76888 Federal Register / Vol. 79, No. 246 / Tuesday, December 23, 2014 / Rules and Regulations 

and 211(a) of the Advisers Act [15 

U.S.C. 80b–6a and 80b–11(a)]. 

List of Subjects in 17 CFR Part 275 

Investment advisers, Reporting and 

recordkeeping requirements. 

Text of Rule Amendment 

For the reasons set out in the 

preamble, Title 17, Chapter II of the 

Code of Federal Regulations is amended 

as follows. 

PART 275—RULES AND 

REGULATIONS, INVESTMENT 

ADVISERS ACT OF 1940 

■ 1. The authority citation for Part 275 

continues to read in part as follows: 

Authority: 15 U.S.C. 80b–2(a)(11)(G), 80b– 

2(a)(11)(H), 80b–2(a)(17), 80b–3, 80b–4, 80b– 

4a, 80b–6(4), 80b–6a, and 80b–11, unless 

otherwise noted. 

* * * * * 

§ 275.206(3)–3T [Amended] 

■ 2. In § 275.206(3)–3T, amend 

paragraph (d) by removing the words 

‘‘December 31, 2014’’ and adding in 

their place ‘‘December 31, 2016.’’ 

By the Commission. 

Dated: December 17, 2014. 

Brent J. Fields, 

Secretary. 

[FR Doc. 2014–29975 Filed 12–22–14; 8:45 am] 

BILLING CODE 8011–01–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Food and Drug Administration 

21 CFR Part 316 

[Docket No. FDA–2011–N–0583] 

Policy on Orphan-Drug Exclusivity; 

Clarification 

AGENCY: Food and Drug Administration, 

HHS. 

ACTION: Notification; clarification on 

policy. 

SUMMARY: The Food and Drug 

Administration (FDA) is publishing this 

document to clarify its policy regarding 

certain aspects of orphan-drug 

exclusivity. This document is being 

published because of a recent court 

decision interpreting provisions of the 

Federal Food, Drug, and Cosmetic Act 

(the FD&C Act), as amended by the 

Orphan Drug Act. 

DATES: Effective December 23, 2014. 

FOR FURTHER INFORMATION CONTACT: 

Gayatri R. Rao, Office of Orphan 

Products Development, Food and Drug 

Administration, 10903 New Hampshire 

Ave., Bldg. 32, Rm. 5271, Silver Spring, 

MD 20993, 301–796–8660. 

SUPPLEMENTARY INFORMATION: 

I. Background 

After a designated orphan drug is 

approved, section 527 of the FD&C Act 

(21 U.S.C. 360cc) generally prohibits the 

Food and Drug Administration (FDA or 

the Agency) from approving another 

such drug for the same disease for 7 

years. Regulations interpreting this 

provision were proposed in 1991 

(January 29, 1991, 56 FR 3338) and 

made final in 1992 (December 29, 1992, 

57 FR 62076). In 2011, FDA issued a 

proposed rule (October 19, 2011, 76 FR 

64868) to amend these regulations to 

clarify certain regulatory language and 

propose areas of minor improvement 

regarding orphan-drug designation and 

orphan-drug exclusivity; these were 

finalized in 2013 (June 12, 2013, 78 FR 

35117). These regulations are codified 

under part 316 (21 CFR part 316). 

FDA has interpreted section 527 of 

the FD&C Act and its regulations such 

that the Agency will not recognize 

orphan-drug exclusivity for a drug when 

it has previously approved the same 

drug for the same use or indication in 

a rare disease or condition. 

§§ 316.3(b)(12); 316.31(a). A drug will 

not be considered the same as a 

previously approved drug if, at the time 

of approval, the sponsor has provided 

evidence that its drug is ‘‘clinically 

superior’’ to the previously approved 

drug, that is, the drug is more effective, 

safer, or makes a major contribution to 

patient care. § 316.3(b)(3). Accordingly, 

the sponsor of an orphan-designated 

drug that is the same as a previously 

approved drug, as defined in 

§ 316.3(b)(14), is required to 

demonstrate that its drug is clinically 

superior to the previously approved 

drug in order for its drug to be eligible 

for orphan-drug exclusivity upon 

approval. 

The Agency’s interpretation of section 

527 of the FD&C Act has been the 

subject of legal action in Depomed v. 

HHS et al., Civil Action No. 12–1592 

(KBJ) (D.D.C. September 5, 2014). 

Depomed has not demonstrated that 

GRALISE (gabapentin) is clinically 

superior to a previously approved drug, 

Pfizer’s NEURONTIN (gabapentin). 

Accordingly, under the relevant 

regulations, GRALISE is the same drug 

as NEURONTIN, because it contains the 

same active moiety (gabapentin), was 

approved for the same use (postherpetic neuralgia), and was not 

demonstrated to be clinically superior to 

NEURONTIN. Nevertheless, the 

Depomed court held that FDA must 

recognize orphan-drug exclusivity for 

GRALISE for the treatment of postherpetic neuralgia. Following the 

Depomed decision, under the court’s 

order, FDA recognized orphan-drug 

exclusivity for GRALISE for the 

treatment of post-herpetic neuralgia. 

II. Orphan-Drug Exclusivity 

In consideration of any uncertainty 

created by the court’s decision in 

Depomed, the Agency is issuing this 

statement. It is the Agency’s position 

that, given the limited terms of the 

court’s decision to GRALISE, FDA 

intends to continue to apply its existing 

regulations in part 316 to orphan-drug 

exclusivity matters. FDA interprets 

section 527 of the FD&C Act and its 

regulations (both the older regulations 

that still apply to original requests for 

designation made on or before August 

12, 2013, as well as the current 

regulations) to require the sponsor of a 

designated drug that is the ‘‘same’’ as a 

previously approved drug to 

demonstrate that its drug is ‘‘clinically 

superior’’ to that drug upon approval in 

order for the subsequently approved 

drug to be eligible for orphan-drug 

exclusivity. 

Dated: December 17, 2014. 

Leslie Kux, 

Associate Commissioner for Policy. 

[FR Doc. 2014–29920 Filed 12–22–14; 8:45 am] 

BILLING CODE 4164–01–P 

DEPARTMENT OF THE INTERIOR 

Bureau of Indian Affairs 

25 CFR Part 151 

[K00103 14/15 A3A10; 134D0102DR– 

DS5A300000–DR.5A311.IA000115] 

RIN 1076–AF23 

Land Acquisitions in the State of 

Alaska 

AGENCY: Bureau of Indian Affairs, 

Interior. 

ACTION: Final rule. 

SUMMARY: This rule deletes a provision 

in the Department of the Interior’s landinto-trust regulations that excludes from 

the scope of the regulations, with one 

exception, land acquisitions in trust in 

the State of Alaska. 

DATES: This rule is effective January 22, 

2015. 

FOR FURTHER INFORMATION CONTACT: 

Elizabeth Appel, Director, Office of 

Regulatory Affairs & Collaborative 

Action, (202) 273–4680; 

elizabeth.appel@bia.gov. 


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Federal Register / Vol. 79, No. 246 / Tuesday, December 23, 2014 / Rules and Regulations 76889 

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 

deletes the Alaska Exception, thereby 

allowing applications for land to be 

taken into trust in Alaska to proceed 

under the part 151 regulations. The 

Department retains its usual discretion 

to grant or deny land-into-trust 

applications and makes its decisions on 

a case-by-case basis in accordance with 

the requirements of part 151 and the 

IRA. 

