under RS 2477 or limit the right of grantees to 
litigate their claims in any court.
    Section 109 of H.R. 3662, the Department of the Interior and 
Related Agencies Appropriations Bill, 1997, was renumbered section 108 
after the Senate Appropriations Committee deleted section 107, an 
unrelated section of H.R. 3662, in its entirety (S. Rep. No. 104-319, 
at 56 (July 16, 1996)). The Appropriations Committee reported the bill 
to the Senate and recommended it pass, as amended. Accordingly, when 
Congress enacted section 108, it did not intend to prohibit the 
promulgation of all final rules and regulations that may, directly or 
indirectly, address R.S. 2477 rights-of-way but, rather, those that 
provide standards for recognizing, managing or validating an R.S. 2477 
right-of-way.
    Today's rule on recordable disclaimers does not provide standards 
for recognizing managing, or validating an R.S. 2477 right-of-way. 
Rather, BLM's rule merely makes technical changes to the existing 
regulations under which an applicant may submit an application to 
remove a cloud on title to lands to which the United States asserts no 
ownership or interest. First, the rule amends the existing regulations 
to allow any entity claiming title, as opposed to only present owners 
of record, to apply for a recordable disclaimer of interest. This 
change eliminates inconsistent administrative interpretations of the 
owner-of-record requirement, a term that is not defined in the existing 
1984 regulations. Second, the final rule eliminates the application 
deadline in section 1864.1-3, as it applies to states. This change 
conforms 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. These changes to the existing 
regulations do not expand the kinds of circumstances in which a 
disclaimer could be issued, expand or modify any rights created, or 
create any new rights under R.S. 2477. BLM may issue recordable 
disclaimers relating to valid R.S. 2477 rights-of-way under the 
existing 1984 regulations, and this capability will continue under 
today's final rule.
    Even if BLM were to issue a disclaimer of the United States' 
interest in a valid right-of-way under R.S. 2477, the recognition of 
such right-of-way would not be the result of this notice-and-comment 
rulemaking but, rather, an informal agency adjudication resulting in a 
final decision. (See 5 U.S.C. 551(7)) The legislative history of 
section 108 expressly states that Congress ``does not limit the ability 
of the Department to acknowledge or deny the validity of claims under 
RS 2477 or limit the right of grantees to litigate their claims in any 
court.'' (H.R. Rep. No. 104-625, at 58 (1996)). Because BLM's rule is 
not a final rule or regulation relating to the ``recognition, 
management, or validity of a right-of-way pursuant to Revised Statute 
2477,'' this rule is not subject to the moratorium in section 108 of 
the 1997 Interior Appropriations Act.
    Several commenters expressed concerns that today's rule will enable 
states to make ``illegal'' R.S. 2477 claims on ``cow paths'' and ``foot 
trails'' and turn them into major thoroughfares in sensitive areas.
    We disagree that the changes to the existing rule will allow 
illegal claims. If an applicant does not have a valid, legal title, BLM 
will reject the disclaimer application. The existing 1984 rule and 
today's final rule are the same in this regard.
    The Southern Utah Wilderness Alliance (SUWA) opposed the rulemaking 
because it did not mention any case law, particularly SUWA and Sierra 
Club v. BLM, (96-CV-836C (D. Utah); appeal pending, No. 01-4173 (10th 
Cir.)). SUWA believes this omission invites attempts to evade 
application of this case and others in an effort to validate R.S. 2477 
claims which could never meet the legal prerequisites. The group also 
asserted that the proposed rule did not describe the standards BLM 
would apply in determining whether to grant recordable disclaimers.
    This rulemaking pertains only to disclaimers and not to any 
assertions


