[Federal Register Volume 60, Number 121 (Friday, June 23, 1995)]
[Rules and Regulations]
[Pages 32874-32879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15215]




[[Page 32873]]

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Part IV





Department of the Interior





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Bureau of Indian Affairs



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25 CFR Part 151



Land Acquisitions (Nongaming); Final Rule

  Federal Register / Vol. 60, No. 121 / Friday, June 23, 1995 / Rules 
and Regulations   
[[Page 32874]] 

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs




25 CFR Part 151

RIN 1076-AC51


Land Acquisitions (Nongaming)

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule.

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SUMMARY: This final rule modifies three existing sections within Part 
151 (Land Acquisitions) and creates a new section which contains 
additional criteria and requirements used by the Secretary in 
evaluating requests for the acquisition of lands by the United States 
in trust for federally recognized Indian tribes when lands are outside 
and noncontiguous to the tribes' existing reservation boundaries.

EFFECTIVE DATE: July 24, 1995.

FOR FURTHER INFORMATION CONTACT:
Alice A. Harwood, Chief, Branch of Technical Services, Division of Real 
Estate Services, Bureau of Indian Affairs, Room 4522, Main Interior 
Building, 1849 C Street, NW, Washington, DC 20240, Telephone No. (202) 
208-3604.

SUPPLEMENTARY INFORMATION: The primary authors of this document are 
Stan Webb, Lee Maytubby, and Alice A. Harwood along with the members of 
the Regulation Task Force.
    On July 15, 1991, the proposed rule for off-reservation land 
acquisitions for Indian tribes was published in the Federal Register 
(Vol. 56, No. 135, pages 32278-32280).
    The Department certifies to the Office of Management and Budget 
that these final regulations meet the standards provided in Sections 
2(a) and 2(b)(2) of Executive Order 12778.
    The Department has determined that this rule:
     does not have significant federalism effects.
     is not a major rule under Executive Order 12866 and will 
not require a review by the Office of Management and Budget.
     will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et. seq.) because this rule applies only to Indian 
applicants.
     does not have significant takings implications under E.O. 
12630.
     does not have significant effects on the economy, nor will 
it result in increases in costs or prices for consumers, individual 
industries, Federal, State, or local governments, agencies, or 
geographical regions.
     does not have any adverse effects on competition, 
employment, investment, productivity, innovation, or the export/import 
market.
     is categorically excluded from the National Environmental 
Policy Act of 1969 because it is of an administrative, technical, and 
procedural nature. Therefore, neither an environmental assessment nor 
an environmental impact statement is warranted.
    Office of Management and Budget approved the information requested 
in Sections 151.9, 151.10, 151.11(c) and 151.13 under 44 U.S.C. 3501 et 
seq. and assigned clearance number 1076-0100. This information is 
required from Indian tribes and individuals to acquire land in trust 
status and used to assist the Secretary in making a determination. 
Response to this request is required to obtain a benefit.
    Public reporting for this information collection is estimated to 
average 4 hours per response, including the time for reviewing 
instructions, gathering and maintaining data, and completing and 
reviewing the information collection. Direct your comments regarding 
the burden estimate or any other aspect of this information collection 
to the Bureau of Indian Affairs, Information Collection Clearance 
Officer, Room 337-SIB, 18th and C Streets, NW., Washington, DC 20240; 
and the Office of Information and Regulatory Affairs (Project 1076-
0100), Office of Management and Budget, Washington, DC 20502.
    The annual number of tribal requests to place lands in trust is 
small. There will be some costs incurred by the requesting tribes in 
providing information to the Secretary.

Summary of Comments on Proposed Rule

    Sixty-seven comments were submitted in response to the July 15, 
1991, Federal Register publication of proposed amendments to 25 CFR 
Part 151.
    A number of commenters expressed a fear that the regulations would 
undermine tribal sovereignty and self-determination and inhibit the 
development of reservation economies, and that they would be 
inconsistent with the Indian policy statement issued by President Bush 
on June 14, 1991. There is additional concern that the proposed rules 
would:
    (1) afford state and local governments a virtual veto power over 
tribal governments;
    (2) promote a ``guardian-ward'' relationship between the United 
States and the tribes, rather than the preferred ``government-to-
government'' relationship; and
    (3) force tribes to divert their limited resources into 
``unnecessary'' efforts aimed at regulatory compliance;
    (4) be inconsistent with the federal trust responsibility to Indian 
tribes, and
    (5) further complicate an already cumbersome and time-consuming 
process by placing tribal interests lower than those of state and local 
governments.
    One commenter argued that a ``federalism assessment'' would be 
needed under Executive Order 12612, and another maintained that a 
``compete regulatory analysis'' would be required under the Regulatory 
Flexibility Act.
    Due to comments received, the gaming section, proposed as 151.12 
has been deleted and will be incorporated into a new CFR part under a 
separate rulemaking.

