Federal Register / Vol. 76, No. 234 / Tuesday, December 6, 2011 / Rules and Regulations 76037 

incorporated or otherwise authorized to 

do business in its respective country. 

Foreign persons who are required to 

register shall provide information that is 

substantially similar in content to that 

which a U.S. person would provide 

under this provision (e.g., foreign 

business license or similar authorization 

to do business). The Directorate of 

Defense Trade Controls will notify the 

registrant if the Statement of 

Registration is incomplete either by 

notifying the registrant of what 

information is required or through the 

return of the entire registration package. 

Registrants may not establish new 

entities for the purpose of reducing 

registration fees. 

* * * * * 

Dated: November 29, 2011. 

Ellen O. Tauscher, 

Under Secretary, Arms Control and 

International Security, Department of State. 

[FR Doc. 2011–31273 Filed 12–5–11; 8:45 am] 

BILLING CODE 4710–25–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 301 

[TD 9554] 

RIN 1545–BJ07 

Extending Religious and Family 

Member FICA and FUTA Exceptions to 

Disregarded Entities; Correction 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Correcting amendment. 

SUMMARY: This document describes a 

correction to final and temporary 

regulations (TD 9554) extending the 

exceptions from taxes under the Federal 

Insurance Contributions Act (‘‘FICA’’) 

and the Federal Unemployment Tax Act 

(‘‘FUTA’’) under sections 3121(b)(3) 

(concerning individuals who work for 

certain family members), 3127 

(concerning members of religious 

faiths), and 3306(c)(5) (concerning 

persons employed by children and 

spouses and children under 21 

employed by their parents) of the 

Internal Revenue Code (‘‘Code’’) to 

entities that are disregarded as separate 

from their owners for Federal tax 

purposes. The temporary regulations 

also clarify the existing rule that the 

owners of disregarded entities, except 

for qualified subchapter S subsidiaries, 

are responsible for backup withholding 

and related information reporting 

requirements under section 3406. These 

regulations were published in the 

Federal Register on Tuesday, November 

1, 2011 (76 FR 67363). 

DATES: This correction is effective on 

December 6, 2011, and is applicable on 

November 1, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Joseph Perera, (202) 622–6040 (not a 

toll-free number). 

SUPPLEMENTARY INFORMATION: 

Background 

The final and temporary regulations 

that are the subject of this document are 

under section 7701 of the Internal 

Revenue Code. 

Need for Correction 

As published, final and temporary 

regulations (TD 9554) contain an error 

that may prove to be misleading and is 

in need of clarification. 

List of Subjects in 26 CFR 301 

Employment taxes, Estate taxes, 

Excise taxes, Gift taxes, Income taxes, 

Penalties, Reporting and recording 

requirements. 

Correction of Publication 

Accordingly, 26 CFR part 301 is 

corrected by making the following 

correcting amendment: 

PART 301—PROCEDURE AND 

ADMINISTRATION 

■ Paragraph 1. The authority citation 

for part 301 continues to read in part as 

follows: 

Authority: 26 U.S.C. 7805 * * * 

■ Par. 2. Section 301.7701–2T is revised 

to read as follows: 

§ 301.7701–2T Business entities; 

definitions (temporary). 

(a) through (c)(2)(iv) [Reserved]. For 

further guidance, see § 301.7701–2(a) 

through (c)(2)(iv). 

(A) In general. Section § 301.7701– 

2(c)(2)(i) (relating to certain wholly 

owned entities) does not apply to taxes 

imposed under Subtitle C—Employment 

Taxes and Collection of Income Tax 

(Chapters 21, 22, 23, 23A, 24 and 25 of 

the Internal Revenue Code). However, 

§ 301.7701–2(c)(2)(i) does apply to 

withholding requirements imposed 

under section 3406 (backup 

withholding). The owner of a business 

entity that is disregarded under 

§ 301.7701–2 is subject to the 

withholding requirements imposed 

under section 3406 (backup 

withholding). Section 301.7701– 

2(c)(2)(i) also applies to taxes imposed 

under Subtitle A, including Chapter 2— 

Tax on Self Employment Income. The 

owner of an entity that is treated in the 

same manner as a sole proprietorship 

under § 301.7701–2(a) will be subject to 

tax on self-employment income. 

(B) [Reserved]. For further guidance, 

see § 301.7701–2(c)(2)(iv)(B). 

(C) Exceptions. For exceptions to the 

rule in § 301.7701–2(c)(2)(iv)(B), see 

sections 31.3121(b)(3)–1(d), 31.3127– 

1(c), and 31.3306(c)(5)–1(d). 

(D) through (e)(4) [Reserved]. For 

further guidance, see § 301.7701– 

2(c)(2)(iv)(D) through (e)(4). 

(5) Paragraphs (c)(2)(iv)(A) and 

(c)(2)(iv)(C) of this section apply to 

wages paid on or after December 6, 

2011. For rules that apply to paragraph 

(c)(2)(iv)(A) of this section before 

December 6, 2011, see 26 CFR part 301 

revised as of April 1, 2009. However, 

taxpayers may apply paragraphs 

(c)(2)(iv)(A) and (c)(2)(iv)(C) of this 

section to wages paid on or after January 

1, 2009. 

(e)(6) through (e)(7) [Reserved]. For 

further guidance, see § 301.7701–2(e)(6) 

through (e)(7). 

(8) Expiration Date. The applicability 

of paragraphs (c)(2)(iv)(A) and 

(c)(2)(iv)(C) of this section expires on or 

before December 5, 2014. 

LaNita Van Dyke, 

Chief, Publications and Regulations Branch, 

Legal Processing Division, Associate Chief 

Counsel, (Procedure and Administration). 

[FR Doc. 2011–31182 Filed 12–5–11; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF JUSTICE 

28 CFR Part 50 

[Docket No. OAG 142; AG Order No. 3314– 

2011] 

RIN 1105–AB38 

Office of the Attorney General; 

Assumption of Concurrent Federal 

Criminal Jurisdiction in Certain Areas 

of Indian Country 

AGENCY: Office of the Attorney General, 

Department of Justice. 

