[Federal Register Volume 65, Number 136 (Friday, July 14, 2000)]
[Proposed Rules]
[Pages 43874-43952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-17195]



[[Page 43873]]

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Part III





Department of the Interior





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Bureau of Indian Affairs



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25 CFR Part 15 et al.



Trust Management Reform: Leasing/Permitting, Grazing, Probate and Funds 
Held in Trust and Encumbrances of Tribal Land--Contract Approvals; 
Proposed Rules

  Federal Register / Vol. 65, No. 136 / Friday, July 14, 2000 / 
Proposed Rules  

[[Page 43874]]


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DEPARTMENT OF THE INTERIOR

25 CFR Parts 15, 114, 115, 162 and 166

RIN 1076-AEOO


Trust Management Reform: Leasing/Permitting, Grazing, Probate and 
Funds Held in Trust

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: The Department of the Interior, Bureau of Indian Affairs 
(BIA), proposes to revise its regulations in the areas of probate, 
funds held in trust for Indian tribes and individual Indians, leasing/
permitting, and grazing. These revisions are meant to further fulfill 
the Secretary's fiduciary responsibility to federally-recognized tribes 
and individual Indians. Particularly, revisions to the probate 
regulations would institute necessary procedures to expedite the 
probate process for Indian decedents' estates. Revisions to regulations 
dealing with funds held in trust will standardize the process for 
collecting, distributing, and accounting for individual Indian monies 
and monies held in trust for tribal governments. Revisions to leasing/
permitting regulations will implement the Indian Agricultural Resource 
Management Act and will address appropriate procedures for entering 
into leases and permits on Indian lands and, more importantly, in 
properly determining and accounting for the value of such leases to 
individual land owners and tribal entities. Revisions in the grazing 
permit regulations will address similar concerns and further 
standardize the process and forms utilized in granting permits on 
Indian lands. In the interests of economy of administration, and 
because all the proposed revisions clarify and standardize Departmental 
policy, they are proposed under one rulemaking vehicle.

DATES: Written comments must be submitted no later than October 12, 
2000.

ADDRESSES: Comments (2 copies) should be addressed to: U.S. Forest 
Service (CAET), 200 E. Broadway, Missoula, MT 59807 Attn: Trust Rule. 
Comments on the information collection burdens should be copied to the 
same address with the original comment sent to: Office of Information 
and Regulatory Affairs, Office of Management and Budget, 725 17th 
Street, NW, Washington, DC 20503 Attn: Interior Desk Officer.

FOR FURTHER INFORMATION CONTACT: Duncan L. Brown, Department of the 
Interior, Office of the Secretary, 1849 C Street, NW, MS 7412 MIB, 
Washington, DC 20240, telephone 202/208-4582.

SUPPLEMENTARY INFORMATION:   

I. Background
II. Part by Part Analysis
III. Public Comments
IV. Procedural Requirements
A. Review Under Executive Order 12866
B. Review Under Executive Order 12988
C. Review Under the Regulatory Flexibility Act
D. Review Under Small Business Regulatory Enforcement Fairness Act 
of 1996
E. Review Under the Paperwork Reduction Act
F. Review Under Executive Order 13132 Federalism
G. Review Under the National Environmental Policy Act
H. Review Under the Unfunded Mandates Reform Act of 1995

I. Background

    In an effort to strengthen the services provided by the Secretary 
of the Interior to federally-recognized tribes and individual Indians 
and in recognition of its fiduciary responsibility to such tribes and 
individuals as identified in the Department's ``Trust Management 
Improvement Project--High Level Implementation Plan,'' as revised and 
updated on February 29, 2000. The Department of the Interior, BIA, 
identified certain parts within 25 CFR that needed immediate attention 
and subsequent revision. These parts were identified through an 
internal review by the BIA in consultation with the Office of the 
Special Trustee for American Indians (OST), and from tribal responses 
to consultations held in the field over a period of years. 
Additionally, tribal non-governmental organizations were consulted for 
their opinions on what areas of BIA trust management needed 
clarification and more uniform application of policy and administration 
throughout Indian Country. The importance of the protection of tribal 
trust resources and the administration of monies held in trust for 
individual Indians and tribal governments were identified as critical 
to providing better services to federally-recognized tribes and 
individual Indians. Surface leasing and permitting of tribal and 
individual Indian resources, including grazing permits, were identified 
as those areas which generate the most revenues from individual Indian 
and tribal resources. Additionally, addressing the severe backlog in 
the Department's disposition of Indian decedents' estates was 
identified as an important step in assuring the orderly transfer of 
Indian trust funds and lands. Therefore, this proposed rulemaking was 
initiated as an appropriate response to the Administration's stated 
goal of improving the administration and management of individual 
Indian and tribal trust resources. The proposed rule was developed with 
attention to Secretarial Order 3215, ``Principles for the Discharge of 
the Secretary's Trust Responsibility,'' of April 28, 2000.
    The development of this proposed rulemaking was achieved through 
informal consultation with affected tribal governments and Indian 
individuals. Drafts of the various parts were initially developed 
through the use of in-house teams within the Bureau of Indian Affairs. 
These teams consisted of federal personnel from headquarters and the 
field, and included program officers and Department attorneys 
possessing extensive knowledge and experience with the particular 
subject matter of the parts. These drafts were then shared with tribal 
entities and national tribal organizations for their input and 
recommendations for improvement. In many cases, areas were further 
expanded to respond to tribal concern with clarity and ease of 
administration. Tribal participation was further secured through the 
National Congress of American Indians (for member tribes), which 
established a working group to assist in the development of the 
regulations, and from BIA field personnel who contacted their 
respective tribes on a regional basis and transmitted drafts of the 
rulemaking to them for discussion and comment. In accordance with the 
government-to-government relationship with tribes, formal consultations 
will be scheduled during the comment period to facilitate an informed 
final rule.
    While the proposed rulemaking responds to many of the concerns of 
Indian Country and the Administration's initiatives, the leasing and 
grazing parts of the rulemaking respond (in part) to the American 
Indian Agricultural Resource Management Act of 1993 (AIARMA)(107 Stat. 
2011), as amended. One of the requirements of AIARMA was the 
development of regulations to implement the Act. The regulations for 
AIARMA were to protect, conserve, utilize, and maintain the highest 
productive potential on Indian agricultural lands through the 
application of sound conservation practices and techniques. In 
addition, the regulations were to meet the objectives of increasing 
productivity and the diversity and availability of agricultural 
products for subsistence, income, and employment; to manage 
agricultural resources consistent with integrated resource management 
plans;

[[Page 43875]]

to enable Indian farmers and ranchers to achieve the maximum potential 
from their resources; to promote self-sustaining Indian communities; 
and to assist in a reasonable annual return for Indian resources. One 
of the specific requirements of AIARMA was the development of 
regulations that would establish civil penalties for the commission of 
trespass on Indian agricultural lands and the designation of 
responsibility within the Department of the Interior for the detection 
and investigation of Indian agricultural lands trespass. Consequently, 
the Bureau of Indian Affairs is designated as the responsible agency in 
this proposed rulemaking.
    This proposed rule rewrites parts 15, 115, 162 and 166 of 25 CFR in 
their entirety and removes the text of part 114 in its entirety. This 
revision is meant to streamline the policies, procedures, provisions 
and clauses that better reflect the Department's administration of its 
trust responsibility with respect to Indian trust resources. Practices 
in the field will be clarified and codified in the revised parts of 25 
CFR. The issuance of this rulemaking will set a uniform standard of 
administration of Indian trust resources by the BIA throughout Indian 
Country. It is important to note, however, that, with the exception of 
the newly promulgated part 15--Indian Probate, the established 
practices currently codified in the above-referenced parts have not 
been discarded but, rather, have been revised to reflect a clearer 
understanding of the Department's administration of such parts. The 
thrust of these revisions are reflected in the part-by-part analysis 
below. After consultation with the Department's constituency in Indian 
Country during the comment period, it is anticipated that a final 
rulemaking will be issued in December 2000.

II. Part-by-Part Analysis

A. 25 CFR Part 15--Probate of Indian Estates, Except for Members of the 
Five Civilized Tribes

    The purpose of this regulation is to describe the authorities, 
policies and procedures the BIA uses to probate an Indian decedent's 
trust estate, except for members of the Five Civilized Tribes. This is 
a revision to the existing part and amends and replaces the part in its 
entirety.
    The regulation proposes to implement administrative procedures by 
which the BIA would process and determine certain probate cases where a 
hearing is not required or requested. These procedures, embodying a 
reassumption by the BIA of responsibility to determine these probate 
cases, are the result of the Department's Indian Probate Reinvention 
Lab (IPRL). Formed in 1999, the IPRL examined the Department's Indian 
probate process from a multi-agency perspective, including the BIA, the 
Department's Office of Hearings and Appeals (OHA), which handles Indian 
probate cases requiring hearings, and the OST. Based on its analysis, 
which included reviewing reports from previous studies of Indian 
probate matters, site visits and interviews of customers and employees, 
the IPRL recommended, among other things, that the BIA establish 
attorney decision-makers at regional offices to handle certain probate 
cases under criteria to be established by regulation. This proposed 
revision of part 15 would implement in the BIA the procedural aspects 
of the IPRL's recommendations. At the appropriate time, the OHA will 
amend its regulations to accommodate the BIA's reassumption of 
responsibility for these probate cases, and to ensure that the same 
standards and criteria for determining heirs and paying claims are 
consistently applied between the BIA and the OHA. The reports of the 
IPRL are available on the BIA's home page www.doi.gov.
    In addition to establishing the process by which the attorney-
decision makers in the BIA will handle certain probate cases, the 
proposed regulations in part 15 also address the handling of summary 
distributions of estates by the BIA. Formerly handled only by agency 
superintendents, summary distributions also will be handled by the 
attorney-decision makers. See 65 FR 25449-25450 (May 2, 2000).
    The various subparts of part 15 address the purpose and scope of 
the Indian probate procedures; the mechanics of initiating the probate 
process, including the appropriate notifications and assignments of 
interest; the preparation of the probate package itself, including the 
identification of necessary documents to facilitate a timely process; 
the disposition of claims against an estate and the ultimate 
distribution of the decedent's assets to the determined heirs; and an 
appeals process to follow should any disputes arise during any stage of 
the probate process. Cross references have been made to the hearings 
and appeals procedures of the OHA, including the determination of 
heirs, and to the use and disposition of funds held in trust for 
decedents (other than decedents of the Five Civilized Tribes) which may 
be included in an Indian decedent's estate.

B. 25 CFR Part 114--Special Deposits

    The purpose of this part was to set forth the conditions governing 
the deposit, investment, and distribution of principal and interest on 
trust funds held by the Department in special deposit accounts. In 
addition, this part provided procedures required for determination of 
ownership and distribution of funds which are on deposit in account 
14X6703 ``Indian Moneys Proceeds of Labor Escrow Account--Pending 
Determination of Ownership.'' This special deposit account (IMPL Escrow 
Account) has been obsolete since September 30, 1987, as any unobligated 
balances were then deposited into miscellaneous receipts of the U.S. 
Treasury. Since this part dealt largely with this IMPL Escrow Account, 
the text of this part has been deleted in its entirety. Those 
provisions concerning other ``special deposit accounts'' are now 
referenced and explained in the newly revised part 115 below. It was 
the decision of the Department to move those provisions to part 115 
because that part deals specifically with tribal and individual Indian 
trust funds. It is proposed, therefore, that part 114 be ``reserved.''
    The chart below provides a crosswalk reflecting, by section, the 
proposed reorganization of pertinent sections of part 114 that have 
been situated in subpart E of part 115, and descriptions of the 
revisions being proposed.

                       Cross Reference With Explanation From Current to Proposed Citations
----------------------------------------------------------------------------------------------------------------
           Current citation                  New citation                Title                   Remarks
----------------------------------------------------------------------------------------------------------------
114.1................................  N/A....................  N/A....................  Purpose of ``special
                                                                                          deposit accounts'' has
                                                                                          been subsumed in the
                                                                                          purpose section of the
                                                                                          introductory language
                                                                                          of part 115.

[[Page 43876]]

 
114.2................................  115.002................  What are special         The definition of
                                                                 deposits?                ``special deposits''
                                                                                          is the only term
                                                                                          requiring explanation
                                                                                          in this subpart of
                                                                                          part 115.
114.3................................  115.404................  May the BIA deposit      The section under 114.3
                                                                 into a special deposit   referred to
                                                                 account money that is    investments of special
                                                                 paid prior to approval   deposit funds. The new
                                                                 of a conveyance or       citation explains that
                                                                 contract instrument      monies paid to the BIA
                                                                 for land sales, right-   prior to approval of a
                                                                 of-ways, resource        contractual agreement
                                                                 sales, grazing, or       do not earn interest
                                                                 leasing, etc.?           until the monies are
                                                                                          actually placed in a
                                                                                          trust fund account
                                                                                          upon such approval.
114.4................................  115.400................  Who receives the         The section under 114.4
                                                                 interest earned on a     referred to the
                                                                 special deposit          distribution of
                                                                 account?                 interest earned on a
                                                                                          special deposit
                                                                                          account. The new
                                                                                          citation reflects the
                                                                                          same understanding
                                                                                          that interest follows
                                                                                          principal.
114.5................................  N/A....................  N/A....................  The section under 114.5
                                                                                          referred to the IMPL
                                                                                          Escrow Accounts. They
                                                                                          have been obsolete
                                                                                          since September 30,
                                                                                          1987, and the
                                                                                          regulations referring
                                                                                          to such accounts are
                                                                                          likewise obsolete.
                                                                                          This has been removed
                                                                                          in its entirety from
                                                                                          25 CFR.
----------------------------------------------------------------------------------------------------------------

C. 25 CFR Part 115--Trust Funds for Tribes and Individual Indians

    The purpose of this regulation is to describe how the Secretary, 
primarily through the Bureau of Indian Affairs (BIA) and the Office of 
Trust Funds Management (OTFM) within the OST, carries out the trust 
duties owed to tribes and individual Indians in managing and 
administering trust assets for the exclusive benefit of tribal and 
individual Indian beneficiaries. The regulation also implements 
provisions of the American Indian Trust Fund Management Reform Act. 
This is a revision to the existing part 114 and 115 and amends and 
replaces those parts in their entirety.
    The proposed rule making includes in subpart B sections on 
``frequently asked questions'' about the sources of monies that are 
deposited and disbursed from both tribal and individual Indian 
accounts. These questions include an explanation of which financial 
resources may be accepted for deposit into a tribal account or an 
individual Indian money (IIM) account; the process for depositing money 
into an account; and an explanation of how money deposited into trust 
earns interest. We are requesting comments on whether the Secretary 
should accept into trust tribal income from products directly derived 
from trust land within the tribe's jurisdiction. For example, under 
such a distinction, income from a logging mill that processes trees 
harvested from trust land within the tribe's jurisdiction may be 
considered income; however, income derived from other businesses merely 
located on trust land, but not directly using the land for production 
of income, such as gaming profits or smoke shop profits, will not be 
considered trust income. When commenting on tribal trust income, please 
include a list of tribal operations, other than logging mills, that 
might be included in this category; any suggestions for a definition of 
tribal income that is directly derived from trust land; and the 
documentation that would be sufficient to evidence that the income was 
directly derived from the tribe's trust land.
    One of the most significant revisions to this part is the addition, 
in subpart C, of the procedures used in administering tribal trust 
funds. These procedures have been the standard method of operation in 
the field; however, they have never been codified in the Code of 
Federal Regulations. With this addition, questions concerning tribal 
trust account management are explained in detail with an emphasis 
placed on everyday operations for such accounts. These issues include 
opening a tribal account; depositing or withdrawing monies from tribal 
accounts; the investments and other cash management operations of 
tribal accounts; accounting information, record keeping, and standards 
of performance in administration of tribal accounts; and the 
disposition of certain judgment funds in tribal accounts. A new 
provision will encourage tribes, where submitting an annual budget to 
the Secretary is not required by law, to provide annual cash flow 
projections to assist the Secretary in making investment decisions to 
meet a tribes cash flow needs. The regulation will also inform tribes 
to what extent funds withdrawn from tribal trust accounts may be re-
deposited into trust.
    Subpart D contains much of the current information concerning IIM 
accounts, especially with respect to depositing and withdrawing money 
from such accounts. New provisions have been added to this subpart to 
explain how court orders may impact an IIM account; how the account 
holder can access his account information; the frequency of statements 
of performance for an IIM account; and the conditions under which the 
Department will provide account information to a third party. 
Information is also provided concerning administrative matters 
regarding these accounts, such as changes in address, time period for 
cashing IIM checks, process for reporting lost or stolen checks, the 
circumstances when check proceeds may be re-credited to an IIM account, 
and the reporting of IIM account information to outside agencies. 
Additional provisions address withdrawing limited funds from an estate 
account immediately following

[[Page 43877]]

the death of an account holder for burial-related costs and receiving 
income from life-estate accounts. We are eliminating the provision that 
allowed voluntary deposits to IIM accounts in limited circumstances. 
One procedural issue that continues to present practical problems is 
the treatment of accounts belonging to individuals whom we cannot 
contact because their whereabouts are unknown. We are requesting 
comments on how to locate IIM account holders whose whereabouts are 
unknown. In addition, we would like comments on how the funds in IIM 
accounts for account holders whose whereabouts are unknown should be 
treated. These accounts will be maintained as unrestricted accounts 
unless we have specific information requiring that they be maintained 
as restricted accounts.
    Subpart D includes a detailed explanation of how the Secretary 
supervises restricted accounts for minors or adults who are non compos 
mentis or have been adjudicated to be in need of financial management 
assistance. We are proposing to eliminate the administrative process 
for determining when to supervise an IIM account for an adult who is in 
need of financial management assistance. Rather, we are proposing to 
supervise such accounts only when a court of competent jurisdiction has 
determined that an adult IIM account holder is in need of financial 
management assistance. Therefore, an account holder with a supervised 
IIM account must have a legal guardian or conservator appointed by a 
court of competent jurisdiction. Although we propose to no longer make 
this determination ourselves, we are retaining the category of adults 
in need of financial management assistance in recognition of the fact 
that there are individuals who require such assistance but are not 
incompetent. These proposals are intended to ensure that account 
holders have decision making authority regarding their accounts unless 
a court with authority to make such decisions determines that an 
account holder is unable to manage his or her funds. We request 
comments about the impact of these proposals on tribal courts as well 
as account holders.
    In order to fully protect holders of supervised and restricted IIM 
accounts, we propose to require additional duties for legal guardians 
in regard to their responsibilities for IIM funds, including working 
with the BIA to develop annual distribution plans for IIM funds, making 
an annual accounting to the BIA for all IIM funds expended, reviewing 
any IIM statements of performance for errors, and filing any tax 
returns associated with IIM funds. Consistent with existing 
regulations, we will continue to accept proceeds from other federal 
government agencies for IIM account holders, but only when the account 
holder is under legal disability and does not have a legal guardian, 
unless the BIA is acting in the capacity of a guardian. We also propose 
to not recognize a power of attorney for purposes of distributing money 
from an IIM account to a party other than the account holder.
    Subpart D also addresses in detail the procedures related to the 
supervision of a minor's account, consistent with our trust 
obligations. We propose to allow withdrawals from a minor's account 
only under a BIA approved distribution plan when those withdrawals are 
directly related to the minor's health, education, and welfare. We 
propose that a custodial parent or a guardian who withdraws funds from 
a minor's IIM account on behalf of the minor must account annually to 
the BIA for the use of those funds. We request comments on whether we 
should define ``minor'' in such a manner that would incorporate a 
tribal law that specifies an age of majority that is different than 18. 
If we were to define minor as such, then an account holder who is 
subject to the tribal law would not have unrestricted access to his or 
her IIM account funds until the account holder reached the age of 
majority as defined by the tribal law.
    Subpart D clarifies existing practices and proposes new language to 
allow an IIM account holder to encumber his or her account and to 
permit the BIA to involuntarily restrict an IIM account in fulfillment 
of an obligation made by the account holder to a third party. An 
account holder may authorize the OTFM to place a hold on his or her IIM 
account so that income deposited into the account remains in the 
account as opposed to being automatically disbursed to the account 
holder when the account reaches a specific balance. An account holder 
would be able to voluntarily authorize the OTFM to make third-party 
payments from his or her IIM account so long as the account balance on 
the date of payment is sufficient to cover the authorized third party 
payments. These instructions could be changed upon request of the IIM 
account holder. An account holder would continue to be able to assign 
IIM income as security for a debt to a third party, which result in the 
creation of legal rights to IIM funds for satisfaction of a debt or an 
obligation to the third party, which cannot be voluntarily removed by 
the account holder. Under this proposal, the third party will have to 
perfect the security interest prior to presenting the assignment of IIM 
income to the BIA for payment. To perfect an assignment of IIM income 
as security, the third party generally will have to present the IIM 
assignment made by the account holder and the account holder's record 
of payment(s), including any unpaid balance, to a court of competent 
jurisdiction and obtain a judgment that determines the amount owed by 
the IIM account holder to the third party. Under this proposal, other 
than a debt secured under the Indian Finance Act, the only assignment 
of income that the BIA would recognize without a court order or 
judgment perfecting a third party's interest in an IIM account is an 
assignment of income for health care emergencies made by the account 
holder directly to the service provider. We recognize that these 
proposed limitations on the ability of third parties to obtain legal 
rights to funds in an IIM account may require many creditors, such as 
tribal credit programs, to revise their debt collection practices, and 
may have an impact on the amount of funding available for a loan other 
than one secured under the Indian Finance Act. These proposals are 
intended to ensure that the Secretary can properly exercise his or her 
trust responsibility to individual account holders such that the funds 
to be remitted to a third party are in fact owed by the account holder. 
We invite comments on the extent to which these proposals will impact 
credit programs and individual account holders.
    Subpart E, which replaces part 114, limits the types of funds that 
may be deposited into special deposit accounts. This subpart includes 
an explanations of special deposit accounts and their administration by 
the BIA and the OTFM. Specifically, sections address whether and how 
special deposit accounts earn interest; and the inability to deposit 
cash bonds in a special deposit account.
    Subpart F outlines the notice requirement and hearing process 
associated with an involuntary restriction on an IIM account. This 
subpart outlines the circumstances under which the BIA will place an 
involuntary restriction on an IIM account, including where an account 
holder has given a third party legal rights to the funds held in his or 
her IIM account, where an administrative error has been caused by the 
BIA or the OTFM in the depositing or disbursing of IIM funds, and under 
limited court order involving the need to supervise an account. We 
propose to place a restriction on an IIM account five days after the 
BIA mails the account holder notice by certified mail of its decision

[[Page 43878]]

to place a restriction on the IIM account. If we do not have an address 
for the account holder, we propose to give notice through publication 
and a restriction will be placed on the account five days after the 
date of the final publication of the public notice.
    Many of the procedures in subpart F are found in the current 
regulation; however, the revised subpart goes into greater detail 
regarding the process that must be followed prior to restricting an IIM 
account.
    Subpart G makes reference to general appeals. Subpart H refers to 
applicable record-keeping responsibilities.
    Subpart I merely renumbers the sections of the current regulation 
regarding disposition of accounts held by the Osage Agency and those 
accounts administered on behalf of members of the Five Civilized 
Tribes.
    The chart below provides a crosswalk reflecting, by section, the 
proposed reorganization of part 115, along with remarks explaining the 
revisions or the inclusion of new sections dealing with the 
clarification of existing practices.

                     Cross Reference With Explanation From Current to Proposed New Citations
----------------------------------------------------------------------------------------------------------------
           Current citation                  New citation                Title                   Remarks
----------------------------------------------------------------------------------------------------------------
115.1................................  115.002................  What definitions do I    More extensive
                                                                 need to know?            definitions listing.
115.2................................  115.803................  Osage Agency.            Redesignated. No
                                                                                          change.
115.3................................  115.328................  How do I withdraw money  Plain language.
                                                                 from my IIM account?
115.4(a).............................  115.364................  When will the BIA        Plain language, more
                                                                 authorize withdrawals    explanation.
                                                                 from a minor's
                                                                 account?
115.4(b).............................  115.366................  Will I automatically     Clarification of
                                                                 receive all my IIM       judgment fund
                                                                 funds when I turn 18?    disbursements.
115.5................................  (\1\)..................  Prior: Adults Under      More explanation on
                                                                 Legal Disability.        disbursement
                                                                                          requirements for all
                                                                                          types of restricted
                                                                                          accounts referenced
                                                                                          throughout the part.
115.6................................  115.325................  May I deposit money      Clearer guidance on
                                                                 into my IIM account?     what funds may be
                                                                                          deposited into
                                                                                          accounts.
                                       1115.326...............  May I redeposit IIM
                                                                 funds back into my
                                                                 trust account once I
                                                                 receive the money?
115.7................................  115.102(c).............  What specific sources    Clearer guidance.
                                                                 of money may be
                                                                 deposited into a trust
                                                                 fund account?
115.8................................  115.333................  May I authorize the      Clearer guidance on
                                                                 OTFM to make payments    vendors.
                                                                 directly to a third
                                                                 party on my behalf?
                                       115.334................  Will BIA ever withdraw   Clearer guidance on
                                                                 money from my account    special payment
                                                                 without my               circumstances.
                                                                 authorization?
115.9; 115.10(a)                       115.374................  May I authorize the      Clearer guidance on
                                                                 OTFM to make third       encumbrance.
                                                                 party payments from my
                                                                 IIM account to pay my
                                                                 monthly bills on other
                                                                 obligations?
                                       115.502................  How will I be notified   Guidance on notice
                                                                 if a decision has been   requirements.
                                                                 made to place my IIM
                                                                 account under
                                                                 supervision or
                                                                 encumbrance?
115.10(a)............................  115.505................  What information will    Notice letter
                                                                 the BIA include in its   requirements.
                                                                 notice?
115.10(b)............................  115.384................  If I have an             Plain language.
                                                                 encumbrance on my
                                                                 account, may I make
                                                                 withdrawals?
115.10(c)(1).........................  115.507................  When will the BIA        Plain language.
                                                                 conduct a hearing to
                                                                 allow me to challenge
                                                                 its decision to
                                                                 restrict my account?
115.10(c)(2).........................  115.508................  Will I be allowed to     Plain language.
                                                                 present personal
                                                                 testimony?
115.10(c)(3).........................  115.511................  May I be represented by  Plain language.
                                                                 an attorney at my
                                                                 hearing?
115.10(c)(4).........................  115.517................  If the BIA decides to    Plain language.
                                                                 restrict my account
                                                                 after my hearing, do I
                                                                 have the right to
                                                                 appeal that decision?
115.10(c)(5).........................  115.512................  Will the BIA record the  Plain language.
                                                                 hearing?
115.10(c)(6).........................  115.514................  How long after the       Plain language.
                                                                 hearing will the BIA
                                                                 make its final
                                                                 decision?

[[Page 43879]]

 
115.10(d)............................  115.518................  If I decide to appeal    Plain language.
                                                                 the BIA's decision
                                                                 after my hearing, will
                                                                 BIA restrict my
                                                                 account during the
                                                                 appeal?
115.11...............................  115.801................  Funds of deceased        Redesignated. No
                                                                 Indians of the Five      change.
                                                                 Civilized Tribes.
115.12...............................  115.801................  Funds of deceased        Redesignated. No
                                                                 Indians of the Five      change.
                                                                 Civilized Tribes.
115.13...............................  115.802................  Assets of members of     Redesignated. No
                                                                 the Agua Caliente Band   change.
                                                                 of Mission Indians.
115.14...............................  115.600................  Do I have a right to     Plain language.
                                                                 appeal any decision
                                                                 made under this part?
115.15...............................  N/A....................  N/A....................  Section deleted.
                                                                                          Information collection
                                                                                          requirements have been
                                                                                          identified for
                                                                                          clearance.
New..................................  115.001................  What is the purpose of   Explains the inclusion
                                                                 this part?               of tribal trust
                                                                                          accounts with the
                                                                                          regulations specific
                                                                                          to IIM accounts.
New..................................  115.103-110............  Frequently asked         Pertains to tribal and
                                                                 questions.               individual accounts.
                                                                                          Meant as explanatory
                                                                                          tool for service
                                                                                          constituency. Concerns
                                                                                          what monies may be
                                                                                          deposited, process for
                                                                                          depositing, and
                                                                                          investments/interest
                                                                                          monies.
New..................................  115.200-221............  Administration of        Clarifies current
                                                                 tribal accounts.         practice.
New..................................  115.300-302............  Basic elements of IIM    Clarifies
                                                                 accounts.                understandings and
                                                                                          current practice.
New..................................  115.303-312............  Obtaining information    Clarifies current
                                                                 on IIM accounts, use     practice.
                                                                 of accounts as
                                                                 collateral for a loan,
                                                                 and reports to the
                                                                 IRS.
New..................................  115.317-324............  Personal administrative  Clarifies current
                                                                 concerns regarding IIM   practice.
                                                                 accounts, e.g.,
                                                                 changes, lost checks,
                                                                 decedents' estates
                                                                 deposits, etc.
New..................................  115.328-332, 115.335-    Withdrawing funds from   Clarifies current
                                        336.                     IIM account.             practice.
New..................................  115.340-404............  Administration of        Clarifies current
                                                                 special accounts:        practice.
                                                                 Supervised accounts,
                                                                 minors accounts,
                                                                 encumbered accounts,
                                                                 special deposit
                                                                 accounts.
New..................................  115.500-504............  Civil procedures         Clarifies current
                                                                 necessary in             practice.
                                                                 restricting or
                                                                 otherwise encumbering
                                                                 an account.
New..................................  115.700................  Who owns the records     Provides guidance for
                                                                 associated with this     record keeping.
                                                                 part?
                                       115.701................  What are a tribe's
                                                                 obligations regarding
                                                                 trust fund records?
                                       115.702................  How long must a tribe
                                                                 keep its records?
----------------------------------------------------------------------------------------------------------------
\1\ None.

D. 25 CFR Part 162--Leases and Permits on Indian Lands

    The purpose of this part is to describe the authorities, policies 
and procedures the BIA uses to grant, approve and administer surface 
leases and permits on certain lands held by the United States in trust 
for tribes and individual Indians and certain lands owned by the 
federal government. It revises, amends and entirely replaces the 
existing part 162, and implements the American Indian Agricultural 
Resource Management Act (AIARMA), 25 USC 3703, et seq. with regard to 
leases on Indian agricultural land. With respect to those regulations 
governing the administration of leases on specific reservation lands, 
the proposed rule will not effect any changes, but rather will merely 
renumber those sections.
    The AIARMA, enacted in December, 1993, requires that the Secretary 
conduct all ``land management activities''--defined in section 4(12)(D) 
to include the ``administration and supervision of agricultural leasing 
and permitting activities, including a determination of proper land use 
* * * appraisal, advertisement, negotiation, contract preparation, 
collecting, recording and distributing lease rental receipts''--on 
Indian agricultural lands in accordance with agricultural resource 
management plans, integrated resource management plans, and all tribal 
laws and ordinances, except where such compliance would be contrary to 
the trust responsibility of the United States.

[[Page 43880]]

    Under the mandate of section 301 of the AIARMA, the BIA met with 
tribal representatives to produce the first draft set of implementing 
regulations in March, 1994. This first draft, distributed for comment 
to nearly 3000 addresses on April 29, 1994, did not consolidate the 
leasing and grazing provisions of 25 CFR parts 162 and 166, 
respectively. After five formal hearings across the nation, a second 
draft regulation was distributed for comment on June 28, 1994. This 
draft contained leasing and grazing rules in a single part. A final 
draft that included language for the proposed subpart D was distributed 
on November 30, 1994, and published in the Federal Register as a 
proposed rule on June 17, 1996, 61 FR 30560-70. The proposed rule was 
withdrawn.
    This proposed part balances the responsibilities the Secretary has 
as trustee of Indian land with the need for tribes and individual 
Indian landowners to exercise maximum control over their Indian 
agricultural lands and business affairs. The proposed regulation 
includes five new sections that clarify the Secretary's 
responsibilities regarding business leases (Subpart E), compensation to 
landowners (Subpart F), violation of lease terms (Subpart H), leases 
that include a non-trust interest (Subpart J), and the procedures for 
handling trespass on tribal or individual Indian trust lands (Subpart 
L). It does not include grazing permits, which are covered in the 
proposed part 166.
    Several tribes, and the NCAI, have suggested that the Secretary has 
discretion under existing statutes to permit tribes to grant their own 
short-term leases with a routine BIA approval process, reserving a more 
extensive review and approval process for long-term leases that may 
adversely affect the preservation of tribal culture and society. We 
request comments on how such a lease approval process might work under 
existing law, in light of the Secretary's trust responsibility.
    Subpart A, ``Purpose and Definitions,'' defines key terms used 
throughout the proposed regulation. These terms are consistent with 
those found in the AIARMA.
    Subpart B, ``Lease Provisions and Requirements,'' contains general 
rules and principles that pertain to leases of Indian agricultural 
land. Section 162.4 would clarify the existing requirement that lessees 
comply with all applicable tribal laws and ordinances. Failure to 
comply with such requirements would be considered a violation of the 
lease. Also, in some instances, the lessee would be required to provide 
an environmental baseline survey of the property in order to protect 
the Indian landowner from potential liability resulting from the 
lessee's use of hazardous materials during the lease term. Lessees 
would be required to provide a bond for each lease acquired, unless the 
Indian landowner requests that the BIA waive the requirement.
    Many tribes and individuals have expressed a desire that the 
current practice of allowing direct payments of lease income to Indian 
landowners be continued under this part. The BIA recognizes the utility 
of direct payments and does not propose to alter the practice at this 
time. Nevertheless, we continue to struggle to fashion a system that 
accommodates both the ability of the Indian landowner to receive lease 
payments directly from the lessee and the Secretary's legal obligation 
under the American Indian Trust Fund Management Reform Act to account 
for that income. The BIA believes that it may be sufficient to satisfy 
both interests by establishing direct pay arrangements for leases on 
tribal lands through contracts or compacts under the Indian Self 
Determination and Education Assistance Act (``Self Determination 
Act''). The BIA requests comments on: (1) The continued need for direct 
payments for tribal and individual Indian lands; (2) the advisability 
of contracts or compacts under the Self Determination Act as the sole 
method for direct payments to tribes; and (3) the compatibility of such 
payments with the Secretary's legal obligation as trustee to obtain the 
information regarding payment history that is needed to perform the 
necessary accounting.
    Consistent with the AIARMA, the proposed Subpart B would make clear 
that, when specifically authorized by a tribal resolution that 
establishes a general policy for leasing of Indian agricultural lands, 
the Secretary, with regard to such leases, will: Provide a preference 
to Indians in the issuance of agricultural leases and permits; waive or 
modify the requirement that a lessee provide a bond, or require another 
type of surety; and approve leases of tribally owned agricultural land 
at rates set by the tribal governing body. When the tribal resolution 
defines ``highly fractionated individual heirship land,'' the Secretary 
may waive or modify notice requirements pertaining to such land.
    Also consistent with the AIARMA, the proposed Subpart B would 
provide that individual Indian landowners of at least 50% of the 
beneficial interest in a tract of agricultural land could exempt their 
land from the Secretary's implementation of the tribal general policy 
discussed above by submitting a written request to the BIA.
    The proposed Subpart B preserves the individual Indian landowner's 
flexibility to negotiate his or her own lease terms, subject to BIA 
approval, by allowing multiple tracts of trust land to be combined into 
one lease and by requiring no standard lease form. Leases under the new 
regulation would need to conform only to the substantive requirements 
outlined in the subpart; individual Indian landowners would be able to 
use any lease form they think best serves their business purposes.
    The new Trust Asset Accounting and Management System (TAAMS), an 
automated accounting system currently being fielded by the BIA, will 
greatly enhance the Secretary's ability to collect and manage income 
from trust assets. For example, as outlined in the proposed Subpart B, 
the system will allow the BIA to notify Indian landowners that lessees 
have violated the lease by failing to make timely payment and that late 
payment penalties have been assessed.
    Proposed Sec. 162.44 in Subpart B would clarify the BIA practice of 
reviewing the lease every 5 years to determine whether an adjustment 
should be made to the lease payments. Several tribes have suggested 
that the BIA could use the Consumer Price Index (CPI) or the Producer 
Price Index (PPI) to determine lease payment adjustments. However, 
recognizing that there may be several appropriate standardized price 
indicators by which the adjustment could be based, the BIA requests 
comment on an appropriate method of adjusting lease payments under the 
new regulation.
    The BIA recognizes that Indian landowners may in some situations 
receive maximum value from their trust lands by allowing the lessee to 
use his or her leasehold interest as collateral for a loan. Sec. 162.23 
in subpart B describes the proposed circumstances under which the BIA 
could approve a leasehold mortgage of trust property. Because economic 
conditions and local practices vary somewhat among regions, the BIA 
requests comment on the extent to which the proposed Sec. 162.23 
supports Indian landowners' business activities, reflects current 
business practices and allows the Secretary to fulfill trust 
responsibilities.
    The proposed subpart B would allow a lessee to assign his interest 
in a lease that is subject to a leasehold mortgage to a party other 
than the mortgagee if the assignee agrees to be bound by the terms of 
the lease. In such cases, the lease may provide the Indian landowner 
with a

[[Page 43881]]

right of first refusal on the assignment of the leasehold interest.
    The new subpart B also proposes to require that all leases with a 
lease term greater than one year be recorded in the BIA's Land Titles 
and Records Office (LTRO).
    Subpart C, ``Process for Obtaining a Lease,'' highlights the policy 
of providing for maximum Indian landowner control consistent with the 
Secretary's trust responsibilities. Under the proposal, the Indian 
landowner is primarily responsible for leasing Indian land, with the 
assistance and approval of the Secretary. The regulation would change 
current practice, not addressed in the existing part 162 regulations, 
in that the BIA would no longer give conditional lease approvals. 
However, the proposed provision preserves flexibility in business 
affairs by providing that Indian landowners may contract to lease land 
at a future date, with the contract specifying essential lease terms 
and any conditions to be satisfied--such as National Environmental 
Policy Act (NEPA) compliance--before the Secretary would approve the 
lease. Subpart C would also relieve parents, guardians or others acting 
in a legal capacity in place of a parent from the requirement to obtain 
a lease to use Indian agricultural lands owned entirely by their minor 
children when certain conditions are met.
    In order to provide maximum protection for all trust property 
beneficiaries, in situations where an Indian landowner does not own a 
100% interest in trust land, the proposed Sec. 162.67 in subpart C 
would require that the Indian owner of the fractionated interest obtain 
a lease from all co-owners of the land before using the land 
exclusively for his or her own purposes. The BIA recognizes the unique 
burdens placed on potential users of fractionated land, and requests 
comment on the proposed requirement.
    Subpart D, ``Granting a Lease,'' restates the statutory mandate 
that tribes and individual Indians may grant a lease of their own trust 
lands with the Secretary's approval. It clarifies who may represent an 
individual Indian landowner in granting a lease when, for example, the 
landowner is a minor or unable to manage his or her own affairs due to 
illness or other incapacity. The subpart also allows the Secretary to 
protect trust assets by granting a short-term revocable permit for a 
third party to enter trust lands in certain situations, such as where 
it is not practical to provide notice to every Indian landowner.
    Subpart E, ``Business Leases,'' covers both ground leases and 
leases of developed land for purposes other than farming, grazing, or 
use as an individual homesite. Under the proposed subpart, entities 
seeking to lease Indian land for business purposes would negotiate 
terms directly with an Indian landowner, but the lease would continue 
to be approved by the Secretary. The proposed rule provides that 
business leases generally must require that the lessee pay fair rental 
value; exceptions are clearly enumerated and would require the 
Secretary's approval.
    Although in most instances assignments, sublets, or mortgages of 
business leases would require our approval, Subpart E would allow 
Indian landowners considerable flexibility to support commercial or 
residential development on Indian lands. However, several tribes have 
suggested that business subleases should be routinely approved by the 
BIA when income under the sublease is set below a certain amount. The 
BIA must balance the additional business flexibility this proposal 
might provide Indian landowners against its trust obligations and 
requirements of federal law. Therefore, the BIA seeks comment on the 
proposal that business subleases of less than $250,000 under subpart E 
be routinely approved by the BIA.
    Subpart F, ``Compensation to Indian Landowners,'' details what the 
BIA would do with rent payments received from lessees of Indian land. 
Several tribes have suggested that the BIA should apportion lease 
revenues to beneficiaries based on the productivity of a tract in 
situations where the lease includes several discrete parcels of land. 
The proposed regulation would continue the current BIA practice of 
prorating lease revenue based on the number and size of the tracts in 
relation to the total leasehold, then distributing revenue to each 
owner according to his or her fractional share of each tract. 
Recognizing that the method used for distributing trust property income 
has significant impact on Indian landowners, the BIA requests comments 
on methods to divide lease income from multi-tract leases.
    Subpart G, ``Administrative Fees,'' contains a table of 
administrative fees the BIA proposes to charge for approving leases and 
related documents. The subpart would allow the BIA to waive all or part 
of an administrative fee in certain circumstances, and would allow a 
tribe to establish and collect its own schedule of administrative fees.
    Consistent with its responsibility as trustee, the BIA would assume 
affirmative responsibilities in the event the lessee violates the terms 
of the lease in Subpart H, ``Lease Violations.'' In this subpart, when 
reasonable grounds exist based on facts known to us, the Secretary 
would reserve the right to enter onto leased land with or without prior 
notice to the lessee to enforce compliance with the lease provisions 
and to protect trust assets. In the event of a lease violation, the BIA 
would give the lessee notice by certified mail of the violation and 
specific period of time to correct it. If the violation is not 
corrected, the BIA may take action up to and including canceling the 
lease and ordering the lessee to vacate. Subpart I, ``Appeals,'' 
outlines general appeal procedures by reference to 25 CFR Part 2, 
``Appeals From Administrative Actions.''.
    Proposed Subpart J, ``Non-Trust Interests,'' would assert that the 
Department has constructive authority to grant or approve only leases 
of trust interests in Indian land; under the proposed regulation, 
undivided non-trust interests in Indian land would be leased directly 
from owners of these interests. The proposed regulation would clarify 
that the Secretary has no obligation to lease or collect rental 
payments for the non-trust interests in Indian lands. Payments for the 
non-trust interests would be made according to the terms negotiated 
between the lessee and the owners of the non-trust interests.
    We recognize that the fractionation of ownership of Indian lands 
has made the leasing of Indian lands for trust beneficiaries more 
complex. Additionally, the Secretary's trust obligation to lease Indian 
lands does not run to the owners of undivided non-trust interests. Not 
only does the BIA lack statutory authority to lease or collect rental 
payments on behalf of such interests, but we may not know who the 
current owners are because we do not maintain or update non-trust 
ownership records after the title passes from Indian ownership. 
Nevertheless, there may be a non-trust obligation to account to the 
owners of the non-trust interests for the income from leases on the 
undivided land received on behalf of Indian landowners. Were the BIA to 
undertake this accounting, the additional workload burden could not be 
met with existing resources, and our ability to lease fractionated 
Indian lands on behalf of the Indian owners would be severely 
curtailed. This would be detrimental to the Secretary's ability to meet 
the trust responsibility to Indian landowners. We request comments on 
how to resolve the conflict between the interests of the owners of non-
trust interests in the activity on the

[[Page 43882]]

undivided lands, and the Secretary's trust responsibility to Indian 
landowners.
    As trustee, the BIA must determine the fair annual rental value of 
Indian land in order to assist Indian landowners in negotiating a lease 
with potential lessees and to allow the Secretary to determine if a 
lease is in the best interest of the landowner. Subpart K, 
``Valuation,'' would allow the BIA to determine fair annual rental 
value for a lease of Indian land by appraisal, advertisement, 
competitive bidding or any other appropriate method that is consistent 
with the Uniform Standards of Professional Appraisal Practices (USPAP). 
The BIA does not intend to specify in part 162 the method for 
appraising Indian land; flexibility in choosing an appraisal method 
would allow the Secretary to most effectively discharge his 
responsibility as trustee.
    Leases of Indian agricultural lands generally must bring the 
landowner fair annual rental value. The proposed subpart K would 
clarify the statutory authority allowing the Secretary to approve a 
lease of individually owned Indian land at less than fair annual rental 
value when, for example, the lease is for religious, educational, 
recreational or another public purpose, or when the lease is for a 
homesite for a person related to the individual Indian landowner. The 
Secretary also would approve a lease of tribal land at less than fair 
annual rental if certain conditions are met. In each instance, the 
Secretary would be required to determine that approving the lease at 
less than fair annual rental value is in the best interest of the tribe 
or individual Indian landowner.
    Under the proposed subpart L, ``Trespass,'' the BIA would 
investigate accidental, willful or incidental trespass by third parties 
onto Indian agricultural land and would have the authority to assess 
penalties or seek damages against the trespasser or seize or impound 
the trespasser's property. The proposed rule would establish a civil 
penalty for trespass that is consistent with the AIARMA. Tribes that 
adopt the provisions of subpart L would have concurrent jurisdiction 
with the Secretary to enforce the new trespass provisions. Tribes may 
also request that the BIA allow a tribal court to prosecute trespass on 
Indian agricultural land.
    Subpart M of the proposed regulation would simply renumber existing 
regulations governing administration of leases on specific reservation 
lands; it does not propose to effect any changes to those existing 
provisions.