Section 151.10  On-Reservation Acquisition

    Comment: It was suggested that 25 CFR 151.10(e) be revised to 
reflect the BIA's position that Indian-owned fee lands within the 
boundaries of a reservation should be exempt from state property.
    Response: It should be noted that the United States Supreme Court 
recently held that (under certain circumstances) on-reservation fee 
lands will be subject to local property taxes. Therefore, 25 CFR 
151.10(e) is not revised.
    Comment: Comments suggested that all of the existing rules be made 
inapplicable to on-reservation acquisitions, and another requested a 
clarification that the strict notice and consultation requirements set 
forth in the proposed 25 CFR 151.11 would not apply to acquisitions of 
lands which are either within the boundaries of a reservation or 
contiguous thereto.
    Response: It should be noted that the decision whether to accept 
title in trust status is a discretionary one, and that the Secretary 
has chosen to regulate the decision-making process in order to promote 
national uniformity.
    The notice and comment procedures, which do not require formal 
consultation, were informally adopted in 1980. Notice and comment 
procedures are incorporated in the introductory paragraph to 25 CFR 
151.10.
    Comment: It was also suggested that the proposed rules be revised 
to accept legislatively-mandated acquisitions from compliance with 25 
CFR 151.10 and the proposed 151.11. An alternatively suggested that 
they be revised to specify that certain provisions [[Page 32875]] would 
apply even when a complete evaluation of the acquisition would be 
precluded by legislation.
    Response: The introductory paragraph to both 25 CFR 151.10 and the 
new 25 CFR 151.11 exempts such legally mandated acquisitions.

Section 151.10(h)  Hazardous Substances and NEPA Compliance

    Comment: Commenters addressed the requirement that acquired 
property ``be free of all hazardous and toxic material as required by 
602 DM 2 Land Acquisitions: Hazardous Substances Determinations.'' It 
was suggested that an acquisition be allowed where the proposed use of 
the land would involve hazardous substances, or where identified 
substances have been safely isolated.
    Response: It should be noted that the Secretary retains the power 
to approve any acquisition ``for good cause,'' i.e., where the benefits 
of the acquisition would clearly outweigh the potential risks.
    Comment: Commenters suggested that the proposed rule be modified to 
more accurately reflect the policy set forth at 602 DM 2.
    Response: The policy set forth in the manual attempts to limit 
potential federal liability by prohibiting acquisitions where ``an 
expenditure of Departmental funds is required for cleanup of such real 
estate, except at the direction of Congress, or for good cause with the 
approval of the Secretary.'' The rule is modified to reference the 
``extent to which the applicant has provided information that allows 
the Secretary to comply'' with the Departmental Manual.
    Comment: Commenters also stated that the regulation would be too 
restrictive, suggesting that exceptions be made when:
    (1) the seller agrees to indemnify the acquiring tribe and the 
United States;
    (2) the estimated remedial costs would be minimal, or the acquiring 
tribe has adopted a corrective action plan;
    (3) the waste has been safely isolated, or the land value is 
``sufficient'' to justify the acquisition; or
    (4) the acquiring tribe wishes to utilize the land for such 
purposes as waste disposal, incineration, or recycling.
    Response: 602 DM 2 suggests that the survey process must be 
completed in all cases (with indemnification to be required in those 
cases where contaminated lands are to be acquired).
    602 DM 2 permits the acquisition of contaminated lands which can be 
restored without a reprogramming of funds.
    Comment: It was suggested that the proposed rule be extended to all 
federal acquisitions, and another recommended that the rule specify the 
types of clearances needed and the extent to which the BIA would absorb 
the cost of site surveys.
    Response: 602 DM 2 applies to all agencies within the Department of 
the Interior.
    The guidelines provide for a three-tiered survey process, with 
approval authority retained by the Department. However, funding may be 
determined on a case by case basis.
    Comment: It was recommended that the ``rigorous'' innocent 
purchaser provisions in the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA) be made applicable to tribal 
land acquisitions.
    Response: It should be noted that such a defense only protects 
purchasers who ``did not know and had no reason to know'' that they 
were acquiring contaminated property. (The proposed BIA guidelines 
provide for a survey process which is intended to ensure the 
availability of this defense.)
    Comment: Commenters suggested that the proposed rules be revised to 
require compliance with the National Environmental Policy Act of 1969 
(NEPA).
    Response: The new 25 CFR 151.10(h) also requires compliance with 
the BIA's ``final revised implementing procedures'' for NEPA. In 1988, 
the procedures were published in the Federal Register (after a public 
comment period) and added to the Departmental Manual at 516 DM 6, 
Appendix 4.

