[Federal Register Volume 60, Number 121 (Friday, June 23, 1995)]
[Rules and Regulations]
[Pages 32874-32879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15215]
[[Page 32873]]
_______________________________________________________________________
Part IV
Department of the Interior
_______________________________________________________________________
Bureau of Indian Affairs
_______________________________________________________________________
25 CFR Part 151
Land Acquisitions (Nongaming); Final Rule
Federal Register / Vol. 60, No. 121 / Friday, June 23, 1995 / Rules
and Regulations
[[Page 32874]]
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 151
RIN 1076-AC51
Land Acquisitions (Nongaming)
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule modifies three existing sections within Part
151 (Land Acquisitions) and creates a new section which contains
additional criteria and requirements used by the Secretary in
evaluating requests for the acquisition of lands by the United States
in trust for federally recognized Indian tribes when lands are outside
and noncontiguous to the tribes' existing reservation boundaries.
EFFECTIVE DATE: July 24, 1995.
FOR FURTHER INFORMATION CONTACT:
Alice A. Harwood, Chief, Branch of Technical Services, Division of Real
Estate Services, Bureau of Indian Affairs, Room 4522, Main Interior
Building, 1849 C Street, NW, Washington, DC 20240, Telephone No. (202)
208-3604.
SUPPLEMENTARY INFORMATION: The primary authors of this document are
Stan Webb, Lee Maytubby, and Alice A. Harwood along with the members of
the Regulation Task Force.
On July 15, 1991, the proposed rule for off-reservation land
acquisitions for Indian tribes was published in the Federal Register
(Vol. 56, No. 135, pages 32278-32280).
The Department certifies to the Office of Management and Budget
that these final regulations meet the standards provided in Sections
2(a) and 2(b)(2) of Executive Order 12778.
The Department has determined that this rule:
does not have significant federalism effects.
is not a major rule under Executive Order 12866 and will
not require a review by the Office of Management and Budget.
will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et. seq.) because this rule applies only to Indian
applicants.
does not have significant takings implications under E.O.
12630.
does not have significant effects on the economy, nor will
it result in increases in costs or prices for consumers, individual
industries, Federal, State, or local governments, agencies, or
geographical regions.
does not have any adverse effects on competition,
employment, investment, productivity, innovation, or the export/import
market.
is categorically excluded from the National Environmental
Policy Act of 1969 because it is of an administrative, technical, and
procedural nature. Therefore, neither an environmental assessment nor
an environmental impact statement is warranted.
Office of Management and Budget approved the information requested
in Sections 151.9, 151.10, 151.11(c) and 151.13 under 44 U.S.C. 3501 et
seq. and assigned clearance number 1076-0100. This information is
required from Indian tribes and individuals to acquire land in trust
status and used to assist the Secretary in making a determination.
Response to this request is required to obtain a benefit.
Public reporting for this information collection is estimated to
average 4 hours per response, including the time for reviewing
instructions, gathering and maintaining data, and completing and
reviewing the information collection. Direct your comments regarding
the burden estimate or any other aspect of this information collection
to the Bureau of Indian Affairs, Information Collection Clearance
Officer, Room 337-SIB, 18th and C Streets, NW., Washington, DC 20240;
and the Office of Information and Regulatory Affairs (Project 1076-
0100), Office of Management and Budget, Washington, DC 20502.
The annual number of tribal requests to place lands in trust is
small. There will be some costs incurred by the requesting tribes in
providing information to the Secretary.
Summary of Comments on Proposed Rule
Sixty-seven comments were submitted in response to the July 15,
1991, Federal Register publication of proposed amendments to 25 CFR
Part 151.
A number of commenters expressed a fear that the regulations would
undermine tribal sovereignty and self-determination and inhibit the
development of reservation economies, and that they would be
inconsistent with the Indian policy statement issued by President Bush
on June 14, 1991. There is additional concern that the proposed rules
would:
(1) afford state and local governments a virtual veto power over
tribal governments;
(2) promote a ``guardian-ward'' relationship between the United
States and the tribes, rather than the preferred ``government-to-
government'' relationship; and
(3) force tribes to divert their limited resources into
``unnecessary'' efforts aimed at regulatory compliance;
(4) be inconsistent with the federal trust responsibility to Indian
tribes, and
(5) further complicate an already cumbersome and time-consuming
process by placing tribal interests lower than those of state and local
governments.
