Land Acquisitions: Appeals of Land Acquisition Decisions, 32214-32219 [2013-12708]
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regulatory action’’ under Executive
Order 12866; (2) is not a ‘‘significant
rule’’ under DOT Regulatory Policies
and Procedures (44 FR 11034; February
26, 1979); and (3) does not warrant
preparation of a Regulatory Evaluation
as the anticipated impact is so minimal.
Since this is a routine matter that only
affects air traffic procedures and air
navigation, it is certified that this
proposed rule, when promulgated, does
not have a significant economic impact
on a substantial number of small entities
under the criteria of the Regulatory
Flexibility Act.
The FAA’s authority to issue rules
regarding aviation safety is found in
Title 49 of the United States Code.
Subtitle I, Section 106 describes the
authority of the FAA Administrator.
Subtitle VII, Aviation Programs,
describes in more detail the scope of the
agency’s authority. This proposed
rulemaking is promulgated under the
authority described in Subtitle VII, Part,
A, Subpart I, Section 40103. Under that
section, the FAA is charged with
prescribing regulations to assign the use
of airspace necessary to ensure the
safety of aircraft and the efficient use of
airspace. This proposed regulation is
within the scope of that authority as it
would amend Class E airspace at
Bedford County Airport, Bedford, PA.
This proposal would be subject to an
environmental analysis in accordance
with FAA Order 1050.1E,
‘‘Environmental Impacts: Policies and
Procedures’’ prior to any FAA final
regulatory action.
Lists of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference,
Navigation (air).
The Proposed Amendment
In consideration of the foregoing, the
Federal Aviation Administration
proposes to amend 14 CFR part 71 as
follows:
PART 71—DESIGNATION OF CLASS A,
B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
1. The authority citation for part 71
continues to read as follows:
■
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Authority: 49 U.S.C. 106(g); 40103, 40113,
40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–
1963 Comp., p. 389.
§ 71.1
[Amended]
2. The incorporation by reference in
14 CFR 71.1 of Federal Aviation
Administration Order 7400.9W,
Airspace Designations and Reporting
Points, dated August 8, 2012, effective
September 15, 2012, is amended as
follows:
■
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Paragraph 6005. Class E Airspace Areas
Extending Upward from 700 feet or More
Above the Surface of the Earth.
*
*
*
*
*
AEA PA E5 Bedford, PA [Amended]
Bedford County Airport, PA
(Lat. 40°05′10″ N., long. 78°30′49″W.)
That airspace extending upward from 700
feet above the surface within a 12.5-mile
radius of Bedford County Airport.
Issued in College Park, Georgia, on May 21,
2013.
Jackson Allen,
Acting Manager, Operations Support Group,
Eastern Service Center, Air Traffic
Organization.
[FR Doc. 2013–12707 Filed 5–28–13; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 151
[K00103 12/13 A3A10; 134D0102DR–
DS5A300000–DR.5A311.IA000113; Docket
ID: BIA–2013–0005]
RIN 1076–AF15
Land Acquisitions: Appeals of Land
Acquisition Decisions
Bureau of Indian Affairs,
Interior.
ACTION: Proposed rule.
AGENCY:
This proposed rule revises a
section of regulations governing
decisions by the Secretary to approve or
deny applications to acquire land in
trust under this part. This rule is
appropriate to address changes in the
applicability of the Quiet Title Act as
interpreted by a recent United States
Supreme Court decision. This rule
revises a regulatory provision the
Department added in 1996 to ensure
that interested parties had the
opportunity to timely seek judicial
review of decisions when available
under the Administrative Procedure
Act. The Department had determined
the provision was necessary because,
consistent with Federal court decisions
at the time, once the Secretary acquired
title, the Quiet Title Act precluded
judicial review of the Secretary’s
decision to take the land into trust. The
Supreme Court has since held that the
Quiet Title Act does not preclude timely
Administrative Procedure Act
challenges to agency decisions to
acquire land in trust unless the
aggrieved party claims an ownership
interest in the property at issue. This
rule revises the regulation to reflect this
change in the law and to make other
SUMMARY:
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revisions to codify the current process
for issuing decisions approving or
denying requests to acquire land in trust
under this part. It also broadens and
clarifies the notice of decisions to
acquire land in trust under this part,
including broadening notice of any right
to file an administrative appeal.
DATES: Comments on this rule must be
received by July 29, 2013.
ADDRESSES: You may submit comments
by any of the following methods:
—Federal rulemaking portal: https://
www.regulations.gov. The rule is
listed under the agency name ‘‘Bureau
of Indian Affairs.’’ The rule has been
assigned Docket ID: BIA–2013–0005.
—E-Mail: consultation@bia.gov. Include
the number 1076–AF15 in the subject
line of the message.
—Mail: Elizabeth Appel, Office of
Regulatory Affairs & Collaborative
Action, U.S. Department of the
Interior, 1849 C Street NW. Include
the number 1076–AF15 in the
submission.
—Hand Delivery: Elizabeth Appel,
Office of Regulatory Affairs &
Collaborative Action, U.S. Department
of the Interior, 1849 C Street NW.
Include the number 1076–AF15 in the
submission.
We cannot ensure that comments
received after the close of the comment
period (see DATES) will be included in
the docket for this rulemaking and
considered. Comments sent to an
address other than those listed above
will not be included in the docket for
this rulemaking.
FOR FURTHER INFORMATION CONTACT:
Elizabeth Appel, Acting Director, Office
of Regulatory Affairs & Collaborative
Action, (202) 273–4680;
elizabeth.appel@bia.gov.
SUPPLEMENTARY INFORMATION:
I. Executive Summary of Rule
Section 5 of the Indian Reorganization
Act (IRA) (25 U.S.C. 465) authorizes the
Secretary of the Interior to acquire land
in trust for individual Indians and
Indian tribes. The Department of the
Interior’s regulations at 25 CFR part 151
implement this statutory provision, as
well as other statutes authorizing the
acquisition of land in trust for
individual Indians and Indian tribes. In
1996, the Department revised part 151
by procedural rulemaking. That
procedural rule added a paragraph (b) to
§ 151.12, which established a 30-day
waiting period following publication of
notice in the Federal Register or in a
newspaper of general circulation serving
the affected area announcing the final
agency determination to take the subject
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Federal Register / Vol. 78, No. 103 / Wednesday, May 29, 2013 / Proposed Rules
land into trust. Paragraph (b) was
intended to ensure that interested
parties had the opportunity to seek
judicial review under the
Administrative Procedure Act (APA) (5
U.S.C. 704) before the Secretary
acquired title to land in trust. See 61 FR
18082 (Apr. 24, 1996). The Department
had determined such rule was necessary
because, at that time, prevailing Federal
court decisions found that the Quiet
Title Act (QTA), 28 U.S.C. 2409a,
precluded judicial review of the
decision after the United States acquired
title. See, e.g., Neighbors for Rational
Dev., Inc. v. Norton, 379 F.3d 956 (10th
Cir. 2004); Metro Water Dist. of S. Cal.
v. United States, 830 F.2d 139 (9th Cir.
1987); Florida Dep’t of Bus. Regulation
v. Dep’t of the Interior, 768 F.2d 1248
(11th Cir. 1985).
The legal landscape changed,
however, on June 18, 2012, when the
Supreme Court issued its decision in
Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak, 132 S.
