Land Acquisitions: Appeals of Land Acquisition Decisions, 67928-67938 [2013-26844]

Download as PDF 67928 Federal Register / Vol. 78, No. 219 / Wednesday, November 13, 2013 / Rules and Regulations The Bureau of the Census (Census Bureau) is announcing the delay of the effective date of the final rule published March 14, 2013, scheduled to take effect on January 8, 2014, until April 5, 2014. This rule also announces the approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA) of modifications to an existing information collection and the collection of two new data elements in the Automated Export System (AES) under control number 0607–0152. DATES: The effective date of the final rule published on March 14, 2013, (78 FR 16366) is delayed until April 5, 2014. OMB approved the collection of two new data elements through the AES under control number 0607–0152 on May 6, 2013. ADDRESSES: Direct all written comments regarding the burden-hour estimates or other aspects of the collection-ofinformation requirements contained in this final rule to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at JJessup@doc.gov). FOR FURTHER INFORMATION CONTACT: Nick Orsini, Chief, Foreign Trade Division, U.S. Census Bureau, Room 6K032, Washington, DC 20233–6010, by phone (301) 763–6959, by fax (301) 763–6638, or by email <nick.orsini@census.gov>. SUPPLEMENTARY INFORMATION: The AES is the primary instrument used for collecting export trade data, which is used by the Census Bureau for statistical purposes only and by other federal government agencies for purposes of enforcing U.S. export laws and regulations. On March 14, 2013, the Census Bureau published a final rule amending its regulations to require new export reporting requirements. See 78 FR 16366. In particular, the rule implemented a requirement to report shipments of used self-propelled vehicles and temporary exports through the AES or through AESDirect. In addition, the rule required the reporting of two new data elements, license value (15 CFR 30.6(b)(15)) and ultimate consignee type (15 CFR 30.6(a)(28)), and modified the postdeparture filing requirements. These changes are being programmed in the Automated Commercial Environment for Exports. However, the functionality to support the revisions addressed in the FTR final rule published March 14, 2013, will not be completed by the original effective date of January 8, 2014. Therefore, the Census Bureau and U.S. Customs and Border Protection agreed to delay the emcdonald on DSK67QTVN1PROD with RULES SUMMARY: VerDate Mar<15>2010 16:11 Nov 12, 2013 Jkt 232001 effective date for this rule until April 5, 2014. As a result of this rule, the trade community does not have to comply with the requirements implemented by the March 14, 2013, final rule until April 5, 2014. This rule also announces OMB’s approval of amendments to the information collection requirements previously approved under OMB control number 0607–0152, and the implementation of two new data elements. The March 14, 2013, final rule implemented the mandatory filing of export information through the AES or through AESDirect for all shipments of used self-propelled vehicles and for temporary exports. In addition, the final rule outlined the reporting of two additional fields, license value (15 CFR 30.6(b)(15)) and ultimate consignee type (15 CFR 30.6(a)(28)), and modified the postdeparture filing requirements. OMB approved these information collection requirements on May 6, 2013. Executive Orders This rule has been determined to be not significant for purposes of Executive Order 12866. It has been determined that this rule does not contain policies with federalism implications as that term is defined under Executive Order 13132. Dated: November 6, 2013. John H. Thompson, Director, Bureau of the Census. BILLING CODE 3510–07–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: Final rule. AGENCY: This final 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 addresses changes in the applicability of the Quiet Title Act as interpreted by a recent United States Supreme Court decision and broadens and clarifies the notice of decisions to acquire land in trust, PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 I. Executive Summary of Rule II. Background III. Explanation of the New Rule A. Deleting the 30-Day Waiting Period B. Requiring Notification of Known and Unknown Interested Parties of the Decision and Administrative Appeal Rights C. Exhaustion of Administrative Remedies IV. Comments on the Proposed Rule and Responses V. Procedural Requirements A. Regulatory Planning and Review (E.O. 12866 and 13563) B. Regulatory Flexibility Act C. Small Business Regulatory Enforcement Fairness Act D. Unfunded Mandates Reform Act E. Takings (E.O. 12630) F. Federalism (E.O. 13132) G. Civil Justice Reform (E.O. 12988) H. Consultation With Indian Tribes (E.O. 13175) I. Paperwork Reduction Act J. National Environmental Policy Act K. Effects on the Energy Supply (E.O. 13211) I. Executive Summary of Rule [FR Doc. 2013–27122 Filed 11–12–13; 8:45 am] SUMMARY: including broadening notice of any right to file an administrative appeal. DATES: This rule is effective on December 13, 2013. FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Office of Regulatory Affairs & Collaborative Action, (202) 273–4680; elizabeth.appel@bia.gov. SUPPLEMENTARY INFORMATION: 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 of the IRA, as well as other statutes authorizing the acquisition of land in trust. Prior to 1996, the Department announced decisions to take land into trust simultaneously with the action of taking the land into trust. According to then-prevailing court decisions, once the land was taken in trust, judicial review was very limited. Consequently, the Department decided to create a timelimited opportunity for judicial review. In 1996, the Department revised part 151 by procedural rulemaking. In response to State of South Dakota v. U.S. Department of the Interior, 69 F.3d 878 (8th Cir. 1995), the Department established a procedure to ensure the opportunity for judicial review of administrative decisions to acquire title to lands in trust for Indian tribes and individual Indians. 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 E:\FR\FM\13NOR1.SGM 13NOR1 emcdonald on DSK67QTVN1PROD with RULES Federal Register / Vol. 78, No. 219 / Wednesday, November 13, 2013 / Rules and Regulations general circulation serving the affected area announcing the final agency determination to take the subject land into trust. Paragraph (b) was intended to provide a brief window of time in which 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 a rule was necessary because, at that time, prevailing Federal court decisions found that the law 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 on June 18, 2012, when the Supreme Court issued its decision in Match-E-Be-NashShe-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199 (2012) (‘‘Patchak’’). In that decision, the Supreme Court held that the Quiet Title Act (QTA), 28 U.S.C. 2409a, nor Federal sovereign immunity is 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 is no longer needed because interested parties may have the opportunity to seek judicial review of the Secretary’s decision under the APA even after the Secretary has acquired title to the property. On May 29, 2013, the Bureau of Indian Affairs (BIA) published a proposed rule that would remove the 30-day waiting period and make other changes to clarify the Department’s process for issuing trust acquisition decisions. 78 FR 32214. BIA then extended the original comment deadline of July 29, 2013 to September 3, 2013. See 78 FR 49990 (Aug. 16, 2013). Following tribal consultation and analysis of comments on the proposed rule, the BIA is now publishing a final rule. This final rule revises section 151.12 to: • Provide clarification and transparency to the process for issuing decisions by the Department, whether the decision is made by the Secretary, Assistant Secretary—Indian Affairs (AS–IA), or a Bureau of Indian Affairs (BIA) official; VerDate Mar<15>2010 16:11 Nov 12, 2013 Jkt 232001 • Ensure notice of a BIA official decision to acquire land into trust, and the right, if any, to file an administrative appeal of such decision by requiring written notice to 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, and expanding notice through newspaper publication; and • Repeal the 1996 procedural provision and make explicit that parties must exhaust administrative remedies prior to pursuing judicial review for BIA trust acquisitions. II. Background Congress enacted the IRA in 1934 to halt and remedy the devastating effects of prior policies of allotment and assimilation and to secure for all Indian tribes a land base on which to engage in economic development and selfdetermination. During the allotment era, Indian-owned lands diminished drastically. Even today, most tribes lack an adequate tax base to generate government revenues, and others have few opportunities for economic development. Trust acquisition of land provides a number of economic development opportunities for tribes, helps generate revenues for public purposes, and helps protect tribal culture and ways of life (e.g., housing for tribal citizens, energy and natural resource development, protections for subsistence hunting and agriculture). This Administration has earnestly sought to advance the IRA policy goals of protecting and restoring tribal homelands and promoting tribal selfdetermination. The Secretary’s authority to acquire lands in trust for all Indian tribes, and ability to provide certainty concerning the status of and jurisdiction over Indian lands, reaches the core of the Federal trust responsibility. To carry out the Secretary’s delegated authority under the IRA, decisions to acquire land in trust are delegated either to the AS– IA or to a BIA official. The vast majority of trust acquisition decisions are delegated to and issued by BIA officials. Only a small percentage of decisions are reviewed and considered by the AS–IA. These decisions involve extensive public participation and several layers of review by Department officials before issuance. The existing regulations that apply to all AS–IA and BIA decisions include different means and timelines for challenging decisions depending on whether the decision is issued by the AS–IA or a BIA official. This final rule clarifies these distinctions within the context of trust acquisition decisions. PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 67929 • If the AS–IA issues the decision under this part, the decision is a ‘‘final agency determination,’’ and the decision is final for the Department. See 25 CFR 2.6(c). A party may then seek judicial review of this decision under the APA. • If a BIA official issues the decision under this part, the decision is subject to the administrative exhaustion requirements of 25 CFR part 2 before it becomes a ‘‘final agency determination.’’ Under these regulatory requirements, 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 with the IBIA 1 (and not precluded due to some other legal or procedural reason, such as standing), then the BIA official’s decision is final for the Department after the IBIA affirms the decision.2 Today’s rulemaking makes explicit the requirement that prior to seeking judicial review of a BIA official’s decision, a party must first exhaust the administrative remedies available under 25 CFR part 2. III. Explanation of the New Rule This rule revises § 151.12 to remove procedural requirements that are no longer necessary in light of Patchak and to increase transparency regarding the process for issuing decisions to acquire land in trust under this part. For clarity purposes, this preamble will refer to the regulatory provision codified at § 151.12 in effect from 1996 until the effective date of this final rule as ‘‘the existing rule’’ and will refer to the final rule published today as the ‘‘final rule’’ or ‘‘new rule.’’ A. Deleting the 30-Day Waiting Period The existing rule provides that the Secretary shall publish a notice of the decision to take land into trust and that the Secretary would acquire title to the subject property no sooner than 30 days after the notice was published. This 30day waiting period was added to § 151.12 in 1996 to allow parties to seek judicial review of the Secretary’s 1 In those cases in which the Superintendent first issued the decision, the administrative appeal would first be filed with the Regional Director. If the Regional Director affirms the Superintendent’s decision, an administrative appeal of the Regional Director’s decision could then be filed with the IBIA. 2 Department regulations provide that the Secretary may take jurisdiction over any matter pending before the Department under 43 CFR 4.5, and that the AS–IA may take jurisdiction from IBIA to review a BIA official decision under 25 CFR 2.20. E:\FR\FM\13NOR1.SGM 13NOR1 67930 Federal Register / Vol. 78, No. 219 / Wednesday, November 13, 2013 / Rules and Regulations decision under the APA. See 61 FR 18082 (Apr. 24, 1996). The United States’ position at the time, consistent with the position of several Federal circuit courts of appeal, was that the QTA precluded judicial review of the Secretary’s decision if the United States held title to the land at issue. Id. The Supreme Court has since held in Patchak that the Indian lands exception to the QTA’s waiver of United States sovereign immunity for quiet title actions does not itself bar judicial review under the APA of the Department’s decision to acquire land in trust unless the aggrieved party seeks to quiet title to the subject property. In light of this decision, waiting 30 days after the issuance of a final trust acquisition decision before the Department take the land into trust is now unnecessary. Accordingly, the new rule provides that the Secretary shall, immediately 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. B. Requiring Notification of BIA Officials’ Decisions and Administrative Appeal Rights to Known and Unknown Interested Parties 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). To ensure that such parties are receiving written notice, the new rule requires interested parties, as that term is currently defined in part 2, to make themselves known to the BIA official in writing in order to receive written notice of the BIA official’s decision.3 Interested parties need only provide written notification to the BIA official prior to the decision being made.4 Notices of BIA officials’ decisions will continue to include information concerning the process for filing an administrative appeal of the decision, consistent with 25 CFR 2.7(c). Interested parties who appeal a BIA official’s decision must meet standing, timeliness, and other requirements that may limit IBIA review of BIA officials’ decisions. See, e.g., Skagit County v. Nw. Reg’l Dir., 43 IBIA 62, 77 (May 24, 2006) (dismissing appeal on standing grounds due to county’s failure to establish that the alleged harm was caused by the decision to acquire land in trust); No More Slots et al. v. Pac. Reg’l Dir., 56 IBIA 233, 242–43 (Mar. 18, 2013) (dismissing appeals as untimely). The final rule adds the new requirement that when a BIA official approves a trust acquisition application, the official will publish notice of that decision in a newspaper of general circulation serving the affected area to reach unknown interested parties. 