24648 Federal Register / Vol. 79, No. 84 / Thursday, May 1, 2014 / Proposed Rules 

XI. Codification of Orders 

Prior to the amendments by FDASIA, 

section 515(b) of the FD&C Act provided 

for FDA to issue regulations to require 

approval of an application for premarket 

approval for preamendments devices or 

devices found substantially equivalent 

to preamendments devices. Section 

515(b) of the FD&C Act, as amended by 

FDASIA, provides for FDA to require 

approval of an application for premarket 

approval for such devices by issuing a 

final order, following the issuance of a 

proposed order in the Federal Register. 

FDA will continue to codify the 

requirement for an application for 

premarket approval, resulting from 

changes issued in a final order, in the 

Code of Federal Regulations (CFR). 

Therefore, under section 515(b)(1)(A) of 

the FD&C Act, as amended by FDASIA, 

in this proposed order, we are proposing 

to require approval of an application for 

premarket approval for surgical mesh 

for transvaginal POP repair and, if this 

proposed order is finalized, we will 

make the language in § 884.5980 

consistent with the final version of this 

proposed order. 

XII. Comments 

Interested persons may submit either 

electronic comments regarding this 

document to http://www.regulations.gov 

or written comments to the Division of 

Dockets Management (see ADDRESSES). It 

is only necessary to send one set of 

comments. Identify comments with the 

docket number found in brackets in the 

heading of this document. Received 

comments may be seen in the Division 

of Dockets Management between 9 a.m. 

and 4 p.m., Monday through Friday, and 

will be posted to the docket at http://

www.regulations.gov. 

XIII. References 

The following references have been 

placed on display in the Division of 

Dockets Management (see ADDRESSES) 

and may be seen by interested persons 

between 9 a.m. and 4 p.m., Monday 

through Friday, and are available 

electronically at http://

www.regulations.gov. (FDA has verified 

all the Web site addresses in this 

reference section, but we are not 

responsible for any subsequent changes 

to the Web sites after this document 

publishes in the Federal Register.) 

1. ‘‘FDA Public Health Notification: Serious 

Complications Associated With 

Transvaginal Placement of Surgical Mesh 

in Repair of Pelvic Organ Prolapse and 

Stress Urinary Incontinence’’, October 

20, 2008, available at http://

www.fda.gov/MedicalDevices/Safety/

AlertsandNotices/

PublicHealthNotifications/

ucm061976.htm. 

2. ‘‘FDA Safety Communication: UPDATE on 

Serious Complications Associated With 

Transvaginal Placement of Surgical Mesh 

for Pelvic Organ Prolapse,’’ July 13, 

2011, available at http://www.fda.gov/

MedicalDevices/Safety/

AlertsandNotices/ucm262435.htm. 

3. ‘‘FDA Executive Summary: Surgical Mesh 

for Treatment of Women With Pelvic 

Organ Prolapse and Stress Urinary 

Incontinence, Obstetrics & Gynecological 

Devices Advisory Committee Meeting’’, 

September 8–9, 2011, available at 

http://www.fda.gov/

AdvisoryCommittees/

CommitteesMeetingMaterials/

MedicalDevices/

MedicalDevicesAdvisoryCommittee/

ObstetricsandGynecologyDevices/

ucm262488.htm. 

4. FDA Meeting of the Obstetrics & 

Gynecological Devices Panel, September 

8–9, 2011, available at http://

www.fda.gov/AdvisoryCommittees/

CommitteesMeetingMaterials/

MedicalDevices/

MedicalDevicesAdvisoryCommittee/

ObstetricsandGynecologyDevices/

ucm262488.htm. 

5. Blue Book Memo #G–95–1 ‘‘Use of 

International Standard ISO–10993, 

Biological Evaluation of Medical Devices 

Part 1: Evaluation and Testing,’’ May 1, 

1995, available at: http://www.fda.gov/

MedicalDevices/

DeviceRegulationandGuidance/

GuidanceDocuments/ucm080735.htm. 

List of Subjects in 21 CFR Part 884 

Medical devices. 

Therefore, under the Federal Food, 

Drug, and Cosmetic Act and under 

authority delegated to the Commissioner 

of Food and Drugs, it is proposed that 

21 CFR part 884 be amended as follows: 

PART 884—OBSTETRICAL AND 

GYNECOLOGICAL DEVICES 

■ 1. The authority citation for 21 CFR 

part 884 continues to read as follows: 

Authority: 21 U.S.C. 351, 360, 360c, 360e, 

360j, 371. 

■ 2. Add paragraph (c) to § 884.5980, 

Subpart F, to read as follows: 

§ 884.5980 Surgical mesh for transvaginal 

pelvic organ prolapse repair. 