Section 151.11  Off-reservation Acquisitions

    Comment: Comments addressed the general premise that more stringent 
rules are needed to govern the trust acquisition of lands which are 
``off-reservation'' (hereinafter meaning lands ``outside of and 
noncontiguous to'' the boundaries of an existing reservation). Other 
comments suggested that lands which are contiguous to existing 
reservation boundaries should be treated as other lands outside such 
boundaries.
    Response: It should be noted that the acquisition of contiguous 
lands may be analogized to annexations by municipalities. It should be 
noted that treatment may be afforded by the Secretary on a case-by-case 
basis.
    Comment: Commenters voiced concerns relative to ``the loss of 
regulatory control and removal of the property from the tax rolls.'' 
Specifically, they questioned whether the proposed rules would protect 
the states' power to regulate the appropriation and administration of 
water on acquired lands, and suggested that a mechanism for the 
collection of ``appropriate'' state taxes be incorporated in the rules.
    Response: The BIA has instructed its field offices that proposed 
acquisitions of off-reservation contiguous lands for commercial 
purposes should be carefully scrutinized with consultation considered 
to avoid jurisdictional conflicts.
    The new 25 CFR 151.11(d) establishes a consultation process which 
may give rise to agreements which could result in resolution of the 
above types of regulatory issues.
    Comment: Other comments addressed the need for flexibility in 
applying the proposed rules to:
    (1) newly recognized tribes, restored tribes, and landless tribes 
(including those whose land bases consist of scattered sites);
    (2) lands within tribal consolidation areas, tribal service areas, 
and ancestral areas or tribal homelands; and
    (3) acquisitions for non-commercial purposes, such as housing, 
recreation, and mineral development, resource protection or wildlife 
management.
    Response: It should be noted that the revised introductory 
paragraph exempts acquisitions on behalf of newly recognized or 
restored tribes, when such acquisitions are ``legally mandated'' by 
legislation or court order.
    Designated (off-reservation) tribal consolidation areas will be 
treated as other off-reservation lands, pending the issuance of further 
rules under the Indian Financing Act of 1974 and the Indian Land 
Consolidation Act (ILCA); tribal service areas will be treated as other 
off-reservation lands, unless such areas fall within the exception for 
``legally mandated'' acquisitions. The new 25 CFR 151.11(b) allows 
landless tribes (i.e., those without any trust lands) to acquire land 
within their aboriginal homelands, subject to the other restrictions in 
25 CFR 151.11.

Section 151.11(b)  Geographic Limitations

    Comment: Those provisions which prohibit off-reservation 
acquisitions of ``out-of-state'' lands (i.e., lands in a state other 
than that in which the acquiring tribe's ``reservation or trust lands'' 
are located) were opposed on the grounds that out-of-state lands may be 
historically significant, vital to tribal economic self-sufficiency, or 
within a designated tribal consolidation area or tribal service area. 
Specifically, some of [[Page 32876]] the commenters suggested that the 
proposed rule would discriminate against geographically isolated 
tribes, and should not apply to acquisitions for gaming purposes [due 
to preemption by the Indian Gaming Regulatory Act (IGRA)].
    The exception on out-of-state acquisitions, was largely attacked as 
being too vague and inflexible. However, one commenter indicated that 
the exception should be modified to flatly prohibit any out-of-state 
acquisition for gaming purposes. Another commenter objected to the 
provision which would implicitly require that excepted tribes provide 
greater justifications for out-of-state acquisitions. Another comment 
suggested that the rule be expanded to require that such justifications 
include evaluations of alternative sites.
    Response: The provisions which prohibit off-reservation 
acquisitions of ``out-of-state'' lands have been deleted. The portion 
of the proposed rule which referred to administrative costs has been 
deleted and other minor editorial changes (including the elimination of 
the term ``current or former reservation'') have been made in 25 CFR 
151.11(b) of this Part.
    The rule has not been relaxed for acquisitions of lands within 
tribal consolidation areas or tribal services areas, unless such 
acquisitions are legally mandated. The blanket exception for landless 
tribes has been narrowed to require that any lands to be acquried on 
behalf of such tribe be located in a state in which the tribe's 
aboriginal homelands are located. (Guidance in identifying ``aboriginal 
homelands'' may be obtained from federal court decisions and Indian 
Claims Commission proceedings.) It should be noted that the absence of 
more proximate economic opportunities would provide part of the 
``greater justification'' required by 25 CFR 151.11(b) of this Part.
    Comment: Comments about greater justifications as distance 
increases suggested that such distance should be irrelevant. Commenters 
questioned whether the use of the phrase ``current or former 
reservation'' was meant to distinguish the general definition of 
``Indian reservation'' set forth in 25 CFR 151.2. They also questioned 
whether administrative costs should be considered, under either the 
existing 25 CFR 151.10 or the provision in the proposed rule which 
would suggest that such costs be addressed in tribal justifications.
    Response: It should be noted that the BIA has informally required 
such justifications for acquisitions of distant lands since 1980. 
Section 20(c) of IGRA expressly restricts the Secretary's authority to 
acquire land for gaming purposes.
    The rule's exception for acquisitions on behalf of tribes which 
``have lands in one state but are located near the border of another 
state'' has been narrowed (to ensure that the land to be acquired is 
located near existing trust land). The term ``near'' has been retained 
(to be defined on a case-by-case basis, in the exercise of the 
Secretary's discretion).