                     Cross Reference With Explanation From Current to Proposed New Citations
----------------------------------------------------------------------------------------------------------------
           Current citation                  New citation                Title                   Remarks
----------------------------------------------------------------------------------------------------------------
162.1................................  162.2..................  What key terms do I      More extensive
                                                                 need to know?            definitions listing.
162.2................................  162.70.................  Who may grant a lease?   Cross references
                                                                                          differing authorities
                                                                                          for granting leases.
                                       162.71.................  Who may represent an
                                                                 individual Indian
                                                                 landowner in grant a
                                                                 lease?
                                       162.72.................  May an emancipated
                                                                 minor grant a lease on
                                                                 his or her own Indian
                                                                 land?
                                       162.73.................  When may the Secretary
                                                                 grant permits on
                                                                 behalf of individual
                                                                 landowners?
162.3................................  162.70.................  Who can grant a lease?   Includes general
                                                                                          provisions for tribes,
                                                                                          Indian landowners, and
                                                                                          the BIA.
162.4................................  162.68.................  Do the parents or        Qualifies use as one
                                                                 guardian of minors who   that directly benefits
                                                                 own Indian land have     the children.
                                                                 to obtain a lease
                                                                 before using the land?
162.5(a).............................  162.18.................  Is there a standard      Plain language.
                                                                 lease form?
162.5(b).............................  162.83.................  How much rent must a     Includes exceptions to
                                                                 lessee pay?              fair annual rental
                                                                                          rate.
162.5(b)(1)..........................  162.80.................  What types of leases     Included under business
                                                                 are covered by this      leases as separate and
                                                                 subpart?                 apart from usual
                                                                                          agricultural
                                                                                          leaseholds.
162.5(b)(2)&(3)......................  162.83.................  How much rent must a     Includes lease payments
                                                                 lessee pay?              for less than fair
                                                                                          annual rental rate.
                                       162.152................  Will BIA ever grant or
                                                                 approve a lease at
                                                                 less than fair annual
                                                                 rental?
162.5(c).............................  162.45.................  Must a bond be           Plain language.
                                                                 submitted for a lease?
162.5(c)(1)(2)(3)....................  162.46.................  How do we determine the  Plain language.
                                                                 amount of the bond?
162.5(d).............................  162.51.................  Is insurance required    Describes types of
                                                                 for a lease?             insurance.
162.5(e).............................  162.27.................  How long is a lease      Plain language.
                                                                 term?
162.5(f).............................  162.41.................  To whom are lease
                                                                 payments paid?
                                       162.42.................  May a lessee send a      Describes current
                                                                 lease payment directly   practice. Comments are
                                                                 to the Indian            requested.
                                                                 landowner?
162.5(g)(1)(2)(3)....................  162.26.................  Are there specific       Same obligations, plain
                                                                 provisions that must     language.
                                                                 be included in a
                                                                 lease?

[[Page 43883]]

 
162.5(h)(1)(2).......................  162.42.................  May a lessee send a      Describes current
                                                                 lease payment directly   practice. Comments are
                                                                 to the Indian            requested.
                                                                 landowner?
162.6................................  162.10.................  How is a lease on        Includes negotiated &
                                                                 Indian land obtained?    bid leases.
162.7................................  162.10.................  How is a lease on        Includes negotiated &
                                                                 Indian land acquired?    bid leases.
162.8................................  162.27.................  How long is a lease      Includes all term
                                                                 term?                    variables.
162.9................................  162.30.................  What happens to          Plain language.
                                                                 improvements             Disposition of
                                                                 constructed on Indian    improvements in all
                                                                 lands when the lease     events.
                                                                 has been terminated?
                                       162.31.................  What happens if the
                                                                 improvements are not
                                                                 removed within the
                                                                 specified time period?
162.10...............................  162.17.................  Can more than one tract  Plain language.
                                                                 of land be combined
                                                                 into one lease?
162.11...............................  162.26.................  Are there specific       Conservation concerns
                                                                 provisions that must     inclusive in listing
                                                                 be included in a         of lease provisions.
                                                                 lease?
162.12(a)(b).........................  162.21.................  Can a lease be amended,  Plain language.
                                                                 modified, assigned,
                                                                 transferred, or
                                                                 sublet?
162.12(c)............................  162.22.................  Can a lease be used as   Plain language.
                                                                 collateral for a
                                                                 leasehold mortgage?
162.12(d)............................  162.25.................  Can the encumbrancer     Fuller explanation.
                                                                 assign the leasehold
                                                                 interest after a sale
                                                                 or foreclosure of an
                                                                 approved encumbrance?
162.13(a)............................  162.114................  Are there any other      Fuller explanation.
                                                                 administrative or
                                                                 tribal fees, taxes or
                                                                 assessments that must
                                                                 be paid?
162.13(b)............................  162.110................  Are there                Plain language.
                                                                 administrative fees
                                                                 for a lease?
162.13(b)(1)(2)......................  162.111................  How are administrative   Use of explanatory
                                                                 fees determined?         table.
162.14...............................  162.122................  What happens if a        Break-down of
                                                                 violation of a lease     explanation.
                                                                 occurs?
                                       162.123................  What will a written
                                                                 notice of violation
                                                                 contain?
162.15...............................  162.190................  Crow Reservation         Redesignated. No
                                                                                          change.
162.16...............................  162.191................  Fort Belknap             Redesignated. No
                                                                 Reservation              change.
162.17...............................  162.192................  Cabazon, Augustine, et   Redesignated. No
                                                                 al.                      change.
162.18...............................  162.193................  Colorado River           Redesignated. No
                                                                 Reservation              change.
162.20...............................  162.194................   Salt River and San      Redesignated. No
                                                                 Xavier Reservations      change.
New..................................  162.4-162.9............  Applicability of tribal  Clarifies current
                                                                 laws                     practice.
New..................................  162.14-162.16..........  Procedures for           Clarifies current
                                                                 recording lease          practice.
New..................................  162.36-162.43..........  Time and form of rental  Clarifies current
                                                                 payments                 practice
New..................................  162.50-162.52..........  Types/disposition of     Clarifies current
                                                                 bonds accepted           practice.
New..................................  162.80-162.91..........  General provisions of    Clarifies current
                                                                 business leases          practice.
New..................................  162.100-162.102........  Receipt and              Clarifies current
                                                                 distribution of rental   practice.
                                                                 payments
New..................................  162.124-162.127........  Process for curing       Clarifies current
                                                                 lease violations         practice.
New..................................  162.128-162.128........  Emergency actions by     Clarifies property
                                                                 the Secretary            protection
                                                                                          responsibility of the
                                                                                          Secretary.
New..................................  162.140-162.147........  Non-trust property       Clarifies current
                                                                 interests                practice.
New..................................  162.150-162.152........  Determination of fair    Clarifies current
                                                                 annual rental rate       practice.
New..................................  162.160-162.179........  Trespass Provisions      Responds to AIARMA
                                                                                          direction.
New..................................  162.180................  Who owns records         Responds to field
                                                                 associated w/this        question.
                                                                 part?
----------------------------------------------------------------------------------------------------------------

E. 25 CFR Part 166--Grazing Permits on Indian Lands

    The purpose of this part is to describe the authorities, policies 
and procedures the Secretary uses to grant, approve and administer 
grazing permits on agricultural lands that are restricted against 
alienation or are held by the United States in trust for federally 
recognized Indian tribes and individual Indians, and certain lands 
owned by the federal government. It revises and entirely replaces the 
existing part 166, and implements the AIARMA, 25 U.S.C. 3703, et seq., 
with regard to grazing

[[Page 43884]]

permits on Indian agricultural land and education in agriculture 
management.
    Under the mandate of section 301 of the AIARMA, in consultation 
with tribal representatives, the BIA developed a first draft of 
regulations to address grazing permits on Indian agricultural land in 
1994. The history of this process is described above under the proposed 
25 CFR Part 162--Leases and Permits on Indian Land.
    This proposed part balances the Secretary's responsibilities as 
trustee of Indian land and resources with the need for Indian tribes 
and individual Indian landowners to exercise control over their 
agricultural trust lands and business affairs. The proposed regulation 
is organized to include twelve subparts for the convenience of the 
reader. The expanded proposed sections would clarify existing policy 
and procedures governing the administration of grazing permits on 
Indian agricultural lands and is intended to bring consistency to the 
administration of grazing permits across the BIA. This part does not 
include surface leases and permits for purposes other than grazing, 
which are covered in the proposed part 162.
    Subpart A, ``Purpose and Definitions,'' defines key terms used 
throughout the proposed regulation. These terms are consistent with 
those found in the AIARMA.
    Subpart B, ``Grazing Permit Requirements,'' describes general 
requirements and principles for obtaining a permit, obtaining a permit 
(leasehold) mortgage, modifying and assigning a permit, and 
subpermitting. These general grazing permit provisions would be 
consistent with their corresponding leasing provisions proposed under 
25 CFR Part 162--Leases and Permits on Indian Land.
    The duration of permits is addressed in proposed Sec. 166.107. This 
section would recognize the authority of tribes to determine the 
duration of permits on tribal lands. Under the AIARMA, grazing permits 
would be generally granted for a period of ten years, unless a longer 
term of up to 25 years is appropriate.
    This proposed subpart would assert that the Department has 
constructive authority to grant or approve only permits of trust 
interests in Indian lands. Non-trust interests in Indian lands would be 
treated in the same manner as provided in the proposed 25 CFR Part 
162--Leases and Permits on Indian Land. Like the proposed provisions 
for part 162, the Secretary may have a non-trust obligation to the 
owners of the non-trust interests to account for the trust income 
received on behalf of Indian landowners from permits on the undivided 
lands. We request comments on how to resolve the conflict between the 
owners of non-trust interests on undivided lands, and the Secretary's 
trust responsibility to Indian landowners.
    To ensure the preservation and proper use of trust lands, the 
proposed subpart B would make clear that, under the AIARMA, the 
Secretary would require permittees to conduct grazing operations in 
accordance with tribal goals and priorities for multiple use, sustained 
yield, agricultural resource management planning and sound conservation 
practices. Subpart B would also require permittees to fulfill all 
financial obligations to the Indian landowners and to conduct only 
those activities authorized by the grazing permit. Failure by a 
permittee to meet these expectations may result in an imposition of 
fines or penalties under subpart H, ``Permit Violations'' or subpart I, 
``Trespass'' of the proposed regulation to protect the interests of the 
Indian landowners.
    Subpart C, ``Land Operations and Management,'' describes how the 
BIA proposes to clarify how range units and grazing capacity are 
established in consultation with Indian landowners. Section 166.205 of 
the subpart changes current practice in that the BIA would no longer 
include non-permitted land in the calculation of grazing capacity, but 
rather would limit the determination of grazing capacity to the Indian 
land that is included in the permit.
    All grazing permits issued under this proposed part would have to 
be consistent with an agricultural resource management plan prepared, 
in accordance with the AIARMA, by a tribe or by the BIA in consultation 
with a tribe. To ensure that a permittee's intended objectives 
regarding animal husbandry and other grazing issues represent sound 
practice, the regulation proposes that a conservation management plan 
be developed for each permit. The conservation management plan would be 
consistent with the tribe's approved agricultural resource management 
plan.
    Subpart D, ``Tribal Policies and Laws Pertaining to Permits,'' 
consistent with the AIARMA, would make clear that when authorized by an 
appropriate tribal resolution, the Secretary will comply with certain 
general policies pertaining to permitting on Indian agricultural lands 
as described above with respect to the proposed regulations for 25 CFR 
Part 162-Leases and Permits on Indian Land. Also consistent with the 
AIARMA and the proposed regulations for part 162, the proposed subpart 
D would provide that the Indian landowners of at least 50% of the 
beneficial interest in a tract of agricultural land could exempt their 
land from the Secretary's implementation of a tribe's general policy by 
submitting a written request to the BIA.
    Under proposed subpart D, tribal law and ordinances, including laws 
regulating the environment, cultural or historic preservation, land use 
and other activities under tribal jurisdiction, will apply to grazing 
permits on Indian agricultural lands unless such tribal laws and 
ordinances are prohibited by federal law. Tribes are responsible for 
enforcing tribal laws and ordinances pertaining to Indian agricultural 
lands with the assistance of the Secretary.
    Subpart E, ``Grazing Rental Rates,'' would preserve the ability of 
tribes to establish grazing rental rates on tribal lands. The BIA would 
continue to set the grazing rental rates for individually owned Indian 
land. The subpart clarifies the procedures by which tribes may set 
grazing rental rates higher or lower than BIA's established fair annual 
rental rate.
    As trustee, the Secretary must determine the fair annual rental 
value of Indian trust lands in order to assist Indian landowners in 
negotiating permits with potential permittees and to determine if a 
permit is in the best interest of the landowner. The proposed subpart E 
clarifies that the BIA would determine fair annual rental value for 
grazing permits on trust lands by appraisal, advertisement, competitive 
bidding or any other appropriate method that complies with the Uniform 
Standards of Professional Appraisal Practices (USPAP). The BIA does not 
intend to specify in part 166 the particular method for appraising 
trust land; rather, ensuring flexibility in choosing an appraisal 
method would allow the Secretary to most effectively discharge his 
responsibility as trustee.
    As they have with regard to the proposed 25 CFR Part 162--Leases 
and Permits on Indian Land, many tribes have expressed a desire that 
grazing rental payments be made directly to Indian landowners under 
this proposed part. As stated with regard to the proposed 25 CFR part 
162, we recognize the utility of direct payments and do not propose to 
alter the practice at this time. Nevertheless, we continue to struggle 
to fashion a system that accommodates both the ability of the Indian 
landowner to receive lease payments directly from the lessee and the 
Secretary's legal obligation under the American Indian Trust Fund 
Management Reform Act to account for that income. The BIA

[[Page 43885]]

believes that it may be sufficient to satisfy both interests by 
establishing direct payment arrangements for leases on tribal lands 
through contracts or compacts under the Self Determination Act. The BIA 
requests comments on: (1) The continued need for direct payments on 
tribal and individual Indian lands; (2) the advisability of contracts 
or compacts under the Self Determination Act as the sole method for 
direct payments to tribes; and (3) the compatibility of such payments 
with the Secretary's legal obligation as trustee to obtain the 
information regarding payment history that is needed to perform the 
necessary accounting.
    In subpart E, Sec. 166.425 also proposes that the BIA would prorate 
grazing rental payments made to each owner according to his or her 
fractional share of each permitted tract of Indian agricultural land. 
Several tribes have suggested that the BIA should apportion grazing 
permit revenues to beneficiaries based on the productivity of a tract 
in situations where the grazing permit includes several discreet 
parcels of land. Recognizing that the method used for distributing 
trust income has significant impact on Indian landowners, the BIA 
requests comments on methods to prorate grazing rental payments in this 
manner.
    Subpart F, ``Administrative and Tribal Fees,'' would provide a 
schedule of administrative fees, which varies based on the dollar value 
of the permit. The subpart provides a minimum and maximum 
administrative fee amount. The BIA would continue to be able to waive 
such administrative fees. This subpart also would acknowledge that 
tribes may establish and collect their own administrative fees.
    Subpart G, ``Bonding and Insurance Requirements'', would clarify 
current BIA practices by requiring that a bond be provided for each 
permit acquired to ensure performance and compliance with permit terms. 
Upon request of an Indian landowner, the BIA may waive the bond 
requirement. For permits on tribal lands, the proposed subpart 
recognizes the tribe's ability to negotiate the form of the bond.
    Subpart H, ``Violations,'' would provide for action to be taken by 
the Secretary should we learn that a violation of the terms of a 
grazing permit has occurred. This subpart is the same as the 
requirements stated above in the proposed 25 CFR Part 162-Leases and 
Permits on Indian Land.
    Subpart I, ``Trespass,'' defines trespass under a grazing permit to 
include any unauthorized occupancy, use of or action on Indian 
agricultural or government lands assigned to the control of a tribe. 
Like the proposed 25 CFR part 162-Leases and Permits on Indian Land, 
above, this subpart would describe the process for trespass 
notification, enforcement, actions and penalties, damages and costs.
    Subpart J, ``Appeals,'' notifies readers that BIA decisions may be 
appealed under 25 CFR part 2.
    Subpart K, ``Records'' clarifies that records generated for the 
fulfillment of this part are the property of the United States and must 
be maintained according to approved records retention procedures.
    Subpart L, Agriculture Education, Education Assistance, 
Recruitment, and Training would outline the provisions for implementing 
subchapter II of the AIARMA, Education in Agriculture Management.

                       Cross Reference With Explanation From Current to Proposed Citations
----------------------------------------------------------------------------------------------------------------
           Current citation                  New citation                Title                   Remarks
----------------------------------------------------------------------------------------------------------------
166.1................................  166.002................  What terms do I need to  More extensive
                                                                 know?.                   definition listing.
166.2................................  (\1\)..................  Authority..............  Listing of citations
                                                                                          only. No narrative
                                                                                          provided.
166.3................................  166.001................  What is the purpose of   Encompasses objectives
                                                                 this part?.              and goals of
                                                                                          rulemaking.
166.4................................  166.106................  What provisions must be  Permit forms include
                                                                 contained in a permit?   all necessary
                                                                                          information on
                                                                                          applicable
                                                                                          regulations,
                                                                                          exemptions, and scope
                                                                                          of activity permitted
                                                                                          through the form.
                                       166.300................  What tribal policies     Qualifies tribal
                                                                 will we apply to         jurisdiction over
                                                                 permitting on Indian     permitting process.
                                                                 agricultural lands?.
166.5................................  166.202................  How is a range unit      Plain language.
                                                                 created?.
166.6................................  166.204................  When is grazing          Plain language.
                                                                 capacity determined?.
166.7................................  166.102................  Who can grant a permit?  Incorporates authority
                                                                                          of the BIA to grant
                                                                                          permits on certain
                                                                                          lands.
166.8................................  166.100................  Must Indian owners of    Explains those lands
                                                                 Indian land obtain a     exempt from BIA permit
                                                                 permit before using      requirements.
                                                                 land for grazing
                                                                 purposes?.
166.9................................  166.102(b).............  Who can grant a permit?  Explains BIA authority
                                                                                          to grant permits to
                                                                                          various individuals
                                                                                          upon permission from
                                                                                          tribe or court(s) of
                                                                                          competent
                                                                                          jurisdiction.
166.10...............................  166.118................  How do I acquire a       More detailed
                                                                 permit through tribal    explanation of
                                                                 allocation?              eligibility
                                                                                          requirements for
                                                                                          tribal allocations.
166.11(a)............................  166.117................   How do I acquire a      Plain language.
                                                                 permit on Indian land?
166.11(b)............................  166.118................  How do I acquire a       Plain language.
                                                                 permit through tribal
                                                                 allocation?
                                       116.119................  How do I acquire a       Plain language.
                                                                 permit through
                                                                 negotiation?

[[Page 43886]]

 
166.12...............................  166.206................  What livestock can I     Plain language.
                                                                 graze on permitted
                                                                 Indian land?
166.13...............................  166.401................  How does the Secretary   More detailed
                                                                 establish grazing        explanation given.
                                                                 rental rates?
                                       166.404................  Whose grazing rental
                                                                 rate will be
                                                                 applicable for a
                                                                 permit on tribal land?
                                       166.405................  Whose grazing rental
                                                                 rate will be
                                                                 applicable for a
                                                                 permit on individually
                                                                 owned Indian land?
                                       166.406................  Whose grazing rental
                                                                 rate will be
                                                                 applicable for a
                                                                 permit on government
                                                                 land?
166.14...............................  166.107................  How long is a permit     Plain language.
                                                                 term?
166.15(a)............................  166.136................  How can Indian land be   More detailed
                                                                 removed from an          explanation of
                                                                 existing permit?         removal, notices,
                                                                                          forms, and time-lines
                                                                                          for processing.
                                       166.138................  Other than to remove     Plain language.
                                                                 land, how can a permit
                                                                 be amended, modified,
                                                                 assigned, transferred,
                                                                 or subpermitted?
166.15(b)............................  166.702................  What happens if a        Plain language.
                                                                 violation of a permit
                                                                 occurs?
166.16...............................  166.112................  Must I comply with any   Incorporates
                                                                 standards of conduct     conservation and other
                                                                 if I am granted a        resource protections.
                                                                 permit?
166.17...............................  166.208................  Can improvements be      More detailed
                                                                 constructed on           explanation of issue.
                                                                 permitted Indian land?
                                       166.209................  What happens to
                                                                 improvements
                                                                 constructed on Indian
                                                                 lands when the permit
                                                                 has been terminated?
166.18...............................  166.504................  Are there any other      More detailed fee
                                                                 administrative or        structure with
                                                                 tribal fees, taxes, or   extensive
                                                                 assessments that must    explanations.
                                                                 be paid?
                                       166.502................  Are administrative fees
                                                                 refundable?
166.19...............................  166.112................  Must I comply with any   Incorporates legal
                                                                 standards of conduct     parameters for holding
                                                                 if I am granted a        a lease.
                                                                 permit?
166.20(a)............................  166.600................  Must a permittee         Plain language
                                                                 provide a bond for a
                                                                 permit?
166.20(b)............................  166.607................  What types of insurance  Plain language.
                                                                 may be required?
166.21...............................  166.421................  May a permittee make a   Qualifies when advance
                                                                 grazing rental payment   payment may be made--
                                                                 in advance of the due    not before 30 days
                                                                 date?                    before lease goes into
                                                                                          effect.
166.22...............................  166.504................  Are there any other      Plain language.
                                                                 administrative and or
                                                                 tribal fees, taxes, or
                                                                 assessments that must
                                                                 be paid?
166.23...............................  166.205................  Will grazing capacity    Plain language.
                                                                 be increased if I
                                                                 graze adjacent trust
                                                                 or non-trust range-
                                                                 lands not covered by
                                                                 the permit?
166.24...............................  166.800-819............  Subpart I--Trespass....  Amended and replaced in
                                                                                          its entirety. New
                                                                                          subpart has sections
                                                                                          to address policy,
                                                                                          notification, actions
                                                                                          upon a finding of
                                                                                          trespass, penalties
                                                                                          and costs.
166.25...............................  166.207................  What must a permittee    Plain language.
                                                                 do to protect
                                                                 livestock from
                                                                 exposure to disease?
New..................................  166.124................  Can I use a permit as    Clarifies existing
                                                                 collateral for a loan?   practice.
New..................................  166.128-135............  Non-trust interests....  Provides uniform
                                                                                          guidance on dealing w/
                                                                                          lands which have non-
                                                                                          trust status for
                                                                                          permitting.
New..................................  166.300-304............  Tribal policies and      Recognizes and
                                                                 laws pertaining to       clarifies existing
                                                                 permits.                 practice.
New..................................  166.410-422............  Rental payments........  Clarifies existing
                                                                                          practice.
New..................................  166.601-605............  Bonding requirements...  Explains forms of
                                                                                          surety bonds.

[[Page 43887]]

 
New..................................  166.701-703............  Notice of violation      Clarifies existing
                                                                 provisions.              practice.
New..................................  166.1100-1110..........  Education provisions...  Responds to AIARMA
                                                                                          direction.
----------------------------------------------------------------------------------------------------------------
\1\Authority.

III. Public Comments

    The amendments proposed in this rulemaking constitute primarily 
technical and conforming changes resulting from the reorganization of 
parts 15, 115, 162, and 166 and implementation of statutory 
requirements. Many of these revisions are simply plain language 
changes; however, greater detail and explanation has been included in 
all the revised parts. Additionally, new sections within these parts 
address current practice in the field and they are included here to 
ensure a uniform implementation of Departmental policy and procedure 
for certain issues. The public is invited to make substantive comment 
on any of these changes, whether they be with respect to organization 
or substance.
    Two copies of written comments should be submitted to the address 
indicated in the ADDRESSES section of this notice. All comments 
received will be available for public inspection at the Department of 
the Interior, Office of the Secretary, MS 7214 MIB, Washington, DC 
20240. Comments may also be telefaxed to the following number: 406/329-
3021. Email comments will be accepted at: [email protected] 
All written comments received by the date indicated in the DATES 
section of this notice and all other relevant information in the record 
will be carefully assessed and fully considered prior to publication of 
the final rule. Any information considered to be confidential must be 
so identified and submitted in writing, one copy only. The Department 
of the Interior reserves the right to determine the confidential status 
of the information and to treat it according to our determination (See 
10 CFR 1004.11).
    The Department has concluded that this proposed rule does not 
involve a substantial issue of fact or law and that the proposed rule 
should not have substantial impact on the nation's economy or a large 
number of individuals or businesses. Nevertheless, the Department does 
plan to hold consultation meetings with impacted tribes, Indian 
individuals, and tribal entities at given locations as will be noticed 
by the various regional offices of the BIA. All tribal and non-tribal 
persons having interest in this rulemaking are encouraged to 
participate in these consultations.

IV. Procedural Requirements

A. Review Under Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the BIA 
must determine whether the regulatory action is ``significant'' and 
therefore subject to OMB review and the requirements of the Executive 
Order. The Order defines ``significant regulatory action'' as one that 
is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    The rule describes how the federal government will administer its 
trust responsibility in managing the trust fund accounts. Thus, the 
impact of the rule is confined to the federal government and the Indian 
trust beneficiaries and does not impose a compliance burden on the 
economy generally. Accordingly, it has been determined that this rule 
is not a ``significant regulatory action'' from an economic standpoint, 
or otherwise creates any inconsistencies or budgetary impacts to any 
other agency or federal program. However, the Department has submitted 
the revised part 115, Trust Funds for Tribes and Individual Indians, 
for review by the Office of Information and Regulatory Affairs of the 
Office of Management and Budget (OMB) as a significant policy matter 
impacting all federally-recognized Indian tribes and individual 
Indians. This decision was made because of the magnitude of the monies 
involved in Indian trust matters and the notion that any revisions to 
existing regulations that impact trust account management could have 
significant impacts on tribal governments, communities and individual 
Indians. The Department conducted an economic analysis of the revisions 
to part 115 and found that there were significant benefits in 
management, security and reporting of trust accounts and only small 
increases on tribal governments or individual Indians. The increased 
benefits are better identification of funds, ability to gain 
performance reports on tribal or individual accounts, clarifications in 
what funds could be deposited into such accounts, better distribution 
procedures, and clarifications on when and how such accounts could be 
restricted or otherwise encumbered. The revisions were found to have 
potential for administrative savings. The Department is especially 
interested in receiving comments on the revisions to part 115 and 
whether the administrative and technical clarifications address tribal 
concerns for better management of funds held in trust.

B. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. With regard to the review 
required by section 3(a), section (b) of Executive Order 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation: (1) Clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses other important issues affecting clarity 
and general draftsmanship under any guidelines

[[Page 43888]]

issued by the Attorney General. Section 3(c) of Executive Order 12988 
requires Executive agencies to review regulations in light of 
applicable standards in section 3(a) and section 3(b) to determine 
whether they are met or it is unreasonable to meet one or more of them. 
The Department of the Interior has determined that, to the extent 
permitted by law, the proposed regulation meets the relevant standards 
of Executive Order 12988.

C. Review Under the Regulatory Flexibility Act

    This proposed rule was reviewed under the Regulatory Flexibility 
Act, 5 U.S.C. 601 et seq., which requires preparation of a regulatory 
flexibility analysis for any rule which is likely to have significant 
economic impact on a substantial number of small entities. This 
proposed rule streamlines the Department's policies, procedures, 
provisions and clauses that apply to certain Indian trust resources. 
Indian tribes are not small entities under the Regulatory Flexibility 
Act. Any impacts on identified small entities affected by this proposed 
rulemaking are minimal as they would concern a small number of farmers, 
ranchers, and individuals doing business on Indian lands (e.g., 
convenience stores, gasoline stations, sundry shops). Accordingly, the 
Department of the Interior has determined that this proposed regulation 
will not have a significant economic impact on a substantial number of 
small entities, and, therefore, no regulatory flexibility analysis has 
been prepared.

D. Review Under the Small Business Regulatory Enforcement Fairness Act 
of 1996 (SBREFA)

    This proposed rule is not a major rule as defined by section 804 of 
the Small Business Regulatory Enforcement Fairness Act of 1996. This 
proposed rule will not result in an annual effect on the economy of 
$100,000,000 or more. The Department is treating each revised part as a 
unit of the proposed rulemaking and no one unit has an economic impact 
of $100,000,000 or more. The revised parts represent programs that are 
ongoing within the BIA and no new monies are being introduced into the 
stream of commerce. This proposed rule will not result in a major 
increase in costs or prices. The effect of this proposed rulemaking 
will be to streamline ongoing policies, procedures and management 
operations of the BIA in their handling of tribal and individual Indian 
trust resources. No increases in costs for administration will, 
therefore, be realized and no prices would be impacted through these 
administrative and technical clarifications of existing field practice. 
This proposed rulemaking will not result in any significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of the United States-based companies to 
compete with foreign-based companies in domestic and export markets. 
The impact of the proposed rulemaking will be realized by tribal 
governments and individual Indians having a protected trust resource. 
These administrative and technical clarifications of Departmental 
policy and procedure will not otherwise have a significant impact any 
other small business businesses or enterprises.

E. Review Under the Paperwork Reduction Act

    This proposed regulation requires an information collection from 10 
or more parties and a submission under the Paperwork Reduction Act of 
1995, Public Law 104-13, is required. An OMB form 83-I has been 
reviewed by the Department and sent to OMB for approval. As part of the 
Department's continuing effort to reduce paperwork burdens, the 
Department invites the general public to take this opportunity to 
comment to the Office of Management and Budget (OMB) on the information 
collections contained in this proposed rulemaking, as required by the 
Paperwork Reduction Act. Such comments should be sent to the following 
address: Attention--Desk Officer for the Interior Department, Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
Docket Library, Room 10102, 725 17th Street, NW, Washington, DC 20503. 
Please also send a copy of your comments to the Department at the 
location noted under the heading ADDRESSES. OMB has up to 60 days to 
approve or disapprove the information collections but may respond after 
30 days; therefore, public comments to OMB should be submitted within 
30 days in order to assure their maximum consideration. Comments should 
address: (1) Whether the proposed collection of information is 
necessary for the proper performance of the functions of the BIA, 
including whether the information shall have practical utility; (2) the 
accuracy of the BIA's burden estimates; (3) ways to enhance the 
quality, utility, and clarity of the information collected; and (4) 
ways to minimize the burden of the collection of information on the 
respondents, including the use of automated collection techniques or 
other forms of information technology. The information collection will 
be used to enable the BIA to better administer the programs subject to 
this rulemaking (Indian probate, funds held in trust for tribal 
governments and individual Indians, leasing/permitting, and grazing 
permits). In all instances, the Department has strived to lessen the 
burden on the constituent public and ask for only that information that 
is absolutely essential to the appropriate administration of the 
programs affected and in keeping with the Department's fiduciary 
responsibility to federally-recognized tribes.
    A synopsis of the information collection burdens for all four parts 
proposed for regulatory revision are provided below. Take note of the 
variables used in each information collection estimate--in some 
instances the standard used for measurement will be a fixed number of 
occurrences gathered from our various annual reports (e.g., number of 
probates, number of leases, number of permits, number of account 
holders, number of appeals in a given year). The explanatory summary of 
each information collection section identified will indicate what 
measurable standard has been used as a baseline for further 
calculations of burden hours (both public and government) and 
operations and maintenance costs to the government. Burden is defined 
as the total time, effort, or financial resources expended (including 
filing fees) by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency.

                                             Estimated Burden Hours
----------------------------------------------------------------------------------------------------------------
                                                                                                   Total annual
             CFR section                 Number of     Responses per     Burden per  response         burden
                                        respondents     respondent                                    (hours)
----------------------------------------------------------------------------------------------------------------
15.4  Notice of Recordkeeping\1\....               1           3,164  1 minute..................              53
15.101  Reporting req.--death                  3,164               1  4 hours...................          12,656
 certificate.

[[Page 43889]]

 
15.104  Reporting funeral                      2,373               1  2 hours...................           4,746
 expenses(\3/4\).
15.105  Provide probate documents...           3,164               1  40 hours..................         126,560
15.109  Provide disclaimer                       791               1  1 hour....................             791
 information (\1/4\).
15.202  Required elements in probate               1           3,164  40 hours..................         126,560
 form\1\.
15.203  Provide response to                    3,164               1  5 minutes.................             264
 transmittal.
15.303  Provide info. on creditor             18,984               1  30 minutes................           9,492
 claim (6 per probate).
15.305  Provide info. for priority                 1          12,656  30 minutes................           6,328
 claims\1\ (4 per probate).
15.402  Provide info. for filing                 791               1  2 hours...................           1,582
 appeal (\1/4\).
15.405  Provide info. for                        158               1  2 hours...................            316
 extraordinary appeal process.
----------------------------------------------------------------------------------------------------------------
\1\ Indicates Government responsibility in whole or part.
Note: For purposes of this part only, we have used the number 3,164 as the number of decedents' estates that are
  probated on the average each year. The cost of reporting and recordkeeping by the public is estimated to be
  approximately $10/hour. We have used this figure as a medium figure that would indicate the cost of having a
  form typed, the cost of taking an hour's time off work, the cost of using one's vehicle, plus time spent on
  the activity, and other miscellaneous costs that may be associated with obtaining the information needed to
  fulfill this part's information collection requirements. Costs of operation and maintenance for the government
  were based, for purposes of an average, upon a GS 9/5 salaried person @$40,017/year or a cost of $19.24/hour.

Summary

Section 15.4  Will the Department probate all the property in Indian 
estates?

    This section notifies the general public and Indian individuals 
that the Bureau will only probate trust or restricted property of an 
Indian decedent. We will not probate: (1) Real or personal property in 
an estate of an Indian decedent that is not trust or restricted 
property; (2) restricted property derived from allotments in the 
estates of members of the Five Civilized Tribes; and (3) trust or 
restricted interests derived from allotments made to Osage Indians in 
Oklahoma and Osage Headright interests. (It would take approximately 
one minute to inform an individual of the above.)
    Burden hours = number of probates per year (3,164) divided by 60 
minutes = # burden hours per year (53). Burden dollars based on a GS-9/
5 @$40,017 per year. $40,017 divided by # of pay periods per year (26) 
= $1,539.24 divided by # hours per pay period (80) = cost per hour 
($19.24). Total annual burden dollars to the government (operations and 
management) = 53 hours @$19.24 = $1,019.72.

Section 15.101  How do I begin the BIA probate process?

    This section tells an individual to report the death of an Indian 
by bringing in a death certificate to the nearest BIA agency or 
regional office as soon as possible. If a death certificate does not 
exist, they are to provide (1) a copy of the obituary notice from a 
local newspaper; (2) an affidavit of death prepared by someone who 
knows about the decedent; or (3) any other document that the BIA 
accepts that verifies the death, such as a church record or a court 
record. (Death certificates may be obtained from funeral homes, 
hospitals, coroner, or State Department of Vital Statitistics.) Cost 
may vary from $.25 for a photocopy to $25.00 for a certified copy. The 
time involved to obtain a death certificate may range from a five 
minute telephone call to an all day trip to the State Capital. To 
compute burden hours and burden costs, we will use the mid-range cost 
of $10.00 and four hours.
    Burden hours = 4 hours multiplied by the number of probates per 
year (3,164) = 12,656. Note: Approximately 90 percent (%) of the death 
certificates are supplied by the general public. Ninety percent of 
12,656 = 11,390.40 burden hours. The BIA obtains approximately 10 
percent (%) of 12,656 = 1,265 burden hours.
    Burden costs based on a $10 death certificate multiplied by the 
total number of probates per year (3,164) = $31,640. Approximately 90 
percent (%) of this cost is to the general public for a total of 
$28,476 and 10% to the BIA for a total of $3,614 to the government.

Section 15.104  Can I get assistance immediately for funeral expenses?

    This section states that if an individual is responsible for making 
funeral arrangements of a decedent who had an IIM account, the BIA may 
release up to $1,000 for funeral expenses if certain conditions are 
met. To apply for this benefit, the individual must submit (1) an 
original itemized receipt, contract or statement for each service; and 
(2) an affidavit signed by the vendor stating that the service provided 
is a necessary funeral expense. (We estimate that approximately \3/4\ 
of the respondents will request this service.) Itemized statements may 
take from 5 minutes for computer generated originals to 2 hours for a 
hand written statement. We use 2 hours here.
    Burden hours = \3/4\ of 3,164 = 2,373 respondents  x  2 hours = 
4,746 burden hours and a cost of $47,460 to the public.

Section 15.105  Do I need to give the BIA any other documents?

    This section requires that respondents supply the BIA with 
approximately 12 documents, if available. We estimate that it would 
take respondents approximately 40 hours to acquire all the documents.
    Burden hours = 3,164 respondents  x  40 hours = 126,560 and a 
maximum cost to the public of $1,265,600.

Section 15.109  Can I give up my interest if I am an heir?

    This section states that if an individual wishes to give up their 
interest in an estate, they must file a notarized statement to the 
probate specialist. This should take approximately 1 hour to complete 
and submit to the BIA. Approximately \1/4\ of the heirs will sign this 
type of statement.
    Burden hours = \1/4\  x  3,164 = 791  x  1 hour = 791 and a cost of 
$7,910 to the public.

Section 15.202  What must the probate package contain?

    This section lists all the documents that must be included in a 
probate package. It takes the BIA approximately 40 hours to assemble 
all documents, review for accuracy, arrange in order, make additional 
copies, etc.

[[Page 43890]]

    Burden hours = 3,164 probates  x  40 hours = 126,560. This 
represents a total operations and maintenance cost to the government of 
$2,437,014.

Section 15.203  What happens after BIA prepares the probate package?

    Within 120 days the probate specialist will review the probate 
package and determine whether to send it to the Attorney-Decision maker 
or the Administrative Law Judge. If we send the probate package to the 
Attorney-Decision maker, we will notify all potential heirs that they 
have 20 days in which to tell us that they want a hearing. We estimate 
that it would take approximately 5 minutes to check the appropriate 
square on the notice form and prepare an envelope for mailing.
    Burden hours = 3,164  x  5 minutes = 264 and a cost of $2,640 to 
the public.

Section 15.303  If the decedent owed me money, how do I file a claim?

    In this section we explain how to submit a claim if the decedent 
owed you money. We estimate that there would be approximately 6 claims 
per probate and that it would take approximately \1/2\ hour to fill out 
an itemized statement and make 2 copies.
    Burden hours = 6  x  3,164 = 18,984 respondents divided by \1/2\ 
hour = 9,492 and a cost of $94,920 to the public.

Section 15.305  Which claims will be paid first?

    We will pay 4 priority claims first: (1) Funeral expenses; (2) 
medical expenses for last illness; (3) nursing home or other care 
facility; and (4) claims of the U.S. Government.
    Burden hours = 4 respondents per probate = 12,656 divided by \1/2\ 
hour = 6,328 hours. This represents a total operations and maintenance 
cost to the government of approximately $121,749.

Section 15.402  How do I file an appeal?

    This section explains how to file an appeal. We estimate that 
approximately \1/4\ of the probate cases will be appealed. It should 
not take over 2 hours to write out a statement of reasons for appeal.
    Burden hours = \1/4\ of 3,164 = 791 respondents  x  2 hours = 1,582 
and a cost of $15,820 to the public.