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, if any, to appeal. The time for unknown interested parties to file a notice of appeal begins to run upon the date of first publication of such newspaper notice. under 25 CFR part 2 to challenge a BIA official’s decision, and an interested party must first exhaust them before seeking judicial review under the APA. The new rule makes this requirement explicit. Under 25 CFR part 2, interested parties have 30 days from the date they receive notice of the BIA official’s decision to file an administrative appeal of such decision. If interested parties fail to appeal within that timeframe, judicial review is unavailable due to the failure to exhaust administrative remedies. See Darby v. Cisneros, 509 U.S. 137 (1993); Klaudt v. U.S. Department of the Interior, 990 F.2d 409, 411–12 (8th Cir. 1993); Fort Berthold Land & Livestock Ass’n v. Anderson, 361 F.Supp.2d 1045, 1051– 52 (D.N.D. 2005). When the AS–IA issues a decision to acquire land in trust under this part, the decision is final for the Department and not subject to administrative review under part 2 of this title. Still, the existing rule requires publication of notice of such a decision in either the Federal Register or a newspaper of general publication. In practice, AS–IA broadly fulfills this publication requirement by publishing notice of its decision in the Federal Register. The new rule explicitly codifies this practice. Other changes to § 151.12 are designed to increase transparency, better reflect the process for acquiring land in trust, and respond to comments, as described in the following section. C. Exhaustion of Administrative Remedies Under the existing rule, administrative remedies are available The following table details all revisions this new rule would make to § 151.12, including changes from the proposed rule to the final rule. D. Summary of All Revisions to 151.12 Existing 25 CFR § Existing provision Description of change from existing Proposed 25 CFR § Final 25 CFR § 151.12(a) ............ ‘‘The Secretary 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.’’. Moves provision regarding promptly notifying the applicant in writing of the decision to (c) and (d). 151.12(a) ......... 151.12(a) ......... No substantive change from proposed. No substantive change from existing. 151.12(a) ......... 151.12(a) ......... No substantive change from proposed. emcdonald on DSK67QTVN1PROD with RULES 151.12(a) ............ 3 For example, a party that submits written comments to the BIA official in connection with a pending application has made itself ‘‘known’’ to the VerDate Mar<15>2010 16:11 Nov 12, 2013 Jkt 232001 BIA official and will be provided written notice of the decision when issued. 4 Interested parties may contact the regional BIA office tasked with serving the applicant to obtain PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 Description of change from proposed the name and contact information of the BIA official responsible for issuing a decision on the application. Contact information for the BIA and its regional offices can be found at www.bia.gov. E:\FR\FM\13NOR1.SGM 13NOR1 Federal Register / Vol. 78, No. 219 / Wednesday, November 13, 2013 / Rules and Regulations 67931 Existing 25 CFR § Existing provision Description of change from existing Proposed 25 CFR § Final 25 CFR § 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) & (d) 151.12(b) & (d) No substantive change from proposed. 151.12(b) ............ ‘‘Following completion of the Title Examination provided in § 151.13 of this part * * *’’. ‘‘. . . and the exhaustion of any administrative remedies. . .’’. 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). 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 now occurs when BIA issues a decision to acquire land in trust, with notice of the opportunity to administratively appeal, rather than when the decision is final. Clarifies that any appeal period begins to run upon first publication. Also clarifies and expands BIA’s existing practice of providing written 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. States that a decision issued by the Assistant Secretary is final for the Department. 152.12(c) & (d) 152.12(c) & (d) No substantive change from proposed. 152.12(d) ......... 151.12(d) ......... Adds explicit reference to exhaustion in (d)(2)(iv). 151.12(c) & (d) 151.12(c) & (d) Moves clarification of when the appeal period begins to run to a new (d)(3). 151.12(c) ......... 151.12(c) ......... No substantive change from proposed. 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(b) ............ emcdonald on DSK67QTVN1PROD with RULES 151.12(b) ............ ‘‘The notice will state that a final agency determination to take land in trust has been made and . . .’’. VerDate Mar<15>2010 16:11 Nov 12, 2013 Jkt 232001 PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 E:\FR\FM\13NOR1.SGM 13NOR1 Description of change from proposed 67932 Federal Register / Vol. 78, No. 219 / Wednesday, November 13, 2013 / Rules and Regulations Existing 25 CFR § Existing provision Description of change from existing Proposed 25 CFR § Final 25 CFR § Description of change from proposed 151.12(b) ............ ‘‘. . . that the Secretary shall acquire title in the name of the United States no sooner than 30 days after the notice is published.’’. Deletes statement that the Secretary will acquire title no sooner than 30 days after the notice is published. Instead, provides at (c)(2)(iii) that the Assistant Secretary will ‘‘immediately’’ acquire land into trust and provides at (d)(2)(iv) that the BIA official will ‘‘immediately’’ acquire land into trust upon expiration of the time for filing a notice of appeal or upon exhaustion of administrative remedies under part 2 of this title, and upon the fulfillment of Departmental requirements. 151.12(c) & (d) 151.12(c) & (d) Changes ‘‘promptly’’ to ‘‘immediately’’ in (c)(2)(iii) and (d)(2)(iv). emcdonald on DSK67QTVN1PROD with RULES IV. Comments on the Proposed Rule and Responses We received 38 comment submissions from Indian tribes and Indian or tribal organizations; 16 from State, county, or local governments and organizations representing such governments; and 12 from members of the public, including individuals, advocacy groups and other organizations. Most tribal commenters were generally supportive of the rule, while most State, county, or local governments and organizations and members of the public were opposed to the rule. This section summarizes and addresses the comments received. Support—General, Elimination of 30Day Waiting Period Following AS–IA Decision Commenters in support of the rule noted that the proposed changes achieve greater transparency and certainty for tribes. These commenters noted that, under Patchak, challengers to trust acquisitions may initiate an APA lawsuit at any point during the six-year statute of limitations period following a final decision to acquire the land in trust. According to the tribal commenters, this threat of potential litigation during the six years following the issuance of a final decision creates uncertainty in the trust status of the property, discourages financial institutions from investment, and thereby frustrates tribes’ ability to develop their trust lands in a productive, efficient manner for housing, economic development, or other purposes. These tribes believe the rule’s elimination of the 30-day waiting period following the issuance of final trust acquisition decisions adds some measure of certainty by ensuring the VerDate Mar<15>2010 16:11 Nov 12, 2013 Jkt 232001 land is placed into trust as soon as possible. Several tribal commenters noted that the rule does not completely remedy the situation created by Patchak, but encourages prompt administrative and judicial review of trust acquisition decisions. Opposition—General, Elimination of 30Day Waiting Period Following AS–IA Decision Some commenters, many of whom were State and local governments, advocated for reexamining and revising all of part 151 and objected to ‘‘piecemeal’’ revisions. Some of these commenters expressed that the interests of State and local governments in tax revenues and regulatory jurisdiction, as well as ‘‘social and financial issues’’ affecting the tribal and non-tribal communities, are equally important to the goal to restore tribal homelands. Response: As described in the Background section of this preamble, restoration of tribal homelands is a policy goal of the IRA, which has provided authority for acquiring land in trust for nearly eight decades. The IRA reflects the unique relationship between the Federal Government and Indians and Indian tribes. The existing framework set forth in part 151 reflects this policy goal and provides for consideration of State and local government concerns. The existing part 151 process provides State and local governments the opportunity to submit comments as to the proposed acquisition’s potential impacts on regulatory jurisdiction, real property taxes, and special assessments, and also requires the Secretary to consider jurisdictional problems and any potential conflicts of land use that may PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 arise in connection with the acquisition. The Supreme Court has recognized this process as ‘‘sensitive to the complex inter-jurisdictional concerns that arise when a tribe seeks to regain sovereign control over territory.’’ City of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197, 220–21 (2005). The final rule does not change this process. As such, we have determined that this narrow revision appropriately addresses the change in legal landscape following Patchak. Some commenters provided various reasons why the 30-day period should be retained (e.g., to allow for the opportunity to negotiate or to identify whether contingencies in an agreement between the tribe and State or local government have been met). Some commenters also claimed eliminating the 30-day period will force a party to file for preliminary relief from a district court prior to the Department’s decision, when ripeness is an issue—resulting in an inefficient use of party and judicial resources. Response: The new rule does not eliminate the opportunity for a negotiated resolution of issues prior to the issuance of a final decision to acquire land in trust. State and local governments receive notice of the submission of a trust acquisition application, and a State or local government may negotiate with the applicant to resolve any disagreements or address any contingencies prior to the issuance of a final decision to acquire land in trust. Post-Patchak, a party can seek judicial review of a final decision to acquire land in trust under the APA regardless of the trust status of the land at issue. The parties may determine for themselves whether E:\FR\FM\13NOR1.SGM 13NOR1 Federal Register / Vol. 78, No. 219 / Wednesday, November 13, 2013 / Rules and Regulations emcdonald on DSK67QTVN1PROD with RULES pursuing an injunction is an efficient use of resources in any particular case. Several commenters recounted the history leading up to the addition of the 30-day waiting period to § 151.12 in 1996, noting that it cured a ‘‘legal infirmity’’ by providing a clear avenue for judicial review. A few commenters asserted that the rule is seeking to ‘‘nullify’’ or circumvent the Supreme Court’s decision in Patchak. Response: We generally agree with the history of the 1996 rulemaking as recounted by these commenters, but the legal and practical basis for the 30-day waiting period added to § 151.12 in 1996 no longer exists following the Patchak decision. The new rule accepts and implements the Court’s holding in Patchak by removing a provision made unnecessary by the Court’s ruling. A few tribal commenters stated that there is no compelling reason to revise the rule and risk re-litigation of the constitutionality of the Secretary’s authority to acquire land in trust under the IRA. Some commenters stated that the timing of the rule is ill-advised given recent changes in the law related to trust acquisitions under the IRA, including the Supreme Court decision, Carcieri v. Salazar. Response: The constitutionality of the Secretary’s authority to acquire land in trust under the IRA is settled. See, e.g. Michigan Gaming Opposition v. Kempthorne, 525 F.3d 23, 33 (D.C. Cir. 2008); South Dakota v. United States Dep’t of Interior, 423 F.3d 790, 799 (8th Cir. 2005); Shivwits Band v. Utah, 428 F.3d 966, 972–74 (10th Cir. 2005). The new rule simply clarifies the Secretary’s exercise of that authority. Self-Stay of Decisions Several commenters opposed changing the Department’s prior practice of, in some instances, agreeing to stay the implementation of a trust acquisition decision after the expiration of the 30-day waiting period in § 151.12 during the pendency of a lawsuit challenging the decision. Other commenters supported ending the current practice, stating that it essentially provided parties who merely file a complaint with several years of de facto injunctive relief, without meeting the burden of proving such relief is warranted. Response: The Department agrees that the self-stay practice could result in several years of de facto injunctive relief for a potentially meritless claim, and, like other Federal agencies (including decisions involving the Federal Government acquiring land), wishes to implement its final decision upon issuance. Agencies typically do not stay implementation of their VerDate Mar<15>2010 16:11 Nov 12, 2013 Jkt 232001 decisions for the duration of the applicable statute-of-limitations period, and the new rule will require that the Department implement its decision upon the fulfillment of the necessary requirements. Make All Decisions Effective Immediately (Even at BIA Level) Several tribal commenters suggested that the new rule should make trust acquisition decisions issued by BIA officials effective immediately and require interested parties that appeal the decision to affirmatively seek a preliminary injunction from the IBIA to stay the implementation of the decision during the pendency of the IBIA appeal. Commenters posited that these procedures would encourage early decisions on the merits of an appeal and shift the burden to appellants to stay the full implementation of the trust acquisition decision. These commenters pointed to 43 CFR 4.21 as an example of a process and related standards that could be adopted in the trust acquisition context. Response: The new rule retains the existing administrative appeal process for BIA officials’ decisions. Administrative review of BIA officials’ trust acquisition decisions before land is taken into trust is appropriate because it ensures consistency in the decisionmaking across BIA regions and addresses any procedural errors before the decision becomes final for the Department. Judicial Review Prior to Implementation of Decision Some commenters stated that the action of acquiring the land in trust prior to judicial review compromises the litigants’ ability to achieve due process and a fair and impartial hearing. One commenter stated that this rule would allow land to be put into trust for a controversial gaming project without any prior hearing before a court. Several commenters specifically asserted that the rule violates section 705 of the APA because it allows for transfer into trust before an affected party could file a lawsuit challenging the decision, thereby depriving courts of ‘‘their authority to review trust transfers.’’ Response: Under the new rule, the transfer of the land into trust may occur before a lawsuit has been filed challenging the decision. The Patchak decision makes clear that absent other legal or procedural barriers, judicial review of a final decision to acquire land in trust may be available under the APA regardless of the trust status of the land. Also, under the part 151 process, State and local governments receive notice of the application and may PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 67933 submit comments for consideration by the decision-maker, whether AS–IA or a BIA official. With respect to comments regarding the applicability of APA section 705, we disagree that plaintiffs have a right to injunctive relief under that section. See, e.g., Corning Savings & Loan Ass’n v. Federal Home Loan Bank Board, 562 F. Supp. 279 (E.D. Ark. 1983). Availability of Remedy Several commenters expressed concern that remedies or meaningful relief would not be available once the land is taken into trust because the tribe could assert sovereign immunity, opt not to intervene in a lawsuit challenging the trust acquisition, and/or proceed with development of the property in a manner not permitted under State or local law, creating ‘‘facts on the ground,’’ and arguing reliance on the approval and vested interests. Response: These comments rely on several assumptions, including the assumption that the decision to take land into trust is not valid. We believe the reasons favoring the removal of the 30-day waiting period, as stated elsewhere in this preamble, outweigh the speculative risks put forward by the commenters’ hypothetical scenarios and potential outcomes. Opportunity for Judicial Review of Claims Still Barred by the Quiet Title Act Several commenters pointed out that, following Patchak, parties who seek to quiet title to the property to be acquired in trust are still barred by the Indian lands exception to the QTA’s waiver of United States sovereign immunity from suit, and that such parties would be precluded from challenging the trust acquisition decision once the transfer of the land into trust occurs. These commenters further stated that the mechanisms available to prevent a trust acquisition when there is a competing property interest could fail, leaving the party claiming the competing interest without a judicial remedy. Response: The decision-making process set forth at part 151 requires a thorough title examination prior to the issuance of a decision. The Department takes all reasonable and necessary steps to uncover any adverse claims to the property before acquiring the land in trust. In addition, the applicant secures title insurance for the property, adding another measure of certainty that the applicant and the decision-maker have taken all reasonable and necessary steps to ensure that anyone with a competing interest in the property is identified, and their interest is resolved, prior to E:\FR\FM\13NOR1.SGM 13NOR1 67934 Federal Register / Vol. 78, No. 219 / Wednesday, November 13, 2013 / Rules and Regulations the transfer of the property into trust. Given the exhaustive nature of the title examination process and the limitations of judicial remedies on persons who do not record their property interests, the likelihood that a person with a valid competing interest in the property will not be identified is too low to justify delaying implementation of every final decision. emcdonald on DSK67QTVN1PROD with RULES Constitutional ‘‘Taking’’ A few commenters stated that the rule raises constitutional ‘‘takings’’ issues because the land is ‘‘taken’’ into trust without judicial review. One commenter asked how an acquisition decision could be issued for land that is not owned by the tribal applicant. Another commenter stated that a ‘‘takings implication assessment’’ under E.O. 12630 is required because a party whose adverse claim in the property is not identified and addressed during the title examination would be precluded from judicial review under the Quiet Title Act. Response: Land acquisitions completed pursuant to 25 U.S.C. 465 are voluntary transactions and do not involve the exercise of the eminent domain authority of the United States. In all cases, the land at issue is voluntarily transferred from the applicant or another party to the United States to be held in trust for the applicant. The Department takes all reasonable and necessary steps to identify and resolve competing claims on the property before issuing a decision to acquire the land in trust and completing such trust transfer. Exhaustion of Administrative Remedies Several commenters objected to the exhaustion of administrative remedies requirement, stating that the rule precludes legal challenges and insulates BIA decisions from judicial review. Other commenters suggested that the exhaustion requirement be more explicit in the rule. Response: The existing rule includes the requirement that interested parties exhaust administrative remedies under 25 CFR part 2 and was reflected in administrative and judicial decisions. This final rule adopts the suggestion that we highlight this requirement for parties who oppose a BIA decision, making the law in this area more transparent and giving parties more knowledge of the ramifications of failing to make a timely appeal. Applicability of Quiet Title Act to State and Local Governments Several commenters asserted that justification for the rule is flawed because there is still ‘‘substantial uncertainty’’ as to the application of VerDate Mar<15>2010 16:11 Nov 12, 2013 Jkt 232001 Patchak in specific fact situations, involving State or local governments. Response: The Department will not speculate on how a court may apply Patchak in hypothetical fact situations. Who the Decision Maker Should Be Some commenters recommended that the AS–IA issue all trust acquisition decisions because the process for administrative review of BIA officials’ decisions is slow, extending the timeframe of uncertainty regarding the trust status of the property. These commenters were also concerned that future Administrations may require that all trust acquisition decisions be decided by BIA officials to delay the finality of trust acquisition decisions. Response: Requiring administrative review of BIA officials’ trust acquisition decisions is appropriate for reasons stated elsewhere herein. Moreover, the exhaustion requirement ensures that opponents of the trust acquisition decision must file a timely administrative appeal before seeking judicial review. This requirement addresses the risk stemming from Patchak that lawsuits challenging decisions will not be filed until years after the decisions are made. Some commenters stated that they would like the rule to specify when AS– IA will be the decision maker. Response: We did not accept this suggestion, as AS–IA retains discretion to issue any decision. One commenter suggested the Deputy Assistant Secretary should issue all decisions that AS–IA would otherwise decide, to allow the decisions to be administratively appealed to the IBIA. Response: AS–IA retains the discretion to issue a decision or assign responsibility to a Deputy Assistant Secretary to issue the decision under 25 CFR 2.20(c). Trust acquisition decisions issued by the AS–IA involve several levels of internal review prior to issuance. Finality of AS–IA Decisions A few commenters noted that AS–IA decisions are generally final for the Department unless AS–IA ‘‘provides otherwise in the decision’’ under 25 CFR 2.6(c). One commenter noted that an interested party may administratively appeal a BIA official’s decision except, among other limitations, when it is approved in writing by the Secretary or AS–IA under 43 CFR 4.331(b). The commenters suggested clarifying this in the rule. Response: We have not incorporated this into the new rule because AS–IA trust acquisition decisions are final for the Department when issued. The AS–IA retains the PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 discretion to approve a BIA decision in writing, making it final for the Department. Administrative Appeal Delays Several commenters requested adding a provision that would allow tribes to opt out of the administrative appeals process and have AS–IA take jurisdiction, without the time restrictions currently in place at 25 CFR 2.20. Some requested allowing tribes to opt out if IBIA fails to issue a decision by a deadline. Response: We determined that an opt-out provision would not be appropriate, to retain both AS–IA’s discretion under 25 CFR 2.20 and the mandatory requirement that administrative remedies be exhausted by any party who wishes to seek judicial review. A commenter suggested mandating that IBIA summarily dismiss appeals that are filed for the purpose of impeding the right of tribes to make use of their trust lands. Response: We did not incorporate this comment because it is unclear whether IBIA could summarily determine the intent of an appeal without a full look at the merits. Moreover, changing IBIA procedure is outside the scope of this rule. Taking Land Out of Trust Several commenters questioned whether the Department has authority to convey land out of trust as a result of an APA challenge and opined on whether Patchak affects that authority to take land out of trust. Response: Patchak did not decide, or even consider, whether the Secretary is authorized to take land out of trust. If a court determines that the Department erred in making a land-into-trust decision, the Department will comply with a final court order and any judicial remedy that is imposed. Effect on the Trust Relationship A few tribal commenters stated that challenging the decision to acquire land in trust is less intrusive to the trust relationship than challenging the status of lands already held in trust. Response: Balancing these few comments with the overwhelming support of other tribes, the Department has determined that taking the land into trust as soon as possible after a final positive trust acquisition decision supports our trust relationship more than an open-ended stay of the trust transfer in all cases. One tribal commenter stated that the rule does not account for situations where one tribe challenges a decision to take another tribe’s land into trust on the basis that it would violate the Federal trust responsibility owed to the E:\FR\FM\13NOR1.SGM 13NOR1 Federal Register / Vol. 78, No. 219 / Wednesday, November 13, 2013 / Rules and Regulations opposing tribe and challenges such tribe’s jurisdictional authority. Response: These issues are considered during the part 151 decision-making process. See 25 CFR 151.8, 151.10. emcdonald on DSK67QTVN1PROD with RULES How Soon After Decision Land Is Taken Into Trust Some tribal commenters requested that the rule require the Secretary to ‘‘immediately’’ take land into trust following the decision to acquire land into trust, rather than ‘‘promptly.’’ Response: We have incorporated this suggestion in the regulatory text, subject to the fulfillment of Departmental requirements once the decision is issued. Another tribal commenter suggested changing ‘‘shall’’ promptly acquire the land into trust to ‘‘may’’ to allow the Secretary more flexibility. Response: Retaining the word ‘‘shall’’ to require prompt acquisition of the land better supports IRA policy goals, as previously discussed. A few commenters noted that the proposed rule states that the AS–IA will take land into trust ‘‘on or after’’ the decision and fulfillment of requirements, while BIA will take the land into trust ‘‘upon fulfillment’’ of the requirements. These commenters suggested imposing a time limit on taking land into trust. Response: The date when decisions of BIA officials become final for the Department varies because such decisions are subject to administrative review and, during the period between the date the BIA official issues a decision and the date such decision is final for the Department, issues may arise that require resolution prior to the trust transfer. For these reasons, we decided not to adopt the suggestion that we impose a time limit on taking land in trust; however, we have slightly changed the text of the rule to make temporal requirements as consistent as possible. A few tribal commenters requested clarification of the ‘‘other Departmental requirements’’ that the Department must comply with before taking land into trust, deleting this phrase, or replacing it with ‘‘statutory and regulatory requirements.’’ Response: Departmental trust requirements may change in the future by statute, through notice and comment rulemaking, or through established procedures for changing Departmental policy. Instead of amending this rule each time to reflect such changes, we chose to retain the phrase ‘‘other Departmental requirements.’’ VerDate Mar<15>2010 16:11 Nov 12, 2013 Jkt 232001 Title Work Several tribal commenters requested modifying the rule to require BIA to perform the title examination and all the paperwork necessary for conveyance before the trust acquisition decision becomes final for the Department. Some also suggested collapsing the preliminary title opinion (PTO) and final title opinion (FTO) into one title opinion. Response: These suggestions were not adopted. As discussed above, BIA officials’ decisions become final for the Department after exhaustion of administrative review, so the amount of time between the issuance of a trust acquisition decision and the date that decision becomes final for the Department varies. BIA performs as much work as possible during the 30day administrative appeal period. Some aspects, such as the Certificate of Inspection and Possession (CIP), must be completed soon before the acquisition so that the Department has up-to-date information about site conditions and possible unrecorded claims to the land, and thus, it is appropriate for BIA to wait and see if the decision is appealed before it conducts the CIP. Notice and Opportunities for Public Participation Several tribal commenters stated their support of the rule’s clarifications on what types of notice will be provided depending on whether the AS–IA or a BIA official issues the decision, and that State and local governments having regulatory jurisdiction over the land to be acquired continue to receive written notice of BIA officials’ decisions. Other commenters stated their concern that they will not have notice of the application or notice of the decision before land is taken into trust. Response: The existing regulations at 25 CFR 151.10 and 151.11 require BIA to provide State and local governments notice of the application. In practice, BIA also sends notice of the application to any party who has submitted a written request for notice. This rule codifies existing practice by requiring written notice to State and local governments when a BIA official makes the decision. It also clarifies and broadens notice requirements, first, by requiring written notice of BIA official decisions to interested parties who have made themselves known in writing and, second, by publication of the decision and information concerning the administrative appeals process in a newspaper of general circulation serving the affected area to reach unknown interested parties. Notice of AS–IA PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 67935 decisions will continue to be published in the Federal Register. While this publication may occur after the land has been acquired in trust, State and local governments and other interested parties have opportunities to participate in the process prior to the decision, and we have revised the rule to reflect that publication of notice of the decision in the Federal Register must occur ‘‘promptly’’ after the decision. Several commenters objected to having two sets of notice requirements depending on who issues the decision and offered preferences for how notice for all decisions should be provided. Many of these commenters were under the mistaken impression that, under the existing rule or current practice, notices of all decisions were published in the Federal Register. Response: Under the existing rule, the Secretary could publish notice in either the Federal Register or in a newspaper. Publication of all notices in the Federal Register would be cost prohibitive. It has been AS–IA’s longstanding practice to publish notice of its final trust acquisition decisions in the Federal Register and BIA’s longstanding practice to publish notice of its decisions in the newspaper of general circulation serving the affected area. The purpose of each type of notice depends upon who issues the decision: notice of BIA decisions provides notice that administrative review of the decision is available; notice of AS–IA decisions provides notice that the decision is final. Thus, we believe that two different methods of providing notice are appropriate. A few commenters stated that making an oral comment at a public meeting should be sufficient to identify themselves as an interested party and satisfy ‘‘exhaustion of administrative remedies.’’ Response: Requiring a party to identify themselves in writing to receive written notice of a BIA official’s decision helps to ensure that BIA receives accurate contact information for the interested party. An oral comment at a public meeting may not always convey this necessary information and will not, in all cases, establish that the speaker wants to receive written notice of the decision. Further, making a comment at a public meeting about a pending application does not exhaust administrative remedies as required under this part. Administrative review of a BIA official’s decision can occur only after such decision is issued. In addition, administrative review involves a determination of ‘‘whether BIA gave proper consideration to all legal prerequisites to the exercise of BIA’s E:\FR\FM\13NOR1.SGM 13NOR1 emcdonald on DSK67QTVN1PROD with RULES 67936 Federal Register / Vol. 78, No. 219 / Wednesday, November 13, 2013 / Rules and Regulations discretionary authority, including any limitations on its discretion that may be established in the regulations.’’ See City of Yreka, Cal. et al. v. Pac. Reg’l Dir., 51 IBIA 287, 294 (2010), aff’d sub nom. City of Yreka v. Salazar, 2011 U.S. Dist. LEXIS 62818 (E.D. Cal. June 14, 2011), appeal dism’d, No. 11–16820 (9th Cir. Feb. 21, 2013). The burden is on appellant to demonstrate that BIA erred in its decision-making or that the decision is ‘‘not supported by substantial evidence.’’ Id. A verbal comment to a Department official on the application does not meet this burden. A few commenters stated that the tribe should ‘‘exhaust’’ its obligation to participate before every BIA decision maker, arguing that a tribe should not be able to raise as a defense to a legal challenge any argument it has not filed with BIA. Response: It would be unreasonable to expect any party to ever fully anticipate and raise defenses to all claims that could ever be made against its interest at some point in the future. Further, there is no obligation for the tribal applicant to participate in every stage of the administrative review of a BIA official’s decision. A commenter stated that there should be more notice to State and local governments, citing other Federal laws and the U.S. Constitution. Response: Notice to State and local governments under this rule is adequate for the purposes of implementing the IRA. The purposes and processes of other statutes differ and are not instructive here. Further, the constitutionality of the IRA is well established. Some commenters requested the rule replace ‘‘interested parties’’ with ‘‘parties’’ to clarify that participation in the administrative process does not give a party standing to bring suit, which must be independently established. Other commenters suggested incorporating 25 CFR 2.2’s definition of ‘‘interested party’’ by reference. Response: We clarified that ‘‘interested party’’ is defined by 25 CFR 2.2 (‘‘any person whose interests could be adversely affected by a decision in an appeal’’). To obtain a decision from the IBIA on the merits of their appeal, an interested party must establish they were adversely affected by the decision. See Anderson v. Great Plains Reg’l Dir., 52 IBIA 327, 331–32 (Dec. 10, 2010). One commenter stated that the proposed rule incorrectly concludes that it is not subject to the Paperwork Reduction Act (PRA) because the requirement that interested parties make themselves known is an information collection. Response: The regulations at 25 CFR part 151 have approved information collection requirements VerDate Mar<15>2010 16:11 Nov 12, 2013 Jkt 232001 under OMB Control Number 1076–0100; however, this rule does not add any new information collection requirements within the meaning of the PRA. See 5 CFR 1320.3(h). In addition, we incorporated commenters’ following suggestions: clarifying that the date of receipt of the notice of decision begins the 30-day appeal period for applicants, known interested parties, and State and local governments; requiring notice to State and local governments as well as other interested parties be ‘‘promptly’’ provided; and eliminating the requirement that interested parties make themselves known at each stage of administrative review of a BIA official’s decision. Implementation A number of commenters requested that Part 151 be implemented in specific ways, e.g., by ensuring that notices are issued concurrently, listing individual trust applications and decisions on the Web site, and making clear in each notice that administrative exhaustion applies. Response: While these comments are outside the scope of the rule, we will consider them for implementation. Several commenters suggested updating the Fee-to-Trust Handbook and notice forms to comport with these regulatory changes and releasing the updated Handbook with the final rule. Commenters also requested that BIA draft the Handbook for use by affected parties, rather than for internal BIA use, and make it available for public comment upon revision. Response: Revisions to the Handbook will be made to comport with the new notice procedures in this rule as soon as possible. As the Handbook is internal guidance and does not impose requirements on parties other than BIA personnel, prior notice and comment before revising is not necessary. Miscellaneous A few commenters stated that the rule makes the fee-to-trust process less transparent, more favorable to tribes, and more difficult for challengers. Response: The rule is intended to increase transparency by explicitly stating the process for issuing trust acquisition decisions and the availability of administrative or judicial review of such decisions. We declined to accept commenters’ suggestion to cross-reference certain provisions of 25 CFR part 2 because the rule is intended to make the processes in this specific context (of trust acquisition decisions) as transparent as possible. The new rule simply accepts and implements the PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 Court’s holding in Patchak by removing a provision made unnecessary by the Court’s ruling. The rule does not increase the difficulty for other entities; rather, it provides for notice to State and local governments and other interested parties to alert them to the availability of administrative or judicial review. A few commenters provided comments on circumstances regarding specific cases that are currently in litigation. Response: We decline to address these comments because they are the subject of current litigation. A few commenters supported requiring appeal bonds, while one commenter opposed requiring appeal bonds. Response: The regulations governing the imposition of administrative appeal bonds are beyond the scope of this regulation. A commenter suggested considering imposing deadlines for all trust acquisition decisions. Response: Because the circumstances surrounding each trust acquisition are unique, it is not feasible to impose meaningful deadlines. A commenter suggested the new rule treat off-reservation acquisitions differently. Response: There is not sufficient justification for treating offreservation acquisitions differently in § 151.12. A few tribal commenters suggested requiring AS–IA and BIA to consult the tribe immediately prior to taking land into trust, to ensure there have not been changed circumstances that would make acquisition undesirable for the tribe. Response: Under current practice, we ask that the applicant alert BIA as soon as possible if there are any issues that may prompt the tribe to withdraw its application. One commenter asserted that a State must cede jurisdiction over land for it to come under tribal jurisdiction. Response: No such requirement exists. Several commenters suggested changes to other CFR parts. Response: We will consider these requests in prioritizing future regulatory changes. V. 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, E:\FR\FM\13NOR1.SGM 13NOR1 Federal Register / Vol. 78, No. 219 / Wednesday, November 13, 2013 / Rules and Regulations 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. individual property rights protected by the Fifth Amendment nor does it involve a compensable ‘‘taking.’’ A takings implication assessment is therefore not required. 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.). 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. emcdonald on DSK67QTVN1PROD with RULES 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 VerDate Mar<15>2010 16:11 Nov 12, 2013 Jkt 232001 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. This rule also ensures notification to State and local governments of an AS– IA official’s decision through publication in the Federal Register. 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. Following publication of the proposed rule on May 29, 2013, the Department distributed a letter to all tribes seeking written comment on the proposed rule and held a tribal consultation session on June 24, 2013, in Reno, Nevada. Section IV of this preamble summarizes comments received by tribes, as well as other comments received throughout the public comment period, and responds to each. 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 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 67937 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. 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, amends 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: § 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) A decision made by the Secretary, or the Assistant Secretary—Indian Affairs pursuant to delegated authority, is a final agency action under 5 U.S.C. 704 upon issuance. (1) If the Secretary or Assistant Secretary denies the request, the Assistant Secretary shall promptly provide the applicant with the decision. (2) If the Secretary or Assistant Secretary approves the request, the Assistant Secretary shall: (i) Promptly provide the applicant with the decision; (ii) Promptly publish in the Federal Register a notice of the decision to acquire land in trust under this part; and (iii) Immediately acquire the land in trust under § 151.14 on or after the date such decision is issued and upon fulfillment of the requirements of E:\FR\FM\13NOR1.SGM 13NOR1 emcdonald on DSK67QTVN1PROD with RULES 67938 Federal Register / Vol. 78, No. 219 / Wednesday, November 13, 2013 / Rules and Regulations § 151.13 and any other Departmental requirements. (d) A decision made by a Bureau of Indian Affairs official pursuant to delegated authority is not a final agency action of the Department under 5 U.S.C. 704 until administrative remedies are exhausted under part 2 of this chapter or until the time for filing a notice of appeal has expired and no administrative appeal has been 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 chapter. (2) If the official approves the request, the official shall: (i) Promptly provide the applicant with the decision; (ii) Promptly provide written notice of the decision and the right, if any, to file an administrative appeal of such decision pursuant to part 2 of this chapter, by mail or personal delivery to: (A) Interested parties who have made themselves known, in writing, to the official prior to the decision being made; and (B) The State and local governments having regulatory jurisdiction over the land to be acquired; (iii) Promptly publish a notice in a newspaper of general circulation serving the affected area of the decision and the right, if any, of interested parties who did not make themselves known, in writing, to the official to file an administrative appeal of the decision under part 2 of this chapter; and (iv) Immediately acquire the land in trust under § 151.14 upon expiration of the time for filing a notice of appeal or upon exhaustion of administrative remedies under part 2 of this title, and upon the fulfillment of the requirements of § 151.13 and any other Departmental requirements. (3) The administrative appeal period under part 2 of this chapter begins on: (i) The date of receipt of written notice by the applicant or interested parties entitled to notice under paragraphs (d)(1) and (d)(2)(ii) of this section; (ii) The date of first publication of the notice for unknown interested parties under paragraph (d)(2)(iii) of this section. (4) Any party who wishes to seek judicial review of an official’s decision must first exhaust administrative remedies under 25 CFR part 2. Dated: November 4, 2013. Kevin K. Washburn, Assistant Secretary—Indian Affairs. [FR Doc. 2013–26844 Filed 11–12–13; 8:45 am] BILLING CODE 4310–6W–P VerDate Mar<15>2010 16:11 Nov 12, 2013 Jkt 232001 DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG–2013–0919] Drawbridge Operation Regulation; Atlantic Intracoastal Waterway, Albemarle and Chesapeake Canal, Chesapeake, VA Coast Guard, DHS. Notice of deviation from drawbridge regulation. AGENCY: ACTION: The Coast Guard has issued a temporary deviation from the operating schedule that governs the S168 Bridge (Battlefield Boulevard) across the Atlantic Intracoastal Waterway, Albemarle and Chesapeake Canal, mile 12.0, at Chesapeake (Great Bridge), VA. The deviation is necessary to accommodate the annual Christmas parade. This deviation allows the bridge to remain in the closed-to-navigation position for the set up of the event and the duration of the Christmas parade. DATES: This deviation is effective from 4 p.m. on December 7, 2013 to 10 p.m. on December 8, 2013. ADDRESSES: The docket for this deviation, [USCG–2013–0919] is available at http://www.regulations.gov. Type the docket number in the ‘‘SEARCH’’ box and click ‘‘SEARCH.’’ Click on Open Docket Folder on the line associated with this deviation. You may also visit the Docket Management Facility in Room W12–140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: If you have questions on this temporary deviation, call or email Mrs. Jessica Shea, Coast Guard; telephone (757) 398– 6422, email jessica.c.shea2@uscg.mil. If you have questions on viewing the docket, call Barbara Hairston, Program Manager, Docket Operations, telephone 202–366–9826. SUPPLEMENTARY INFORMATION: The City of Chesapeake, who owns and operates the S168 Bridge across the Atlantic Intracoastal Waterway, Albemarle and Chesapeake Canal, mile 12.0 at Chesapeake (Great Bridge), VA has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.997(g), to accommodate their annual Christmas parade. Normally, the bridge opens on signal; SUMMARY: PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 except that, from 6 a.m. to 7 p.m., the draw need be opened only on the hour or, if the vessel cannot reach the draw exactly on the hour, the draw tender may delay the hourly opening up to ten minutes past the hour. In the closed-to-navigation position, this lift-type drawbridge provides a vertical clearance of 8.5 feet above mean high water. The Chesapeake annual Christmas parade event is scheduled for December 7, 2013. Under this temporary deviation, the drawbridge will remain in the closed position to vessels requiring an opening from 4 p.m. to 6 p.m. and from 8 p.m. to 10 p.m. on December 7; with an inclement weather date of December 8 from 4 p.m. to 6 p.m. and from 8 p.m. to 10 p.m. Vessels that may safely transit under the drawbridge while it is in the closed position may do so at any time. The Atlantic Intracoastal Waterway caters to a variety of vessels from tug and barge traffic to recreational vessels traveling from Florida to Maine. The Atlantic Ocean is the alternate route for vessels and the bridge will be able to open in the event of an emergency. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation. In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35. Dated: October 30, 2013. Waverly W. Gregory, Jr., Bridge Program Manager, Fifth Coast Guard District. [FR Doc. 2013–27068 Filed 11–12–13; 8:45 am] BILLING CODE 9110–04–P LIBRARY OF CONGRESS Copyright Royalty Board 37 CFR Part 385 [Docket No. 2011–3 CRB Phonorecords II] Adjustment of Determination of Compulsory License Rates for Mechanical and Digital Phonorecords Copyright Royalty Board, Library of Congress. ACTION: Final rule. AGENCY: The Copyright Royalty Judges are publishing final regulations setting SUMMARY: E:\FR\FM\13NOR1.SGM 13NOR1

