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###### Department of the Interior

###### Bureau of Land Management

          - 43 CFR Part 2560
          - [WO-350-1410-00-24 1A] 
          - RIN 1004-AD60

# 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regulations allowed certain Alaska Native veterans another opportunity to apply for a Native allotment under the repealed Native Allotment Act of 1906.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.

      ( print 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.                          ( print 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                           ( print 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.

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 

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

* * * * *

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

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

§ 2568.74 

* * * * *

(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.

§ 2568.77 

3. Remove and reserve § 2568.77. 

[FR Doc. 06-7661 Filed 9-13-06; 8:45 am]

BILLING CODE 4310-84-M