Section 15.405  If I miss the 60-day appeal period, do I have any other 
rights?

    We estimate that approximately 5% of 3,164 probates will be 
appealed under the extraordinary appeal process.
    Burden hours = 5% of 3,164 = 158  x  2 hours = 316 and a cost of 
$3,160 to the public.

                                            Estimated Burden Hours 1
----------------------------------------------------------------------------------------------------------------
                                                                                    Burden per     Total annual
                   CFR section                       Number of     Responses per     response         burden
                                                    respondents     respondent        (hours)         (hours)
----------------------------------------------------------------------------------------------------------------
115.108  Provide court order to deposit monies           285,000               1           \1/2\         142,500
 in trust account...............................
115.205  Submit an annual plan prior to                      500               1         16\1/2\           8,250
 distribution of trust funds....................
115.210  BIA certifies distribution 1...........               1           1,400           \1/2\             700
115.214  Provide info. on unclaimed per capita                75               1           \1/2\         37\1/2\
 money..........................................
115.219  Provide form for withdrawal............             500               1          1\1/4\             625
115.320  Provide claim form to stop payment of           285,000               1           \1/2\         142,500
 check..........................................
115.328  Provide form for withdrawal of IIM              285,000               1           \1/2\         142,500
 funds..........................................
115.338  Provide info. on funeral expenses......         285,000               1           \1/2\         142,500
115.343  Guardian form contents.................               1           1,425             N/A             N/A
115.353  Form for Social Service Assessment 1...               1           5,700              10          57,000
115.355  Provide info. on appeal request........         285,000               1               1         285,000
115.360  Record keeping req. Review receipts 1..               1           5,700               3          17,100
115.363  Provide info. prior to withdrawal of              1,425               1           \1/2\             712
 minor's account................................
115.372  Provide info. to restrict your account.         285,000               1               1         285,000
115.506  Provide form for hearing...............         285,000               1          1\1/2\        427,500
----------------------------------------------------------------------------------------------------------------
1 Indicates Government responsibility in whole or part.
Note: For purposes of this part only, we have used the number 500 where referring to the estimated tribal
  respondents. Not all federally-recognized tribes will be making distribution requests; however, the majority
  will have to provide some information to the BIA to receive a benefit from their accounts. The number of
  individual respondents is noted, in most instances, as 285,000 which is the number of individual Indian
  accounts on file. While not all individual Indians will make requests from the BIA for some action on their
  accounts, we have included the total number here to indicate that they might make such requests. Where the
  section could apply to both individual Indian accounts and tribal accounts (there are 1,400 tribal accounts),
  the respondent number is identified as 287,000. The cost of reporting and recordkeeping by the public is
  estimated to be approximately $10/hour. We have used this figure as a medium figure that would indicate the
  cost of having a form typed, the cost of taking an hour's time off work, the cost of using one's vehicle, plus
  time spent on the activity, and other miscellaneous costs that may be associated with obtaining the
  information needed to fulfill this part's information collection requirements. The large cost to the public
  would be realized ONLY if all account holders were providing information to receive a particular benefit.
  While we do not anticipate this occurrence, we have estimated for the maximum cost to the public for purposes
  of this review. Costs of operation and maintenance for the government were based, for purposes of an average,
  upon a GS 9/5 salaried person @$40,017/year or a cost of $19.24/hour.

Summary

Section 115.108  When funds are awarded or assessed by a court of 
competent jurisdiction involving trust lands or resources, what 
documentation is required to deposit the funds into a trust account?

    This section requires that the respondent forward to OTFM a court 
order to have certain monies deposited into individual Indian or tribal 
accounts. The tribe is allowed to deposit these monies into their trust 
accounts only if it is operating a program under the Indian Self-
Determination and Education Assistance Act.
    Burden hours = 287,000 individual Indian and tribal respondents  x  
\1/2\ hour = 142,500 hours and a cost of $1,425,000.

Section 115.205  Does a tribe have to submit an annual budget for use 
of its trust funds?

    Approximately 500 tribes would submit an annual plan, even though 
not specifically required to do so, showing projected cash flow needs. 
This enables OTFM to plan investments accordingly. This task would 
involve a tribal account to spend approximately 16\1/2\ hours (2 
working days) to make such assessments. Approval by the tribal council 
or other appropriate tribal

[[Page 43891]]

governing body is not included in this burden estimate.
    Burden hours = 500 tribal entities  x  16\1/2\ hours = 8,250 hours 
and a cost of $82,500.

Section 115.210  How will the BIA assist in the administration of 
tribal judgment fund accounts?

    The BIA will certify a tribal request for distribution of judgment 
funds. The review of a tribal request is typically made pursuant to a 
tribal distribution plan. The plan has been reviewed beforehand, as a 
rule, and the certification here would not involve a time burden 
greater than \1/2\ hour per request for the government at a cost of 
approximately $13,468.00 (\1/2\ hour  x  700 hours  x  $19.24/hour).

Section 115.214  May the OTFM return money in a tribal per capita 
account to a tribal account?

    In the rare instance where tribes have not already filed for a 
return of unclaimed judgment fund accounts, the procedure pursuant to 
Pub. L. 87-283 would only require \1/2\ hour to complete--once accounts 
have been identified. We estimate approximately 75 tribes would have 
such unclaimed judgment fund accounts necessitating information 
collection authorization, the completion of a form particular to Pub. 
L. 87-283.
    Burden hours = 75 tribal entities  x  \1/2\ hour = 37\1/2\ hours 
and a cost of $375.

Section 115.219  How does a tribe request money from its trust account?

    This provision describes the process involved with tribal requests 
for funds distribution. Preparing the request and having it signed will 
take approximately \1/2\ hour. Drafting a tribal resolution and then 
having it voted through by a tribal executive action would entail 
approximately 1 additional hour. The alternative authorization noted in 
25 CFR 1200 (B) would entail \1/2\ hour preparation by a tribal 
employee. We estimate a 50/50 split on time with respect to passing a 
tribal resolution or completing an application pursuant to 25 CFR 
1200(B).
    Burden hours = 500 tribes  x  1\1/4\ hours (the difference between 
a tribal resolution and 25 CFR 1200(B)) = 625 hours and a cost of 
$6,250.

Section 115.320  What happens if I lose my check or I do not receive my 
check because it was stolen?

    All 285,000 individual IIM account holders may claim a lost or 
stolen check, request a copy of a canceled check, or ask for a stop 
payment on a check. In any instance, this would not have an hour burden 
greater than \1/2\ hour to file the proper notice/request for such 
service.
    Burden hours = 285,000 accounts  x  \1/2\ hour = 142,500 hours and 
a cost of $1,425,000 to the public.

Section 115.328  How do I withdraw money from my IIM account?

    These provisions allow individual Indian money account holders to 
withdraw monies from their account upon a written request. All 285,000 
individual Indian money account holders could ask for certain 
withdrawals from their unrestricted accounts. This direction to the 
Secretary would take approximately \1/2\ hour.
    Burden hours = 285,000 account holders  x  \1/2\ hour = 142,500 
hours and a cost of $1,425,000 to the public.

Section 115.338  May money in an IIM account be withdrawn after the 
death of an account holder but prior to the end of the probate 
proceedings?

    Upon proper authorization, designated persons may apply for 
emergency funeral expenses (up to $1,000) from an Indian decedent's IIM 
account. These expenses will only be paid to the vendor and not to the 
individual requesting the monies. All 285,000 account holders (or those 
making their funeral arrangements) may avail themselves of this special 
distribution of an IIM account under probate. The person making such a 
request must submit information on the nature of the expense and the 
person to whom payment is to be directly made.
    Burden hours = 285,000 account holders  x  \1/2\ hour = 142,500 
hours and a cost of $1,425,000 to the public.

Section 115.343  What are the qualifications for guardians who manage 
IIM accounts for individual account holders?

    This section details the requirements for becoming a guardian of an 
IIM account. We note this here because it is the form (its necessary 
contents) that is required by BIA. The BIA estimates 1,425 IIM accounts 
have guardians assigned to them.

Section 115.353  What information must be included in a social services 
assessment?

    The BIA is responsible for making social service assessments, as 
necessary. The information included in this assessment would entail at 
least 2 hours of review once the information had been collected. Since 
the collection would be the primary task of the BIA, it is estimated 
that 8 hours would be required to compile, review and organize the file 
for a social service assessment. A total government hour burden is 
estimated, therefore, at 10 hours per assessment. There are an average 
of 5,700 social service assessments completed in any given year.
    Burden hours = 5,700 assessments  x  10 hours = 57,000 hours. This 
represents a government operations and maintenance expense of 
$1,096,680.

Section 115.355  How may I challenge a decision to place my account in 
supervised status?

    All 285,000 individual Indian account holders could have a 
supervised status account upon which they could file an appeal for 
review. The time to make this appeal would be approximately 1 hour, 
unless extenuating circumstances were involved. This section is really 
making notice of an appeal--not arguing the appeal itself.
    Burden hours = 285,000  x  1 hour = 285,000 hours and a cost of 
$2,850,000.

Section 115.360  What is the review process for a supervised account?

    The BIA must thoroughly review an account that is being supervised 
to ensure that the monies distributed were pursuant to an approved plan 
and that supervision is or is not further recommended. This review 
would entail approximately 2 hours to compile and review information 
regarding the account and approximately 1 hour to formulate a 
recommendation--totaling a government burden of 3 hours per review. We 
have used 5,700 as the number of responses here because there are 5,700 
social service assessments completed (in furtherance of a supervised 
account) done per year.
    Burden hours = 5,700 reviews  x  3 hours = 17,100 hours  x  $19.24/
hour = $329,004 operations and maintenance expense to the government.

Section 115.363  When will the BIA authorize withdrawals from a minor's 
account?

    The guardian of a minor's judgment account must make application 
under Pub. L. 97-458 for withdrawals from such accounts. For other 
minor's IIM accounts, the guardian must act pursuant to a distribution 
plan. We have used 1,425 as the number of respondents providing 
information for authorization for withdrawals since it is estimated 
that BIA administers 1,425 IIM accounts with a designated guardian. It 
would take approximately \1/2\ hour to make such application for 
withdrawal pursuant to Pub. L. 97-458 or pursuant to a simple request 
in accordance with an approved distribution plan.

[[Page 43892]]

    Burden hours = 1,425 guardian accounts  x  \1/2\ hour = 712 hours 
and a cost of $7,120.

Section 115.372  What type of encumbrances may I place on my IIM 
account?

    All 285,000 individual Indian money account holders may request a 
voluntary encumbrance upon their account. The BIA will so encumber the 
account only upon receiving the appropriate information (physician 
prescription or recommendation) from the account holder. It is 
estimated that it would take 1 hour to secure such information and mail 
or deliver to the appropriate BIA office.
    Burden hours = 285,000 account holders  x  1 hour = 285,000 hours 
and a cost of $2,850,000.

Section 115.506  How do I request a hearing to challenge the BIA's 
decision to restrict my IIM account?

    All 285,000 individual Indian money account holders could request a 
hearing if their account was being placed under supervision. The BIA 
will only provide such a hearing, however, if the account holder 
provides the necessary information in the form of a letter to set up a 
hearing. This letter of appeal would take approximately 1\1/2\ hours to 
complete and mail.
    Burden hours = 285,000 account holders  x  1\1/2\ hours = 427,500 
hours and a cost of $4,275,000.

                                             Estimated Burden Hours
----------------------------------------------------------------------------------------------------------------
                                         Number of    Responses  per                               Total annual
             CFR section                respondents     respondent       Burden per  response     burden (hours)
----------------------------------------------------------------------------------------------------------------
162.7  Landowner provides                          1             500  30 min....................             250
 information \1\ to make objection               500               1  30 min....................             250
 to tribal policy.
162.8  Provides notification of new                1          14,500  30 min....................           7,250
 laws \1\.                                    14,500               1  30 min....................           7,250
162.12  BIA review of all leases \1\               1          14,500  2 hrs.....................      29,000 hrs
162.14  BIA recordation of all                     1          14,500  30 min....................       7,250 hrs
 leases \1\.
162.18  BIA approval of lease form            14,500            1 hr  1.........................          14,500
 \1\.                                                                 1 hr......................          14,500
14,500..............................
162.20  Maintenance of certified                   1          14,500  \1/4\ hr..................       3,625 hrs
 plat \1\.
162.22  Review/Approve loans \1\....               1          14,500  1 hr......................      14,500 hrs
                                              14,500               1  1 hr......................          14,500
162.30  Report disposition of                      1          14,500  1 hr......................          14,500
 construction improvements \1\.
162.32  Report on rental due dates                 1          14,500  15 min....................           3,625
 \1\.
162.37  Report on late rental                      1           3,625  15 min....................          906.25
 payments \1\.
162.48  Bond forms \1\..............               1          14,500  30 min....................           7,250
                                              14,500               1  1 hr......................          14,500
162.52  Insurance requirements \1\..               1          14,500  15 min....................      3,625 hrs.
                                              14,500               1  1 hr......................          14,500
162.61  Negotiated & bidder lease                  1          14,500  3 hrs.....................          43,500
 approvals \1\.
162.68  Report on minor's benefit...               1             145  30 min....................              72
162.82(a)  Provide business records.             587               1  30 min....................           293.5
162.82(b)  Provide appraisals/                   587               1  1 hr......................             587
 financial info..
162.82(c)  Provide financial                     587               1  1 hr......................             587
 statements and Credit reports.
162.82(d)  New construction                      587               1  1 hr......................             587
 requirements.
162.83  Deviation of fair annual                 725               1  1 hr......................             725
 rental rate.
162.113  Provide information to                    1             145  30 min....................            72.5
 waive fees \1\.                                 145               1  1 hr......................             145
162.126  Decision letter--form \1\..               1             145  30 mins...................            72.5
162.164  Provide info. on disputed             3,625               1  30 mins...................        1,812.5
 trespass.
----------------------------------------------------------------------------------------------------------------
\1\ Indicates Government responsibility in whole or part.
Note: There are approximately 51,213 tribal and 50,505 individual Indian surface leases and permits. For
  purposes of this information collection request, however, we have used the number of 14,500 as the average
  number of new cases (or lease actions) that occur in a given year. We have used this average number because
  for the information collection requirements to be triggered a lease action would have to be initiated.
  Therefore, the use of the larger number (101,718 tribal/individual leases and permits) would not accurately
  reflect the activity realized by the public or the bureau in the administration of leases and permits on
  tribal and Indian lands. Other baseline figures are explained in the section summary below. The cost of
  reporting and recordkeeping by the public is estimated to be approximately $10/hour. We have used this figure
  as a medium figure that would indicate the cost of having a form typed, the cost of taking an hour's time off
  work, the cost of using one's vehicle, plus time spent on the activity, and other miscellaneous costs that may
  be associated with obtaining the information needed to fulfill this part's information collection
  requirements. Costs of operation and maintenance for the government were based, for purposes of an average,
  upon a GS 9/5 salaried person @$40,071/year or a cost of $19.24/hour.

Summary

Section 162.7  May individual Indian landowners exempt their land from 
tribal policies for leasing on Indian agricultural lands?

    Indian landowner(s) of a tract or an individual interest having at 
least 50% interest in such tract may exempt their Indian land from 
tribal policies by submitting a written objection to the BIA. This 
burden goes to the individual submitting the letter of objection to the 
BIA and to the BIA for receiving the letter and acting upon the 
objection and subsequently notifying the respective tribe of the 
objection and exemption.
    Burden hours = 500 (average number of objections received by the 
BIA) written letters of objection  x  \1/2\ hour to complete letter and 
deliver to the BIA = 250 burden hours and a cost of $2,500 to the 
public. Burden hours realized by the BIA to receive the letters of 
objection and subsequently notify the respective tribe of the objection 
and exemption of certain Indian lands from tribal = 500  x  \1/2\ hour 
= 250 burden hours and an estimated governmental

[[Page 43893]]

operations and maintenance cost of $4,810.

Section 162.8  What notifications are required that tribal law applies 
to a lease on Indian agricultural land?

    Tribal laws apply to tribal lands. Therefore, tribes must notify 
affected landowners of applicable tribal laws. The tribes will have to 
provide information to the BIA of the content, record of public notice 
and hearings, and effective dates of new tribal laws. The BIA will, in 
turn, notify any persons or entities undertaking activities on Indian 
lands of applicable tribal laws. This information burden goes to the 
tribe in informing the BIA of the applicable laws and, also, goes to 
the BIA in properly informing the affected public.
    Burden hours = 14,500 leases which may be affected by tribal laws 
x  \1/2\ hour to prepare submission of information to the BIA = 7,250 
burden hours and a cost to the public of $72,500. Burden hours realized 
by the BIA = 14,500 potential tribal submissions  x  \1/2\ hour of time 
for recordkeeping and notification to affected persons = 7,250 burden 
hours and an estimated governmental operations and maintenance expense 
of $19.24/hour  x  7,250 hours = $139,490.

Section 162.12  How will the Secretary decide whether to grant and/or 
approve a lease?

    This section describes the various elements that go into the BIA 
review and approval of leases on Indian lands. This includes the 
preparation of appropriate environmental documents and review of 
community impacts. This is a governmental burden estimated to take an 
average of 2 hours per review (some reviews will take less time, but 
some will consume twice this estimate, so an average of 2 hours is used 
here)  x  14,500 new cases per year = 29,000 burden hours to the 
government. The estimated governmental operations and maintenance 
expense is estimated at $19.24/hour  x  29,000 burden hours = $557,960.

Section 162.14  Must a lease be recorded?

    All leases in excess of 1 year must be recorded. All new cases 
initiated were in excess of 1 year (in many cases for periods of 5 
years or more) and, therefore, we have used the average number of new 
cases (14,500) as the baseline for computation of the burden hour. 
Recording each lease would take an average of \1/2\ hour to process.
    Burden hours = 14,500 new cases  x  \1/2\ hour for processing = 
7,250 hours. The governmental operations and maintenance expense is 
estimated to be $19.24/hour  x  7,250 burden hours = $139,490.

Section 162.18  Is there a standard lease form?

    There is no standard lease form. However, all leases made pursuant 
to these regulations must be in a form approved by the BIA. It is 
estimated that it would take both the tribal entity (tribal government/
Indian landowner) and a realty specialist and/or clerk an average of 1 
hour to complete and review all the components of a proposed lease to 
ascertain whether or not it contained all the necessary elements for 
BIA review and approval of the lease.
    Burden hours = 14,500 new cases  x  1 hour = 14,500 and a cost to 
the public of $145,000 and a governmental operations and maintenance 
expense of $19.24/hour  x  14,500 = $278,980.

Section 162.20  How is leased land described?

    The land described in a lease must be described by aliquot parts or 
by a certified plat by a registered surveyor. It is the responsibility 
of the BIA to provide this accurate description of the land being 
leased. It is estimated that it would take approximately \1/4\ hour to 
review the proposed lease for description by aliquot parts or order a 
certified plat, receive the plat, and commit its description to the 
lease document.
    Burden hours = 14,500 new cases  x  \1/4\ hour = 3,625 hours and a 
governmental operations and maintenance expense of $19.24/hour  x  \1/
4\ hour or $69,745.

Section 162.22  May a lease be used as collateral for a leasehold?

    The BIA may approve a lease authorizing the lessee to encumber his 
leasehold interest for the development and improvement of the leased 
premises. The BIA must approve the leasehold mortgage. This will 
require that the BIA review the loan documents, the lease, and approve 
the subsequent loan for development and/or other improvements to the 
premises. This will involve a burden to the public in providing the 
appropriate documents for BIA review and the time spend by the BIA for 
subsequent approval.
    Burden hours = 14,500 new cases  x  1 hour = 14,500 burden hours or 
a cost to the public of $145,000. Burden hours for the government = 
$14,500 new cases  x  1 hour = 14,500 burden hours for a governmental 
operations and maintenance expense of $278,980.

Section 162.30  What happens to improvements constructed on Indian 
lands when the lease has been terminated?

    If improvements are to be constructed on the land, the lease must 
have a provision that allows that such improvements remain on the lands 
upon termination of the lease or are removed within a time period 
specified in the lease. It is the responsibility of the BIA to ensure 
that such lease provision is included if improvements are to be 
constructed on Indian land. This is a form requirement--the inclusion 
of a provision to the lease. To make the appropriate inquiry of the 
lessor and lessee regarding construction improvements and include a 
provision to the lease to stipulate the understanding between lessor 
and lessee would take approximately 1 hour by the appropriate BIA 
realty specialist.
    Burden hours = 14,500 new cases  x  1 hour = 14,500 hours for a 
governmental operations and maintenance expense of $19.24/hour  x  
14,500 hours = $278,980.

Section 162.32  When must a lease payment be made?

    Rents are due and payable by the payment date specified in the 
lease. In order to determine whether lease payments are in arrears, the 
BIA realty specialist or clerk will have to review every rental payment 
against every lease. It would take an average of \1/4\ hour to match 
check to lease  x  14,500 new cases.
    Burden hours = 14,500 new cases  x  \1/4\ hour = 3,625 hours and a 
governmental operations and maintenance expense of $19.24/hour  x  
3,625 = $69,745.

Section 162.37  Is there a penalty for late payment on a lease?

    A lease will contain a provision that specifies the late payment 
penalty that will be assessed and collected for late payment. On the 
average 25% of the leases are delinquent each year. Therefore, we have 
used 25% of the number of new cases (14,500) or 3,625 as the baseline 
for determining burden hours to the government. It would take 
approximately \1/4\ hour to assess the delinquency and inform the 
lessee of the deficiency.
    Burden hours = 3,625 delinquent cases  x  \1/4\ hour = 906.25 hours 
and a governmental operations and maintenance expense of $19.24/hour 
x  906.25 = $17,432.

Section 162.48  What forms of bonds will the BIA accept?

    This section describes the various forms of bonds that the BIA will 
accept as surety of a lease. Each form has its

[[Page 43894]]

own special requirements for acceptance. The lessee must provide the 
BIA with the appropriate bond form and then the BIA, in turn, must 
process the form and ensure that it is adequate for surety. This 
imposes a burden on the public of 1 hour to obtain the appropriate bond 
form and a burden on the government of \1/2\ hour for processing.
    Burden hours = 14,500 new cases  x  1 hour = 14,500 burden hours 
and a cost to the public of $145,000. Burden hours for the government 
will 14,500 cases  x  \1/2\ hour = 7,250 burden hours and a 
governmental operational and maintenance expense of $19.24/hour  x  
7,250 burden hours = $139,490.

Section 162.52  What types of insurance may be required?

    The BIA may require any or all of the following types of insurance 
depending upon the activity conducted under the lease: property and 
liability; casualty: fire, flood, hazardous materials. This will 
involve a burden upon the public of providing the appropriate insurance 
documents to the BIA for their review and the BIA subsequently 
certifying that appropriate insurance has been taken for the particular 
type of leasehold proposed. The burden hours are estimated to be 1 hour 
for the lessee and \1/4\ hour for the BIA to certify once documents 
have been provided.
    Burden hours = 14,500 new cases  x  1 hour = 14,500 burden hours 
and a cost of $145,000 to the public. Burden hours for the government = 
14,500 new cases  x  \1/4\ hour = 3,625 burden hours  x  $19.24/hour = 
$69,745.

Section 162.61  How do I acquire a lease on Indian land?

    This section describes that there are two ways to acquire a lease 
on Indian land--by negotiated or advertised bid. Both vehicles involve 
the collection and maintenance of certain documents by the BIA and its 
subsequent approval of the lease, in whatever form. This section deals 
with the mechanisms required by the BIA to secure necessary information 
and its steps for completing the leasing process. It is estimated that 
the BIA will spend up to 3 hours to ensure that all elements of a 
negotiated or advertised bid lease have been met and are properly 
recorded and maintained for the Indian landowner.
    Burden hours = 14,500 new cases  x  3 hours = 43,500 hours and a 
governmental operations and maintenance expense of $19.24/hour  x  
43,500 = $836,940.

Section 162.68  Must the parents or guardians of minors who own Indian 
land obtain a lease before using the land?

    A parent, guardian, or other person standing in loco parentis does 
not need to obtain a lease for lands owned by their minor children if 
those minor children own 100% of the land and the minor children 
directly benefit from the use. Only 1% of the new leases that are 
entered into every year (of 14,500 new cases on the average) involve 
minors who own Indian land. Therefore, we have used 145 minor cases as 
the baseline to ascertain burden hours to the government. It is the 
responsibility of the BIA to ascertain whether or not the minor Indian 
landowners obtain a benefit from a proposed lease; therefore, this 
section deals only with the estimated \1/2\ hour burden to the 
government in its administration of each of those 145 minor cases.
    Burden hours = 145 minor cases  x  \1/2\ hour = 72 burden hours for 
a governmental operations and maintenance expense of $19.24  x  72 
burden hours = $1,385.

Section 162.82  What supporting documents must I provide?

    This section details the required supporting documents that must be 
submitted for certain business leases on Indian lands. This section 
applies to corporations, limited liability companies, partnerships, 
joint ventures, or other legal entities doing business on Indian lands. 
There are approximately 587 new business lease cases per year as 
reported by the BIA. Therefore, we have 587 business cases as the 
baseline for determining the burden hours for this section. It is 
estimated that it would take 30 minutes to provide business records 
162.73(a), and 1 hour to provide appraisals, financial information, 
financial statements, credit reports, and new construction requirement 
as listed in 162.73 (b)-(d). We have used the total 3 \1/2\ hours as 
the burden hour  x  587 new business leases to determine total burden 
hours.
    Burden hours = 587 new business leases  x  3 \1/2\ hours = 2,054.5 
total burden hours and a cost to the public of $20,545.

Section 162.83  How much rent must a lessee pay?

    This section is noteworthy in that it allows approval of a 
negotiated lease of tribal land or individually-owned land for less 
than a fair annual rental if it is in the best interest of the tribe (a 
determination for the tribe and the BIA) or if the lease is for 
religious, educational, recreational or other public purposes or is a 
lease within the lessor's family. Only 5% of the new cases administered 
by the BIA fall under this extraordinary less-than-fair-annual-rental 
provision. Therefore, we have used the number of 725 extraordinary 
leases as the baseline for determining burden hours to the public. It 
is estimated that it would take approximately 1 hour for each instance 
of an extraordinary lease to be explained and otherwise justified to 
the appropriate BIA realty specialist for subsequent approval.
    Burden hours = 725 extraordinary lease cases  x  1 hour = 725 total 
burden hours and a cost to the public of $7,250.

Section 162.113  May the Secretary waive administrative fees?

    The administrative fee, based on annual rental, can be waived for a 
justifiable reason. Only 1% of the new cases administered per year 
(average 14,500 new cases per year) ask for a waiver of administrative 
fees. Therefore, we have used the number 145 as the number of waiver 
cases per year to determine burden hours. It is estimated that it would 
take \1/2\ hour for a waiver claim to be made by a lessee either in 
writing or in person to the appropriate BIA realty officer. It is 
estimated that the government would spend approximately \1/2\ hour to 
process and approve a waiver request.
    Burden hours = 145 waiver cases  x  1 hour = 145 hours and a cost 
to the public of $1,450. The burden hours for the government = 145 
waiver cases  x  \1/2\ hour for process = 72.5 hours and a governmental 
operations and maintenance expense of $1,387.

Section 162.126  What happens if you do not cure a lease violation?

    This section explains what happens if a lease violation is not 
cured and gives specific contents required in a letter to the lessee 
for an alleged lease violation. This a form requirement for the 
government. Since this instance of non-cured violations occurs only 1% 
of the time, we have used 1% of the total 14,500 new cases to arrive at 
the number 145 as the baseline for determining burden hours. It is 
estimated that it would take the appropriate BIA realty officer \1/2\ 
hour to prepare and mail a letter with all the attending requirements 
of this section.
    Burden hours = 145 violation cases  x  \1/2\ hour = 72.25 hours and 
a governmental operations and maintenance expense of $19.24/hour  x  
72.25 hours = $1,387.

[[Page 43895]]

Section 162.164  What can I do if I receive a trespass notice?

    This section details what a person found in a trespass violation 
must do within a specific time frame for his case to be finally 
disposed. The lessee will have to comply with the notice of trespass or 
submit an explanation to the BIA as to why a trespass violation should 
not be rendered. Approximately 25% of the new lease cases have a 
resulting trespass violation alleged. Therefore, we have used 25% of 
the 14,500 new cases (3,625) to use as a baseline for determining 
burden hours. It is estimated that the submission of an explanation to 
the appropriate BIA realty officer would entail \1/2\ hour to compose 
and deliver.
    Burden hours = 3,625 trespass violation cases  x  \1/2\ hour = 
1,812.5 total burden hours and a cost of $18,125 to the public.

                                             Estimated Burden Hours
----------------------------------------------------------------------------------------------------------------
                                                                                                   Total annual
                   CFR section                       Number of     Reponses per     Burden per        burden
                                                    respondents     respondent       response         (hours)
----------------------------------------------------------------------------------------------------------------
166.106  Form/Requirements 1....................               1           1,000               1           1,000
166.108  Permit Recording 1.....................               1           1,000           \1/4\             250
166.124  Provide info. for loan 1...............             100               1           \1/2\              50
                                                               1             100           \1/2\              50
166.122  Form for advertisements 1..............               1           1,000               2           2,000
166.123  Forms for permits 1....................               1           1,000               1           1,000
                                                           1,000               1               1           1,000
166.138  Forms for amendments, assignments,                    1           1,000           \1/4\             250
 modifications, subpermits, etc. 1..............           1,000               1           \1/2\             500
166.206  Provide info. on livestock class.......             200               1           \1/2\             100
166.207  Provide info. on livestock care 1......           1,000               1           \1/4\             250
166.209  Removal of improvements 1..............               1             100           \1/2\              50
166.210  Provide tribal integrated resource                  250               1               2             500
 mgmt. plan ....................................
166.211  Develop conservation plan1.............             250               1               2             500
166.303  Provide info. on public notices/                    250               1           \1/2\             125
 hearings.......................................
166.601  Provide info on bond requirements 1....               1           1,000           \1/2\             500
166.602  Forms of bonds1........................               1           1,000           \1/2\             500
166.607  Provide insurance information 1........               1           1,000           \1/4\             250
166.703  Form for letter of violation 1.........               1             100           \1/2\              50
166.803  Form for trespass notice 1.............               1             100           \1/2\              50
166.804  Provide info on trespass violation.....             100               1           \1/2\              50
166.809  Provide info on ownership..............              50               1           \1/4\           12.5
----------------------------------------------------------------------------------------------------------------
1 Indicates Government responsibility in whole or part.
Note: There are approximately 1,000 new grazing permit cases each year that are administered through the BIA.
  Because information collection requirements would not be triggered unless and until a new case is initiated,
  we have used 1,000 as our baseline for tribal and individual Indian respondents. Other numbers in reference to
  tribal or individual Indian respondents are explained below. The cost of reporting and recordkeeping by the
  public is estimated to be approximately $10/hour. We have used this figure as a medium figure that would
  indicate the cost of having a form typed, the cost of taking an hour's time off work, the cost of using one's
  vehicle, plus time spent on the activity, and other miscellaneous costs that may be associated with obtaining
  the information needed to fulfill this part's information collection requirements. For purposes of
  governmental operations and maintenance expense, we have used the salary of a GS-9/5 as the average salary
  base. This would be approximately $19.24/hour and is reflected as such in total governmental expenses.

Summary

Section 166.106  What provisions must be contained in a permit?

    This section describes the minimal elements that must be included 
in a permit. BIA will not approve a grazing permit unless these 
elements are present, in some form, to satisfy minimum contractual 
needs. This is the responsibility of the BIA to review the content and 
form of the permit. It is estimated that it would take the BIA one hour 
to review and approve the contents of this form.
    Burden hours = 1,000 new permit cases  x  1 hour = 1,000 hours for 
a governmental operations and maintenance cost of $19.24/hour = 
$19,240.

Section 166.108  Are permits recorded?

    This is a recordkeeping requirement of the BIA. All permits must be 
recorded with the Land Titles and Records Offices in the region that 
covers the permitted area. It is estimated that it would take \1/4\ 
hour to receive and properly record these permits pursuant to 25 CFR 
150 et seq.
    Burden hours = 1,000 new permit cases  x  \1/4\ hour = 250 hours 
for a governmental operations and maintenance cost of $19.24/hour = 
$4,810.

Section 166.124  Can I use a permit as collateral for a loan?

    We have estimated that approximately 100 permit holders submit 
information to the BIA for their approval to encumber the permit 
interest for the development and improvement of the permitted Indian 
land. It would take approximately \1/2\ hour for the permit holder to 
submit this information to the BIA and another \1/2\ hour for the BIA 
to review that information to approve the further encumbrance.
    Burden hours = 100 loan applicants  x  \1/2\ hour = 50 burden hours 
to the public and a cost of $500 to the public. Burden for the 
government = 100 loan applicants  x  \1/2\ hour = 50 burden hours for a 
governmental operations and maintenance cost of $19.24/hour  x  50 
hours = $962.00.

Section 166.122  How do I acquire an advertised permit through 
competitive bidding?

    This section describes the 3 ways permits may be acquired. The 
tribe may grant permits on range units containing trust or restricted 
land which is entirely tribally owned or which contains only

[[Page 43896]]

tribal and government land under the control of the tribe. The BIA will 
grant permits for range units containing, in whole or part, 
individually owned Indian land and range units that consist of, in 
whole or part, tribal or government land. A permit may be acquired, 
also, be negotiation between the parties. In all instances such permits 
must be properly advertised, negotiated, or terms otherwise determined 
by an equitable standard. While this will entail the tribe or Indian 
individual to do certain things, it is the responsibility of the BIA to 
ensure that the permitting process has been conducted in accordance 
with such equitable standards. It is estimated that, whichever method 
of permit process is used, it will take the BIA approximately 2 hours 
to review the form and subsequently approve the permit. Agency form 5-
5514 would be utilized for portions of this information.
    Burden hours = 1,000 new permit cases  x  2 hours = 2,000 burden 
hours for a governmental operations and maintenance expense of $19.24/
hour  x  2,000 hours = $38,480.

Section 166.123  Are there standard permit forms?

    There are standard permit forms, including bid forms, permit forms, 
and permit modification forms. These forms are available at the various 
BIA agency offices. We have estimated the hourly burden to be 
approximately 1 hour for the public in submitting any type of form and 
approximately 1 hour for the BIA to receive, record and maintain. 
Agency forms 5-5515, 5-5516, 5-5517, 5-5524, 5-5525, and 5-5528 would 
be utilized for portions of this information collection.
    Burden hours = 1,000 new permit cases  x  1 hour = 1,000 total 
burden hours and a cost of $10,000 to the public. Burden hours for the 
government are estimated at 1,000 new permit cases 1 hour = 1,000 
burden hours for a governmental operations and maintenance expense of 
$19.24/hours  x  1,000 hours = $19,240.00.

Section 166.138  Other than to remove land, how can a permit be 
amended, modified, assigned, transferred, or subpermitted?

    This section describes the elements that must be included in any 
permit amendments, modifications, etc. Each instance requires approval 
by the BIA. It is estimated that it would take approximately \1/2\ hour 
for a tribal entity or individual Indian to fill out the requisite 
form/format for a change in the permit and \1/4\ hour for the BIA to 
record and maintain this change. Agency forms 5-5522 and 5-5523 would 
be utilized for portions of this information collection.
    Burden hours = 1,000 new permit cases  x  \1/2\ hour = 500 total 
burden hours and a cost of $5,000 to the public. Government burden is 
calculated at 1,000 new permit cases  x  \1/4\ hour = 250 hours at a 
governmental operations and maintenance expense of $19.24/hour  x  250 
hours = $4,810.00.

Section 166.206  What livestock can I graze on permitted Indian land?

    This section allows the tribe to determine the class of livestock 
that may be grazed on range units composed entirely of tribal land or 
in combination with government land, subject to grazing capacity. Also, 
this section notes that the BIA will adopt the tribal determination of 
this class of livestock if it is consistent with a determination of 
grazing capacity. In both instances, information must be provided with 
respect to the range in question, class of livestock, and an approved 
grazing determination. The tribal entity or individual Indian would 
have to provide this information which we have determined would take 
approximately \1/2\ hour to compile. This sort of classification on 
tribal lands would happen on an average of 200 instances per year. 
Agency forms 5-5526 and 5-5527 could be utilized for portions of this 
information collection.
    Burden hours = 200 new cases  x  \1/2\ hour = 100 total burden 
hours and a cost of $1,000 to the public.

Section 166.207  What must a permittee do to protect livestock from 
exposure to disease?

    Permittees must vaccinate, treat exposed animals, and restrict 
movement of exposed or infected livestock. We have used a baseline of 
1,000 new permit cases here because all new grazing permits would 
require that livestock, of whatever nature and in whatever identified 
range unit, comply with this standard of care. It is estimated that it 
would take \1/2\ hour for the tribal entity or individual Indian to 
provide this information the appropriate BIA office and \1/2\ hour for 
that office to record and process this information for compliance with 
this health standard.
    Burden hours = 1,000 new permit cases  x  \1/4\ hour = 250 total 
burden hours and a cost of $2,500 to the public. Burden for the 
government is estimated at 1,000 new permit cases  x  \1/4\ hour = 250 
hours for a governmental operations and maintenance expense of $19.24/
hour  x  250 hours = $4,810.00.

Section 166.209  What happens to improvements constructed on Indian 
lands when the permit has been terminated?

    This section allows improvements to be removed on permitted Indian 
land if proper provision has been made in the permit. An extension of 
time may, also, be provided for in the permit's provisions. This is the 
responsibility of the BIA to review these ``removal of improvements'' 
provisions, record them, and allow for removals as prescribed in the 
permit. Improvements to the land are accounted for in approximately 10% 
of the new cases in any given year, or approximately 100 cases. It is 
estimated that it would take \1/2\ hour to facilitate this 
recordkeeping.
    Burden hours = 100 new cases involving improvements on Indian land 
x  \1/2\ hour = 50 hours for a governmental operations and maintenance 
expense of 50 hours  x  $19.24/hour = $962.00.

Section 166.210  Is an agricultural resource management plan required?

Section 166.211   Is a conservation plan required?

    An agricultural resource management plan must be developed either 
by the tribe or by the BIA in consultation with the affected tribe(s). 
This plan should be consistent with the tribe's integrated resource 
management plan. We estimate that tribal conservation officers and/or 
environmental compliance officers for the tribe, in consultation or not 
in consultation with the BIA, would require a minimum of 2 hours to 
work up an agricultural resource management plan consistent with their 
integrated resource management plan. We have used a baseline of 250 
tribes as being the number of tribes in any given year that would be 
allowing grazing on their lands subject to these plans. This number 
could be much reduced, depending upon the frequency of newly permitted 
grazing activities and renewals of existing plans.
    Burden hours = 250 tribal entities requiring an agricultural 
resource management plan  x  2 hours = 500 burden hours and a cost of 
$5,000 to the public for such production of plans.

Section 166.303  What notifications are required that tribal laws apply 
to permits on Indian agricultural lands?

    Tribal grazing laws apply to permits on tribal and individually 
owned Indian land under tribal jurisdiction. However, tribes must 
notify the BIA of the record of public notices and hearings, and the 
content and effective dates of new tribal grazing laws. We have used a 
baseline of 250 tribes as providing the BIA

[[Page 43897]]

information on such new tribal grazing laws as a high-end average. This 
number could be greatly reduced in proportion to the number of new 
grazing laws enacted every year. This notification to the BIA would 
take approximately \1/2\ hour for each new instance.
    Burden hours = 250 instances of newly enacted tribal grazing laws 
x  \1/2\ hour = 125 total burden hours and a cost of $1,250 to the 
public.

Section 166.601  How is the amount of the bond determined?

    The BIA will determine the amount of the bond based upon the value 
of one year's grazing rental payment, the value of improvements 
constructed, the cost of performance of any additional obligations, and 
the cost of restoration and reclamation. In addition, the BIA can 
adjust the security or bond requirements at any time, depending upon 
the circumstances. The BIA will collect this information from available 
sources on file and make such determination of bond amount. It is 
estimated that it would take approximately \1/2\ hour to evaluate these 
variables and determine the appropriate bond.
    Burden hours = 1,000 new permit cases  x  \1/2\ hour = 500 hours 
for a governmental operations and maintenance expense of $9,620.00

Section 166.602  What form of bonds will the BIA accept?

    The BIA will only accept bonds in cash, negotiable Treasury 
securities, certificates of deposit, or irrevocable letters of credit. 
This is a recordkeeping responsibility of the BIA and is estimated to 
take approximately \1/2\ hour to review and accept for appropriate 
security. Agency forms 5-5519 and 5-5423 can be used for portions of 
this information collection.
    Burden hours = 1,000 new permit cases  x  \1/2\ hour = 500 hours 
for a governmental operations and maintenance expense of $9,620.00

Section 166.607  What types of insurance may be required?

    The BIA may require a permittee to provide insurance in an amount 
sufficient to protect any improvements on the permit premises, cover 
losses such as personal injury or death, and protect the landowner's 
interests. This is a responsibility of the BIA and the agency will 
review each permit case to determine what sort of insurance coverage is 
necessary for the proposed permitted use. This review would take 
approximately \1/4\ hour to complete.
    Burden hours = 1,000 new permit cases  x  \1/4\ hour = 250 burden 
hours for a governmental operations and maintenance expense of 
$4,810.00.

Section 166.703  What will a written notice of a violation contain?

    This section details the form the BIA will use to inform a 
permittee that his permit is in violation. This is a recordkeeping 
responsibility for the agency and will take approximately \1/2\ hour to 
compose and send to the permittee.
    Burden hours = 100 permit violations  x  \1/2\ hour = 50 hours for 
a governmental operations and maintenance expense of $19.24/hour  x  50 
hours = $962.00

Section 166.803  How are trespassers notified of a trespass 
determination?

    This section details what must be included in a written notice of 
trespass. This is a responsibility of the BIA and would be realized 
upon approximately 100 alleged trespassers in any given year. To send 
such a written notice would take approximately \1/2\ hour in order to 
compile the particulars of the trespass and properly inform the alleged 
trespasser of his rights.
    Burden hours = 100 trespass violations  x  \1/2\ hour = 50 hours 
for a governmental operations and maintenance expense of $19.24/hour 
x  50 hours = $962.00.