Section 151.11(b)  Acquisitions in Non-Indian Communities

    Comment: Commenters objected to the provision which would require 
that tribes show that trust status is essential to the planned use of 
off-reservation property which is located ``within an urbanized and 
primarily non-Indian community.'' Commenters noted that the proposed 
rule would have the following anomalous results:
    (1) Off-reservation acquisitions which would not have adverse 
jurisdictional impacts (i.e., where trust status is not essential to 
the planned use) would be prohibited, even thought he apparent purpose 
of the rule was to discourage gaming acquisitions and other 
acquisitions which would have such impacts;
    (2) ``Low-impact'' off-reservation acquisitions within urban 
communities might be prohibited, even through ``high-impact'' on-
reservation acquisitions within similar communities would be permitted;
    (3) Tribal members how have relocated to urban communities would be 
denied the opportunity to benefit directly from many potential tribal 
economic development projects; and
    (4) The cost of many tribal initiatives and federal housing 
projects would be driven up due to the relatively higher infrastructure 
costs associated with on-reservation construction.
    Commenters criticized the proposed rule on the ground that the 
phrase ``urbanized and primarily non-Indian community'' was vague and 
over-broad, and one of the commenters expressed concern that the rule 
could possibly be applied to limit acquisitions in areas which are 
primarily rural in character.
    Another commenter noted that, while trust status might not be 
essential for a particular use, the economic benefits to be derived 
from such use (which would also be covered by the proposed rule) could 
depend on trust status; it was thus suggested that the ``essential'' 
requirement be more clearly defined.
    Response: 25 CFR 151.11(c) has been revised and the last sentence 
has been deleted. This change is based on the fact that the new 25 CFR 
151.11(b) will already require that tribes whose reservations are not 
located in urban communities provide a ``greater justification'' when 
lands in such communities are to be acquired. [It is also anticipated 
that ``high-impact'' acquisitions in urban communities will be limited 
by the consultation process set forth in 25 CFR 151.11(d) of this 
Part.] The deletion of the last sentence is also based on the specific 
criticisms set forth in the comments, i.e., that the proposed rule 
would be ambiguous, anti-growth, and detrimental to tribes whose 
reservations are located in urban communities (and other tribes whose 
justifications would otherwise suffice).

Section 151.11(c)  Economic Development Plans

    Comment: Commenters suggested that economic development plans 
should not be needed when land is being acquired for non-commercial 
purposes.
    Response: An introductory clause has been added to exempt non-
business acquisitions.
    Comment: Commenters also indicated that the proposed rule would 
undermine tribal sovereignty and self-sufficiency by:
    (1) Allowing the BIA to second-guess tribal leaders' business 
decisions;
    (2) Forcing the disclosure of confidential business information; 
and
    (3) Preventing tribes from acquiring investment properties for 
future development.
    Response: It should be noted that the likelihood of success of an 
off-reservation project has long been considered by the Secretary in 
deciding whether to accept title to the underlying lands in trust 
status. [It should also be noted that the feasibility of the proposed 
use would already be considered pursuant to 25 CFR 151.10(c), which 
will be incorporated at 25 CFR 151.11(a) of this Part.]
    Comment: Another commenter suggested that pre-acquisition planning 
would necessarily be so speculative as to be of minimal value, and one 
commenter recommended that the planning requirement be made applicable 
to only those acquisitions which are opposed by local governing bodies.
    Response: 25 CFR 151.11(c) of this Part will merely require that 
the acquiring tribe has a plan for the immediate development or 
utilization of the property, and that the plan reflects that a prudent 
buyer would complete the acquisition (given the projected return on 
investment, incidental benefits, and risks associated with the proposed 
use). It should be noted that certain confidential business 
[[Page 32877]] information would be exempt from disclosure under the 
Freedom of Information Act, 5 U.S.C. 552.

