Land Acquisitions (Nongaming)

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]

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