Land Acquisitions: Appeals of Land Acquisition Decisions, 32214-32219 [2013-12708]

Download as PDF 32214 Federal Register / Vol. 78, No. 103 / Wednesday, May 29, 2013 / Proposed Rules 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: ■ tkelley on DSK3SPTVN1PROD with PROPOSALS 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: ■ VerDate Mar<15>2010 17:56 May 28, 2013 Jkt 229001 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: PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 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: http:// 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 E:\FR\FM\29MYP1.SGM 29MYP1 tkelley on DSK3SPTVN1PROD with PROPOSALS 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 VerDate Mar<15>2010 17:56 May 28, 2013 Jkt 229001 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 PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 32215 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. E:\FR\FM\29MYP1.SGM 29MYP1 32216 Federal Register / Vol. 78, No. 103 / Wednesday, May 29, 2013 / Proposed Rules 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) ..... tkelley on DSK3SPTVN1PROD with PROPOSALS 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. VerDate Mar<15>2010 18:49 May 28, 2013 Jkt 229001 PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 E:\FR\FM\29MYP1.SGM 29MYP1 Federal Register / Vol. 78, No. 103 / Wednesday, May 29, 2013 / Proposed Rules 32217 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) ..... tkelley on DSK3SPTVN1PROD with PROPOSALS 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. VerDate Mar<15>2010 17:56 May 28, 2013 Jkt 229001 PO 00000 Frm 00035 Fmt 4702 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. Sfmt 4702 E:\FR\FM\29MYP1.SGM 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. 29MYP1 32218 Federal Register / Vol. 78, No. 103 / Wednesday, May 29, 2013 / Proposed Rules 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.). tkelley on DSK3SPTVN1PROD with PROPOSALS 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 VerDate Mar<15>2010 17:56 May 28, 2013 Jkt 229001 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: http://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 http:// 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]


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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: http://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