[[Page 498]]


made by various entities for R.S. 2477 claims. Therefore, a discussion 
of this case law is not germane to today's rulemaking.
    An Alaskan environmental group believes the proposed rule is not 
necessary to provide appropriate access across Alaska lands because 
there exist statutory processes to determine rights-of-way for roads 
and other access across most of the land affected by R.S. 2477 
assertions. The group also states that recognizing R.S. 2477 assertions 
under the proposed rule will undermine these established processes and 
frustrate land management efforts of responsible public and private 
landowners.
    The existing regulations already allow applications for disclaimers 
for R.S. 2477 rights-of-way, and this has not undermined established 
processes for determining access. This rulemaking makes technical 
changes to the existing rule.
    Many commenters, including the Idaho County Farm Bureau, and the 
consortium of environmental groups, expressed concern that BLM is 
proposing the rule to circumvent FLPMA and Congressional restrictions 
against implementing R.S. 2477 rights-of-ways. The commenters assert 
that Congress provided a means to grant rights-of-way under FLPMA, 
negating the need for R.S. 2477. The focus of their concern is that 
this proposed rule will allow states to acquire sensitive lands, the 
BLM to circumvent the environmental impact review process, and the 
BLM's ability to charge fair market value rentals under Title V of 
FLPMA.
    FLPMA repealed R.S. 2477 and provided for applications for new 
rights-of-way. Sections 509(a) and 701(h) of FLPMA also preserved valid 
existing rights-of-way. Therefore, although FLPMA created more flexible 
authority to address right-of-way issues, it did not displace existing 
rights-of-way authorized by Congress.
    States may seek disclaimers to sensitive lands for which they 
already hold title. For example, submerged lands under navigable bodies 
of water may be environmentally sensitive. Congress, however, granted 
states title to these lands. A disclaimer would merely provide evidence 
of an existing title. Because the state already owns such lands, there 
would be no need for environmental studies or rental payments.
    A commenter opposed the proposed rule because the commenter 
believes that the proposed rule change is not necessary. The commenter 
also stated the BLM Questions and Answer sheet and press release 
accompanying the rule were confusing and obfuscated facts relating to 
R.S. 2477. The commenter also expressed concern that the proposed rule 
could allow ``counties and other `sagebrush rebel' entities in the West 
to file claims for public lands, with minimal processing of claims and 
no time limitations.'' Lastly, the commenter believes the rule will 
result in increased trespass incidents and other illegal activity by 
those wishing to lay claim under the proposed rule change to public 
lands, creating long term effects on the entire western ecosystem and 
native species.
    BLM regrets that the Question and Answer document was confusing to 
the commenter and did not create the clarity we intended. BLM intends 
that this preamble will clear up any misunderstanding regarding this 
rulemaking. As we have stated, this rulemaking does not change the 
requirements for asserting title to an R.S. 2477 right-of-way. The 
rulemaking is intended only to make it easier for BLM to clear up 
clouded titles when the United States has no interest in the lands in 
dispute. A disclaimer of interest does not convey an interest in land. 
It is an administrative determination that the United States does not 
have an interest in land.
    The Local Highway Technical Assistance Council of Boise, Idaho, 