Seciton 151.11(d)  Ordinances

    Comment: Commenters suggested that the scope of the proposed rule 
be narrowed to better reflect its apparent purpose (to protect the 
health, safety, and welfare of the general public); specifically, ti 
was suggested that the rule be made applicable only to acquisitions for 
commercial development purposes (or, alternatively, that it be made 
inapplicable to acquisitions for housing purposes).
    Commenters criticized the proposed rule on the grounds that the 
``comparability'' standard is too vague, and the incorporation of all 
local ordinances too broad. Individual commenters specifically asked 
whether the proposed rule would:
    (1) mandate absolute compliance with local ordinances, or merely 
``a documented effort'' to adopt similar standards (as suggested in the 
preamble to the proposed rules);
    (2) require that tribes also adopt comparable implementation 
processes and enforcement capabilities, or modify their adopted 
ordinances in order to comply with local ordinances; and
    (3) allow tribes to adopt higher standards than the relevant local 
governing bodies, or freely modify adopted ordinances to accommodate 
changes in land use. Individual commenters suggested that the rule 
cover only those ordinances which pertain to land use or construction, 
or those which are identified by local government through consultation.
    Response: It is anticipated that the consultation process described 
in Section 25 CFR 151.11(d) of this Part will result in the negotiation 
of agreements between tribes and local government, relative to 
regulatory issues which pertain to public health, safety, and welfare. 
Where such agreements do not result, and jurisdictional issues remain 
unresolved, it will be left to the Secretary's discretion to balance 
the potential benefits to be derived by the acquiring tribe against the 
potential harm to the general public. (It should also be noted that 
lands which are acquired with federal funds may be subject to certain 
federal standards.) The deletion of the proposed 25 CFR 151.11(d) is 
also based on the criticisms set forth in the comments, i.e., that the 
proposed rule would be shortsighted, overly cumbersome, and largely 
unenforceable.
    Comment: Commenters expressed concern that the delimiting language 
in the proposed rule would allow local government to tax off-
reservation trust lands and the activities conducted thereon.
    Response: It should be noted that the only taxation issues to be 
directly considered in the consultation process are those which relate 
to a proposed acquisition's potential impacts on real property taxes or 
special assessments. (Other tax impacts may also be considered, if they 
will curtail the local government's ability to provide specific 
community services.)
    Comment: Commenters indicated that the proposed rule would 
contradict other federal policies supporting tribal sovereignty and 
self-determination. It was noted that local ordinances may reflect 
political considerations wholly unrelated to concerns about public 
health and safety. It was suggested that the rule flatly provide that 
the lands to be acquired would be subject to state regulatory 
jurisdiction. Commenters questioned whether the local ordinances would 
have to be formally adopted prior to the completion of the acquisition 
process.
    Response: It should be noted that current law suggests that (in the 
absence of cooperative agreements) tribal, federal, and state/local 
jurisdiction over off-reservation trust lands will be mixed, depending 
on the activities and parties to be regulated. The proposed 25 CFR 
151.11(d) has been deleted.