One commenter argued that a ``federalism assessment'' would be
needed under Executive Order 12612, and another maintained that a
``compete regulatory analysis'' would be required under the Regulatory
Flexibility Act.
Due to comments received, the gaming section, proposed as 151.12
has been deleted and will be incorporated into a new CFR part under a
separate rulemaking.
Section 151.10 On-Reservation Acquisition
Comment: It was suggested that 25 CFR 151.10(e) be revised to
reflect the BIA's position that Indian-owned fee lands within the
boundaries of a reservation should be exempt from state property.
Response: It should be noted that the United States Supreme Court
recently held that (under certain circumstances) on-reservation fee
lands will be subject to local property taxes. Therefore, 25 CFR
151.10(e) is not revised.
Comment: Comments suggested that all of the existing rules be made
inapplicable to on-reservation acquisitions, and another requested a
clarification that the strict notice and consultation requirements set
forth in the proposed 25 CFR 151.11 would not apply to acquisitions of
lands which are either within the boundaries of a reservation or
contiguous thereto.
Response: It should be noted that the decision whether to accept
title in trust status is a discretionary one, and that the Secretary
has chosen to regulate the decision-making process in order to promote
national uniformity.
The notice and comment procedures, which do not require formal
consultation, were informally adopted in 1980. Notice and comment
procedures are incorporated in the introductory paragraph to 25 CFR
151.10.
Comment: It was also suggested that the proposed rules be revised
to accept legislatively-mandated acquisitions from compliance with 25
CFR 151.10 and the proposed 151.11. An alternatively suggested that
they be revised to specify that certain provisions [[Page 32875]] would
apply even when a complete evaluation of the acquisition would be
precluded by legislation.
Response: The introductory paragraph to both 25 CFR 151.10 and the
new 25 CFR 151.11 exempts such legally mandated acquisitions.
Section 151.10(h) Hazardous Substances and NEPA Compliance
Comment: Commenters addressed the requirement that acquired
property ``be free of all hazardous and toxic material as required by
602 DM 2 Land Acquisitions: Hazardous Substances Determinations.'' It
was suggested that an acquisition be allowed where the proposed use of
the land would involve hazardous substances, or where identified
substances have been safely isolated.
Response: It should be noted that the Secretary retains the power
to approve any acquisition ``for good cause,'' i.e., where the benefits
of the acquisition would clearly outweigh the potential risks.
Comment: Commenters suggested that the proposed rule be modified to
more accurately reflect the policy set forth at 602 DM 2.
Response: The policy set forth in the manual attempts to limit
potential federal liability by prohibiting acquisitions where ``an
expenditure of Departmental funds is required for cleanup of such real
estate, except at the direction of Congress, or for good cause with the
approval of the Secretary.'' The rule is modified to reference the
``extent to which the applicant has provided information that allows
the Secretary to comply'' with the Departmental Manual.
Comment: Commenters also stated that the regulation would be too
restrictive, suggesting that exceptions be made when:
(1) the seller agrees to indemnify the acquiring tribe and the
United States;
(2) the estimated remedial costs would be minimal, or the acquiring
tribe has adopted a corrective action plan;
(3) the waste has been safely isolated, or the land value is
``sufficient'' to justify the acquisition; or
(4) the acquiring tribe wishes to utilize the land for such
purposes as waste disposal, incineration, or recycling.
Response: 602 DM 2 suggests that the survey process must be
completed in all cases (with indemnification to be required in those
cases where contaminated lands are to be acquired).
602 DM 2 permits the acquisition of contaminated lands which can be
restored without a reprogramming of funds.
Comment: It was suggested that the proposed rule be extended to all
federal acquisitions, and another recommended that the rule specify the
types of clearances needed and the extent to which the BIA would absorb
the cost of site surveys.
Response: 602 DM 2 applies to all agencies within the Department of
the Interior.
The guidelines provide for a three-tiered survey process, with
approval authority retained by the Department. However, funding may be
determined on a case by case basis.