Agencies

[Federal Register Volume 78, Number 219 (Wednesday, November 13, 2013)]
[Rules and Regulations]
[Pages 67928-67938]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-26844]


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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: Final rule.

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SUMMARY: This final 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 addresses changes in the 
applicability of the Quiet Title Act as interpreted by a recent United 
States Supreme Court decision and broadens and clarifies the notice of 
decisions to acquire land in trust, including broadening notice of any 
right to file an administrative appeal.

DATES: This rule is effective on December 13, 2013.

FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Office of Regulatory 
Affairs & Collaborative Action, (202) 273-4680; 
elizabeth.appel@bia.gov.

SUPPLEMENTARY INFORMATION:

I. Executive Summary of Rule
II. Background
III. Explanation of the New Rule
    A. Deleting the 30-Day Waiting Period
    B. Requiring Notification of Known and Unknown Interested 
Parties of the Decision and Administrative Appeal Rights
    C. Exhaustion of Administrative Remedies
IV. Comments on the Proposed Rule and Responses
V. Procedural Requirements
    A. Regulatory Planning and Review (E.O. 12866 and 13563)
    B. Regulatory Flexibility Act
    C. Small Business Regulatory Enforcement Fairness Act
    D. Unfunded Mandates Reform Act
    E. Takings (E.O. 12630)
    F. Federalism (E.O. 13132)
    G. Civil Justice Reform (E.O. 12988)
    H. Consultation With Indian Tribes (E.O. 13175)
    I. Paperwork Reduction Act
    J. National Environmental Policy Act
    K. Effects on the Energy Supply (E.O. 13211)

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 of 
the IRA, as well as other statutes authorizing the acquisition of land 
in trust. Prior to 1996, the Department announced decisions to take 
land into trust simultaneously with the action of taking the land into 
trust. According to then-prevailing court decisions, once the land was 
taken in trust, judicial review was very limited. Consequently, the 
Department decided to create a time-limited opportunity for judicial 
review. In 1996, the Department revised part 151 by procedural 
rulemaking. In response to State of South Dakota v. U.S. Department of 
the Interior, 69 F.3d 878 (8th Cir. 1995), the Department established a 
procedure to ensure the opportunity for judicial review of 
administrative decisions to acquire title to lands in trust for Indian 
tribes and individual Indians. 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

[[Page 67929]]

general circulation serving the affected area announcing the final 
agency determination to take the subject land into trust. Paragraph (b) 
was intended to provide a brief window of time in which 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 a rule was necessary because, at that 
time, prevailing Federal court decisions found that the law 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 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) (``Patchak''). 
In that decision, the Supreme Court held that the Quiet Title Act 
(QTA), 28 U.S.C. 2409a, nor Federal sovereign immunity is 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 is no longer needed because interested parties 
may have the opportunity to seek judicial review of the Secretary's 
decision under the APA even after the Secretary has acquired title to 
the property.
    On May 29, 2013, the Bureau of Indian Affairs (BIA) published a 
proposed rule that would remove the 30-day waiting period and make 
other changes to clarify the Department's process for issuing trust 
acquisition decisions. 78 FR 32214. BIA then extended the original 
comment deadline of July 29, 2013 to September 3, 2013. See 78 FR 49990 
(Aug. 16, 2013). Following tribal consultation and analysis of comments 
on the proposed rule, the BIA is now publishing a final rule. This 
final rule revises section 151.12 to:
     Provide clarification and transparency to the process for 
issuing decisions by the Department, whether the decision is made by 
the Secretary, Assistant Secretary--Indian Affairs (AS-IA), or a Bureau 
of Indian Affairs (BIA) official;
     Ensure notice of a BIA official decision to acquire land 
into trust, and the right, if any, to file an administrative appeal of 
such decision by requiring written notice to 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, and expanding notice through newspaper 
publication; and
     Repeal the 1996 procedural provision and make explicit 
that parties must exhaust administrative remedies prior to pursuing 
judicial review for BIA trust acquisitions.

II. Background

    Congress enacted the IRA in 1934 to halt and remedy the devastating 
effects of prior policies of allotment and assimilation and to secure 
for all Indian tribes a land base on which to engage in economic 
development and self-determination. During the allotment era, Indian-
owned lands diminished drastically. Even today, most tribes lack an 
adequate tax base to generate government revenues, and others have few 
opportunities for economic development. Trust acquisition of land 
provides a number of economic development opportunities for tribes, 
helps generate revenues for public purposes, and helps protect tribal 
culture and ways of life (e.g., housing for tribal citizens, energy and 
natural resource development, protections for subsistence hunting and 
agriculture).
    This Administration has earnestly sought to advance the IRA policy 
goals of protecting and restoring tribal homelands and promoting tribal 
self-determination. The Secretary's authority to acquire lands in trust 
for all Indian tribes, and ability to provide certainty concerning the 
status of and jurisdiction over Indian lands, reaches the core of the 
Federal trust responsibility. To carry out the Secretary's delegated 
authority under the IRA, decisions to acquire land in trust are 
delegated either to the AS-IA or to a BIA official. The vast majority 
of trust acquisition decisions are delegated to and issued by BIA 
officials. Only a small percentage of decisions are reviewed and 
considered by the AS-IA. These decisions involve extensive public 
participation and several layers of review by Department officials 
before issuance.
    The existing regulations that apply to all AS-IA and BIA decisions 
include different means and timelines for challenging decisions 
depending on whether the decision is issued by the AS-IA or a BIA 
official. This final rule clarifies these distinctions within the 
context of trust acquisition decisions.
     If the AS-IA issues the decision under this part, the 
decision is a ``final agency determination,'' and the decision is final 
for the Department. See 25 CFR 2.6(c). A party may then seek judicial 
review of this decision under the APA.
     If a BIA official issues the decision under this part, the 
decision is subject to the administrative exhaustion requirements of 25 
CFR part 2 before it becomes a ``final agency determination.'' Under 
these regulatory requirements, 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 with the IBIA \1\ (and not precluded due to some other 
legal or procedural reason, such as standing), then the BIA official's 
decision is final for the Department after the IBIA affirms the 
decision.\2\ Today's rulemaking makes explicit the requirement that 
prior to seeking judicial review of a BIA official's decision, a party 
must first exhaust the administrative remedies available under 25 CFR 
part 2.
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    \1\ In those cases in which the Superintendent first issued the 
decision, the administrative appeal would first be filed with the 
Regional Director. If the Regional Director affirms the 
Superintendent's decision, an administrative appeal of the Regional 
Director's decision could then be filed with the IBIA.
    \2\ Department regulations provide that the Secretary may take 
jurisdiction over any matter pending before the Department under 43 
CFR 4.5, and that the AS-IA may take jurisdiction from IBIA to 
review a BIA official decision under 25 CFR 2.20.
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III. Explanation of the New Rule

    This rule revises Sec.  151.12 to remove procedural requirements 
that are no longer necessary in light of Patchak and to increase 
transparency regarding the process for issuing decisions to acquire 
land in trust under this part. For clarity purposes, this preamble will 
refer to the regulatory provision codified at Sec.  151.12 in effect 
from 1996 until the effective date of this final rule as ``the existing 
rule'' and will refer to the final rule published today as the ``final 
rule'' or ``new rule.''

A. Deleting the 30-Day Waiting Period

    The existing rule provides that the Secretary shall publish a 
notice of the decision to take land into trust and that the Secretary 
would acquire title to the subject property no sooner than 30 days 
after the notice was published. This 30-day waiting period was added to 
Sec.  151.12 in 1996 to allow parties to seek judicial review of the 
Secretary's

[[Page 67930]]

decision under the APA. See 61 FR 18082 (Apr. 24, 1996). The United 
States' position at the time, consistent with the position of several 
Federal circuit courts of appeal, was that the QTA precluded judicial 
review of the Secretary's decision if the United States held title to 
the land at issue. Id. The Supreme Court has since held in Patchak that 
the Indian lands exception to the QTA's waiver of United States 
sovereign immunity for quiet title actions does not itself bar judicial 
review under the APA of the Department's decision to acquire land in 
trust unless the aggrieved party seeks to quiet title to the subject 
property. In light of this decision, waiting 30 days after the issuance 
of a final trust acquisition decision before the Department take the 
land into trust is now unnecessary. Accordingly, the new rule provides 
that the Secretary shall, immediately 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.

B. Requiring Notification of BIA Officials' Decisions and 
Administrative Appeal Rights to Known and Unknown Interested Parties

    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). To ensure that such 
parties are receiving written notice, the new rule requires interested 
parties, as that term is currently defined in part 2, to make 
themselves known to the BIA official in writing in order to receive 
written notice of the BIA official's decision.\3\ Interested parties 
need only provide written notification to the BIA official prior to the 
decision being made.\4\
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    \3\ 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.
    \4\ Interested parties may contact the regional BIA office 
tasked with serving the applicant to obtain the name and contact 
information of the BIA official responsible for issuing a decision 
on the application. Contact information for the BIA and its regional 
offices can be found at www.bia.gov.
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    Notices of BIA officials' decisions will continue to include 
information concerning the process for filing an administrative appeal 
of the decision, consistent with 25 CFR 2.7(c). Interested parties who 
appeal a BIA official's decision must meet standing, timeliness, and 
other requirements that may limit IBIA review of BIA officials' 
decisions. See, e.g., Skagit County v. Nw. Reg'l Dir., 43 IBIA 62, 77 
(May 24, 2006) (dismissing appeal on standing grounds due to county's 
failure to establish that the alleged harm was caused by the decision 
to acquire land in trust); No More Slots et al. v. Pac. Reg'l Dir., 56 
IBIA 233, 242-43 (Mar. 18, 2013) (dismissing appeals as untimely).
    The final rule adds the new requirement that when a BIA official 
approves a trust acquisition application, the official will publish 
notice of that decision in a newspaper of general circulation serving 
the affected area to reach unknown interested parties. 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, if any, to appeal. The time for unknown interested parties to 
file a notice of appeal begins to run upon the date of first 
publication of such newspaper notice.