ACTION: Final rule. 

SUMMARY: This rule establishes the 

procedures for an Indian tribe whose 

Indian country is subject to State 

criminal jurisdiction under Public Law 

280 (18 U.S.C. 1162(a)) to request that 

the United States accept concurrent 

criminal jurisdiction within the tribe’s 

Indian country, and for the Attorney 

General to decide whether to consent to 

such a request. 

DATES: Effective Date: This rule is 

effective January 5, 2012. 

FOR FURTHER INFORMATION, CONTACT: Mr. 

Tracy Toulou, Director, Office of Tribal 


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76038 Federal Register / Vol. 76, No. 234 / Tuesday, December 6, 2011 / Rules and Regulations 

Justice, Department of Justice, at (202) 

514–8812 (not a toll-free number). 

SUPPLEMENTARY INFORMATION: 

Discussion 

For more than two centuries, the 

Federal Government has recognized 

Indian tribes as domestic sovereigns that 

have unique government-to-government 

relationships with the United States. 

Congress has broad authority to legislate 

with respect to Indian tribes, however, 

and has exercised this authority to 

establish a complex jurisdictional 

scheme for the prosecution of crimes 

committed in Indian country. (The term 

‘‘Indian country’’ is defined in 18 U.S.C. 

1151.) Criminal jurisdiction in Indian 

country typically depends on several 

factors, including the nature of the 

crime; whether the alleged offender, the 

victim, or both are Indian; and whether 

a treaty, Federal statute, executive order, 

or judicial decision has conferred 

jurisdiction on a particular government. 

Here, three Federal statutes are 

particularly relevant: The General 

Crimes Act (also known as the Indian 

Country Crimes Act), 18 U.S.C. 1152; 

the Major Crimes Act (also known as the 

Indian Major Crimes Act), 18 U.S.C. 

1153; and Public Law 280, Act of Aug. 

15, 1953, Public Law 83–280, 67 Stat. 

588, codified in part as amended at 18 

U.S.C. 1162. Under the General Crimes 

and Major Crimes Acts, which apply to 

most of Indian country, jurisdiction to 

prosecute most crimes in Indian country 

rests with the Federal Government, the 

tribal government, or both concurrently. 

State criminal jurisdiction in Indian 

country is generally limited to crimes 

committed by non-Indians against nonIndian victims, as well as victimless 

crimes committed by non-Indians. 

But there is an important exception to 

this general rule: In certain areas of 

Indian country, Public Law 280 renders 

the General Crimes and Major Crimes 

Acts inapplicable and instead gives the 

States jurisdiction over crimes 

committed by or against Indians. 

Specifically, the Public Law 280 

criminal-jurisdiction provision codified 

at 18 U.S.C. 1162 applies in parts of 

Alaska, California, Minnesota, Nebraska, 

Oregon, and Wisconsin. (Section 

1162(a) expressly exempts some areas of 

Indian country in these States, such as 

the Red Lake Reservation in Minnesota 

and the Warm Springs Reservation in 

Oregon; and some of these States have 

formally ‘‘retroceded’’ jurisdiction over 

other reservations.) In the areas of 

Indian country covered by section 1162, 

which are known as ‘‘mandatory’’ 

Public Law 280 jurisdictions, the 

Federal Government can prosecute 

violations of general Federal criminal 

statutes that apply nationwide, such as 

Federal narcotics laws, but typically 

cannot prosecute violent crimes such as 

murder, assault with a dangerous 

weapon, or felony child abuse. 

In contrast, the provision originating 

in Public Law 280 that is codified at 25 

U.S.C. 1321 provides a basis for other 

States to elect to assume criminal 

jurisdiction in Indian country on an 

optional basis, subject to the consent of 

the affected tribe. In the Indian country 

of these tribes, known as ‘‘optional’’ 

Public Law 280 jurisdictions, the 

Department concludes that the 

applicable statutes, including the Tribal 

Law and Order Act of 2010 (TLOA), 

provide that the Federal Government 

has concurrent jurisdiction under the 

General Crimes and Major Crimes Acts. 

See U.S. Department of Justice, United 

States Attorneys’ Manual, tit. 9, 

Criminal Resource Manual § 688 

(Federal Government may exercise 

concurrent criminal jurisdiction in ‘‘the 

so-called ‘option states’ * * * which 

assumed jurisdiction pursuant to Public 

Law 280 after its enactment’’); United 

States v. High Elk, 902 F.2d 660, 661 

(8th Cir. 1990) (per curiam) (holding 

that Federal courts retain Major Crimes 

Act jurisdiction in those States that 

voluntarily assumed jurisdiction under 

Public Law 280); cf. Negonsott v. 

Samuels, 507 U.S. 99, 105–06 (1993) 

(holding that a different Federal statute 

conferred criminal jurisdiction on a 

State without divesting the United 

States of concurrent criminal 

jurisdiction). But cf. United States v. 

Burch, 169 F.3d 666, 669–71 (10th Cir. 

1999) (holding that a 1984 ‘‘direct 

congressional grant of jurisdiction over 

[crimes committed in one town in] 

Indian country’’ vested Colorado with 

exclusive jurisdiction akin to mandatory 

jurisdiction under Pub. L. 280). 

The Tribal Law and Order Act of 2010 

The TLOA was enacted on July 29, 

2010, as title II of Public Law 111–211. 

The purpose of the TLOA is to help the 

Federal Government and tribal 

governments better address the unique 

public-safety challenges that confront 

tribal communities. 

Section 221(b) of the new law, now 

codified at 18 U.S.C. 1162(d), permits an 

Indian tribe with Indian country subject 

to mandatory State criminal jurisdiction 

under Public Law 280 to request that the 

United States accept concurrent 

jurisdiction to prosecute violations of 

the General Crimes Act and the Major 

Crimes Act within that tribe’s Indian 

country. As the statute states, this 

jurisdiction will be concurrent among 

the Federal Government, the State 

government, and (where applicable) the 

tribal government. See 18 U.S.C. 