* * * * * 

(c) Date premarket application 

approval or notice of completion of a 

product development protocol is 

required. A premarket application 

approval or notice of completion of a 

product development protocol for a 

device is required to be filed with the 

Food and Drug Administration on or 

before [90 DAYS AFTER DATE OF 

PUBLICATION OF FINAL ORDER FOR 

PREMARKET APPLICATION OR 30 

MONTHS AFTER DATE OF 

PUBLICATION OF FINAL ORDER 

RECLASSIFYING INTO CLASS III, 

WHICHEVER IS LATER], for any 

surgical mesh described in paragraph (a) 

of this section that was in commercial 

distribution before May 28, 1976, or that 

has, on or before [90 DAYS AFTER 

DATE OF PUBLICATION OF FINAL 

ORDER FOR PREMARKET APPROVAL 

APPLICATIONS OR 30 MONTHS 

AFTER DATE OF PUBLICATION OF 

FINAL ORDER RECLASSIFYING INTO 

CLASS III, WHICHEVER IS LATER] 

been found substantially equivalent to a 

surgical mesh described in paragraph (a) 

of this section that was in commercial 

distribution before May 28, 1976. Any 

other surgical mesh intended for 

transvaginal pelvic organ prolapse 

repair shall have an approved premarket 

application or declared completed 

product development protocol in effect 

before being placed in commercial 

distribution. 

Dated: April 25, 2014. 

Leslie Kux, 

Assistant Commissioner for Policy. 

[FR Doc. 2014–09909 Filed 4–29–14; 8:45 am] 

BILLING CODE 4160–01–P 

DEPARTMENT OF THE INTERIOR 

Bureau of Indian Affairs 

25 CFR Part 151 

[Docket ID: BIA 2014–0002; K00103 12/13 

A3A10; 134D0102DR–DS5A300000– 

DR.5A311.IA000113] 

RIN 1076–AF23 

Land Acquisitions in the State of 

Alaska 

AGENCY: Bureau of Indian Affairs, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: This proposed rule would 

delete a provision in the Department of 

the Interior’s land-into-trust regulations 

that excludes from the scope of the 

regulations, with one exception, land 

acquisitions in trust in the State of 

Alaska. 

DATES: Comments on this proposed rule 

must be received by June 30, 2014. 

Comments on the information 

collections contained in this proposed 

regulation are separate from those on 

the substance of the rule. Comments on 

the information collection burden 

should be received by June 2, 2014 to 

ensure consideration, but must be 

received no later than June 30, 2014. 

ADDRESSES: You may submit comments 

by any of the following methods: 

mstockstill on DSK4VPTVN1PROD with PROPOSALS

Federal Register / Vol. 79, No. 84 / Thursday, May 1, 2014 / Proposed Rules 24649 

—Federal rulemaking portal: http://

www.regulations.gov. The rule is 

listed under the agency name ‘‘Bureau 

of Indian Affairs.’’ The rule has been 

assigned Docket ID: BIA–2014–0002. 

—Email: consultation@bia.gov. Include 

the number 1076–AF23 in the subject 

line of the message. 

—Mail: Elizabeth Appel, Office of 

Regulatory Affairs & Collaborative 

Action, U.S. Department of the 

Interior, 1849 C Street NW., 

Washington, DC 20240. Include the 

number 1076–AF23 in the 

submission. 

—Hand delivery: Elizabeth Appel, 

Office of Regulatory Affairs & 

Collaborative Action, U.S. Department 

of the Interior, 1849 C Street NW., 

Washington, DC 20240. Include the 

number 1076–AF23 in the 

submission. 

We cannot ensure that comments 

received after the close of the comment 

period (see DATES) will be included in 

the docket for this rulemaking and 

considered. Comments sent to an 

address other than those listed above 

will not be included in the docket for 

this rulemaking. 

Comments on the information 

collections contained in this proposed 

regulation are separate from those on 

the substance of the rule. Send 

comments on the information collection 

burden to OMB by facsimile to (202) 

395–5806 or email to the OMB Desk 

Officer for the Department of the 

Interior at OIRA_Submission@

omb.eop.gov. Please send a copy of your 

comments to the person listed in the 

FOR FURTHER INFORMATION CONTACT

section of this notice. 

FOR FURTHER INFORMATION CONTACT: 

Elizabeth Appel, Director, Office of 

Regulatory Affairs & Collaborative 

Action, (202) 273–4680; 

elizabeth.appel@bia.gov. 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary of Rule 

Section 5 of the Indian Reorganization 

Act (IRA), as amended, authorizes the 

Secretary of the Interior (Secretary) to 

acquire land in trust for individual 

Indians and Indian tribes in the 

continental United States and Alaska. 

25 U.S.C. 465; 25 U.S.C. 473a. For 

several decades, the Department’s 

regulations at 25 CFR part 151, which 

establish the process for taking land into 

trust, have included a provision stating 

that the regulations in part 151 do not 

cover the acquisition of land in trust 

status in the State of Alaska, except 

acquisitions for the Metlakatla Indian 

Community of the Annette Island 

Reserve or its members (the ‘‘Alaska 

Exception’’). 25 CFR 151.1. This rule 

would delete the Alaska Exception, 

thereby allowing applications for land 

to be taken into trust in Alaska to 

proceed under part 151. The decision to 

take land into trust is a decision made 

on a case-by-case basis. Thus, even with 

the deletion, the Department would 

retain its usual discretion to grant or 

deny land-into-trust applications. 