Ct. 2199 (2012). In that decision, the
Supreme Court held that the QTA is not
a bar to APA challenges to the
Secretary’s decision to acquire land in
trust after the United States acquires
title to the property unless the aggrieved
party asserts an ownership interest in
the land as the basis for the challenge.
Following Patchak, the 1996 procedural
rule establishing a 30-day waiting
period before taking land into trust to
allow for APA review is no longer
needed because, if judicial review under
the APA is not precluded on some other
basis, such as standing, timeliness, or a
failure to exhaust administrative
remedies, judicial review of the
Secretary’s decision is available under
the APA even after the Secretary has
acquired title to the property.
This rule effectively repeals the 1996
procedural provision by revising section
151.12 to:
• Clarify the process depending upon
whether the Assistant Secretary—Indian
Affairs or a Bureau of Indian Affairs
official issues the decision;
• Clarify how decisions under this
part become final for the Department;
• Ensure public notice of a BIA
official decision to acquire land into
trust:
Æ All interested parties who have
made themselves known in writing to
the BIA official, as well as State and
local governments having regulatory
jurisdiction over the land to be
acquired, must receive actual notice of
the decision and the right to file an
administrative appeal, if any;
Æ All parties who have not made
themselves known in writing to the BIA
official will receive notice of the
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decision and right to appeal, if any,
through publication in a newspaper of
general circulation serving the affected
area.
• Make other changes to reflect more
accurately the process for issuing
approval and denial decisions under
this part.
II. Background on Challenges to LandInto-Trust Decisions
A decision to acquire land in trust
may be issued by the Assistant
Secretary—Indian Affairs (AS–IA) or by
the BIA Director or other BIA official
with delegated authority to issue the
decision. The means and timelines for
challenging the decision differ
depending on whether the decision is
issued by the AS–IA or whether the
decision is issued by a BIA official.
• If the AS–IA issues the decision
under this part, then the decision is a
‘‘final agency determination,’’ and the
decision is final for the Department. See
25 CFR 2.6(c). Decisions made by the
AS–IA are not subject to administrative
review by the Interior Board of Indian
Appeals (IBIA).
• If a BIA official decides to acquire
land in trust, such decision is not yet a
‘‘final agency determination’’ because
interested parties may appeal the
decision under the administrative
review process set forth in 25 CFR part
2. Under part 2, interested parties have
a 30-day period in which to file an
appeal of the BIA official’s decision. See
25 CFR 2.9. If no appeal is filed within
the 30-day administrative appeal period,
then the BIA official’s decision becomes
final for the Department. If an
administrative appeal of a BIA official’s
decision is timely filed and effective
with the IBIA, then only after the IBIA
issues a final decision affirming the BIA
official’s decision does such decision
become final for the Department.
• Once a decision is final for the
Department, it is subject to judicial
review under the APA, as available.
APA challenges must be brought within
the six year statute-of-limitations period
applicable to the APA. See 28 U.S.C.
2401(a).
III. Detailed Explanation of Rule
This rule revises § 151.12 to remove
procedural requirements that are no
longer necessary in light of the Patchak
Supreme Court decision and to increase
transparency by better articulating the
process for issuing decisions to acquire
land in trust under this part.
Specifically, this rule deletes the 30-day
waiting period for implementation of
decisions to acquire land in trust after
such decisions are final for the
Department, and broadens and clarifies
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notice of decisions issued by BIA
officials to acquire land in trust under
this part and the right, if any, of
interested parties to appeal such
decisions pursuant to part 2 of this title.
A. Deleting the 30-Day Waiting Period
The current rule at § 151.12 states that
the Secretary of the Interior shall review
all requests and shall promptly notify
the applicant in writing of his decision.
The Secretary may request any
additional information or justification
he considers necessary to enable him to
reach a decision. If the Secretary
determines that the request should be
denied, he shall advise the applicant of
that fact and the reasons therefor in
writing and notify him of the right to
appeal pursuant to 25 CFR part 2.
Following completion of the Title
Examination provided in § 151.13 and
the exhaustion of any administrative
remedies, the Secretary shall publish in
the Federal Register, or in a newspaper
of general circulation serving the
affected area a notice of his/her decision
to take land into trust under this part.
The notice will state that a final agency
determination to take land in trust has
been made and that the Secretary shall
acquire title in the name of the United
States no sooner than 30 days after the
notice is published.
As noted above, paragraph (b) was
added in 1996 to add, after decisions to
acquire land in trust became final for
the Department, a 30-day waiting period
before the Secretary could acquire title
to the property to allow parties to seek
judicial review of the Secretary’s
decision under the APA. See 61 FR
18082 (Apr. 24, 1996). The stated reason
for adding this waiting period was
because the United States’ position at
the time was that the QTA precluded
judicial review of the Secretary’s
decision after the United States acquired
title to the land at issue. Id. The
Supreme Court has since held that the
QTA itself is not a bar to judicial review
under the APA unless the aggrieved
party asserts an ownership interest in
the property. Following the Patchak
decision, this 30-day waiting period is
now unnecessary because parties may
seek, to the extent it is available,
judicial review of the Secretary’s
decision under the APA even after the
land is acquired by the United States in
trust. Accordingly, the proposed rule
provides that the Secretary shall, on or
promptly after the decision to acquire
land in trust is final for the Department,
complete the trust acquisition pursuant
to 25 CFR 151.14 after fulfilling the
requirements of 25 CFR 151.13 and any
other Departmental requirements.
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The Patchak decision is consistent
with federal court cases that preceded
the decision holding that the QTA bars
judicial review by aggrieved parties
seeking to quiet title to the property in
themselves. Because no change in the
law has occurred in connection with
these parties, the proposed rule makes
no changes to such parties’ rights under
this part. Consistent with the
Department’s prior practice, the
Department will continue to conduct an
exhaustive title examination process in
connection with decisions to acquire
land in trust under this part. This
process identifies adverse landowners
prior to the decision so that their
interests are addressed before the
Secretary issues a decision on the
application. Therefore, the changes
proposed by this rule should have no
effect on the rights of these parties.
B. Requiring Notification of Known and
Unknown Interested Parties of the
Decision and Administrative Appeal
Rights
Under existing regulations, BIA
officials who issue decisions under this
part are required to provide known
interested parties with written notice of
such decisions. See 25 CFR 2.7(a). The
proposed rule requires interested
parties, as that term is currently defined
in the part 2 regulations, to make
themselves known to the BIA official in
writing in order to require the BIA
official to provide this written notice to
them. For example, a party that submits
written comments to the BIA official in
connection with a pending application
has made itself ‘‘known’’ to the BIA
official and will be provided written
notice of the decision when issued. If a
BIA official’s decision is subject to
administrative review by another BIA
official, parties must make themselves
known in writing at each stage of
administrative review. For example, a
party that makes itself known in writing
to a BIA Superintendent with the
delegated authority to issue decisions
under this part must also make itself
known to the BIA Regional Director if
the BIA Superintendent’s decision has
been appealed to the Regional Director
by another party. Notifications of
decisions issued by BIA officials will
continue to include information
concerning administrative appeal rights,
consistent with 25 CFR 2.7. Please note,
however, that inclusion of such
information in the notice of decision
does not confer upon the recipient a
right to a decision on the merits of their
claims. The right to a decision on the
merits of a BIA official’s decision is still
subject to standing, timeliness, and
other requirements limiting IBIA review
of BIA officials’ decisions.