C. Exhaustion of Administrative Remedies

    Under the existing rule, administrative remedies are available 
under 25 CFR part 2 to challenge a BIA official's decision, and an 
interested party must first exhaust them before seeking judicial review 
under the APA. The new rule makes this requirement explicit. Under 25 
CFR part 2, interested parties have 30 days from the date they receive 
notice of the BIA official's decision to file an administrative appeal 
of such decision. If interested parties fail to appeal within that 
timeframe, judicial review is unavailable due to the failure to exhaust 
administrative remedies. See Darby v. Cisneros, 509 U.S. 137 (1993); 
Klaudt v. U.S. Department of the Interior, 990 F.2d 409, 411-12 (8th 
Cir. 1993); Fort Berthold Land & Livestock Ass'n v. Anderson, 361 
F.Supp.2d 1045, 1051-52 (D.N.D. 2005).
    When the AS-IA issues a decision to acquire land in trust under 
this part, the decision is final for the Department and not subject to 
administrative review under part 2 of this title. Still, the existing 
rule requires publication of notice of such a decision in either the 
Federal Register or a newspaper of general publication. In practice, 
AS-IA broadly fulfills this publication requirement by publishing 
notice of its decision in the Federal Register. The new rule explicitly 
codifies this practice. Other changes to Sec.  151.12 are designed to 
increase transparency, better reflect the process for acquiring land in 
trust, and respond to comments, as described in the following section.

D. Summary of All Revisions to 151.12

    The following table details all revisions this new rule would make 
to Sec.  151.12, including changes from the proposed rule to the final 
rule.

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                                                      Description of change                                                        Description of change
   Existing 25  CFR Sec.        Existing provision        from existing        Proposed 25 CFR Sec.        Final 25  CFR Sec.          from  proposed
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151.12(a)...................  ``The Secretary shall   Moves provision        151.12(a)................  151.12(a)................  No substantive change
                               review all requests     regarding promptly                                                           from proposed.
                               and shall promptly      notifying the
                               notify the applicant    applicant in writing
                               in writing of his       of the decision to
                               decision.''.            (c) and (d).
151.12(a)...................  ``The Secretary may     No substantive change  151.12(a)................  151.12(a)................  No substantive change
                               request any             from existing.                                                               from proposed.
                               additional
                               information or
                               justification he
                               considers necessary
                               to enable him to
                               reach a decision.''.

[[Page 67931]]

 
151.12(a)...................  ``If the Secretary      States generally that  151.12(b) & (d)..........  151.12(b) & (d)..........  No substantive change
                               determines that the     the Secretary's                                                              from proposed.
                               request should be       decision will be in
                               denied, he shall        writing and state
                               advise the applicant    the reasons for the
                               of that fact and the    decision, so this
                               reasons therefor in     requirement applies
                               writing and notify      regardless of
                               him of the right to     whether the decision
                               appeal pursuant to      was an approval or
                               part 2 of this          denial. Moves the
                               title.''.               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).
151.12(b)...................  ``Following completion  The requirement for a  152.12(c) & (d)..........  152.12(c) & (d)..........  No substantive change
                               of the Title            title examination                                                            from proposed.
                               Examination provided    has been moved to
                               in Sec.   151.13 of     (c)(2)(iii) and
                               this part * * *''.      (d)(2)(iv)(B).
151.12(b)...................  ``. . . and the         The requirement for    152.12(d)................  151.12(d)................  Adds explicit
                               exhaustion of any       exhaustion of                                                                reference to
                               administrative          administrative                                                               exhaustion in
                               remedies. . .''.        remedies has been                                                            (d)(2)(iv).
                                                       moved to (d), which
                                                       is applicable only
                                                       to decisions issued
                                                       by a BIA official.
151.12(b)...................  ``. . . the Secretary   The requirement to     151.12(c) & (d)..........  151.12(c) & (d)..........  Moves clarification
                               shall publish in the    publish in the                                                               of when the appeal
                               Federal Register, or    Federal Register has                                                         period begins to run
                               in a newspaper of       been moved to                                                                to a new (d)(3).
                               general circulation     (c)(2)(ii)
                               serving the affected    (decisions by the
                               area a notice of his/   Assistant
                               her decision to take    Secretary). The
                               land into trust under   requirement to
                               this part.''.           publish in a
                                                       newspaper has been
                                                       moved to (d)(2)(iii)
                                                       (decisions by a BIA
                                                       official) and now
                                                       occurs when BIA
                                                       issues a decision to
                                                       acquire land in
                                                       trust, with notice
                                                       of the opportunity
                                                       to administratively
                                                       appeal, rather than
                                                       when the decision is
                                                       final. Clarifies
                                                       that any appeal
                                                       period begins to run
                                                       upon first
                                                       publication. Also
                                                       clarifies and
                                                       expands BIA's
                                                       existing practice of
                                                       providing written
                                                       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.
151.12(b)...................  ``The notice will       States that a          151.12(c)................  151.12(c)................  No substantive change
                               state that a final      decision issued by                                                           from proposed.
                               agency determination    the Assistant
                               to take land in trust   Secretary is final
                               has been made and . .   for the Department.
                               .''.

[[Page 67932]]

 
151.12(b)...................  ``. . . that the        Deletes statement      151.12(c) & (d)..........  151.12(c) & (d)..........  Changes ``promptly''
                               Secretary shall         that the Secretary                                                           to ``immediately''
                               acquire title in the    will acquire title                                                           in (c)(2)(iii) and
                               name of the United      no sooner than 30                                                            (d)(2)(iv).
                               States no sooner than   days after the
                               30 days after the       notice is published.
                               notice is               Instead, provides at
                               published.''.           (c)(2)(iii) that the
                                                       Assistant Secretary
                                                       will ``immediately''
                                                       acquire land into
                                                       trust and provides
                                                       at (d)(2)(iv) that
                                                       the BIA official
                                                       will ``immediately''
                                                       acquire land into
                                                       trust upon
                                                       expiration of the
                                                       time for filing a
                                                       notice of appeal or
                                                       upon exhaustion of
                                                       administrative
                                                       remedies under part
                                                       2 of this title, and
                                                       upon the fulfillment
                                                       of Departmental
                                                       requirements.
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IV. Comments on the Proposed Rule and Responses

    We received 38 comment submissions from Indian tribes and Indian or 
tribal organizations; 16 from State, county, or local governments and 
organizations representing such governments; and 12 from members of the 
public, including individuals, advocacy groups and other organizations. 
Most tribal commenters were generally supportive of the rule, while 
most State, county, or local governments and organizations and members 
of the public were opposed to the rule. This section summarizes and 
addresses the comments received.

Support--General, Elimination of 30-Day Waiting Period Following AS-IA 
Decision

    Commenters in support of the rule noted that the proposed changes 
achieve greater transparency and certainty for tribes. These commenters 
noted that, under Patchak, challengers to trust acquisitions may 
initiate an APA lawsuit at any point during the six-year statute of 
limitations period following a final decision to acquire the land in 
trust. According to the tribal commenters, this threat of potential 
litigation during the six years following the issuance of a final 
decision creates uncertainty in the trust status of the property, 
discourages financial institutions from investment, and thereby 
frustrates tribes' ability to develop their trust lands in a 
productive, efficient manner for housing, economic development, or 
other purposes. These tribes believe the rule's elimination of the 30-
day waiting period following the issuance of final trust acquisition 
decisions adds some measure of certainty by ensuring the land is placed 
into trust as soon as possible. Several tribal commenters noted that 
the rule does not completely remedy the situation created by Patchak, 
but encourages prompt administrative and judicial review of trust 
acquisition decisions.

Opposition--General, Elimination of 30-Day Waiting Period Following AS-
IA Decision

    Some commenters, many of whom were State and local governments, 
advocated for reexamining and revising all of part 151 and objected to 
``piecemeal'' revisions. Some of these commenters expressed that the 
interests of State and local governments in tax revenues and regulatory 
jurisdiction, as well as ``social and financial issues'' affecting the 
tribal and non-tribal communities, are equally important to the goal to 
restore tribal homelands. Response: As described in the Background 
section of this preamble, restoration of tribal homelands is a policy 
goal of the IRA, which has provided authority for acquiring land in 
trust for nearly eight decades. The IRA reflects the unique 
relationship between the Federal Government and Indians and Indian 
tribes. The existing framework set forth in part 151 reflects this 
policy goal and provides for consideration of State and local 
government concerns. The existing part 151 process provides State and 
local governments the opportunity to submit comments as to the proposed 
acquisition's potential impacts on regulatory jurisdiction, real 
property taxes, and special assessments, and also requires the 
Secretary to consider jurisdictional problems and any potential 
conflicts of land use that may arise in connection with the 
acquisition. The Supreme Court has recognized this process as 
``sensitive to the complex inter-jurisdictional concerns that arise 
when a tribe seeks to regain sovereign control over territory.'' City 
of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197, 220-21 
(2005). The final rule does not change this process. As such, we have 
determined that this narrow revision appropriately addresses the change 
in legal landscape following Patchak.
    Some commenters provided various reasons why the 30-day period 
should be retained (e.g., to allow for the opportunity to negotiate or 
to identify whether contingencies in an agreement between the tribe and 
State or local government have been met). Some commenters also claimed 
eliminating the 30-day period will force a party to file for 
preliminary relief from a district court prior to the Department's 
decision, when ripeness is an issue--resulting in an inefficient use of 
party and judicial resources. Response: The new rule does not eliminate 
the opportunity for a negotiated resolution of issues prior to the 
issuance of a final decision to acquire land in trust. State and local 
governments receive notice of the submission of a trust acquisition 
application, and a State or local government may negotiate with the 
applicant to resolve any disagreements or address any contingencies 
prior to the issuance of a final decision to acquire land in trust. 
Post-Patchak, a party can seek judicial review of a final decision to 
acquire land in trust under the APA regardless of the trust status of 
the land at issue. The parties may determine for themselves whether

[[Page 67933]]

pursuing an injunction is an efficient use of resources in any 
particular case.
    Several commenters recounted the history leading up to the addition 
of the 30-day waiting period to Sec.  151.12 in 1996, noting that it 
cured a ``legal infirmity'' by providing a clear avenue for judicial 
review. A few commenters asserted that the rule is seeking to 
``nullify'' or circumvent the Supreme Court's decision in Patchak. 
Response: We generally agree with the history of the 1996 rulemaking as 
recounted by these commenters, but the legal and practical basis for 
the 30-day waiting period added to Sec.  151.12 in 1996 no longer 
exists following the Patchak decision. The new rule accepts and 
implements the Court's holding in Patchak by removing a provision made 
unnecessary by the Court's ruling.
    A few tribal commenters stated that there is no compelling reason 
to revise the rule and risk re-litigation of the constitutionality of 
the Secretary's authority to acquire land in trust under the IRA. Some 
commenters stated that the timing of the rule is ill-advised given 
recent changes in the law related to trust acquisitions under the IRA, 
including the Supreme Court decision, Carcieri v. Salazar. Response: 
The constitutionality of the Secretary's authority to acquire land in 
trust under the IRA is settled. See, e.g. Michigan Gaming Opposition v. 
Kempthorne, 525 F.3d 23, 33 (D.C. Cir. 2008); South Dakota v. United 
States Dep't of Interior, 423 F.3d 790, 799 (8th Cir. 2005); Shivwits 
Band v. Utah, 428 F.3d 966, 972-74 (10th Cir. 2005). The new rule 
simply clarifies the Secretary's exercise of that authority.

Self-Stay of Decisions

    Several commenters opposed changing the Department's prior practice 
of, in some instances, agreeing to stay the implementation of a trust 
acquisition decision after the expiration of the 30-day waiting period 
in Sec.  151.12 during the pendency of a lawsuit challenging the 
decision. Other commenters supported ending the current practice, 
stating that it essentially provided parties who merely file a 
complaint with several years of de facto injunctive relief, without 
meeting the burden of proving such relief is warranted. Response: The 
Department agrees that the self-stay practice could result in several 
years of de facto injunctive relief for a potentially meritless claim, 
and, like other Federal agencies (including decisions involving the 
Federal Government acquiring land), wishes to implement its final 
decision upon issuance. Agencies typically do not stay implementation 
of their decisions for the duration of the applicable statute-of-
limitations period, and the new rule will require that the Department 
implement its decision upon the fulfillment of the necessary 
requirements.