asked BLM to clarify the current means besides FLPMA that can be used 
to secure a right to an R.S. 2477 highway reservation.
    FLPMA repealed R.S. 2477 in 1976. There is no longer any way to 
secure a new right to an R.S. 2477 right-of-way. An existing owner of 
an R.S. 2477 right-of-way may apply for a recordable disclaimer under 
existing regulations or as amended in this final rule. A quiet title 
action in federal court is the only other way to resolve R.S. 2477 
claims with finality. The purpose of section 315 of FLPMA is to avoid 
litigation in Federal court.
    The Nye County Commissioners, Nevada, believe that the proposed 
rule may resolve some questions relating to R.S. 2477 rights-of-way but 
are concerned that the proposed rule is inapplicable to R.S. 2477 
rights-of-way (or any other rights-of-way), because the United States 
continues to hold a valid interest in underlying lands. The 
Commissioners expressed support for BLM's effort but did not support 
the proposed rule.
    If a state made a valid R.S. 2477 right-of-way claim on public 
land, only the rights pertaining to the right-of-way are authorized for 
use. The commenter is correct that the BLM would retain all other 
rights, such as the right to sell the land, allow mining claims to be 
filed, or administer the lands for appropriate purposes. BLM may issue 
recordable disclaimers for interests in land and is not limited to 
disclaiming only fee simple title.
    An environmental group believes BLM has purposefully and 
incorrectly stated the purpose and intent of the proposed rule by 
citing it as a relatively minor revision to an obscure regulation with 
little substantive impact. The group believes this hampered the public 
review process by not informing the public about the importance of this 
proposed rule.
    We disagree that this rulemaking is a major regulatory action. We 
believe that we adequately and accurately presented the purpose and 
intent of the proposed rule. The rulemaking makes technical changes to 
the existing rule. These changes are outlined within the SUMMARY 
section of this preamble. BLM has issued 62 recordable disclaimers 
since the enactment of FLPMA in 1976; on average, fewer than 3 
recordable disclaimers annually.
    The Blue Ribbon Coalition supported the proposed rule and asked BLM 
to clarify whether a disclaimer of interest process must be followed 
for each and every right-of-way under consideration. The group also 
asked BLM to explain how difficult and complex the process would be for 
the applicant and the BLM for other types of interest that may be 
disclaimed under section 315.
    An applicant may apply for as many disclaimers as it has clouded 
titles which may benefit from the process. The complexity of the 
process depends upon the nature of the ownership sought. Titles clouded 
by avulsion, reliction or accretion may require historic maps and 
patents and newly-created data, such as aerial photographs. State 
applications for disclaimers for submerged lands may require detailed 
studies of water levels and commercial traffic at the time of 
statehood.
    A consortium of environmental groups believes the proposed rule 
changes would have a direct effect on private property land rights 
because it would lead to numerous rights-of-way crossing state and 
private land. The commenters also believe the proposed rule will 
``cloud title'' to large amounts of public and private land by 
extending the time that states are allowed to file claims. The 
commenters are concerned that the rulemaking will affect private 
property owners and title insurance companies because BLM has not made 
any effort to notify them of these potential impacts.
    Today's rule will not adversely affect private property land 
rights. As we have


