[Federal Register Volume 66, Number 218 (Friday, November 9, 2001)]
[Rules and Regulations]
[Pages 56608-56610]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28222]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 151


Acquisition of Title to Land in Trust

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Withdrawal of final rule.

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SUMMARY: This action withdraws the final rule published in the Federal 
Register on January 16, 2001, entitled ``Acquisition of Title to Land 
in Trust.''

[[Page 56609]]


DATES: The Acquisition to Title to Land in Trust rule, amending 25 CFR 
part 151, published in the Federal Register on January 16, 2001 (66 FR 
3452), delayed by a document published February 5, 2001 (66 FR 8899), 
corrected by documents published February 20, 2001 (66 FR 10815) and 
June 13, 2001 (66 FR 31976), delayed by documents published April 16, 
2001 (66 FR 19403) and August 13, 2001 (66 FR 42415), is withdrawn as 
of November 9, 2001.

FOR FURTHER INFORMATION CONTACT: Larry E. Scrivner, Deputy Director, 
Office of Trust Responsibilities, MS 4513 MIB, 1849 C Street, NW., 
Washington, DC 20240; telephone 202/208-5831.

SUPPLEMENTARY INFORMATION: This action withdraws in whole the rule 
entitled ``Acquisition of Title to Land in Trust,'' published in the 
Federal Register on January 16, 2001, at 66 FR 3452, delayed by a 
notice published February 5, 2001 (66 FR 8899), corrected by notices 
published February 20, 2001 (66 FR 10815) and June 13, 2001 (66 FR 
31976), delayed by notices published April 16, 2001 (66 FR 19403) and 
August 13, 2001 (66 FR 42415), and which received further comments 
through a notice published on August 13, 2001 (66 FR 42474).
    On August 13, 2001, the Department of the Interior (Department) 
requested public comment on whether the final rule entitled 
``Acquisition of Title to Land in Trust'' should be withdrawn and a 
further rule proposed to better address the public's continued concerns 
regarding the Department's procedures for taking land into trust for 
federally-recognized Indian tribes. The comment period closed on 
September 12, 2001, and the Department received a total of 139 
submissions. Of the submissions received, 93 were from Indian tribes, 
18 were from state and local governments and federally elected 
officials, and 28 other interested groups and individuals.
    In its August 13, 2001, notice, the Department requested comments 
on specific areas of concern in the final rule. These areas of concern 
included individual applications for land into trust for housing or 
home site purposes; the requirement of land use plans for off-
reservation acquisitions and as part of the designation of a Tribal 
Land Acquisition Area (TLAA); clarifying the standards contained in the 
final rule; the availability of applications for review and the use of 
technology to facilitate review of trust acquisition applications. 
Collectively, the comments received contained various opposing views 
about the identified issues of concern. For example, comments stated 
that the Department should withdraw the final rule in whole, withdraw 
the final rule in part, amend the final rule to include certain 
provisions, or make the final rule effective immediately.
    The Department sought comments about prioritizing individual 
applications for land into trust for housing or home site purposes 
under a new proposed rule expediting applications containing five (5) 
acres of land or less for individual housing needs. Comments were 
received both supporting the individual applications for Indian housing 
priority and opposing the individual applications for Indian housing 
priority. Comments also noted that identifying housing or home site 
applications as acquisitions containing five (5) acres of land or less 
for the purpose of meeting individual housing needs was of little 
benefit to tribal housing issues/needs. Another area the Department 
sought comments on was the advisability of requiring tribes to submit 
land use plans for off-reservation acquisitions and for the designation 
of TLAA. The Department considered requiring that tribes submit land 
use plans for off-reservation acquisitions and requiring that the 
applications contain a land use plan for the TLAAs, which the Secretary 
would approve as part of her review and approval. Comments received 
opposed the requirement for submission of a land use plan in an 
application for off-reservation acquisitions noting that the final rule 
already requires the submission of enormous amounts of information 
concerning the use of the land. Comments, while not specifically 
solicited, strongly opposed the establishment of TLAAs.
    The Department also solicited comments on clarifying the standards 
that will be used by the Secretary to determine whether to approve an 
application and defining the burdens of proof required for the 
applicant and those opposing a trust application. The Department noted 
in its proposed withdrawal notice that it was considering new 
regulatory language that for on-reservation acquisitions, a tribe or 
individual must show by substantial evidence that the acquisition 
facilitates tribal self-determination, economic development, Indian 
housing, land consolidation, or natural resource protection. The 
Department further considered requiring that opponents of on-
reservation trust acquisitions show by clear evidence that the 
acquisition will result in severe negative impact to the environment or 
severe harm to the local government. For off-reservation acquisitions, 
the Department considered requiring that tribes show by substantial 
evidence that the acquisition is necessary to facilitate tribal self-
determination, economic development, Indian housing, land 
consolidation, or natural resources protection, and the tribe be 
further required to show that no demonstrable harm to the local 
community is realized. The Department also considered requiring that 
opponents of off-reservation acquisitions show by clear evidence that 
the acquisitions will result in significant harm to the local community 
or severe negative impacts to the environment. Some commenters 
indicated confusion or lack of understanding of the criteria set out in 
the final rule. Comments received stated that the standards were not 
fair in that the ``substantial evidence'' burden of proof for the 
applicant is a lesser standard than the ``clear evidence'' requirement 
for the opponent of the application. Comments also stated that the 
existing standards are fair and provide sufficient criteria for a 
decision and need not be further amended. Additional comments stated 
that standards were burdensome and could not be met by an applicant.
    In addition, comments were requested addressing the time-frames 
established for comment by the state and local communities and the uses 
of computer technology. Comments were split on the amount of time to 
allow for review, some commenters stating that the final rule allowed 
sufficient time to review applications and other requesting even more 
time than the additional 30 days the final rule allowed to review 
applications. Comments addressing the use of computer technology and 
the Internet were generally in support of using such tools to expedite 
review of applications and the decision-making process.
    The Department finds that it is impracticable and inefficient to 
repeal only part of the final rule as the Bureau of Indian Affairs 
needs clear direction and standards to process land into trust 
applications. Considering the variety of comments received, the 
Department has decided to withdraw the final rule in whole to address 
these specific areas of concern in a new rule. Consistent with 
Departmental policy to consult with federally-recognized Indian tribes 
on proposed Federal actions that impact Indian tribes, the Department 
will conduct consultation with Indian tribes on the following areas in 
its efforts to promulgate a new rule: applications for housing or home 
site purposes to meet individual housing needs; the requirement of land 
use plans; the standards of review used in reaching a determination of 
whether to accept land

[[Page 56610]]

into trust; the availability of applications for review; and the use of 
computer technology prior to the proposal of a new Acquisition of Title 
to Land in Trust rule.
    The Department has determined that the withdrawal of the final rule 
entitled ``Acquisition to Title to Land in Trust'' must be effective 
immediately in order to prevent its becoming effective upon the 
expiration of the notice of delay as published on August 13, 2001, (66 
FR 42415), and to allow for the current 25 CFR Part 151 to remain in 
effect during the pendency of the development of a new rulemaking 
addressing this matter. The Department, therefore, shows good cause for 
the immediate effective date of this rule in accordance with 5 U.S.C. 
553(d).

    Dated: November 5, 2001.
Neal A. McCaleb,
Assistant Secretary--Indian Affairs.
[FR Doc. 01-28222 Filed 11-8-01; 8:45 am]
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