Make All Decisions Effective Immediately (Even at BIA Level)

    Several tribal commenters suggested that the new rule should make 
trust acquisition decisions issued by BIA officials effective 
immediately and require interested parties that appeal the decision to 
affirmatively seek a preliminary injunction from the IBIA to stay the 
implementation of the decision during the pendency of the IBIA appeal. 
Commenters posited that these procedures would encourage early 
decisions on the merits of an appeal and shift the burden to appellants 
to stay the full implementation of the trust acquisition decision. 
These commenters pointed to 43 CFR 4.21 as an example of a process and 
related standards that could be adopted in the trust acquisition 
context. Response: The new rule retains the existing administrative 
appeal process for BIA officials' decisions. Administrative review of 
BIA officials' trust acquisition decisions before land is taken into 
trust is appropriate because it ensures consistency in the decision-
making across BIA regions and addresses any procedural errors before 
the decision becomes final for the Department.

Judicial Review Prior to Implementation of Decision

    Some commenters stated that the action of acquiring the land in 
trust prior to judicial review compromises the litigants' ability to 
achieve due process and a fair and impartial hearing. One commenter 
stated that this rule would allow land to be put into trust for a 
controversial gaming project without any prior hearing before a court. 
Several commenters specifically asserted that the rule violates section 
705 of the APA because it allows for transfer into trust before an 
affected party could file a lawsuit challenging the decision, thereby 
depriving courts of ``their authority to review trust transfers.'' 
Response: Under the new rule, the transfer of the land into trust may 
occur before a lawsuit has been filed challenging the decision. The 
Patchak decision makes clear that absent other legal or procedural 
barriers, judicial review of a final decision to acquire land in trust 
may be available under the APA regardless of the trust status of the 
land. Also, under the part 151 process, State and local governments 
receive notice of the application and may submit comments for 
consideration by the decision-maker, whether AS-IA or a BIA official. 
With respect to comments regarding the applicability of APA section 
705, we disagree that plaintiffs have a right to injunctive relief 
under that section. See, e.g., Corning Savings & Loan Ass'n v. Federal 
Home Loan Bank Board, 562 F. Supp. 279 (E.D. Ark. 1983).

Availability of Remedy

    Several commenters expressed concern that remedies or meaningful 
relief would not be available once the land is taken into trust because 
the tribe could assert sovereign immunity, opt not to intervene in a 
lawsuit challenging the trust acquisition, and/or proceed with 
development of the property in a manner not permitted under State or 
local law, creating ``facts on the ground,'' and arguing reliance on 
the approval and vested interests. Response: These comments rely on 
several assumptions, including the assumption that the decision to take 
land into trust is not valid. We believe the reasons favoring the 
removal of the 30-day waiting period, as stated elsewhere in this 
preamble, outweigh the speculative risks put forward by the commenters' 
hypothetical scenarios and potential outcomes.

Opportunity for Judicial Review of Claims Still Barred by the Quiet 
Title Act

    Several commenters pointed out that, following Patchak, parties who 
seek to quiet title to the property to be acquired in trust are still 
barred by the Indian lands exception to the QTA's waiver of United 
States sovereign immunity from suit, and that such parties would be 
precluded from challenging the trust acquisition decision once the 
transfer of the land into trust occurs. These commenters further stated 
that the mechanisms available to prevent a trust acquisition when there 
is a competing property interest could fail, leaving the party claiming 
the competing interest without a judicial remedy. Response: The 
decision-making process set forth at part 151 requires a thorough title 
examination prior to the issuance of a decision. The Department takes 
all reasonable and necessary steps to uncover any adverse claims to the 
property before acquiring the land in trust. In addition, the applicant 
secures title insurance for the property, adding another measure of 
certainty that the applicant and the decision-maker have taken all 
reasonable and necessary steps to ensure that anyone with a competing 
interest in the property is identified, and their interest is resolved, 
prior to

[[Page 67934]]

the transfer of the property into trust. Given the exhaustive nature of 
the title examination process and the limitations of judicial remedies 
on persons who do not record their property interests, the likelihood 
that a person with a valid competing interest in the property will not 
be identified is too low to justify delaying implementation of every 
final decision.

Constitutional ``Taking''

    A few commenters stated that the rule raises constitutional 
``takings'' issues because the land is ``taken'' into trust without 
judicial review. One commenter asked how an acquisition decision could 
be issued for land that is not owned by the tribal applicant. Another 
commenter stated that a ``takings implication assessment'' under E.O. 
12630 is required because a party whose adverse claim in the property 
is not identified and addressed during the title examination would be 
precluded from judicial review under the Quiet Title Act. Response: 
Land acquisitions completed pursuant to 25 U.S.C. 465 are voluntary 
transactions and do not involve the exercise of the eminent domain 
authority of the United States. In all cases, the land at issue is 
voluntarily transferred from the applicant or another party to the 
United States to be held in trust for the applicant. The Department 
takes all reasonable and necessary steps to identify and resolve 
competing claims on the property before issuing a decision to acquire 
the land in trust and completing such trust transfer.

Exhaustion of Administrative Remedies

    Several commenters objected to the exhaustion of administrative 
remedies requirement, stating that the rule precludes legal challenges 
and insulates BIA decisions from judicial review. Other commenters 
suggested that the exhaustion requirement be more explicit in the rule. 
Response: The existing rule includes the requirement that interested 
parties exhaust administrative remedies under 25 CFR part 2 and was 
reflected in administrative and judicial decisions. This final rule 
adopts the suggestion that we highlight this requirement for parties 
who oppose a BIA decision, making the law in this area more transparent 
and giving parties more knowledge of the ramifications of failing to 
make a timely appeal.

Applicability of Quiet Title Act to State and Local Governments

    Several commenters asserted that justification for the rule is 
flawed because there is still ``substantial uncertainty'' as to the 
application of Patchak in specific fact situations, involving State or 
local governments. Response: The Department will not speculate on how a 
court may apply Patchak in hypothetical fact situations.

Who the Decision Maker Should Be

    Some commenters recommended that the AS-IA issue all trust 
acquisition decisions because the process for administrative review of 
BIA officials' decisions is slow, extending the timeframe of 
uncertainty regarding the trust status of the property. These 
commenters were also concerned that future Administrations may require 
that all trust acquisition decisions be decided by BIA officials to 
delay the finality of trust acquisition decisions. Response: Requiring 
administrative review of BIA officials' trust acquisition decisions is 
appropriate for reasons stated elsewhere herein. Moreover, the 
exhaustion requirement ensures that opponents of the trust acquisition 
decision must file a timely administrative appeal before seeking 
judicial review. This requirement addresses the risk stemming from 
Patchak that lawsuits challenging decisions will not be filed until 
years after the decisions are made.
    Some commenters stated that they would like the rule to specify 
when AS-IA will be the decision maker. Response: We did not accept this 
suggestion, as AS-IA retains discretion to issue any decision.
    One commenter suggested the Deputy Assistant Secretary should issue 
all decisions that AS-IA would otherwise decide, to allow the decisions 
to be administratively appealed to the IBIA. Response: AS-IA retains 
the discretion to issue a decision or assign responsibility to a Deputy 
Assistant Secretary to issue the decision under 25 CFR 2.20(c). Trust 
acquisition decisions issued by the AS-IA involve several levels of 
internal review prior to issuance.

Finality of AS-IA Decisions

    A few commenters noted that AS-IA decisions are generally final for 
the Department unless AS-IA ``provides otherwise in the decision'' 
under 25 CFR 2.6(c). One commenter noted that an interested party may 
administratively appeal a BIA official's decision except, among other 
limitations, when it is approved in writing by the Secretary or AS-IA 
under 43 CFR 4.331(b). The commenters suggested clarifying this in the 
rule. Response: We have not incorporated this into the new rule because 
AS-IA trust acquisition decisions are final for the Department when 
issued. The AS-IA retains the discretion to approve a BIA decision in 
writing, making it final for the Department.

Administrative Appeal Delays

    Several commenters requested adding a provision that would allow 
tribes to opt out of the administrative appeals process and have AS-IA 
take jurisdiction, without the time restrictions currently in place at 
25 CFR 2.20. Some requested allowing tribes to opt out if IBIA fails to 
issue a decision by a deadline. Response: We determined that an opt-out 
provision would not be appropriate, to retain both AS-IA's discretion 
under 25 CFR 2.20 and the mandatory requirement that administrative 
remedies be exhausted by any party who wishes to seek judicial review.
    A commenter suggested mandating that IBIA summarily dismiss appeals 
that are filed for the purpose of impeding the right of tribes to make 
use of their trust lands. Response: We did not incorporate this comment 
because it is unclear whether IBIA could summarily determine the intent 
of an appeal without a full look at the merits. Moreover, changing IBIA 
procedure is outside the scope of this rule.

Taking Land Out of Trust

    Several commenters questioned whether the Department has authority 
to convey land out of trust as a result of an APA challenge and opined 
on whether Patchak affects that authority to take land out of trust. 
Response: Patchak did not decide, or even consider, whether the 
Secretary is authorized to take land out of trust. If a court 
determines that the Department erred in making a land-into-trust 
decision, the Department will comply with a final court order and any 
judicial remedy that is imposed.

Effect on the Trust Relationship

    A few tribal commenters stated that challenging the decision to 
acquire land in trust is less intrusive to the trust relationship than 
challenging the status of lands already held in trust. Response: 
Balancing these few comments with the overwhelming support of other 
tribes, the Department has determined that taking the land into trust 
as soon as possible after a final positive trust acquisition decision 
supports our trust relationship more than an open-ended stay of the 
trust transfer in all cases.
    One tribal commenter stated that the rule does not account for 
situations where one tribe challenges a decision to take another 
tribe's land into trust on the basis that it would violate the Federal 
trust responsibility owed to the

[[Page 67935]]

opposing tribe and challenges such tribe's jurisdictional authority. 
Response: These issues are considered during the part 151 decision-
making process. See 25 CFR 151.8, 151.10.

How Soon After Decision Land Is Taken Into Trust

    Some tribal commenters requested that the rule require the 
Secretary to ``immediately'' take land into trust following the 
decision to acquire land into trust, rather than ``promptly.'' 
Response: We have incorporated this suggestion in the regulatory text, 
subject to the fulfillment of Departmental requirements once the 
decision is issued.
    Another tribal commenter suggested changing ``shall'' promptly 
acquire the land into trust to ``may'' to allow the Secretary more 
flexibility. Response: Retaining the word ``shall'' to require prompt 
acquisition of the land better supports IRA policy goals, as previously 
discussed.
    A few commenters noted that the proposed rule states that the AS-IA 
will take land into trust ``on or after'' the decision and fulfillment 
of requirements, while BIA will take the land into trust ``upon 
fulfillment'' of the requirements. These commenters suggested imposing 
a time limit on taking land into trust. Response: The date when 
decisions of BIA officials become final for the Department varies 
because such decisions are subject to administrative review and, during 
the period between the date the BIA official issues a decision and the 
date such decision is final for the Department, issues may arise that 
require resolution prior to the trust transfer. For these reasons, we 
decided not to adopt the suggestion that we impose a time limit on 
taking land in trust; however, we have slightly changed the text of the 
rule to make temporal requirements as consistent as possible.
    A few tribal commenters requested clarification of the ``other 
Departmental requirements'' that the Department must comply with before 
taking land into trust, deleting this phrase, or replacing it with 
``statutory and regulatory requirements.'' Response: Departmental trust 
requirements may change in the future by statute, through notice and 
comment rulemaking, or through established procedures for changing 
Departmental policy. Instead of amending this rule each time to reflect 
such changes, we chose to retain the phrase ``other Departmental 
requirements.''