[[Page 499]]


stated, this rulemaking pertains to disclaimers of interest in federal 
lands. It does not apply to private or state lands. BLM does not 
anticipate that title to private land will become clouded by 
implementation of this final rule. We expect the opposite to occur--
title issues arising from a variety of issues may now be resolved by 
means of issuing a disclaimer of interest.
    Commenters asserted that the proposed rule would enable BLM to 
transfer large tracts of public lands to states and increase 
environmental impacts on sensitive areas.
    BLM may issue a disclaimer only when an applicant can show that a 
specific property right is not held by the United States and the 
applicant has requested that BLM document this by means of a recordable 
disclaimer. The rule would not enable BLM to transfer vast tracts of 
land to states. Any land disclaimed would already be owned by the 
applicant, with or without the disclaimer. This rule would not result 
in either an increase or decrease in environmental impacts.
    States may apply for recordable disclaimers for valid R.S. 2477 
claims. Applications will be evaluated on their merits and, if the 
claims are valid, BLM may issue a disclaimer of interest.
    Another environmental group was concerned that the rulemaking will 
circumvent the public comment procedure by placing the determination of 
``interest'' in the hands of the agency. The group does not believe BLM 
has made provisions for public notice, comment, participation, or 
appeal of its disclaimers which they believe deprives the public of 
protections during the process of determining the ownership of federal 
lands.
    Today's rule does not impede or remove opportunities for public 
notice or appeal provisions for disclaimers. The existing regulations 
at Subpart 43 CFR 1864 address the group's concerns about public input. 
Specifically, section 1864.2 provides that BLM must file a notice of 
the application and the grounds supporting it in the Federal Register 
at least 90 days before a decision is made on the application. Also, 
BLM publishes a notice describing the application and its justification 
in a newspaper serving the general vicinity of the lands that are the 
subject of application for three consecutive weeks during the 90-day 
time period. Today's rule does not address this section. Under 43 CFR 
1864.4, ``an applicant or claimant adversely affected by a written 
decision of the authorized officer'' may appeal to the Interior Board 
of Land Appeals under 43 CFR part 4.
    Regarding the group's suggestion that BLM seek public input to 
determine ownership of public lands, the point is not determining 
ownership of lands, but rather how to remove clouds on title to land to 
which the United States disclaims title. In this case we continue the 
existing process.
    The Gilpin County Commissioners, Colorado, expressed concern about 
the rule's potential to open ``historic roads and tracks,'' increase 
threats of erosion, and introduce noxious weeds into unroaded areas. 
The commissioners believe this rule could harm small ranchers who have 
rights on BLM lands.
    This final rule will not result in the situations the commenters 
pose. The applicant would already own any land or interests disclaimed. 
With or without the disclaimer the same impacts would occur, so there 
is no environmental impact from this rule. The rule does not apply to 
private lands and does not affect grazing permits.
    The San Bernardino County, Department of Public Works, California, 
and others, asked whether an applicant must apply and be denied a 
right-of-way under the FLPMA or other statute before requesting a 
disclaimer of interest.
    The denial of a right-of-way application under FLPMA has no bearing 
on a request for a disclaimer of interest.
    Several commenters, including The National Parks Conservation 
Association, and the Nye County Commissioners, Nevada, asked how the 
BLM can process disclaimers of interest on behalf of another surface 
management agency because BLM's mandate may differ from that of other 
agencies. The commenters raised the following concerns:
    [sbull] The final rule may alienate thousands of acres of park 
lands and instigate construction of roads and other structures on NPS 
lands.
    [sbull] The proposed rule could frustrate Congressional intent for 
the protection and management of resources contained within the 
National Park system.
    [sbull] It is not clear how the rule will apply to lands under the 
jurisdiction of DOI agencies other than BLM.
    [sbull] How will the rule pertain to lands that were under BLM 
jurisdiction in 1976, but which have since been transferred by Congress 
to other DOI agencies?
    Section 315 gives the Secretary of the Interior the authority to 
issue recordable disclaimers when a record interest of the United 
States in lands, whether managed by Interior or not, has terminated by 
operation of law or is otherwise invalid. The Secretary has delegated 
the authority to BLM to issue disclaimer documents when BLM determines 
that a disclaimer of interest application is valid. Under the existing 
1984 regulations, BLM will refer an application involving lands 
administered by another agency to that agency for review and comment.
    The U.S. Forest Service provided comments generally supporting the 
proposed rule. We believe its comments are also helpful in responding 
to the above concerns. The Forest Service stated:
    If implemented the proposed rule could improve our abilities to 
resolve certain forms of land title claims by states, such as title to 
the beds and banks of navigable streams, and for rights-of-way for 
highways under the Revised Statute (``RS'') 2477 (repealed). Currently 
there is no administrative process available for states or land 
management agencies like the Forest Service, to resolve such title 
claims; the process is time consuming and requires expensive litigation 
in Federal Courts. * * * [T]he proposed rule for recordable disclaimers 
of title would provide a useful tool in resolving some state land title 
claims. With the addition of a provision stating BLM will not authorize 
any application over the objections of the Forest Service for claims on 
National Forests, we would strongly support the proposal.
    BLM has responded to the Forest Service's comments by adding 
language to the final rule clarifying that BLM will not issue a 
disclaimer of interest over the valid objections of the surface 
managing agency having jurisdiction over the affected lands.
    Gilpin County, Colorado, and Valley County, Idaho, expressed 
concern that the proposed $100 fee is ambiguous and excessive. Valley 
County asked if the application fee would apply to each route upon 
which an assertion is made. They are concerned that this could result 
in hundreds of dollars in fees for large counties. Gilpin County 
requests that BLM consider a one-time processing fee for a block of 
applications.
    We disagree that the $100 application fee, which exists in the 
current regulations, is ambiguous and excessive. The existing 
regulations at 43 CFR 1864.1-2(b) provide that ``a nonrefundable fee of 
$100 shall accompany the application.'' This fee will not change as a 
result of this rulemaking. Subpart 1864 distinguishes between filing 
fees and administrative processing costs. Neither the proposed rule nor 
today's final rule alter these requirements.
    The San Bernardino County Department of Public Works in


[[Page 500]]