Section 151.11(e)  Notice and Consultation

    The proposed 25 CFR 151.11(e) will be re-designated as 25 CFR 
151.11(d).
    Comment: The provision which requires that ``affected state and 
local governments'' be notified of all proposed off-reservation 
acquisitions, and given thirty days in which to provide written 
comments, was criticized as being both too vague in its reference to 
``affected'' governments and too restrictive in its definition of the 
comment period. Commenters suggested that the proposed rule be 
clarified to ensure that neighboring jurisdictions would be given an 
opportunity to comment, and another suggested that the rule specify 
which state and local offices would be contacted.
    Response: Based on the BIA's past experience with its informal 
consultation procedures, the 30-day response time set forth in the 
proposed 25 CFR 151.11(e) (re-designated 151.11(d)) has been retained 
in the new rule.
    Relative to these revisions, it should be noted that (1) the 
narrower definition of the ``notified party'' will generally mean city 
or county officials, but will also recognize the wide variation in the 
designations and functions of ``local governments,'' as well as the 
fact that many such governments operate as administrative agents for 
the states (especially in rural settings); (2) the burden of obtaining 
additional information from state officials, neighboring jurisdictions, 
or other units of local governments (including special function 
districts, public authorities, or higher political subdivisions) will 
rest with the local officials who are directly notified by the BIA; and 
(3) the BIA notices will identify the land to be acquired and the 
acquiring tribe (as has been done under the informal notice and comment 
procedures), as well as the tribe's proposed use (which has generally 
not been identified in the past).
    Comment: Provisions which would require tribes to consult with 
opposing local governments were objected to on the ground that it would 
undermine tribal sovereignty by granting state and local governments an 
effective veto power over tribal acquisitions. Commenters acknowledged 
that some consultation process would be essential to the tribes' 
implementation of a government-to-government relationship, others said 
that such a process would be marred by racial bias and discrimination.
    Response: It should be noted that tribal governmental authority 
over land will generally not attach until the Secretary accepts title 
to this land in trust status. It should also be noted that the new 25 
CFR 151.11(d) will not create a veto power, and that objections which 
are not made in good faith (or which are clearly biased) will be 
discounted in the decision-making process.
    As for the assertion that the case precedent for the BIA's informal 
consultation procedures has been overruled, it should be noted that the 
preamble to the original 25 CFR 120a (now 25 CFR 151) cited the need 
for a uniform policy as the basis for its issuance; it should also be 
noted that (while the case cited by the commenter held that local 
governments are not entitled to formal notification as a matter of due 
process) the preamble to the proposed rules indicated that the notice 
requirement set forth in the proposed 25 CFR 151.11(e) (re-designated 
151.11(d)) would be based primarily on principles of federalism.
    Comment: Other commenters recommended that the comment period be 
extended, and requested that additional supplemental information be 
furnished with the notifications. Others suggested, however, that 
certain proposals would be unduly [[Page 32878]] compromised by the 
release of additional information, and another indicated that the case 
precedent for the BIA's existing (non-regulatory) notice requirement 
had been overruled.
    Response: 25 CFR 151.11(d) has been revised to (1) generally 
identify the local government to be notified as the ``lowest political 
subdivision having jurisdiction over the land to be acquired''; and (2) 
codify certain informal procedures (relative to the solicitation of 
specific information and the presumption of no impact when a response 
is not received within thirty days) which have been implemented by BIA 
since 1980.
    Comment: Commenters addressed those provisions within the proposed 
rule which would describe the consultation process. (Where a state or 
local government formally opposes a proposed acquisition, or ``raises 
concerns'' relative thereto, the rule would require that the acquiring 
tribe ``consult with them and attempt to resolve any conflicts 
including, but not limited to, issues concerning taxation, zoning and 
jurisdiction''; the proposed rule would also permit the tribe to submit 
documentation of its discussions with state or local governments, 
whether the formal consultation process is triggered or not.) It was 
suggested that the consultation process should be triggered only by 
good faith objections, rather than mere ``concerns,'' and that the 
proposed rule be clarified to reflect that a tribe's burden would be 
met by a mere good faith attempt at resolution. Where differences 
remain unresolved after consultation, it was suggested that state and 
local governments should be allowed to submit their own documentation 
of consultation efforts. Another suggested that a formal dispute 
resolution process be incorporated in the proposed rule, and a (non-
BIA) federal official recommended that the BIA assume a mediation role.
    It was also recommended that the consultation process be terminated 
at the end of a specific time period. Other commenters said that the 
process should be made: (1) applicable to court-ordered acquisitions 
not otherwise subject to 25 CFR 151.10 or 151.11 of this Part; (2) 
inapplicable to acquisitions of off-reservation lands which have been 
designated in land consolidation plans approved pursuant to ILCA; and 
(3) consistent with provisions in the Federal Land Policy and 
Management Act (FLPMA) which require state approval.
    Response: With respect to the comments which suggested that the 
rule provide for arbitration or mediation where differences remain 
unresolved after consultation, it should again be noted that such cases 
will be left to the Secretary's discretion (to balance the potential 
benefits to be derived by the acquiring tribe against the potential 
harm to the general public). With respect to the comments which 
suggested that the consultation process be made applicable to court-
ordered acquisitions, it should again be noted that the introductory 
paragraph to 25 CFR 151.11 of this Part will expressly exempt such 
``legally mandated'' acquisitions. With respect to the comment which 
suggested that the new rule be made inapplicable to acquisitions of 
off-reservation lands which have been designated in approved land 
consolidation plans, it should again be noted such lands will be 
treated as other off-reservation lands (and thus subject to 25 CFR 
151.11) pending the promulgation of further rulemaking. With respect to 
the comment which suggested that the consultation process be made 
consistent with the Federal Land Policy and Management Act (FLPMA), it 
should be noted that Congress has clearly distinguished conveyances of 
public lands (which are subject to consultation, under FLPMA) for 
acquisitions on behalf of sovereign tribes (which are not subject to 
any statutory consultation requirements).