II. Background and Explanation 

The Alaska Exception in 25 CFR 151.1 

was promulgated in 1980, and it has 

remained the subject of debate since its 

creation. A number of recent actions, 

including a pending lawsuit, have 

caused the Department to look carefully 

at this issue again. Upon careful review, 

the Department proposes removal of the 

Alaska Exception. The acquisition of 

land in trust is one of the most 

significant functions that this 

Department undertakes on behalf of 

Indian tribes. Placing land into trust 

secures tribal homelands, which in turn 

advances economic development, 

promotes the health and welfare of 

tribal communities, and helps to protect 

tribal culture and traditional ways of 

life. These benefits of taking land into 

trust are equally as important to 

federally recognized Alaska Natives as 

well, and elimination of the Alaska 

Exception is thus important and 

warranted. 

History of the Alaska Exclusion and Its 

Interpretation 

The Alaska Exception was 

promulgated as part of the Department’s 

land-into-trust regulations in 1980, but 

a brief historical overview of the United 

States’ laws and policies governing the 

land claims of Alaska Natives is helpful 

to put its meaning into context. 

Although the United States acquired 

Alaska from Russia in 1867, 15 Stat. 

539, the aboriginal land claims of 

Alaska Natives remained largely 

unresolved for more than a century. A 

reservation was established by Congress 

in 1891 for the Metlakatla Indians, who 

had recently moved to Alaska from 

British Columbia. See Metlakatla 

Indians v. Egan, 369 U.S. 45, 48 (1962). 

Other reserves for Alaska Natives were 

established by executive order, as 

authorized by the IRA, 49 Stat. 1250 c. 

254, section 2 May 1, 1936 (repealed). 

See Cohen’s Handbook of Federal 

Indian Law section 4.07[3][b][iii], at 

337–38 (Nell Jessup Newton ed., 2012) 

(discussing the history of reservation 

policy in Alaska). Congress made 

provision for individual Alaska Natives 

to acquire title to land through the 

Alaska Native Allotment Act of May 17, 

1906, 34. Stat. 197, as amended, 43 

U.S.C. 270–1 et seq. (repealed 1976), 

and the Alaska Native Townsite Act, 

Act of May 25, 1926, Ch. 379, 44 Stat. 

629, as amended, 43 U.S.C. 733 et seq. 

(repealed 1976). The title that Alaska 

Natives received under these statutes 

was not held in trust but was subject to 

restrictions on alienation. United States 

v. Atlantic Richfield Co., 435 F. Supp. 

1009, 1015 (D. Alaska 1977), aff’d 612 

F.2d 1132 (9th Cir. 1980). 

In 1934, Congress enacted the IRA to 

‘‘establish machinery whereby Indian 

tribes would be able to assume a greater 

degree of self-government, both 

politically and economically.’’ Morton v. 

Mancari, 417 U.S. 535, 542 (1974). 

Section 5 of the IRA, described as the 

‘‘capstone’’ of the land-related 

provisions in the IRA, authorizes the 

Secretary, in her discretion, to acquire 

land in trust on behalf of Indian tribes 

or individual Indians. 25 U.S.C. 465; 

Cohen’s Handbook of Federal Indian 

Law section 15.07[1][a], at 1040. Section 

5 was not among the provisions of the 

IRA, as originally enacted, that applied 

in Alaska. Two years later, however, 

Congress expressly extended this 

provision to the Territory of Alaska. Act 

of May 1, 1936, Public Law 74–538, 

section 1, 49 Stat. 1250 (codified at 25 

U.S.C. 473a). The 1936 Act also 

authorized the Secretary to designate 

reservations on certain Alaska lands, id. 

section 2, 49 Stat. 1250–51, and seven 

reservations were established under that 

authority, see Cohen’s Handbook of 

Federal Indian Law section 

4.07[3][b][iii], at 338. 

In 1971, Congress enacted the Alaska 

Native Claims Settlement Act (ANCSA), 

Public Law 92–203, 85 Stat. 688 

(codified as amended at 43 U.S.C. 1601 

et seq.), ‘‘a comprehensive statute 

designed to settle all land claims by 

Alaska Natives.’’ Alaska v. Native 

Village of Venetie Tribal Government, 

522 U.S. 520, 523 (1998). The Act 

revoked all but one of the existing 

Native reserves, repealed the authority 

for new allotment applications, and set 

forth a broad declaration of policy to 

settle land claims. See 43 U.S.C. 

1618(a), 1617(d) and 1601(b). It did not, 

however, revoke the Secretary’s 

authority, under Section 5 of the IRA, to 

take Alaska land in trust for Alaska 

Natives. 

Notwithstanding the law’s failure to 

withdraw authority previously given by 

Congress to the Secretary, the passage of 

ANCSA sparked discussion as to the 

continued wisdom of using Section 5 of 

the IRA to acquire land in trust for 

Alaska Natives. The debate became 

focused in the mid-1970s when the 

Native Village of Venetie Tribal 

Government requested that the lands of 

mstockstill on DSK4VPTVN1PROD with PROPOSALS

24650 Federal Register / Vol. 79, No. 84 / Thursday, May 1, 2014 / Proposed Rules 

its former reserve, which had been 

revoked by ANCSA and conveyed to 

ANCSA village corporations in fee 

simple, be taken back into trust status. 

