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Through a federal suit in 2007, Hobbs Straus attorneys obtained protection of tribal court authority over child custody proceedings.

General Memorandum 15-042

General Memorandum 15-042
DOI Review of Regulations; Comments Sought Regarding Rights-of-Way on Indian Lands, Indian Child Welfare Act, and Housing Improvement Program

On May 27, 2015, the Department of the Interior (DOI) published a notice in the FEDERAL REGISTER inviting comments on all DOI regulations as part of its "retrospective regulatory review." In addition to the general invitation to comment on any DOI regulation, the notice says that DOI is "specifically asking for public comment on three regulations issued by the Bureau of Indian Affairs (BIA) and a policy statement issued by the Fish and Wildlife Service (FWS)." The BIA regulations, as codified in title 25 of the Code of Federal Regulations, are: part 169 – Rights-of-Way on Indian Land; part 23 – Indian Child Welfare Act (ICWA); and part 256 – Housing Improvement Program (HIP). The deadline for submitting comments is July 13, 2015. A copy of the notice is attached.

This review is being conducted in response to Executive Order 13563, "Improving Regulation and Regulatory Review," which was issued by President Obama on January 18, 2011. The Executive Order directs each agency to periodically review its existing regulations and determine if they "may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned." In August 2011, DOI released its 'Plan for Retrospective Regulatory Review" (Plan), available at www.doi.gov/open/regsreview/. The review is conducted by the Office of Executive Secretariat and Regulatory Affairs, an office that is independent from the DOI bureaus and offices that issue regulations. In addition to the Plan, seven status reports on the retrospective regulatory review are also available on that website.

It is not readily apparent why the three BIA regulations listed above have been specifically identified as candidates for review at this time. All three are included in the status report of February 2015, although none of the three are listed in any of the prior status reports. Each of these regulations was recently the subject of a rulemaking process: a proposed rule for rights-of-way was published on June 17, 2014 (79 Fed. Reg. 34455); a proposed rule for HIP was published on January 2, 2015 (80 Fed. Reg. 13); a proposed rule for ICWA was published March 20, 2015 (80 Fed. Reg. 141880). The comment period on each of these proposed rules has closed.

The fourth specific topic on which DOI is seeking comment is the Fish and Wildlife Service "Policy Regarding Voluntary Prelisting Conservation Actions," a draft of which was published on July 22, 2014 (79 Fed. Reg. 42525). The expressed intent of this policy is to provide incentives to government agencies, landowners, and others to take voluntary actions for the benefit of species that are candidates for listing under the Endangered Species Act (ESA), and to take such actions before a species is listed as endangered or threatened. While that FEDERAL REGISTER notice includes several references to tribes and purports to provide incentives for voluntary actions on tribal lands, such actions would only get credit if taken in a state that has opted to participate in the program, and the tribe would be required to report on its actions to the state. FWS appears not to have considered the likelihood that requiring such interaction with states will operate as a disincentive for tribes to engage in voluntary conservation programs. Incidentally, over the past few years, FWS has made a number of changes in various regulations implementing the ESA; thus tribes may want to comment on other aspects of the ESA regulations.

The DOI notice suggests that anyone filing comments – whether on any of the four specific topics or on any other DOI regulation – frame their comments in relation to the following questions:

(1) Are there any specific changes we could make to these regulations that would make them more effective or less burdensome in achieving their regulatory objectives?
(2) DOI has proposed specific rules to review over the next two years. Are there other rules that could benefit from retrospective review in the near future? If so, please identify the rules by their CFR citation (e.g., 25 CFR part 39) or by their subject matter (e.g., forestry rules) and give us detailed ideas on how we can streamline, consolidate, or make these regulations more efficient. Please suggest specific language that would make these rules or guidance more efficient and less burdensome where possible.
(3) Are there ways DOI can better scale its regulations to lessen the burdens imposed on small entities within the existing statutory requirements? Please suggest specific things we could do to exempt small entities or provide more flexible or less-burdensome requirements while still satisfying the requirements of the law.
(4) Are DOI regulations and guidance written in language that is clear and easy to understand? Please suggest which regulations and guidance are good candidates for a rewriting in plain language.
(5) How can we ensure that our regulations promote our mission in ways that are most efficient and least burdensome to the public?

Please let us know if we may provide additional information regarding the Department of Interior retrospective regulatory review.

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Inquiries may be directed to:
Dean Suagee (dsuagee@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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