II. Background and Legislative 

Authority 

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 for Indian tribes and 

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

Cohen’s Handbook on Federal Indian 

Law section 15.07[1][a], at 1030 (2012 

ed.). In 1936, Congress expressly 

extended Section 5 and other provisions 

of the IRA 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). 

Thirty-five years later, 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). However, the statutory text 

of ANCSA did not expressly revoke the 

Secretary’s authority, under Section 5 of 

the IRA as extended by the 1936 

amendment, to take land into trust in 

Alaska. 

Following the passage of ANCSA, the 

Department reexamined the Secretary’s 

authority to use Section 5 of the IRA to 

acquire land in trust for Alaska Natives. 

In a memorandum issued on September 

15, 1978, a former Associate Solicitor— 

Indian Affairs reviewed the question of 

whether ANCSA precludes the 

Secretary from acquiring trust lands in 

Alaska. ‘‘Trust Land for the Natives of 

Venetie and Arctic Village,’’ 

Memorandum to Assistant Secretary 6— 

Indian Affairs from Associate 

Solicitor—Indian Affairs, Thomas W. 

Fredericks, at 1 (Sept. 15, 1978) 

(hereinafter ‘‘Fredericks 

Memorandum’’). The Fredericks 

Memorandum, which relied on the 

declaration of policy enumerated in 

ANCSA, concluded that it would be an 

abuse of discretion for the Secretary to 

acquire lands in trust in Alaska. In 1980, 

the Department promulgated the Part 

151 regulations, including the Alaska 

Exception, which states that ‘‘[t]hese 

regulations 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 it members.’’ 

25 CFR 151.1. The Alaska Exception has 

remained the focus of public criticism 

and internal deliberation since its 

creation. 

In early 2001, the Solicitor for the 

Department rescinded the Fredericks 

Memorandum, after considering 

comments and legal arguments 

submitted by Alaska Native 

governments and groups, the State of 

Alaska, and leaders of the Alaska State 

legislature. See ‘‘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 

concluded that ‘‘there is substantial 

doubt about the validity of the 

conclusion reached in the 1978 

Opinion’’ and observed that ‘‘[t]he 

failure of Congress to repeal [Section 5 

of the IRA as extended to Alaska] when 

it was repealing others affecting Indian 

status in Alaska . . . raises a serious 

question as to whether the authority to 

take land into trust in Alaska still 

exists.’’ Id. at 1. 

On the same day, the Department 

issued final rules amending the Part 151 

regulations and promulgated a rule 

nearly identical to the Alaska Exception, 

which continued the ban on the 

acquisition of land in Alaska. 66 FR 

3452, 3454 (Jan. 16, 2001). The 

Department stated 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.’’ Id. 

However, later that year, the Department 

withdrew the revised rule without 

comment, leaving in place the original 

Alaska exception in the regulations that 

prevented the government from 

acquiring land into trust in Alaska. 66 

FR 56608, 56609 (Nov. 9, 2001). 

A number of recent developments, 

including a pending lawsuit, caused the 

Department to look carefully at this 

issue again. See Akiachak Native Cmty 

v. Salazar, 935 F. Supp. 2d 195 (D.D.C. 

2013). Most significantly, the Indian 

Law and Order Commission, formed by 

Congress to investigate criminal justice 

systems in Indian Country, brought to 

light the shocking and dire state of 

public safety in Alaska Native 

communities and made specific 

recommendations to address these 

challenges. Indian Law and Order 

Commission, ‘‘A Roadmap For Making 

Native America Safer: Report to the 

President and Congress of the United 

States,’’ at 33–61 (November 2013). The 

Commission’s report expressly 

acknowledged 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 former [Alaska] reservation and other 

Tribal fee lands as Indian country.’’ Id. 

at 45, 52. Moreover, the Commission 

recommended allowing these lands to 

be placed in trust for Alaska Natives. 

See id. at 51–55. Similarly, the 

Secretarial Commission on Indian Trust 

Administration and Reform was 

established by former Secretary of the 

Interior Ken Salazar to evaluate the 

existing management and 

administration of the trust 

administration system, as well as review 

all aspects of the federal-tribal 

relationship. U.S. Dep’t of the Interior, 

‘‘Report of the Commission on Indian 

Trust Administration and Reform,’’ at 1 

(Dec. 10, 2013). This Commission 

endorsed the earlier findings and 

likewise recommended allowing Alaska 

Native tribes to put tribally owned fee 

simple land into trust. Id. at 65–67. 

In light of these urgent policy 

recommendations, the Department has 

carefully reexamined the legal basis for 

the Secretary’s discretionary authority 


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76890 Federal Register / Vol. 79, No. 246 / Tuesday, December 23, 2014 / Rules and Regulations 

1 In the tribal consultation session held in 

Washington, DC on June 26, 2014, the Department 

did not receive any comments or inquiries. 

to take land into trust in Alaska under 

Section 5 of the IRA (25 U.S.C. 465). In 

particular, we have reviewed the 

statutory text of ANCSA and other 

Federal laws and have concluded that 

this authority was never extinguished. 

Congress explicitly granted the 

Secretary authority to take land into 

trust in Alaska under the IRA and its 

amending legislation. See 25 U.S.C. 465, 

25 U.S.C. 473a. Although Congress, 

through the enactment of ANCSA and 

other laws, repealed other statutory 

provisions relevant to Alaska Native 

lands, it has not passed any legislation 

that revokes the Secretary’s authority to 

make trust land acquisitions in Alaska, 

as codified in 25 U.S.C. 473a and 25 

U.S.C. 465. ANCSA left these provisions 

and the Secretary’s resulting land-intotrust authority in Alaska intact. See 

Memorandum from Hilary C. Tompkins, 

Solicitor, to Kevin Washburn, Assistant 

Secretary—Indian Affairs (April 29, 

2014). Thus, the Secretary retains 

discretionary authority to take land into 

trust in Alaska under Section 5 of the 

IRA. Moreover, the Department’s policy 

is that there should not be different 

classes of federally recognized tribes. 

Pursuant to this discretionary 

authority, the Department earlier 

proposed a rule removing the Alaska 

Exception. See 79 FR 24648 (May 1, 

2014). After considering the comments 

to the proposed rule, discussed below, 

the Department has decided to eliminate 

the final sentence in 25 CFR 151.1, 

which provides in relevant part that 

‘‘[t]hese regulations 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.’’ 

With this rule, the Department does not 

seek to undo or contravene the 

settlement codified in ANCSA. Deletion 

of the Alaska Exception merely confirms 

the Department’s existing statutory 

authority to take land into trust in 

Alaska. Any particular trust acquisition 

would occur only after full 

consideration of the land acquisition 

statutory and regulatory factors. 