Comment: It was recommended that the ``rigorous'' innocent
purchaser provisions in the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) be made applicable to tribal
land acquisitions.
Response: It should be noted that such a defense only protects
purchasers who ``did not know and had no reason to know'' that they
were acquiring contaminated property. (The proposed BIA guidelines
provide for a survey process which is intended to ensure the
availability of this defense.)
Comment: Commenters suggested that the proposed rules be revised to
require compliance with the National Environmental Policy Act of 1969
(NEPA).
Response: The new 25 CFR 151.10(h) also requires compliance with
the BIA's ``final revised implementing procedures'' for NEPA. In 1988,
the procedures were published in the Federal Register (after a public
comment period) and added to the Departmental Manual at 516 DM 6,
Appendix 4.
Section 151.11 Off-reservation Acquisitions
Comment: Comments addressed the general premise that more stringent
rules are needed to govern the trust acquisition of lands which are
``off-reservation'' (hereinafter meaning lands ``outside of and
noncontiguous to'' the boundaries of an existing reservation). Other
comments suggested that lands which are contiguous to existing
reservation boundaries should be treated as other lands outside such
boundaries.
Response: It should be noted that the acquisition of contiguous
lands may be analogized to annexations by municipalities. It should be
noted that treatment may be afforded by the Secretary on a case-by-case
basis.
Comment: Commenters voiced concerns relative to ``the loss of
regulatory control and removal of the property from the tax rolls.''
Specifically, they questioned whether the proposed rules would protect
the states' power to regulate the appropriation and administration of
water on acquired lands, and suggested that a mechanism for the
collection of ``appropriate'' state taxes be incorporated in the rules.
Response: The BIA has instructed its field offices that proposed
acquisitions of off-reservation contiguous lands for commercial
purposes should be carefully scrutinized with consultation considered
to avoid jurisdictional conflicts.
The new 25 CFR 151.11(d) establishes a consultation process which
may give rise to agreements which could result in resolution of the
above types of regulatory issues.
Comment: Other comments addressed the need for flexibility in
applying the proposed rules to:
(1) newly recognized tribes, restored tribes, and landless tribes
(including those whose land bases consist of scattered sites);
(2) lands within tribal consolidation areas, tribal service areas,
and ancestral areas or tribal homelands; and
(3) acquisitions for non-commercial purposes, such as housing,
recreation, and mineral development, resource protection or wildlife
management.
Response: It should be noted that the revised introductory
paragraph exempts acquisitions on behalf of newly recognized or
restored tribes, when such acquisitions are ``legally mandated'' by
legislation or court order.
Designated (off-reservation) tribal consolidation areas will be
treated as other off-reservation lands, pending the issuance of further
rules under the Indian Financing Act of 1974 and the Indian Land
Consolidation Act (ILCA); tribal service areas will be treated as other
off-reservation lands, unless such areas fall within the exception for
``legally mandated'' acquisitions. The new 25 CFR 151.11(b) allows
landless tribes (i.e., those without any trust lands) to acquire land
within their aboriginal homelands, subject to the other restrictions in
25 CFR 151.11.
Section 151.11(b) Geographic Limitations
Comment: Those provisions which prohibit off-reservation
acquisitions of ``out-of-state'' lands (i.e., lands in a state other
than that in which the acquiring tribe's ``reservation or trust lands''
are located) were opposed on the grounds that out-of-state lands may be
historically significant, vital to tribal economic self-sufficiency, or
within a designated tribal consolidation area or tribal service area.
Specifically, some of [[Page 32876]] the commenters suggested that the
proposed rule would discriminate against geographically isolated
tribes, and should not apply to acquisitions for gaming purposes [due
to preemption by the Indian Gaming Regulatory Act (IGRA)].
The exception on out-of-state acquisitions, was largely attacked as
being too vague and inflexible. However, one commenter indicated that
the exception should be modified to flatly prohibit any out-of-state
acquisition for gaming purposes. Another commenter objected to the
provision which would implicitly require that excepted tribes provide
greater justifications for out-of-state acquisitions. Another comment
suggested that the rule be expanded to require that such justifications
include evaluations of alternative sites.