Section 166.804  What can I do if I receive a trespass notice?

    If an alleged trespasser wishes to contest a trespass notice, he 
must contact the agency in writing to explain why the trespass is in 
error. We have used 100 trespass violations as the baseline for the 
computation of burden hours and an estimated \1/2\ hour to complete a 
letter of explanation to the agency.
    Burden hours = 100 notices of trespass  x  \1/2\ hour to respond = 
500 total burden hours and a cost of $5,000 to the public.

Section 166.809  What happens after my unauthorized livestock or other 
property are impounded?

    In those cases where livestock or other property have been 
impounded due to a trespass violation, the trespasser may redeem his 
property by providing proof of ownership. We estimate only 50 cases of 
impoundment per year and the requirement of showing proof of ownership 
to not exceed \1/4\ hour.
    Burden hours = 50 impoundment cases  x  \1/4\ hour = 12.5 total 
burden hours and a cost of $125 to the public.

F. Review Under Executive Order 13132 Federalism

    This proposed rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. While this proposed rule will impact 
tribal governments, there is no Federalism impact on the trust 
relationship or balance of power between the United States government 
and the various tribal governments affected by this rulemaking. 
Therefore, in accordance with Executive Order 13132, it is determined 
that this rule will not have sufficient federalism implications to 
warrant the preparation of a Federalism Assessment.

G. Review Under the National Environmental Policy Act of 1969

    This proposed rule does not constitute a major Federal action 
significantly affecting the quality of the human environment. 
Therefore, neither an Environmental Assessment nor an Environmental 
Impact Statement is necessary for this proposed rule.

H. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995, Public Law 
104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on state, local, and tribal 
governments and the private sector. Under section 202 of the Act, the 
Department generally must prepare a written statement, including a 
cost-benefit analysis, for proposed and final rules with ``Federal 
mandates'' that may result in expenditures to state, local, and tribal 
governments, in the aggregate, or to the private sector, of $100 
million or more in any one year. This proposed rule will not result in 
the expenditure by the state, local and tribal governments, in the 
aggregate, or by the private sector, of $100 million or more in any one 
year. The Department, however, has determined that because the proposed 
rulemaking will uniquely affect tribal governments it will follow 
Departmental and Administration protocols in consulting with tribal 
governments on the rulemaking. These consultations will be in keeping 
with the President's Executive Order 13084, ``Consultation and 
Coordination with Indian Tribal Governments.'' Consequently, tribal 
governments will be notified through this publication in the Federal 
Register and through the field offices of the BIA of the

[[Page 43898]]

ramifications of this rulemaking. This will enable tribal officials and 
the affected tribal constituency throughout Indian Country to have 
meaningful and timely input in the development of the final rule. This 
will reinforce good intergovernmental relations with tribal governments 
and better inform, educate, and advise such tribal governments on 
compliance requirements of the rulemaking.

List of Subjects

25 CFR Part 15

    Estates, Indians-law.

25 CFR Part 114

    Accounting, Indians = business and finance.

25 CFR Part 115

    Administrative practice and procedure, Indians-business and 
finance.

25 CFR Part 162

    Indians-lands.

25 CFR Part 166

    Grazing lands, Indians-lands, Livestock.

    For the reasons stated in the preamble, the Department of the 
Interior, Bureau of Indian Affairs, proposes to amend 25 CFR as 
follows:

PART 15--PROBATE OF INDIAN ESTATES, EXCEPT FOR MEMBERS OF THE FIVE 
CIVILIZED TRIBES

    1. Part 15 is revised to read as follows:
Subpart A--Introduction
Sec.
15.1   What is the purpose of this part?
15.2   What terms do I need to know?
15.3   Will the Department probate all the property in Indian 
estates?
15.4   How does the probate process work?
Subpart B--Starting the Probate Process
15.101   How do I begin the BIA probate process?
15.102   May I notify the BIA of a death if I'm not related to the 
decedent?
15.103   Is there a deadline for notifying the BIA of a death?
15.104   Can I get assistance immediately for funeral expenses?
15.105   Do I need to give the BIA any other documents?
15.106   Will the BIA wait to begin the probate process until it is 
notified of the decedent's death?
15.107   Who prepares an Indian probate package?
15.108   If the decedent was not an enrolled member of a tribe, but 
own interests in trust or restricted property, what agency prepares 
the probate package?
15.109   Can I give up my interest in trust or restricted lands or 
trust funds if I am an heir?
Subpart C--Preparing the Probate Package
15.201   What will the BIA do with the documents that I provide?
15.202   What must the probate package contain?
15.203   What happens after the BIA prepares the probate package?
15.204   Is there a summary process for distributing a trust estate 
with cash assets?
15.205   Will I be notified where my probate is sent?
15.206   When will the BIA refer a probate to the OHA?
Subpart D--Claims and Distributions
15.301   What does the attorney decision-maker do with the probate 
package?
15.302   What happens if the decedent owes debts?
15.303   If the decedent owed me money, how do I file a claim?
15.304   When will I know if my claim will be paid?
15.305   Which claims will be paid first?
15.306   Can the attorney decision-maker reduce claims?
15.307   What if there is not enough money in the IIM account to pay 
all claims?
15.308   Will the BIA keep the estate open and use future income to 
pay claims?
15.309   Will the attorney decision-maker authorize payment of 
interest or penalties on claims?
15.310   Will the BIA file tax returns for the decedent or the 
estate?
15.311   When will the BIA send me a copy of the probate decision?
15.312   What happens after the decision is made?
Subpart E--Appeals
15.401   May I appeal the decision of the attorney decision-maker?
15.402   How do I file an appeal?
15.403   How long do I have to file an appeal?
15.404   What will happen to the estate if an appeal is filed?
15.405   If I miss the 60-day appeal period, do I have any other 
rights?
Subpart F--Information and Records
15.501   If I have a question about a probate case that has been 
assigned to an attorney decision-maker, may I contact the attorney 
decision-maker directly?
15.502   How can I find out the status of a probate?
15.503   What is a nationwide Indian probate tracking system?

    Authority:  Secs. 1, 2, 36 Stat. 855, as amended, 856, as 
amended, sec. 1, 38 Stat. 588, 42 Stat. 1185, as amended, secs. 1, 
2, 56 Stat. 1021, 1022, 25 U.S.C. 372, 373, 374, 373a, 373b. Cross 
reference: For special rules applying to proceedings in Indian 
Probate (Determination of Heirs and Approval of Wills, Except for 
Members of the Five Civilized Tribes and Osage Indians), including 
hearings and appeals within the jurisdiction of the Office of 
Hearings and Appeals, see Title 43, Code of Federal Regulations, 
Part 4, Subpart D; Funds of deceased Indians other than the Five 
Civilized Tribe see Title 25 Code of Federal Regulations, Part 115.

Subpart A--Introduction


Sec. 15.1  What is the purpose of this part?

    This part contains the procedures that the Secretary follows to 
probate the trust estate of a deceased individual Indian who owned 
trust or restricted property. This part tells you how to file the 
necessary documents to probate the trust estate.


Sec. 15.2  What terms do I need to know?

    ALJ--Means an administrative law judge or other employee of the 
Department of the Interior's Office of Hearings and Appeals (OHA) upon 
whom authority has been conferred by the Secretary to conduct hearings 
in accordance with 43 CFR part 4 subpart D.
    BIA--Means the Bureau of Indian Affairs within the Department of 
the Interior.
    IIM account--Means Individual Indian Money Account.
    LTRO--Means the Land Titles and Records Office within the BIA.
    OHA--Means the Hearings Division, Office of Hearings and Appeals, 
Department of the Interior.
    Agency--Means the agency or any other designated office in the BIA 
having jurisdiction over trust or restricted property and money. This 
term also means any office of a tribe which has contracted or compacted 
the probate function.
    Attorney decision-maker--Means an attorney with the BIA who reviews 
a probate package, determines heirs and beneficiaries, determines 
creditors claims, and issues a written decision based on the record.
    Beneficiary--Means any individual who receives trust or restricted 
property or money in a decedent's will.
    Day--Means a calendar day.
    Deciding official means the official with the delegated authority 
to make a decision on a probate matter, and may include a BIA regional 
director, agency superintendent, or field representative, an ALJ or 
other designated official.
    Decision--Means a written document issued by the deciding official 
determining heirs and beneficiaries, approving creditors claims, and 
ordering distribution of property and money.
    Form OHA-7--Means a form issued by the OHA which lists data for 
heirship and family history, and provides information on any wills, 
trust and restricted property, adoptions, names and addresses of all 
interested persons.
    Heir--Means any individual who receives trust or restricted 
property or

[[Page 43899]]

money from a decedent by operation of law.
    Interested person--Means any potential or actual heir, any 
beneficiary under a will, any party asserting a claim against a 
deceased Indian's estate, and any tribe having a statutory option to 
purchase the trust or restricted property interest of a decedent.
    Intestate--Means the decedent died without a will.
    Minor--Means an individual that has not reached the age of majority 
as defined by the applicable tribal or state law.
    Probate--Means the legal process by which applicable tribal or 
State laws affecting the distribution of property is applied to:
    (1) Determine the heirs and beneficiaries of a decedent's trust and 
restricted real property; and
    (2) Transfer any funds held in trust by the Secretary for a 
decedent to the heirs, beneficiaries, or other persons or entities 
entitled by law.
    Probate specialist--Means a BIA or tribal paralegal trained in 
Indian probate law.
    Secretary--Means the Secretary of the Interior or an authorized 
representative.
    Superintendent or Field Representative--Means an authorized 
representative of the Secretary of the Interior who is the officer in 
charge of a BIA agency or field office.
    Vendor or Creditor--Means any individual or company who submits a 
claim for payment from a decedent's estate.
    We--Means either an official of the BIA or a tribe performing 
probate functions under a BIA contract or compact.
    Will--Means a written testamentary document, including any properly 
executed written changes, called codicils, which was signed by the 
decedent and was attested by two disinterested adult witnesses, that 
states who will receive the decedent's trust or restricted property.
    You/I--Means an interested person, as defined herein, with an 
interest in the decedent's estate unless a specific section says 
otherwise.


Sec. 15.3  Will the Department probate all the property in Indian 
estates?

    (a) No. We will probate only the trust or restricted property in 
the estate of an Indian decedent.
    (b) We will not probate:
    (1) Real or personal property in an estate of an Indian decedent 
that is not trust or restricted property;
    (2) Restricted property derived from allotments in the estates of 
members of the Five Civilized Tribes (Cherokee, Choctaw, Chickasaw, 
Creek and Seminole) in Oklahoma; and
    (3) Trust or restricted interests derived from allotments made to 
Osage Indians in Oklahoma and Osage headright interests.
    (c) We will probate trust or restricted property in the estates of 
members of the Five Civilized Tribes or Osage Indians when that trust 
or restricted property is derived from other tribal allotments.


Sec. 15.4  How does the probate process work?

    The basic steps of the probate process are:
    (a) We find out about a person's death (see subpart B of this part 
for details);
    (b) We prepare a probate package which includes documents that you 
send us (see subpart C of this part for details);
    (c) We refer the completed probate package to a deciding official 
in BIA or OHA (see subpart D of this part for details);
    (d) The deciding official decides how to distribute the property 
(see subparts D and E of this part for details).

Subpart B--Starting the Probate Process


Sec. 15.101  How do I begin the BIA probate process?

    To begin the probate process, as soon as possible you should 
contact the nearest BIA agency or regional office where the decedent 
was enrolled. You must provide a copy of the death certificate, if one 
exists. If a death certificate does not exist, you may provide one or 
more of the following:
    (a) A copy of the obituary notice from a local newspaper;
    (b) An affidavit of death prepared by someone who knows about the 
decedent; or
    (c) Any other document that we accept that verifies the death, such 
as a church record or a court record.


Sec. 15.102  May I notify the BIA of a death if I'm not related to the 
decedent?

    You do not need to be related to the decedent in order to notify us 
of the death. You can be a friend, neighbor, or any other interested 
person.


Sec. 15.103  Is there a deadline for notifying the BIA of a death?

    There is no deadline for notifying us of a death. However, you 
should notify us of a death as soon as possible after the person dies.


Sec. 15.104  Can I get assistance immediately for funeral services?

    If you are responsible for making the funeral arrangements of a 
decedent who had an IIM account and have an immediate need to pay for 
funeral arrangements prior to burial, you may make a request to the 
agency for up to $1,000 from the decedent's IIM account if the 
decedent's IIM account has more than $2,500 in the account at the date 
of death. The agency may approve reasonable costs for this purpose. We 
will not pay this money directly to you; we will only pay the persons 
who provide the funeral services. To apply for this assistance you must 
submit the following to us:
    (a) An original itemized receipt, contract or statement for each 
service; and
    (b) An affidavit signed by the vendor or provider stating that the 
service rendered is necessary for tribal burial services.


Sec. 15.105  Do I need to give the BIA any other documents?

    (a) You must provide us with the following documents and 
information before we can begin to process the probate package.
    (1) Social Security number of the decedent;
    (2) The birth certificate or other record of birth;
    (3) All death records including those listed in Sec. 15.101;
    (4) A list of known creditors and their addresses;
    (5) Current names and addresses of potential heirs and 
beneficiaries;
    (6) Any statements renouncing an interest in the estate;
    (7) All marriage licenses of the decedent;
    (8) All divorce decrees of the decedent;
    (9) Adoption and guardianship records;
    (10) All original or certified copies of wills and codicils;
    (11) Any sworn statements regarding the decedent's family, 
including any statements of paternity or maternity; and
    (12) Additional documents that we request.
    (b) You must inform us if any of the documents or information 
identified in these regulations are not available.


Sec. 15.106  Will the BIA wait to begin the probate process until it is 
notified of the decedent's death?

    No. We may find out about the death of a person without being 
notified by an interested person. If we do, and if the decedent meets 
the criteria in Sec. 15.3, we will initiate the process without 
notification. You should not assume that we will find out about a 
death. It is still your responsibility to notify us as required by 
Sec. 15.101.

[[Page 43900]]

Sec. 15.107  Who prepares an Indian probate package?

    The probate specialist or probate clerk at the agency or tribe 
where the decedent is an enrolled member will prepare the probate 
package.


Sec. 15.108  If the decedent was not an enrolled member of a tribe, but 
owns interests in trust or restricted property, what agency prepares 
the probate package?

    If the decedent was not an enrolled member of a tribe, but owns 
interests in trust or restricted property, the agency that has 
jurisdiction over the trust property of the decedent, or the greater 
amount of trust property will prepare the probate package.


Sec. 15.109  Can I give up my interest in trust or restricted lands or 
trust funds if I believe am an heir?

    (a) If you are a non-Indian, you may give up all or part of your 
interest by submitting a notarized statement in which you renounce your 
interest in the estate. You must send the statement to the probate 
specialist at the agency preparing the probate.
    (b) If you are an Indian and you wish to give up all or part of 
your interest, we must refer your request to OHA in accordance with 43 
CFR part 4, subpart D.
    (c) You must file your statement renouncing your interest with the 
OHA or the probate specialist before the deciding official issues an 
order.

Subpart C--Preparing the Probate Package


Sec. 15.201  What will the BIA do with the documents that I provide?

    Once we receive the documents that you provide us under 
Sec. 15.105, the probate specialist or probate clerk will:
    (a) Use the documents to prepare a probate package; and
    (b) Consult with you and any other sources to obtain any additional 
information needed for a complete package.


Sec. 15.202  What must the probate package contain?

    The probate package must contain all of the following:
    (a) A copy of the death certificate, if one exists, or some other 
reliable evidence of death as required by Sec. 15.101;
    (b) A completed Form OHA-7, ``Data for Heirship Findings and Family 
History,'' certified by the superintendent;
    (c) A certified inventory of trust or restricted real property 
including a description of any income generating activity that may 
produce income during the probate process;
    (d) A copy of the decedent's IIM account ledger showing:
    (1) The balance of the account at date of death;
    (2) The balance of the account at date of probate package 
submission; and
    (3) An IIM account history for five (5) years previous to the date 
of death;
    (e) All original wills, codicils and any revocations of wills or 
codicils. We will accept copies if original wills, codicils or any 
revocations of wills or codicils are unavailable;
    (f) All statements renouncing interest;
    (g) All documentation of payment of claims paid prior to probate 
hearing;
    (h) Claims of creditors;
    (i) Other supporting documents, such as marriage license, divorce 
decrees, birth certificate, adoption decrees, guardianship decrees, any 
affidavits (which may include paternity, maternity issues, or 
adoptions);
    (j) Tribal options to purchase interests of a decedent; and
    (k) Any other information that may be required at the time of 
proceedings.


Sec. 15.203  What happens after the BIA prepares the probate package?

    Within 120 days after we receive all the documents required by 
Sec. 15.105 and after all the probate documents listed in Sec. 15.202 
are received, a probate specialist will review the probate package and 
refer it to the superintendent, attorney decision-maker or the 
appropriate ALJ in the OHA in accordance with Secs. 15.204 and 15.206.


Sec. 15.204  Is there a summary process for distributing a trust estate 
with cash assets?

    (a) Yes, when an Indian dies intestate, leaving in a trust estate 
only trust personal property or cash of a value less than $5,000, not 
including any interest that may have accrued after the death of the 
decedent, the superintendent or the attorney decision-maker will review 
the probate package, identify the legal heirs and determine the proper 
distribution of the trust estate.
    (b) Within 20 days after receipt of notice under Sec. 15.205, the 
apparent heirs may request that an ALJ assume jurisdiction and hold a 
hearing to determine the proper distribution of the trust estate.
    (c) Within 60 days after determining the proper distribution of the 
trust estate, the superintendent or attorney decision-maker will 
prepare and distribute to the interested persons a memorandum showing 
the date of the decedent's death and the value and distribution of the 
trust estate, or refer the probate to an ALJ.
    (d) In the disposition of the trust estate, the superintendent or 
the attorney decision-maker will:
    (1) Order the payment of creditors' claims as provided in 
Secs. 15.302-307; and
    (2) Order the balance of the trust estate remaining after payment 
of claims, if any, to be transferred to the legal heirs of the 
decedent.
    (e) Interested persons may appeal a summary distribution 
determination in accordance with subpart E of this part or 25 CFR part 
2.


Sec. 15.205  Will I be notified where the probate is sent?

    Yes, the BIA will notify you and post notice of the designated 
office where the probate has been sent.
    (a) After the probate specialist has forwarded the probate package 
under paragraph (a) of this section, we will notify you where we have 
sent the probate package:

------------------------------------------------------------------------
  If we send the probate to     We will send you             And
------------------------------------------------------------------------
(1) A superintendent or       A letter that gives   If we don't hear
 attorney decision-maker       you 20 days to tell   from you within the
 under Sec.  15.204.           us if you want the    20 days, we will
                               probate package       have the
                               sent to the OHA for   superintendent or
                               a hearing.            the attorney
                                                     decision-maker
                                                     process the probate
                                                     package based on
                                                     the documents in
                                                     the probate
                                                     package.
(2) An attorney decision-     A letter that gives   If we don't hear
 maker.                        you 20 days to tell   from you within the
                               us if you want the    20 days, we will
                               probate package       have the attorney
                               sent to the OHA for   decision-maker
                               a hearing.            process the probate
                                                     package based on
                                                     the documents in
                                                     the probate
                                                     package.

[[Page 43901]]

 
(3) The OHA.................  A notification that   We will notify the
                               we are sending the    potential heirs
                               probate to the OHA    that they may ask
                               for a hearing.        the OHA for an in-
                                                     person hearing at a
                                                     site convenient to
                                                     most of the
                                                     parties, a video
                                                     conference or
                                                     teleconference
                                                     hearing (if
                                                     available), or a
                                                     decision based on
                                                     documents in the
                                                     probate package.
------------------------------------------------------------------------

    (b) We will post notice identifying the designated office that has 
been assigned the probate package. We will post the notice for at least 
20 days in five or more conspicuous places in the vicinity of the 
designated office.


Sec. 15.206  When will the BIA refer a probate to the OHA?

    We will refer a probate to the OHA under Sec. 15.204(b) if the 
probate specialist decides that a referral is appropriate. In deciding 
whether to refer a probate to the OHA, the probate specialist will 
consider all of the criteria listed below. The probate specialist will 
refer a case to the OHA based upon the following criteria:
    (a) Problems with the will. The probate specialist will refer the 
case to the OHA if the will:
    (1) Is likely to be contested;
    (2) Is complex or ambiguous; or
    (3) Is of questionable validity.
    (b) Contested claims. The probate will be referred to the OHA if 
you:
    (1) Contest a creditor claim; or
    (2) Contest a claim made by a family member.
    (c) Other problems. The probate will be referred to the OHA if:
    (1) There are substantial questions about family relationships;
    (2) There is a conflict in prior probates;
    (3) There are problems with the evidence;
    (4) The adoption of an heir is questionable;
    (5) You are seeking a presumption of death;
    (6) There are minor heirs whose rights may be jeopardized; or
    (7) The case involves determinations of escheat under 43 CFR 4.205.

Subpart D--Claims and Distributions


Sec. 15.301  What does the attorney decision-maker do with the probate 
package?

    The attorney decision-maker reviews the probate package and 
determines whether the issues of fact or law of the case indicate that 
the probate package should be referred to the OHA. If the probate 
package is not referred to the OHA, the attorney decision-maker will:
    (a) Determine validity of the will and any codicils;
    (b) Determine intestate heirs;
    (c) Determine beneficiaries in self-proved wills;
    (d) Approve claims according to Secs. 15.302 through 15.310; and
    (e) Issue a written decision.


Sec. 15.302  What happens if the decedent owes debts?

    The attorney decision-maker may order payment of some or all of the 
debts of the decedent.


Sec. 15.303  If the decedent owed me money, how do I file a claim?

    If you wish to make a claim against the estate of a decedent, you 
must submit to us an original and two copies of an itemized statement 
of the debt showing the amount of the original debt and the remaining 
balance on the date of the decedent's death as soon as possible. We 
must receive your claim within 60 days from the date of death to be 
included as part of the probate file.


Sec. 15.304  When will I know if my claim will be paid?

    The attorney decision-maker may direct the payment of some or all 
of the debts of the decedent after reviewing the probate package. No 
claim prohibited by 43 CFR part 4, subpart D will be paid. The order to 
pay claims will be included in the attorney decision-maker's final 
decision.


Sec. 15.305  Which claims will be paid first?

    The first claims to be paid, referred to as priority claims, are 
listed in paragraphs (a) through (d) of this section. Following payment 
of the priority claims, the attorney decision-maker will authorize all 
remaining claims, referred to as general claims. Priority claims that 
will be paid first are:
    (a) Funeral expenses (including the cemetery marker);
    (b) Medical expenses for the last illness; and
    (c) Nursing home or other care facility expenses.
    (d) A claim of the United States Government.


Sec. 15.306  Can the attorney decision-maker reduce claims?

    The attorney decision-maker has the discretion to decide that part 
or all of an otherwise valid claim is unreasonable and reduce the claim 
to a reasonable amount.
    (a) If a claim is reduced, the attorney decision-maker will 
authorize payment only of the reduced amount.
    (b) The attorney decision-maker may reduce both priority claims and 
general claims.


Sec. 15.307  What if there is not enough money in the IIM account to 
pay all claims?

    If there is not enough money in the IIM account to pay all claims, 
the attorney decision-maker will authorize payment of the priority 
claims first. If there is not enough in the IIM account to pay the 
priority claims, the attorney decision-maker will authorize payment of 
the priority claims on a pro rata basis.


Sec. 15.308  Will the BIA keep the estate open and use future income to 
pay claims?

    (a) The attorney decision-maker will review the history of the IIM 
account and may order the estate to remain open under the following 
conditions:

------------------------------------------------------------------------
                                 The account can
       If within * * *           generate * * *          Then * * *
------------------------------------------------------------------------
(1) 5 years.................  Enough money to pay   The attorney
                               at least 20 percent   decision-maker may
                               of the priority       order the estate to
                               claims.               remain open for up
                                                     to 5 years to pay
                                                     priority claims in
                                                     accordance with
                                                     Secs.  15.305-15.30
                                                     7.
(2) 3 years.................  Enough money to pay   The attorney
                               all of the priority   decision-maker may
                               claims and at least   order the estate to
                               20 percent of the     remain open for up
                               general claims.       to 3 years to pay
                                                     general claims in
                                                     accordance with
                                                     Secs.  15.305-15.30
                                                     7.
------------------------------------------------------------------------


[[Page 43902]]

    (b) If the attorney decision-maker decides that the IIM account 
cannot meet the requirements in paragraph (a)(1) of this section, the 
estate will be closed and any remaining balance in the IIM account will 
be distributed to the legal heirs. The unpaid balance of any claims 
will not be enforceable against the estate or any of its assets.


Sec. 15.309  Will the attorney decision-maker authorize payment of 
interest or penalties on claims?

    No. The attorney decision-maker will not authorize payment of 
interest or penalties charged after date of death as part of either 
priority claims or general claims.


Sec. 15.310  Will the BIA file tax returns for the decedent or the 
estate?

    No. It is the responsibility of the administrator of the estate to 
file any federal or state tax returns that may be required on behalf of 
the decedent or the estate.


Sec. 15.311  When will the BIA send me a copy of the probate decision?

    Within 30 working days after the attorney decision-maker has 
determined how the estate will be distributed, we will send all 
interested persons a written decision that identifies the heirs and the 
distribution of the trust and restricted property, including funds in 
the IIM account. It will also list the amounts of the claims to be 
paid. The decision will state what date it is mailed and how you may 
file an appeal.


Sec. 15.312  What happens after the decision is made?

    We will not pay claims or transfer property or money for 60 days 
after the decision is mailed to the interested persons. After 60 days, 
if there is no appeal, we will pay claims, transfer property or money 
according to the decision, and the LTRO will change its land title 
records for the trust and restricted property in accordance with the 
decision.

Subpart E--Appeals


Sec. 15.401  May I appeal the decision of the attorney decision-maker?

    You have a right to appeal the decision made by the attorney 
decision-maker if you are an interested party and are affected by the 
probate decision.


Sec. 15.402  How do I file an appeal?

    (a) To file an appeal, you may send or deliver a signed, written 
statement to the superintendent or field representative of the agency 
where the probate package was assembled that contains:
    (1) The name of the decedent;
    (2) A description of your relationship to the decedent:
    (3) An explanation of why you are appealing; and
    (4) Any errors you believe the attorney decision-maker made.
    (b) The superintendent or field representative will notify all 
other interested parties of the appeal in writing within ten working 
days from date of receipt of the appeal.


Sec. 15.403  How long do I have to file an appeal?

    You must send or deliver your written appeal within 60 days of the 
date that the attorney decision-maker mailed his decision to you. If 
you mail your appeal, it must be postmarked within 60 days of the date 
of the postmark of the decision.


Sec. 15.404  What will happen to the estate if an appeal is filed?

    We will refer your appeal to the OHA in accordance with 43 CFR Part 
4, Subpart D. We will not pay claims or distribute any funds or 
property, nor will the LTRO modify the land title records until the 
appeal has been resolved.


Sec. 15.405  If I miss the 60-day appeal period, do I have any other 
rights?

    (a) Yes. You have a right to file a written statement with the 
superintendent or field representative asking to have the decision 
changed for one or more of the following reasons:
    (1) You did not receive notice of the probate;
    (2) You have new evidence or information pertaining to the probate; 
or
    (3) Known evidence was not included in the probate package.
    (b) After we receive your request, we will forward it to the OHA 
for action in accordance with 43 CFR Part 4, Subpart D. After a request 
has been filed, we will not distribute any funds or property in the 
estate until directed by the OHA.

Subpart F--Information and Records


Sec. 15.501  If I have a question about a probate that has been 
assigned to an attorney decision-maker, may I contact the attorney 
decision-maker directly?

    No. In order to avoid communications with the attorney decision-
maker that might be interpreted as affecting the distribution of the 
estate, you should direct your questions to the attorney decision-
maker's clerk or the probate specialist.


Sec. 15.502  How can I find out the status of a probate?

    You may request information about the status of an Indian probate 
from any BIA agency or regional office. Information will be retrieved 
for you from a nationwide Indian probate tracking system.


Sec. 15.503  What is a nationwide Indian probate tracking system?

    A nationwide Indian probate tracking system is an electronic 
computer program that tracks all Indian probate proceedings that have 
been filed in BIA or OHA offices.

PART 114--SPECIAL DEPOSITS--[REMOVED AND RESERVED]

    2. Under authority of 25 U.S.C. 2, 25 U.S.C. 9; Pub. L. 97-100; and 
Pub. L. 97-257 part 114 is removed and reserved.

PART 115--TRUST FUNDS FOR TRIBES AND INDIVIDUAL INDIANS

    3. Part 115 is revised to read as follows:
Subpart A--Purpose, Definitions, and Public Information
Sec.
115.1   What is the purpose of this part?
115.2   What definitions do I need to know?
Subpart B--Trust Fund Accounts--Generally
115.100   Why is money held in trust for tribes and individual 
Indians?
115.101   What types of accounts are maintained for Indian trust 
funds?
115.102   What specific sources of money will OTFM accept for 
deposit into a trust fund account?

Frequently Asked Questions

115.103   If a tribe or individual Indian is paid directly under a 
lease, permit or contract of sale for trust land or trust resources, 
may the Secretary accept those payments from an account holder for 
deposit into a trust account?
115.104   If a direct payment for the use or sale of trust lands or 
resources is returned to the payor as undeliverable, may the payor 
present the payment to the BIA for deposit into a trust account?
115.105   If a tribe operates a business located on trust or 
restricted land, may the Secretary accept for deposit into a trust 
account profits from the business?
115.106   May the Secretary accept for deposit into a trust account 
money not specified in Sec. 115.102?
115.107   May the Secretary accept for deposit in a trust account 
money awarded or assessed by a court of competent jurisdiction?
115.108   When funds are awarded or assessed by a court of competent 
jurisdiction involving trust lands or resources, what documentation 
is required to deposit the funds into a trust account?
115.109   Will the Secretary accept administrative fees for deposit 
into a trust account?
115.110   How quickly will payments received on behalf of tribes or 
individual Indians be deposited?

[[Page 43903]]

Investments and Interest

115.111   Does money in a trust account earn interest?
115.112   How does the OTFM invest money in a trust account?
115.113   What is the interest rate earned on money in a trust 
account?
115.114   When does money in a trust account start earning interest?
Subpart C--Tribal Accounts
115.200   When does the OTFM open a tribal account?
115.201   How often will a tribe receive information about its trust 
account(s)?
115.202   May a tribe make a request to receive information about 
its account more frequently?
115.203   What information will be provided in a statement of 
performance?
115.204   Will an annual audit be conducted on tribal accounts?
115.205   Does a tribe have to submit an annual budget for use of 
its trust funds?
115.206   When a tribe is required to complete a budget for use of 
its trust funds, must the tribe submit the budget to the BIA for 
approval?
115.207   Does a tribe have any flexibility to modify its budget 
after the budget has been approved by the BIA?
115.208   Is a tribe responsible for expenditures that do not comply 
with an approved budget for those trust funds?
115.209   What will the OTFM consider in deciding how to meet a 
tribe's projected cash flow needs?
115.210   How will the BIA assist in the administration of tribal 
judgment fund accounts?
115.211   If a tribe withdraws money from its trust account for a 
particular purpose or project, may the tribe redeposit any money 
that was not used for the particular purpose or project?

Recovering Unclaimed Judgment Funds

115.212   What happens if a tribal member does not cash his or her 
judgment per capita check?
115.213   What steps will the OTFM take to locate an individual 
whose judgment per capita check is returned as undeliverable?
115.214   May the OTFM return money in a tribal per capita account 
to a tribal account?

Investing and Managing Money in Tribal Accounts

115.215   Can tribal trust fund investments made by the Department 
lose money?
115.216   May a tribe recommend how the OTFM invests the tribe's 
trust funds?
115.217   May a tribe directly invest and manage its trust funds?
115.218   May a tribe return funds to the OTFM that were previously 
withdrawn under the Trust Reform Act for investment by the tribe?

Requesting Money From Tribal Accounts

115.219   How does a tribe request money from its trust account?
115.220   May a tribe's request for a withdrawal of money from its 
trust account be delayed or denied?
115.221   How does the OTFM send money to a tribe?
Subpart D--Individual Indian Money (IIM) Accounts

General Provisions

115.300   What funds are held in an IIM account?
115.301   How many IIM accounts should a person have?
115.302   How long may I leave money in my IIM account?

Information About Your IIM Account

115.303   How do I obtain my IIM account balance?
115.304   What information will be provided in a statement of 
performance?
115.305   Will an annual audit be conducted on IIM accounts?
115.306   When will I receive a statement of performance?
115.307   Who has access to information about my account?
115.308   If I apply for a loan with a private lender, will the OTFM 
give the lender information about my account?
115.309   What information about an IIM account does the OTFM report 
to the Internal Revenue Service (IRS)?
115.310   How will I know how much income OTFM reported to the IRS?
115.311   Who is responsible for filing tax returns on trust income 
which may be reportable income?
115.312   If I apply for government funded public assistance will my 
IIM account balance be considered in determining my eligibility?

Moving and Changing Addresses

115.313   If I move to a new address how will I receive money from 
my IIM account?
115.314   How do I give the OTFM my new address?
115.315   If I move, will the post office forward my check to my new 
address?
115.316   If I don't have a permanent address or I move frequently, 
may I receive money from my IIM account?

Uncashed Checks and Stolen Checks

115.317   How long do I have to cash my IIM check?
115.318   What should I do if I cannot cash my check because it is 
torn or damaged?
115.319   How long do I have to request a replacement check?
115.320   What happens if I lose my check or I do not receive my 
check because it was stolen?
115.321   How long do I have to file a claim if my check was lost or 
stolen?
115.322   What happens if I do not file a claim for my check within 
one year from the date on the check?
115.323   Does the OTFM charge to stop payment on an IIM check?
115.324   Who may authorize a stop payment on my IIM check?

Depositing Money Into an IIM Account

115.325   May I deposit money into my IIM account?
115.326   May I redeposit IIM funds back into my trust account once 
I receive the money?
115.327   If a court orders that money be deposited into my IIM 
account, will the BIA or the OTFM honor the court order?

Withdrawing Money From an Unrestricted IIM Account

115.328   How do I withdraw money from my IIM account?
115.329   What is ``verifiable photo identification''?
115.330   What if I do not have any photo identification?
115.331   Where should I mail my request for a withdrawal from my 
IIM account?
115.332   How will the OTFM send me my money from my IIM account?
115.333   May I authorize the OTFM to make payments directly to a 
third party on my behalf?
115.334   Will the BIA ever withdraw money from my account without 
my authorization?
115.335   May I always withdraw money from my IIM account?
115.336   Will I receive notice when money is withdrawn from my IIM 
account?

Estate Accounts

115.337   Who inherits the money in an IIM account when an account 
holder dies?
115.338   May money in an IIM account be withdrawn after the death 
of an account holder but prior to the end of the probate 
proceedings?
115.339   If I am a non-Indian who has a life estate in income-
producing trust or restricted property, how do I receive the income?

Supervised Accounts

115.340   Who receives statements of performance for supervised 
accounts?
115.341   If an account is supervised does the account holder have 
to have a legal guardian?
115.342   Who appoints a legal guardian?
115.343   What are the qualifications for guardians who manage IIM 
accounts for individual account holders?
115.344   As a parent with custody of a minor or as a guardian of an 
account holder, what are my responsibilities?
115.345   If I am a parent with custody of a minor or a guardian of 
an account holder, may BIA disburse funds without my knowledge?
115.346   Who receives a copy of an approved distribution plan and 
any amendments to the annual plan?
115.347   What will we do if we find that a distribution plan has 
not been followed or a guardian or minor's custodial parent has 
acted improperly in regard to his or her duties involving the trust 
funds of an account holder?
115.348   When will the BIA authorize a withdrawal from a supervised 
account?

Supervised Accounts--Adults

115.349   Will the BIA place an adult's account under supervision at 
the request of the account holder or other interested party?
115.350   What is a social service assessment?

[[Page 43904]]

115.351   What happens once the BIA receives an order from a court 
of competent jurisdiction?
115.352   Who is responsible for performing a social services 
assessment?
115.353   What information must be included in a social services 
assessment?
115.354   Will the BIA notify me if a decision is made to place my 
account in supervised status?
115.355   How may I challenge a decision to place my account in 
supervised status?
115.356   How may I change my account status from supervised to 
unrestricted?
115.357   How will a supervised account be managed?
115.358   What must be in a distribution plan?
115.359   How may funds in a supervised account be used under a 
distribution plan?
115.360   What is the review process for a supervised account?
115.361   If I have a power of attorney for an account holder, may I 
withdraw money from the account holder's IIM account?
115.362   If I am incarcerated will the BIA automatically supervise 
my account?
115.363   How do I continue to receive my IIM funds and statements 
of performance if I am incarcerated?

Supervised Accounts--Minors

115.364   When will the BIA authorize withdrawals from a minor's 
account?
115.365   May the BIA permit a parent or legal guardian to receive 
funds from a minor's IIM account?
115.366   Will I automatically receive all my IIM funds when I turn 
18?
115.367   What do I need to do when I reach the age of majority to 
access my trust fund account?
115.368   Will my account lose its supervised status when I reach 
the age of majority?
115.369   Are there any reasons other than supervision that would 
prevent me from obtaining my funds once I reach the age of 18?
115.370   If I am an emancipated minor may I withdraw funds from my 
account?

Encumbered Accounts

115.371   Are all encumbrances on an IIM account the same?
115.372   What type of encumbrances may I place on my IIM account?
115.373   How may I request a voluntary hold on my account?
115.374   May I authorize the OTFM to make third party payments from 
my IIM account to pay my monthly bills or other obligations?
115.375   If I have a voluntary hold on my account, may I make a 
withdrawal from my account?
115.376   How do I remove a voluntary hold from my account?
115.377   When may I assign my current account balance and any 
future income to be deposited into my IIM account directly to a 
third party?
115.378   What amount of my IIM income may I assign directly to a 
third party for health care emergencies?
115.379   How will an assignment of IIM income made directly to a 
third party for health care emergencies be paid from my account?
115.380   May I assign future IIM income as security for a debt?
115.381   What must a third party do to acquire a right to receive 
disbursements from my IIM account?
115.382   If the court order specifies that my account be encumbered 
immediately, will the Secretary honor the court order before my time 
for a hearing has expired?
115.383   If I assign my income to a third party for health care 
emergencies or make an assignment of income as security for a 
secured loan under the Indian Finance Act, will my account be 
encumbered immediately?
115.384   If I have an involuntary encumbrance on my account, may I 
make withdrawals from my account?
115.385   When will BIA place an involuntary encumbrance on my IIM 
account?
115.386   How does the BIA determine the amount of an involuntary 
encumbrance?
115.387   When will the BIA remove an involuntary encumbrance?
115.388   If my account is supervised or involuntarily encumbered, 
when will the BIA develop a payment schedule?
115.389   Will the payment schedule developed to pay a debt or other 
obligation expire?
115.390   If I have multiple encumbrances on my trust account, will 
there be a priority of payment for those encumbrances?
Subpart E--Special Deposit Accounts
115.400   Who receives the interest earned on a special deposit 
account?
115.401   When will the money in a special deposit account be 
credited or paid out to the owner of the funds?
115.402   May administrative or land conveyance fees paid as federal 
reimbursements be deposited in a special deposit account?
115.403   May cash bonds (e.g., performance bonds, bid deposits, 
appeal bonds, etc.) be deposited into a special deposit account?
115.404   May the BIA deposit into a special deposit account money 
that is paid prior to approval of a conveyance or contract 
instrument for land sales, right-of-ways, resource sales, grazing, 
or leasing, etc.?
Subpart F--Hearing Process for Restricting an IIM Account
115.500   Under what circumstances may the BIA restrict my IIM 
account through supervision or an involuntary encumbrance?
115.501   Will I be notified if the BIA decides to place an 
involuntary encumbrance on or supervise my account?
115.502   How will the BIA notify me of its decision to place a hold 
on my account?
115.503   What happens if the notice by certified mail is returned 
to the BIA marked undeliverable?
115.504   When will the BIA restrict my IIM account once it has 
decided to involuntarily encumber or supervise my account?
115.505   What information will the BIA include in its notice ?
115.506   How do I request a hearing to challenge the BIA's decision 
to restrict my IIM account?
115.507   When will the BIA conduct a hearing to allow me to 
challenge its decision to restrict my account?
115.508   Will I be allowed to present personal testimony?
115.509   Will I be allowed to present witnesses?
115.510   Will I be allowed to question opposing witnesses?
115.511   May I be represented by an attorney at my hearing?
115.512   Will the BIA record the hearing?
115.513   Why is the hearing recorded?
115.514   How long after the hearing will the BIA make its final 
decision?
115.515   What happens if the BIA decides to supervise my account 
after my hearing?
115.516   What happens if the BIA or OST decides to restrict my 
account because of an administrative error which resulted in funds 
that I do not own being paid to me or a third party on my behalf?
115.517   If the BIA decides that the restriction on my account will 
be continued after my hearing, do I have the right to appeal that 
decision?
115.518   If I decide to appeal the BIA's decision made after my 
hearing, will BIA restrict my account during the appeal?
Subpart G--Appeals
115.600   Do I have a right to appeal any decision made under this 
part?
Subpart H--Records
115.700   Who owns the records associated with this part?
115.701   What are a tribe's obligations regarding trust fund 
records?
115.702   How long must a tribe keep its records?
Subpart I--Exceptions
115.801   Funds of deceased Indians of the Five Civilized Tribes
115.802   Assets of members of the Agua Caliente Band of Mission 
Indians
115.803   Osage Agency

    Authority: R.S. 441, as amended, R.S. 468, R.S. 465; 5 U.S.C. 
301; 25 U.S.C. 2; 25 U.S.C. 9; 43 U.S.C. 1457; 25 U.S.C. 4001; 25 
U.S.C. 161(a); 25 U.S.C. 162a; 25 U.S.C. 164; Pub. L. 87-283; Pub. 
L. 97-100; Pub. L. 97-257; Pub. L. 103-412; and Pub. L. 97-458.