III. Comments on the Proposed Rule 

and the Department’s Responses 

We received 105 written comment 

submissions and held three tribal 

consultation sessions in Anchorage, 

Alaska, Washington, DC, and by 

teleconference.1 Most comments either 

strongly supported or strongly opposed 

the rule. More than half of the 

commenters, including those who 

provided oral comments, affirmed their 

support for the rule. In fact, many stated 

that the rule is ‘‘long overdue.’’ Fewer 

than half of the commenters (but 

including the State of Alaska) opposed 

the Department’s taking land into trust 

in Alaska. A few commenters did not 

express either support or opposition, 

but instead requested additional time 

and consultation. Other comments 

objected to the taking of any land in 

trust for any Indian tribes, described 

specific or hypothetical situations rather 

than the proposed rule, or were 

otherwise outside the scope of this 

rulemaking. The following discussion 

summarizes and responds to the 

comments received. 

1. Legal Basis for Removal or Retention 

of the Alaska Exception 

a. ANCSA 

According to several commenters, 

removal of the Alaska Exception would 

contravene the Alaska Native Claims 

Settlement Act (ANCSA). They assert 

that ANCSA was Congress’s deliberate 

attempt to extinguish aboriginal land 

rights and provide Alaska with a 

solution different from, and more 

economically viable than, the 

reservation system in the lower 48 

States. Many commenters highlight 

specific language in ANCSA stating that 

the law did not establish a reservation 

system or trusteeship. A few 

commenters stated that the Supreme 

Court’s decision in Alaska v. Native 

Village of Venetie Tribal Government, 

522 U.S. 520, 523 (1998), which held 

that ANCSA lands conveyed in fee to an 

Alaska Native village from two Alaska 

Native corporations were not ‘‘Indian 

country,’’ was consistent with the intent 

of ANCSA. 

Furthermore, many commenters 

emphasize the fact that an 

overwhelming majority of Alaska Native 

delegates supported the enactment of 

ANCSA. They note that Congress 

transferred millions of dollars and 

millions of acres of land to the Alaska 

Native corporations created by ANCSA 

in exchange for extinguishing all claims 

of aboriginal right, title, use, or 

occupancy of land or water in Alaska. 

A commenter stated that to change the 

regulations now would compromise the 

benefits and protections due the State as 

a settling party to ANCSA, including the 

preservation of State jurisdiction over 

ANSCA lands. The commenter believes 

that retaining the Alaska Exception is 

required because the State provided 

public funds and ceded land selection 

priorities to which it was entitled under 

the Alaska Statehood Act. 

Other commenters state that there is 

no basis in law or policy for retaining 

the Alaska Exception. They point to a 

lack of express Congressional intent, in 

ANCSA and in other federal statutes, to 

either revoke the Secretary’s authority 

under the IRA to take land into trust in 

Alaska or deny IRA benefits to Alaska 

tribes. 

Response: The Department disagrees 

that removal of the Alaska Exception is 

contrary to ANCSA. It is important to 

remember that Alaska Native land and 

history did not commence with ANCSA, 

and that ANCSA did not terminate 

Alaska Native tribal governments. As 

discussed above, while ANCSA revoked 

existing reservations in Alaska and 

established a separate statutory scheme 

in Alaska for the settlement of land 

claims, it did not repeal the Secretary’s 

authority to take land into trust in 

Alaska under the IRA. There is nothing 

precluding the settlement codified in 

ANCSA and the Department’s land-intotrust authority under the IRA from coexisting in Alaska. The Department 

agrees that the IRA provides legal 

authority for the removal of the Alaska 

Exception. In sum, notwithstanding 

support for the original enactment of 

ANCSA from various entities, Congress 

left intact the Secretary’s authority 

pursuant to the IRA to take land into 

trust in Alaska, and the two statutory 

schemes can co-exist. 

b. Categorical bar applicable to Alaska 

Several commenters stated that the 

removal of the Alaska Exception would 

remedy a discriminatory application of 

the IRA under the current regulations, 

‘‘so the privileges and immunities 

accorded Indian tribes in the Lower 48 

are no longer withheld from Indian 

tribes in Alaska.’’ Many of these 

commenters cited the analysis of the 

judge in the Akiachak case as support 

for removal. See Akiachak Native Cmty. 

v. Salazar, 935 F. Supp. 2d 195 (D.D.C. 

2013). These commenters stated that the 

Alaska Exception unduly limits tribal 

sovereignty and has resulted in high 

unemployment, poor public safety, 

substandard education and substandard 

healthcare for Alaska Natives. See 

Indian Law and Order Comm’n, ‘‘A 

Roadmap For Making Native America 

Safer: Report to the President and 

Congress of the United States,’’ at 33–61 

(Nov. 2013). Other commenters claim 

that the removal of the Alaska exception 

will unnecessarily create tension 

between races and between urban and 

rural residents, instead of striving to 

make a State of one people. 

Response: This rule would remove a 

categorical obstacle to implementation 

of the IRA in Alaska, in a manner 


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Federal Register / Vol. 79, No. 246 / Tuesday, December 23, 2014 / Rules and Regulations 76891 

similar to the administration of the IRA 

in the lower 48 States. The U.S. 

Government has a longstanding trust 

relationship with federally recognized 

Indian tribes and individual Indian 

beneficiaries. See August 20, 2014 

Secretarial Order 3335, ‘‘Reaffirmation 

of the Federal Trust Responsibility to 

Federally Recognized Indian Tribes and 

Individual Indian Beneficiaries.’’ The 

Secretary’s authority to acquire lands in 

trust for Indian tribes and individual 

Indians can be critical to carrying out 

the Federal trust responsibility. In 

addition, the Department’s policy is that 

there should not be different classes of 

federally recognized tribes. In that 

regard, the Department has advocated 

for Congressional legislation clarifying 

that all federally recognized tribes may 

seek to place land into trust pursuant to 

the Indian Reorganization Act of 1934. 

See e.g. May 7, 2014 Testimony of Kevin 

Washburn, Assistant Secretary—Indian 

Affairs, United States Department of the 

Interior before the Senate Committee on 

Indian Affairs on S. 2188. After 

reviewing the comments in light of postANCSA Indian legislation and the 

findings of two blue-ribbon 

commissions, the Secretary has 

concluded that the blanket exclusion of 

Alaska tribes from its land into trust 

program is not warranted. Because there 

may be circumstances in which the 

exercise of trust acquisition authority is 

warranted and is consistent with both 

ANCSA and the United States’ trust 

relationship with tribes, the Department 

has concluded that retention of the 

Alaska Exception is not appropriate. 

This rule gives Alaska Native tribes the 

option of applying to have fee land 

taken into trust through the same 

procedures as Indian tribes elsewhere in 

the United States, provided that all land 

acquisition requirements have been 

fulfilled. 

c. Timing of the Rule 

Several commenters stated that the 

rule is premature because the Akiachak 

decision issued by the U.S. District 

Court for the District of Columbia is 

currently on appeal or being used for 

political purposes. 

Response: The district court’s 

judgment in Akiachak is consistent with 

the conclusion we reach but is not the 

basis for the Department’s decision to 

eliminate the Alaska Exception. We 

have independently concluded that 

there is no legal impediment to taking 

land into trust in Alaska, and there are 

sound policy reasons for giving Alaska 

tribes the opportunity to petition to take 

land into trust. Two blue-ribbon 

commissions composed of experts 

outside the federal government recently 

recommended deletion of the exception. 

These commissions discussed some of 

the reasons, and there are several others. 