1162(d)(2). Section 221(b) provides for 

the United States to assume concurrent 

criminal jurisdiction at the tribe’s 

request, and after consultation between 

the tribe and the Attorney General and 

consent to Federal jurisdiction by the 

Attorney General. The State need not 

consent. Once the United States has 

accepted concurrent criminal 

jurisdiction, Federal authorities can 

investigate and prosecute offenses that 

Public Law 280 currently bars them 

from prosecuting. 

Assumption of Concurrent Federal 

Criminal Jurisdiction 

This rule establishes the framework 

and procedures for a mandatory Public 

Law 280 tribe to request the assumption 

of concurrent Federal criminal 

jurisdiction within the Indian country of 

the tribe that is subject to Public Law 

280. It also describes the process to be 

used by the Attorney General in 

deciding whether to consent to such a 

request. 

The TLOA provides that the Attorney 

General is the deciding official for 

requests submitted by Indian tribes 

under 18 U.S.C. 1162(d). Given the 

potentially high volume of requests, the 

large number of Department of Justice 

components and non-Department 

partners that should be conferred with, 

and the detailed tribe-by-tribe analyses 

that may be needed, the Attorney 

General is delegating decisional 

authority under 18 U.S.C. 1162(d) to the 

Deputy Attorney General. The Office of 

the Deputy Attorney General will 

receive recommendations from the 

Office of Tribal Justice, the Executive 

Office for United States Attorneys, and 

the Federal Bureau of Investigation, and 

also will consider any comments from 

other Department components 

(including the Bureau of Prisons and the 

Office of Community Oriented Policing 

Services) and other Federal, tribal, State, 

and local entities. The Office of Tribal 

Justice will handle the staffing and 

tracking of assumption requests. 

The Department will begin to accept 

tribal requests for the assumption of 

concurrent Federal criminal jurisdiction 

on the date this rule becomes effective. 

Any tribe that previously submitted a 

request should resubmit its request and 

ensure that it conforms to the 

requirements of this final rule. 

In accordance with Executive Order 

13175 of November 6, 2000, which 

requires consultation between Federal 

agencies and tribes on certain matters, 

the Department has held tribal 

consultations regarding these 

assumption procedures. 


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Retrocession of State Criminal 

Jurisdiction 

Assumption of concurrent Federal 

criminal jurisdiction under this rule 

does not require the approval of any 

State. The statute being implemented, 

18 U.S.C. 1162(d), authorizes the 

Federal Government to assume such 

jurisdiction pursuant to a tribe’s request 

and with the consent of the Attorney 

General; it does not require State 

consent to the change in Federal 

jurisdiction. After a tribe has submitted 

a request under 18 U.S.C. 1162(d), the 

Department will publish a notice in the 

Federal Register inviting input from 

affected State and local law enforcement 

authorities. But ultimately, it is the 

tribe’s request and the Attorney 

General’s consent that will determine 

whether the United States accepts 

concurrent criminal jurisdiction. 

The process described in this rule is 

separate and distinct in this respect 

from Public Law 280’s ‘‘retrocession’’ 

process for transferring criminal 

jurisdiction from the State government 

to the Federal Government. See 25 

U.S.C. 1323(a). The retrocession process 

is initiated by the State, not the tribe, 

and thus cannot occur without the 

State’s consent. 

The process described in this rule is 

also distinct from the retrocession 

process in the further respect that the 

State will not lose any criminal 

jurisdiction as a result of the Federal 

Government’s assumption of 

jurisdiction under this rule. As 18 

U.S.C. 1162(d) makes clear, the 

jurisdiction assumed by the Federal 

Government under that provision is 

concurrent with State jurisdiction and, 

where applicable, tribal jurisdiction. By 

contrast, Federal acceptance of 

jurisdiction through the retrocession 

process under 25 U.S.C. 1323(a) 

eliminates criminal jurisdiction 

previously held by the State in areas 

covered by the retrocession. 

Where 18 U.S.C. 1162(d) Does Not 

Apply 

The process described in this rule 

applies only to Indian country that is 

subject to ‘‘mandatory’’ Public Law 280 

State criminal jurisdiction under 18 

U.S.C. 1162. As indicated above, the 

Department concludes that the United 

States has concurrent jurisdiction over 

General Crimes Act and Major Crimes 

Act violations in areas where States 

have assumed criminal jurisdiction 

under ‘‘optional’’ Public Law 280. 

Accordingly, although the TLOA 

provides for the United States to 

‘‘accept’’ concurrent criminal 

jurisdiction in these areas ‘‘[a]t the 

request of an Indian tribe, and after 

consultation with and consent by the 

Attorney General,’’ 25 U.S.C. 1321(a)(2), 

the Department’s view is that such 

concurrent Federal jurisdiction exists, 

whether or not the United States 

formally accepts such jurisdiction with 

the Attorney General’s consent pursuant 

to individual tribal requests under this 

provision. Accordingly, the Department 

is not establishing procedures in this 

rule for processing individual requests 

from tribes for acceptance of concurrent 

Federal jurisdiction in areas subject to 

State criminal jurisdiction under 

‘‘optional’’ Public Law 280. 

Comments on the Proposed Rule 

In response to the proposed rule 

published on May 23, 2011, see 

Assumption of Concurrent Federal 

Criminal Jurisdiction in Certain Areas of 

Indian Country, 76 FR 29675 (May 23, 

2011), with a comment period through 

July 7, 2011, the Department of Justice 

received eight sets of comments: three 

from tribal governments, one from a 

non-profit organization, two from 

associations of county officials, one 

from a county attorney, and one from a 

private individual. These eight sets of 

comments included a number of 

comments related to other sections of 

the TLOA; only those comments relating 

to the proposed rule establishing 

procedures for making requests for 

concurrent Federal criminal jurisdiction 

are addressed here. 