Subpart A--Purpose, Definitions, and Public Information


Sec. 115.1  What is the purpose of this part?

    This part sets forth guidelines for the Secretary of the Interior 
to carry out his trust responsibility to tribes and individual Indians 
in managing and administering trust assets for the exclusive benefit of 
tribal and individual Indian beneficiaries.


Sec. 115.2  What definitions do I need to know?

    Account holder means a tribe or a person who owns the funds in a 
tribal or IIM account.

[[Page 43905]]

    Account means a record of trust funds owned by a tribe or a person.
    Adult means someone who has reached the age of majority.
    Adult in need of financial management assistance means an 
individual who is adjudicated by a court of competent jurisdiction to 
be in need of financial management assistance, as determined by a 
psychological or medical assessment that deems the individual incapable 
of administering or managing property or money and incapable of 
performing day-to-day living activities.
    Assignment of income means a transfer of interest for a specific 
amount of funds in or the total contractual amounts due to be paid into 
an IIM account within 12 months of the assignment to a third party for 
a health care emergency. BIA will not be a party to any assignment of 
income.
    Assignment of income as security means a transfer of interest for a 
specific amount of funds in or owed to an IIM account from future IIM 
income to a third party that is used as collateral for a loan. The 
assignment of income as security will only be acted upon in the event 
of default on the loan. The third party must present the assignment to 
a court of competent jurisdiction to perfect an interest in an IIM 
account unless the loan being secured is guaranteed under the Indian 
Finance Act.
    BIA means the Bureau of Indian Affairs, Department of the Interior, 
or its authorized representative.
    Cash bond, cash performance bond, surety bond means a bond for a 
sum of money to secure an action by the issuer of the bond up to the 
amount of the bond in the event of a default.
    Court of competent jurisdiction means a court with jurisdiction 
over the subject matter, usually a tribal or federal court.
    Day means a calendar day.
    Department means the Department of the Interior or its authorized 
representative.
    Deposits means receiving funds into a treasury general account 
normally through a Federal Reserve Bank.
    Emancipated minor means a person under 18 years of age who is 
married or who is determined by a court of competent jurisdiction to be 
legally able to care for himself or herself and to enter into a 
contract on his or her own behalf.
    Encumber or encumbrance means a limitation on the access to assets 
held by the Secretary, such as a claim against a specified amount of 
funds in an IIM encumbered account.
    Encumbered account means a trust fund account where some portion of 
the proceeds are obligated to third parties by court order or voluntary 
contractual agreements that have been approved by the BIA.
    Estate account means an account for a deceased IIM account holder. 
IIM accounts are classified as estate accounts at the time we receive 
notification of death and are maintained until the trust estate has 
been probated and the account balance has been distributed.
    FOIA means the Freedom of Information Act, 5 U.S.C. 552.
    Guardian means a person who is legally responsible for the care and 
management of an individual and his or her estate. This definition 
includes, but is not limited to, conservator or guardian of the 
property.
    Guardian bond means a type of surety bond posted by a guardian. In 
the event of a finding by a court of competent jurisdiction that there 
was mismanagement, malfeasance or theft by the guardian, the bond will 
be turned over to the account holder proportionally to the amount of 
damage.
    Indian land means:
    (1) Lands held by the United States in trust for a tribe or an 
individual Indian; or
    (2) Lands legally owned in fee simple by a tribe or an individual 
Indian that are subject to federal restrictions against alienation or 
encumbrance.
    Indian resources means any matter derived from Indian land which 
when extracted or used has economic value.
    Individual Indian Money (IIM) account means an interest bearing 
account for trust funds held by the Secretary that belongs to an 
individual Indian, an heir of an Indian account holder, or a life 
estate holder of Indian trust assets. These accounts are under the 
control and management of the Secretary. There are four categories of 
IIM accounts: unrestricted, restricted-supervised, restricted-
encumbered, and restricted estate accounts.
    IRS means the Internal Revenue Service.
    Judgment funds means funds awarded by the Indian Claims Commission 
or the United States Court of Federal Claims, and authorized and 
appropriated by the Congress of the United States to be used or 
distributed based on a plan approved by Congress.
    Judgment per capita means a distribution of funds among persons 
identified in the settlement or use and distribution plan.
    Judgment per capita IIM account means an IIM account established 
for a judgment per capita for minors.
    Legislative settlement means monetary compensation appropriated by 
the US Congress as trust funds.
    MSW means a Master of Social Work degree from an accredited college 
or university.
    Minor means a person who has not reached the age of 18, unless a 
Federal law, a judgment settlement, or a use and distribution plan 
specifies a different age for distribution of IIM funds.
    Non-compos mentis means an individual who has been found by a court 
of competent jurisdiction, based on established criteria that includes 
a psychological or medical evaluation, to be of unsound mind or 
incapable of transacting or conducting business and managing his or her 
own affairs.
    OST means the Office of the Special Trustee for American Indians, 
Department of the Interior, or its authorized representative.
    OTFM means the Office of Trust Funds Management, within the Office 
of the Special Trustee for American Indians, Department of the 
Interior, or its authorized representative.
    Perfect means to present documentation to a neutral party (i.e., 
the BIA or a court of competent jurisdiction) proving an interest in an 
IIM account based on an assignment of income or an assignment of income 
as security.
    Per capita means a distribution process under which persons 
entitled to funds receive a share.
    Power of attorney means an instrument authorizing a person to act 
as the agent of another. The power may be general or specific.
    Privacy Act means the Federal Privacy Act, 5 U.S.C. 552a.
    Probate means the process by which claims against an Indian estate 
are heard and considered, and then the trust and restricted property 
are transferred to the decedent's heirs, or other persons or entities 
entitled by law.
    Resolution means the formal manner in which a tribal government 
expresses its legislative will.
    Restricted lands means land that a tribe or individual Indian holds 
in fee simple title that is subject to limitations or restrictions 
against alienation.
    Secretary means the Secretary of the Interior or an authorized 
representative; it also means a tribe or tribal organization if that 
entity is administering specific programs, functions, services or 
activities, previously administered by the Secretary of the Interior, 
but now authorized under a Self-Determination Act contract (pursuant to 
25 U.S.C. 450f) or a Self-Governance compact (pursuant to 25 U.S.C. 
558cc).

[[Page 43906]]

    Special deposit account means a temporary account for the deposit 
of trust funds that cannot immediately be credited to the rightful 
account holder.
    Statement of performance means a quarterly report that identifies 
the source, type, and status of the funds; the beginning balance; the 
gains and losses; receipts and disbursements; and the ending balance.
    Supervised account means an account for minors, emancipated minors, 
and adults who have been judged to be non-compos mentis or in need of 
financial management assistance from which disbursements must be 
approved by the BIA.
    Surety bond means a contract by which one party agrees to make good 
up to the amount specified the default or debt of another.
    Tribal account or tribal trust account generally means an account 
for a federally recognized tribe that is held in trust by the 
Secretary.
    Tribal per capita account means a tribal account for judgment fund 
checks that have been returned to the Secretary as undeliverable to the 
account holder or where the judgment fund checks were not cashed by the 
account holder within 12 months of issuance of the check.
    Tribe means any Indian tribe, nation, band, pueblo, rancheria, 
colony, or community, including any Alaska Native Village or regional 
or village corporation as defined or established under the Alaska 
Native Claims Settlement Act which is federally recognized by the U.S. 
government for special programs and services provided by the Secretary 
to Indians because of their status as Indians. For this purpose, it 
also means two or more tribes joined for any purpose, the joint assets 
of which include funds held in trust by the Secretary.
    Trust account means a tribal account, an IIM account or a special 
deposit account for funds held in trust.
    Trust funds means money that the Secretary must accept into trust 
and deposits into a tribal account, IIM account, or a special deposit 
account.
    Trust personalty means money in an IIM account or owed to a 
decedent's IIM account at time of death.
    Trust Reform Act means the American Indian Trust Fund Management 
Reform Act of 1994, Pub.L. 103-412, 108 Stat. 4239, 25 U.S.C. 4001.
    Unrestricted account means an IIM account in which an individual 
Indian may determine the timing and amount of disbursements from the 
account.
    Us or We means the Secretary as defined in this part.
    Use and distribution plan means a document submitted to Congress by 
the Secretary on behalf of a tribe or enacted by Congress for the use 
of judgment funds or legislative document.
    Voluntary hold means a request by an individual with an 
unrestricted account to keep his or her trust funds in a trust account 
instead of having the funds automatically disbursed to the account 
holder.
    You means an IIM account holder, or his or her legal guardian.

Subpart B--Trust Fund Accounts--Generally


Sec. 115.100  Why is money held in trust for tribes and individual 
Indians?

    Congress has passed a number of laws that require the Secretary to 
establish trust fund accounts for Indian tribes and certain individual 
Indians who have an interest in Indian lands and resources or trust 
assets.


Sec. 115.101  What types of accounts are maintained for Indian trust 
funds?

    Indian trust funds are deposited in tribal accounts, Individual 
Indian Money (IIM) accounts, and special deposit accounts. The 
following table provides information on each of these trust accounts.

--------------------------------------------------------------------------------------------------------------------------------------------------------
        Type of trust account                        Qualified by                               Qualified by                         Description
--------------------------------------------------------------------------------------------------------------------------------------------------------
Individual Indian Money (IIM)         Unrestricted IIM.........................    .......................................  There are no restrictions on
 Account.                                                                                                                    these accounts. Funds may
                                                                                                                             be left on deposit, or paid
                                                                                                                             to the account holder based
                                                                                                                             upon instructions by the
                                                                                                                             account holder
                                      Restricted IIM...........................  Supervised...............................  These accounts are
                                                                                                                             established for:
                                                                                                                             Minors,
                                                                                                                             Emancipated minors,
                                                                                                                             Adults who are non-
                                                                                                                             compos mentis, and
                                                                                                                             Adults in need of
                                                                                                                             financial management
                                                                                                                             assistance.
                                                                                                                            Funds from these accounts
                                                                                                                             can be withdrawn only in
                                                                                                                             compliance with an approved
                                                                                                                             distribution plan.
                                                                                 Encumbered...............................  A restriction is placed on
                                                                                                                             the account until money
                                                                                                                             owed to a third party is
                                                                                                                             paid pursuant to a payment
                                                                                                                             plan. An encumbrance can be
                                                                                                                             placed on an account
                                                                                                                             involuntarily by the BIA.
                                                                                                                             The account holder may
                                                                                                                             withdraw any money above
                                                                                                                             the amount owed to the
                                                                                                                             third party.
                                                                                 Estate Account...........................  An account for a deceased
                                                                                                                             IIM account holder.
Tribal account......................  .........................................  .........................................  An account for trust funds
                                                                                                                             that belong to a tribe.
Special Deposit account.............  .........................................  .........................................  An account for the temporary
                                                                                                                             deposit of trust funds that
                                                                                                                             cannot be distributed
                                                                                                                             immediately to its rightful
                                                                                                                             owners.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Sec. 115.102  What specific sources of money will be accepted for 
deposit into a trust fund account?

    For tribal or IIM accounts, OTFM must accept proceeds on behalf of 
tribes or individual Indians from any of the following sources:

[[Page 43907]]



----------------------------------------------------------------------------------------------------------------
                                                                           Accounts
                                             -------------------------------------------------------------------
                                                                            Individual Indian money
                   Sources                                    --------------------------------------------------
                                                   Tribal                          Restricted       Restricted
                                                                 Unrestricted      supervised       encumbered
----------------------------------------------------------------------------------------------------------------
(a) Payments from the United States as a
 Result of--
    (1) Federal laws requiring deposits in                                         
     trust accounts.........................
    (2) Settlement of a claim related to                                           
     Indian lands or resources that requires
     the trust funds to be deposited in
     trust accounts.........................
    (3) A final order from a United States                                         
     court for a cause of action directly
     related to trust resources or assets
     requiring funds to be deposited in
     trust accounts.........................
    (4) Unspent forestry funds specifically             ...............  ...............  ...............
     appropriated as trust funds to the BIA.
    (5) Certain Federal assistance payments,  ...............  ...............            ...............
     such as VA benefits, Social Security,
     or Supplemental Security Income, but
     only if the account holder has a
     supervised account and the account
     holder does not have a legal guardian
     other than the BIA.....................
(b) Payments resulting from--
    (1) Purchase or use of Indian lands or                                         
     resources, including any late payment
     penalties, when paid directly to the
     Secretary..............................
    (2) Civil penalties for trespass on                                            
     Indian lands...........................
    (3) Default or breach of the terms of a                                        
     contract for the lease or purchase of
     Indian lands or resources arising from
     cash performance or surety bonds, or
     other source(s)........................
(c) Deposits from Indian Tribes--
    (1) Redeposit of tribal trust funds                 ...............  ...............  ...............
     previously withdrawn under an
     investment plan submitted and approved
     pursuant to the American Indian Trust
     Fund Management Reform Act of 1994,
     Pub.L. 103-412, 108 Stat. 4239, 25
     U.S.C. 4001 (Trust Reform Act).........
    (2) Tribal funds derived directly from           
     trust resources........................
    (3) Judgment funds legislation            ...............  ...............  ...............  ...............
     settlement withdrawn, but not spent,
     for a specific project. Documentation
     showing source of funds is required....
(d) Other--
    (1) Interest earned on trust fund                                              
     deposits...............................
    (2) Trust to trust transfers of trust     ...............                             
     funds from tribal accounts to existing
     IIM accounts of tribal members, or from
     IIM estate accounts to IIM accounts of
     heirs pursuant to probate orders.......
----------------------------------------------------------------------------------------------------------------

Frequently Asked Questions


Sec. 115.103  If a tribe or individual Indian is paid directly under a 
lease, permit or contract of sale for trust land or trust resources, 
may the Secretary accept those payments from an account holder for 
deposit into a trust account?

    No. Tribal and individual account holders should not forward direct 
payments they receive to the Secretary for deposit into a trust 
account. The BIA will return such direct payments to the account 
holders.


Sec. 115.104  If a direct payment for the use or sale of trust lands or 
resources is returned to the payor as undeliverable, may the payor 
present the payment to the BIA for deposit into a trust account?

    Yes. The payor must submit proof of attempted delivery, including 
additional information that may assist OTFM in ensuring payment to the 
correct account.


Sec. 115.105  If a tribe operates a business located on trust or 
restricted land, may the Secretary accept for deposit into a trust 
account profits from the business?

    The only funds that will be accepted into trust are those 
identified in Sec. 115.102.


Sec. 115.106  May the Secretary accept for deposit into a trust account 
money not specified in Sec. 115.102?

    No funds will be accepted in trust except from the sources 
specifically identified in the table in Sec. 115.102.


Sec. 115.107  May the Secretary accept for deposit in a trust account 
money awarded or assessed by a court of competent jurisdiction?

    Money awarded or assessed by a court of competent jurisdiction for 
a violation that affects Indian lands or resources, an approved trust 
agreement, or a trust land contract may be deposited into a trust 
account. Other funds awarded by a court of competent jurisdiction may 
not be deposited into a trust account.


Sec. 115.108  When funds are awarded or assessed by a court of 
competent jurisdiction involving trust lands or resources, what 
documentation is required to deposit the funds into a trust account?

    We must receive a copy of the court's order and the funds to be 
deposited.


Sec. 115.109  Will the Secretary accept administrative fees for deposit 
into a trust account?

    No. Administrative fees are not trust funds. Tribal programs that 
assess administrative fees may not deposit those funds into a trust 
account. However, a tribe may deposit administrative fees into a non-
interest bearing, non-trust tribal account with the BIA or in a private 
sector account in accordance with tribal policies.


Sec. 115.110  How quickly will payments received on behalf of tribes or 
individual Indians be deposited?

    Generally, deposits will be made within twenty-four hours of the 
receipt of funds, or no later than the close of business on the next 
business day following the receipt of funds, in a designated federal 
depository.

[[Page 43908]]

Investments and Interest


Sec. 115.111  Does money in a trust account earn interest?

    Yes. All money deposited in a trust account is invested and earns 
interest or yield returns, or both.


Sec. 115.112  How does the OTFM invest money in a trust account?

    The OTFM's investment decisions regarding trust funds are governed 
by federal statute. See 25 U.S.C. 161(a) and 162a.


Sec. 115.113  What is the interest rate earned on money in a trust 
account?

    The rate of interest changes based on how the money is invested and 
how those investments perform.


Sec. 115.114  When does money in a trust account start earning 
interest?

    Funds must remain on deposit at least one business day before 
interest is earned to the account. Interest earnings of less than one 
cent are not credited to any account.

Subpart C--Tribal Accounts


Sec. 115.200  When does the OTFM open a tribal account?

    A tribal account is opened when the OTFM receives income from the 
sources described in Sec. 115.102.


Sec. 115.201  How often will a tribe receive information about its 
trust account(s)?

    The OTFM will send each tribe a statement of performance every 
quarter, no later than 20 business days after the close of each 
calendar quarter. The calendar quarters end on March 31, June 30, 
September 30, and December 31.


Sec. 115.202  May a tribe make a request to receive information about 
its account more frequently?

    Yes. A tribe may contact the OTFM at any time to:
    (a) Request information about account transactions and balances;
    (b) Make arrangements to access account information electronically; 
or
    (c) Receive a monthly statement.


Sec. 115.203  What information will be provided in a statement of 
performance?

    The statement of performance will identify the source, type, and 
status of the trust funds; the beginning balance; the gains and losses; 
receipts and disbursements; and the ending account balance.


Sec. 115.204  Will an annual audit be conducted on tribal accounts?

    Each tribe will be notified when the Secretary has caused to be 
conducted an annual audit on a fiscal year basis of all the trust funds 
held by the United States for the benefit of tribes deposited or 
invested under 25 U.S.C. 162a. This notice will be provided in the 
first quarterly statement of performance following the audit.


Sec. 115.205  Does a tribe have to submit an annual budget for use of 
its trust funds?

    (a) Tribes must submit annual budgets to the BIA for:
    (1) Accounts with funds that have specific use and distribution 
plans;
    (2) Forest land assistance accounts; and
    (3) Other accounts, when required by federal law.
    (b) If there is no federal law that requires a tribe to submit an 
annual budget, a tribe does not need to submit an annual budget. 
However, tribes are encouraged to voluntarily submit annual projected 
cash flow needs to the OTFM because the plans assist the OTFM in 
developing prudent investment strategies to meet the tribe's needs.


Sec. 115.206  When a tribe is required to complete a budget for use of 
its trust funds, must the tribe submit the budget to the BIA for 
approval?

    Yes. If a tribe is required to develop a budget for the use of its 
trust funds, the budget must be submitted to the BIA for approval. The 
BIA will act on a budget request within thirty days. If BIA, after 
consultation with the OTFM, approves the budget, the BIA will forward 
the budget to the OTFM. If the budget is not approved, the BIA will 
return it to the tribe with an explanation of needed changes and will 
work with the tribe to obtain approval.


Sec. 115.207  Does a tribe have any flexibility to modify its budget 
after the budget has been approved by the BIA?

    When the BIA, after consultation with the OTFM, approves the 
budget, the BIA will specify, by dollar or percentage, the amount 
allowable for transfer among the approved budget categories. If a tribe 
wishes to exceed the amount allowed for transfer, an amended budget 
must be submitted to the BIA for approval. The BIA will approve or 
disapprove the budget modification request within 30 days. If the 
budget is not approved, the BIA will return it to the tribe with an 
explanation.


Sec. 115.208  Is a tribe responsible for expenditures that do not 
comply with an approved budget for those trust funds?

    Yes. If a tribe expends money for goods or services not within the 
approved budget, the Secretary may require the tribe to reimburse the 
trust fund account for those expenditures.


Sec. 115.209  What will the OTFM consider in deciding how to meet a 
tribe's projected cash flow needs?

    The OTFM, in conjunction with tribal officials, will review:
    (a) The balance of a tribe's trust funds;
    (b) The date when a tribe needs specific funds; and
    (c) Any requirements for the use and distribution of trust funds 
that were specified in congressional directives, court orders, court-
approved settlements, settlement agreements, bond or loan payments, or 
use and distribution plans.


Sec. 115.210  How will the BIA assist in the administration of tribal 
judgment fund accounts?

    (a) The BIA will provide technical assistance to a tribe in 
developing a judgment use and distribution plan if the tribe requests 
assistance or if Congress directs the BIA to provide that assistance.
    (b) The BIA will review all tribal requests for distribution of 
tribal judgment money and certify to the OTFM that each request 
complies with any requirements associated with the use of that money 
found in congressional directives, court orders, court-approved 
settlements, settlement agreements, bond or loan payments, or use and 
distribution plans.


Sec. 115.211  If a tribe withdraws money from its trust account for a 
particular purpose or project, may the tribe redeposit any money that 
was not used for the particular purpose or project?

    (a) A tribe may redeposit funds not used for a particular purpose 
or project if the tribe can provide documentation showing the source of 
the funds and if the funds were withdrawn in accordance with:
    (1) The terms of Trust Reform Act;
    (2) The terms of the legislative settlement; or
    (3) The terms of a judgment use and distribution plan.
    (b) Funds withdrawn from a tribe's proceeds of labor account may 
not be returned to a trust account.

Recovering Unclaimed Judgment Funds


Sec. 115.212  What happens if a tribal member does not cash his or her 
judgment per capita check?

    (a) If a tribal member does not cash his or her judgment per capita 
check within twelve months, the money will be deposited to a tribal per 
capita account where the funds will be held for the use of the tribal 
member or for disposition under Sec. 115.214.
    (b) If a tribal member's judgment per capita check is returned as 
undeliverable, the money is

[[Page 43909]]

immediately deposited into a tribal per capita account. Funds in a 
tribal per capita account are for the use of the tribal member or for 
disposition under Sec. 115.214.


Sec. 115.213  What steps will the OTFM take to locate an individual 
whose judgment per capita check is returned as undeliverable?

    The OTFM will notify a tribe of the judgment fund checks that have 
been returned as undeliverable and will take reasonable action, 
including utilizing electronic search tools, to locate the individual 
entitled to receive the judgment per capita funds after the funds are 
returned as undeliverable.


Sec. 115.214  May the OTFM return money in a tribal per capita account 
to a tribal account?

    Yes. A tribe may apply under 25 U.S.C. 164 and Pub. L. 87-283, 75 
Stat. 584 (1961), to have the unclaimed judgment per capita money 
returned to its account for the tribe's use after six years have 
passed.

Investing and Managing Money in Tribal Accounts


Sec. 115.215  Can tribal trust fund investments made by the Department 
lose money?

    Yes, a tribal trust fund investment can vary depending on the 
investment and, including but not limited to, any one or more of the 
following:
    (a) Current interest rates;
    (b) Whether the investment is held to its maturity; and
    (c) Original purchase price.


Sec. 115.216  May a tribe recommend how the OTFM invests the tribe's 
trust funds?

    (a) Tribes may recommend certain investments to the OTFM, but the 
recommendations must be in accordance with the statutory requirements 
set forth in 25 U.S.C. 161a and 162a. The OTFM will make the final 
investment decision based on prudent investment practices.
    (b) Upon request, the OTFM will consult with tribes at least 
annually to develop investment strategies to accommodate the cash flow 
needs of the tribe.


Sec. 115.217  May a tribe directly invest and manage its trust funds?

    Yes, a tribe may apply to withdraw some or all of its trust funds 
from the OTFM for management by the tribe. The request for withdrawal 
of funds must be in accordance with the Trust Reform Act requirements 
in 25 CFR part 1200 subpart (B).


Sec. 115.218  May a tribe return funds to the OTFM that were previously 
withdrawn under the Trust Reform Act for investment by the tribe?

    Yes, a tribe may return funds withdrawn under the Trust Reform Act 
to the OTFM, under the following conditions:
    (a) A tribe wishing to return funds withdrawn under the Trust 
Reform Act must make its request in writing to the OTFM.
    (b) A tribe may return all or part of the withdrawn funds to the 
OTFM.
    (c) No funds may be redeposited during the first six months after 
withdrawal.
    (d) Funds may only be returned a maximum of twice a year.
    (e) The return of trust funds must be in accordance with the Trust 
Reform Act requirements in 25 CFR part 1200 subpart (C).

Requesting Money From Tribal Accounts


Sec. 115.219  How does a tribe request money from its trust account?

    (a) Generally, before money may be withdrawn from a tribal trust 
account:
    (1) A tribe must submit to the BIA or the OTFM:
    (i) A written request signed by the proper authorizing officials, 
and
    (ii) An approved tribal resolution, or
    (2) A tribe may contact the OTFM to withdraw funds in accordance 
with the Trust Reform Act and 25 CFR part 1200.
    (b) However, by law or regulation additional documentation or 
information may be required to withdraw certain trust funds. If 
additional documentation or information is required, OTFM will notify 
the tribe of the additional requirement(s).
    (c) Upon receipt of all necessary documentation, the OTFM will 
process the request for disbursement and send the tribe the requested 
amount of money within one business day.


Sec. 115.220  May a tribe's request for a withdrawal of money from its 
trust account be delayed or denied?

    (a) Action on a tribe's request for a withdrawal may be delayed or 
denied if:
    (1) The tribe did not submit all the necessary documentation;
    (2) The tribe's request is not signed by the proper authorizing 
officials;
    (3) The tribe's request is in conflict with a settlement agreement 
or an approved use and distribution plan for the money they requested; 
or
    (4) The BIA or the OTFM requires clarification regarding the 
disbursement request.
    (b) If action on a tribe's request will be delayed or denied, the 
BIA or the OTFM will:
    (1) Notify the tribe within 10 working days of the date of a 
request made under Sec. 115.219(a)(1)-(2) or for requests under the 
Trust Reform Act, and
    (2) Provide technical assistance to the tribe to address any 
problems.


Sec. 115.221  How does the OTFM send money to a tribe?

    Whenever possible, funds will be sent electronically to a bank 
account designated by the tribe. If there are circumstances that 
preclude electronic payments, the OTFM will mail a check to an address 
specified by the tribe.

Subpart D--Individual Indian Money (IIM) Accounts

General Provisions


Sec. 115.300  What funds are held in an IIM account?

    See Sec. 115.102 for sources of trust funds that may be deposited 
into IIM accounts.


Sec. 115.301  How many IIM accounts should a person have?

    A person should have only one IIM account unless the account holder 
is entitled to receive judgment funds in addition to other trust 
income.


Sec. 115.302  How long may I leave money in my IIM account?

    You may leave your funds on deposit in an IIM account for as long 
as you choose. The only exception applies to non-Indian life estate 
holders. See Sec. 115.339.

Information About Your IIM Account


Sec. 115.303  How do I obtain my IIM account balance?

    We will send you a statement of performance every three months. If 
you need to know the balance of your account between statements, you 
may call any OTFM office or you may go in person to a BIA or OTFM 
office to request your current balance.


Sec. 115.304  What information will be provided in a statement of 
performance?

    The statement of performance will identify the source, type, and 
status of the funds; the beginning balance; the gains and losses; 
receipts and disbursements; and the ending balance.


Sec. 115.305  Will an annual audit be conducted on IIM accounts?

    Each IIM account holder will be notified when the Secretary has 
caused to be conducted an annual audit on a fiscal year basis of all 
trust funds held by the United States for the benefit of

[[Page 43910]]

individual Indians deposited or invested under 25 U.S.C. Sec. 162a. 
This notice will be provided in the first quarterly statement of 
performance following the audit.


Sec. 115.306  When will I receive a statement of performance?

    The Department will send each IIM account holder a statement of 
performance every quarter, not later than 20 business days after the 
close of a calendar quarter.


Sec. 115.307  Who has access to information about my account?

    The only people who may obtain information about your account are:
    (a) You;
    (b) your guardian, if you have a supervised account;
    (c) those DOI employees who are specifically authorized by the 
Secretary to access account information;
    (d) any other federal or state agency or tribal program for which 
you have given a signed authorization;
    (e) any third party to whom you have given a signed and notarized 
statement;
    (f) any federal court that orders us to provide the information; 
and
    (g) other parties permitted access under the Privacy Act.


Sec. 115.308  If I apply for a loan with a private lender, will the 
OTFM give the lender information about my account?

    Yes, if you or the private lender provides the OTFM with a signed 
notarized authorization from you to release the information.


Sec. 115.309  What information about an IIM account does the OST report 
to the Internal Revenue Service (IRS)?

    The OST will report annually to the IRS the account holder's name 
and address, tax identification number, taxable interest earned, and 
related earnings information on an IIM account.


Sec. 115.310  How will I know how much income is reported to the IRS?

    The account holder will be mailed a copy of the IRS Form 1099 that 
was sent to the IRS.


Sec. 115.311  Who is responsible for filing tax returns on trust income 
which may be reportable income?

    The following table lists the person responsible for filing taxes 
for each type of IIM account.

------------------------------------------------------------------------
          IIM account             Account holder         Tax filer
------------------------------------------------------------------------
Unrestricted..................  All..............  Account holder.
Restricted--Supervised........  non-compos mentis  Guardian, if there is
                                                    one, otherwise the
                                                    BIA may authorize
                                                    the use of account
                                                    funds to pay for the
                                                    preparation and
                                                    filing of your tax
                                                    return.
                                minor............  Parent or guardian.
                                emancipated minor  Account holder.
                                adult in need of   Guardian, if there is
                                 financial          one, otherwise the
                                 management         BIA may authorize
                                 assistance.        the use of account
                                                    funds to pay for the
                                                    preparation and
                                                    filing of your tax
                                                    return.
Restricted--Involuntary         All..............  Account holder.
 Encumbered.
Estate account................  All..............  Administrator or
                                                    Executor of the
                                                    estate. If the BIA
                                                    is administering the
                                                    trust estate, then
                                                    the BIA may
                                                    authorize the use of
                                                    account funds to pay
                                                    for the preparation
                                                    and filing for that
                                                    portion of the trust
                                                    estate.
Life estate...................  .................  Account holder.
------------------------------------------------------------------------

Sec. 115.312  If I apply for government-funded public assistance will 
my IIM account balance be considered in determining my eligibility?

    You must contact the agency providing the assistance to determine 
whether your IIM funds will be considered in determining eligibility 
for service(s).

Moving and Changing Addresses


Sec. 115.313  If I move to a new address how will I receive money from 
my IIM account?

    It is your responsibility to give the OTFM your new address so that 
the OTFM can mail your checks and other information about your account 
to you.


Sec. 115.314  How do I give the OTFM my new address?

    You may give the OTFM or the BIA your new address:
    (a) In person, but you must have your request for a change of 
address signed by a DOI employee to whom you have shown verifiable 
photo identification, See Sec. 115.329, or
    (b) Through the mail.
    (1) If you mail us a change of address you must include:
    (i) Your name,
    (ii) Your old address,
    (iii) Your new address, and
    (iv) Your notarized signature.
    (2) You may also provide any of the following information to assist 
us in verifying your account:
    (i) Your account number,
    (ii) Your birth date,
    (iii) Your social security number,
    (iv) Your tribal affiliation,
    (v) Your tribal enrollment number (if applicable), and
    (vi) Your phone number.


Sec. 115.315  If I move, will the post office forward my check to my 
new address?

    No. Federal law does not allow the post office to forward checks 
that are issued by the federal government. You must provide us with a 
change of address so that your check can be sent directly to your new 
address.


Sec. 115.316  If I don't have a permanent address or I move frequently, 
may I receive money from my IIM account?

    Yes. You may receive the money in your IIM account, but you must 
keep us updated on your current bank account information so that we can 
electronically deposit your funds or your most current address where we 
can send your checks.

Uncashed Checks and Stolen Checks


Sec. 115.317  How long do I have to cash my IIM check?

    The check is good for one year from the date printed on the check. 
If you do not cash your IIM check within one year of the check being 
issued, the check will be canceled and the money will be redeposited 
into your IIM account.


Sec. 115.318  What should I do if I cannot cash my check because it is 
torn or damaged?

    If your check is torn or damaged you must contact an OTFM office to 
request a replacement check.

[[Page 43911]]

Sec. 115.319  How long do I have to request a replacement check?

    You have one year from the date the check was issued to request a 
replacement check.


Sec. 115.320  What happens if I lose my check or I do not receive my 
check because it was stolen?

    If you lost your check or if your check was stolen, you must 
contact the OTFM to file a claim for the amount of the check and to 
request a stop payment on the check. See Sec. 115.323.


Sec. 115.321  How long do I have to file a claim if my check was lost 
or stolen?

    You have one year from the date on the check.


Sec. 115.322  What happens if I do not file a claim for my check within 
one year from the date on the check?

    If you do not file a claim within one year of the date on the 
check, one of two things may happen:
    (a) If the check has not been cashed within 12 months from the date 
on the check, the OTFM will re-deposit the money into your IIM account. 
If you have an unrestricted IIM account, a new check will be 
automatically sent after the funds have been credited to your account. 
If your account has a voluntary hold, the money will be credited to 
your account and will remain in the account until you make a request 
for withdrawal. If your account is restricted, the money will be 
credited to your account.
    (b) If your check has been cashed by someone else, the money will 
not be redeposited into your IIM account and you will not be able to 
request a new check. You may contact the OTFM to request a copy of the 
canceled check. The OTFM may be able to provide assistance in 
contacting the proper investigatory officials regarding your check.


Sec. 115.323  Does the OTFM charge to stop payment on an IIM check?

    No. The OTFM does not charge for this service.


Sec. 115.324  Who may authorize a stop payment on my IIM check?

    Account holders and guardians of account holders and estate 
administrators may place a stop payment on an IIM check. However, if we 
send you a check in error, the OTFM may place a stop payment on that 
check. The OTFM will notify you if it places a stop payment on your 
check.

Depositing Money into an IIM Account


Sec. 115.325  May I deposit money into my IIM account?

    No. You may not deposit money into your IIM account.


Sec. 115.326  May I redeposit IIM funds back into my trust account once 
I receive the money?

    No. IIM funds cannot be redeposited once withdrawn.


Sec. 115.327  If a court orders that money be deposited into my IIM 
account, will the BIA or the OTFM honor the court order?

    If the source of the money to be deposited is included in the chart 
in Sec. 115.102, we will deposit the funds ordered by a court.

Withdrawing Money From an Unrestricted IIM Account


Sec. 115.328  How do I withdraw money from my IIM account?

    (a) If you have an unrestricted IIM account, you may request a 
withdrawal from your account
    (1) In person, but you must have your request for withdrawal signed 
by a DOI employee to whom you have shown verifiable photo 
identification, see Sec. 115.329; or
    (2) Through the mail, but your signature on your request must be 
notarized.
    (b) You may request that the OTFM:
    (1) Make a one time withdrawal for you;
    (2) Automatically send you your total account balance when the 
account balance reaches a predetermined threshold amount; or
    (3) Send you a specific amount of money from your account on 
specific dates.


Sec. 115.329  What is ``verifiable photo identification''?

    If you make a request in person, you must provide the BIA or the 
OTFM with one of the following types of photo identification:
    (a) A valid driver's license;
    (b) A government-issued identification card, such as a passport or 
a security badge; or
    (c) A photo identification card issued by your tribe.


Sec. 115.330  What if I do not have any photo identification?

    If you cannot show us verifiable identification with your picture 
on it, we will talk with you and review information in your file to see 
if we can be certain that you are who you say you are. If we cannot 
verify your identity, we will not accept your request to withdraw funds 
from an IIM account.


Sec. 115.331  Where should I mail my request for a withdrawal from my 
IIM account?

    You may mail your request to your local OTFM office or to one of 
the regional offices that serves your current address. The address of 
your local OTFM office is printed on your quarterly statement of 
performance.


Sec. 115.332  How will the OTFM send me my money from my IIM account?

    The OTFM will either:
    (a) Make a direct deposit to your checking or savings account at a 
financial institution. A direct deposit into your checking or savings 
account will eliminate lost, stolen or damaged checks and the money 
will be available to you sooner as there is no mail time involved, or
    (b) Mail you a check.


Sec. 115.333  May I authorize the OTFM to make payments directly to a 
third party on my behalf?

    If your account balance will cover your payment authorization on 
the date payment is to be made, you may authorize the OTFM to make 
payments to third parties on your behalf. See Sec. 115.374.


Sec. 115.334  Will the BIA ever withdraw money from my account without 
my authorization?

    The BIA may withdraw money from your account only after a decision 
has been made to supervise or involuntarily encumber your IIM account. 
See subpart F of this part.


Sec. 115.335  May I always withdraw money from my IIM account?

    (a) If you have a supervised account, you will not be able to 
withdraw money from your account without BIA approval. See 
Sec. 115.348.
    (b) If you have an encumbered account and the entire account 
balance is encumbered, you will not be able to withdraw any money from 
your account. See Sec. 115.371 et seq.


Sec. 115.336  Will I receive notice when money is withdrawn from my IIM 
account?

    All transactions regarding your account will be reflected on your 
quarterly statement of performance which you should review to ensure 
that you are aware of all disbursements. In addition, if the OTFM 
transfers funds electronically to your checking or savings account, we 
will mail a notice each time that a deposit has been made.

Estate Accounts


Sec. 115.337  Who inherits the money in an IIM account when an account 
holder dies?

    At the end of all probate procedures, funds remaining in a 
decedent's IIM

[[Page 43912]]

account will be distributed or credited from the decedent's IIM account 
into an IIM account of the decedent's heirs, beneficiaries, or other 
persons or entities entitled by law to receive the funds. See 25 CFR 
Part 15.


Sec. 115.338  May money in an IIM account be withdrawn after the death 
of an account holder but prior to the end of the probate proceedings?

    If the IIM account has a minimum balance of $2,500.00, including 
any trust funds owed to the IIM account holder or estate on the date of 
death pursuant to sources of income in section 155.102, anyone 
responsible for making the funeral arrangements for the deceased 
account holder may make a written request to the BIA for funeral 
expenses up to $1,000.00. Payment will be made directly to the funeral 
service provider(s).


Sec. 115.339  If I am a non-Indian who has a life estate in income-
producing trust or restricted property, how do I receive the income?

    If a non-Indian has a life estate in trust or restricted property 
which is earning income, the OTFM will open an IIM-life estate account. 
The OTFM will deposit income from the trust or restricted property into 
the IIM-life estate account, and will send a check or directly deposit 
funds into a checking or savings account as soon as practicable after 
the receipt of the funds into the life estate account. Life estate 
funds are due to the life estate holder at the time funds are 
deposited.

Supervised Accounts


Sec. 115.340  Who receives statements of performance for supervised 
accounts?

------------------------------------------------------------------------
                                             Then the OTFM will send the
        If the account is for * * *         statement of performance to*
                                                         * *
------------------------------------------------------------------------
A minor...................................  The parent or guardian.
An emancipated minor......................  The account holder.
A non-compos mentis.......................  The guardian.
An adult in need of financial management    The guardian.
 assistance.
------------------------------------------------------------------------

Sec. 115.341  If an account is supervised does the account holder have 
to have a legal guardian?

------------------------------------------------------------------------
    If an account is supervised and the
          account holder is * * *            Then the account holder * *
----------------------------------------------------------*-------------
A minor...................................  Must have a parent or other
                                             legal guardian.
An emancipated minor......................  Is not required to have a
                                             guardian; however the
                                             account will be supervised.
Non-compos mentis.........................  Must have a guardian.
An adult in need of financial management    Must have a guardian.
 assistance.
------------------------------------------------------------------------

Sec. 115.342  Who appoints a legal guardian?

    A legal guardian can only be appointed by a tribal court or a 
federal court, whichever has competent jurisdiction over the Indian 
individual.


Sec. 115.343  What are the qualifications for guardians who manage IIM 
accounts for individual account holders?

------------------------------------------------------------------------
                                            If the guardian is * * *
            Qualifications             ---------------------------------
                                            Related        Not related
------------------------------------------------------------------------
Must not be a convicted felon.........                   
Must be over the age of 18............                   
Must live near the account holder.....                   
Must complete guardianship training,                     
 when required........................
Must have no conflict of interest.....  ...............         
Must post a surety bond, if required..  ...............         
------------------------------------------------------------------------

Sec. 115.344  As a parent with custody of a minor or as a guardian of 
an account holder, what are my responsibilities?

    If you are a parent with custody of a minor or a guardian of an 
individual with a supervised account, you must:
    (a) Work with the BIA to develop and sign an annual distribution 
plan;
    (b) Follow any applicable court order and the terms of an approved 
distribution plan;
    (c) Provide receipts for all expenses paid out of the account 
holder's IIM funds to the BIA social services official;
    (d) Review the statements of performance for the IIM account for 
errors;
    (e) File tax returns on behalf of the account holder; and
    (f) Notify the BIA social services of any change in circumstances 
that impairs your performance of your obligations under this part or 
that threatens the account holder's interest in his or her trust 
account.


Sec. 115.345  If I am a parent with custody of a minor or a guardian of 
an account holder, may BIA disburse funds without my knowledge?

    No. The BIA will only disburse funds in accordance with an approved 
distribution plan and the BIA will consult with the guardian/parent to 
develop the distribution plan.


Sec. 115.346  Who receives a copy of an approved distribution plan and 
any amendments to the annual plan?

    An annual distribution plan, once approved, will be made available 
to:
    (a) The account holder;
    (b) The parent with custody of a minor;
    (c) The guardian of an account holder; and
    (d) The BIA and the OTFM.


Sec. 115.347  What will we do if we find that a distribution plan has 
not been followed or a guardian or minor's custodial parent has acted 
improperly in regard to his or her duties involving the trust funds of 
an account holder?

    If we find that a distribution plan has not been followed, or a 
guardian or minor's custodial parent has failed to satisfactorily 
account for expenses or has not used account funds for the primary 
benefit of the beneficiary, or has otherwise failed to properly execute 
the payee's duties, we will:
    (a) Notify the guardian and the court which appointed the guardian; 
and
    (b) Take action to protect the interests of the account holder, 
which may include
    (1) Demanding repayment from any person improperly withdrawing or 
expending trust funds;
    (2) Proceeding against any bond posted by the guardian;
    (3) Immediately modifying the distribution plan for up to sixty 
days, including suspending the authority of a

[[Page 43913]]

guardian or minor's custodial parent to make further withdrawals; or
    (4) Referring the matter for civil or criminal legal action.