Response: The provisions which prohibit off-reservation
acquisitions of ``out-of-state'' lands have been deleted. The portion
of the proposed rule which referred to administrative costs has been
deleted and other minor editorial changes (including the elimination of
the term ``current or former reservation'') have been made in 25 CFR
151.11(b) of this Part.
The rule has not been relaxed for acquisitions of lands within
tribal consolidation areas or tribal services areas, unless such
acquisitions are legally mandated. The blanket exception for landless
tribes has been narrowed to require that any lands to be acquried on
behalf of such tribe be located in a state in which the tribe's
aboriginal homelands are located. (Guidance in identifying ``aboriginal
homelands'' may be obtained from federal court decisions and Indian
Claims Commission proceedings.) It should be noted that the absence of
more proximate economic opportunities would provide part of the
``greater justification'' required by 25 CFR 151.11(b) of this Part.
Comment: Comments about greater justifications as distance
increases suggested that such distance should be irrelevant. Commenters
questioned whether the use of the phrase ``current or former
reservation'' was meant to distinguish the general definition of
``Indian reservation'' set forth in 25 CFR 151.2. They also questioned
whether administrative costs should be considered, under either the
existing 25 CFR 151.10 or the provision in the proposed rule which
would suggest that such costs be addressed in tribal justifications.
Response: It should be noted that the BIA has informally required
such justifications for acquisitions of distant lands since 1980.
Section 20(c) of IGRA expressly restricts the Secretary's authority to
acquire land for gaming purposes.
The rule's exception for acquisitions on behalf of tribes which
``have lands in one state but are located near the border of another
state'' has been narrowed (to ensure that the land to be acquired is
located near existing trust land). The term ``near'' has been retained
(to be defined on a case-by-case basis, in the exercise of the
Secretary's discretion).
Section 151.11(b) Acquisitions in Non-Indian Communities
Comment: Commenters objected to the provision which would require
that tribes show that trust status is essential to the planned use of
off-reservation property which is located ``within an urbanized and
primarily non-Indian community.'' Commenters noted that the proposed
rule would have the following anomalous results:
(1) Off-reservation acquisitions which would not have adverse
jurisdictional impacts (i.e., where trust status is not essential to
the planned use) would be prohibited, even thought he apparent purpose
of the rule was to discourage gaming acquisitions and other
acquisitions which would have such impacts;
(2) ``Low-impact'' off-reservation acquisitions within urban
communities might be prohibited, even through ``high-impact'' on-
reservation acquisitions within similar communities would be permitted;
(3) Tribal members how have relocated to urban communities would be
denied the opportunity to benefit directly from many potential tribal
economic development projects; and
(4) The cost of many tribal initiatives and federal housing
projects would be driven up due to the relatively higher infrastructure
costs associated with on-reservation construction.
Commenters criticized the proposed rule on the ground that the
phrase ``urbanized and primarily non-Indian community'' was vague and
over-broad, and one of the commenters expressed concern that the rule
could possibly be applied to limit acquisitions in areas which are
primarily rural in character.
Another commenter noted that, while trust status might not be
essential for a particular use, the economic benefits to be derived
from such use (which would also be covered by the proposed rule) could
depend on trust status; it was thus suggested that the ``essential''
requirement be more clearly defined.
Response: 25 CFR 151.11(c) has been revised and the last sentence
has been deleted. This change is based on the fact that the new 25 CFR
151.11(b) will already require that tribes whose reservations are not
located in urban communities provide a ``greater justification'' when
lands in such communities are to be acquired. [It is also anticipated
that ``high-impact'' acquisitions in urban communities will be limited
by the consultation process set forth in 25 CFR 151.11(d) of this
Part.] The deletion of the last sentence is also based on the specific
criticisms set forth in the comments, i.e., that the proposed rule
would be ambiguous, anti-growth, and detrimental to tribes whose
reservations are located in urban communities (and other tribes whose
justifications would otherwise suffice).
Section 151.11(c) Economic Development Plans
Comment: Commenters suggested that economic development plans
should not be needed when land is being acquired for non-commercial
purposes.
Response: An introductory clause has been added to exempt non-
business acquisitions.
Comment: Commenters also indicated that the proposed rule would
undermine tribal sovereignty and self-sufficiency by:
(1) Allowing the BIA to second-guess tribal leaders' business
decisions;
(2) Forcing the disclosure of confidential business information;
and
(3) Preventing tribes from acquiring investment properties for
future development.