Information To Determine Whether the 

Assumption of Concurrent Federal 

Criminal Jurisdiction Will Improve 

Public Safety 

One comment requested information 

in the rule that would indicate the 

effectiveness of Federal law 

enforcement in Indian country where 

concurrent Federal criminal jurisdiction 

already exists. In addition, the comment 

requested information about Federal law 

enforcement agency resources to help 

tribes determine whether the agencies 

are equipped adequately to be effective. 

Similarly, another comment requested 

information regarding Federal funding 

and staffing so that State agencies can 

gauge Federal law enforcement capacity. 

The Department declines to adopt 

these suggestions. The extent of Federal 

law enforcement in Indian country 

where concurrent jurisdiction already 

exists is influenced by a wide variety of 

factors, some of which may be unique 

to a particular tribe. Therefore, 

generalizations about Federal law 

enforcement in Indian country could 

result in inaccurate and largely 

unhelpful guidance for tribes 

considering whether to submit requests 

pursuant to this rule. Moreover, 

information about Federal law 

enforcement agency resources is subject 

to change each fiscal year and thus can 

be an unreliable predictor of future 

resources. 

Tribal, Federal, State, and Local 

Communication and Participation 

One comment requested an 

amendment to 28 CFR 50.25(c) to 

include a requirement that the 

Department provide notice (with an 

opportunity for comment) to State and 

local agencies that are responsible for 

investigating and prosecuting criminal 

violations in the Indian country of the 

tribe. 

The Department concurs with this 

suggestion and is amending the final 

rule to require that tribes requesting 

assumption of concurrent Federal 

criminal jurisdiction identify such 

agencies in their requests, and that the 

Office of Tribal Justice provide written 

notice to those agencies within 30 days 

of receiving the request. 

Two comments asked that the rule 

require the Office of Tribal Justice to 

provide the requesting tribe a copy of 

comments and recommendations 

submitted by others, and allow the tribe 

an opportunity to respond in writing. 

The Department generally concurs 

with this suggestion, but reserves the 

right to exercise discretion in 

determining what to share with the 

tribe. For example, the Department has 

an obligation to protect personally 

identifiable information and law 

enforcement sensitive information. The 

final rule is being amended to note that 

the Office of Tribal Justice may provide 

the requesting tribe with appropriately 

redacted copies of comments and will 

allow the tribe an opportunity to 

respond in writing. 

One comment suggested that the rule 

require a public meeting to solicit 

comments, which should be taken into 

consideration when evaluating tribal 

requests. 

The Department declines to adopt this 

suggestion. Requests will be published 

in the Federal Register and notice will 

be sent in writing to the State and local 

agencies referenced above. Those 

agencies and the public will have ample 

opportunity to provide comments. 

While the Department reserves the 

option to hold public meetings in 

appropriate cases, the Department 

declines to make such meetings 

mandatory in all cases. 

One comment asked that the rule 

require the Deputy Attorney General 

and the Office of Tribal Justice to meet 

personally with the tribe to discuss the 


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76040 Federal Register / Vol. 76, No. 234 / Tuesday, December 6, 2011 / Rules and Regulations 

request, comments, and 

recommendations submitted by others. 

The Department declines to adopt this 

suggestion. The rule requires that the 

Office of Tribal Justice consult with the 

requesting tribe before forming a 

recommendation to the Deputy Attorney 

General. The Department believes the 

process established by the rule will 

provide requesting tribes sufficient 

opportunity for meaningful consultation 

on their requests and on any comments 

or recommendations from other parties. 

Measurable Criteria for Determining the 

Need for Concurrent Federal Criminal 

Jurisdiction 

One comment asked that 28 CFR 

50.25(d) include criteria for evaluating 

current law enforcement agencies’ 

successes or failures. This comment also 

asked for the inclusion of a provision 

identifying criteria for assessing existing 

resources and the application of those 

resources by agencies servicing the tribe 

requesting the assumption of concurrent 

Federal criminal jurisdiction. An 

additional comment proposed that the 

final rule should require a ‘‘prima facie’’ 

showing by the tribe that concurrent 

Federal criminal jurisdiction is 

necessary. 

The Department declines to adopt 

these suggestions. The Department will 

determine which specified factors are 

relevant to evaluating a request for 

assumption of concurrent Federal 

jurisdiction in any particular case. Such 

factors will include an assessment of 

current law enforcement agencies’ 

resources and the application of those 

resources within the Indian country of 

the tribe. Moreover, the tribal request 

must ‘‘explain why the assumption of 

concurrent Federal criminal jurisdiction 

will improve public safety and criminal 

law enforcement and reduce crime in 

the Indian country of the requesting 

tribe.’’ 28 CFR 50.25(b)(2). There is no 

need to require a ‘‘prima facie’’ showing 

that concurrent Federal criminal 

jurisdiction is necessary. 

One comment noted that the list of 

factors for consideration in the proposed 

rule, 28 CFR 50.25(d)(4) through (7), is 

too broadly written and does not 

adequately characterize the standards 

the Department will apply when 

evaluating a request. The comment 

requested that the listed factors be more 

clearly defined, and relate to public 

safety, law enforcement needs, and 

implementation of the TLOA. 

The Department partly concurs with 

this suggestion and is adding a new 28 

CFR 50.25(d)(1), which expressly 

provides for consideration of whether 

consenting to the request will improve 

public safety and criminal law 

enforcement and reduce crime in the 

Indian country of the requesting tribe. 

Threshold Requirements for Tribal 

Requests 

Three comments suggested that 

consideration of or consent to tribal 

requests be conditioned on the 

inclusion of specific features in that 

tribe’s justice system, such as due 

process protections for defendants, 

publicly available criminal codes, 

procedural and evidentiary rules, 

protections for victims’ rights, and 

procedures to protect victim 

information. 

