67928 Federal Register / Vol. 78, No. 219 / Wednesday, November 13, 2013 / Rules and Regulations 

SUMMARY: 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 

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. 

[FR Doc. 2013–27122 Filed 11–12–13; 8:45 am] 

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 

AGENCY: Bureau of Indian Affairs, 

Interior. 

ACTION: Final rule. 

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 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 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 78, No. 219 / Wednesday, November 13, 2013 / Rules and Regulations 67929 

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. 

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; 

• 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. 

• 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 30- 

day waiting period was added to 

§ 151.12 in 1996 to allow parties to seek 

judicial review of the Secretary’s 


emcdonald on DSK67QTVN1PROD with RULES
67930 Federal Register / Vol. 78, No. 219 / Wednesday, November 13, 2013 / Rules and Regulations 

3For 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. 

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. 

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 § 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 

§ 151.12, including changes from the 

proposed rule to the final rule. 

Existing 25 

CFR § Existing provision Description of change from existing 

Proposed 25 

CFR §

Final 25 

CFR §

Description of change from 

proposed 

151.12(a) ............ ‘‘The Secretary shall review 

all requests and shall 

promptly notify the applicant in writing of his 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. 

151.12(a) ............ ‘‘The Secretary may request any additional information or justification 

he considers necessary 

to enable him to reach a 

decision.’’.

No substantive change 

from existing.

151.12(a) ......... 151.12(a) ......... No substantive change 

from proposed. 


emcdonald on DSK67QTVN1PROD with RULES
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 §

Description of change from 

proposed 

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.’’.

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).

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 * * *’’.

The requirement for a title 

examination has been 

moved to (c)(2)(iii) and 

(d)(2)(iv)(B).

152.12(c) & (d) 152.12(c) & (d) No substantive change 

from proposed. 

151.12(b) ............ ‘‘. . . and the exhaustion 

of any administrative 

remedies. . .’’.

The requirement for exhaustion of administrative remedies has been 

moved to (d), which is 

applicable only to decisions issued by a BIA official.

152.12(d) ......... 151.12(d) ......... Adds explicit reference to 

exhaustion in (d)(2)(iv). 

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.’’.

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.

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(b) ............ ‘‘The notice will state that a 

final agency determination to take land in trust 

has been made and 

. . .’’.

States that a decision 

issued by the Assistant 

Secretary is final for the 

Department.

151.12(c) ......... 151.12(c) ......... No substantive change 

from proposed. 


emcdonald on DSK67QTVN1PROD with RULES
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). 

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 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 78, No. 219 / Wednesday, November 13, 2013 / Rules and Regulations 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 § 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 

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 

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 


emcdonald on DSK67QTVN1PROD with RULES
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. 

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 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 78, No. 219 / Wednesday, November 13, 2013 / Rules and Regulations 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 


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 

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 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, 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 78, No. 219 / Wednesday, November 13, 2013 / Rules and Regulations 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 

■ 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 


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 

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 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of deviation from 

drawbridge regulation. 

SUMMARY: 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; 

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 

AGENCY: Copyright Royalty Board, 

Library of Congress. 

ACTION: Final rule. 

SUMMARY: The Copyright Royalty Judges 

are publishing final regulations setting 


emcdonald on DSK67QTVN1PROD with RULES