Response: It should be noted that the likelihood of success of an
off-reservation project has long been considered by the Secretary in
deciding whether to accept title to the underlying lands in trust
status. [It should also be noted that the feasibility of the proposed
use would already be considered pursuant to 25 CFR 151.10(c), which
will be incorporated at 25 CFR 151.11(a) of this Part.]
Comment: Another commenter suggested that pre-acquisition planning
would necessarily be so speculative as to be of minimal value, and one
commenter recommended that the planning requirement be made applicable
to only those acquisitions which are opposed by local governing bodies.
Response: 25 CFR 151.11(c) of this Part will merely require that
the acquiring tribe has a plan for the immediate development or
utilization of the property, and that the plan reflects that a prudent
buyer would complete the acquisition (given the projected return on
investment, incidental benefits, and risks associated with the proposed
use). It should be noted that certain confidential business
[[Page 32877]] information would be exempt from disclosure under the
Freedom of Information Act, 5 U.S.C. 552.
Seciton 151.11(d) Ordinances
Comment: Commenters suggested that the scope of the proposed rule
be narrowed to better reflect its apparent purpose (to protect the
health, safety, and welfare of the general public); specifically, ti
was suggested that the rule be made applicable only to acquisitions for
commercial development purposes (or, alternatively, that it be made
inapplicable to acquisitions for housing purposes).
Commenters criticized the proposed rule on the grounds that the
``comparability'' standard is too vague, and the incorporation of all
local ordinances too broad. Individual commenters specifically asked
whether the proposed rule would:
(1) mandate absolute compliance with local ordinances, or merely
``a documented effort'' to adopt similar standards (as suggested in the
preamble to the proposed rules);
(2) require that tribes also adopt comparable implementation
processes and enforcement capabilities, or modify their adopted
ordinances in order to comply with local ordinances; and
(3) allow tribes to adopt higher standards than the relevant local
governing bodies, or freely modify adopted ordinances to accommodate
changes in land use. Individual commenters suggested that the rule
cover only those ordinances which pertain to land use or construction,
or those which are identified by local government through consultation.
Response: It is anticipated that the consultation process described
in Section 25 CFR 151.11(d) of this Part will result in the negotiation
of agreements between tribes and local government, relative to
regulatory issues which pertain to public health, safety, and welfare.
Where such agreements do not result, and jurisdictional issues remain
unresolved, it will be left to the Secretary's discretion to balance
the potential benefits to be derived by the acquiring tribe against the
potential harm to the general public. (It should also be noted that
lands which are acquired with federal funds may be subject to certain
federal standards.) The deletion of the proposed 25 CFR 151.11(d) is
also based on the criticisms set forth in the comments, i.e., that the
proposed rule would be shortsighted, overly cumbersome, and largely
unenforceable.
Comment: Commenters expressed concern that the delimiting language
in the proposed rule would allow local government to tax off-
reservation trust lands and the activities conducted thereon.
Response: It should be noted that the only taxation issues to be
directly considered in the consultation process are those which relate
to a proposed acquisition's potential impacts on real property taxes or
special assessments. (Other tax impacts may also be considered, if they
will curtail the local government's ability to provide specific
community services.)
Comment: Commenters indicated that the proposed rule would
contradict other federal policies supporting tribal sovereignty and
self-determination. It was noted that local ordinances may reflect
political considerations wholly unrelated to concerns about public
health and safety. It was suggested that the rule flatly provide that
the lands to be acquired would be subject to state regulatory
jurisdiction. Commenters questioned whether the local ordinances would
have to be formally adopted prior to the completion of the acquisition
process.
Response: It should be noted that current law suggests that (in the
absence of cooperative agreements) tribal, federal, and state/local
jurisdiction over off-reservation trust lands will be mixed, depending
on the activities and parties to be regulated. The proposed 25 CFR
151.11(d) has been deleted.
Section 151.11(e) Notice and Consultation
The proposed 25 CFR 151.11(e) will be re-designated as 25 CFR
151.11(d).