With regard to notice to unknown
interested parties, the revised rule
requires that, where the AS–IA issues
the decision, a notice of such decision
will be published in the Federal
Register. When a BIA official issues a
decision, a notice of such decision and
a statement of the right to an
administrative appeal will be published
in a newspaper of general circulation
addressing the affected area. The
newspaper notice will contain the same
statement that is included in the written
notice of decision provided to known
interested parties regarding the right to
appeal, if any. The time for unknown
interested parties to file a notice of
appeal begins to run upon first
publication of such newspaper notice.
Lastly, the proposed rule also clarifies
regulatory notice requirements to
require the BIA official to notify, by
mail or personal delivery, State and
local governments having regulatory
jurisdiction over the land to be acquired
and any right to appeal.
Consistent with 25 CFR 2.7(b), in the
event the BIA official fails to notify
parties entitled to written notice of the
decision, such failure does not affect the
validity of the decision; instead, the
time for filing a notice of appeal of the
decision will not begin to run for such
parties until written notice has been
provided.
C. Exhaustion of Administrative
Remedies
When a BIA official issues the
decision to acquire land in trust,
administrative remedies are available
(as set forth in 25 CFR part 2) and
interested parties must first exhaust
them before seeking judicial review
under the APA. Under 25 CFR part 2,
interested parties have a specific time
period to appeal the BIA’s decision to
acquire land in trust to the IBIA.
Currently, that time period is 30 days.
If interested parties who have received
written notice or notice by newspaper
publication fail to appeal within that
timeframe, such parties are precluded
from seeking any judicial review
available under the APA because they
failed to exhaust administrative
remedies.
When the AS–IA issues decisions to
acquire land in trust under this part
there are no administrative remedies to
exhaust; such decisions are final for the
Department.
D. Summary of All Revisions to 151.12
Other changes to § 151.12 are
designed to increase transparency and
better reflect the current process for
approving and denying requests to take
land into trust. The following table
details all revisions this proposed rule
would make to § 151.12.
Current provision
Proposed 25 CFR §
Description of change
Reason for change
151.12(a) .....
‘‘The Secretary shall review all
requests and shall promptly
notify the applicant in writing
of his decision.’’
151.12(a) ...................
Moves
provision
regarding
promptly notifying the applicant
in writing of the decision to (c)
and (d).
151.12(a) .....
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Current 25
CFR §
‘‘The Secretary may request any
additional information or justification he considers necessary to enable him to reach
a decision.’’
151.12(a) ...................
No substantive change ...............
The revised version describes
the process of the Assistant
Secretary issuing a decision in
paragraph (c), and the process
of a BIA official issuing a decision in paragraph (d)
N/A.
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Current provision
Proposed 25 CFR §
Description of change
Reason for change
151.12(a) .....
‘‘If the Secretary determines that
the request should be denied,
he shall advise the applicant
of that fact and the reasons
therefor in writing and notify
him of the right to appeal pursuant to part 2 of this title.’’
151.12(b) ...................
‘‘Following completion of the
Title Examination provided in
§ 151.13 of this part . . .’’
152.12(c) & (d) ..........
States generally that the Secretary’s decision will be in writing and state the reasons for
the decision, so this requirement applies regardless of
whether the decision was an
approval or denial. Moves the
provision regarding notification
of appeal rights to (d)(1) (denial decision by BIA official)
and (d)(2)(ii) and (d)(2)(iii) (approval decision by BIA official).
The requirement for a title examination has been moved to
(c)(2)(iii) and (d)(2)(iv)(B).
This addition reflects current
practice, whereby the decision
and basis for the decision are
in writing for the record. Clarifies that only decisions from
BIA officials may be appealed
under part 2. Decisions by the
Assistant Secretary are final
for the Department.
151.12(b) .....
151.12(b) .....
‘‘. . . and the exhaustion of any
administrative remedies . . .’’
152.12(d) ...................
151.12(b) .....
‘‘. . . the Secretary shall publish
in the Federal Register, or in
a newspaper of general circulation serving the affected
area a notice of his/her decision to take land into trust
under this part.’’
151.12(c)(2)(ii) &
(d)(2).
151.12(b) .....
‘‘The notice will state that a final
agency determination to take
land in trust has been made
and . . .’’
151.12(c) ...................
States that a decision issued by
the Assistant Secretary is final
for the Department.
151.12(b) .....
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Current 25
CFR §
‘‘. . . that the Secretary shall acquire title in the name of the
United States no sooner than
30 days after the notice is
published.’’
151.12(c)(2)(iii) &
(d)(2)(iv).
Deletes statement that the Secretary will acquire title no
sooner than 30 days after the
notice is published. Instead,
provides that the Assistant
Secretary will ‘‘promptly’’ acquire land into trust at (c)(2)(iii)
and that the BIA official will
‘‘promptly’’ acquire land into
trust when the decision is final,
after the administrative appeal
period expires or the appeal is
decided or dismissed.
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The requirement for exhaustion
of administrative remedies has
been moved to (d), which is
applicable only to decisions
issued by a BIA official.
The requirement to publish in the
Federal Register has been
moved to (c)(2)(ii) (decisions
by the Assistant Secretary).
The requirement to publish in
a newspaper has been moved
to (d)(2)(iii) (decisions by a BIA
official) and clarifies that any
appeal period begins to run
upon first publication. Also
adds a requirement for actual
notice to known interested parties and State and local governments with jurisdiction over
the land to be acquired of a
BIA official’s decision to take
land into trust.
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The revised version places the
requirement for title examination in paragraphs relating to
an approval decision by the
Assistant Secretary and an approval decision by the BIA official.
Clarifies that only decisions from
BIA officials may be appealed
under part 2. Decisions by the
Assistant Secretary are final
for the Department.
The addition of the requirement
for actual notice to known interested parties and State and
local governments with jurisdiction is to ensure that all
known interested parties receive the notice necessary for
the administrative appeal period to begin to run. This supplements 25 CFR 2.7 by providing that, for unknown interested parties, the time for appeal begins to run upon publication in the newspaper. This
exception is necessary because notice by mail or personal service is not possible
for parties not known to the
BIA official.
The current rule’s statement that
the decision is a ‘‘final agency
determination’’ does not reflect
those cases where the decision is made by a BIA official,
which is not a ‘‘final agency
determination’’ at the time of
issuance and may be appealed through the Department’s administrative appeals
process.
Deleting the 30-day waiting period means the decision to
take land into trust may now
be implemented as soon as
such decision becomes final.
This is true regardless of how
the decision becomes final for
the Department, whether because the Assistant Secretary
issues the decision, the IBIA
issues a final decision affirming the BIA official’s decision,
or following expiration of the
administrative appeal period
for which no administrative appeals are filed.
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Upon finalization of the rule,
revisions to the Fee-to-Trust Handbook
will be made to comport with the new
notice procedures in this rule, including
the addition of broader notice
requirements of decisions issued by
Bureau officials.
IV. Procedural Requirements
A. Regulatory Planning and Review
(E.O. 12866 and 13563)
Executive Order (E.O.) 12866 provides
that the Office of Information and
Regulatory Affairs (OIRA) at the Office
of Management and Budget (OMB) will
review all significant rules. OIRA has
determined that this rule is not
significant.