California criticized any potential cost recovery that the rulemaking 
may impose because the number of claims the county might potentially 
file could create a financial burden on San Bernardino County .
    This rulemaking does not change BLM's application procedures or fee 
structures and does not involve cost recovery. Each application would 
be subject to the $100 application fee unless BLM waives it. Section 
304(c) of FLPMA authorizes the Secretary, through BLM, to either reduce 
or eliminate charges for administrative costs. BLM will continue to 
place the money it collects into the U.S. Treasury for use for various 
public purposes. If BLM receives multiple applications, the individual 
case costs should be less, or BLM may waive the processing costs if 
many applications cover similar types of filings.
    A commenter stated the proposed rule does not specify how to 
process the application or reference what the application requirements 
will be. The commenter says BLM must be specific about these and 
reference them in the final rule.
    BLM has addressed the application requirements in the existing 
regulations at 43 CFR 1864.1-2. The final rule does not alter these 
requirements.
    Another commenter asked how the public will know whether the fee 
and deposit are fair, if only BLM determines what fees the applicant 
must pay.
    BLM is planning to issue guidance to field offices on how to 
establish fees and parameters to ensure fairness. The guidelines will 
include a provision that returns a portion of the fee if the 
application is denied. (Until those guidelines are completed, 43 U.S.C. 
1735(a) provides an explanation of how BLM handles deposits and 
forfeitures.)
    43 CFR 1864.1-3(c) (Action on application) and 43 CFR 1864.2(a) 
(Decision on application) explain BLM's procedure for billing an 
applicant for a disclaimer of interest application. BLM has chosen not 
to estimate an average cost to process a disclaimer of interest 
application because of the variable factors in each application. 
However, on a case-by-case basis, we inform the applicant of the 
estimated costs. When the application processing is completed, BLM will 
give the applicant a final accounting, which will either require 
payment of additional fees, or, if an applicant has overpaid BLM, we 
will issue a refund. Today's rule does not change the process.
    A commenter asked whether BLM State Directors should have the 
authority to issue disclaimers of interest. Otherwise, subsequent 
administrations will have the authority to change the rule.
    The Secretary has already delegated the authority to process 
disclaimers of interest to the BLM Director, who in turn has delegated 
this authority to State Directors. Delegations of authority are always 
subject to change.
    A commenter asked if the rule would apply to unpatented mining 
claims or other mineral interests.
    The rule will not apply to a mining claim title. Title to mining 
claims is determined under the General Mining Law of 1872, as amended, 
and BLM regulations at 43 CFR Part 3800. BLM will determine whether the 
rule applies to clouded private mineral interests on a case-by-case 
basis. In general, the public obtains Federal mineral interests through 
leases BLM issues under the Mineral Leasing Act (30 U.S.C. 181 et 
seq.), or sales authorized by the Materials Act of 1947 (30 U.S.C. 601 
et seq.).


Section 1864.0-5 Definitions


    In response to several comments we are adding language to section 
1864.0-5 in today's rule to clarify that the term ``state.'' As used in 
this rule, we define ``state'' as ``the state and any of its creations 
including any governmental instrumentality, within a state, including 
cities, counties, or other official local governmental entities.''
    The Commissioners of Valley County, Idaho, believe the term 
``state'' as used in the proposed rule to determine who would receive 
the benefit of the waiver of the 12-year filing deadline, is too 
restrictive because the state may not always support local government 
assertions and could prevent local government's from filing 
applications for disclaimers of interest. The Commissioners recommended 
that the regulations provide for local governments to apply directly.
    We have defined the term ``state'' to include local governments. We 
do not believe the rule will create restrictions upon states or other 
governmental instrumentalities within the state. States may file an 
application for a disclaimer where a title defect appears to exist. 
Because counties and other entities of local government are within the 
jurisdiction of a state, they will have the same rights as a state. The 
waiver applies to counties by definition.