In a 1978 opinion, the then-Associate 

Solicitor for Indian Affairs concluded 

that in enacting ANCSA, Congress had 

evinced an ‘‘unmistakable’’ intent to 

‘‘permanently remove all Native lands 

in Alaska from trust status.’’ ‘‘Trust 

Land for the Natives of Venetie and 

Arctic Village,’’ Memorandum to 

Assistant Secretary—Indian Affairs from 

Associate Solicitor—Indian Affairs, 

Thomas W. Fredericks, at 1 (Sept. 15, 

1978). The memorandum determined 

that ‘‘it would . . . be an abuse of the 

Secretary’s discretion to attempt to use 

Section 5 of the IRA . . . to restore the 

former Venetie Reserve to trust status.’’ 

Id. at 3. The memorandum concluded 

that Congress in ANCSA intended not to 

create a trusteeship or a reservation 

system, and therefore, it would be an 

abuse of discretion for the Secretary to 

acquire lands in trust in Alaska. Id. 

A few months before the 1978 legal 

opinion was issued, the Secretary 

proposed a regulation to govern the 

taking of land into trust. The proposed 

rule made no special mention of Alaska. 

See 43 FR 32311 (July 19, 1978). 

However, when the final regulation was 

published in 1980, it contained the 

Alaska Exception found in 25 CFR 

151.1. The preamble explained the 

change by relying on the same rationale 

used in the 1978 Opinion, stating that 

during the notice-and-comment period, 

‘‘[i]t was . . . pointed out that the 

Alaska Native Claims Settlement Act 

does not contemplate the further 

acquisition of land in trust status, or the 

holding of land in such status, in the 

State of Alaska, with the exception of 

acquisitions for the Metlakatla Indian 

Community.’’ 45 FR 62034 (Sept. 18, 

1980). Consequently, a sentence was 

added ‘‘to specify that the regulations 

do not apply, except for Metlakatla, in 

the State of Alaska.’’ Id. 

In 1995, the Department invited 

public comment on a petition by three 

Native groups in Alaska requesting the 

Department to initiate a rulemaking that 

would remove the prohibition in the 

regulations on taking Alaska land in 

trust. See 60 FR 1956 (Jan. 5, 1995). 

Later, in 1999, the Department issued a 

proposed rule to amend the land into 

trust regulations. 64 FR 17574 (Apr. 12, 

1999). Although the proposed rule 

retained the bar on taking land into trust 

in Alaska, id. at 17578, the Department 

recognized that the Alaska Exception 

was ‘‘predicated’’ on the 1978 legal 

opinion and stated that ‘‘[a]lthough that 

opinion has not been withdrawn or 

overruled, we recognize that there is a 

credible legal argument that ANCSA did 

not supersede the Secretary’s authority 

to take land into trust in Alaska under 

the IRA.’’ Id. at 17577–78 . Accordingly, 

the Department invited ‘‘comment on 

the continued validity of the Associate 

Solicitor’s opinion and issues raised by 

the petition noticed at 60 FR 1956 

(1995).’’ Id. at 17578. 

In 2001, after due consideration of 

comments and legal arguments 

submitted by Alaska Native 

governments and groups and by the 

State of Alaska and two leaders of the 

Alaska State Legislature on whether the 

1978 Opinion accurately stated the law, 

see 66 FR 3452, 3454 (Jan. 16, 2001), the 

Solicitor concluded that there was 

‘‘substantial doubt about the validity of 

the conclusion reached in the 1978 

Opinion’’ and rescinded it. ‘‘Rescinding 

the September 15, 1978, Opinion of the 

Associate Solicitor for Indian Affairs 

entitled ‘Trust Land for the Natives of 

Venetie and Arctic Village,’ ’’ 

Memorandum to Assistant Secretary— 

Indian Affairs from Solicitor John D. 

Leshy, at 1 (Jan. 16, 2001). The 

Solicitor’s memorandum observed that 

‘‘[t]he 1978 Opinion gave little weight to 

the fact that Congress had not repealed 

section 5 of the IRA, which is the 

generic authority by which the Secretary 

takes Indian land into trust, and which 

Congress expressly extended to Alaska 

in 1936.’’ Id. The Solicitor explained 

that the rescission of the 1978 Opinion 

was made ‘‘so as not to encumber future 

discussions over whether the Secretary 

can, as a matter of law, and should, as 

a matter of policy, consider taking 

Native land in Alaska into trust.’’ Id. at 

2. 

The Solicitor’s rescission of the 1978 

Opinion was made at the same time as 

the issuance of a final rule amending the 

part 151 regulations. This 2001 final 

rule discussed the rescission of the 1978 

opinion but nevertheless maintained the 

existing bar on acquiring land in trust in 

Alaska. 66 FR 3452, 3454 (Jan. 16, 

2001). The preamble to the 2001 final 

rule explained the retention of the 

Alaska Exception by stating that ‘‘the 

position of the Department has long 

been, as a matter of law and policy, that 

Alaska Native lands ought not to be 

taken in trust.’’ Id. 