The Department declines to adopt 

these suggestions. The Department will 

review information about a requesting 

tribe’s justice system as one factor in 

evaluating a tribal request. But these 

comments suggest a mistaken belief that 

assumption of concurrent Federal 

criminal jurisdiction will alter the 

criminal jurisdiction of the tribe making 

the request. Neither this rule nor the 

statute it implements, 18 U.S.C. 1162(d), 

alters existing tribal, State, or local 

jurisdiction. Therefore, there is no need 

to impose such additional requirements 

on a requesting tribe. 

Periodic Assessments and Amendments 

One comment suggested that the rule 

should include a provision for periodic 

review and should allow for future 

amendments. 

The Department declines to adopt 

these suggestions. The statute being 

implemented in this rule, 18 U.S.C. 

1162(d), does not provide for revisiting 

decisions to consent to the assumption 

of concurrent Federal criminal 

jurisdiction; rather, it indicates that 

such concurrent Federal criminal 

jurisdiction is established when the 

Attorney General consents to a tribal 

request. To the extent the comment 

refers to this rule, all regulations are 

subject to potential future amendment; 

an explicit statement to that effect in 

this rule is unnecessary. 

Redundancy and Confusion 

One comment noted that in the 

proposed rule, 28 CFR 50.25(d)(4) 

through (7) overlaps considerably with 

28 CFR 50.25(e) and (g), and that 28 CFR 

50.25(h) overlaps considerably with 28 

CFR 50.25(d) and 50.25(e). The 

comment asked that these provisions be 

consolidated to reduce redundancy and 

avoid possible confusion. 

The Department partly concurs with 

this suggestion. The Department is 

deleting from the final rule 28 CFR 

50.25(e) through (g) of the proposed 

rule, which the Department agrees are 

substantially redundant of provisions in 

28 CFR 50.25(d). 

One comment asked that the 

Department remove the words 

‘‘assumption’’ and ‘‘acceptance’’ of 

Federal concurrent jurisdiction because 

the statute being implemented in the 

rule, 18 U.S.C. 1162(d), provides for 

such jurisdiction automatically by 

operation of law when certain 

conditions are met. 

The Department declines to adopt this 

suggestion. Using the words 

‘‘assumption’’ and ‘‘acceptance’’ adds 

clarity to the rule. 

One comment suggested that the 

Department remove references to 

section 221 of the TLOA to avoid 

confusion and instead refer directly to 

18 U.S.C. 1162(d). 

The Department concurs with this 

suggestion and is amending the final 

rule accordingly. 

Time Frames 

One comment suggested that the 

Department change the language in 28 

CFR 50.25(c)(2) from ‘‘promptly’’ to 

‘‘within 30 days of receipt,’’ and provide 

a 60-day comment period. 

The Department concurs with the 

suggestion to change the language in 28 

CFR 50.25(c)(2) from ‘‘promptly’’ to 

‘‘[w]ithin 30 days of receipt of a tribal 

request.’’ The Department also concurs 

with the suggestion that the comment 

period be defined, and is amending the 

rule to include a 45-day comment 

period. This somewhat shorter comment 

period will help the Department reach 

a decision within the timeframe 

contemplated in the rule. 

One comment asked that the rule be 

amended to account for factors that may 

prompt a tribe to request assumption of 

concurrent Federal criminal jurisdiction 

outside of the two prioritized 

timeframes. 

The Department declines to adopt this 

suggestion. The rule as written allows a 

tribe to submit a request at any time and 

allows the Deputy Attorney General to 

make a final decision on such a request 

at any time. See 28 CFR 50.25(c)(5). 

One comment asks that the rule 

identify a time limit on the duration of 

the comment period provided to State 

and local law enforcement agencies, to 

avoid delaying the assumption of 

concurrent Federal criminal 

jurisdiction. 

The Department concurs with this 

suggestion and is amending the rule to 

specify a 45-day comment period. 

Partial Jurisdiction 

One comment noted that 18 U.S.C. 

1162(d) does not provide authority for 

assumption of jurisdiction over a subset 


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Federal Register / Vol. 76, No. 234 / Tuesday, December 6, 2011 / Rules and Regulations 76041 

of violations of the General Crimes and 

Major Crimes Acts because the TLOA 

makes 18 U.S.C. 1152 and 1153 

indivisibly applicable. The same 

comment also notes that 18 U.S.C. 

1162(d) does not provide authority for 

assumption of jurisdiction over only 

part of the Indian country of the tribe 

because 18 U.S.C. 1162(d)(1) states that 

18 U.S.C. 1152 and 1153 ‘‘shall apply in 

the areas of the Indian country of the 

Indian tribe.’’ 

As noted in the proposed rule, the 

Department added this provision in 

response to requests from tribal leaders 

during tribal consultation. While the 

Department initially believed that the 

language of the statute was sufficiently 

ambiguous to permit requests for 

assumption of concurrent Federal 

criminal jurisdiction over a subset of 

violations of the General Crimes and 

Major Crimes Acts or in a limited 

geographic portion of the tribe’s Indian 

country, upon further review the 

Department now concludes that such an 

interpretation does not have sufficient 

support in the language or legislative 

history of the TLOA. Moreover, such 

partial jurisdiction could create 

practical difficulties, complicating 

further the complex criminal 

jurisdictional rules of Federal Indian 

law. Accordingly, the rule is being 

modified to remove the reference to 

partial assumptions of concurrent 

criminal jurisdiction. We note, however, 

that for those tribes whose Indian 

country is located partly in a State with 

mandatory criminal jurisdiction under 

Public Law 280 and partly in a State 

that does not have such mandatory 

Public Law 280 jurisdiction, the tribe’s 

request for the assumption of concurrent 

Federal criminal jurisdiction under this 

rule would pertain only to that part of 

the tribe’s Indian country that is located 

in a State with mandatory criminal 

jurisdiction under Public Law 280. 