Sec. 115.348  When will the BIA authorize a withdrawal from a 
supervised account?

    The BIA may only authorize withdrawals from a supervised account in 
accordance with an approved distribution plan or an approved amendment 
to the distribution plan.

Supervised Accounts--Adults


Sec. 115.349  Will the BIA place an adult's account under supervision 
at the request of the account holder or other interested party?

    No. We will not place an adult's account under supervision at the 
request of the account holder or an interested party without an order 
by a court of competent jurisdiction stating that the adult is non 
compos mentis or in need of financial management assistance. However, 
an account holder or interested party may request orally or in writing 
that the BIA conduct a social services assessment to determine whether 
the BIA should recommend guardianship proceedings to a court of 
competent jurisdiction for the account holder.


Sec. 115.350  What is a social service assessment?

    A social service assessment is an evaluation of an account holder's 
circumstances and abilities, including the extent to which the account 
holder needs assistance in managing his or her affairs.


Sec. 115.351  What happens once the BIA receives an order from a court 
of competent jurisdiction?

    The BIA will perform a social services assessment, if not already 
completed.


Sec. 115.352  Who is responsible for performing a social services 
assessment?

    A BIA social worker will perform the assessment which must be 
approved by a BIA social worker who has a Master of Social Work degree.


Sec. 115.353  What information must be included in a social services 
assessment?

    A social services assessment must contain:
    (a) Identifying information about the account holder (for example, 
name, address, age, gender, social security number, telephone number, 
certificate of Indian blood, education level), family history and 
medical history of the account holder;
    (b) Description of the household composition: Information on each 
member of the household (e.g., name, age, and gender) and that person's 
relationship to the account holder;
    (c) The account holder's current resources and future income (e.g., 
VA benefits, retirement pensions, trust assets, employment income, 
judgment funds, general assistance benefits, unemployment benefits, 
social security income, supplemental security income and other 
governmental agency benefits);
    (d) A discussion of the circumstances which justify special 
services, including ability of the account holder to handle his or her 
financial affairs and to conduct day-to-day living activities. Factors 
to be considered should include, but are not limited to:
    (1) Age
    (2) Developmental disability
    (3) Chronic alcoholism or substance abuse
    (4) Lack of family assistance or social support systems, or 
abandonment
    (5) Self-neglect
    (6) Financial exploitation or abuse
    (7) Physical exploitation, neglect or abuse
    (8) Senility
    (9) Dementia
    (e) Documentation supporting the need for assistance (e.g., medical 
reports, police reports, court orders, letters from interested parties, 
prior assessments or evaluations, diagnosis by psychologist/
psychiatrist);
    (f) Summary of findings including proposed services and an annual 
distribution plan; and
    (g) Final recommendation signed by a BIA social worker with a MSW 
degree.


Sec. 115.354  Will the BIA notify me if a decision is made to place my 
account in supervised status?

    Yes. We will notify you of the decision to place your account under 
supervision based on a court order. The notice will advise you of your 
rights to request a hearing to challenge the decision to supervise your 
account. See subpart F of this part.


Sec. 115.355  How may I challenge a decision to place my account in 
supervised status?

    To challenge a decision by the BIA to supervise your account, you 
must request a hearing within forty (40) days from the date on the 
certified mail receipt of the letter that we mailed to you regarding 
the decision to supervise your account. See subpart F of this part.


Sec. 115.356  How may I change my account status from supervised to 
unrestricted?

    You may petition a court of competent jurisdiction to make a 
determination that you are capable of managing your financial affairs 
or not non compos mentis. If the court issues an order declaring that 
you are capable of managing your financial affairs or are no longer non 
compos mentis, the BIA will honor the court's decision and remove your 
account from supervision.


Sec. 115.357  How will a supervised account be managed?

    The BIA social services staff (in conjunction with a guardian) 
will:
    (a) Evaluate the needs of the account holder;
    (b) Develop an annual distribution plan and amendments to the 
distribution plan, as needed, for approval by the BIA;
    (c) Authorize the OTFM to distribute IIM funds in accordance with 
an approved distribution plan;
    (d) Monitor the implementation of the approved distribution plan to 
ensure that the funds are expended in accordance with the plan;
    (e) Review the supervised account every six months or more often as 
necessary if conditions have changed:
    (1) To warrant a recommendation to a court to change the status of 
the account holder, or (2) to modify the distribution plan.


Sec. 115.358  What must be in a distribution plan?

    A distribution plan must contain the following:
    (a) Information about the reasons for supervision, including
    (1) The date of all applicable guardianship orders and the court 
that issued them;
    (2) The date of the most recent applicable social services 
assessment and the name(s) of the preparer;
    (3) A concise statement of the reason for supervision; and
    (4) The name of the person or court who initiated the request for 
supervision.
    (b) The names and identifying information for individuals to whom 
disbursements may be made, including, as applicable
    (1) A guardian;
    (2) Any third parties, such as landlords or long-term-care 
facilities, to whom the BIA will make payment; and
    (3) The account holder, if an allowance is to be paid directly.
    (c) A description of what disbursements are authorized, including
    (1) The amounts that can be disbursed to each authorized payee;
    (2) The purposes for which disbursement may be made;
    (3) The frequency or dates of authorized disbursements
    (d) Any additional requirements, such as frequency and documents 
required for an accounting by the guardian;

[[Page 43914]]

    (e) The dates the disbursement plan was developed, approved, 
amended, and reviewed, and the date for the next scheduled review;
    (f) The signature of the BIA official approving the plan with the 
following certification:
    (1) The plan is in the best interest of the account holder, and
    (2) The guardian meets the criteria contained in Sec. 115.314.
    (g) The signature of the guardian, with date signed, certifying 
that he or she has read the plan or had it read to him or her and that 
the guardian will follow the disbursement plan.


Sec. 115.359  How may funds in a supervised account be used under a 
distribution plan?

    A distribution plan for an individual whose account is supervised 
may authorize disbursements and expenses for the primary benefit of the 
account holder. Such expenses may include, among other items, amounts 
for the account holder's food, clothing, shelter, medical care, 
transportation, education, institutional care, recreation, and 
religious observances, and for support of the account holder's minor 
dependents. Expenses must be reasonable in amount, considering the 
account holder's needs and available resources.


Sec. 115.360  What is the review process for a supervised account?

    A review will be conducted every six months and social services 
will:
    (a) Consult with a guardian to verify that the money was spent in 
accordance with a distribution plan by
    (1) Reviewing the receipts for an account holder's expenses, or
    (2) Accepting the court's accounting, if a court is monitoring the 
guardianship of IIM funds, instead of reviewing receipts from the 
guardian if that annual review includes accounting for the proceeds of 
an IIM account;
    (b) Review all case worker reports and notes, and any information 
submitted by the account holder;
    (c) Review BIA/OTFM account records to insure that withdrawals and 
payments were made in accordance with the distribution plan;
    (d) Decide whether the distribution plan needs to be modified; and
    (e) Evaluate the recommendation made to the court regarding the 
need for the guardianship of the account holder to continue.


Sec. 115.361  If I have a power of attorney for an account holder, may 
I withdraw money from the account holder's IIM account?

    No. We will not recognize a power of attorney for purposes of 
distributing money from an IIM account to anyone other than the account 
holder.


Sec. 115.362  If I am incarcerated will the BIA automatically supervise 
my account?

    No. Your account will not be automatically supervised just because 
you are in prison or in jail.


Sec. 115.363  How do I continue to receive my IIM funds and statements 
of performance if I am incarcerated?

    To continue receiving your IIM funds and statements of performance, 
you must notify the OTFM of your address change in accordance with 
Sec. 115.326 and the amount of money you wish to receive from your 
account.

Supervised Accounts--Minors


Sec. 115.364  When will the BIA authorize withdrawals from a minor's 
account?

    (a) Judgment fund account: withdrawals may only be made upon BIA 
approval of an application made under Pub.L. 97-458. See 25 CFR 1.2.
    (b) Other trust fund accounts: withdrawals may only be made under a 
BIA-approved distribution plan based on a justified need for the 
minor's health, education, or welfare.


Sec. 115.365  May the BIA permit a parent or legal guardian to receive 
funds from a minor's IIM account?

    The BIA will not permit a minor's parent or guardian to withdraw 
funds unless it is in accordance with an approved distribution plan. 
See Sec. 115.345.


Sec. 115.366  Will I automatically receive all my IIM funds when I turn 
18?

    No. We will not automatically send your IIM funds to you when reach 
the age of majority.


Sec. 115.367  What do I need to do when I reach the age of majority to 
access my trust fund account?

    You must contact the OTFM to request the withdrawal of any or all 
of your IIM funds.


Sec. 115.368  Will my account lose its supervised status when I reach 
the age of majority?

    Your account status will no longer be supervised when you reach the 
age of majority, unless a court of competent jurisdiction has found you 
to be non compos mentis or in need of financial management assistance 
and the BIA has decided to supervise your account.


Sec. 115.369  Are there any reasons other than supervision that would 
prevent me from obtaining my funds once I reach the age of 18?

    (a) If you have a judgment fund account, a tribal use and 
distribution plan for judgment funds may contain restrictions or 
requirements that must be met prior to obtaining your money once you 
turn 18 years of age.
    (b) If your account has tribal per capita funds, the tribe may 
specify that additional requirements be met prior to obtaining these 
funds.


Sec. 115.370  If I am an emancipated minor may I withdraw funds from my 
account?

    (a) For a judgment fund account: An emancipated minor may not make 
withdrawals from his or her account until the individual is no longer a 
minor. Exceptions are only granted upon the approval of an application 
made under Pub.L. 97-458. See 25 CFR 1.2.
    (b) For other IIM accounts: You may be able to withdraw some or all 
of your funds, but the BIA must approve all requests for withdrawals 
from your account. You may work with the BIA to develop a distribution 
plan to access the funds in your account. In no instance will the BIA 
allow an emancipated minor to make unsupervised withdrawals.

Encumbered Accounts


Sec. 115.371  Are all encumbrances on an IIM account the same?

    No, there are two types of encumbrances that may be placed on an 
IIM account:
    (a) Encumbrances, including placing a hold on the account, 
authorized by an account holder; and
    (b) Involuntary encumbrances authorized by the BIA.


Sec. 115.372  What type of encumbrances may I place on my IIM account?

    (a) You may:
    (1) Request a voluntary hold on your account so that your funds 
remain in your account;
    (2) Request that the OTFM make third-party payments out of your 
account;
    (3) Make an assignment of IIM income to a third party but only for 
health care emergencies under Secs. 115.377 and 115.378;
    (4) Make an assignment of IIM income as security for a debt to a 
third party; and
    (5) Make an assignment of IIM income as security for a debt that is 
secured under the authority of the Indian Finance Act.
    (b) The table below provides further information on encumbrances 
that may be placed on your account.

[[Page 43915]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Unrestricted accounts                                        Restricted accounts
                                 -----------------------------------------------------------------------------------------------------------------------
                                                                                                                   Assignment of IIM
                                   Voluntary hold on   Payments to third   Assignment of IIM   Assignment of IIM  income as security
                                   an account by the      parties as         income for a     income as security    for loans under      Child support
                                    account holder      directed by the       health care         for a loan      the Indian Finance       payments
                                                        account holder         emergency                                  Act
--------------------------------------------------------------------------------------------------------------------------------------------------------
Is BIA a signatory to the         No................  No................  No................  No................  Yes...............  No.
 encumbrance?
--------------------------------------------------------------------------------------------------------------------------------------------------------
Is a court order necessary to     No................  No................  No................  Yes...............  No................  Yes.
 encumber the account?
--------------------------------------------------------------------------------------------------------------------------------------------------------
May I make withdrawals from my    Yes, up to the balance in the account.
 account?
                                  Yes, where the account balance exceeds the amount of the encumbrance and based
                                                                on the payment plan.
--------------------------------------------------------------------------------------------------------------------------------------------------------
May an account be overdrawn to    No................  No................                                        No.
 fulfill an encumbrance?
--------------------------------------------------------------------------------------------------------------------------------------------------------
When will the encumbrance be       OTFM will remove the encumbrance upon
 removed?                              request by the account holder.
                                  OTFM will remove the encumbrance upon receipt of notification that the debt or
                                          obligation is satisfied or upon expiration of the payment plan.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Who may authorize the removal of  Account holder....  Account holder....  BIA...............  BIA...............  BIA...............  Court of competent
 an encumbrance?                                                                                                                       jurisdiction.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Sec. 115.373  How may I request a voluntary hold on my account?

    You must contact the OTFM to authorize a voluntary hold on any or 
all income that is currently in or will be deposited into your IIM 
account.


Sec. 115.374  May I authorize the OTFM to make third-party payments 
from my IIM account to pay my monthly bills or other obligations?

    You may authorize the OTFM to make third-party payments from your 
IIM account, but your account balance on the date of payment must be 
sufficient to cover your authorized payments. If your account balance 
is insufficient to cover your authorized payment(s) in full, no 
payment(s) will be made, including partial payment(s). The OTFM will 
notify you if the payment(s) was not made because of an insufficient 
account balance.


Sec. 115.375  If I have a voluntary hold on my account, may I make a 
withdrawal from my account?

    You may withdraw any amount up to your current balance.


Sec. 115.376  How do I remove a voluntary hold from my account?

    Contact the OTFM to authorize the removal of a voluntary hold.


Sec. 115.377  When may I assign my current account balance and any 
future income to be deposited into my IIM account directly to a third 
party?

    The BIA will only honor an assignment of IIM income for health care 
emergencies made directly to a service provider for prescription drugs, 
medical equipment or other medical needs as supported by a physician's 
prescription or a physician's written recommendation.


Sec. 115.378  What amount of my IIM income may I assign directly to a 
third party for health care emergencies?

    You may only assign and the BIA will only recognize an assignment 
of IIM income in an amount that is not greater than your current 
account balance plus the total contractual amounts due to be paid into 
the IIM account within one year from the date of the assignment of 
income made directly to a third party to pay for a health care 
emergency as defined in Sec. 115.377. After the assignment of income is 
presented to the BIA, the assignment of income will no longer be 
voluntary. No trust account will be overdrawn to make third-party 
payments.


Sec. 115.379  How will an assignment of IIM income made directly to a 
third party for health care emergencies be paid from my account?

    An assignment of income made directly to a third party in 
accordance with Sec. 115.337 must be presented to the BIA for payment. 
The BIA will honor the direct assignment by authorizing an involuntary 
hold on your current and future account balance up to the amount you 
assigned for payment. Payments to third parties will be made in 
accordance with a payment plan. No account will be overdrawn to make 
third-party payments.


Sec. 115.380  May I assign future IIM income as security for a debt?

    Yes, you may make an assignment of IIM income as security for a 
debt. However, unless the debt is secured under the authority of the 
Indian Finance Act, the creditor must perfect the security interest by 
obtaining an order from a court of competent jurisdiction specifying 
the amount of the debt to be secured by your assignment of IIM income 
prior to presenting the court order to the BIA for payment. We will not 
pre-approve or be a signatory party to any account holder's assignment 
of IIM income as security unless the debt being secured is secured 
under the authority of the Indian Finance Act. If the debt is secured 
under

[[Page 43916]]

the Indian Finance Act, the BIA will be a signatory party to the 
account holder's assignment of IIM income as security and the creditor.


Sec. 115.381  What must a third party do to acquire a right to receive 
disbursements from my IIM account?

    (a) Before the BIA will consider placing an involuntary encumbrance 
on an IIM account, a third party must:
    (1) Perfect an assignment of IIM income as security in a court of 
competent jurisdiction by obtaining an order/judgment stating the 
amount to be paid under the assignment unless the debt being secured is 
a debt secured under the authority of the Indian Finance Act;
    (2) Perfect with the BIA an assignment of IIM income as security 
for a debt that was secured under the authority of the Indian Finance 
Act to determine the amount to be paid under the assignment. To perfect 
this interest, the third party must present to the BIA the original 
loan documentation, payment history, date of default, proposed payment 
schedule, and proof of assignment;
    (3) Obtain an order or judgment from a court of competent 
jurisdiction for child support; or
    (4) Present an assignment of income made by an account holder for a 
health care emergency as defined by Sec. 115.377.
    (b) Once a court of competent jurisdiction has issued an order for 
third party claims under paragraphs (a)(1) and (a)(3) stating the 
amount owed or the amount to be paid to the creditor or awardee, the 
creditor or awardee must present the order to the BIA.


Sec. 115.382  If the court order specifies that my account be 
encumbered immediately, will the Secretary honor the court order before 
my time for a hearing has expired?

    No. A hold will not be placed on your account until five days after 
the date on which BIA mailed your notice or after five days after the 
final publication of your public notice.


Sec. 115.383  If I assign my income to a third party for health care 
emergencies or make an assignment of income as security for a secured 
loan under the Indian Finance Act, will my account be encumbered 
immediately?

    No. A hold will not be placed on your account until five days after 
the date on which BIA mailed your notice or after five days after the 
final publication of your public notice.


Sec. 115.384  If I have an involuntary encumbrance on my account, may I 
make withdrawals from my account?

    If the encumbrance(s) on your IIM account are less than your 
current account balance, you may withdraw the difference between the 
amount owed or obligated and the remaining balance.


Sec. 115.385  When will BIA place an involuntary encumbrance on my IIM 
account?

    (a) The BIA may place an involuntary encumbrance on your IIM 
account for a specific amount of money to pay:
    (1) A child support order from a court of competent jurisdiction;
    (2) A debt owed to the United States;
    (3) A debt secured under the authority of the Indian Finance Act 
where the account holder assigned his or her IIM income as security for 
the loan and the lender has presented the BIA with the loan documents, 
payment history, date of default, and schedule of payments;
    (4) A debt or claim where an account holder assigned his or her IIM 
income as security for a transaction and there is an order from a court 
of competent jurisdiction stating the amount of the debt to be paid 
from the account holder's IIM account;
    (5) An assignment of income for a health care emergency made by an 
account holder to a service provider under Secs. 115.377 and 115.378; 
and
    (6) Debt(s) ordered to be paid under a probate order.
    (b) Before an IIM account is involuntarily encumbered by the BIA, 
the BIA will decide whether and what amount of the court ordered debt, 
child support award, or assignment of income will be paid from the 
account and develop a schedule for third-party payment.
    (c) The BIA will not authorize payment to third parties under an 
involuntary hold until the account holder has been given an opportunity 
for a hearing. See subpart F of this part.


Sec. 115.386  How does the BIA determine the amount of an involuntary 
encumbrance?

    The BIA will review all claims against an IIM account and will only 
recognize those listed in Sec. 115.385. The BIA will determine the 
amount of money to be paid to a third party and the payment schedule 
based on the claim against your IIM account, the resources available to 
you, and the amount of funds in your account. The BIA will also 
consider your basic welfare needs such as food, clothing, and shelter 
in making its determination.


Sec. 115.387  When will the BIA remove an involuntary encumbrance?

    (a) The BIA will authorize the removal of an involuntary 
encumbrance under the following circumstances:
    (1) If the BIA decides during the hearing process that the debt or 
obligation should not be paid from your IIM account; or
    (2) Upon satisfaction of your debt or obligation.
    (b) The BIA will notify the account holder that it has authorized 
the removal of the involuntary encumbrance.


Sec. 115.388  If my account is supervised or involuntarily encumbered, 
when will the BIA develop a payment schedule?

    (a) If your account is supervised, the BIA will develop an annual 
distribution plan in consultation with you and/or your guardian.
    (b) If your account is involuntarily encumbered a distribution plan 
will be developed by the BIA prior to making any third party payments 
from your account. However, this plan may be modified based upon future 
claims against your account.


Sec. 115.389  Will the payment schedule developed to pay a debt or 
other obligation expire?

    Yes. The payment schedule should state the time period in which 
third-party payments are to be made from your account. However, if a 
payment schedule does not specify a final payment date, the payment 
schedule will expire when the obligation or debt is paid in full or in 
five (5) years from the initial date of the restriction. However, there 
will be no expiration date for a payment schedule to fulfill a child 
support award other than the time period specified in the court order.


Sec. 115.390  If I have multiple encumbrances on my trust account, will 
there be a priority of payment for those encumbrances?

    (a) Yes, the encumbrances will be paid with the following priority:
    (1) A child support order from a court of competent jurisdiction;
    (2) A debt to the United States;
    (3) Assignment of income as security for a secured debt under the 
Indian Finance Act;
    (4) A federal court order;
    (5) A tribal court order;
    (6) Assignment for a heath care emergency made in accordance with 
Sec. 115.377.
    (b) Where there is more than one encumbrance in one of the 
preceding categories, the encumbrance will be paid in the order 
received (i.e., first in time).
    (c) Whenever a new encumbrance is placed on an account, the BIA 
will review all payment schedules and revise as necessary.

[[Page 43917]]

Subpart E--Special Deposit Accounts


Sec. 115.400  Who receives the interest earned on a special deposit 
account?

    Generally, interest follows principal. The tribal or individual 
account holder who owns the money will receive the interest earned in a 
special deposit account. The amount of interest paid will be directly 
proportional to the amount of principal owned by the account holder.


Sec. 115.401  When will the money in a special deposit account be 
credited or paid out to the owner of the funds?

    The OTFM will disburse the money from a special deposit account as 
soon as the BIA certifies the ownership of the funds.


Sec. 115.402  May administrative or land conveyance fees paid as 
federal reimbursements be deposited in a special deposit account?

    No. Administrative or land conveyance fees that are paid to 
reimburse the federal government for services provided will be retained 
by the BIA to cover the cost of such services.


Sec. 115.403  May cash bonds (e.g., performance bonds, bid deposits, 
appeal bonds, etc.) be deposited into a special deposit account?

    No. All cash bonds held by the Secretary will be deposited in non-
interest bearing accounts until the term of the bonds expire.


Sec. 115.404  May the BIA deposit into a special deposit account money 
that is paid prior to approval of a conveyance or contract instrument 
for land sales, right-of-ways, resource sales, grazing, or leasing, 
etc.?

    No. All payments made prior to the BIA's approval of a transaction 
will be deposited by the BIA into a non-interest bearing, non-trust 
account. Once the transaction is approved by the BIA, the funds will be 
deposited into a trust fund account.

Subpart F--Hearing Process for Restricting an IIM Account


Sec. 115.500  Under what circumstances may the BIA restrict my IIM 
account through supervision or an involuntary encumbrance?

    (a) Your IIM account may be restricted through an involuntary 
encumbrance if:
    (1) The BIA receives an order or judgment from a court of competent 
jurisdiction:
    (i) Perfecting an assignment of IIM income as security; or
    (ii) Awarding child support from your IIM account; or
    (2) The BIA is presented with your signed direct assignment of IIM 
income for a health care emergency as defined by Sec. 115.377.
    (3) The BIA is presented with your assignment of IIM income as 
security for a debt that is secured under the authority of the Indian 
Finance Act.
    (b) Your IIM account may be restricted through supervision if the 
BIA receives an order from a court of competent jurisdiction that you 
are non-compos mentis or an adult in need of financial management 
assistance.
    (c) Your IIM account may be restricted through an involuntary 
encumbrance if an administrative error caused a deposit or disbursement 
to be made to you, your IIM account, or to a third party on your 
behalf.


Sec. 115.501  Will I be notified if the BIA decides to place an 
involuntary encumbrance on or supervise my account?

    If the BIA decides to place an involuntary encumbrance on or 
supervise your IIM account, the BIA will notify you and provide you 
with an opportunity to challenge the decision.


Sec. 115.502  How will the BIA notify me of its decision to place a 
hold on my account?

    The BIA will notify you of its decision by:
    (a) Certified mail to your address;
    (b) Personal delivery to you or your address;
    (c) Publication in your tribal newspaper if your whereabouts are 
unknown and in the local newspaper serving your last known mailing 
address; or
    (d) First class mail to you in care of the warden, if you are 
incarcerated. The BIA may send a copy of the notification to your 
attorney if known.


Sec. 115.503  What happens if the notice by certified mail is returned 
to the BIA marked undeliverable?

    If the notice by certified mail is returned to the BIA marked 
undeliverable, the BIA will remove the restriction, which was placed on 
your account five days after the notice was mailed, and will publish a 
notice in accordance with Sec. 115.502(c).


Sec. 115.504  When will the BIA restrict my IIM account once it has 
decided to involuntarily encumber or supervise my account?

    The BIA will place a restriction on your account:
    (a) 5 days after the BIA mails you a notice of its decision to 
restrict your account;
    (b) 1 day after personal delivery to you or your address of BIA's 
notice of its decision to restrict your account; or
    (c) 5 days after the final publication of your public notice of 
BIA's decision to restrict your account.


Sec. 115.505  What information will the BIA include in its notice ?

    (a) A letter providing notice of the BIA's decision to restrict 
your account must contain:
    (1) The name on the account;
    (2) The amount and reason for the restriction;
    (3) An explanation that your IIM account will be restricted 5 days 
after the date on the certified mail receipt on your notice;
    (4) Information explaining that you have 40 days from the date on 
the certified mail receipt on your notice to request a hearing to 
challenge the restriction;
    (5) Information that explains how to request a hearing;
    (6) Information that the BIA will conduct the hearing and that you 
are assured a fair hearing;
    (7) A copy of the fair hearing guidelines;
    (8) Information that you may contact the BIA to authorize immediate 
payment from your IIM account to pay the claim;
    (9) The address and phone number of the BIA office that provided 
the notice; and
    (10) Other information as may be determined appropriate by the BIA.
    (b) Public notice of the BIA's decision to restrict your account 
must contain:
    (1) The name on the account;
    (2) The initial publication date;
    (3) A statement that the BIA has been presented with a claim 
against your account;
    (4) A statement that the BIA has decided to place a restriction on 
your account to pay the claim;
    (5) A statement that the public notice will be published once a 
week for four consecutive weeks and that the initial publication date 
will be the first week of publication;
    (6) A statement that the BIA will place a restriction on your 
account 5 days from the date of the fourth publication of the public 
notice;
    (7) A statement that you have 30 days from the fourth publication 
date to challenge the BIA's decision to restrict your account; and
    (8) An address and telephone number of the BIA office publishing 
the notice to request further information and instructions on how to 
request a hearing to challenge the decision.

[[Page 43918]]

Sec. 115.506  How do I request a hearing to challenge the BIA's 
decision to restrict my IIM account?

    You must contact the BIA office that provided you notice of the 
restriction to request a hearing. Your request must:
    (1) Be in writing;
    (b) Specifically request a hearing to challenge the restriction;
    (c) Be postmarked within:
    (1) 40 days of the date of the certified mail receipt on your 
notice from the BIA or the date of personal delivery of your letter of 
notice, or
    (2) 30 days of the final publication date of the public notice.


Sec. 115.507  When will the BIA conduct a hearing to allow me to 
challenge its decision to restrict my account?

    The BIA will conduct a hearing within 10 working days from its 
receipt of your written request for a hearing.


Sec. 115.508  Will I be allowed to present testimony?

    Yes. You will be provided the opportunity to present testimony 
during your hearing. You may not challenge the court order or judgment 
in this proceeding. Your testimony must be confined to why your IIM 
account should not be restricted.


Sec. 115.509  Will I be allowed to present witnesses?

    Yes. You may present witnesses during a hearing. However, you are 
responsible for any and all expenses incurred with presenting 
witnesses.


Sec. 115.510  Will I be allowed to question opposing witnesses?

    Yes. You may question all opposing witnesses in your hearing and 
present witnesses to challenge opposing witness testimony.


Sec. 115.511  May I be represented by an attorney at my hearing?

    Yes. You may, at your own expense, have an attorney or other person 
represent you at your hearing.


Sec. 115.512  Will the BIA record the hearing?

    Yes. The BIA will record the hearing.


Sec. 115.513  Why is the hearing recorded?

    The hearing record must be made available for review if the hearing 
process is appealed under Sec. 115.600. The record must be preserved in 
accordance with Subpart H of this part.


Sec. 115.514  How long after the hearing will the BIA make its final 
decision?

    The BIA will provide a final written decision to all parties within 
10 working days of the hearing.


Sec. 115.515  What happens if the BIA decides to supervise my account 
after my hearing?

    BIA social services staff will consult with you and/or your 
guardian to develop an annual distribution plan. Upon approval by the 
BIA, the distribution plan will be valid for one year.


Sec. 115.516  What happens if the BIA or OST decides to restrict my 
account because of an administrative error which resulted in funds that 
I do not own being paid to me or a third party on my behalf?

    The DOI will consult with the account holder to develop a repayment 
plan.


Sec. 115.517  If the BIA decides that the restriction on my account 
will be continued after my hearing, do I have the right to appeal that 
decision?

    Yes, you have the right to appeal the BIA's decision under 
Sec. 115.600.


Sec. 115.518  If I decide to appeal the BIA's decision made after my 
hearing, will BIA restrict my account during the appeal?

    Yes. Your account will be restricted up to the amount at issue in 
the appeal. No third-party payments will be made until your appeal is 
decided.

Subpart G--Appeals


Sec. 115.600  Do I have a right to appeal any decision made under this 
part?

    Appeals from an action taken by the BIA may be taken pursuant to 25 
CFR part 2, subject to the terms of subpart F in this part.

Subpart H--Records


Sec. 115.700  Who owns the records associated with this part?

    Any records generated in fulfillment of this part are the property 
of the United States.


Sec. 115.701  What are a tribe's obligations regarding trust fund 
records?

    (a) A tribe must make and preserve all financial records that track 
the source and use of all trust fund expenditures under an approved 
budget.
    (b) Tribal records documenting expenditures of trust funds under an 
approved budget are considered to be federal records that are subject 
to the Federal Records Act, 44 U.S.C. Chapter 31 et seq.


Sec. 115.702  How long must a tribe keep its records?

    A tribe must preserve its records documenting expenditures of trust 
funds for the period of time authorized by the Archivist of the United 
States for similar Department of the Interior records in accordance 
with 44 U.S.C. Chapter 33. The records, and related records management 
practices and safeguards required under the Federal Records Act, are 
subject to inspection by the Secretary and the National Archives and 
Records Administration.

Subpart I--Exceptions


Sec. 115.801  Funds of deceased Indians of the Five Civilized Tribes.

    Funds of a deceased Indian of the Five Civilized Tribes may be 
disbursed to pay ad valorem and personal property taxes, Federal and 
State estate and income taxes, obligations approved by the Secretary or 
his authorized representative prior to the death of the decedent, 
expenses of last sickness and burial, and claims found to be just and 
reasonable which are not barred by the statute of limitations, costs of 
determining heirs to restricted property by the State courts, and 
claims allowed pursuant to part 16 of this chapter.


Sec. 115.802  Assets of members of the Agua Caliente Band of Mission 
Indians.

    (a) The provisions of this section apply to money or other 
property, except real property, held by the United States in trust for 
such Indians, which may be used, advanced, expended, exchanged, 
deposited, disposed of, invested, and reinvested by the Director, Palm 
Springs Office, in accordance with the Act of October 17, 1968 (Pub. L. 
90-597). The management or disposition of real property is covered in 
other parts of this chapter.
    (b) Investments made by the Director, Palm Springs Office, under 
the Act of October 17, 1968, supra, shall be of such a nature as will 
afford reasonable protection of the assets of the individual Indian 
involved. The Director is authorized to enter into contracts for the 
management of the assets (except real property) of individual Indians. 
The consent of the individual Indian concerned must be obtained prior 
to the taking of actions affecting his assets, unless the Director 
determines, under the provisions of section (e) of the Act, that 
consent is not required.
    (c) The Director may, consistent with normal business practices, 
establish appropriate fees for reports he requires from guardians, 
conservators, or other fiduciaries appointed under State law for 
members of the Band.


Sec. 115.803  Osage Agency.

    The provisions of this part do not apply to funds the deposit or 
expenditure of which is subject to the provisions of part 117 of this 
chapter.

PART 162--LEASES AND PERMITS

    4. Part 162 is revised to read as follows:

[[Page 43919]]

Subpart A--Purpose and Definitions
Sec.
162.1   What is the purpose of this part?
162.2   What key terms do I need to know?
Subpart B--General Lease Provisions and Requirements
162.3   What leases are covered by this subpart?

General Provisions

162.4   Do tribal laws apply to leases?
162.5   How will the Secretary implement tribal laws on Indian 
agricultural lands?
162.6   What tribal policies will we apply for leasing on Indian 
agricultural lands?
162.7   May individual Indian landowners exempt their land from 
tribal policies for leasing on Indian agricultural lands?
162.8   What notifications are required that tribal law applies to a 
lease on Indian agricultural land?
162.9   Who enforces tribal laws pertaining to Indian agricultural 
lands?
162.10   How is a lease on Indian land obtained?
162.11   Is an agricultural resource management plan required?
162.12   How will the Secretary decide whether to grant and/or 
approve a lease?
162.13   What supporting documents must a potential lessee provide?
162.14   Must a lease be recorded?
162.15   Where are leases recorded?
162.16   Who is responsible for recording a lease?
162.17   Can more that one tract of land be combined into one lease?
162.18   Is there a standard lease form?
162.19   Will we notify the lessee of any change in land title 
status?
162.20   How is leased land described?
162.21   May a lease be amended, modified, assigned, transferred or 
sublet?
162.22   May a lease be used as collateral for a leasehold mortgage?
162.23   What factors does the BIA consider when reviewing a 
leasehold mortgage?
162.24   May a lessee voluntarily assign a leasehold interest under 
an approved encumbrance?
162.25   May the holder of a leasehold mortgage assign the leasehold 
interest after the sale or foreclosure of an approved encumbrance?

Rent and Terms

162.26   Are there specific provisions that must be included in a 
lease?
162.27   How long is a lease term?
162.28   When may a lessee take possession of leased Indian land?
162.29   Can improvements be constructed on Indian lands?
162.30   What happens to improvements constructed on Indian lands 
when the lease has been terminated?
162.31   What happens if the improvements are not removed within the 
specified time period?
162.32   When must a lease payment be made?
162.33   When is a lease payment late?
162.34   Will a lessee be notified when a lease payment is due?
162.35   What happens if a lessee does not receive notice that a 
lease payment is due?
162.36   What will the BIA do to collect lease payments that are not 
made in accordance with the terms of a lease?
162.37   Is there a penalty for late payment on a lease?
162.38   Does the BIA accept partial payment for a lease payment 
due?
162.39   May a lessee make a lease payment in advance of the due 
date?
162.40   May an individual Indian landowner modify the terms of the 
lease on a fractionated tract for advance lease payment?
162.41   To whom are lease payments made?
162.42   May a lessee send a lease payment directly to the Indian 
landowner?
162.43   What forms of payment are acceptable to the Secretary?
162.44   When required under a lease, how will the BIA adjust the 
lease payment?

Bonds and Insurance

162.45   Must a lessee, assignee or sublessee provide a bond for a 
lease?
162.46   How do we determine the amount of the bond?
162.47   What forms of bonds will the BIA accept?
162.48   How will a cash bond be administered?
162.49   Is interest paid on a cash performance bond?
162.50   Are cash performance bonds refunded?
162.51   Is insurance required for a lease?
162.52   What types of insurance may be required?
Subpart C--Process for Obtaining a Lease
162.60   Who is responsible for leasing Indian land?
162.61   How do I acquire a lease on Indian land?
162.62   How do I acquire a lease through negotiation?
162.63   What are the basic steps for acquiring a lease through 
negotiation?
162.64   Must I negotiate with and obtain the consent of all of the 
Indian landowners of a fractionated tract for a lease other than an 
agricultural lease?
162.65   Can I negotiate a contract with an Indian landowner to 
lease land at a future date?
162.66   How do I acquire an advertised lease through competitive 
bidding?
162.67   Must Indians who own Indian land obtain a lease before 
using this land for their purposes (owner's use)?
162.68   Must the parents or guardians of minors who own Indian land 
obtain a lease before using the land?
Subpart D--Granting a Lease
162.70   Who may grant a lease?
162.71   Who may represent an individual Indian landowner in 
granting a lease?
162.72   May an emancipated minor grant a lease on his or her own 
Indian land?
162.73   When may the Secretary grant permits?
162.74   What requirements apply to an agricultural lease on 
fractionated tracts?
162.75   When is a decision by the BIA regarding leases effective?
Subpart E--Business Leases

General Provisions

162.80   What types of leases are covered by this part?
162.81   How is a business lease obtained?
162.82   What supporting documents must I provide?

Rent and Term

162.83   How much rent must a lessee pay?
162.84   Is a surety bond or guaranty required?
162.85   Can a lease be renewed?
162.86   May a lease be terminated prior to its expiration date?

Consents and Approvals

162.87   How and when can a lease be amended?
162.88   May a lease be assigned, sublet, or mortgaged without the 
consent of the Indian landowners?
162.89   May the Indian landowners withhold their consent to an 
assignment or encumbrance?
162.90   May a lease be assigned, sublet, or mortgaged without BIA 
approval?
162.91   How will the BIA decide whether to approve an assignment or 
sublease?
Subpart F--Compensation to Landowners
162.100   What does the BIA do with rent payments received from 
lessees?
162.101   How do Indian landowners receive rent payments?
162.102   How will the rent be distributed if the lease covers more 
than one tract of land with different owners?
Subpart G--Administrative Fees
162.110   Are there administrative fees for a lease?
162.111   How are administrative fees determined?
162.112   Are administrative fees refundable?
162.113   May the Secretary waive administrative fees?
162.114   Are there any other administrative or tribal fees, taxes 
or assessments that must be paid?
Subpart H--Lease Violations
162.120   What lease violations are addressed by this subpart?
162.121   How will the Secretary enforce compliance with lease 
provisions?
162.122   What happens if a violation of a lease occurs?
162.123   What will a written notice of violation contain?
162.124   Can a determination of a violation be contested?
162.125   What happens to a bond if a violation occurs?
162.126   What happens if you do not cure a lease violation?
162.127   If you do not cure a lease violation, what may an Indian 
landowner do?
162.128   Can the Secretary take emergency action without prior 
notice if the leased premises are being damaged?
162.129   What rights does a lessee have if the Secretary takes 
emergency action under this subpart?

[[Page 43920]]

Subpart I--Appeals
162.130   May decisions by the Secretary be appealed?
Subpart J--Non-Trust Interests
162.140   May the Secretary grant or approve leases for non-trust 
interests in Indian land?
162.141   Are non-trust interests included in a lease?
162.142   How will a lessee know there is a non-trust interest in 
Indian land?
162.143   From whom must a lessee lease a non-trust interest?
162.144   Is the non-trust interest shown in a lease of Indian land?
162.145   How much rent is due for the non-trust interest?
162.146   May a lessee payment made by a lessee to the BIA or to an 
Indian landowner include payment for any non-trust interest?
162.147   Will the BIA grant or approve a lease on a fractionated 
tract that is subject to a life estate held by the owner of a non-
trust interest?
Subpart K--Valuation
162.150   Why must the Secretary determine the fair annual rental of 
Indian land?
162.151   How does the Secretary determine the fair annual rent of 
Indian land?
162.152   Will the BIA ever grant or approve a lease at less than 
fair annual rental?
Subpart L--Trespass
162.160   What is trespass?
162.161   What is the BIA's trespass policy?
162.162   Who can enforce this subpart?

Notification

162.163   How are trespassers notified of a trespass determination?
162.164   What can I do if I receive a trespass notice?
162.165   Who else will the BIA notify?

Actions

162.166   What actions does the BIA take against trespassers?
162.167   When will we impound unauthorized livestock or other 
property?
162.168   How will you be notified if your unauthorized livestock or 
other property are to be impounded?
162.169   What will we do after we impound unauthorized livestock or 
other property?
162.170   How do I redeem my impounded livestock or other property?
162.171   How will the sale of impounded livestock or other property 
be conducted?

Penalties, Damages, and Costs

162.172   What are the penalties, damages, and costs payable by 
trespassers on Indian land?
162.173   How will the BIA determine the value of forage or crops 
consumed or destroyed?
166.174   How will the BIA determine the value of the product 
illegally used or removed?
162.175   How will the BIA determine the amount of damages to Indian 
land?
162.176   How will the BIA determine the costs associated with 
enforcement of the trespass?
162.177   What happens if I do not pay the assessed penalties, 
damages and costs?
162.178   How are the proceeds from trespass distributed?
162.179   What happens if the BIA does not collect enough money to 
satisfy the penalty?
Subpart M--Records
162.180   Who owns records associated with this part?
Subpart N--Special Requirements for Certain Reservations
162.190   Crow Reservation
162.191   Fort Belknap Reservation
162.192   Cabazon, Augustine and Torres-Martinez Reservations, 
California
162.193   Colorado River Reservation
162.194   Salt River and San Xavier Reservations
162.195   Tulalip Reservation

    Authority: 5 U.S.C. 301, R.S. 463 and 465; 25 U.S.C. 2 and 9. 
Interpret or apply sec. 3, 26 Stat. 795, sec. 1, 28 Stat. 305, secs. 
1, 2, 31 Stat. 229, 246, secs. 7, 12, 34 Stat. 545, 34 Stat. 1015, 
1034, 35 Stat. 70, 95, 97, sec. 4, 36 Stat. 856, sec. 1, 39 Stat. 
128, 41 Stat. 415, as amended, 751, 1232, sec. 17, 43 Stat. 636, 
641, 44 Stat. 658, as amended, 894, 1365, as amended, 47 Stat. 1417, 
sec. 17, 48 Stat. 984, 988, 49 Stat. 115, 1135, sec. 55, 49 Stat. 
781, sec. 3, 49 Stat. 1967, 54 Stat. 745, 1057, 60 Stat. 308, secs. 
1, 2, 60 Stat. 962, sec. 5, 64 Stat. 46, secs. 1, 2, 4, 5, 6, 64 
Stat. 470, 69 Stat. 539, 540, 72 Stat. 968, 107 Stat. 2011, 108 
Stat. 4572, March 20, 1996, 110 Stat. 4016; 25 U.S.C. 380, 393, 
393a, 394, 395, 397, 402, 402a, 403, 403a, 403b, 403c, 409a,413, 
415, 415a, 415b, 415c, 415d, 477, 635, 3701, 3702, 3703, 3712, 3713, 
3714, 3715, 3731, 3733.

Subpart A--Purpose and Definitions


Sec. 162.1  What is the purpose of this part?