But consistent with the 2001 

Solicitor’s Opinion questioning the 

validity of the legal underpinnings of 

the policy, the Department further 

provided that the amended regulation 

‘‘ought to remain in place for a period 

of three years during which time the 

Department will consider the legal and 

policy issues involved in determining 

whether the Department ought to 

remove the prohibition on taking Alaska 

lands into trust. If the Department 

determines that the prohibition on 

taking lands into trust in Alaska should 

be lifted, notice and comment will be 

provided.’’ Id. However, later that year, 

the Department withdrew the entire 

final rule that would have revised the 

part 151 regulations. 66 FR 56608, 

56609 (Nov. 9, 2001). Thus, the original 

Alaska Exception has remained in the 

part 151 regulations. 

In 2007, four tribes of Alaska Natives 

and one individual Alaska Native 

challenged the Alaska exception in the 

United States District Court for the 

District of Columbia. Akiachak Native 

Cmty. v. Salazar, 935 F. Supp. 2d 195, 

197 (D.D.C. 2013). During the course of 

the litigation, the Department clarified 

its legal position on the effect of 

ANCSA, informing the Court in 2008 

that neither ANCSA nor the Federal 

Land Policy and Management Act has 

‘‘removed the Secretary’s discretionary 

authority to take Indian lands into trust 

status in the State of Alaska.’’ 

Defendants’ Reply Brief, at 1–2 (July 25, 

2008). The Department reiterated this 

position in a court-ordered filing in 

2012, informing the Court that ‘‘the 

Secretary has both the authority and 

discretion to take lands within the State 

of Alaska into trust for Natives, even 

though he is not legally obligated to do 

so.’’ Defendants’ Supplemental Brief 

Pursuant to Court Order, at 10 (July 6, 

2012). 

On March 31, 2013, the district court 

granted summary judgment in favor of 

the plaintiffs. Akiachak, 935 F. Supp. at 

197. Consistent with the Department’s 

position on the issue, the court held that 

‘‘ANCSA left intact the Secretary’s 

authority to take land into trust 

throughout Alaska’’ and that ‘‘Congress 

did not explicitly eliminate the grant of 

authority.’’ Id. at 207–08. The court 

rejected the argument by Alaska, which 

had intervened in the case, that ANCSA 

impliedly repealed the 1936 amendment 

that authorized the acquisition of land 

in trust in Alaska under Section 5 of the 

IRA. See id. at 204–05. The court 

distinguished the settlement of ‘‘claims’’ 

in ANCSA, which are an assertion of a 

legal right, from petitions to acquire 

land into trust, which lies within the 

Secretary’s discretion. See id. at 205–06. 

The court also noted that Congress 

expressly repealed the Alaska Native 

Allotment Act in ANCSA and 

subsequently repealed the Alaska Native 

Townsite Act and section 2 of the 1936 

Act, and thus understood how to repeal 

prior enactments, but left Section 5 of 

the IRA alone. See id. at 205, 207. 

Lastly, the court found no 

‘‘irreconcilable conflict’’ between the 

Secretary’s discretionary authority to 

mstockstill on DSK4VPTVN1PROD with PROPOSALS

Federal Register / Vol. 79, No. 84 / Thursday, May 1, 2014 / Proposed Rules 24651 

create new trust land and ANCSA, 

particularly given that while the 

settlement in ANCSA did not create a 

trusteeship, it did ‘‘not necessarily mean 

that it prohibits the creation of any 

trusteeship outside of the settlement.’’ 

Id. at 207. 

In addition, contrary to the 

Department’s litigating position in 

defense of the regulation, the district 

court found that the Alaska Exception 

was unlawful because it violates 25 

U.S.C. 476(g), one of two ‘‘privileges 

and immunities’’ provisions added by 

the 1994 Amendment to the IRA. See id. 

at 208–11. The district court concluded 

that in providing that the Department 

will not consider the petitions of Alaska 

Natives to have land taken into trust, the 

Alaska Exception impermissibly 

diminishes their privileges ‘‘relative to 

the privileges . . . available to all other 

federally recognized tribes by virtue of 

their status as Indian tribes.’’ Id. at 210– 

11. 

In a subsequent decision addressing 

how to remedy this violation, the 

district court concluded that the Alaska 

Exception was severable from the rest of 

the Department’s land-into-trust 

regulations and accordingly vacated and 

severed the final sentence of 25 CFR 

151.1. See Akiachak Native Cmty. v. 

Jewell, 2013 U.S. Dist. LEXIS 141120 

(D.D.C. 2013) at *10–*16. That case is 

currently pending on appeal. 

Reasons for Eliminating the Alaska 

Exception 

As the foregoing overview of the 

development, interpretation, and 

litigation of the Alaska Exception 

demonstrates, the Department has 

ongoing statutory authority to take land 

into trust in Alaska under Section 5 of 

the IRA. This authority, explicitly 

granted by Congress, has never been 

revoked. Subsequent enactment of 

ANCSA and the Federal Land Policy 

and Management Act (FLPMA) have 

provided additional context for the 

exercise of such authority, but no legal 

impediment exists to deleting the 

Alaska Exception from the land-intotrust regulations. The U.S. District Court 

for the District of Columbia recently 

came to the same conclusion concerning 

the effect of ANCSA and FLPMA. 