Section 1864.1-1 Filing of Application


    Current section 1864.1-1 (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.
    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 section 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.
    Today's rule amends this paragraph by removing the phrase ``present 
owner of record'' and replacing it with ``any entity claiming title to 
lands.'' This change clarifies 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 also 
broadens the class of potential applicants for disclaimers of interest, 
which could include, among others, a state, corporation, county, or a 
single individual. The language is unchanged from the proposed rule.
    Several commenters did not think BLM was clear on the standards we 
will apply when determining whether or not to issue a disclaimer of 
interest. The commenters urged BLM to apply standards that are ``crisp, 
rigorous, and conform to recent federal case law.'' The commenters 
believe that because an applicant doesn't need to have color of title 
to request a disclaimer of interest, this makes the proposed rule an 
``illegal land granting statute.'' The commenters state that BLM must 
also correct the language of the original 1984 regulation (section 
1864.0-5) purporting to define lands to include lands ``now or formerly 
forming a part of the reserved or unreserved public lands.''
    We disagree with the commenters. BLM did not identify specific 
standards because applicants can make a wide variety of disclaimer 
applications. The issuance of a disclaimer does not grant land to 
anyone. It merely documents that the United States has no valid 
interest in the land. Requirements for how and what an applicant must 
file are found in the existing regulations at 43 CFR 1864.1-2.
    We also disagree that we should change our definition of ``lands.'' 
Often lands have been transferred from Federal to private ownership, 
but a residual interest in the lands remains with the Federal 
government either by design or error. The disclaimer of interest rule 
is in place to correct such errors if they are found to cause a cloud 
on a title.


[[Page 501]]


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 now 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 in most instances. 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, today's rule amends this section to be more consistent 
with the Quiet Title Act.
    Today's rule adds language exempting states from the 12-year filing 
deadline to allow states, as we have defined this term in this rule, to 
apply for disclaimers of interest under FLPMA at any time. We also made 
editorial changes to this section and brought up-to-date a reference to 
another section.


Section 1864.1-4 Consultation With Other Agencies


    The existing regulations at 43 CFR 1864.1-4 direct BLM to refer 
disclaimer applications to the affected Federal agency for comment 
before making a decision on the application. As a result of comments 
BLM added provisions to today's rule stating that if a surface 
management agency has a valid objection to an application, BLM will 
reject the application. If the application is approved by the surface 
management agency, then BLM can issue a recordable disclaimer of 
interest.
    We specifically made the change in reponse to the U.S. Forest 
Service comments by clarifying in this final rule how BLM will handle 
disclaimer of interest applications for lands managed by another land 
managing agency.


IV. How Did BLM Fulfill Its Procedural Obligations?


E.O. 12866, Regulatory Planning and Review


    This regulation is not a ``significant regulatory action'' as 
defined in section 3(f) of Executive Order 12866. Therefore it does not 
require an assessment of potential benefits and costs, nor does it 
require an explanation pertaining to the manner in which the regulatory 
action is consistent with a statutory mandate and, to the extent 
allowed by law, promotes the President's priorities and avoids undue 
interference with state, local, and tribal governments in the exercise 
of their governmental functions. Because this rule is not a 
``significant regulatory action'' the Office of Management and Budget 
has not reviewed this rule under Executive Order 12866.
    Commenters asserted that the rulemaking is a significant regulatory 
action because it relates directly to R.S. 2477 claims and will, 
therefore, cause adverse impacts to the environment; presents novel 
legal issues; and is inconsistent with the actions of another agency.
    We disagree and stand by our analysis that the rule is not a 
significant regulatory action. Today's rule does not change the basic 
process for issuing recordable disclaimers and will not have additional 
environmental impact, will better conform to existing statutes, and 
better explains how the disclaimer process relates to other agencies.


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 changes to the current rules will 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.


Small Business Regulatory Enforcement Fairness Act (SBREFA)


    This regulation is not a ``major rule'' as defined at 5 U.S.C. 
804(2) because it will not have an annual effect on the economy greater 
than $100 million, nor will it result in major cost or price increases 
for consumers, industries, government agencies, or regions. It will not 
have significant adverse effects on competition, employment, 
investment, productivity, innovation, or the ability of United States-
based enterprises to compete with foreign-based enterprises.