E.O. 13563 reaffirms the principles of
E.O. 12866 while calling for
improvements in the nation’s regulatory
system to promote predictability, to
reduce uncertainty, and to use the best,
most innovative, and least burdensome
tools for achieving regulatory ends. The
E.O. directs agencies to consider
regulatory approaches that reduce
burdens and maintain flexibility and
freedom of choice for the public where
these approaches are relevant, feasible,
and consistent with regulatory
objectives. E.O. 13563 emphasizes
further that regulations must be based
on the best available science and that
the rulemaking process must allow for
public participation and an open
exchange of ideas. We have developed
this rule in a manner consistent with
these requirements. This rule is also
part of the Department’s commitment
under the Executive Order to reduce the
number and burden of regulations and
provide greater notice and clarity to the
public.
B. Regulatory Flexibility Act
The Department of the Interior
certifies that this rule will not have a
significant economic effect on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.).
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C. 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. It
will not result in the expenditure by
State, local, or tribal governments, in the
aggregate, or by the private sector of
$100 million or more in any one year.
The rule’s requirements will not result
in a major increase in costs or prices for
consumers, individual industries,
Federal, State, or local government
agencies, or geographic regions. Nor will
this rule have significant adverse effects
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on competition, employment,
investment, productivity, innovation, or
the ability of the U.S.-based enterprises
to compete with foreign-based
enterprises because the rule is limited to
appeals of acquisitions of Indian land.
I. Paperwork Reduction Act
This rule does not contain any
information collections requiring
approval under the Paperwork
Reduction Act (PRA), 44 U.S.C. 3501 et
seq.
D. Unfunded Mandates Reform Act
J. National Environmental Policy Act
This rule does not constitute a major
Federal action significantly affecting the
quality of the human environment
because it is of an administrative,
technical, and procedural nature.
This rule does not impose an
unfunded mandate on State, local, or
tribal governments or the private sector
of more than $100 million per year. The
rule does not have a significant or
unique effect on State, local, or tribal
governments or the private sector. A
statement containing the information
required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not
required.
E. Takings (E.O. 12630)
Under the criteria in Executive Order
12630, this rule does not affect
individual property rights protected by
the Fifth Amendment nor does it
involve a compensable ‘‘taking.’’ A
takings implication assessment is
therefore not required.
F. Federalism (E.O. 13132)
Under the criteria in Executive Order
13132, this rule has no 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. This rule
ensures notification to State and local
governments of a BIA official’s decision
to take land into trust and the right to
administratively appeal such decision.
G. Civil Justice Reform (E.O. 12988)
This rule complies with the
requirements of Executive Order 12988.
Specifically, this rule has been reviewed
to eliminate errors and ambiguity and
written to minimize litigation; and is
written in clear language and contains
clear legal standards.
H. Consultation With Indian Tribes
(E.O. 13175)
In accordance with the President’s
memorandum of April 29, 1994,
‘‘Government-to-Government Relations
with Native American Tribal
Governments,’’ Executive Order 13175
(59 FR 22951, November 6, 2000), and
512 DM 2, we have evaluated the
potential effects on federally recognized
Indian tribes and Indian trust assets.
During development of the rule, the
Department discussed the rule with
tribal representatives and will engage in
further consultation as it reviews public
comments.
PO 00000
Frm 00036
Fmt 4702
Sfmt 4702
K. Effects on the Energy Supply (E.O.
13211)
This rule is not a significant energy
action under the definition in Executive
Order 13211. A Statement of Energy
Effects is not required.
L. Clarity of This Regulation
We are required by Executive Orders
12866 and 12988 and by the
Presidential Memorandum of June 1,
1998, to write all rules in plain
language. This means that each rule we
publish must:
(a) Be logically organized;
(b) Use the active voice to address
readers directly;
(c) Use clear language rather than
jargon;
(d) Be divided into short sections and
sentences; and
(e) Use lists and tables wherever
possible.
If you feel that we have not met these
requirements, send us comments by one
of the methods listed in the
‘‘COMMENTS’’ section. To better help
us revise the rule, your comments
should be as specific as possible. For
example, you should tell us the
numbers of the sections or paragraphs
that are unclearly written, which
sections or sentences are too long, the
sections where you believe lists or
tables would be useful, etc.
M. Public Availability of Comments
Before including your address, phone
number, email address, or other
personal identifying information in your
comment, you should be aware that
your entire comment—including your
personal identifying information—may
be made publicly available at any time.
While you can ask us in your comment
to withhold your personal identifying
information from public review, we
cannot guarantee that we will be able to
do so.
List of Subjects in 25 CFR Part 151
Indians—lands.
For the reasons stated in the
preamble, the Department of the
Interior, Bureau of Indian Affairs,
E:\FR\FM\29MYP1.SGM
29MYP1
Federal Register / Vol. 78, No. 103 / Wednesday, May 29, 2013 / Proposed Rules
proposes to amend part 151 in Title 25
of the Code of Federal Regulations as
follows:
PART 151—LAND ACQUISITIONS
1. The authority citation for part 151
continues to read as follows:
■
Authority: R.S. 161: 5 U.S.C. 301. Interpret
or apply 46 Stat. 1106, as amended; 46
Stat.1471, as amended; 48 Stat. 985, as
amended; 49 Stat. 1967, as amended, 53 Stat.
1129; 63 Stat. 605; 69 Stat. 392, as amended;
70 Stat. 290, as amended; 70 Stat. 626; 75
Stat. 505; 77 Stat. 349; 78 Stat. 389; 78 Stat.
747; 82 Stat. 174, as amended, 82 Stat. 884;
84 Stat. 120; 84 Stat. 1874; 86 Stat. 216; 86
Stat. 530; 86 Stat. 744; 88 Stat. 78; 88 Stat.
81; 88 Stat. 1716; 88 Stat. 2203; 88 Stat. 2207;
25 U.S.C. 2, 9, 409a, 450h, 451, 464, 465, 487,
488, 489, 501, 502, 573, 574, 576, 608, 608a,
610, 610a, 622, 624, 640d–10, 1466, 1495,
and other authorizing acts.
■
2. Revise § 151.12 to read as follows:
tkelley on DSK3SPTVN1PROD with PROPOSALS
§ 151.12
Action on requests.
(a) The Secretary shall review each
request and may request any additional
information or justification deemed
necessary to reach a decision.
(b) The Secretary’s decision to
approve or deny a request shall be in
writing and state the reasons for the
decision.
(c) Decisions made by the Assistant
Secretary—Indian Affairs are final
agency actions under the Administrative
Procedure Act (5 U.S.C. 704) upon
issuance.
(1) If the Assistant Secretary denies
the request, the Assistant Secretary shall
promptly provide the applicant with the
decision.
(2) If the Assistant Secretary approves
the request, the Assistant Secretary
shall:
(i) Promptly provide the applicant
with the decision;
(ii) Publish in the Federal Register a
notice of the decision to acquire land in
trust under this part; and
(iii) Promptly acquire the land in trust
under § 151.14 on or after the date such
decision is issued and upon fulfillment
of the requirements of § 151.13 and any
other Departmental requirements.
(d) Decisions made by a Bureau of
Indian Affairs official are not final for
the Department under part 2 of this title
until administrative remedies are
exhausted or until the time for filing a
notice of appeal has expired and no
appeal was filed.
(1) If the official denies the request,
the official shall promptly provide the
applicant with the decision and
notification of any right to file an
administrative appeal under part 2 of
this title.