Comment: The provision which requires that ``affected state and
local governments'' be notified of all proposed off-reservation
acquisitions, and given thirty days in which to provide written
comments, was criticized as being both too vague in its reference to
``affected'' governments and too restrictive in its definition of the
comment period. Commenters suggested that the proposed rule be
clarified to ensure that neighboring jurisdictions would be given an
opportunity to comment, and another suggested that the rule specify
which state and local offices would be contacted.
Response: Based on the BIA's past experience with its informal
consultation procedures, the 30-day response time set forth in the
proposed 25 CFR 151.11(e) (re-designated 151.11(d)) has been retained
in the new rule.
Relative to these revisions, it should be noted that (1) the
narrower definition of the ``notified party'' will generally mean city
or county officials, but will also recognize the wide variation in the
designations and functions of ``local governments,'' as well as the
fact that many such governments operate as administrative agents for
the states (especially in rural settings); (2) the burden of obtaining
additional information from state officials, neighboring jurisdictions,
or other units of local governments (including special function
districts, public authorities, or higher political subdivisions) will
rest with the local officials who are directly notified by the BIA; and
(3) the BIA notices will identify the land to be acquired and the
acquiring tribe (as has been done under the informal notice and comment
procedures), as well as the tribe's proposed use (which has generally
not been identified in the past).
Comment: Provisions which would require tribes to consult with
opposing local governments were objected to on the ground that it would
undermine tribal sovereignty by granting state and local governments an
effective veto power over tribal acquisitions. Commenters acknowledged
that some consultation process would be essential to the tribes'
implementation of a government-to-government relationship, others said
that such a process would be marred by racial bias and discrimination.
Response: It should be noted that tribal governmental authority
over land will generally not attach until the Secretary accepts title
to this land in trust status. It should also be noted that the new 25
CFR 151.11(d) will not create a veto power, and that objections which
are not made in good faith (or which are clearly biased) will be
discounted in the decision-making process.
As for the assertion that the case precedent for the BIA's informal
consultation procedures has been overruled, it should be noted that the
preamble to the original 25 CFR 120a (now 25 CFR 151) cited the need
for a uniform policy as the basis for its issuance; it should also be
noted that (while the case cited by the commenter held that local
governments are not entitled to formal notification as a matter of due
process) the preamble to the proposed rules indicated that the notice
requirement set forth in the proposed 25 CFR 151.11(e) (re-designated
151.11(d)) would be based primarily on principles of federalism.
Comment: Other commenters recommended that the comment period be
extended, and requested that additional supplemental information be
furnished with the notifications. Others suggested, however, that
certain proposals would be unduly [[Page 32878]] compromised by the
release of additional information, and another indicated that the case
precedent for the BIA's existing (non-regulatory) notice requirement
had been overruled.
Response: 25 CFR 151.11(d) has been revised to (1) generally
identify the local government to be notified as the ``lowest political
subdivision having jurisdiction over the land to be acquired''; and (2)
codify certain informal procedures (relative to the solicitation of
specific information and the presumption of no impact when a response
is not received within thirty days) which have been implemented by BIA
since 1980.
Comment: Commenters addressed those provisions within the proposed
rule which would describe the consultation process. (Where a state or
local government formally opposes a proposed acquisition, or ``raises
concerns'' relative thereto, the rule would require that the acquiring
tribe ``consult with them and attempt to resolve any conflicts
including, but not limited to, issues concerning taxation, zoning and
jurisdiction''; the proposed rule would also permit the tribe to submit
documentation of its discussions with state or local governments,
whether the formal consultation process is triggered or not.) It was
suggested that the consultation process should be triggered only by
good faith objections, rather than mere ``concerns,'' and that the
proposed rule be clarified to reflect that a tribe's burden would be
met by a mere good faith attempt at resolution. Where differences
remain unresolved after consultation, it was suggested that state and
local governments should be allowed to submit their own documentation
of consultation efforts. Another suggested that a formal dispute
resolution process be incorporated in the proposed rule, and a (non-
BIA) federal official recommended that the BIA assume a mediation role.