The categorical exclusion of Alaska 

from the regulations is particularly 

unwarranted because, as discussed 

earlier, it was added to the regulations 

based on a mistaken legal interpretation 

of ANCSA, not because of public policy 

concerns. Congressional policy has 

remained consistent since 1934 with the 

enactment of Section 5 of the IRA. By 

providing authority to take land into 

trust—an authority that was not revoked 

by ANCSA—Congress recognized that 

restoring tribal lands to trust status was 

important to tribal self-governance by 

providing a physical space where tribal 

governments may exercise sovereign 

powers to provide for their citizens. 

Restoring tribal homelands also 

supports the Federal trust responsibility 

to Indian nations because it supports the 

ability of tribal governments to provide 

for their people, thus making them more 

self-sufficient. Therefore, given that the 

authority in Section 5 remains intact for 

lands in Alaska, it is unnecessary and 

inappropriate to categorically exclude 

all Alaska lands from the land-into-trust 

regulations. Rather, the Department can 

and should make case-by-case 

determinations as to whether to take 

land into trust in Alaska in response to 

specific requests to do so. 

This proposed case-by-case 

determination is also consistent with 

the Department’s initiative of acquiring 

trust land on behalf of federally 

recognized Indian tribes throughout the 

country. This initiative was first 

formally announced by Secretary Ken 

Salazar in a June 18, 2010 Memorandum 

to the Assistant Secretary, ‘‘Processing 

Land-Into-Trust Applications for 

Applications Not Related to Gaming,’’ 

available at http://

www.indianaffairs.gov/idc/groups/

public/documents/text/idc009901.pdf. 

In the memorandum, the Secretary 

emphasized that ‘‘[t]aking land into 

trust is one of the most important 

functions that this Department 

undertakes on behalf of Indian tribes.’’ 

Id. at 1. He added that ‘‘[o]ngoing 

activities to establish, consolidate and, 

where appropriate, expand tribal 

homelands is an essential feature of our 

Nation’s Indian policy and honoring of 

principles of tribal self-reliance and selfgovernance.’’ Id. Most recently, 

Secretary Sally Jewell reaffirmed this 

initiative at the Tribal Nations 

Conference on November 13, 2013. See 

U.S. Dep’t of the Interior, Press Release, 

2013 White House Tribal Nations 

Conference: Promoting Prosperous, 

Resilient Tribal Nations (Nov. 14, 2013), 

available at http://www.doi.gov/news/

blog/2013-white-house-tribal-nationsconference-promoting-prosperousresilient-tribal-nations.cfm. As part of 

this initiative, the Department believes 

that it is important to allow Alaska 

Native tribes to present land into trust 

applications. 

Recent blue ribbon commissions have 

emphasized the need for the Department 

to be able to take land into trust in 

Alaska. In November of 2013, the Indian 

Law and Order Commission, a bipartisan commission established by 

Congress to investigate criminal justice 

systems in Indian Country, expressly 

stated that ‘‘a number of strong 

arguments can be made that [Alaska fee] 

land may be taken into trust and treated 

as Indian country’’ and ‘‘[n]othing in 

ANCSA expressly barred the treatment 

of these former [Alaska] reservation and 

other Tribal fee lands as Indian 

country.’’ Indian Law and Order 

Comm’n, ‘‘A Roadmap For Making 

Native America Safer: Report to the 

President and Congress of the United 

States,’’ at 45, 52 (Nov. 2013). The 

Commission recommended allowing 

lands to be placed in trust for Alaska 

Natives. See id. at 51–55. The basic 

thrust of the Indian Law and Order 

Commission’s recommendation is that 

the state of public safety for Alaska 

Natives, especially for Native women 

who suffer high rates of domestic abuse, 

sexual violence and other offenses, is 

unacceptable; providing trust lands in 

Alaska in appropriate circumstances 

would provide additional authority for 

Native governments to be better partners 

with the State of Alaska to address these 

problems. In sum, the Commission 

concludes that trust land in Alaska 

could help improve the lives of Indian 

people by creating safer communities. 

In December of 2013, the Secretarial 

Commission on Indian Trust 

Administration and Reform, established 

by former Secretary of the Interior Ken 

Salazar, endorsed these findings and 

likewise recommended allowing Alaska 

Native tribes to have tribally owned fee 

simple land taken into trust. U.S. Dep’t 

of the Interior, ‘‘Report of the 

Commission on Indian Trust 

Administration and Reform,’’ at 65–67 

(Dec. 10, 2013). This Commission was 

motivated by many of the same 

objectives that motivated the Indian 

Law and Order Commission; it 

recommended allowing land owned in 

fee simple by Alaska Native Tribes to be 

placed into trust. 

In addition to these 

recommendations, we believe that facts 

have developed in Alaska that warrant 

reconsideration of our policy. For more 

than 25 years, Alaska Native Tribal 

governments have been at the forefront 

of Federal policies supporting tribal 

self-determination and self-governance. 