The purpose of this rule is also 

grounded in the implementation of the 

Secretary’s IRA authority. This rule 

represents an affirmative resolution to a 

longstanding controversy and internal 

discussions over whether the Secretary 

has authority to take land into trust in 

Alaska and whether the Secretary 

should, as a matter of policy, consider 

taking Native land in Alaska in trust. 

2. Effects of Removing the Alaska 

Exception 

a. On Alaska Native Tribes, in General 

Commenters in support of the rule 

claimed that the rule would help Alaska 

Native tribes. On the other hand, 

commenters opposed to the rule argued 

that the rule would not help, and may 

possibly harm, Alaska Native tribes. 

Several Alaska Native tribes provided 

their own experiences of living in 

isolation and poverty. They shared how 

taxation by the boroughs and a lack of 

trust land hinders their ability to 

exercise essential governmental 

functions. Commenters expressed the 

view that the rule would help Alaska 

Native tribes for the reasons listed 

below. 

• The government’s acquisition of 

land into trust on behalf of tribes in the 

rest of the United States has succeeded 

in allowing tribes to reconsolidate and 

preserve homelands; 

• The rule would offer Alaska Native 

tribes the opportunity to reap certain 

benefits of having land taken into trust, 

and would: 

Æ Allow Alaska Native tribes to 

regulate and protect their traditional 

land bases in Alaska and potentially 

obtain tax income to support the 

exercise of essential governmental 

functions, such as providing 

infrastructure and human services; 

Æ Improve Alaska Native tribes’ 

ability to maintain their cultural 

integrity, including language 

preservation, religion, traditional Native 

foods, and other aspects of tribal 

identity and sovereignty; 

Æ Provide a path to home ownership 

for individual tribal members and 

protection against predatory lending 

and foreclosures; 

Æ Enhance the government-togovernment relationship between 

Alaska Native tribes and the U.S. 

Government; 

Æ Promote and strengthen tribal selfgovernance and self-determination, 

which are closely associated with 

sovereignty over and management of 

tribal lands; 

Æ Allow Alaska Native tribes to 

develop and implement effective comanagement arrangements for 

subsistence and access to resources that 

could help stabilize communities; 

Æ Allow tribal members, rather than 

corporation shareholders, to guide 

development to take more useful forms 

and improve standards of living for all 

tribal members; 

Æ Allow for the eligibility of Federal 

programs that are currently restricted to 

trust lands, such as opportunities for 

economic development, housing, and 

environmental and cultural resource 

protection; 

Æ Allow for healthier, safer, and more 

successful Native communities through 

the ability to exercise a sovereign right 

of self-government; and 

Æ Advance the policy goals 

established by Congress in the IRA, 

eight decades ago, of protecting tribal 

lands and advancing tribal selfdetermination. 

Other commenters stated that the rule 

would not help, or may even harm, 

Alaska Native tribes for the following 

stated reasons: 

• The reservation system in the lower 

48 has been unsuccessful, encourages 

isolation, stifles economic development 

(e.g., by providing no financial collateral 

to potential investors), has been an 

obstacle to tribal self-governance and 

control of land, and has resulted in 

deplorable health and crime conditions; 

• The ANCSA corporate model has 

been successful. It better provides for 

self-sufficiency of Alaska Native tribes 

and Alaska’s overall economy than a 

reservation system would; 

• Allowing land to be taken into trust 

to advance social and economic 

development is unnecessary and would 

be detrimental to the State of Alaska; 

and 

• Taking land into trust in Alaska: 

Æ May have negative impacts on 

regional and village corporations that 

are currently providing beneficial 

opportunities for Alaska Natives; 

Æ Will not have a unifying effect or 

produce a cohesive land base to further 

tribal self-determination, because the 

only lands eligible to be taken into trust 

in many villages are scattered tracts; and 

Æ Will encourage dependency on the 

government. 

One commenter further asked how 

taking land in trust in Alaska will 

benefit the State of Alaska and Alaskans 

in general (beyond Alaska Native tribes). 

Response: While the potential benefits 

and drawbacks of taking any given 

property already owned by the tribe into 

trust may depend upon specific 

circumstances, Alaska Native tribes and 

individuals have the right to decide for 


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76892 Federal Register / Vol. 79, No. 246 / Tuesday, December 23, 2014 / Rules and Regulations 

themselves whether to apply to have 

their land taken into trust. This rule will 

merely allow Alaska Native tribes the 

option to decide whether to apply to 

have land taken into trust. The Secretary 

reviews each individual application to 

take land into trust in accordance with 

the applicable statutory and regulatory 

criteria, including any jurisdictional 

problems, potential conflicts of land 

use, and the impact of removing a parcel 

from the tax rolls. In addition, the 

acquisition of land in trust in Alaska 

could foster economic development, 

enhance the ability of Alaska Native 

tribes to provide services to their 

members, and give additional tools to 

Alaska Native communities to address 

serious issues, such as child welfare, 

public health and safety, poverty, and 

shortages of adequate housing, on a 

local level independent of the State of 

Alaska. As a result, the final rule may 

at some point benefit the larger 

community in the State of Alaska as a 

whole, not only Alaska Natives. Finally, 

Alaska Native Corporations are an 

integral and important part of the 

landscape of native life in Alaska. The 

views of Alaska Native Corporations 

have been carefully considered in this 

initiative, and will be considered in the 

context of any particular application for 

trust acquisition. As a general matter, 

taking land into trust for Alaska Native 

tribes is unlikely to have a negative 

effect on Alaska Native Corporations, as 

these entities will continue to exist and 

hold lands separately from Alaska 

Native tribes. 

b. Public Safety in Alaska Native 

Communities 

Several commenters pointed to the 

2013 report of the Indian Law and Order 

Commission, a bi-partisan commission 

established by Congress to investigate 

criminal justice systems in Indian 

Country. The Report described in detail 

certain public safety issues facing 

Alaska Native communities, such as 

high rates of domestic abuse, sexual 

violence, suicide, death from alcohol 

abuse, and child maltreatment, which 

disproportionately affect Native Alaskan 

women and children. See Indian Law 

and Order Comm’n, ‘‘A Roadmap For 

Making Native America Safer: Report to 

the President and Congress of the 

United States,’’ (Nov. 2013). As these 

commenters stated, many of the Alaska 

Native villages are remote and 

inaccessible by road, with limited or no 

law enforcement or access to substance 

abuse services. These commenters 

agreed with the Report’s conclusion that 

allowing lands to be placed in trust 

could be an important component of 

addressing the lack of law enforcement 

capacity in Alaska Native villages and 

increasing the ability of Alaska Native 

tribes to combat what has become a dire 

public safety crisis in some villages. 

See, Id. at 45, 52–3. Commenters stated 

that the creation of trust lands in Alaska 

would provide a jurisdictional 

underpinning for tribes to implement a 

better functioning criminal justice 

system tailored to their communities’ 

needs. Some commenters also believed 

that the existence of trust lands in 

Alaska would enhance tribal courts’ 

ability to resolve conflicts in culturally 

relevant ways (through tribal courts and 

sentencing circles, for example), while 

affording tribal governments the ability 

to partner with the State more 

effectively and thereby create safer 

communities. A few commenters noted 

that the current State criminal justice 

system in Alaska Native communities is 

not effective, even with public safety 

officers in villages, and that tribal 

governments are in the best position to 

improve upon this system. 

