[Federal Register Volume 64, Number 163 (Tuesday, August 24, 1999)]
[Rules and Regulations]
[Pages 46151-46153]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-21893]


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DEPARTMENT OF THE INTERIOR

Office of Hearings and Appeals

43 CFR Part 4

RIN 1090-AA70


Indian Affairs Hearings and Appeals

AGENCY: Office of Hearings and Appeals, Interior.

ACTION: Final rule and request for comments.

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SUMMARY: The Office of Hearings and Appeals (OHA) is amending its 
regulations concerning certain hearings and appeals procedures. The 
regulations govern who has the authority to make summary distributions 
in Indian trust estates, and when this authority can be exercised. 
Under the existing regulation, Bureau of Indian Affairs (BIA) 
Superintendents can make distribution determinations whenever an Indian 
dies intestate leaving only trust personal property or cash valued at 
less than $1,000. The jurisdictional amount of $1,000 was established 
in 1971. This rule clarifies the BIA Superintendents' authority to make 
summary distributions, and increases, from $1,000 to $5,000, the amount 
of trust personal property or cash which the BIA Superintendent has 
jurisdiction to distribute. In addition, this rule clarifies that a 
party has the right to appeal the distribution decision of the BIA 
Superintendent.

DATES: Final rule is effective on August 24, 1999. OHA must receive 
comments on or before September 23, 1999.

ADDRESSES: Comments should be mailed to the Director, Office of 
Hearings and Appeals, U.S. Department of the Interior, 4015 Wilson 
Blvd., 11th Floor, Arlington, Virginia 22203.

FOR FURTHER INFORMATION CONTACT: Charles E. Breece, Deputy Director, 
Office of Hearings and Appeals, U.S. Department of the Interior, 4015 
Wilson Blvd, 11th Floor, Arlington, Virginia 22203. Telephone: (703) 
235-3810.

SUPPLEMENTARY INFORMATION: Under 25 U.S.C. 372, the Secretary of the 
Interior may establish regulations to implement his authority to make 
heirship determinations in Indian trust estates. Under this authority, 
the OHA's regulations at 43 CFR 4.271 set forth the rules and 
procedures governing the summary distribution of trust estates, which 
is invoked when an Indian dies intestate leaving only trust personal 
property or cash. Under the current regulations, a Superintendent can 
assemble the heirs, hold an informal hearing and make a summary 
distribution of the estate when the cash or trust personal property is 
valued at less than $1,000 and no real property interests are involved. 
The regulation also allows the Superintendent or the administrative law 
judge to dispose of claims of creditors during the summary distribution 
process. The current language is unclear about when an administrative 
law judge can be substituted for a Superintendent to make distribution 
determinations in these estates. OHA is amending the current regulation 
at 43 CFR 4.271 to clarify that, absent exceptional circumstances, the 
BIA Superintendent will assemble heirs, hold informal hearings, make 
distribution determinations and dispose of claims of creditors. The BIA 
Superintendent will request that an administrative law judge assume 
jurisdiction only in cases involving exceptional circumstances, real 
property or wills. The general authority of administrative law judges 
is set forth at 43 CFR 4.202.
    The threshold amount of cash and trust personal property in Indian 
estates appropriate for summary disposition by a Superintendent must be 
adjusted to account for inflation and other economic changes. The 
current $1,000 amount was established in December 1971 and is no longer 
appropriate. OHA is amending the regulation to increase the amount of 
trust personal property or cash which the BIA Superintendent has 
jurisdiction to distribute from $1,000 to $5,000, not including any 
interest which may have accrued after the death of decedent. This 
action is intended to further the original purpose of the rules for 
summary distribution.
    The current regulations at 43 CFR 4.320 are unclear about an 
interested party's right to appeal a Superintendent's decision under 43 
CFR 4.271. Under 43 CFR 4.1(b)(2)(ii), the Interior Board of Indian 
Appeals (IBIA) has jurisdiction to exercise the review authority of the 
Secretary and decide

[[Page 46152]]

matters referred to it by the Secretary, the Director of the OHA and 
the Assistant Secretary for Indian Affairs. In 1994, the Assistant 
Secretary for Indian Affairs issued a blanket referral to IBIA of all 
decisions made under Sec. 4.271, until such time as Sec. 4.320 is 
amended to clarify the right of appeal. OHA is now amending 43 CFR 
4.320 to provide interested parties the right to appeal from a 
Superintendent's decision.
    These amendments promote administrative efficiency and the timely 
and prompt determination of heirs in Indian estates involving only cash 
or personal trust property.