The tribal governments in Alaska have 

made tremendous use of various Federal 

self-governance policies, thereby 

increasing self-sufficiency and better 

quality of life for Alaska Natives. For 

example, Alaska Native Tribal 

Governments have a strong record, 

across a range of programs, of 

implementing Federal programs 

thoughtfully and cooperatively, often 

through consortia. 

mstockstill on DSK4VPTVN1PROD with PROPOSALS

24652 Federal Register / Vol. 79, No. 84 / Thursday, May 1, 2014 / Proposed Rules 

For all the reasons mentioned above, 

the Department reconsiders its past 

approach barring land into trust in 

Alaska and proposes to amend its 

regulations by removing the Alaska 

Exception. Specifically, the Department 

proposes to eliminate the final sentence 

in 25 CFR 151.1, which provides that 

part 151 does not cover the acquisition 

of land in trust status in the State of 

Alaska. Deletion of the Alaska 

Exception would resolve any 

uncertainty regarding the Department’s 

regulatory authority to take land into 

trust in Alaska, and would allow for the 

submission and review of applications. 

Applying the part 151 procedures to 

lands in Alaska would not require the 

Department to approve applications for 

trust acquisitions in Alaska. The 

Secretary would retain full discretion to 

analyze and determine whether to 

approve any particular trust application, 

and such a determination would 

include consideration of the substantive 

criteria enumerated in part 151.The 

Department recognizes, however, that 

applying those factors in Alaska 

requires the consideration of unique 

aspects of Native Alaska Villages and 

Native land tenure in Alaska, such as 

the ANCSA-created ownership and 

governance of land by Regional and 

Village Corporations. Accordingly, 

before applying the part 151 procedures 

in Alaska, the Department intends to 

engage in further government-togovernment consultations on how those 

procedures are best applied in Alaska. 

The Department also solicits comments 

on that issue as part of this rule making. 

III. Procedural Requirements 

A. Regulatory Planning and Review 

(E.O. 12866 and 13563) 

Executive Order (E.O.) 12866 provides 

that the Office of Information and 

Regulatory Affairs (OIRA) at the Office 

of Management and Budget (OMB) will 

review all significant rules. OIRA has 

determined that this rule is not 

significant. 

E.O. 13563 reaffirms the principles of 

E.O. 12866 while calling for 

improvements in the nation’s regulatory 

system to promote predictability, to 

reduce uncertainty, and to use the best, 

most innovative, and least burdensome 

tools for achieving regulatory ends. The 

E.O. directs agencies to consider 

regulatory approaches that reduce 

burdens and maintain flexibility and 

freedom of choice for the public where 

these approaches are relevant, feasible, 

and consistent with regulatory 

objectives. E.O. 13563 emphasizes 

further that regulations must be based 

on the best available science and that 

the rulemaking process must allow for 

public participation and an open 

exchange of ideas. We have developed 

this rule in a manner consistent with 

these requirements. This rule is also 

part of the Department’s commitment 

under the Executive Order to reduce the 

number and burden of regulations and 

provide greater notice and clarity to the 

public. 

B. Regulatory Flexibility Act 

The Department of the Interior 

certifies that this rule will not have a 

significant economic effect on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.). 

C. Small Business Regulatory 

Enforcement Fairness Act 

This rule is not a major rule under 5 

U.S.C. 804(2), the Small Business 

Regulatory Enforcement Fairness Act. It 

will not result in the expenditure by 

State, local, or tribal governments, in the 

aggregate, or by the private sector of 

$100 million or more in any one year. 

The rule’s requirements will not result 

in a major increase in costs or prices for 

consumers, individual industries, 

Federal, State, or local government 

agencies, or geographic regions. Nor will 

this rule have significant adverse effects 

on competition, employment, 

investment, productivity, innovation, or 

the ability of U.S.-based enterprises to 

compete with foreign-based enterprises 

because the rule is limited to 

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 E.O. 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 E.O. 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. 

G. Civil Justice Reform (E.O. 12988) 

This rule complies with the 

requirements of E.O. 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,’’ E.O. 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 this proposed rule, the 

Department discussed this topic with 

tribal leaders, and will further consult 

specifically on the proposed rule during 

the public comment period. 

I. Paperwork Reduction Act 

OMB Control Number: 1076–0100. 

Title: Acquisition of Trust Land. 

Brief Description of Collection: This 

information collection requires tribes 

and individual Indians seeking to have 

land taken into trust status to provide 

certain information. No specific form is 

used but respondents supply 

information so that the Secretary may 

make an evaluation and determination 

in accordance with established Federal 

factors, rules, and policies. 

Type of Review: Revision of currently 

approved collection. 

Respondents: Indian tribes and 

individuals. 

Number of Respondents: 1,060 on 

average (each year). 

Number of Responses: 1,060 on 

average (each year). 

Frequency of Response: On occasion. 

Estimated Time per Response: (See 

table below). 

Estimated Total Annual Hour Burden: 

74,400 hours. 

mstockstill on DSK4VPTVN1PROD with PROPOSALS

Federal Register / Vol. 79, No. 84 / Thursday, May 1, 2014 / Proposed Rules 24653 

Citation 25 CFR 151 Information 

Average 

number 

of hours 

Average 

number 

per year 

Estimated 

annual burden 

hours 

151.9, 151.10 (On-Res), and 

151.13.

Application .............................................................................. 50 850 42,500 

Documentation for NEPA—tribe and individual furnish documentation.40 120 4,800 

Documentation for NEPA—Tiering ........................................ 20 200 4,000 

151.9, 151.11 (Off-Res), and 

151.13.