Although no commenters disputed 

the Report’s descriptions of the public 

safety challenges faced by Alaska Native 

communities, a few commenters 

disputed the Report’s conclusion that 

taking land into trust could help address 

these challenges. These commenters 

stated that the State of Alaska has 

prioritized partnering with tribes and 

Alaska Native communities in order to 

address public safety challenges with 

more effective tools than taking land 

into trust. The commenters stated that 

there are other mechanisms for tribes to 

obtain federal funding and federal law 

enforcement resources. 

Response: The acute public safety 

problems in Alaska Native 

communities, which were thoroughly 

described in the 2013 Indian Law and 

Order Commission report, warrant 

making every practicable solution 

available to Alaska Native tribes. This 

rule will allow each Alaska Native tribe 

the opportunity to decide for itself 

whether applying to take certain lands 

into trust would provide the most 

effective tools and mechanisms to 

address public safety challenges in its 

community. Tribal governments are best 

positioned to assess the needs of their 

own communities, as well as identify 

workable solutions to address those 

needs. The opportunity to apply for 

acceptance of land into trust will 

therefore expand the range of 

possibilities available to Alaska Native 

tribes, and could provide them with 

much-needed additional tools to 

engender safer communities. Moreover, 

it will not have an effect on the ability 

of the State of Alaska to continue using 

its own authority under Public Law 280 

to exert jurisdiction over natives and 

non-natives alike, even if lands are 

actually taken into trust. The rule 

simply increases the potential for a 

tribal government to address public 

safety, which would increase the 

government resources that could be 

focused on these crucially important 

issues. 

c. Resource Management in Alaska 

Several commenters, including 

conservation and sportsmen 

organizations, opposed the rule on the 

basis that it could negatively affect 

resource management, including fish 

and game management, on Alaska lands. 

Specifically, these commenters asserted 

that the State of Alaska alone has the 

legal right to manage Alaska’s fish and 

wildlife under ANCSA and the common 

use principle in Alaska’s State 

Constitution. The commenters claim 

that taking land into trust in Alaska 

would not only destroy the wellfunctioning, uniform State management 

of these public resources, but also 

negate settled agreements and the work 

Alaska Native corporations have 

accomplished to integrate Native lands 

within an overall management scheme. 

Several commenters stated that this rule 

would result in complicated 

jurisdictional issues by splintering fish 

and game management among over 200 

tribes and 11 regional Native 

corporations, while imposing a 

management regime that would cause 

confusion, duplication of positions, and 

additional costs. Likewise, several 

commenters stated that this rule would 

make sound conservation of fish and 

wildlife in Alaska virtually impossible, 

because major species traverse 

thousands of miles and cannot be 

effectively managed by piecemeal laws 

and efforts. 

Response: In evaluating any request to 

have land taken into trust in Alaska, the 

Department will consider, among other 

factors, any jurisdictional problems and 

potential conflicts of land use that may 

arise. Even assuming that particular 

lands are taken into trust and that fish 

and wildlife on those lands were placed 

under the authority of a tribal regulator, 

the State, federal and tribal regulatory 

authorities can work to identify ways to 

cooperate and collaborate in support of 

shared resource management goals, as 

they have in the 48 contiguous states. 

d. Jurisdictional Balances 

A few commenters opposed the rule 

because they believe that the rule would 

disrupt the ‘‘intricate jurisdictional and 

land ownership balances’’ established 

through the Alaska Statehood Act and 

ANCSA, instead creating ‘‘confusing 


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patches of jurisdiction.’’ In particular, 

the Attorney General of the State of 

Alaska stated that as a consequence of 

this rule, any trust land would be 

subject to concurrent state and tribal 

criminal jurisdiction, therefore creating 

confusion and subjecting nonmember 

residents to tribal laws and a tribal 

system in which they have no ability to 

participate. Commenters stated that a 

change to tribal jurisdiction over trust 

lands in Alaska could result in blocked 

access to rights and property, impede 

infrastructure development, hurt 

government resources, raise the tax 

burden for others due to loss of tax 

revenue, undermine essential State and 

local regulation, and compromise the 

ability of State and local governments to 

manage public resources, provide 

services, and ensure public safety. On 

the other hand, other commenters 

asserted that taking land into trust in 

Alaska would present fewer issues than 

in many other States. 

Lastly, some commenters inquired as 

to the circumstances in which lands 

placed in trust in Alaska will be 

considered ‘‘Indian country’’ for civil 

and criminal matters. They also asked if 

‘‘Indian country’’ would include former 

ANCSA lands that are placed in trust. 

Response: The Department 

emphasizes that such jurisdictional 

issues will be considered during the 

process preceding any decision to take 

land into trust. Indeed, the Part 151 

regulations implementing the IRA 

require the Secretary to consider 

jurisdictional problems and possible 

conflicts of land use when determining 

whether to approve any given 

application for land into trust. See 25 

CFR 151.10 and 151.11. Such issues will 

be considered by the Department on a 

case-by-case basis with respect to each 

application for land into trust. In fact, 

the Supreme Court of the United States 

has recognized the Part 151 regulations 

as being sensitive to inter-jurisdictional 

concerns. See City of Sherrill, N.Y. v. 

Oneida Indian Nation of New York, 544 

U.S. 197, 220–21 (2005) (quoting 25 CFR 

151.10(f)). If an application for ANCSA 

or other lands owned by a tribe meets 

the statutory and regulatory criteria, the 

land could be taken into trust. 

The Department’s position has been 

that land held in trust by the United 

States on behalf of a federally 

recognized Indian tribe is ‘‘Indian 

country.’’ As a legal matter, an Alaska 

tribe possessing trust lands would be 

able to exercise jurisdiction over such 

land consistent with the manner in 

which Indian tribes exercise authority 

over trust lands located in the rest of the 

country. Because Alaska is a ‘‘Public 

Law 280’’ State (as included by Public 

Law 85–615), Alaska state courts would 

also generally continue to possess 

jurisdiction over most crimes and most 

civil disputes occurring in Indian 

Country in Alaska. 

e. Split Estates 

Several Alaska Native regional 

corporations that provided comments 

expressed concern that their ability to 

develop their subsurface estate could be 

affected if the surface estate owned by 

a tribe is acquired into trust by the 

United States. Specifically, they assert 

that in addition to obtaining the consent 

of village corporations, regional 

corporations would have to coordinate 

with tribal entities and the Federal 

government, and that there could be a 

‘‘taking’’ of the subsurface rights if 

access to mineral development is 

denied. These commenters emphasized 

that the access of these corporations to 

their mineral estate is critical to the 

success of their economic development 

efforts. Several stated that their consent 

should be required for any applications 

for land into trust, in which they own 

the subsurface estate. They also asserted 

that the rule should include a 

mechanism to resolve disagreements 

between the subsurface and surface 

owners. A tribal commenter stated that 

in Oklahoma and other parts of Indian 

country, so-called ‘‘split estates’’ (where 

there are different owners of the surface 

and subsurface estates) are routinely 

part of fee-to-trust transactions. 