    (a) The purpose of this part is to describe the authorities, 
policies, and procedures the Secretary will use to grant, approve, and 
administer, a surface lease or permit on Indian land or government 
land. This part does not apply to grazing permits, which are 
administered under part 166 of this chapter, or Indian forest land, 
which is administered under part 153 of this chapter.
    (b) This part includes a subpart N, which applies to leases and 
permits on specific reservations. All of the requirements in subparts A 
through M of this part apply to these reservations unless the 
provisions contained in subpart N of this part for each specific 
reservation state otherwise.


Sec. 162.2  What key terms do I need to know?

    For purposes of this part:
    Adult means an individual who is 18 years of age or older.
    Agricultural lease or permit means a lease or permit for farming 
and/or grazing purposes on Indian agricultural land.
    Agricultural resource management plan means a ten year plan 
developed through the public review process specifying the tribal 
management goals and objectives developed for tribal agricultural and 
grazing resources. Plans developed and approved under AIARMA will 
govern the management and administration of Indian agricultural 
resources and Indian agricultural lands by the BIA and by Indian tribal 
governments.
    AIARMA means American Indian Agricultural Resources Management Act 
of December 3, 1993 (107 Stat. 2011, 25 U.S.C. 3701 et seq.), as 
amended on November 2, 1994, (108 Stat. 4572).
    Appeal bond means a type of bond that guarantees payment of an 
amount that may be owed after the completion of an appeal process.
    Approving/approval means the action taken by the BIA to approve a 
lease.
    Assign means to transfer the contract rights in a lease or permit 
for use of Indian land to an individual, company, corporation or 
partnership in exchange for compensation or other consideration. The 
party receiving the assignment (assignee) assumes all of the rights and 
obligations of the lease.
    Assignee means the person to whom the contract rights for use of 
Indian land were assigned.
    BIA means Bureau of Indian Affairs within the Department of the 
Interior.
    Bond means an agreement in writing in which a surety, or an obligor 
for a personal bond, guarantees performance or compliance with the 
lease terms.
    Crop share means the agreed upon percentage of an agricultural crop 
taken in kind as payment of rent under a lease.
    Encumbrance means a mortgage, deed of trust or other instrument 
which secures a debt owed by a lessee to a lender or other 
encumbrancer.
    Environmental baseline survey means an investigation that results 
in a qualitative and quantitative statement of the nature and magnitude 
of environmental contamination physically present on a defined tract of 
real property.
    Fair annual rental means a reasonable annual return on fair market 
value, as this value may be determined by appraisal, advertisement, 
competitive bidding, negotiation, or any other appropriate method in 
accordance with the Uniform Standards of Professional Appraisal 
Practices (USPAP).
    Fractionated tract means a parcel of Indian land with more than one 
owner.

[[Page 43921]]

    Government land means the surface estate of a tract of land, or any 
interest therein, which is acquired or reserved by the United States 
for the Bureau of Indian Affairs administrative purposes. Indian land 
is not government land.
    Grant/granting means the process of agreeing or consenting to a 
lease.
    I/You means the person to whom this part directly applies.
    In loco parentis means the person whom the BIA recognizes as 
standing in place of a parent.
    Indian agricultural land means Indian land, including farmland and 
rangeland, excluding Indian forest land (except where authorized 
grazing occurs) that is used for production of agricultural products, 
and Indian lands occupied by industries that support the agricultural 
community, regardless of whether a formal inspection and land 
classification has been conducted.
    Indian land means:
    (1) The surface (non-mineral) estate of a tract of land, or any 
interest therein, which is held by the United States in trust for a 
tribe or an individual Indian; or
    (2) A tract of land, or any interest therein, which is owned by a 
tribe or an individual Indian, subject to federal restrictions against 
alienation or encumbrance.
    Indian landowner means an Indian tribe or individual Indian who 
owns an interest in Indian land.
    Individually owned Indian land means Indian land or an interest 
therein owned by an individual.
    Lease means a contract which grants the right to possess or use 
Indian land for a specified purpose and duration in exchange for 
compensation or other consideration.
    Leasehold means the interest in real property held by a lessee.
    Lessee means an individual, company, corporation, or partnership 
who has entered into a lease on tribal and/or Indian lands in exchange 
for compensation.
    Life estate means an interest in Indian land that expires upon the 
death of the interest holder, as administered under part 179 of this 
chapter.
    Majority interest means the total amount of tribal and/or Indian 
land interest that is more than 50 percent of the entire ownership in 
the land.
    Negotiable Treasury securities means securities issued by the 
Treasury Department of the United States.
    NEPA means the National Environmental Policy Act (42 U.S.C. 4321, 
et seq.)
    Non compos mentis means a person who has been legally determined 
not capable of handling his/her own affairs.
    Non-trust interest means an undivided interest in Indian land that 
is owned in fee simple, rather than in trust or restricted status.
    Permit means a privilege, revocable at will in the discretion of 
the Secretary and not assignable, to enter on and use a specified tract 
of land for a specified purpose.
    Restricted land means land for which a tribe or individual Indian 
holds fee simple title subject to limitations or restrictions against 
alienation or encumbrance as set forth in the title and/or by operation 
of law.
    Secretary means the Secretary of the Interior or an authorized 
representative; it also means a tribe or tribal organization if that 
entity is administering specific programs, functions services or 
activities, previously administered by the Secretary, but now 
authorized under a Self-Determination Act contract (pursuant to 25 
U.S.C. 450f) or a Self-Governance compact (pursuant to 25 U.S.C. 
558cc). Such authority does not include inherently federal functions.
    Surety means one who guarantees the performance, default or debt of 
another.
    Sublease means a lease granted by a lessee of the property.
    Trespass means an unauthorized occupancy, use of, or action on 
Indian agricultural lands.
    Tribal land means land for which the United States holds fee title 
in trust for the benefit of a tribe, and includes assignments of tribal 
land.
    Tribal law means the body of non-federal law that governs tribal 
lands and activities, and includes ordinances or other enactments by a 
tribe, tribal constitutions, tribal court rulings, and tribal common 
law.
    Trust land means land, or an interest therein, for which the United 
States holds fee title in trust for the benefit of a tribe or an 
individual Indian.
    Undivided interest means that the interest of co-owners is in the 
entire property and that each such interest is indistinguishable from 
every other interest: The interest has not been divided out from the 
whole parcel. (Example: If you own \1/4\ interest in 160 acres, you do 
not own an identifiable 40 acre tract. You own \1/4\ of the whole 160 
acres because your 1/4 interest has not been divided out from the whole 
160 acres.)
    Us/We/Our means the Secretary, as defined in this part.
    Uniform Standards of Professional Appraisal Practice (USPAP) means 
the standards promulgated by the Appraisal Standards Board of The 
Appraisal Foundation which establish requirements and procedures for 
professional real property appraisal practice.

Subpart B--General Lease Provisions and Requirements


Sec. 162.3  What leases are covered by this subpart?

    This subpart applies to all leases under this part unless otherwise 
specified, such as business leases.

General Provisions


Sec. 162.4  Do tribal laws apply to leases?

    Tribal laws will apply to leases of Indian land under the 
jurisdiction of the tribe enacting such laws, unless those tribal laws 
are inconsistent with applicable federal law.


Sec. 162.5  How will the Secretary implement tribal laws on Indian 
agricultural lands?

    Unless prohibited by federal law, the Secretary will comply with 
laws or ordinances adopted by the tribal government to regulate land 
use or other activities under tribal jurisdiction and with tribal laws 
and ordinances pertaining to Indian agricultural lands, including laws 
regulating the environment and historic or cultural preservation.


Sec. 162.6  What tribal policies will we apply for leasing on Indian 
agricultural lands?

    (a) When specifically authorized by an appropriate tribal 
resolution establishing a general policy for leasing of Indian 
agricultural lands, the Secretary will:
    (1) Provide a preference to Indian lessees in issuing or renewing a 
lease, so long as the Indian landowner receives fair annual rental;
    (2) Waive or modify the requirement that a lessee must post a 
surety or performance bond;
    (3) Provide for posting of other collateral or security in lieu of 
a bond; and
    (4) Approve leases on tribal lands at rates determined by the 
tribal governing body.
    (b) When specifically authorized by an appropriate tribal 
resolution establishing a general policy for leasing of Indian 
agricultural lands, and subject to paragraph (c) of this section, the 
Secretary may:
    (1) Waive or modify any general notice requirement of federal law; 
and
    (2) Grant or approve a lease on ``highly fractionated undivided 
heirship lands'' as defined by tribal law.
    (c) The Secretary may take the action specified in paragraph (b) of 
this section only if:
    (1) The tribe defines by resolution what constitutes ``highly 
fractionated undivided heirship lands;''

[[Page 43922]]

    (2) The tribe adopts a plan for notifying Indian landowners in 
place of any notice requirements of federal law; and
    (3) The Secretary's action is necessary to prevent waste, reduce 
idle land acreage and ensure income.


Sec. 162.7  May individual Indian landowners exempt their land from 
tribal policies for leasing on Indian agricultural lands?

    (a) The individual Indian landowner(s) of a tract of land or an 
undivided interest may exempt their Indian agricultural land from our 
application of a tribal leasing policy referred to in Sec. 162.6 if:
    (1) The Indian landowner(s) have at least 50% interest in such 
tract; and
    (2) The Indian landowner(s) submit a written objection to us.
    (b) The same procedure applies to withdrawing a request for 
exemption.
    (c) Upon verification of the written objection we will notify the 
tribe of the landowners' exemption from the specific tribal policy. If 
the individual Indian landowner withdraws a request for exemption, we 
will notify the tribe of the withdrawal.


Sec. 162.8  What notifications are required that tribal law applies to 
a lease on Indian agricultural land?

    (a) Tribes must notify us of the content and effective dates of new 
tribal laws that supercede these regulations.
    (b) We will then notify any persons or entities undertaking 
activities on Indian lands of the superseding effect of the tribal law. 
We will provide:
    (1) Individual written notice to each affected lessee; or
    (2) Public notice posted at the tribal community building and at 
the United States Post Office, and published in the local newspaper 
nearest to the Indian lands where activities are occurring.


Sec. 162.9  Who enforces tribal laws pertaining to Indian agricultural 
land?

    (a) The tribe is responsible for enforcing tribal laws and 
ordinances pertaining to Indian agricultural lands.
    (b) The Secretary will:
    (1) Provide assistance in the enforcement of tribal laws; and
    (2) Require appropriate federal officials to appear in tribal 
forums when requested by a tribe.


Sec. 162.10  How is a lease on Indian land obtained?

    A lease on Indian lands is granted by the Indian landowner and 
approved by us. However, there are exceptions to this general rule, as 
discussed in 25 U.S.C. 415 and subpart D of this part.


Sec. 162.11  Is an agricultural resource management plan required?

    An agricultural resource management plan must be developed either 
by the tribe or by us in consultation with the affected tribe(s). This 
plan should be consistent with the tribe's integrated resource 
management plan. The agricultural resource management plan must:
    (a) Determine available agricultural resources;
    (b) Identify specific tribal agricultural resource goals and 
objectives;
    (c) Establish management objectives for the resources;
    (d) Define critical values of the Indian tribe and its members and 
identify holistic management objectives;
    (e) Identify actions to be taken to reach established objectives;
    (f) Be developed through public meetings;
    (g) Use the public meeting records, existing survey documents, 
reports, and other research from federal agencies, tribal community 
colleges, and land grant universities; and
    (h) Be completed within three years of the initiation of activity 
to establish the plan.


Sec. 162.12  How will the Secretary decide whether to grant and/or 
approve a lease?

    (a) Before we grant or approve a lease, we must determine in 
writing that a lease is in the best interest of the Indian landowner 
by:
    (1) Reviewing the lease and supporting documents;
    (2) Identifying potential environmental impacts and ensuring 
compliance with all applicable environmental laws, land use laws, and 
ordinances (including preparation of the appropriate review under the 
National Environmental Policy Act (NEPA) (42 U.S.C. 4321, et seq.));
    (3) Recommending lease modifications or mitigation measures that 
are needed to satisfy any preliminary federal and tribal land use 
requirements; and
    (4) After the parties agree to make the recommended modifications, 
making specific written findings that our grant or approval will 
further the best interests of the Indian landowners.
    (b) In making the findings required by this section, we must 
specifically consider:
    (1) The relationship between the use of the leased lands and use of 
neighboring lands;
    (2) The height, quality, and safety of any structures or other 
facilities to be constructed on such lands;
    (3) The availability of police and fire protection, utilities, and 
other essential community services;
    (4) The availability of judicial forums for all criminal and civil 
matters arising on the leased lands;
    (5) The effect on the environment of the uses to which the leased 
lands will be subject; and (6) The tribe's assessment of the potential 
impacts of the proposed use on the preservation of the Indian 
community, the continued practice of Indian cultural activities, and 
the exercise of tribal government authority on the leased lands and on 
other nearby land of that tribe.
    (c) We will not grant or approve a lease more than 12 months before 
its beginning date.


Sec. 162.13  What supporting documents must a potential lessee provide?

    (a) If the potential lessee is a corporation, limited liability 
company, partnership, joint venture, or other legal entity, it must 
provide organizational documents, certificates, filing records, 
financial statements, and resolutions or other authorization documents, 
as needed to show that the lease will be enforceable against the lessee 
and the lessee will be able to perform all of its lease obligations.
    (b) If the lease authorizes new construction, the potential lessee 
must provide environmental reports, which may include an environmental 
baseline survey, archaeological reports, and other planning documents 
as we may determine are necessary to facilitate our compliance with 
NEPA and other federal and tribal environmental and land use 
requirements.


Sec. 162.14  Must a lease be recorded?

    All leases on Indian land in excess of one year must be recorded.


Sec. 162.15  Where are leases recorded?

    Leases are recorded in the appropriate BIA Land Titles and Records 
Office.


Sec. 162.16  Who is responsible for recording a lease?

    We are responsible for ensuring that all leases that we approve or 
grant are recorded in the Land Titles and Records Office. Tribes are 
responsible for recording leases that do not require our approval.


Sec. 162.17  Can more than one tract of land be combined into one 
lease?

    Yes. A lease may include more than one tract of land. The tracts 
may be owned by a tribe, individual(s), or a combination of tribe and 
individual(s). Leases may include tribal, individual, or government 
lands, or any combination thereof.


Sec. 162.18  Is there a standard lease form?

    In order to accommodate the variety of leases that may be let on 
Indian land,

[[Page 43923]]

there is no standard lease form. However, the provisions of the lease 
must conform to the requirements of this part.


Sec. 162.19  Will we notify the lessee of any change in land title 
status?

    Yes. We will notify the lessee if a fee patent is issued or if 
restrictions are removed, but the lease continues in effect for its 
term. After we notify the lessee, our obligation under Sec. 162.8 and 
this section ceases.


Sec. 162.20  How is leased land described?

    The land should be described by aliquot parts. However, if the land 
cannot be described by aliquot parts, a current certified plat by a 
registered surveyor or other acceptable description of the land being 
leased must be provided.


Sec. 162.21  May a lease be amended, modified, assigned, transferred or 
sublet?

    (a) We must approve an amendment, modification, assignment, 
transfer or sublease with the written consent of all parties to the 
lease and the sureties in accordance with paragraphs (b) through (d) of 
this section.
    (b) An Indian landowner may designate in writing one or more co-
owners or other representatives to negotiate and/or agree to amendments 
on the landowner's behalf.
    (1) The designated landowner or representative may:
    (i) Negotiate or agree to amendments; and
    (ii) Consent to or approve other items as necessary.
    (2) The designated landowner or representative may not:
    (i) Negotiate or agree to amendments that reduce the rentals 
payable to the other landowners; or
    (ii) Terminate or modify the term of the lease.
    (c) We may approve a lease for tribal land to individual members of 
a tribe or to tribal housing authorities which contains a provision 
permitting the assignment of the lease by the lessee or the lender 
without our approval when a lending institution or an agency of the 
United States:
    (1) Makes, insures or guarantees a loan for the construction of 
housing for Indians on the leased premises;
    (2) Accepts the leasehold as security for the loan; or
    (3) Obtains the leasehold through foreclosure or otherwise.
    (d) We may approve a lease containing a provision which authorizes 
the lessee to sublease the premises in whole or in part without further 
approval.
    (e) Subleases made under this provision do not relieve the 
sublessor (lessee of record) from any liability under the lease, nor 
will it diminish our authority to take any action authorized under this 
subpart to protect the trust asset.


Sec. 162.22  May a lease be used as collateral for a leasehold 
mortgage?

    Yes. We may approve a lease containing a provision that authorizes 
the lessee to encumber the leasehold interest for the development, 
improvement or refinancing of the leased premises. We must approve the 
leasehold mortgage before it can be effective. We will record the 
approved leasehold mortgage instrument.


Sec. 162.23  What factors does the BIA consider when reviewing a 
leasehold mortgage?

    (a) We will approve the leasehold mortgage if:
    (1) All consents required in the lease have been obtained from the 
Indian landowner and any surety or guarantor;
    (2) The mortgage covers only the interest in the leased premises, 
and no unrelated collateral belonging to the lessee;
    (3) The financing being obtained will be used only in connection 
with the development or use of the leased premises, and the mortgage 
does not secure any unrelated obligations owed by the lessee to the 
mortgagee; and
    (4) We find no compelling reason to withhold our approval in order 
to protect the best interests of the Indian landowner.
    (b) In making the finding required by paragraph (a)(4) of this 
section, we will consider whether:
    (1) The ability to perform the lease obligations would be adversely 
affected by the cumulative mortgage obligations;
    (2) Any negotiated lease provisions as to the allocation or control 
of insurance or condemnation proceeds would be modified;
    (3) The remedies available to us or to the Indian landowners would 
be limited (beyond the additional notice and cure rights to be afforded 
to the mortgagee), if the lessee defaults on the lease; and
    (4) Any rights of the Indian landowners would be subordinated or 
adversely affected in the event of a foreclosure, assignment in lieu of 
foreclosure, or issuance of a ``new lease'' to the mortgagee.
    (c) We will notify the Indian landowners of our approval of the 
leasehold mortgage.


Sec. 162.24  May a lessee voluntarily assign a leasehold interest under 
an approved encumbrance?

    Yes. With our approval, under an approved encumbrance a lessee 
voluntarily may assign the leasehold interest to someone other than the 
holder of a leasehold mortgage if the assignee agrees in writing to be 
bound by the terms of the lease. A lease may provide the Indian 
landowner with a right of first refusal on the conveyance of the 
leasehold interest.


Sec. 162.25  May the holder of a leasehold mortgage assign the 
leasehold interest after the sale or foreclosure of an approved 
encumbrance?

    Yes. The holder of a leasehold mortgage may assign a leasehold 
interest obtained by the sale or foreclosure of an approved encumbrance 
without our approval if the assignee agrees in writing to be bound by 
the terms of the lease. A lease may provide the Indian landowner with a 
right of first refusal on the conveyance of the leasehold interest.

Rent and Terms


Sec. 162.26  Are there specific provisions that must be included in a 
lease?

    Yes. In addition to other provisions identified in this part, all 
leases must provide at a minimum for the following:
    (a) The lessee and sureties maintain an obligation to the United 
States and the Indian landowners;
    (b) The lease will not delay or prevent the issuance of a fee 
patent.
    (c) Except for agricultural leases, there must not be a preference 
right to future leases;
    (d) There must not be any unlawful conduct, creation of a nuisance, 
illegal activity, negligent use or waste of property;
    (e) Farming and grazing operations must be conducted in accordance 
with the principles of sustained yield management, integrated resource 
management planning, sound conservation practices, and other community 
goals as expressed in tribal laws;
    (f) Lessees must comply with all applicable laws, ordinances, 
rules, regulations, and other legal requirements. If a lessee does not 
comply with the lease provisions and requirements, the lease is 
considered to be in violation (see subparts H and I of this part for 
violation, cancellation, and remedies available);
    (g) A citation of the authority used to grant and the delegation of 
authority for the approval of the lease;
    (h) A statement indicating that any rental payments of a fixed 
amount will be adjusted under section 162.48, including:

[[Page 43924]]

    (1) When the adjustments will be made;
    (2) Who will make the adjustments;
    (3) How the adjustment will be determined; and
    (4) How any disputes arising from the adjustments will be settled;
    (i) A legal description or current certified plat of the lands 
being leased, or other acceptable description of the land being leased; 
and
    (j) The lessee will indemnify the United States and the Indian 
landowner against all liabilities or costs relating to the use, 
handling, treatment, removal, storage, transportation, or disposal of 
hazardous materials or the release or discharge of any hazardous 
material from the lease premises that occur during the lease term, 
regardless of fault.


Sec. 162.27  How long is a lease term?

    (a) The lease term (including any renewal period permitted under 
Sec. 162.16(g) of this subpart), must be reasonable, given the purpose 
of the lease and the type of financing and level of investment 
required. A longer term may be permitted, if it is necessary to ensure 
that the land value is preserved and that the land is utilized to the 
maximum benefit of the Indian owners.
    (b) Unless otherwise authorized by federal statute (such as 25 
U.S.C. 415(a) or 4211(b)), leases for public, religious, educational, 
recreational, residential or business purposes will have a maximum 
primary term that does not exceed 25 years and may include an option to 
extend for one additional term that may not exceed 25 years.
    (c) Leases for housing development and residential purposes can not 
exceed 50 years including renewals, unless a federal statute (such as 
25 U.S.C. 415(a)) has authorized a longer period for leases of land 
within certain reservations.
    (d) Leases for agricultural purposes will not usually exceed five 
years for dry-farming land or ten years for irrigable lands. If 
substantial investment in the development or production of a 
specialized crop is required, agricultural leases may be made for up to 
25 years. To determine if a term longer than ten years is justified, we 
will consider the feasibility of the proposed development, crop 
production, or consideration of the amount of investment required by 
the lessee or other relevant factors;
    (e) For the undetermined heirs of an individual Indian decedent 
owning 100 percent (%) interest in the land, we will grant leases for a 
maximum term of two years.
    (f) A lease can be extended only by renewal or extension as defined 
in the lease. Leases may provide multiple options for termination; and
    (g) A lease will specify the beginning and ending dates of the term 
allowed, as well as any option to renew, extend, or terminate.


Sec. 162.28  When may a lessee take possession of leased Indian land?

    The lessee may take possession of leased Indian land on the date 
specified in the lease as the beginning date of the term, but not 
before we approve the lease.


Sec. 162.29  Can improvements be constructed on Indian lands?

    Improvements may be constructed if the lease contains a provision 
allowing them.


Sec. 162.30  What happens to improvements constructed on Indian lands 
when the lease has been terminated?

    If improvements are to be constructed on the land, the lease must 
contain a provision that improvements will either:
    (a) Remain on the lands upon termination of the lease, in a 
condition that is in compliance with applicable building, health and 
other codes, and will become the property of the Indian landowner; or
    (b) Be removed within a time period specified in the lease. The 
lands must be restored as close as possible to the original condition 
prior to construction of such improvements. At the request of the 
lessee we may, at our discretion, grant an extension of time for the 
removal of improvements for circumstances beyond the control of the 
lessee.


Sec. 162.31  What happens if the improvements are not removed within 
the specified time period?

    If a lessee fails to remove the improvements within the time 
allowed in the lease, the lessee may forfeit the right to remove the 
improvements and the improvements may become the property of the Indian 
landowner.


Sec. 162.32  When must a lease payment be made?

    A lease payment is due by the date specified in the lease. The BIA 
will not accept a lease payment beyond the lease term, except in 
collection of unpaid lease payments.


Sec. 162.33  When is a lease payment late?

    A lease payment is deemed to be late if it is not received within 
15 days of the payment date specified in the lease.


Sec. 162.34  Will a lessee be notified when a lease payment is due?

    Each lessee will receive written notice stating when lease payments 
are due. Additionally, each lease informs the lessee of the schedule of 
payments agreed to by the parties.


Sec. 162.35  What happens if a lessee does not receive notice that a 
lease payment is due?

    If a lessee does not receive notice that a lease payment is due, 
the lessee remains responsible for making timely payment of all amounts 
due under the lease.


Sec. 162.36  What will the BIA do to collect lease payments that are 
not made in accordance with the terms of a lease?

    Failure to make payments in accordance with the terms of a lease 
will be enforced against the lessee as a lease violation under subpart 
H of this part.


Sec. 162.37  Is there a penalty for late payment on a lease?

    Yes. A lease will contain a provision that specifies the penalty 
that will be assessed and collected for late payment.


Sec. 162.38  Does the BIA accept partial payment for a lease payment 
due?

    Yes, in special circumstances. Ordinarily, the total amount is due 
and payable by the payment date specified in the lease, and failure to 
make complete payment may constitute a violation of the lease. 
Exceptions are rarely granted and require a specific written request 
and the consent of the parties to the lease and our approval. For 
example, partial payment may be allowed for the bankruptcy of a lessee.


Sec. 162.39  May a lessee make a lease payment in advance of the due 
date?

    Rent may be paid only 30 days in advance of the due date as 
specified in the lease. The BIA will not accept a lease payment more 
than 30 days prior to the beginning of the new lease term.


Sec. 162.40  May an individual Indian landowner modify the terms of the 
lease on a fractionated tract for advance lease payment?

    No. An individual Indian landowner of a fractionated tract may not 
modify a lease to permit a lease payment in advance of the due date 
specified in the lease.


Sec. 162.41  To whom are lease payments made?

    All lease payments must be submitted as provided in the lease. The 
lessee must make payments payable to the party identified in the lease 
in the amount due, including any late payment, penalties, interest, or 
other amount if applicable.

[[Page 43925]]

Sec. 162.42  May a lessee send a lease payment directly to the Indian 
landowner?

    Yes, if the lease provides for direct payment.


Sec. 162.43  What forms of payment are acceptable to the Secretary?

    Payment must be in accordance with the lease. Payments of money 
must be United States currency in one of the following forms:
    (a) Postal money order;
    (b) Bank money order;
    (c) Cashier's check;
    (d) Certified check; or
    (e) Electronic funds transfer.


Sec. 162.44  When required under a lease, how will the BIA adjust the 
lease payment?

    (a) We will adjust the lease payment every fifth year.
    (b) We will make our adjustments by appropriate valuation method, 
taking into account the value of any improvements made under the lease, 
unless the lease provides otherwise. These adjustments will be 
retroactive, if they are not made at the time specified in the lease.
    (c) For leases granted by tribes, we will consult with the granting 
tribe to determine whether an adjustment of the lease payment should be 
made. The lease must be modified to document the granting tribe's 
waiver of the adjustment.

Bonds and Insurance


Sec. 162.45  Must a lessee, assignee or sublessee provide a bond for a 
lease?

    Yes. A lessee, assignee or sublessee must provide a bond for each 
lease interest acquired. Upon request by an Indian landowner, we may 
waive the bond requirement.


Sec. 162.46  How do we determine the amount of the bond?

    (a) We will determine the amount of the bond for each lease based 
on the following considerations, as appropriate:
    (1) The value of one year's rental;
    (2) The value of any improvements to be constructed;
    (3) The cost of performance of any additional obligations, such as 
irrigation charges; and
    (4) The cost of performance of restoration and reclamation.
    (b) Tribal policy made applicable by Sec. 162.6 of this part may 
establish or waive specific bond requirements for leases.
    (c) We may adjust security or bond requirements at any time to 
reflect changing conditions.


Sec. 162.47  What forms of bonds will the BIA accept?

    (a) We will only accept bonds in the following forms:
    (1) Cash;
    (2) Negotiable Treasury securities that:
    (i) Have a market value at least equal to the bond amount; and
    (ii) Are accompanied by a statement granting full authority to the 
Secretary to sell such securities in case of a violation of the terms 
of the lease.
    (3) Certificates of deposit that indicate on their face that 
Secretarial approval is required prior to redemption by any party;
    (4) Irrevocable letters of credit (LOC) issued by federally-insured 
financial institutions authorized to do business in the United States. 
LOC's must:
    (i) Contain a clause that grants the Secretary authority to demand 
immediate payment if the lessee defaults or fails to replace the LOC 
within 30 calendar days prior to its expiration date;
    (ii) Be payable to the Department of the Interior, BIA;
    (iii) Be irrevocable during its term and have an initial expiration 
date of not less than one year following the date the BIA receives it; 
and
    (iv) Be automatically renewable for a period of not less than one 
year, unless the issuing financial institution provides the BIA with 
written notice at least 90 calendar days before the letter of credit's 
expiration date that it will not be renewed;
    (5) Surety bond; or
    (6) Any other form of highly liquid, non-volatile security 
subsequently approved by us that is easily convertible to cash by us 
and for which Secretarial approval is required prior to redemption by 
any party.
    (b) For tribal leases, a tribe may negotiate a lease term that 
specifies the use of any of the bond forms described in paragraph (a) 
of this section.


Sec. 162.48  How will a cash bond be administered?

    If you submit a cash bond, the BIA will establish an account in 
your name with the Office of Trust Funds Management to retain the 
funds.


Sec. 162.49  Is interest paid on a cash performance bond?

    No. We will not pay interest on a cash performance bond.


Sec. 162.50  Are cash performance bonds refunded?

    Yes. If the cash performance bond has not been forfeited for cause, 
we will refund the principal amount deposited to the depositor at the 
end of the lease period.


Sec. 162.51  Is insurance required for a lease?

    When we determine it to be in the best interest of the Indian 
landowners, we will require a lessee to provide insurance. If insurance 
is required, it must:
    (a) Be provided in an amount sufficient to:
    (1) Protect any improvements on the leased premises;
    (2) Cover losses such as personal injury or death; and
    (3) Protect the interest of the Indian landowner.
    (b) Identify the Indian landowners and the United States as insured 
parties.


Sec. 162.52  What types of insurance may be required?

    We may require any or all of the following types of insurance 
depending upon the activity conducted under the lease: Property, crop, 
liability, and casualty (such as for fire, hazard, or flood).

Subpart C--Process for Obtaining a Lease


Sec. 162.60  Who is responsible for leasing Indian land?

    The Indian landowner is primarily responsible for leasing Indian 
land, with the assistance and approval of the Secretary,except where 
otherwise provided by law. You may contact the local BIA office for 
assistance in leasing Indian land.


Sec. 162.61  How do I acquire a lease on Indian land?

    You may acquire a lease on Indian land through either negotiation 
or responding to an advertisement for competitive bids. A tribe may 
lease land under either of these methods. We must approve all leases of 
Indian land in order for the leases to be valid.


Sec. 162.62  How do I acquire a lease through negotiation?

    (a) Leases may be negotiated and granted by the Indian landowners 
with the lessee of their choice. The Secretary also may negotiate and 
grant leases on behalf of Indian landowners pursuant to Sec. 162.60 (b) 
and (c) of this part.
    (b) Upon the conclusion of negotiations with the Indian landowners 
or their representatives, and the satisfaction of any applicable 
conditions, you may submit an executed lease and any required 
supporting documents to us for appropriate action.
    (c) In negotiating a lease, the Indian owners may choose to 
contribute their land to the project in exchange for their

[[Page 43926]]

receipt of a share of the revenues or profits generated by the lease. 
Under such an arrangement, the lease may be granted to a joint venture 
or other legal entity owned, in part, by the Indian owners of the land. 
Unless otherwise required by this title, we will not enter into or 
approve any agreements related to the formation of such a joint venture 
or other legal entity.
    (d) Receipt of lease payments based upon income received from the 
land will not, of itself, make the Indian landowner a partner, joint 
venturer, or associate of the lessee(s).
    (e) We will assist prospective lessees in contacting the Indian 
landowners or their representatives for the purpose of negotiating a 
lease.


Sec. 162.63  What are the basic steps for acquiring a lease through 
negotiation?

    The basic steps for acquiring a lease by negotiation are:
    (a) We receive a request to lease from an Indian landowner or 
potential lessee;
    (b) We prepare the lease documents and provide them to the Indian 
landowner or potential lessee, or assist the Indian landowner to 
prepare the documents;
    (c) The Indian landowner, or the Secretary on the landowner's 
behalf, grants (agrees to) a lease;
    (d) A potential lessee completes the requirements for securing a 
lease, e.g. bond, payment of administrative fee, etc.;
    (e) We review the lease for proper completion and compliance with 
all applicable laws and regulations;
    (f) We issue a decision on the lease based upon our review;
    (g) We send the approved lease to the lessee and, upon request, to 
the Indian landowner; and
    (h) We record and maintain the approved lease.


Sec. 162.64  Must I negotiate with and obtain the consent of all of the 
Indian landowners of a fractionated tract for a lease other than an 
agricultural lease?

    Yes. All Indian landowners of fractionated interests must consent 
to an agricultural lease.


Sec. 162.65  Can I negotiate a contract with an Indian landowner to 
lease land at a future date?

    In negotiating a lease with Indian landowners or their 
representatives, a prospective lessee may enter into a contract to 
lease the land at a future date, with the contract specifying the 
essential lease terms, as described in Sec. 162.30 of this part, as 
well as any conditions that must be satisfied before the lease may be 
granted or approved.
    (a) The conditions to be satisfied may require that the lessee 
comply with NEPA or other preliminary federal or tribal land use 
requirements; the conditions also may require that certain permits or 
financing commitments be obtained before the lease is granted or 
approved.
    (b) We may participate in the contract negotiations (in order to 
ensure that all of the necessary terms and conditions are identified), 
but we will not be a party to such a contract.
    (c) We will not approve such a contract unless approval is required 
under 25 U.S.C. Sec. 81 and part 84 of this chapter.


Sec. 162.66  How do I acquire an advertised lease through competitive 
bidding?

    (a) Advertised leases on Indian lands are awarded to the successful 
bidder after a public bidding process. We will grant or approve the 
lease on behalf of the Indian landowners and then, approve the lease. 
The basic steps for acquiring an advertised lease are:
    (1) We prepare and distribute an advertisement of lands available 
for lease that identifies the terms and conditions of the lease sale, 
including, for agricultural leases, any preference rights;
    (2) We solicit sealed bids and conduct the public lease sale;
    (3) We determine and accept the highest bid(s), which may require 
further competitive bidding after the bid opening;
    (4) We prepare leases for successful bidders;
    (5) The successful bidder completes and submits the lease and 
satisfies its requirements, e.g., bond, payment of administrative fee, 
etc.;
    (6) We review the lease for proper completion and compliance with 
all applicable laws and regulations;
    (7) We grant the lease on behalf of Indian landowners where we are 
authorized to do so by law;
    (8) We approve the lease;
    (9) We distribute the approved lease to successful bidder/lessee 
and, upon request, to the Indian landowner; and
    (10) We record and maintain the approved lease.
    (b) [Reserved]


Sec. 162.67  Must Indians who own Indian land obtain a lease before 
using this land for their purposes (owners' use)?

    (a) Indian landowners who own 100 percent (%) of a tract of land 
are not required to obtain a lease.
    (b) If an Indian landowner does not own 100 percent (%) of a tract 
of land and wants to use the land, he or she must obtain a lease from 
the co-owners in the tract of land.


Sec. 162.68  Must the parents or guardians of minors who own Indian 
land obtain a lease before using the land?

    A parent, guardian, or other person standing in loco parentis does 
not need to obtain a lease for lands owned by their minor children if:
    (a) Those minor children own 100 percent (%) of the land; and
    (b) The minor children directly benefit from the use. We may 
require the user of the land to provide evidence of a direct benefit to 
the minor children. When any of the minor children reach the age of 
majority, the user of the land must obtain a lease from the child for 
the use to continue.

Subpart D--Granting a Lease


Sec. 162.70  Who may grant a lease?

    (a) Tribes grant leases of tribal land, including any tribally-
owned undivided interest(s) in a fractionated tract. A lease granted by 
the tribe must be approved by us, unless the lease is authorized by a 
charter approved by us under 25 U.S.C. Sec. 477, or unless our approval 
is not required under other applicable federal law. In order to lease 
tribal land in which the beneficial interest has been assigned to 
another party, the assignee and the tribe must both grant the lease, 
subject to our approval.
    (b) Individual Indian landowners may grant a lease of their own 
land, including their undivided interest in a fractionated tract, 
subject to our approval. Except as otherwise provided in this part, 
these landowners may include the owner of a life estate holding 100 
percent (%) interest in the lease tract.
    (c) We may grant a lease on behalf of an individual Indian 
landowner, as provided in section 162.71.
    (d) We will grant permits on Government lands.


Sec. 162.71  Who may represent an individual Indian landowner in 
granting a lease?

    The following individuals or entities may represent an individual 
Indian landowner:
    (a) An adult acting on behalf of :
    (1) His or her minor children; or
    (2) Other minor children to whom the adult stands in loco parentis 
who do not have a guardian or other legal representative;
    (b) A guardian, conservator, or other fiduciary appointed by a 
court of competent jurisdiction to act on behalf of an individual 
Indian landowner;
    (c) An adult or legal entity who has been given a written power of 
attorney which:
    (1) Meets all of the formal requirements of any applicable tribal 
or state law;

[[Page 43927]]

    (2) Identifies the attorney-in-fact and the land to be leased; and
    (3) Describes the scope of the power granted and any limits 
thereon.
    (d) The BIA acting on behalf of:
    (1) An individual who is non compos mentis;
    (2) An orphaned minor;
    (3) An individual Indian landowner who has granted us a durable 
power of attorney to lease his or her land;
    (4) The undetermined heirs and devisees of a deceased Indian 
landowner;
    (5) An Indian landowner whose whereabouts are unknown to us after a 
reasonable attempt is made to locate the owner;
    (6) The Indian landowners of a fractionated tract who:
    (i) Have received actual notice of our intent to grant a lease on 
their behalf; and
    (ii) Are unable to agree upon a lease during the three month 
negotiation period following the notice;
    (7) The owners of a minority interest in the Indian ownership of a 
fractionated tract of Indian agricultural land when the majority 
interest has consented, as long as the minority interest owners receive 
fair annual rental;
    (8) The owners of ``highly fractionated undivided heirship lands,'' 
for agricultural leases, consistent with Sec. 162.6 of this part; or 
(9) The individual Indian owners of fractionated Indian land, when 
necessary to protect the interests of the individual Indian landowners.


Sec. 162.72  May an emancipated minor grant a lease on his or her own 
Indian land?

    No. An emancipated minor, a person who is under 18 years of age and 
declared by a court of competent jurisdiction to be an adult, may not 
grant a lease on his or her own Indian land.


Sec. 162.73  When may the Secretary grant permits?

    (a) We may grant a permit on behalf of all individual Indian 
landowners covering all trust and restricted interests if it is 
impractical to provide notice to the landowners and no substantial 
injury to the land would occur.
    (b) We will not grant permits on tribal lands except upon request 
by a tribe.
    (c) We will grant permits on Government land.


Sec. 162.74  What requirements apply to an agricultural lease on 
fractionated tracts?

    (a) The owners of a majority interest in the Indian ownership of a 
fractionated tract may grant an agricultural lease without giving prior 
notice to the minority owners as long as the minority interest owners 
receive fair annual rental. We must approve such leases.
    (b) We may grant an agricultural lease on behalf of all owners of a 
fractionated tract without giving prior notice to the minority owners. 
Before granting such a lease, we will offer a preference right to any 
Indian owner who:
    (1) Possesses the entire lease tract;
    (2) Submits a written offer to lease the land, subject to any 
required or negotiated terms and conditions, prior to our granting a 
lease to another party; and
    (3) Provides any supporting documents needed to demonstrate the 
ability to perform all of the lessee's obligations under the proposed 
lease.


Sec. 162.75  When is a decision by the BIA regarding leases effective?

    A decision by the BIA regarding leases is effective 30 days after 
the issuance of the decision document and exhaustion of all appeal 
rights.

Subpart E--Business Leases

General Provisions


Sec. 162.80  What types of leases are covered by this part?

    (a) This subpart covers both ground leases (undeveloped land) and 
leases of developed land (together with the improvements thereon), 
authorizing the development or use of the leased premises for purposes 
other than farming, grazing, or use as an individual homesite. The 
regulations in this subpart also apply to leases made for those other 
purposes, if appropriate.
    (b) Leases covered by this subpart may authorize the construction 
of single-purpose or mixed use projects designed for use by any number 
of tenants or occupants. These leases may include:
    (1) Residential development leases;
    (2) Leases for public, religious, educational, and recreational 
purposes; and
    (3) Commercial or industrial leases for retail, office, 
manufacturing, storage, and/or other business purposes.


Sec. 162.81  How is a business lease obtained?

    You may obtain a lease from an Indian landowner through 
negotiation. Generally, business leases will not be advertised for 
competitive bid. We will assist you in contacting the Indian landowners 
or their representatives for the purpose of negotiating a lease.


Sec. 162.82  What supporting documents must I provide?

    (a) If you are a corporation, limited liability company, 
partnership, joint venture, or other legal entity, you must provide 
organizational documents, certificates, filing records, and resolutions 
or other authorization documents, as needed to show that the lease will 
be enforceable against the lessee and that the lessee will be able to 
perform all of its lease obligations.
    (b) You must provide an appraisal, or other appropriate valuation, 
and financial pro forma, to support any negotiated rent and term 
provisions in the lease.
    (c) You must provide current financial statements and credit 
reports or, where such records are not available, other appropriate 
documentation, to show that you will be able to meet the monetary 
obligations under the lease.
    (d) If the lease authorizes new construction, you must provide:
    (1) Environmental reports, which may include an environmental 
baseline survey, and archaeological reports and other documents, as 
determined by us to be necessary to facilitate our compliance with 
federal and tribal environmental and land use requirements;
    (2) A preliminary site plan identifying the proposed location of 
any new buildings, roads and utilities, and a construction schedule 
showing the tentative commencement and completion dates for those 
improvements; and
    (3) A certified survey plat depicting the boundaries of the leased 
premises and the location of any existing improvements and 
encumbrances.

Rent and Term


Sec. 162.83  How much rent must a lessee pay?

    (a) The lease must require the initial payment of a fair annual 
rental, based on a fixed amount and/or a percentage of the projected 
income to be derived from the land, unless a lesser amount is permitted 
under paragraphs (b)-(c) of this section. If new construction is 
required, the lease may provide for the payment of less than a fair 
annual rental during the pre-development and construction periods 
specified in the lease.
    (b) We will approve a negotiated lease of tribal land which 
provides for the payment of nominal rent, or less than a fair annual 
rental, if the tribe provides a resolution (or appropriate final tribal 
decision) and a written explanation indicating how approval will serve 
the tribe's best interest over the entire period in which the reduced 
rent will be paid.