Application .............................................................................. 70 210 14,700 

Documentation for NEPA—tribe provides documentation ..... 40 210 8,400 

OMB Control No. 1076–0100 

currently authorizes the collections of 

information contained in 25 CFR part 

151. If this proposed rule is finalized, 

the annual burden hours for 

respondents (entities petitioning for 

Federal acknowledgment) will increase 

by approximately 6,600 hours because 

of the increase in potential respondents. 

You may review the information 

collection request online at http://

www.reginfo.gov. Follow the 

instructions to review Department of the 

Interior collections under review by 

OMB. We invite comments on the 

information collection requirements in 

the proposed rule. You may submit 

comments to OMB by facsimile to (202) 

395–5806 or you may send an email to 

the attention of the OMB Desk Officer 

for the Department of the Interior: 

OIRA_Submission@omb.eop.gov. Please 

send a copy of your comments to the 

person listed in the FOR FURTHER

INFORMATION CONTACT section of this 

notice. Note that the request for 

comments on the rule and the request 

for comments on the information 

collection are separate. To best ensure 

consideration of your comments on the 

information collection, we encourage 

you to submit them by June 2, 2014; 

while OMB has 60 days from the date 

of publication to act on the information 

collection request, OMB may choose to 

act on or after 30 days. Comments on 

the information collection should 

address: (a) the necessity of this 

information collection for the proper 

performance of the functions of the 

agency, including whether the 

information will have practical utility; 

(b) the accuracy of the agency’s estimate 

of the burden (hours and cost) of the 

collection of information, including the 

validity of the methodology and 

assumptions used; (c) ways we could 

enhance the quality, utility and clarity 

of the information to be collected; and 

(d) ways we could minimize the burden 

of the collection of the information on 

the respondents, such as through the 

use of automated collection techniques 

or other forms of information 

technology. Please note that an agency 

may not sponsor or request, and an 

individual need not respond to, a 

collection of information unless it 

displays a valid OMB Control Number. 

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 E.O. 

13211. A Statement of Energy Effects is 

not required. 

L. Clarity of This Regulation 

We are required by E.O. 12866 and 

12988 and by the Presidential 

Memorandum of June 1, 1998, to write 

all rules in plain language. This means 

that each rule we publish must: 

(a) Be logically organized; 

(b) Use the active voice to address 

readers directly; 

(c) Use clear language rather than 

jargon; 

(d) Be divided into short sections and 

sentences; and 

(e) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in the 

‘‘COMMENTS’’ section. To better help 

us revise the rule, your comments 

should be as specific as possible. For 

example, you should tell us the 

numbers of the sections or paragraphs 

that are unclearly written, which 

sections or sentences are too long, the 

sections where you believe lists or 

tables would be useful, etc. 

M. Public Availability of Comments 

Before including your address, phone 

number, email address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you can ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

List of Subjects in 25 CFR Part 151 

Indians—lands. 

For the reasons stated in the 

preamble, the Department of the 

Interior, Bureau of Indian Affairs, 

proposes to amend part 151 in Title 25 

of the Code of Federal Regulations as 

follows: 

PART 151—LAND ACQUISITIONS 

■ 1. The authority citation for part 151 

continues to read as follows: 

Authority: R.S. 161: 5 U.S.C. 301. Interpret 

or apply 46 Stat. 1106, as amended; 46 Stat. 

1471, as amended; 48 Stat. 985, as amended; 

49 Stat. 1967, as amended, 53 Stat. 1129; 63 

Stat. 605; 69 Stat. 392, as amended; 70 Stat. 

290, as amended; 70 Stat. 626; 75 Stat. 505; 

77 Stat. 349; 78 Stat. 389; 78 Stat. 747; 82 

Stat. 174, as amended, 82 Stat. 884; 84 Stat. 

120; 84 Stat. 1874; 86 Stat. 216; 86 Stat. 530; 

86 Stat. 744; 88 Stat. 78; 88 Stat. 81; 88 Stat. 

1716; 88 Stat. 2203; 88 Stat. 2207; 25 U.S.C. 

2, 9, 409a, 450h, 451, 464, 465, 487, 488, 489, 

501, 502, 573, 574, 576, 608, 608a, 610, 610a, 

622, 624, 640d–10, 1466, 1495, and other 

authorizing acts. 

■ 2. Revise § 151.1 to read as follows: 

§ 151.1 Purpose and Scope. 

These regulations set forth the 

authorities, policy, and procedures 

governing the acquisition of land by the 

United States in trust status for 

individual Indians and tribes. 

Acquisition of land by individual 

Indians and tribes in fee simple status 

is not covered by these regulations even 

though such land may, by operation of 

law, be held in restricted status 

following acquisition. Acquisition of 

land in trust status by inheritance or 

escheat is not covered by these 

regulations. 

Dated: April 21, 2014. 

Kevin K. Washburn, 

Assistant Secretary—Indian Affairs. 

[FR Doc. 2014–09818 Filed 4–30–14; 8:45 am] 

BILLING CODE 4310–6W–P 

mstockstill on DSK4VPTVN1PROD with PROPOSALS