Response: The statutory scheme in 

ANCSA allows for the split ownership 

of surface and subsurface rights in 

Alaska; the implementation of Section 5 

of the IRA in Alaska would not impact 

this split ownership, but would instead 

allow tribes to apply to place any of 

their ownership rights (acquired 

through voluntary transactions) into 

trust. The Department has processed 

and approved land-into-trust 

applications from Indian tribes 

involving split estates under the Part 

151 regulations in other parts of the 

United States. In a number of cases, the 

Department has acquired a surface 

estate into trust at the request of a 

petitioning tribe that owned the surface 

estate. 

In the circumstances posed by the 

commenters, if the regional corporation 

or another party owns the subsurface 

estate, the rights to that subsurface 

estate are not affected by the acquisition 

of the surface estate into trust. It is wellsettled under the law that a mineral 

estate remains dominant, and a 

subsurface owner has a right of 

reasonable access to the minerals below. 

See, e.g., Del Rio Drilling Programs v. 

United States, 35 Fed. Cl. 186 (1996). In 

such circumstances, the surface owner’s 

estate is subservient to the owner of the 

mineral estate. This right would be 

preserved even if the surface estate is 

taken into trust. Meanwhile, Title XI of 

the Alaska National Interest Lands 

Conservation Act (ANILCA) guarantees 

access to inholdings, which would 

include a subsurface estate. See 16 

U.S.C. 3170. Of course, the Department 

would encourage any surface owners 

and subsurface owners in Alaska to 

enter into surface use agreements 

regarding such access. 

Moreover, in the spirit of the 

Department’s consultation policy with 

Alaska Native Corporations and the 

extensive notice provisions in Part 151, 

the Department will be interested in 

hearing the views of the corporations as 

to any application for land into trust 

before the Department on which 

corporations wish to comment. 

f. Public Easements 

Commenters asked whether taking 

land into trust would affect existing 

easements and rights-of-way across the 

land, as well as the ability to obtain 

future easements and rights-of-way. 

Response: Land is regularly taken into 

trust by the Department subject to 

existing easements and rights-of-way. 

Once the land is in trust, anyone 

seeking a new easement or right-of-way 

across trust land would have to comply 

with 25 CFR part 169. 

g. ANCSA and ANCSA’s RevenueSharing Provisions 

One Alaska Native corporation 

suggested clarifying how the rule 

impacts ANCSA’s provisions requiring 

revenue-sharing among regional 

corporations, village corporations, and 

at-large shareholders. 

Response: This rule will not have a 

direct effect on the ANCSA revenuesharing provisions. Taking land into 

trust does not necessarily change the 

revenue-sharing arrangements, and this 

would be one of many factors 

considered in the Department’s review 

of applications under Part 151. 

3. Applicability of the Rule 

Several commenters suggested that 

certain land owned by Alaska Native 

corporations under ANCSA, land in 

‘‘selection’’ status (not yet conveyed), or 

land designated and limited by ANCSA, 

should not be eligible to be taken into 

trust by virtue of being part of the 

settlement and as necessary to preserve 

Alaska Native corporations’ ability to 

meet their statutory obligations. A few 

other commenters stated that no ANCSA 

lands should be excluded if a tribe 

acquires them. Another commenter 


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questioned whether former reservation 

land that the tribe acquired in fee would 

be eligible to be taken into trust. 

Response: An Alaska Native tribe or 

individual possessing fee title to any 

alienable land, including ANCSA lands, 

may apply to have that land taken into 

trust by the United States. The 

Department considers trust applications 

on a case-by-case basis in compliance 

with its regulations at 25 CFR part 151. 

Land selected under ANCSA, but not 

yet conveyed, is not eligible for being 

taken into trust since it is not owned by 

the tribe. 

4. Implementation of the Rule 

a. General Questions on Part 151 

A few commenters had general 

questions regarding the process for 

taking land into trust. Some asked 

whether land may be acquired in trust 

for Alaska Native individuals, in 

addition to Alaska Native tribes. 

Response: The process, requirements, 

and criteria governing the acquisition of 

land in trust are outlined in 25 CFR part 

151 and the Fee-to-Trust Handbook, 

which is available at www.bia.gov. The 

rule makes the land-into-trust process 

available to both Alaska Native tribes 

and Alaska Native individuals; 

however, separate restrictions and 

requirements apply to each. See 25 CFR 

151.3 and 151.10(d). 

b. Effect of Land Being Taken Into Trust 

A commenter asked multiple 

questions regarding the effect of land 

being taken into trust and the trust 

relationship, including whether BIA 

approval is needed for projects on trust 

land, and whether trust land may be 

proclaimed as an Indian reservation in 

Alaska. 

Response: Once land is held in trust 

by the United States, BIA approval is 

generally necessary whenever a third 

party (or someone other than the Indian 

or tribal landowner) seeks to obtain an 

interest in the land. For example, to 

obtain a right-of-way on trust land, an 

applicant must follow the procedures 

and requirements for obtaining BIA 

approval as set forth in 25 CFR 169. 

This rule does not address whether trust 

lands in Alaska may be proclaimed an 

Indian reservation under the IRA. See 

25 U.S.C. 467. 

c. BIA Implementation of the Rule 

Several tribes requested that, if the 

rule is implemented, applications to 

take land into trust in Alaska be 

expedited considering Alaska Natives 

have been denied the right for many 

decades. Others questioned whether 

BIA has the resources to handle an 

influx of these applications. 

Response: This Department’s policy is 

to process trust applications as 

expeditiously as possible. 

A few commenters had questions 

about the types of State and local 

services that the Department would 

provide (e.g., education, title records, 

road building) if land were taken into 

trust in Alaska. They asked whether BIA 

has, or will have, the resources to 

support newly acquired trust land, 

without diluting current services. 

Response: The Department will 

review inquiries about services 

provided to a tribe requesting land in 

trust on a case-by-case basis. 

Furthermore, when reviewing 

applications to take land into trust 

under 25 CFR 151, the Department 

considers ‘‘whether the Bureau of 

Indian Affairs is equipped to discharge 

the additional responsibilities resulting 

from the acquisition of the land in trust 

status.’’ 25 CFR 151.11(g). 

5. Further Revisions, Consultations, and 

Public Notice and Comment 

Several commenters stated that 

additional revisions to Part 151 and 

additional consultations and/or public 

notice and comment are necessary to 

address Alaska-specific issues and 

potential impacts. A few commenters 

stated that the Department should 

engage in an educational effort after the 

rule is finalized to avoid conflict within 

Alaska communities. Several 

commenters stated that the current landinto-trust process in Part 151 should be 

revised. Among the suggestions were 

requests to revise the process to: (1) 

Allow neighboring jurisdictions and the 

public to comment on trust acquisitions 

(e.g., individuals and entities affected by 

public access over easements, those 

with hunting and fishing rights, and 

those with mining claims); (2) allow 

governments to comment on impacts 

other than just jurisdictional, taxation, 

and special assessment issues, as 

currently allowed in Part 151; (3) 

provide more than a 30-day period in 

which to comment, given a potential 

flood of applications from over 200 

Alaska tribes; and (4) address how 

ANCSA lands could be protected from 

alienation, adverse possession, taxes 

and certain judgments during the 

interim period of time between the 

transfer of Alaska Native corporation 

land to a tribe and the acquisition of 

land into trust status. 