Determination To Issue a Final Rule

    The Department has determined that the public notice and comment 
provisions of the Administrative Procedure Act, 5 U.S.C. 553(b), do not 
apply because this action relates to agency management and prior notice 
is not required by statute. This amendment clarifies OHA's rules of 
practice and procedure and updates the threshold value of estates 
appropriate for summary distribution, in order to reflect the changes 
in property values over the 28 years since the existing amount was 
established in 1971. These amendments do not substantively alter the 
original purpose of the summary distribution provisions. In addition, 
it is in the public interest and in the interest of Indian 
beneficiaries and heirs not to delay implementation of these changes 
pending notice and comment, particularly when no adverse comments are 
anticipated. However, OHA invites and will consider public comments 
submitted in response to this final rule. If significant adverse 
comments are received, OHA will amend the rule as appropriate.

Determination To Make Rule Effective Immediately

    Because these amendments do not impact the substance of the 
regulations and in the interest of avoiding delays in the summary 
distribution of the estates at issue, OHA has determined it appropriate 
to waive the requirement of publication 30 days in advance of the 
effective date found at 5 U.S.C. 553(d). Accordingly, this amendment is 
issued as a final rule effective on the date of publication in the 
Federal Register for good cause shown under 5 U.S.C. 553(d)(3). The 
Department further concludes that this rule should be effective 
immediately, because it relieves a restriction on the efficient summary 
distribution of Indian trust estates. With the passage of time, the 
$1,000 threshold amount has become an unreasonable restriction on the 
use of the summary distribution provisions, due to inflation and the 
change in personal property values since the promulgation of the 
existing regulations in 1971. It is in the public interest and in the 
interest of Indian beneficiaries and their heirs not to delay 
implementation of these procedural amendments.

Executive Order 12866

    This rule is not a significant rule as defined in Executive Order 
12866, and therefore, is not subject to review by the Office of 
Management and Budget (OMB).

Regulatory Flexibility Act

    This rule does not have a significant economic effect on a 
substantial number of small entities under the Regulatory Flexibility 
Act because the rule relates to agency procedure. 5 U.S.C. 601, et seq.

Paperwork Reduction Act

    This rule contains no information collection or record keeping 
requirements subject to approval by the OMB under 44 U.S.C. 3501, et 
seq.

Unfunded Mandates Reform Act of 1995

    This rule will not impose an unfunded mandate of $100 million or 
more in any given year on local, tribal, and State governments in the 
aggregate, or on the private sector in accordance with the unfunded 
Mandates Reform Act. 2 U.S.C. 1501, et seq.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act.

Federalism

    In accordance with Executive Order 12630, the rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment.
    Drafting/Information. The primary author of this rule is Charles E. 
Breece, Deputy Director, Office of Hearings and Appeals, U.S. 
Department of the Interior.

List of Subjects in 43 CFR Part 4

    Administrative practice and procedure, Claims, Indians, Public 
Lands.
    For the reasons set forth in the preamble, the Department amends 
Subpart D, Part 4 of Title 43 of the Code of Federal Regulations as 
follows:

PART 4--[AMENDED]

    1. The authority citation for Part 4 continues to read as follows:

    Authority: R.S. 2478, as amended, 43 U.S.C. sec. 1201, unless 
otherwise noted.

    2. Section 4.271 is revised to read as follows:


Sec. 4.271  Summary distribution.

    When an Indian dies intestate leaving only trust personal property 
or cash of a value of less than $5,000, not including any interest that 
may have accrued after the death of the decedent, the Bureau of Indian 
Affairs Superintendent will assemble the apparent heirs and hold an 
informal hearing to determine the proper distribution of the estate, 
unless it appears that the decedent left a last will and testament 
intending to devise his estate, and/or the decedent died possessed of 
an interest in trust or restricted real property. A memorandum covering 
the hearing will be retained in the agency files showing the date of 
the decedent's death, the date of the hearing, the persons notified and 
attending the hearing, the amount on hand, and its disposition. In the 
disposition of such funds, the Superintendent will dispose of 
creditors' claims as provided in Sec. 4.250 and Sec. 4.251. The 
Superintendent will credit the balance, if any, to the legal heirs. 
When requested by the BIA Superintendent, an administrative law judge 
may assume jurisdiction to dispose of creditors' claims or to make 
distribution determinations if the administrative law judge finds that 
exceptional circumstances exist. A party in interest may appeal a 
distribution determination in accordance with 43 CFR 4.320.
    3. Section 4.320 is amended by revising the introductory text to 
read as follows:


Sec. 4.320  Who may appeal.

    A party in interest has a right to appeal to the Board of Indian 
Appeals from an order of an administrative law judge on a petition for 
rehearing, a petition for reopening, or regarding tribal purchase of 
interests in a deceased Indian's trust estate, and also from a summary 
distribution order made by a Bureau of Indian Affairs Superintendent or 
an administrative law judge pursuant to Sec. 4.271.
* * * * *

[[Page 46153]]

    Dated: August 17, 1999.
John Berry,
Assistant Secretary, Policy, Management and Budget.
[FR Doc. 99-21893 Filed 8-23-99; 8:45 am]
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