(2) If the official approves the request,
the official shall:
VerDate Mar<15>2010
17:56 May 28, 2013
Jkt 229001
(i) Promptly provide the applicant
with the decision;
(ii) Provide written notice of the
decision by mail or personal delivery to
(A) Interested parties who have made
themselves known, in writing, to the
official who made the decision; and
(B) The State and local governments
having regulatory jurisdiction over the
land to be acquired. The notices sent
pursuant to paragraphs (d)(2)(ii)(A)–(B)
of this section shall also inform the
addressee of the right, if any, to file an
administrative appeal of such decision
pursuant to part 2 of this title;
(iii) Publish a notice in a newspaper
of general circulation serving the
affected area of the decision to acquire
land in trust under this part and any
right of other interested parties to file an
administrative appeal under part 2 of
this title. For purposes of calculating the
appeal period, the date of first
publication of the notice shall be
deemed the date of receipt of the
decision for interested parties who did
not make themselves known, in writing,
to the official who made the decision;
(iv) Take the following actions to
finalize the trust acquisition:
(A) If no administrative appeal is
filed, the BIA official will promptly take
the land into trust under § 151.14 after
expiration of the time for filing a notice
of appeal and after fulfilling the
requirements of § 151.13 and any other
Departmental requirements.
(B) If an administrative appeal is filed,
the BIA official will take the land into
trust under § 151.14 promptly following
an IBIA decision affirming the decision,
or dismissing the appeal, and after
fulfilling the requirements of § 151.13
and any other Departmental
requirements.
Dated: May 23, 2013.
Kevin K. Washburn,
Assistant Secretary—Indian Affairs.
[FR Doc. 2013–12708 Filed 5–24–13; 11:15 am]
BILLING CODE 4310–6W–P
DEPARTMENT OF HOMELAND
SECURITY
[Docket Number USCG–2013–0391]
RIN 1625–AA00
Safety Zone, Temporary Change for
Recurring Fifth Coast Guard District
Fireworks Displays, Middle River;
Baltimore County, MD
Coast Guard, DHS.
Frm 00037
The Coast Guard is proposing
a temporary change to the enforcement
periods and regulated areas of safety
zone regulations for a recurring
fireworks display within the Fifth Coast
Guard District. This regulation applies
to a recurring fireworks display event
that take place in Baltimore County,
MD. Safety zone regulations are
necessary to provide for the safety of life
on navigable waters during the event.
This action is intended to restrict vessel
traffic in portions of the Middle River
during the event.
DATES: Comments and related material
must be received by the Coast Guard on
or before June 28, 2013.
ADDRESSES: You may submit comments
identified by docket number using any
one of the following methods:
(1) Federal eRulemaking Portal:
https://www.regulations.gov.
(2) Fax: 202–493–2251.
(3) Mail or Delivery: Docket
Management Facility (M–30), U.S.
Department of Transportation, West
Building Ground Floor, Room W12–140,
1200 New Jersey Avenue SE.,
Washington, DC 20590–0001. Deliveries
accepted between 9 a.m. and 5 p.m.,
Monday through Friday, except federal
holidays. The telephone number is 202–
366–9329.
See the ‘‘Public Participation and
Request for Comments’’ portion of the
SUPPLEMENTARY INFORMATION section
below for further instructions on
submitting comments. To avoid
duplication, please use only one of
these three methods.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, call or
email Mr. Ronald Houck, Sector
Baltimore Waterways Management
Division, Coast Guard; telephone 410–
576–2674, email
Ronald.L.Houck@uscg.mil. If you have
questions on viewing or submitting
material to the docket, call Barbara
Hairston, Program Manager, Docket
Operations, telephone (202) 366–9826.
SUPPLEMENTARY INFORMATION:
SUMMARY:
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
33 CFR Part 165
PO 00000
Notice of Proposed Rulemaking.
Table of Acronyms
Coast Guard
AGENCY:
ACTION:
32219
Fmt 4702
Sfmt 4702
A. Public Participation and Request for
Comments
We encourage you to participate in
this rulemaking by submitting
comments and related materials. All
comments received will be posted
without change to https://
www.regulations.gov and will include
E:\FR\FM\29MYP1.SGM
29MYP1
]]>Agencies
[Federal Register Volume 78, Number 103 (Wednesday, May 29, 2013)]
[Proposed Rules]
[Pages 32214-32219]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-12708]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 151
[K00103 12/13 A3A10; 134D0102DR-DS5A300000-DR.5A311.IA000113; Docket
ID: BIA-2013-0005]
RIN 1076-AF15
Land Acquisitions: Appeals of Land Acquisition Decisions
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This proposed rule revises a section of regulations governing
decisions by the Secretary to approve or deny applications to acquire
land in trust under this part. This rule is appropriate to address
changes in the applicability of the Quiet Title Act as interpreted by a
recent United States Supreme Court decision. This rule revises a
regulatory provision the Department added in 1996 to ensure that
interested parties had the opportunity to timely seek judicial review
of decisions when available under the Administrative Procedure Act. The
Department had determined the provision was necessary because,
consistent with Federal court decisions at the time, once the Secretary
acquired title, the Quiet Title Act precluded judicial review of the
Secretary's decision to take the land into trust. The Supreme Court has
since held that the Quiet Title Act does not preclude timely
Administrative Procedure Act challenges to agency decisions to acquire
land in trust unless the aggrieved party claims an ownership interest
in the property at issue. This rule revises the regulation to reflect
this change in the law and to make other revisions to codify the
current process for issuing decisions approving or denying requests to
acquire land in trust under this part. It also broadens and clarifies
the notice of decisions to acquire land in trust under this part,
including broadening notice of any right to file an administrative
appeal.
DATES: Comments on this rule must be received by July 29, 2013.
ADDRESSES: You may submit comments by any of the following methods:
--Federal rulemaking portal: https://www.regulations.gov. The rule is
listed under the agency name ``Bureau of Indian Affairs.'' The rule has
been assigned Docket ID: BIA-2013-0005.
--E-Mail: consultation@bia.gov. Include the number 1076-AF15 in the
subject line of the message.
--Mail: Elizabeth Appel, Office of Regulatory Affairs & Collaborative
Action, U.S. Department of the Interior, 1849 C Street NW. Include the
number 1076-AF15 in the submission.
--Hand Delivery: Elizabeth Appel, Office of Regulatory Affairs &
Collaborative Action, U.S. Department of the Interior, 1849 C Street
NW. Include the number 1076-AF15 in the submission.
We cannot ensure that comments received after the close of the
comment period (see DATES) will be included in the docket for this
rulemaking and considered. Comments sent to an address other than those
listed above will not be included in the docket for this rulemaking.
FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Acting Director,
Office of Regulatory Affairs & Collaborative Action, (202) 273-4680;
elizabeth.appel@bia.gov.