Section 151.11(e)  Delegations of Authority and Appealability

    Comment: Commenters objected to those provisions within the 
proposed 25 CFR 151.11(e) (re-designated 151.11(d)) which indicate that 
the Assistant Secretary-Indian Affairs would issue the above-described 
notifications of proposed off-reservation acquisitions. It was 
suggested that the authority to issue such notices and ultimately 
approve the acquisitions should be delegated to the BIA's agency or 
area office level, in order to comply with ongoing efforts to 
reorganize the BIA and decentralize its critical functions. One 
commenter questioned whether the proposed rule was meant to separate 
the local BIA staff from the entire acquisition process (where off-
reservation lands are to be acquired), and whether the ``final 
decision'' to be made by the Assistant Secretary would be appealable. 
It was suggested that the proposed rule specifically provide that the 
Assistant Secretary's decision would be appealable to the Interior 
Board of Indian Appeals.
    Response: All references to the ``Assistant Secretary--Indian 
Affairs'' in the proposed 25 CFR 151.11(e) (re-designated 151.11(d)) 
will be changed to ``Secretary'', as indicated above, and the final 
sentence in the proposed 25 CFR 151.11(e) (re-designated 151.11(d)) 
will be deleted.
    This change will ensure that all actions will be taken by an 
authorized official, since 25 CFR 151.2(a) of this Part will define 
``Secretary'' to mean ``the Secretary of the Interior or authorized 
representative.'' It is anticipated that local BIA officials will 
continue to notify local governments of proposed off-reservation 
acquisitions, but that the authority to approve certain acquisitions 
may continue to be held by the Assistant Secretary--Indian Affairs or 
the BIA Area Directors. It is also anticipated that the recommendations 
of the intertribal group which recently reported on the possible 
reorganization of the BIA will be considered in determining which 
offices should have the ultimate approval authority.
    In response to the comments which questioned whether decisions on 
off-reservation acquisition requests would be appealable, the final 
sentence in the proposed 25 CFR 151.11(e) (re-designated 151.11(d)) has 
been deleted. This change is needed to ensure that such decisions will 
be appealable if they are made below the Assistant Secretary--Indian 
Affairs' level. If the authority to make such decisions is held by the 
Assistant Secretary--Indian Affairs, the decision would be ``final'' 
for the Department of the Interior and therefore not appealable.

Section 151.12  Off-reservation Acquisitions for Gaming

    In response to the comments received, it has been determined by the 
Bureau of Indian Affairs that the proposed section 151.12 of this part 
will not be adopted and a new part will be added to the 25 CFR 
pertaining to off-reservation acquisitions for gaming.

List of Subjects in 25 CFR Part 151

    Indians--lands, Reporting and recordkeeping requirements.

    For reasons set out in the preamble, Part 151 of Title 25, Chapter 
I of the Code of Federal Regulations is amended as set forth below.

PART 151--LAND ACQUISITIONS (NONGAMING)

    1. The authority citation for Part 151 is revised to include 25 
U.S.C. 2 and 9 as follows:

    Authority: R.S. 161: 5 U.S.C. 301. Interpret or apply 46 Stat. 
1106, as amended; 46 Stat. 1471, as amended; 48 Stat. 985, as 
amended; 49 Stat. 1967, as amended, 53 Stat. 1129; 63 Stat. 605; 69 
Stat. 392, as amended; 70 Stat. 290, as amended; 70 Stat. 626; 75 
Stat. 505; 77 Stat. 349; 78 Stat. 389; 78 Stat. 747; 82 Stat. 174, 
as amended, 82 Stat. 884; 84 Stat. 120; 84 Stat. 1874; 86 Stat. 216; 
86 Stat. 530; [[Page 32879]] 86 Stat. 744; 88 Stat. 78; 88 Stat. 81; 
88 Stat. 1716; 88 Stat. 2203; 88 Stat. 2207; 25 U.S.C. 2, 9, 409a, 
450h, 451, 464, 465, 487, 488, 489, 501, 502, 573, 574, 576, 608, 
608a, 610, 610a, 622, 624, 640d-10, 1466, 1495, and other 
authorizing acts.