It was also recommended that the consultation process be terminated
at the end of a specific time period. Other commenters said that the
process should be made: (1) applicable to court-ordered acquisitions
not otherwise subject to 25 CFR 151.10 or 151.11 of this Part; (2)
inapplicable to acquisitions of off-reservation lands which have been
designated in land consolidation plans approved pursuant to ILCA; and
(3) consistent with provisions in the Federal Land Policy and
Management Act (FLPMA) which require state approval.
Response: With respect to the comments which suggested that the
rule provide for arbitration or mediation where differences remain
unresolved after consultation, it should again be noted that such cases
will be left to the Secretary's discretion (to balance the potential
benefits to be derived by the acquiring tribe against the potential
harm to the general public). With respect to the comments which
suggested that the consultation process be made applicable to court-
ordered acquisitions, it should again be noted that the introductory
paragraph to 25 CFR 151.11 of this Part will expressly exempt such
``legally mandated'' acquisitions. With respect to the comment which
suggested that the new rule be made inapplicable to acquisitions of
off-reservation lands which have been designated in approved land
consolidation plans, it should again be noted such lands will be
treated as other off-reservation lands (and thus subject to 25 CFR
151.11) pending the promulgation of further rulemaking. With respect to
the comment which suggested that the consultation process be made
consistent with the Federal Land Policy and Management Act (FLPMA), it
should be noted that Congress has clearly distinguished conveyances of
public lands (which are subject to consultation, under FLPMA) for
acquisitions on behalf of sovereign tribes (which are not subject to
any statutory consultation requirements).
Section 151.11(e) Delegations of Authority and Appealability
Comment: Commenters objected to those provisions within the
proposed 25 CFR 151.11(e) (re-designated 151.11(d)) which indicate that
the Assistant Secretary-Indian Affairs would issue the above-described
notifications of proposed off-reservation acquisitions. It was
suggested that the authority to issue such notices and ultimately
approve the acquisitions should be delegated to the BIA's agency or
area office level, in order to comply with ongoing efforts to
reorganize the BIA and decentralize its critical functions. One
commenter questioned whether the proposed rule was meant to separate
the local BIA staff from the entire acquisition process (where off-
reservation lands are to be acquired), and whether the ``final
decision'' to be made by the Assistant Secretary would be appealable.
It was suggested that the proposed rule specifically provide that the
Assistant Secretary's decision would be appealable to the Interior
Board of Indian Appeals.
Response: All references to the ``Assistant Secretary--Indian
Affairs'' in the proposed 25 CFR 151.11(e) (re-designated 151.11(d))
will be changed to ``Secretary'', as indicated above, and the final
sentence in the proposed 25 CFR 151.11(e) (re-designated 151.11(d))
will be deleted.
This change will ensure that all actions will be taken by an
authorized official, since 25 CFR 151.2(a) of this Part will define
``Secretary'' to mean ``the Secretary of the Interior or authorized
representative.'' It is anticipated that local BIA officials will
continue to notify local governments of proposed off-reservation
acquisitions, but that the authority to approve certain acquisitions
may continue to be held by the Assistant Secretary--Indian Affairs or
the BIA Area Directors. It is also anticipated that the recommendations
of the intertribal group which recently reported on the possible
reorganization of the BIA will be considered in determining which
offices should have the ultimate approval authority.
In response to the comments which questioned whether decisions on
off-reservation acquisition requests would be appealable, the final
sentence in the proposed 25 CFR 151.11(e) (re-designated 151.11(d)) has
been deleted. This change is needed to ensure that such decisions will
be appealable if they are made below the Assistant Secretary--Indian
Affairs' level. If the authority to make such decisions is held by the
Assistant Secretary--Indian Affairs, the decision would be ``final''
for the Department of the Interior and therefore not appealable.
Section 151.12 Off-reservation Acquisitions for Gaming
In response to the comments received, it has been determined by the
Bureau of Indian Affairs that the proposed section 151.12 of this part
will not be adopted and a new part will be added to the 25 CFR
pertaining to off-reservation acquisitions for gaming.
List of Subjects in 25 CFR Part 151
Indians--lands, Reporting and recordkeeping requirements.
For reasons set out in the preamble, Part 151 of Title 25, Chapter
I of the Code of Federal Regulations is amended as set forth below.