SUPPLEMENTARY INFORMATION:
I. Executive Summary of Rule
Section 5 of the Indian Reorganization Act (IRA) (25 U.S.C. 465)
authorizes the Secretary of the Interior to acquire land in trust for
individual Indians and Indian tribes. The Department of the Interior's
regulations at 25 CFR part 151 implement this statutory provision, as
well as other statutes authorizing the acquisition of land in trust for
individual Indians and Indian tribes. In 1996, the Department revised
part 151 by procedural rulemaking. That procedural rule added a
paragraph (b) to Sec. 151.12, which established a 30-day waiting
period following publication of notice in the Federal Register or in a
newspaper of general circulation serving the affected area announcing
the final agency determination to take the subject
[[Page 32215]]
land into trust. Paragraph (b) was intended to ensure that interested
parties had the opportunity to seek judicial review under the
Administrative Procedure Act (APA) (5 U.S.C. 704) before the Secretary
acquired title to land in trust. See 61 FR 18082 (Apr. 24, 1996). The
Department had determined such rule was necessary because, at that
time, prevailing Federal court decisions found that the Quiet Title Act
(QTA), 28 U.S.C. 2409a, precluded judicial review of the decision after
the United States acquired title. See, e.g., Neighbors for Rational
Dev., Inc. v. Norton, 379 F.3d 956 (10th Cir. 2004); Metro Water Dist.
of S. Cal. v. United States, 830 F.2d 139 (9th Cir. 1987); Florida
Dep't of Bus. Regulation v. Dep't of the Interior, 768 F.2d 1248 (11th
Cir. 1985).
The legal landscape changed, however, on June 18, 2012, when the
Supreme Court issued its decision in Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak, 132 S. Ct. 2199 (2012). In that
decision, the Supreme Court held that the QTA is not a bar to APA
challenges to the Secretary's decision to acquire land in trust after
the United States acquires title to the property unless the aggrieved
party asserts an ownership interest in the land as the basis for the
challenge. Following Patchak, the 1996 procedural rule establishing a
30-day waiting period before taking land into trust to allow for APA
review is no longer needed because, if judicial review under the APA is
not precluded on some other basis, such as standing, timeliness, or a
failure to exhaust administrative remedies, judicial review of the
Secretary's decision is available under the APA even after the
Secretary has acquired title to the property.
This rule effectively repeals the 1996 procedural provision by
revising section 151.12 to:
Clarify the process depending upon whether the Assistant
Secretary--Indian Affairs or a Bureau of Indian Affairs official issues
the decision;
Clarify how decisions under this part become final for the
Department;
Ensure public notice of a BIA official decision to acquire
land into trust:
[cir] All interested parties who have made themselves known in
writing to the BIA official, as well as State and local governments
having regulatory jurisdiction over the land to be acquired, must
receive actual notice of the decision and the right to file an
administrative appeal, if any;
[cir] All parties who have not made themselves known in writing to
the BIA official will receive notice of the decision and right to
appeal, if any, through publication in a newspaper of general
circulation serving the affected area.
Make other changes to reflect more accurately the process
for issuing approval and denial decisions under this part.
II. Background on Challenges to Land-Into-Trust Decisions
A decision to acquire land in trust may be issued by the Assistant
Secretary--Indian Affairs (AS-IA) or by the BIA Director or other BIA
official with delegated authority to issue the decision. The means and
timelines for challenging the decision differ depending on whether the
decision is issued by the AS-IA or whether the decision is issued by a
BIA official.
If the AS-IA issues the decision under this part, then the
decision is a ``final agency determination,'' and the decision is final
for the Department. See 25 CFR 2.6(c). Decisions made by the AS-IA are
not subject to administrative review by the Interior Board of Indian
Appeals (IBIA).
If a BIA official decides to acquire land in trust, such
decision is not yet a ``final agency determination'' because interested
parties may appeal the decision under the administrative review process
set forth in 25 CFR part 2. Under part 2, interested parties have a 30-
day period in which to file an appeal of the BIA official's decision.
See 25 CFR 2.9. If no appeal is filed within the 30-day administrative
appeal period, then the BIA official's decision becomes final for the
Department. If an administrative appeal of a BIA official's decision is
timely filed and effective with the IBIA, then only after the IBIA
issues a final decision affirming the BIA official's decision does such
decision become final for the Department.
Once a decision is final for the Department, it is subject
to judicial review under the APA, as available. APA challenges must be
brought within the six year statute-of-limitations period applicable to
the APA. See 28 U.S.C. 2401(a).
III. Detailed Explanation of Rule
This rule revises Sec. 151.12 to remove procedural requirements
that are no longer necessary in light of the Patchak Supreme Court
decision and to increase transparency by better articulating the
process for issuing decisions to acquire land in trust under this part.
Specifically, this rule deletes the 30-day waiting period for
implementation of decisions to acquire land in trust after such
decisions are final for the Department, and broadens and clarifies
notice of decisions issued by BIA officials to acquire land in trust
under this part and the right, if any, of interested parties to appeal
such decisions pursuant to part 2 of this title.
A. Deleting the 30-Day Waiting Period
The current rule at Sec. 151.12 states that the Secretary of the
Interior shall review all requests and shall promptly notify the
applicant in writing of his decision. The Secretary may request any
additional information or justification he considers necessary to
enable him to reach a decision. If the Secretary determines that the
request should be denied, he shall advise the applicant of that fact
and the reasons therefor in writing and notify him of the right to
appeal pursuant to 25 CFR part 2. Following completion of the Title
Examination provided in Sec. 151.13 and the exhaustion of any
administrative remedies, the Secretary shall publish in the Federal
Register, or in a newspaper of general circulation serving the affected
area a notice of his/her decision to take land into trust under this
part. The notice will state that a final agency determination to take
land in trust has been made and that the Secretary shall acquire title
in the name of the United States no sooner than 30 days after the
notice is published.
As noted above, paragraph (b) was added in 1996 to add, after
decisions to acquire land in trust became final for the Department, a
30-day waiting period before the Secretary could acquire title to the
property to allow parties to seek judicial review of the Secretary's
decision under the APA. See 61 FR 18082 (Apr. 24, 1996). The stated
reason for adding this waiting period was because the United States'
position at the time was that the QTA precluded judicial review of the
Secretary's decision after the United States acquired title to the land
at issue. Id. The Supreme Court has since held that the QTA itself is
not a bar to judicial review under the APA unless the aggrieved party
asserts an ownership interest in the property. Following the Patchak
decision, this 30-day waiting period is now unnecessary because parties
may seek, to the extent it is available, judicial review of the
Secretary's decision under the APA even after the land is acquired by
the United States in trust. Accordingly, the proposed rule provides
that the Secretary shall, on or promptly after the decision to acquire
land in trust is final for the Department, complete the trust
acquisition pursuant to 25 CFR 151.14 after fulfilling the requirements
of 25 CFR 151.13 and any other Departmental requirements.
[[Page 32216]]
The Patchak decision is consistent with federal court cases that
preceded the decision holding that the QTA bars judicial review by
aggrieved parties seeking to quiet title to the property in themselves.
Because no change in the law has occurred in connection with these
parties, the proposed rule makes no changes to such parties' rights
under this part. Consistent with the Department's prior practice, the
Department will continue to conduct an exhaustive title examination
process in connection with decisions to acquire land in trust under
this part. This process identifies adverse landowners prior to the
decision so that their interests are addressed before the Secretary
issues a decision on the application. Therefore, the changes proposed
by this rule should have no effect on the rights of these parties.