State Interests 

One comment suggests providing 

notice to and accepting input from State 

governors or their designees. 

The Department concurs with this 

suggestion and is amending the final 

rule to require that the Office of Tribal 

Justice copy the relevant governor’s 

office on the notices sent to State or 

local law enforcement agencies when a 

request for assumption of concurrent 

Federal criminal jurisdiction is 

received. 

Appeals 

One comment asks that the rule 

include a provision stating that granted 

requests are non-appealable in the same 

way denied requests are non-appealable 

under 28 CFR 50.25(h)(4) of the 

proposed rule. 

The Department concurs with this 

suggestion and is amending the final 

rule accordingly. 

Additional Changes 

The Department is amending the rule 

to note that requests will be accepted as 

soon as the rule becomes effective. As 

noted above, tribes that have submitted 

requests prior to the effective date 

should resubmit the requests and ensure 

that their requests conform to the 

requirements of the final rule. 

Regulatory Certifications 

Executive Order 12866—Regulatory 

Planning and Review 

This regulation has been drafted and 

reviewed in accordance with section 

1(b) of Executive Order 12866 of 

September 30, 1993 (‘‘Regulatory 

Planning and Review’’), as amended. 

The Department of Justice has 

determined that this rule is a 

‘‘significant regulatory action’’ under 

Executive Order 12866, section 3(f), 

and, accordingly, this rule has been 

reviewed by the Office of Management 

and Budget. 

Executive Order 13132—Federalism 

This regulation will not have 

substantial direct effects 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 statutory 

process provided under 18 U.S.C. 

1162(d) allows the United States to 

assume concurrent criminal jurisdiction 

over offenses in a particular area of 

Indian country, without eliminating or 

affecting the State’s existing criminal 

jurisdiction, and this rule does not 

expand or change this authorization. 

This regulation merely establishes 

procedures providing for the Deputy 

Attorney General, by delegation, to 

make an informed decision in 

considering, in consultation with other 

Federal, tribal, State, and local 

authorities, whether or not to consent to 

a request from an individual tribe for 

the Federal Government to assume 

concurrent criminal jurisdiction within 

that tribe’s Indian country. Even if the 

Deputy Attorney General exercises his 

discretion to assume concurrent 

jurisdiction under this regulation, the 

State retains all of its existing 

jurisdiction. Furthermore, the 

Department of Justice will work with 

the relevant State and local agencies to 

determine how best to share concurrent 

criminal jurisdiction with the State and 

(where applicable) the tribe and to 

coordinate investigations and 

prosecutions, just as the Department 

works with States and tribes in other 

areas with concurrent criminal 

jurisdiction. Therefore, in accordance 

with Executive Order 13132 of August 

4, 1999, it is determined that this rule 

does not have sufficient federalism 

implications to warrant the preparation 

of a federalism assessment. 

Executive Order 12988—Civil Justice 

Reform 

This regulation meets the applicable 

standards set forth in section 3(a) and 

(b)(2) of Executive Order 12988 of 

February 5, 1996. 

Executive Order 13175—Consultation 

and Coordination with Indian Tribal 

Governments 

This rule comports with Executive 

Order 13175 of November 6, 2000. The 

rule has significant tribal implications, 

as it will have substantial direct effects 

on one or more Indian tribes and on the 

relationship between the Federal 

Government and Indian tribes. The 

Department therefore has engaged in 

meaningful consultation and 

collaboration with tribal officials in 

developing this rule. More specifically, 

the Department of Justice participated in 

six consultations with tribal officials on 

the Tribal Law and Order Act of 2010. 

The dates and locations of those tribal 

consultations were as follows: 

• October 14, 2010, in Billings, 

Montana 

• October 20, 2010, in Albuquerque, 

New Mexico 

• October 28, 2010, in Miami, Florida 

• November 16, 2010, in 

Albuquerque, New Mexico 

• December 8, 2010, in Palm Springs, 

California 

• March 23, 2011, in Hayward, 

Wisconsin 

The last two consultation sessions 

focused on section 221 of Public Law 

111–211, and the March 23, 2011 

consultation expressly addressed a draft 

version of the proposed rule. 

During these consultations, some 

tribal officials expressed a desire to see 

the Attorney General consent to each 

and every tribal request for concurrent 

Federal criminal jurisdiction. Other 

tribal officials raised more specific 

concerns. In direct response to the 

latter, the Department of Justice 

significantly rewrote portions of the 

proposed rule that is now being 

finalized. Seven changes included in the 

final rule are particularly noteworthy. 

First, rather than providing that the 

Department will attempt to give priority 


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76042 Federal Register / Vol. 76, No. 234 / Tuesday, December 6, 2011 / Rules and Regulations 

only to those tribal requests received by 

August 31 of any calendar year, the final 

rule provides that the Department will 

attempt to give priority to requests 

received by August 31 or by February 

28. This change effectively doubles the 

number of annual cycles in which the 

Department will attempt to consider 

tribal requests on a prioritized basis. 

Second, the final rule clarifies why it 

is unnecessary, under the Department’s 

view of the applicable statutes, for tribes 

in ‘‘optional’’ Public Law 280 

jurisdictions to submit individual 

requests for formal acceptance of 

concurrent Federal criminal 

jurisdiction. 

Third, the final rule clarifies that 

Federal agencies are to supply 

comments and information relevant to 

each tribal request, rather than merely 

announcing their overall support or 

opposition for each request. 

Fourth, the final rule reiterates that 

the assumption of concurrent Federal 

criminal jurisdiction under 18 U.S.C. 

1162(d) does not require the agreement, 

consent, or concurrence of any State or 

local government. 

Fifth, the final rule expressly provides 

that the Department’s Office of Tribal 

Justice may give appropriate technical 

assistance to any tribe that wishes to 

prepare and submit a renewed request, 

following the denial of an earlier 

request. 