Title Work

    Several tribal commenters requested modifying the rule to require 
BIA to perform the title examination and all the paperwork necessary 
for conveyance before the trust acquisition decision becomes final for 
the Department. Some also suggested collapsing the preliminary title 
opinion (PTO) and final title opinion (FTO) into one title opinion. 
Response: These suggestions were not adopted. As discussed above, BIA 
officials' decisions become final for the Department after exhaustion 
of administrative review, so the amount of time between the issuance of 
a trust acquisition decision and the date that decision becomes final 
for the Department varies. BIA performs as much work as possible during 
the 30-day administrative appeal period. Some aspects, such as the 
Certificate of Inspection and Possession (CIP), must be completed soon 
before the acquisition so that the Department has up-to-date 
information about site conditions and possible unrecorded claims to the 
land, and thus, it is appropriate for BIA to wait and see if the 
decision is appealed before it conducts the CIP.

Notice and Opportunities for Public Participation

    Several tribal commenters stated their support of the rule's 
clarifications on what types of notice will be provided depending on 
whether the AS-IA or a BIA official issues the decision, and that State 
and local governments having regulatory jurisdiction over the land to 
be acquired continue to receive written notice of BIA officials' 
decisions. Other commenters stated their concern that they will not 
have notice of the application or notice of the decision before land is 
taken into trust. Response: The existing regulations at 25 CFR 151.10 
and 151.11 require BIA to provide State and local governments notice of 
the application. In practice, BIA also sends notice of the application 
to any party who has submitted a written request for notice. This rule 
codifies existing practice by requiring written notice to State and 
local governments when a BIA official makes the decision. It also 
clarifies and broadens notice requirements, first, by requiring written 
notice of BIA official decisions to interested parties who have made 
themselves known in writing and, second, by publication of the decision 
and information concerning the administrative appeals process in a 
newspaper of general circulation serving the affected area to reach 
unknown interested parties. Notice of AS-IA decisions will continue to 
be published in the Federal Register. While this publication may occur 
after the land has been acquired in trust, State and local governments 
and other interested parties have opportunities to participate in the 
process prior to the decision, and we have revised the rule to reflect 
that publication of notice of the decision in the Federal Register must 
occur ``promptly'' after the decision.
    Several commenters objected to having two sets of notice 
requirements depending on who issues the decision and offered 
preferences for how notice for all decisions should be provided. Many 
of these commenters were under the mistaken impression that, under the 
existing rule or current practice, notices of all decisions were 
published in the Federal Register. Response: Under the existing rule, 
the Secretary could publish notice in either the Federal Register or in 
a newspaper. Publication of all notices in the Federal Register would 
be cost prohibitive. It has been AS-IA's longstanding practice to 
publish notice of its final trust acquisition decisions in the Federal 
Register and BIA's longstanding practice to publish notice of its 
decisions in the newspaper of general circulation serving the affected 
area. The purpose of each type of notice depends upon who issues the 
decision: notice of BIA decisions provides notice that administrative 
review of the decision is available; notice of AS-IA decisions provides 
notice that the decision is final. Thus, we believe that two different 
methods of providing notice are appropriate.
    A few commenters stated that making an oral comment at a public 
meeting should be sufficient to identify themselves as an interested 
party and satisfy ``exhaustion of administrative remedies.'' Response: 
Requiring a party to identify themselves in writing to receive written 
notice of a BIA official's decision helps to ensure that BIA receives 
accurate contact information for the interested party. An oral comment 
at a public meeting may not always convey this necessary information 
and will not, in all cases, establish that the speaker wants to receive 
written notice of the decision. Further, making a comment at a public 
meeting about a pending application does not exhaust administrative 
remedies as required under this part. Administrative review of a BIA 
official's decision can occur only after such decision is issued. In 
addition, administrative review involves a determination of ``whether 
BIA gave proper consideration to all legal prerequisites to the 
exercise of BIA's

[[Page 67936]]

discretionary authority, including any limitations on its discretion 
that may be established in the regulations.'' See City of Yreka, Cal. 
et al. v. Pac. Reg'l Dir., 51 IBIA 287, 294 (2010), aff'd sub nom. City 
of Yreka v. Salazar, 2011 U.S. Dist. LEXIS 62818 (E.D. Cal. June 14, 
2011), appeal dism'd, No. 11-16820 (9th Cir. Feb. 21, 2013). The burden 
is on appellant to demonstrate that BIA erred in its decision-making or 
that the decision is ``not supported by substantial evidence.'' Id. A 
verbal comment to a Department official on the application does not 
meet this burden.
    A few commenters stated that the tribe should ``exhaust'' its 
obligation to participate before every BIA decision maker, arguing that 
a tribe should not be able to raise as a defense to a legal challenge 
any argument it has not filed with BIA. Response: It would be 
unreasonable to expect any party to ever fully anticipate and raise 
defenses to all claims that could ever be made against its interest at 
some point in the future. Further, there is no obligation for the 
tribal applicant to participate in every stage of the administrative 
review of a BIA official's decision.
    A commenter stated that there should be more notice to State and 
local governments, citing other Federal laws and the U.S. Constitution. 
Response: Notice to State and local governments under this rule is 
adequate for the purposes of implementing the IRA. The purposes and 
processes of other statutes differ and are not instructive here. 
Further, the constitutionality of the IRA is well established.
    Some commenters requested the rule replace ``interested parties'' 
with ``parties'' to clarify that participation in the administrative 
process does not give a party standing to bring suit, which must be 
independently established. Other commenters suggested incorporating 25 
CFR 2.2's definition of ``interested party'' by reference. Response: We 
clarified that ``interested party'' is defined by 25 CFR 2.2 (``any 
person whose interests could be adversely affected by a decision in an 
appeal''). To obtain a decision from the IBIA on the merits of their 
appeal, an interested party must establish they were adversely affected 
by the decision. See Anderson v. Great Plains Reg'l Dir., 52 IBIA 327, 
331-32 (Dec. 10, 2010).
    One commenter stated that the proposed rule incorrectly concludes 
that it is not subject to the Paperwork Reduction Act (PRA) because the 
requirement that interested parties make themselves known is an 
information collection. Response: The regulations at 25 CFR part 151 
have approved information collection requirements under OMB Control 
Number 1076-0100; however, this rule does not add any new information 
collection requirements within the meaning of the PRA. See 5 CFR 
1320.3(h).
    In addition, we incorporated commenters' following suggestions: 
clarifying that the date of receipt of the notice of decision begins 
the 30-day appeal period for applicants, known interested parties, and 
State and local governments; requiring notice to State and local 
governments as well as other interested parties be ``promptly'' 
provided; and eliminating the requirement that interested parties make 
themselves known at each stage of administrative review of a BIA 
official's decision.

Implementation

    A number of commenters requested that Part 151 be implemented in 
specific ways, e.g., by ensuring that notices are issued concurrently, 
listing individual trust applications and decisions on the Web site, 
and making clear in each notice that administrative exhaustion applies. 
Response: While these comments are outside the scope of the rule, we 
will consider them for implementation.
    Several commenters suggested updating the Fee-to-Trust Handbook and 
notice forms to comport with these regulatory changes and releasing the 
updated Handbook with the final rule. Commenters also requested that 
BIA draft the Handbook for use by affected parties, rather than for 
internal BIA use, and make it available for public comment upon 
revision. Response: Revisions to the Handbook will be made to comport 
with the new notice procedures in this rule as soon as possible. As the 
Handbook is internal guidance and does not impose requirements on 
parties other than BIA personnel, prior notice and comment before 
revising is not necessary.

Miscellaneous

    A few commenters stated that the rule makes the fee-to-trust 
process less transparent, more favorable to tribes, and more difficult 
for challengers. Response: The rule is intended to increase 
transparency by explicitly stating the process for issuing trust 
acquisition decisions and the availability of administrative or 
judicial review of such decisions. We declined to accept commenters' 
suggestion to cross-reference certain provisions of 25 CFR part 2 
because the rule is intended to make the processes in this specific 
context (of trust acquisition decisions) as transparent as possible. 
The new rule simply accepts and implements the Court's holding in 
Patchak by removing a provision made unnecessary by the Court's ruling. 
The rule does not increase the difficulty for other entities; rather, 
it provides for notice to State and local governments and other 
interested parties to alert them to the availability of administrative 
or judicial review.
    A few commenters provided comments on circumstances regarding 
specific cases that are currently in litigation. Response: We decline 
to address these comments because they are the subject of current 
litigation.
    A few commenters supported requiring appeal bonds, while one 
commenter opposed requiring appeal bonds. Response: The regulations 
governing the imposition of administrative appeal bonds are beyond the 
scope of this regulation.
    A commenter suggested considering imposing deadlines for all trust 
acquisition decisions. Response: Because the circumstances surrounding 
each trust acquisition are unique, it is not feasible to impose 
meaningful deadlines.
    A commenter suggested the new rule treat off-reservation 
acquisitions differently. Response: There is not sufficient 
justification for treating off-reservation acquisitions differently in 
Sec.  151.12.
    A few tribal commenters suggested requiring AS-IA and BIA to 
consult the tribe immediately prior to taking land into trust, to 
ensure there have not been changed circumstances that would make 
acquisition undesirable for the tribe. Response: Under current 
practice, we ask that the applicant alert BIA as soon as possible if 
there are any issues that may prompt the tribe to withdraw its 
application.
    One commenter asserted that a State must cede jurisdiction over 
land for it to come under tribal jurisdiction. Response: No such 
requirement exists.
    Several commenters suggested changes to other CFR parts. Response: 
We will consider these requests in prioritizing future regulatory 
changes.

V. 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,

[[Page 67937]]

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. This rule also ensures notification to State and 
local governments of an AS-IA official's decision through publication 
in the Federal Register.

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. Following publication of the proposed rule on May 29, 
2013, the Department distributed a letter to all tribes seeking written 
comment on the proposed rule and held a tribal consultation session on 
June 24, 2013, in Reno, Nevada. Section IV of this preamble summarizes 
comments received by tribes, as well as other comments received 
throughout the public comment period, and responds to each.

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.

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, amends 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) A decision made by the Secretary, or the Assistant Secretary--
Indian Affairs pursuant to delegated authority, is a final agency 
action under 5 U.S.C. 704 upon issuance.
    (1) If the Secretary or Assistant Secretary denies the request, the 
Assistant Secretary shall promptly provide the applicant with the 
decision.
    (2) If the Secretary or Assistant Secretary approves the request, 
the Assistant Secretary shall:
    (i) Promptly provide the applicant with the decision;
    (ii) Promptly publish in the Federal Register a notice of the 
decision to acquire land in trust under this part; and
    (iii) Immediately 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

[[Page 67938]]

Sec.  151.13 and any other Departmental requirements.
    (d) A decision made by a Bureau of Indian Affairs official pursuant 
to delegated authority is not a final agency action of the Department 
under 5 U.S.C. 704 until administrative remedies are exhausted under 
part 2 of this chapter or until the time for filing a notice of appeal 
has expired and no administrative appeal has been 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 chapter.
    (2) If the official approves the request, the official shall:
    (i) Promptly provide the applicant with the decision;
    (ii) Promptly provide written notice of the decision and the right, 
if any, to file an administrative appeal of such decision pursuant to 
part 2 of this chapter, by mail or personal delivery to:
    (A) Interested parties who have made themselves known, in writing, 
to the official prior to the decision being made; and
    (B) The State and local governments having regulatory jurisdiction 
over the land to be acquired;
    (iii) Promptly publish a notice in a newspaper of general 
circulation serving the affected area of the decision and the right, if 
any, of interested parties who did not make themselves known, in 
writing, to the official to file an administrative appeal of the 
decision under part 2 of this chapter; and
    (iv) Immediately acquire the land in trust under Sec.  151.14 upon 
expiration of the time for filing a notice of appeal or upon exhaustion 
of administrative remedies under part 2 of this title, and upon the 
fulfillment of the requirements of Sec.  151.13 and any other 
Departmental requirements.
    (3) The administrative appeal period under part 2 of this chapter 
begins on:
    (i) The date of receipt of written notice by the applicant or 
interested parties entitled to notice under paragraphs (d)(1) and 
(d)(2)(ii) of this section;
    (ii) The date of first publication of the notice for unknown 
interested parties under paragraph (d)(2)(iii) of this section.
    (4) Any party who wishes to seek judicial review of an official's 
decision must first exhaust administrative remedies under 25 CFR part 
2.

    Dated: November 4, 2013.
Kevin K. Washburn,
Assistant Secretary--Indian Affairs.
[FR Doc. 2013-26844 Filed 11-12-13; 8:45 am]
BILLING CODE 4310-6W-P