B. Requiring Notification of Known and Unknown Interested Parties of
the Decision and Administrative Appeal Rights
Under existing regulations, BIA officials who issue decisions under
this part are required to provide known interested parties with written
notice of such decisions. See 25 CFR 2.7(a). The proposed rule requires
interested parties, as that term is currently defined in the part 2
regulations, to make themselves known to the BIA official in writing in
order to require the BIA official to provide this written notice to
them. For example, a party that submits written comments to the BIA
official in connection with a pending application has made itself
``known'' to the BIA official and will be provided written notice of
the decision when issued. If a BIA official's decision is subject to
administrative review by another BIA official, parties must make
themselves known in writing at each stage of administrative review. For
example, a party that makes itself known in writing to a BIA
Superintendent with the delegated authority to issue decisions under
this part must also make itself known to the BIA Regional Director if
the BIA Superintendent's decision has been appealed to the Regional
Director by another party. Notifications of decisions issued by BIA
officials will continue to include information concerning
administrative appeal rights, consistent with 25 CFR 2.7. Please note,
however, that inclusion of such information in the notice of decision
does not confer upon the recipient a right to a decision on the merits
of their claims. The right to a decision on the merits of a BIA
official's decision is still subject to standing, timeliness, and other
requirements limiting IBIA review of BIA officials' decisions.
With regard to notice to unknown interested parties, the revised
rule requires that, where the AS-IA issues the decision, a notice of
such decision will be published in the Federal Register. When a BIA
official issues a decision, a notice of such decision and a statement
of the right to an administrative appeal will be published in a
newspaper of general circulation addressing the affected area. The
newspaper notice will contain the same statement that is included in
the written notice of decision provided to known interested parties
regarding the right to appeal, if any. The time for unknown interested
parties to file a notice of appeal begins to run upon first publication
of such newspaper notice.
Lastly, the proposed rule also clarifies regulatory notice
requirements to require the BIA official to notify, by mail or personal
delivery, State and local governments having regulatory jurisdiction
over the land to be acquired and any right to appeal.
Consistent with 25 CFR 2.7(b), in the event the BIA official fails
to notify parties entitled to written notice of the decision, such
failure does not affect the validity of the decision; instead, the time
for filing a notice of appeal of the decision will not begin to run for
such parties until written notice has been provided.
C. Exhaustion of Administrative Remedies
When a BIA official issues the decision to acquire land in trust,
administrative remedies are available (as set forth in 25 CFR part 2)
and interested parties must first exhaust them before seeking judicial
review under the APA. Under 25 CFR part 2, interested parties have a
specific time period to appeal the BIA's decision to acquire land in
trust to the IBIA. Currently, that time period is 30 days. If
interested parties who have received written notice or notice by
newspaper publication fail to appeal within that timeframe, such
parties are precluded from seeking any judicial review available under
the APA because they failed to exhaust administrative remedies.
When the AS-IA issues decisions to acquire land in trust under this
part there are no administrative remedies to exhaust; such decisions
are final for the Department.
D. Summary of All Revisions to 151.12
Other changes to Sec. 151.12 are designed to increase transparency
and better reflect the current process for approving and denying
requests to take land into trust. The following table details all
revisions this proposed rule would make to Sec. 151.12.
----------------------------------------------------------------------------------------------------------------
Current Description of
Current 25 CFR Sec. provision Proposed 25 CFR Sec. change Reason for change
----------------------------------------------------------------------------------------------------------------
151.12(a)............ ``The 151.12(a)...................... Moves provision The revised version
Secretary regarding promptly describes the
shall review notifying the process of the
all requests applicant in Assistant
and shall writing of the Secretary issuing
promptly decision to (c) a decision in
notify the and (d). paragraph (c), and
applicant in the process of a
writing of BIA official
his issuing a decision
decision.'' in paragraph (d)
151.12(a)............ ``The 151.12(a)...................... No substantive N/A.
Secretary may change.
request any
additional
information
or
justification
he considers
necessary to
enable him to
reach a
decision.''
[[Page 32217]]
151.12(a)............ ``If the 151.12(b)...................... States generally This addition
Secretary that the reflects current
determines Secretary's practice, whereby
that the decision will be the decision and
request in writing and basis for the
should be state the reasons decision are in
denied, he for the decision, writing for the
shall advise so this record. Clarifies
the applicant requirement that only
of that fact applies regardless decisions from BIA
and the of whether the officials may be
reasons decision was an appealed under
therefor in approval or part 2. Decisions
writing and denial. Moves the by the Assistant
notify him of provision Secretary are
the right to regarding final for the
appeal notification of Department.
pursuant to appeal rights to
part 2 of (d)(1) (denial
this title.'' decision by BIA
official) and
(d)(2)(ii) and
(d)(2)(iii)
(approval decision
by BIA official).
151.12(b)............ ``Following 152.12(c) & (d)................ The requirement for The revised version
completion of a title places the
the Title examination has requirement for
Examination been moved to title examination
provided in (c)(2)(iii) and in paragraphs
Sec. 151.13 (d)(2)(iv)(B). relating to an
of this part approval decision
. . .'' by the Assistant
Secretary and an
approval decision
by the BIA
official.
151.12(b)............ ``. . . and 152.12(d)...................... The requirement for Clarifies that only
the exhaustion of decisions from BIA
exhaustion of administrative officials may be
any remedies has been appealed under
administrativ moved to (d), part 2. Decisions
e remedies . which is by the Assistant
. .'' applicable only to Secretary are
decisions issued final for the
by a BIA official. Department.
151.12(b)............ ``. . . the 151.12(c)(2)(ii) & (d)(2)...... The requirement to The addition of the
Secretary publish in the requirement for
shall publish Federal Register actual notice to
in the has been moved to known interested
Federal (c)(2)(ii) parties and State
Register, or (decisions by the and local
in a Assistant governments with
newspaper of Secretary). The jurisdiction is to
general requirement to ensure that all
circulation publish in a known interested
serving the newspaper has been parties receive
affected area moved to the notice
a notice of (d)(2)(iii) necessary for the
his/her (decisions by a administrative
decision to BIA official) and appeal period to
take land clarifies that any begin to run. This
into trust appeal period supplements 25 CFR
under this begins to run upon 2.7 by providing
part.'' first publication. that, for unknown
Also adds a interested
requirement for parties, the time
actual notice to for appeal begins
known interested to run upon
parties and State publication in the
and local newspaper. This
governments with exception is
jurisdiction over necessary because
the land to be notice by mail or
acquired of a BIA personal service
official's is not possible
decision to take for parties not
land into trust. known to the BIA
official.
151.12(b)............ ``The notice 151.12(c)...................... States that a The current rule's
will state decision issued by statement that the
that a final the Assistant decision is a
agency Secretary is final ``final agency
determination for the Department. determination''
to take land does not reflect
in trust has those cases where
been made and the decision is
. . .'' made by a BIA
official, which is
not a ``final
agency
determination'' at
the time of
issuance and may
be appealed
through the
Department's
administrative
appeals process.
151.12(b)............ ``. . . that 151.12(c)(2)(iii) & (d)(2)(iv). Deletes statement Deleting the 30-day
the Secretary that the Secretary waiting period
shall acquire will acquire title means the decision
title in the no sooner than 30 to take land into
name of the days after the trust may now be
United States notice is implemented as
no sooner published. soon as such
than 30 days Instead, provides decision becomes
after the that the Assistant final. This is
notice is Secretary will true regardless of
published.'' ``promptly'' how the decision
acquire land into becomes final for
trust at the Department,
(c)(2)(iii) and whether because
that the BIA the Assistant
official will Secretary issues
``promptly'' the decision, the
acquire land into IBIA issues a
trust when the final decision
decision is final, affirming the BIA
after the official's
administrative decision, or
appeal period following
expires or the expiration of the
appeal is decided administrative
or dismissed. appeal period for
which no
administrative
appeals are filed.