PART 151--LAND ACQUISITIONS (NONGAMING)
1. The authority citation for Part 151 is revised to include 25
U.S.C. 2 and 9 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; [[Page 32879]] 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. In Sec. 151.2, paragraph (a) is revised to read as follows:
Sec. 151.2 Definitions.
(a) ``Secretary'' means the Secretary of the Interior or authorized
representative.
* * * * *
Section 151.10 is amended by revising the section heading and
introductory text and by adding a new paragraph (h) to read as follows:
Sec. 151.10 On-reservation acquisitions.
Upon receipt of a written request to have lands taken in trust, the
Secretary will notify the state and local governments having regulatory
jurisdiction over the land to be acquired, unless the acquisition is
mandated by legislation. The notice will inform the state or local
government that each will be given 30 days in which to provide written
comments as to the acquisition's potential impacts on regulatory
jurisdiction, real property taxes and special assessments. If the state
or local government responds within a 30-day period, a copy of the
comments will be provided to the applicant, who will be given a
reasonable time in which to reply and/or request that the Secretary
issue a decision. The Secretary will consider the following criteria in
evaluating requests for the acquisition of land in trust status when
the land is located within or contiguous to an Indian reservation, and
the acquisition is not mandated:
* * * * *
(h) The extent to which the applicant has provided information that
allows the Secretary to comply with 516 DM 6, Appendix 4, National
Environmental Policy Act Revised Implementing Procedures, and 602 DM 2,
Land Acquisitions: Hazardous Substances Determinations. (For copies,
write to the Department of the Interior, Bureau of Indian Affairs,
Branch of Environmental Services, 1849 C Street NW, Room 4525 MIB,
Washington, DC 20240.)
Secs. 151.11 through 151.14 [Redesignated as 151.12 through 151.15]
4. Sections 151.11 through 151.14 are redesignated as 151.12
through 151.15, respectively.
5. A new Sec. 151.11 is added to read as follows:
Sec. 151.11 Off-reservation acquisitions.
The Secretary shall consider the following requirements in
evaluating tribal requests for the acquisition of lands in trust
status, when the land is located outside of and noncontiguous to the
tribe's reservation, and the acquisition is not mandated:
(a) The criteria listed in Section 151.10 (a) through (c) and (e)
through (h);
(b) The location of the land relative to state boundaries, and its
distance from the boundaries of the tribe's reservation, shall be
considered as the distance between the tribe's reservation and the land
to be acquired increases, the Secretary shall give greater scrutiny to
the tribe's justification of anticipated benefits from the acquisition.
The Secretary shall give greater weight to the concerns raised pursuant
to paragraph (d) of this section.
(c) Where land is being acquired for business purposes, the tribe
shall provide a plan which specifies the anticipated economic benefits
associated with the proposed use.
(d) Contact with state and local governments pursuant to 151.10 (e)
and (f) shall be completed upon receipt of a tribe's written request to
have lands taken in trust, the Secretary shall notify the state and
local governments having regulatory jurisdiction over the land to be
acquired. The notice shall inform the state and local government that
each will be given 30 days in which to provide written comment as to
the acquisition's potential impacts on regulatory jurisdiction, real
property taxes and special assessments.
6. Newly designated Sec. 151.15 is revised to read as follows:
Sec. 151.15 Information collection.
(a) The information collection requirements contained in Sections
151.9; 151.10; 151.11(2)(c), and 151.13 have been approved by the
Office of Management and Budget under 44 U.S.C. 3501 et seq. and
assigned clearance number 1076-0100. This information is being
collected to acquire land into trust on behalf of the Indian tribes and
individuals, and will be used to assist the Secretary in making a
determination. Response to this request is required to obtain a
benefit.
(b) Public reporting for this information collection is estimated
to average 4 hours per response, including the time for reviewing
instructions, gathering and maintaining data, and completing and
reviewing the information collection. Direct comments regarding the
burden estimate or any other aspect of this information collection to
the Bureau of Indian Affairs, Information Collection Clearance Officer,
Room 337-SIB, 18th and C Streets, NW., Washington, DC 20240; and the
Office of Information and Regulatory Affairs [Project 1076-0100],
Office of Management and Budget, Washington, DC 20502.
March 20, 1995.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 95-15215 Filed 6-22-95; 8:45 am]
BILLING CODE 4310-02-M