Sixth, the final rule states that the 

assumption of concurrent Federal 

criminal jurisdiction will commence 

within six months of the decision to 

assume jurisdiction, if feasible, rather 

than merely mandating action within 

twelve months. 

Seventh and finally, the final rule 

requires that notice of a decision 

consenting to the request for assumption 

of concurrent Federal criminal 

jurisdiction will be published in the 

Federal Register. 

The Department of Justice thus 

believes that many of the concerns that 

tribal officials expressed about 18 U.S.C. 

1162(d) and the draft proposed 

regulation at the tribal consultations in 

2010 and 2011 have now been met. 

Regulatory Flexibility Act 

The Attorney General, in accordance 

with the Regulatory Flexibility Act, 5 

U.S.C. 605(b), has reviewed this 

regulation and by approving it certifies 

that this regulation will not have a 

significant economic impact on a 

substantial number of small entities. 

This rule provides only a framework for 

processing requests by Indian tribes for 

the assumption of concurrent Federal 

criminal jurisdiction over certain Indian 

country crimes, as provided for by 18 

U.S.C. 1162(d). 

Unfunded Mandates Reform Act of 1995 

This rule will not result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector of $100 million or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995, Public Law 104–4. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This rule is not a major rule as 

defined by section 251 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, 5 U.S.C. 804. This 

rule will not result in an annual effect 

on the economy of $100 million or 

more; a major increase in costs or prices; 

or significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of United States-based companies to 

compete with foreign-based companies 

in domestic and export markets. 

Paperwork Reduction Act 

This final rule contains a new 

‘‘collection of information’’ covered by 

the Paperwork Reduction Act of 1995 

(PRA), as amended, 44 U.S.C. 3501– 

3521. Under the PRA, a covered agency 

may not conduct or sponsor, and a 

person is not required to respond to, a 

collection of information unless it 

displays a currently valid control 

number assigned by the Office of 

Management and Budget (OMB). 44 

U.S.C. 3507(a)(3), 3512. The information 

collection in this final rule requires 

Indian tribes seeking assumption of 

concurrent criminal jurisdiction by the 

United States to provide to the 

Department certain information relating 

to public safety within the Indian 

country of the tribe. The Department 

submitted an information collection 

request to OMB for review and approval 

in accordance with the review 

procedures of the PRA. OMB approved 

the collection on September 27, 2011, 

and assigned OMB control number 

1105–0091. The Department of Justice 

did not receive any comments 

specifically about the proposed 

collection. 

List of Subjects in 28 CFR Part 50 

Administrative practice and 

procedure, Crime, Indians. 

Accordingly, for the reasons set forth 

in the preamble, part 50 of chapter I of 

title 28 of the Code of Federal 

Regulations is amended as follows: 

PART 50—STATEMENTS OF POLICY 

■ 1. The authority citation for part 50 is 

revised to read as follows: 

Authority: 5 U.S.C. 301; 18 U.S.C. 1162; 

28 U.S.C. 509, 510; 42 U.S.C. 1921 et seq., 

1973c; and Public Law 107–273, 116 Stat. 

1758, 1824. 

■ 2. Section 50.25 is added to read as 

follows: 

§ 50.25 Assumption of concurrent Federal 

criminal jurisdiction in certain areas of 

Indian country. 

(a) Assumption of concurrent Federal 

criminal jurisdiction. (1) Under 18 

U.S.C. 1162(d), the United States may 

accept concurrent Federal criminal 

jurisdiction to prosecute violations of 18 

U.S.C. 1152 (the General Crimes, or 

Indian Country Crimes, Act) and 18 

U.S.C. 1153 (the Major Crimes, or Indian 

Major Crimes, Act) within areas of 

Indian country in the States of Alaska, 

California, Minnesota, Nebraska, 

Oregon, and Wisconsin that are subject 

to State criminal jurisdiction under 

Public Law 280, 18 U.S.C. 1162(a), if the 

tribe requests such an assumption of 

jurisdiction and the Attorney General 

consents to that request. Once the 

Attorney General has consented to an 

Indian tribe’s request for assumption of 

concurrent Federal criminal 

jurisdiction, the General Crimes and 

Major Crimes Acts shall apply in the 

Indian country of the requesting tribe 

that is located in any of these 

‘‘mandatory’’ Public Law 280 States, 

and criminal jurisdiction over those 

areas shall be concurrent among the 

Federal Government, the State 

government, and (where applicable) the 

tribal government. Assumption of 

concurrent Federal criminal jurisdiction 

under 18 U.S.C. 1162(d) does not 

require the agreement, consent, or 

concurrence of any State or local 

government. 

(2) Under 25 U.S.C. 1321(a)(2), the 

United States may exercise concurrent 

Federal criminal jurisdiction in other 

areas of Indian country as to which 

States have assumed ‘‘optional’’ Public 

Law 280 criminal jurisdiction under 25 

U.S.C. 1321(a), if a tribe so requests and 

after consultation with and consent by 

the Attorney General. The Department’s 

view is that such concurrent Federal 

criminal jurisdiction exists under 

applicable statutes in these areas of 

Indian country, even if the Federal 

Government does not formally accept 

such jurisdiction in response to 

petitions from individual tribes. This 

rule therefore does not establish 

procedures for processing requests from 

tribes under 25 U.S.C. 1321(a)(2). 


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Federal Register / Vol. 76, No. 234 / Tuesday, December 6, 2011 / Rules and Regulations 76043 

(b) Request requirements. (1) A tribal 

request for assumption of concurrent 

Federal criminal jurisdiction under 18 

U.S.C. 1162(d) shall be made by the 

chief executive official of a federally 

recognized Indian tribe that occupies 

Indian country listed in 18 U.S.C. 

1162(a). For purposes of this section, a 

chief executive official may include a 

tribal chairperson, president, governor, 

principal chief, or other equivalent 

position. 