Response: Many of the concerns 

expressed in these comments are 

already addressed by the current landinto-trust process. For example, 

depending on what type of review is 

conducted under the National 

Environmental Policy Act (NEPA), 

members of the public may comment on 

the environmental impacts of a given 

trust acquisition application, including 

neighboring jurisdictions and those 

affected by public access easements. In 

addition, governments with regulatory 

jurisdiction over any land to be acquired 

in trust can and do comment on any of 

the applicable factors enumerated in 

sections 151.10 or 151.11. See County of 

Sauk, WI v. U.S. Dep’t of the Interior, 45 

IBIA 201, 207–08 (2007). With regard to 

the 30-day period in which to comment, 

the BIA will consider requests for 

extensions on a case-by-case basis. If 

ANCSA lands are conveyed to a Native 

Alaskan tribe or individual, they are in 

no greater danger of being alienated or 

otherwise exposed to risks than any 

other parcel of property would be. If 

Interior encounters issues unique to 

Alaska that are not addressed through 

the existing process as it processes 

applications, it will consider 

appropriate actions to address those 

issues at that time. 

Some commenters also stated that if 

the Alaska Exception is removed, the 

current criteria considered by BIA in 

reviewing fee-to-trust acquisitions 

should be revised to add specific criteria 

tailored to Alaska. Among the 

suggestions for revisions to the current 

regulatory criteria were: (1) Clarification 

as to whether land in Alaska will be 

treated as ‘‘off-reservation’’ in light of 

the fact that only one tribe has a 

reservation in Alaska or clarification as 

to whether former reservations will be 

considered; (2) clarification of how BIA 

will treat the distance from the 

boundaries of an Alaska Native tribe’s 

reservation; (3) new criteria to require 

the Department to consider fully any 

effect on the ownership and governance 

by regional and village corporations; (4) 

new criteria to consider the history of 

ownership of the parcel; (5) new criteria 

to consider whether there are competing 

claims to the parcel (including Stateowned rights-of-way); and (6) new 

criteria to consider whether trust status 

will affect residents who are not tribal 

members. 

Other commenters stated that there 

should not be any special provisions 

uniquely applicable to Alaska. 

Response: The Department’s existing 

criteria already explicitly take into 

account many of the concerns listed 

above, and others may naturally arise 

and can be considered in the context of 

the existing criteria. Given that the 

existing process uses a fact-intensive, 

case-by-case approach, the Department 

has concluded that the current fee-totrust process, as set forth in Part 151, 

can be made applicable to Alaska. For 

example, applications by Alaska Native 


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tribes without reservations, regardless of 

whether or not they previously had 

reservations, will be reviewed as 

landless tribes and examined under the 

‘‘off-reservation’’ criteria in the 

regulations. Regional and village 

corporations may submit comments 

during the application review process. 

Any State-owned right-of-way would 

continue to exist, even after parcel is 

transferred to the United States in trust 

status. Likewise, any easements created 

by Section 17(b) of ANCSA, which cross 

ANCSA corporation lands held by the 

United States to ensure access by the 

public to publicly owned lands and 

major waterways, would be preserved in 

the event that a trust acquisition 

application is approved. See 85 Stat. 

708. See also 43 CFR 2650.4–7. 

A few commenters submitted requests 

to extend comment period for the 

proposed rule beyond the extended 

comment deadline of July 30, 2014. 

Response: The Department retained 

the extended deadline of July 30, after 

having determined that the 90-day 

public notice and comment period 

provided sufficient time for public 

review and input. 

6. Miscellaneous 

a. NEPA 

One commenter stated that the 

Department should have prepared an 

environmental assessment or 

environmental impact statement under 

the NEPA for this rulemaking, given the 

potential impacts to state and local 

taxing authorities and management of 

resources. 

Response: The final rule does not 

constitute a major Federal action 

significantly affecting the quality of the 

human environment. The Department 

has established a categorical exclusion 

for ‘‘regulations . . . whose 

environmental effects are too broad, 

speculative, or conjectural to lend 

themselves to meaningful analysis and 

will later be subject to the NEPA 

process, either collectively or case-bycase.’’ 43 CFR 46.210(i). The 

environmental and other effects of this 

rulemaking are merely speculative and 

are not identifiable at this point. The 

final rule, by itself, does not guarantee 

that land will be taken into trust in 

Alaska, and does not transfer the title of 

any specific parcel of land. The rule 

simply allows for Alaska Native tribes to 

avail themselves of the Department’s 

authority under the IRA governing the 

acquisition of land into trust; however, 

NEPA review is applicable for each of 

the Department’s decisions to acquire 

land into trust on behalf of a tribe. The 

Department will consider and comply 

with any NEPA obligations in the 

context of a specific fee-to-trust 

transaction. See Bureau of Indian Affairs 

National Environmental Policy Act 

Guidebook Section 3.1 (2012). As a 

result, the issues like those raised by the 

commenter will be considered in the 

context of each application. 

b. Federalism 

The State of Alaska Attorney General 

and Alaska CACFA claim that the 

Department failed to consult with the 

State as required by EO 13132. They 

asserted that such consultation is 

required, because the rule would have 

substantial impacts on the State and its 

relationship with Federal and tribal 

governments, as well as the distribution 

of governmental authority throughout 

the States. 

Response: The State has the 

opportunity and right to participate 

during the Department’s review of 

individual applications to take land into 

trust in Alaska, as permitted by Part 

151. Whether EO 13132 applies to 

taking land into trust in Alaska is best 

considered during the consideration of 

a particular parcel of land. As this rule 

does not take any specific land into trust 

in Alaska, the potential effects on 

certain matters addressed in EO 13132 

are currently speculative. 

IV. Determination To Remove the 

Alaska Exception 

Having reviewed and considered the 

foregoing comments, the majority of 

which supported the proposed rule, we 

have determined that removal of the 

Alaska Exception is supported by both 

legal and public policy considerations. 

As many of the commenters noted, there 

are a number of benefits that can result 

from having land taken into trust. In 

enacting the IRA, Congress recognized 

that the acquisition of land into trust 

status on behalf of Indian tribes can 

assist in furthering tribal selfdetermination and self-governance. By 

providing a physical space where tribal 

governments may exercise sovereign 

powers to provide for their citizens, 

trust land can help promote tribal selfgovernance and self-determination. The 

goals of tribal self-governance and selfdetermination are equally as important 

to Alaska Native tribes as they are to 

tribes in the rest of the United States. 

This rule removes the categorical ban 

and provides for the Department to 

make a case-by-case determination on 

whether to take any given property in 

Alaska into trust. Those case-by-case 

determinations include consideration of 

important environmental effects and 

other impacts under NEPA, as well as 

consideration of the statutory and 

applicable regulatory criteria. The 

Secretary will retain full discretion to 

evaluate and determine whether to 

approve any particular trust application 

in Alaska. 

As explained in the responses to 

comments above, concerns with regard 

to resource management and 

jurisdictional issues are considered in 

the NEPA and Part 151 review process 

on a case-by-case basis for each landinto-trust application. The potential 

complexities mentioned by several 

commenters with regard to split estates, 

public easements, and ANCSA lands do 

not warrant maintaining the regulation’s 

categorical ban on taking land into trust 

in Alaska. 

Both legal and public policy 

considerations therefore support the 

removal of the categorical exclusion of 

Alaska from the regulations 

implementing the Secretary’s land-intotrust authority under Section 5 of the 

IRA. 