Unfunded Mandates Reform Act


    BLM has determined that this rule is not significant under the 
Unfunded Mandates Reform Act of 1995, 2 U.S.C. 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 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.
    A commenter believes the rulemaking will impact the public under 
Executive Order 13132 because the rulemaking would change Federal and 
state land ownership.
    We disagree. Although states will gain an additional ability to 
apply for disclaimers because we are removing the states' 12-year 
filing deadline, no substantive changes in ownership would occur 
because recordable disclaimers may only be issued for


[[Page 502]]


interests which the Federal government no longer claims.


Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments


    In accordance with Executive Order 13175, BLM finds that this rule 
does not propose significant changes to BLM policy and that Tribal 
Governments will not be unduly affected by this rule.
    The State of Alaska supported the proposed rule and asked if a 
disclaimer of interest could be applied to Indian trust or restricted 
Indian lands.
    BLM will reject all applications for a disclaimer of interest on 
trust or restricted Indian lands (43 CFR 1864.1-3(b)(2) of today's 
rule). Indian trust lands are defined in 25 CFR 150.2(h) as ``an 
inclusive term describing all lands held in trust by the United States 
for Individual Indians or tribes, or all lands, titles to which are 
held by individual Indians or tribes, subject to the Federal 
restrictions against alienation or encumbrance, for all lands which are 
subject to the rights of use, occupancy, and/or benefit of certain 
tribes.'' For purposes of this part, the term ``Indian land'' also 
includes land for which title is held in fee status by Indian tribes 
and U.S. Government-owned lands under the Bureau of Indian Affairs 
jurisdiction. This rulemaking has no bearing on these lands.


Executive Order 12988, Civil Justice Reform


    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.


Paperwork Reduction Act


    BLM has determined this rulemaking 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


    BLM has determined that this rulemaking 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 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 rule is categorically excluded because it is procedural in 
nature, therefore its environmental effect is too broad, speculative or 
conjectural to analyze.
    A commenter believes BLM was incorrect in asserting that the 
proposed rule is categorically excluded from review under NEPA, arguing 
that there are several exceptions requiring the proposed rule to 
undergo NEPA review, including the potential adverse effects on parks, 
recreation, wilderness, and refuge lands, and the proposed rule's 
potentially controversial environmental effects.
    We disagree. BLM believes that the rule, as written, is exempt from 
NEPA for the reasons stated in the proposed rulemaking. It is not 
possible to determine the number of filings under the FLPMA provision, 
nor can BLM determine where such filings will be made.


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


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


Clarity of the Regulations


    Each Federal agency is required to write regulations that are 
simple and easy to understand and to solicit comments and suggestions 
from the public on the readability of the rule.
    A commenter stated the rulemaking was unclear because it does not 
mention R.S. 2477, although BLM's Questions and Answers and Press 
Release pertain specifically to R.S. 2477.
    We disagree. This rulemaking pertains to the issues of recordable 
disclaimers and, therefore, we saw no need to address specific R.S. 
2477 rights-of way types of recordable disclaimers in the preamble to 
the proposed rule. Our mention of R.S. 2477 in BLM's Questions and 
Answers and Press Release generated significant comments about the 
relationship of this rule to R.S. 2477, which we have addressed in 
today's preamble.


List of Subjects in 43 CFR Part 1860


    Administrative practice and procedure, Public lands.


    Dated: December 31, 2002.
Rebecca W. Watson,
Assistant 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 amends 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. Amend Section 1864.0-5, by adding paragraph (h) to read as 
follows:




Sec.  1864.0-5  Definitions.


* * * * *
    (h) State means ``the state and any of its creations including any 
governmental instrumentality within a state, including cities, 
counties, or other official local governmental entities.''


    3. Revise Sec.  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 of 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.


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


[[Page 503]]


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.


    5. Revise Sec.  1864.1-4 to read as follows:




Sec.  1864.1-4.  Consultation with other Federal agencies.


    BLM will not issue a recordable disclaimer of interest over the 
valid objection of another land managing agency having administrative 
jurisdiction over the affected lands. A valid objection must present a 
sustainable rationale that the objecting agency claims United States 
title to the lands for which a recordable disclaimer is sought.


[FR Doc. 02-33147 Filed 12-31-02; 12:48 pm]

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