(2) The tribal request shall be 

submitted in writing to the Director of 

the Office of Tribal Justice at the 

Department of Justice. The first page of 

the tribal request shall be clearly 

marked: ‘‘Request for United States 

Assumption of Concurrent Federal 

Criminal Jurisdiction.’’ The tribal 

request shall explain why the 

assumption of concurrent Federal 

criminal jurisdiction will improve 

public safety and criminal law 

enforcement and reduce crime in the 

Indian country of the requesting tribe. 

The tribal request shall also identify 

each local or State agency that currently 

has jurisdiction to investigate or 

prosecute criminal violations in the 

Indian country of the tribe and shall 

provide contact information for each 

such agency. 

(c) Process for handling tribal 

requests. (1) Upon receipt of a tribal 

request, the Office of Tribal Justice 

shall: 

(i) Acknowledge receipt; and 

(ii) Open a file. 

(2) Within 30 days of receipt of a 

tribal request, the Office of Tribal Justice 

shall: 

(i) Publish a notice in the Federal 

Register, seeking comments from the 

general public; 

(ii) Send written notice of the request 

to the State and local agencies identified 

by the tribe as having criminal 

jurisdiction over the tribe’s Indian 

country, with a copy of the notice to the 

governor of the State in which the 

agency is located, requesting that any 

comments be submitted within 45 days 

of the date of the notice; 

(iii) Seek comments from the relevant 

United States Attorney’s Offices, the 

Federal Bureau of Investigation, and 

other Department of Justice components 

that would be affected by consenting to 

the request; and 

(iv) Seek comments from the 

Department of the Interior (including 

the Bureau of Indian Affairs), the 

Department of Homeland Security, other 

affected Federal departments and 

agencies, and Federal courts. 

(3) As soon as possible but not later 

than 30 days after receipt of a tribal 

request, the Office of Tribal Justice shall 

initiate consultation with the requesting 

tribe, consistent with applicable 

Executive Orders and Presidential 

Memoranda on tribal consultation. 

(4) To the extent appropriate and 

consistent with applicable laws and 

regulations, including requirements of 

the Privacy Act of 1974, as amended, 5 

U.S.C. 552a, governing personally 

identifiable information, and with the 

duty to protect law enforcement 

sensitive information, the Office of 

Tribal Justice may share with the 

requesting tribe any comments from 

other parties and provide the tribe with 

an opportunity to respond in writing. 

(5) An Indian tribe may submit a 

request at any time after the effective 

date of this rule. However, requests 

received by February 28 of each 

calendar year will be prioritized for 

decision by July 31 of the same calendar 

year, if feasible; and requests received 

by August 31 of each calendar year will 

be prioritized for decision by January 31 

of the following calendar year, if 

feasible. The Department will seek to 

complete its review of prioritized 

requests within these time frames, 

recognizing that it may not be possible 

to do so in each instance. 

(d) Factors. Factors that will be 

considered in determining whether or 

not to consent to a tribe’s request for 

assumption of concurrent Federal 

criminal jurisdiction include the 

following: 

(1) Whether consenting to the request 

will improve public safety and criminal 

law enforcement and reduce crime in 

the Indian country of the requesting 

tribe. 

(2) Whether consenting to the request 

will increase the availability of law 

enforcement resources for the requesting 

tribe, its members, and other residents 

of the tribe’s Indian country. 

(3) Whether consenting to the request 

will improve access to judicial resources 

for the requesting tribe, its members, 

and other residents of the tribe’s Indian 

country. 

(4) Whether consenting to the request 

will improve access to detention and 

correctional resources for the requesting 

tribe, its members, and other residents 

of the tribe’s Indian country. 

(5) Other comments and information 

received from the relevant United States 

Attorney’s Offices, the Federal Bureau 

of Investigation, and other Department 

of Justice components that would be 

affected by consenting to the request. 

(6) Other comments and information 

received from the Department of the 

Interior (including the Bureau of Indian 

Affairs), the Department of Homeland 

Security, other affected Federal 

departments and agencies, and Federal 

courts. 

(7) Other comments and information 

received from tribal consultation. 

(8) Other comments and information 

received from other sources, including 

governors and State and local law 

enforcement agencies. 

(e) Decision. (1) The decision whether 

to consent to a tribal request for 

assumption of concurrent Federal 

criminal jurisdiction shall be made by 

the Deputy Attorney General after 

receiving written recommendations 

from the Office of Tribal Justice, the 

Executive Office for United States 

Attorneys, and the Federal Bureau of 

Investigation. 

(2) The Deputy Attorney General will: 

(i) Consent to the request for 

assumption of concurrent Federal 

criminal jurisdiction, effective as of 

some future date certain within the next 

twelve months (and, if feasible, within 

the next six months), with or without 

conditions, and publish a notice of the 

consent in the Federal Register; 

(ii) Deny the request for assumption of 

concurrent Federal criminal 

jurisdiction; or 

(iii) Request further information or 

comment before making a final decision. 

(3) The Deputy Attorney General shall 

explain the basis for the decision in 

writing. 

(4) The decision to grant or deny a 

request for assumption of concurrent 

Federal criminal jurisdiction is not 

appealable. However, at any time after 

a denial of such a request, a tribe may 

submit a renewed request for 

assumption of concurrent Federal 

criminal jurisdiction. A renewed request 

shall address the basis for the prior 

denial. The Office of Tribal Justice may 

provide appropriate technical assistance 

to any tribe that wishes to prepare and 

submit a renewed request. 

(f) Retrocession of State criminal 

jurisdiction. Retrocession of State 

criminal jurisdiction under Public Law 

280 is governed by 25 U.S.C. 1323(a) 

and Executive Order 11435 of November 

21, 1968. The procedures for 

retrocession do not govern a request for 

assumption of concurrent Federal 

criminal jurisdiction under 18 U.S.C. 

1162(d). 

Dated: November 28, 2011. 

Eric H. Holder, Jr., 

Attorney General. 

[FR Doc. 2011–31313 Filed 12–5–11; 8:45 am] 

BILLING CODE 4410–07–P 


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