----------------------------------------------------------------------------------------------------------------
[[Page 32218]]
Upon finalization of the rule, revisions to the Fee-to-Trust
Handbook will be made to comport with the new notice procedures in this
rule, including the addition of broader notice requirements of
decisions issued by Bureau officials.
IV. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866 and 13563)
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) at the Office of Management
and Budget (OMB) will review all significant rules. OIRA has determined
that this rule is not significant.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The E.O. directs agencies to consider regulatory approaches that reduce
burdens and maintain flexibility and freedom of choice for the public
where these approaches are relevant, feasible, and consistent with
regulatory objectives. E.O. 13563 emphasizes further that regulations
must be based on the best available science and that the rulemaking
process must allow for public participation and an open exchange of
ideas. We have developed this rule in a manner consistent with these
requirements. This rule is also part of the Department's commitment
under the Executive Order to reduce the number and burden of
regulations and provide greater notice and clarity to the public.
B. Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
C. 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. It will not result in the
expenditure by State, local, or tribal governments, in the aggregate,
or by the private sector of $100 million or more in any one year. The
rule's requirements will not result in a major increase in costs or
prices for consumers, individual industries, Federal, State, or local
government agencies, or geographic regions. Nor will this rule have
significant adverse effects on competition, employment, investment,
productivity, innovation, or the ability of the U.S.-based enterprises
to compete with foreign-based enterprises because the rule is limited
to appeals of acquisitions of Indian land.
D. Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or tribal governments or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1531 et seq.) is not required.
E. Takings (E.O. 12630)
Under the criteria in Executive Order 12630, this rule does not
affect individual property rights protected by the Fifth Amendment nor
does it involve a compensable ``taking.'' A takings implication
assessment is therefore not required.
F. Federalism (E.O. 13132)
Under the criteria in Executive Order 13132, this rule has no
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. This rule
ensures notification to State and local governments of a BIA official's
decision to take land into trust and the right to administratively
appeal such decision.
G. Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of Executive Order 12988.
Specifically, this rule has been reviewed to eliminate errors and
ambiguity and written to minimize litigation; and is written in clear
language and contains clear legal standards.
H. Consultation With Indian Tribes (E.O. 13175)
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments,'' Executive Order 13175 (59 FR 22951, November 6, 2000),
and 512 DM 2, we have evaluated the potential effects on federally
recognized Indian tribes and Indian trust assets. During development of
the rule, the Department discussed the rule with tribal representatives
and will engage in further consultation as it reviews public comments.
I. Paperwork Reduction Act
This rule does not contain any information collections requiring
approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et
seq.
J. National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment because it is of an
administrative, technical, and procedural nature.
K. Effects on the Energy Supply (E.O. 13211)
This rule is not a significant energy action under the definition
in Executive Order 13211. A Statement of Energy Effects is not
required.
L. Clarity of This Regulation
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ``COMMENTS'' section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you believe lists or tables would be
useful, etc.
M. Public Availability of Comments
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
List of Subjects in 25 CFR Part 151
Indians--lands.
For the reasons stated in the preamble, the Department of the
Interior, Bureau of Indian Affairs,
[[Page 32219]]
proposes to amend part 151 in Title 25 of the Code of Federal
Regulations as follows:
PART 151--LAND ACQUISITIONS
0
1. The authority citation for part 151 continues to read as follows:
Authority: R.S. 161: 5 U.S.C. 301. Interpret or apply 46 Stat.
1106, as amended; 46 Stat.1471, as amended; 48 Stat. 985, as
amended; 49 Stat. 1967, as amended, 53 Stat. 1129; 63 Stat. 605; 69
Stat. 392, as amended; 70 Stat. 290, as amended; 70 Stat. 626; 75
Stat. 505; 77 Stat. 349; 78 Stat. 389; 78 Stat. 747; 82 Stat. 174,
as amended, 82 Stat. 884; 84 Stat. 120; 84 Stat. 1874; 86 Stat. 216;
86 Stat. 530; 86 Stat. 744; 88 Stat. 78; 88 Stat. 81; 88 Stat. 1716;
88 Stat. 2203; 88 Stat. 2207; 25 U.S.C. 2, 9, 409a, 450h, 451, 464,
465, 487, 488, 489, 501, 502, 573, 574, 576, 608, 608a, 610, 610a,
622, 624, 640d-10, 1466, 1495, and other authorizing acts.
0
2. Revise Sec. 151.12 to read as follows:
Sec. 151.12 Action on requests.
(a) The Secretary shall review each request and may request any
additional information or justification deemed necessary to reach a
decision.
(b) The Secretary's decision to approve or deny a request shall be
in writing and state the reasons for the decision.
(c) Decisions made by the Assistant Secretary--Indian Affairs are
final agency actions under the Administrative Procedure Act (5 U.S.C.
704) upon issuance.
(1) If the Assistant Secretary denies the request, the Assistant
Secretary shall promptly provide the applicant with the decision.
(2) If the Assistant Secretary approves the request, the Assistant
Secretary shall:
(i) Promptly provide the applicant with the decision;
(ii) Publish in the Federal Register a notice of the decision to
acquire land in trust under this part; and
(iii) Promptly acquire the land in trust under Sec. 151.14 on or
after the date such decision is issued and upon fulfillment of the
requirements of Sec. 151.13 and any other Departmental requirements.
(d) Decisions made by a Bureau of Indian Affairs official are not
final for the Department under part 2 of this title until
administrative remedies are exhausted or until the time for filing a
notice of appeal has expired and no appeal was filed.
(1) If the official denies the request, the official shall promptly
provide the applicant with the decision and notification of any right
to file an administrative appeal under part 2 of this title.
(2) If the official approves the request, the official shall:
(i) Promptly provide the applicant with the decision;
(ii) Provide written notice of the decision by mail or personal
delivery to
(A) Interested parties who have made themselves known, in writing,
to the official who made the decision; and
(B) The State and local governments having regulatory jurisdiction
over the land to be acquired. The notices sent pursuant to paragraphs
(d)(2)(ii)(A)-(B) of this section shall also inform the addressee of
the right, if any, to file an administrative appeal of such decision
pursuant to part 2 of this title;
(iii) Publish a notice in a newspaper of general circulation
serving the affected area of the decision to acquire land in trust
under this part and any right of other interested parties to file an
administrative appeal under part 2 of this title. For purposes of
calculating the appeal period, the date of first publication of the
notice shall be deemed the date of receipt of the decision for
interested parties who did not make themselves known, in writing, to
the official who made the decision;
(iv) Take the following actions to finalize the trust acquisition:
(A) If no administrative appeal is filed, the BIA official will
promptly take the land into trust under Sec. 151.14 after expiration
of the time for filing a notice of appeal and after fulfilling the
requirements of Sec. 151.13 and any other Departmental requirements.
(B) If an administrative appeal is filed, the BIA official will
take the land into trust under Sec. 151.14 promptly following an IBIA
decision affirming the decision, or dismissing the appeal, and after
fulfilling the requirements of Sec. 151.13 and any other Departmental
requirements.
Dated: May 23, 2013.
Kevin K. Washburn,
Assistant Secretary--Indian Affairs.
[FR Doc. 2013-12708 Filed 5-24-13; 11:15 am]
BILLING CODE 4310-6W-P