    2. In Sec. 151.2, paragraph (a) is revised to read as follows:


Sec. 151.2  Definitions.

    (a) ``Secretary'' means the Secretary of the Interior or authorized 
representative.
* * * * *
    Section 151.10 is amended by revising the section heading and 
introductory text and by adding a new paragraph (h) to read as follows:
Sec. 151.10  On-reservation acquisitions.

    Upon receipt of a written request to have lands taken in trust, the 
Secretary will notify the state and local governments having regulatory 
jurisdiction over the land to be acquired, unless the acquisition is 
mandated by legislation. The notice will inform the state or local 
government that each will be given 30 days in which to provide written 
comments as to the acquisition's potential impacts on regulatory 
jurisdiction, real property taxes and special assessments. If the state 
or local government responds within a 30-day period, a copy of the 
comments will be provided to the applicant, who will be given a 
reasonable time in which to reply and/or request that the Secretary 
issue a decision. The Secretary will consider the following criteria in 
evaluating requests for the acquisition of land in trust status when 
the land is located within or contiguous to an Indian reservation, and 
the acquisition is not mandated:
* * * * *
    (h) The extent to which the applicant has provided information that 
allows the Secretary to comply with 516 DM 6, Appendix 4, National 
Environmental Policy Act Revised Implementing Procedures, and 602 DM 2, 
Land Acquisitions: Hazardous Substances Determinations. (For copies, 
write to the Department of the Interior, Bureau of Indian Affairs, 
Branch of Environmental Services, 1849 C Street NW, Room 4525 MIB, 
Washington, DC 20240.)


Secs. 151.11 through 151.14  [Redesignated as 151.12 through 151.15]

    4. Sections 151.11 through 151.14 are redesignated as 151.12 
through 151.15, respectively.
    5. A new Sec. 151.11 is added to read as follows:


Sec. 151.11  Off-reservation acquisitions.

    The Secretary shall consider the following requirements in 
evaluating tribal requests for the acquisition of lands in trust 
status, when the land is located outside of and noncontiguous to the 
tribe's reservation, and the acquisition is not mandated:
    (a) The criteria listed in Section 151.10 (a) through (c) and (e) 
through (h);
    (b) The location of the land relative to state boundaries, and its 
distance from the boundaries of the tribe's reservation, shall be 
considered as the distance between the tribe's reservation and the land 
to be acquired increases, the Secretary shall give greater scrutiny to 
the tribe's justification of anticipated benefits from the acquisition. 
The Secretary shall give greater weight to the concerns raised pursuant 
to paragraph (d) of this section.
    (c) Where land is being acquired for business purposes, the tribe 
shall provide a plan which specifies the anticipated economic benefits 
associated with the proposed use.
    (d) Contact with state and local governments pursuant to 151.10 (e) 
and (f) shall be completed upon receipt of a tribe's written request to 
have lands taken in trust, the Secretary shall notify the state and 
local governments having regulatory jurisdiction over the land to be 
acquired. The notice shall inform the state and local government that 
each will be given 30 days in which to provide written comment as to 
the acquisition's potential impacts on regulatory jurisdiction, real 
property taxes and special assessments.
    6. Newly designated Sec. 151.15 is revised to read as follows:


Sec. 151.15  Information collection.

    (a) The information collection requirements contained in Sections 
151.9; 151.10; 151.11(2)(c), and 151.13 have been approved by the 
Office of Management and Budget under 44 U.S.C. 3501 et seq. and 
assigned clearance number 1076-0100. This information is being 
collected to acquire land into trust on behalf of the Indian tribes and 
individuals, and will be used to assist the Secretary in making a 
determination. Response to this request is required to obtain a 
benefit.
    (b) Public reporting for this information collection is estimated 
to average 4 hours per response, including the time for reviewing 
instructions, gathering and maintaining data, and completing and 
reviewing the information collection. Direct comments regarding the 
burden estimate or any other aspect of this information collection to 
the Bureau of Indian Affairs, Information Collection Clearance Officer, 
Room 337-SIB, 18th and C Streets, NW., Washington, DC 20240; and the 
Office of Information and Regulatory Affairs [Project 1076-0100], 
Office of Management and Budget, Washington, DC 20502.

    March 20, 1995.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 95-15215 Filed 6-22-95; 8:45 am]
BILLING CODE 4310-02-M