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 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 


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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. The State has the 

opportunity and right to participate 

during the Department’s review of 

individual applications to take land into 

trust in Alaska, as permitted by Part 

151. 

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. The 

Department held consultation sessions 

to discuss the proposed rule in 

Anchorage, Alaska on June 9, 2014, by 

teleconference on June 18, 2014, and in 

Washington, DC on June 26, 2014. As 

noted above, the Department did not 

receive any comments at the 

consultation session in Washington, DC. 

I. Paperwork Reduction Act 

OMB Control Number: 1076–0100. 

Title: Acquisition of Trust Land, 25 

CFR 151. 

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) (an increase of 60 

respondents per year). 

Number of Responses: 1,060 on 

average (each year) (an increase of 60 

responses per year). 

Frequency of Response: On occasion. 

Estimated Time per Response: (See 

table below). 

Estimated Total Annual Hour Burden: 

74,400 hours (an increase of 6,600 

hours). 

Citation 25 CFR 151 Information 

Average 

number of 

hours 

Average 

number per 

year 

Estimated 

annual 

burden 

hours 

Estimated 

increase 

in burden 

hours 

151.9, 151.10 (On-Res), and 151.13 Application ........................................ 50 850 42,500 0 

Documentation for NEPA—tribe and 

individual furnish documentation.

40 120 4,800 0 

Documentation for NEPA—Tiering .. 20 200 4,000 0 

151.9, 151.11 (Off-Res), and 151.13 Application ........................................ 70 210 14,700 4,200 

Documentation for NEPA—tribe provides documentation.40 210 8,400 2,400 

OMB Control No. 1076–0100 

currently authorizes the collections of 

information contained in 25 CFR part 

151. The annual burden hours for 

applicants (tribal governments applying 

to have land taken into trust) will 

increase by approximately 6,600 hours 

because of the increase in potential 

applications as a result of this rule. 

J. National Environmental Policy Act 

This rule does not constitute a major 

Federal action significantly affecting the 

quality of the human environment 

because these are ‘‘regulations . . . 

whose environmental effects are too 

broad, speculative, or conjectural to 

lend themselves to meaningful analysis 

and will later be subject to the NEPA 

process, either collectively or case-bycase.’’ 43 CFR 46.210(j). This rule does 

not guarantee that land will be acquired 

in trust in Alaska, it merely opens the 

door to the process to Alaska tribes and 

individual Indians in Alaska. Individual 

trust acquisitions in Alaska pursuant to 

the Part 151 regulations constitute major 

Federal actions requiring NEPA 

compliance. Bureau of Indian Affairs 

National Environmental Policy Act 

Guidebook Section 3.1 (2012). No 

extraordinary circumstances exist that 

would require greater NEPA review. 

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. 


tkelley on DSK3SPTVN1PROD with RULES
Federal Register / Vol. 79, No. 246 / Tuesday, December 23, 2014 / Rules and Regulations 76897 

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 § 151.1 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: December 18, 2014. 

Kevin K. Washburn, 

Assistant Secretary—Indian Affairs. 

[FR Doc. 2014–30099 Filed 12–22–14; 8:45 am] 

BILLING CODE 4310–6W–P 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1910 

Standards Improvement Project— 

Phase III 

CFR Correction 

In Title 29 of the Code of Federal 

Regulations, Part 1900 to § 1910.999, 

revised as of July 1, 2014, in § 1910.36, 

on page 151, revise the Note to 

paragraph (b), and on page 152, revise 

the Note to paragraph (f), to read as 

follows: 

§ 1910.36 Design and construction 

requirements for exit routes. 

* * * * * 

(b) * * * 

Note to paragraph (b) of this section: For 

assistance in determining the number of exit 

routes necessary for your workplace, consult 

NFPA 101–2009, Life Safety Code, or IFC– 

2009, International Fire Code (incorporated 

by reference, see § 1910.6). 

* * * * * 

(f) * * * 

Note to paragraph (f) of this section: 

Information regarding the ‘‘Occupant load’’ is 

located in NFPA 101–2009, Life Safety Code, 

and in IFC–2009, International Fire Code 

(incorporated by reference, see § 1910.6). 

* * * * * 

[FR Doc. 2014–30196 Filed 12–22–14; 8:45 am] 

BILLING CODE 4510–26–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket Number USCG–2014–0993] 

RIN 1625–AA00 

Safety Zones Within the Captain of the 

Port New Orleans Zone, Louisiana 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing two temporary safety zones 

for two fireworks display events within 

the Captain of the Port (COTP) New 

Orleans Zone. This action is necessary 

to protect persons and vessels from 

potential safety hazards associated with 

these events. Entry into these zones is 

prohibited unless specifically 

authorized by the Captain of the Port 

New Orleans or a designated 

representative. 

DATES: This rule is effective without 

actual notice from December 23, 2014 

until January 1, 2015. For the purposes 

of enforcement, actual notice will be 

used from December 6, 2014, until 

December 23, 2014. 

This rule will be enforced from 9:00 

p.m. to 9:30 p.m. on December 6, 2014 

and from 11:45 p.m. on New Year’s Eve, 

December 31, 2014 to 12:30 a.m. on 

January 1, 2015. 

ADDRESSES: Documents mentioned in 

this preamble are part of docket [USCG– 

2014–0993]. To view documents 

mentioned in this preamble as being 

available in the docket, go to 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 

rulemaking. 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 rule, call or 

email Lieutenant Commander (LCDR) 

James Gatz, Sector New Orleans, at (504) 

365–2281 or James.C.Gatz@uscg.mil. If 

you have questions on viewing or 

submitting material to the docket, call 

Cheryl F. Collins, Program Manager, 

Docket Operations, telephone (202) 

366–9826. 

SUPPLEMENTARY INFORMATION: 

Table of Acronyms 

COTP Captain of the Port 

DHS Department of Homeland Security 

FR Federal Register 

LMR Lower Mississippi River 

MM Mile Marker 

NPRM Notice of Proposed Rulemaking 

A. Regulatory History and Information 

There are two separate marine events 

addressed by this temporary regulation. 

(1) The Plaquemines Parish Fair & 

Orange Festival is an annually occurring 

event, but the sponsor did not apply for 

a marine event permit for the prior 

year’s event and the event appears to 

have no regulatory history. (2) The 

Madisonville New Year’s Eve event is 

also an annually occurring event, but 

the sponsor did not apply for a marine 

event permit for the prior year’s event, 

and the event appears to have no 

regulatory history. Upon full review of 

the details of each of each of these 

events, the Coast Guard determined that 

additional safety measures are 

necessary. 

The Coast Guard is issuing this final 

rule without prior notice and 

opportunity to comment pursuant to 

authority under section 4(a) of the 

Administrative Procedure Act (APA) (5 

U.S.C. 553(b)). This provision 

authorizes an agency to issue a rule 

without prior notice and opportunity to 

comment when the agency for good 

cause finds that those procedures are 

‘‘impracticable, unnecessary, or contrary 

to the public interest.’’ Under 5 U.S.C. 

553(b)(3)(B), the Coast Guard finds that 

good cause exists for not publishing a 

notice of proposed rulemaking (NPRM) 

with respect to this rule because as 

scheduled, the displays would take 

place before the full NPRM process 

could be completed. Because of the 

dangers presented by aerial barge based 


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