[[Page 43928]]

    (c) We will approve (but not grant) a lease of individually owned 
Indian land which provides for the payment of nominal rent, or less 
than a fair annual rental, if:
    (1) The lease is for religious, educational, recreational, or other 
public purposes;
    (2) The lease is for business purposes, and the lessee is the 
individual Indian landowner's spouse, brother, sister, lineal ancestor, 
lineal descendant, or co-owner; or
    (3) The lessee is a joint venture or other legal entity in which 
the Indian owners directly participate in the revenues or profits 
generated by the lease, and the distribution of profits or revenues to 
the owners is projected to exceed the rent which would otherwise be 
paid over the entire lease term.
    (d) The lease must provide for a rental adjustment at least every 
fifth year, unless the lessee is paying less than a fair annual rental 
or a rental based primarily on a percentage of the income derived from 
the land. If adjustments are required, the lease must specify:
    (1) When adjustments are made;
    (2) Who makes the adjustments;
    (3) What the adjustments are based on; and
    (4) How disputes arising from the adjustments are resolved.


Sec. 162.84  Is a surety bond or guaranty required?

    (a) Yes. Unless the lease provides otherwise, you must furnish a 
surety bond or unconditional guaranty to secure the contractual 
obligations. If a bond or guaranty is required, you must furnish it 
before we grant or approve the lease.
    (b) The lease may require that the surety bond or guaranty remain 
effective throughout the lease term and any holdover or renewal period. 
Alternatively, the lease may provide for the bond or guaranty to be 
modified or released:
    (1) After a specified period of time;
    (2) When the income generated by the lease reaches a specified 
level;
    (3) If we determine that the original bond or guaranty is no longer 
needed to secure the contractual obligations; or
    (4) If, for leases on tribal lands, the tribe requests the 
modification or release of the bond, and we approve the request.
    (c) If the lease does not initially require a surety bond or 
guaranty, or if it provides for modification or release at some future 
date, the lease must allow us to establish or reinstate a bond or 
guaranty requirement at any time we deem it necessary to secure the 
contractual obligations. A tribe may request that we establish or 
reinstate a bond or guaranty requirement as may be necessary.
    (d) We will review the surety bond or guaranty documents to ensure 
that they include the necessary waivers. We may require that the surety 
or guarantor provide any supporting documents needed to show that the 
bond or guaranty will be enforceable, and that the surety or guarantor 
will be able to perform the guaranteed obligations. The bond must be 
provided by a company certified by the Department of the Treasury as an 
acceptable surety on federal bonds.
    (e) The lease must require that you obtain the consent of the 
surety or guarantor, with respect to any amendment, assignment, 
sublease, or leasehold mortgage. The lease must also provide for the 
surety or guarantor to receive a copy of any notice of default issued 
to the lessee by us or by the Indian owners.


Sec. 162.85  Can a lease be renewed?

    (a) Unless otherwise provided by law (such as 25 U.S.C. 415(a)), 
the lease may provide the lessee with an option to renew the lease for 
a single renewal period of no more than 25 years, so long as the 
maximum term permitted under federal law is not exceeded. If an option 
to renew is provided, the lease must specify:
    (1) The time and manner in which the option must be exercised; and
    (2) Any additional consideration which will be due upon the 
exercise of the option or the commencement of the renewal period.
    (b) The lease may not:
    (1) Be renewed or extended by holdover;
    (2) Provide an option to renew which covers less than the entire 
lease tract; or
    (3) Provide a right of first refusal or any other type of 
preference with respect to a new lease.


Sec. 162.86  May a lease be terminated prior to its expiration date?

    (a) Yes. The lease may provide either party with one or more 
options to cancel, for any reason. If an option to cancel is provided, 
the lease must specify the time and manner in which the option must be 
exercised. If the lessee is a joint venture or other legal entity in 
which the Indian owners participate directly in the revenues or profits 
generated by the lease, the lease must:
    (1) Provide the Indian landowners with an option to cancel if the 
actual revenues or profits fall significantly below the initial 
projections; and
    (2) Specify the time, manner, and terms upon which a new lease will 
be entered into with the successor-in-interest to the joint venture or 
legal entity whose lease is being canceled.
    (b) The lease may provide the Indian landowners with a buyout 
option or an option to recapture the land upon the occurrence of 
certain conditions, such as a proposed renewal or assignment of the 
lease. If such an option is provided, the lease must specify the time 
and manner in which the option must be exercised.
    (c) The lease may be terminated by agreement with the Indian 
landowners, subject to our approval. The lease may not be surrendered 
without such an agreement, nor will it be terminated if the Indian 
landowners retake possession upon abandonment of the land.
    (d) In a default, the lease may be terminated by us or by the 
Indian landowners, in accordance with the negotiated remedies provided 
in the lease. The lease may also be canceled by us for cause under 
subpart H of this part.

Consents and Approvals


Sec. 162.87  How and when can a lease be amended?

    A lease may be amended at any time, with the consent of the parties 
to the lease and our approval. The consent of the Indian landowners 
must be obtained in the same manner as the original grant of the lease, 
unless the lease authorizes one or more of the landowners to consent to 
certain types of amendments on behalf of all of the Indian landowners. 
The lease may not provide such an authorization with respect to any 
amendment which:
    (a) Modifies the lessee's payment obligations;
    (b) Extends the lease term;
    (c) Expands the lease area; or
    (d) Terminates the lease.


Sec. 162.88  May a lease be assigned, sublet, or mortgaged without the 
consent of the Indian landowners?

    (a) Unless the lease provides otherwise, the leased premises may 
only be assigned, sublet, or mortgaged without the consent of the 
Indian landowners in the circumstances described in paragraphs (b)-(e) 
of this section. If the owners' consent is required, it must be 
obtained in the same manner as the original grant of the lease, unless 
the lease authorizes one or more of the Indian landowners to consent on 
behalf of all such owners.
    (b) The lease may be assigned without the consent of the Indian 
landowners if:
    (1) The assignee is a leasehold mortgagee or its designee, 
acquiring the lease either through foreclosure or by conveyance; and

[[Page 43929]]

    (2) The assignee agrees in writing to assume all of the lessee's 
obligations under the lease.
    (c) Part of the leased premises may be sublet without the consent 
of the Indian landowners when:
    (1) The sublease is:
    (i) Part of a large commercial development;
    (ii) Part of a housing development; or
    (iii) For residential purposes (including a development by a 
tribally designated housing entity as defined under 25 U.S.C. 
4103(21)); and
    (2) We have approved a sublease form and rent schedule for use in 
the project.
    (d) The lease may be mortgaged without further consent of the 
Indian landowners if the lease contains a general authorization for 
such a mortgage, and the lease was negotiated with the understanding 
that it would be used to secure certain types of financing.


Sec. 162.89  May the Indian landowners withhold their consent to an 
assignment or encumbrance?

    Yes. However, Indian landowners are encouraged not to withhold 
their consent unreasonably. A lease may require that:
    (a) The Indian landowners specify their reasons for withholding 
consent; and
    (b) The owners' consent will be deemed granted if a response to a 
request for consent is not given within a specified time period.


Sec. 162.90  May a lease be assigned, sublet, or mortgaged without the 
BIA's approval?

    (a) The lease may not be mortgaged without our approval of the 
mortgage instrument. Except as provided in paragraphs (b)-(c) of this 
section, the leased premises may not be assigned or sublet without our 
approval.
    (b) The lease may be assigned without our approval if:
    (1) The assignee is a leasehold mortgagee or its designee, 
acquiring the lease either through foreclosure or by conveyance; and
    (2) The assignee agrees in writing to assume all of the obligations 
under the lease.
    (c) Part of the leased premises may be sublet without our approval 
when:
    (1) The sublease is part of a large commercial or residential 
development; and
    (2) We have approved a sublease form and rent schedule for use in 
the project.
    (d) Assignees and sublessees must meet all bonding requirements for 
the leasehold interest, as provided in Sec. 162.49.


Sec. 162.91  How will the BIA decide whether to approve an assignment 
or sublease?

    (a) We will approve the assignment or sublease if:
    (1) The required consents have been obtained from the Indian owners 
and any sureties or guarantors;
    (2) The lessee is not in default, and will remain liable under the 
lease;
    (3) The assignee agrees to be bound by, or the sublessee agrees to 
be subordinated to, the terms of the lease; and
    (4) We find no compelling reason to withhold our approval in order 
to protect the best interests of the Indian owners.
    (b) In making the finding required by paragraph (a)(4) of this 
section, we will consider whether:
    (1) An equitable division of the income from the assignment or 
sublease is needed;
    (2) The proposed use by the assignee or sublessee will require an 
amendment of the lease;
    (3) The value of any part of the leased premises not covered by the 
assignment or sublease would be adversely affected; and
    (4) The assignee or sublessee has provided supporting documents 
which demonstrate that the lease or sublease will be enforceable 
against the assignee or sublessee, and that the assignee or sublessee 
will be able to perform its obligations under the lease or sublease.

Subpart F--Compensation to Indian Landowners


Sec. 162.100  What does the BIA do with rent payments received from 
lessees?

    Rent will be distributed to the Indian landowners in accordance 
with the interest that each owns in the leased land. The rent will be 
deposited to the appropriate account maintained by the Office of Trust 
Funds Management in accordance with 25 CFR part 115.


Sec. 162.101  How do Indian landowners receive rent payments?

    Funds will be paid to the Indian landowners by the Office of Trust 
Funds Management in accordance with 25 CFR part 115.


Sec. 162.102  How will the rent be distributed if the lease covers more 
than one tract of land with different owners?

    Except where otherwise provided in the lease, the rent will be 
prorated based upon the number and size of the tracts in relation to 
the total leasehold, and distributed to each owner according to their 
fractional share of each tract.

Subpart G--Administrative Fees


Sec. 162.110  Are there administrative fees for a lease?

    Yes. We will charge an administrative fee before approving any 
lease, permit, sublease, assignment, encumbrance, modification, or 
other related document.


Sec. 162.111  How are administrative fees determined?

    (a) Except as provided in paragraph (b) of this section, we will 
charge administrative fees based on the annual rent, according to the 
following table:

------------------------------------------------------------------------
                                             Then the administrative fee
        If the annual rent is * * *                 will be * * *
------------------------------------------------------------------------
Less than $500............................  3% of the annual rent.
Between $500.00 and $5,000.00.............  2% of the annual rent.
Greater than $5,000.00....................  1% of the annual rent.
Percentage rental.........................  Based on the minimum annual
                                             rental or an estimated
                                             percentage of rental.
Crop share rental.........................  Based on estimated value of
                                             the crop share.
------------------------------------------------------------------------

    (b) The minimum administrative fee is $10.00 and the maximum 
administrative fee is $500.00.
    (c) If a tribe performs all or part of the administrative duties 
for this part under Public Law 93-638, the tribe may establish, 
collect, and use reasonable fees to cover its costs associated with the 
performance of administrative duties.
    (d) The fees for subleases, assignments, encumbrances, 
modifications, or other related documents will be in accordance with 
the table in paragraph (a) of this section.


Sec. 162.112  Are administrative fees refundable?

    No. We will not refund administrative fees.


Sec. 162.113  May the Secretary waive administrative fees?

    Yes. We may waive the administrative fee for a justifiable reason.


Sec. 162.114  Are there any other administrative or tribal fees, taxes, 
or assessments that must be paid?

    (a) The lessee may be required to pay additional fees, taxes, and/
or assessments associated with the use of the land as determined by us 
or by the tribe.
    (b) If the leased land is within an Indian irrigation project or 
drainage district, the lessee must pay all charges that may accrue 
during the term of the

[[Page 43930]]

lease. These may include charges for operation and maintenance of the 
irrigation project unless superseded by part 171 of this chapter. The 
lessee must pay the appropriate official in charge of the irrigation 
project or drainage district having jurisdiction.

Subpart H--Lease Violations


Sec. 162.120  What lease violations are addressed by this subpart?

    This subpart addresses violations of lease provisions other than 
trespass. Trespass is addressed under subpart L of this part.


Sec. 162.121  How will the Secretary enforce compliance with lease 
provisions?

    When reasonable grounds exist, the Secretary may enter the leased 
premises, consistent with provisions in the lease, at any reasonable 
time with or without prior notice to determine whether there has been a 
violation of the lease provisions and to protect Indian trust assets.


Sec. 162.122  What happens if a violation of a lease occurs?

    If we determine that a violation of the lease has occurred based on 
facts known to us, as soon as practicable we will notify the lessee and 
the sureties of the violation by certified mail--return receipt 
requested. This notice will include an explanation of the violation.


Sec. 162.123  What will a written notice of a violation contain?

    The written notice will provide the lessee with ten days from the 
receipt of the notice to:
    (a) Cure the violation and notify us that the violation is cured;
    (b) Explain why we should not cancel the lease; or
    (c) Request in writing additional time to complete corrective 
actions. If additional time is granted, we may require that you take 
certain corrective actions immediately.


Sec. 162.124  Can a determination of a violation be contested?

    Yes. In the written notice of violation we will advise the lessee 
of the procedure to follow to contest our determination that a 
violation of the lease has occurred.


Sec. 162.125  What happens to a bond if a violation occurs?

    We may apply the bond to remedy the violation, in which case we 
will require you to submit a replacement bond of an appropriate amount. 
Our decision setting the amount of the appeal bond may not be appealed.


Sec. 162.126  What happens if you do not cure a lease violation?

    (a) We will:
    (1) Issue a written determination to cancel the lease if the 
violation is not cured. The decision letter will contain:
    (i) An explanation why we are canceling the lease;
    (ii) An order to vacate the property;
    (iii) Notice of the right to appeal under part 2 of this chapter;
    (iv) An order to pay delinquent rentals, damages, and other 
charges; and
    (v) A requirement to post an appeal bond if applicable.
    (2) Notify all interested parties, including the Indian landowners, 
in writing as soon as practicable, by certified mail--return receipt 
requested, of our determination to cancel a lease.
    (b) We may require you to post an appeal bond in an amount 
determined by us. The amount of the appeal bond will be the amount of 
damages, and additional rentals expected to accrue during the 
settlement of the appeal.


Sec. 162.127  If you do not cure a violation, what may an Indian 
landowner do?

    (a) If a violation is not cured within the required time frame, the 
lessor may exercise rights under the lease, including a right of entry, 
if any, or request that we cancel the lease.
    (b) If a lease authorizes termination according to tribal or other 
law, or provides for the resolution of certain types of disputes 
through alternative dispute resolution methods, the lease provisions 
will govern in place of this part.


Sec. 162.128  Can the Secretary take emergency action without prior 
notice if the leased premises are being damaged?

    Yes. If the lessee causes or contributes to a severe harm to the 
premises, the Secretary may take appropriate emergency action, in 
consultation with the Indian landowner, by:
    (a) Initiating action to cancel the lease;
    (b) Requiring immediate cessation of the activity resulting in the 
harm;
    (c) Ordering the lessee to vacate the premises immediately; and
    (d) Taking legal action as may be appropriate, including seeking 
emergency judicial action.


Sec. 162.129  What rights does a lessee have if the Secretary takes 
emergency action under this subpart?

    A lessee may:
    (a) Agree to remedy the harm in a manner and time frame 
satisfactory to the Secretary and the Indian landowner;
    (b) Seek to have the lease reinstated after the harm to the 
property has been cured; and
    (c) Contest the Secretary's emergency actions under 25 CFR Part 2.

Subpart I--Appeals


Sec. 162.130  May decisions by the Secretary be appealed?

    (a) Except where otherwise provided in this part, appeals from 
decisions of the Secretary under this part may be taken pursuant to 25 
CFR part 2.
    (b) As may be necessary to protect the interests of the Indian 
landowner, we may require the appellant (or lessee) to post a bond in 
an amount sufficient to guarantee restoration of the Indian land if our 
decision to grant or approve the lease is reversed.

Subpart J--Non-Trust Interests


Sec. 162.140  May the Secretary grant or approve leases for non-trust 
interests in Indian land?

    No. The Secretary has no statutory authority to grant or approve 
leases for non-trust interests in Indian land.


Sec. 162.141  Are non-trust interests included in a lease?

    No. The undivided non-trust interests are not included in a lease 
granted or approved by the BIA.


Sec. 162.142  How will a lessee know there is a non-trust interest in 
Indian land?

    When we lease Indian land, we will advise the lessee that the title 
to the Indian land contains non-trust interest(s). Upon request, and 
subject to applicable law, we will provide the lessee with the 
information we have in our records identifying the owner of the non-
trust interest(s).


Sec. 162.143  From whom must a lessee lease a non-trust interest?

    A lessee must lease any non-trust interest(s) directly from 
owner(s) of the non-trust interest(s).


Sec. 162.144  Is the non-trust interest shown in a lease of Indian 
land?

    No. The lease terms will describe only the Indian owned interest. 
For example, if the Indian owned interests constitutes \3/4\ of the 
Indian land, the land will be described as: An undivided \3/4\ interest 
in and to the W/2 SW/4, Section 1, Township 10 North, Range 1 East, 
Principal Meridian, Billings, Montana. This will notify the lessee that 
the full interest in the tract has not been leased. The remaining 
undivided \1/4\ interest is the non-trust interest and the lessee must 
contact the non-trust interest owners directly to secure a lease of 
their interest.

[[Page 43931]]

Sec. 162.145  How much rent is due for the non-trust interest?

    It is the responsibility of the lessee to contact the non-trust 
owners to negotiate the amount of rental to be paid and to make rental 
payments to the owners of the non-trust interest.


Sec. 162.146  May a lease payment made by a lessee to the BIA or to an 
Indian landowner include payment for any non-trust interest?

    No. Payment for a non-trust interest must be made to the owner of 
that interest.


Sec. 162.147  Will the BIA grant or approve a lease on a fractionated 
tract that is subject to a life estate held by the owner of a non-trust 
interest?

    We will grant or approve a lease on a fractionated tract that is 
subject to a life estate held by the owner of a non-trust interest only 
when it is necessary to preserve the value of the trust interests in 
the land.

Subpart K--Valuation


Sec. 162.150  Why must the Secretary determine the fair annual rental 
of Indian land?

    The BIA must determine the fair annual rental of Indian land in 
order to:
    (a) Assist the Indian landowner in negotiating a lease with 
potential lessees; and
    (b) Enable the Secretary to determine whether a lease is in the 
best interests of the Indian landowner.


Sec. 162.151  How does the Secretary determine the fair annual rent of 
Indian land?

    The Secretary determines the fair annual rent for lease by 
appraisal, advertisement, competitive bidding, negotiation, or any 
other appropriate method, in accordance with the Uniform Standards of 
Professional Appraisal Practices (USPAP).


Sec. 162.152  Will the BIA ever grant or approve a lease at less than 
fair annual rental?

    (a) We will grant an agricultural lease of individually owned 
Indian land at less than fair annual rental if, after advertising the 
lease, we determine that such action would be in the best interests of 
the individual Indian landowners.
    (b) We may approve a lease of individually owned Indian land at 
less than fair annual rental if:
    (1) The lease is for religious, educational, recreational, or other 
public purposes;
    (2) The lease is for a homesite for the landowner's spouse, 
brother, sister, lineal ancestor, lineal descendent or co-owner; or
    (3) We determine it is in the best interest of the Indian 
landowners.
    (c) We may approve a lease of tribal land at less than fair annual 
rental if:
    (1) The lease is for religious, educational, recreational, or other 
public purposes;
    (2) The lease is for residential, agricultural, or business 
purposes and the lessee is a tribal member or tribal entity; or
    (3) We determine that it is in the best interest of the tribe.
    (d) We will not grant or approve leases not addressed in paragraphs 
(a) through (c) of this section at less than fair annual rental.

Subpart L--Trespass


Sec. 162.160  What is trespass?

    Under this part, trespass is any unauthorized occupancy, use of, or 
action on Indian agricultural and government lands. The following are 
some examples of trespass:
    (a) Cultivating or harvesting of irrigated or non-irrigated crops 
or the harvesting of native hay, forage, or seed;
    (b) Erecting or damaging fencing, gates or other structures;
    (c) Developing water resources;
    (d) Commercial filming or photography;
    (e) Sale or barter of goods or services;
    (f) Placing or storing of beehives;
    (g) Cutting, damaging, taking, harvesting, or removing agricultural 
products for commercial purposes, including but not limited to: 
berries, nuts, flowers, seeds, moss, cones, leaves, mushrooms, cactus, 
yucca, and greenery;
    (h) Recreation, hunting, trapping, or fishing;
    (i) Disturbing soil, plants, or otherwise exposing or disturbing, 
damaging, or removing archaeological or paleontological resources;
    (j) Littering or disposing of agricultural related products, 
hazardous waste, household or business waste, or garbage;
    (k) Applying pesticides without proper certification or misusing 
pesticides;
    (l) Aquaculture or the harvesting of fish raised for commercial 
sale or consumption;
    (m) Unauthorized livestock activities, including:
    (1) Driving livestock across Indian land without an approved 
crossing permit;
    (2) Allowing livestock to drift and graze on Indian land without an 
approved grazing permit;
    (3) Grazing livestock within an area closed to grazing of that 
class of livestock; and
    (4) Grazing livestock in an area withdrawn from use by the BIA when 
damage to the Indian land is occurring due to improper handling of 
livestock; and
    (n) Other actions designated by tribes as acts of trespass on 
Indian agricultural lands.


Sec. 162.161  What is the BIA's trespass policy?

    We will:
    (a) Investigate accidental, and willful, or incidental trespass.
    (b) Respond to alleged trespass in a prompt, efficient manner.
    (c) Assess trespass penalties for the value of products used or 
removed, cost of damage to the Indian land, and enforcement costs 
incurred as a consequence of the trespass.
    (d) Ensure that unnecessary or undue damage to Indian lands 
resulting from trespass is rehabilitated and stabilized at the expense 
of the trespasser.


Sec. 162.162  Who can enforce this subpart?

    (a) The BIA enforces the provisions of this subpart. If the tribe 
adopts the provisions of this subpart, the tribe will have concurrent 
jurisdiction to enforce this subpart. Additionally, if the tribe so 
requests, we will defer to tribal prosecution of trespass on Indian 
agricultural lands.
    (b) The provisions in this subpart are exclusive of, and in 
addition to, any tribal action that may be taken under tribal law.

Notification


Sec. 162.163  How are trespassers notified of a trespass determination?

    (a) Unless otherwise provided under tribal law, when we have reason 
to believe that a trespass on Indian agricultural land has occurred, we 
or the authorized tribal representative will provide written notice to 
the alleged trespasser, the possessor of trespass property, any known 
lien holder, and the beneficial Indian landowner, as appropriate. The 
written notice will include the following:
    (1) The basis for the trespass determination;
    (2) A legal description of where the trespass occurred;
    (3) A verification of brands in the State Brand Book for cases of 
livestock trespass;
    (4) Corrective actions that must be taken;
    (5) Time frames for taking the corrective actions; and
    (6) Potential consequences and penalties for failure to take 
corrective action.
    (b) If we determine that the identity of the alleged trespasser or 
possessor of

[[Page 43932]]

trespass property is unknown or if the trespasser refuses delivery of 
the written notice, a public trespass notice will be posted at the 
tribal community building and at the United States Post Office, and 
published in the local newspaper nearest to the Indian agricultural 
lands where the trespass is occurring.
    (c) Trespass notices under this subpart are not subject to appeal 
under 25 CFR part 2.


Sec. 162.164  What can I do if I receive a trespass notice?

    If you receive a trespass notice, you may within the time frame 
specified in the notice:
    (a) Comply with the ordered corrective actions; or
    (b) Contact us in writing to explain why the trespass notice is in 
error. You may contact us by telephone, but any official explanation of 
trespass must be in writing. If we determine that we issued the 
trespass notice in error, we will withdraw the notice.


Sec. 162.165  Who else will the BIA notify?

    We will notify anyone in possession of the Indian land on which the 
unauthorized livestock or other property has been identified that such 
property could be Indian trust property and that no action to remove or 
otherwise dispose of the unauthorized livestock or other property may 
be taken unless authorized by us.

Actions


Sec. 162.166  What actions does the BIA take against trespassers?

    If the trespasser fails to comply with the corrective action 
specified by us, we may take one or more of the following actions, as 
appropriate:
    (a) Seize, impound, sell or dispose of unauthorized livestock or 
other property involved in the trespass. We may keep such seized 
property for use as evidence.
    (b) Assess penalties, damages, and costs, under Sec. 162.172.


Sec. 162.167  When will we impound unauthorized livestock or other 
property?

    We will impound unauthorized livestock or other property under the 
following conditions:
    (a) If there is imminent danger of severe injury to a growing or 
harvestable crop or destruction of the range forage.
    (b) When either you or your representative refuses to accept 
delivery of a written notice of trespass and you do not remove the 
unauthorized livestock or other property within the period prescribed 
in the written notice.
    (c) Any time after five days of providing notice of impoundment if 
you failed to correct the trespass.


Sec. 162.168  How will you be notified if your unauthorized livestock 
or other property are to be impounded?

    (a) We will send written notice of the intent to impound 
unauthorized livestock or other property to you or your representative, 
and to any known lien holder of the unauthorized livestock or other 
property, if you do not correct the trespass in the time specified in 
the initial trespass notice.
    (b) If we determine that the identity of the owner of the 
unauthorized livestock or other property or his/her representative is 
unknown, or if the owner or his/her representative refuses delivery of 
the written notice, a public notice of intent to impound will be posted 
at the tribal community building and the United States Post Office, and 
published in the local newspaper nearest to the Indian agricultural 
lands where the trespass is occurring.
    (c) After we have given notice as described in paragraphs (a) and 
(b) of this section, we will impound unauthorized livestock or other 
property without any further notice.


Sec. 162.169  What will we do after we impound unauthorized livestock 
or other property?

    Following the impoundment of unauthorized livestock or other 
property, we will provide notice that we will sell the impounded 
property as follows:
    (a) We will provide written notice of the sale to the owner, his/
her representative, and any known lien holder. The written notice must 
include the procedure by which the impounded property may be redeemed 
prior to the sale.
    (b) We will provide public notice of sale of impounded property by 
posting at the tribal community building and the United States Post 
Office, and publishing in the local newspaper nearest to the Indian 
agricultural lands where the trespass is occurring. The public notice 
will include a description of the impounded property, and the date, 
time and place of the public sale. The sale date must be at least five 
days after the publication and posting of notice.


Sec. 162.170  How do I redeem my impounded livestock or other property?

    You may redeem impounded property by submitting proof of ownership 
and paying all penalties, damages, and costs under Sec. 162.172, and 
completing all corrective actions that we identify under Sec. 162.163.


Sec. 162.171  How will the sale of impounded livestock or other 
property be conducted?

    (a) Unless the owner or known lien holder of the impounded property 
redeems the property prior to the time set by the sale, by submitting 
proof of ownership and the settlement of all obligations under 
Sec. 162.163 and Sec. 162.172, the property will be sold by public sale 
to the highest bidder.
    (b) If a satisfactory bid is not received, we may reoffer the 
property for sale, return it to the owner, condemn and destroy it, or 
otherwise dispose of it.
    (c) We will give the purchaser a bill of sale or other written 
receipt evidencing the sale.

Penalties, Damages and Costs


Sec. 162.172  What are the penalties, damages, and costs payable by 
trespassers on Indian land?

    Trespassers on Indian land must pay the following penalties and 
costs:
    (a) A penalty of three times the daily equivalent of the rental 
rate under the permit for each day of trespass;
    (b) The reasonable value of forage or crops consumed or destroyed;
    (c) Expenses incurred in gathering, impounding, caring for, and 
disposal of livestock in cases which necessitate impoundment under 
Sec. 162.167;
    (d) The costs associated with any damage to Indian land;
    (e) The value of the property illegally used or removed, plus a 
penalty of double its value;
    (f) The costs associated with enforcement of the regulations, 
including field examination and survey, damage appraisal, investigation 
assistance and reports, witness expenses, demand letters, court costs, 
and attorney fees; and
    (g) All other penalties authorized by law.


Sec. 162.173  How will the BIA determine the value of forage or crops 
consumed or destroyed?

    We will determine the value of forage or crops consumed or 
destroyed based upon the average rate received per month for comparable 
property or grazing privileges, or the estimated commercial value for 
such property or privileges.


Sec. 166.174  How will the BIA determine the value of the product 
illegally used or removed?

    We will determine the value of the property illegally used or 
removed based upon a valuation of similar property.

[[Page 43933]]

Sec. 162.175  How will the BIA determine the amount of damages to 
Indian land?

    We will determine the damages by considering the costs of 
rehabilitation and revegetation, loss of future revenue, loss of 
profits, loss of productivity, loss of market value, damage to other 
resources, and other factors.


Sec. 162.176  How will the BIA determine the costs associated with 
enforcement of the trespass?

    Costs of enforcement may include detection and all processes 
through prosecution and collection of damages. This covers field 
examination and survey, damage appraisal, investigation assistance and 
report preparation, witness expenses, demand letters, court costs, 
attorney fees, and other costs.


Sec. 162.177  What happens if I do not pay the assessed penalties, 
damages and costs?

    Unless otherwise provided by tribal law:
    (a) We will refuse to issue you a permit for the use, development, 
or occupancy of Indian lands.
    (b) We will forward the case for appropriate legal action.


Sec. 162.178  How are the proceeds from trespass distributed?

    Unless otherwise provided by tribal law:
    (a) We will treat any amounts recovered under Sec. 162.175 as 
proceeds from the sale of agricultural property from the Indian 
agricultural land upon which the trespass occurred.
    (b) All amounts collected in excess of the amounts assessed under 
Sec. 162.172 will be applied by us against costs associated with the 
enforcement of this subpart.
    (c) If we seize and dispose of impounded livestock or other 
property of the trespasser, we will apply any cash or other proceeds to 
satisfy the penalties and costs of enforcement. If any money is left 
over, we will return it to the trespasser or, where we cannot identify 
the owner of the impounded property, we will deposit the net proceeds 
of the sale into the accounts of the landowners where the trespass 
occurred.


Sec. 162.179  What happens if the BIA does not collect enough money to 
satisfy the penalty?

    If we do not collect enough money from the trespasser, we will 
distribute collected penalties as follows:
    (a) All amounts collected up to and including the amount assessed 
under Secs. 162.171 through 162.172 will be distributed equally between 
the beneficial Indian landowner and towards the cost of restoring the 
Indian land.
    (b) Written notice will be sent to the trespasser and any known 
lienholders to demand immediate settlement and to advise the trespasser 
that unless settlement is received within five working days from the 
date of receipt, the case will be forwarded for appropriate legal 
action.

Subpart M--Records


Sec. 162.180  Who owns records associated with this part?

    Any records generated in the fulfillment of the part are the 
property of the United States, and must be maintained in accordance 
with approved records retention procedures under the Federal Records 
Act, 44 U.S.C. Sec. 3101, et seq.

Subpart N--Special Requirements for Certain Reservations


Sec. 162.190  Crow Reservation.

    (a) Notwithstanding the regulations in other sections of this part 
162, Crow Indians classified as competent under the Act of June 4, 1920 
(41 Stat. 751), as amended, may lease their trust lands and the trust 
lands of their minor children for farming or grazing purposes without 
the approval of the Secretary pursuant to the Act of May 26, 1926 (44 
Stat. 658), as amended by the Act of March 15, 1948 (62 Stat. 80). 
However, at their election Crow Indians classified as competent may 
authorize the Secretary to lease, or assist in the leasing of such 
lands, and an appropriate notice of such action shall be made a matter 
of record. When this prerogative is exercised, the general regulations 
contained in this part 162 shall be applicable. Approval of the 
Secretary is required on leases signed by Crow Indians not classified 
as competent or made on inherited or devised trust lands owned by more 
than five competent devisees or heirs.
    (b) The Act of May 26, 1926 (44 Stat. 658), as amended by the Act 
of March 15, 1948 (62 Stat. 80), provides that no lease for farming or 
grazing purposes shall be made for a period longer than five years, 
except irrigable lands under the Big Horn Canal; which may be leased 
for periods of ten years. No such lease shall provide the lessee a 
preference right to future leases which, if exercised, would thereby 
extend the total period of encumbrance beyond the five or ten years 
authorized by law.
    (c) All leases entered into by Crow Indians classified as 
competent, under the above-cited special statutes, must be recorded at 
the Crow Agency. Such recording shall constitute notice to all persons. 
Under these special statutes, Crow Indians classified as competent are 
free to lease their property within certain limitations. The five-year 
(ten-year in the case of lands under the Big Horn Canal) limitation is 
intended to afford a protection to the Indians. The essence of this 
protection is the right to deal with the property free, clear, and 
unencumbered at intervals at least as frequent as those provided by 
law. If lessees are able to obtain new leases long before the 
termination of existing leases, they are in a position to set their own 
terms. In these circumstances lessees could perpetuate their leaseholds 
and the protection of the statutory limitations as to terms would be 
destroyed. Therefore, in implementation of the foregoing 
interpretation, any lease which, on its face, is in violation of 
statutory limitations or requirements, and any grazing lease executed 
more than 12 months, and any farming lease executed more than 18 
months, prior to the commencement of the term thereof or any lease 
which purports to cancel an existing lease with the same lessee as of a 
future date and take effect upon such cancellation will not be 
recorded. Under a Crow tribal program, approved by the Department of 
the Interior, competent Crow Indians may, under certain circumstances, 
enter into agreements which require that, for a specified term, their 
leases be approved. Information concerning whether a competent Crow 
Indian has executed such an instrument is available at the office of 
the Superintendent of the Crow Agency, Bureau of Indian Affairs, Crow 
Agency, Montana. Any lease entered into with a competent Crow Indian 
during the time such instrument is in effect and which is not in 
accordance with such instrument will be returned without recordation.
    (d) Where any of the following conditions are found to exist, 
leases will be recorded but the lessee and lessor will be notified upon 
discovery of the condition:
    (1) The lease in single or counterpart form has not been executed 
by all owners of the land described in the lease;
    (2) There is, of record, a lease on the land for all or a part of 
the same term;
    (3) The lease does not contain stipulations requiring sound land 
utilization plans and conservation practices; or
    (4) There are other deficiencies such as, but not limited to, 
erroneous land descriptions, and alterations which are not clearly 
endorsed by the lessor.
    (e) Any adult Crow Indian classified as competent shall have the 
full responsibility for obtaining compliance with the terms of any 
lease made by him

[[Page 43934]]

pursuant to this section. This shall not preclude action by the 
Secretary to assure conservation and protection of these trust lands.
    (f) Leases made by competent Crow Indians shall be subject to the 
right to issue permits and leases to prospect for, develop, and mine 
oil, gas, and other minerals, and to grant rights-of-way and easements, 
in accordance with applicable law and regulations. In the issuance or 
granting of such permits, leases, rights-of-way or easements due 
consideration will be given to the interests of lessees and to the 
adjustment of any damages to such interests. In the event of a dispute 
as to the amount of such damage, the matter will be referred to the 
Secretary whose determination will be final as to the amount of said 
damage.


Sec. 162.191  Fort Belknap Reservation.

    Not to exceed 20,000 acres of allotted and tribal lands 
(nonirrigable as well as irrigable) on the Fort Belknap Reservation in 
Montana may be leased for the culture of sugar beets and other crops in 
rotation for terms not exceeding 10 years.


Sec. 162.192  Cabazon, Augustine, and Torres-Martinez Reservations, 
California.

    (a) Upon a determination by the Secretary that the owner or owners 
are not making beneficial use thereof, restricted lands on the Cabazon, 
Augustine, and Torres-Martinez Indian Reservations which are or may be 
irrigated from distribution facilities administered by the Coacheella 
Valley County Water District in Riverside County, California, may be 
leased by the Secretary in accordance with the regulations in this part 
for the benefit of the owner or owners.
    (b) All leases granted or approved on restricted lands of the 
Cabazon, Augustine, and Torres-Martinez Indian Reservations shall be 
filed for record in the office of the county recorder of the county in 
which the land is located, the cost thereof to be paid by the lessee. A 
copy of each such lease shall be filed by the lessee with the Coachella 
Valley County Water District or such other irrigation or water district 
within which the leases lands are located. All such leases shall 
include a provision that the lessee, in addition to the rentals 
provided for in the lease, shall pay all irrigation charges properly 
assessed against the land which became payable during the term of the 
lease. Act of August 25, 1950 (64 Stat. 470); Act of August 28, 1958 
(72 Stat. 968).


Sec. 162.193  Colorado River Reservation.

    The Act of April 30, 1964 (78 Stat. 188), fixed the beneficial 
ownership of the Colorado River Reservation in the Colorado River 
Indian Tribes of the Colorado River Reservation and authorized the 
Secretary of the Interior to approve leases of said lands for such uses 
and terms as are authorized by the Act of August 9, 1955 (69 Stat. 
539), as amended (25 U.S.C. 415 et seq. ), including the same uses and 
terms as are permitted thereby on the Agua Caliente (Palm Springs), 
Dania, Navajo, and Southern Ute Reservations. Regulations in this part 
162 govern leasing under the Act of August 9, 1955. Therefore, part 162 
shall also govern the leasing of lands on the Colorado River 
Reservation: Provided, however, That application of this part 162 shall 
not extend to any lands lying west of the present course of the 
Colorado River and south of sec. 12 of T. 5 S., R. 23 E., San 
Bernardino base and meridian in California and shall not be construed 
to affect the resolution of any controversy over the location of the 
boundary of the Colorado River Reservation; Provided further, That any 
of the described lands in California shall be subject to the provisions 
of this part 162 when and if determined to be within the reservation.


Sec. 162.194  San Xavier and Salt River Pima-Maricopa Reservations.

    (a) Purpose and scope. The Act of November 2, 1966 (80 Stat. 1112), 
provides statutory authority for long-term leasing on the San Xavier 
and Salt River Pima-Maricopa Reservations, Ariz., in addition to that 
contained in the Act of August 9, 1955 (69 Stat. 539), as amended (25 
U.S.C. 415). When leases are made under the 1955 Act on the San Xavier 
or Salt River Pima-Maricopa Reservations, the regulations in part 162 
apply. The purpose of this section is to provide regulations for 
implementation of the 1966 Act. The 1966 Act does not apply to leases 
made for purposes that are subject to the laws governing mining leases 
on Indian lands.
    (b) Duration of leases. Leases made under the 1966 Act for public, 
religious, educational, recreational, residential, or business purposes 
may be made for terms of not to exceed 99 years. The terms of a grazing 
lease shall not exceed 10 years; the term of a farming lease that does 
not require the making of a substantial investment in the improvement 
of the land shall not exceed 10 years; and the term of a farming lease 
that requires the making of a substantial investment in the improvement 
of the land shall not exceed 40 years. No lease shall contain an option 
to renew which extends the total term beyond the maximum term permitted 
by this section.
    (c) Required covenant and enforcement thereof. Every lease under 
the 1966 Act shall contain a covenant on the part of the lessee that he 
will not commit or permit on the leased land any act that causes waste 
or a nuisance or which creates a hazard to health of persons or to 
property wherever such persons or property may be.
    (d) Notification regarding leasing proposals. If the Secretary 
determines that a proposed lease to be made under the 1966 Act for 
public, religious, educational, recreational, residential, or business 
purposes will substantially affect the governmental interests of a 
municipality contiguous to the San Xavier Reservation or the Salt River 
Pima-Maricopa Reservation, as the case may be, he shall notify the 
appropriate authority of such municipality of the pendency of the 
proposed lease. The Secretary may, in his discretion, furnish such 
municipality with an outline of the major provisions of the lease which 
affect its governmental interests and shall consider any comments on 
the terms of the lease affecting the municipality or on the absence of 
such terms from the lease that the authorities may offer. The notice to 
the authorities of the municipality shall set forth a reasonable 
period, not to exceed 30 days, within which any such comments shall be 
submitted.
    (e) Applicability of other regulations. The regulations in part 162 
of this chapter shall apply to leases made under the 1966 Act except 
where such regulations are inconsistent with this section.
    (f) Mission San Xavier del Bac. Nothing in the 1966 Act authorizes 
development that would detract from the scenic, historic, and religious 
values of the Mission San Xavier del Bac owned by the Franciscan Order 
of Friars Minor and located on the San Xavier Reservation.

PART 166--GRAZING PERMITS

    5. Part 166 is revised to read as follows:
Sect.
Subpart A--Purpose, Policy, and Definitions
166.1   What is the purpose of this part?
166.2   What terms do I need to know?
Subpart B--Permit Requirements

General Requirements

166.100   Must Indian owners of Indian land obtain a permit before 
using land for grazing purposes?
166.101   Must parents or guardians of Indian minors who own Indian 
land

[[Page 43935]]

obtain a permit before using land for grazing purposes?
166.102   Who can grant a permit?
166.103   Who may represent an individual Indian landowner in 
granting a permit?
166.104   May an emancipated minor grant a permit?
166.105   What requirements apply to a permit on a fractionated 
tract?
166.106   What provisions must be contained in a permit?
166.107   How long is a permit term?
166.108   Are permits recorded?
166.109   Where are permits recorded?
166.110   Who is responsible for recording permits?
166.111   When may a permittee take possession of permitted Indian 
land?
166.112   Must I comply with any standards of conduct if I am 
granted a permit?
166.113   Will the BIA notify the permittee of any change in land 
title status?
166.114   When is a decision by the BIA regarding a permit 
effective?

Obtaining a Permit

166.115   How can I find Indian land available for grazing?
166.116   Who is responsible for permitting Indian land?
166.117   How do I acquire a permit on Indian land?
166.118   How do I acquire a permit through tribal allocation?
166.119   How do I acquire a permit through negotiation?
166.120   What are the basic steps for acquiring a permit through 
negotiation?
166.121   Can I negotiate a contract with an Indian landowner to 
permit land at a future date?
166.122   How do I acquire an advertised permit through competitive 
bidding?
166.123   Are there standard permit forms?

Permit (Leasehold) Mortgage

166.124   Can I use a permit as collateral for a loan?
166.125   What factors does the BIA consider when reviewing a 
leasehold mortgage?
166.126   May a permittee voluntarily assign a leasehold interest 
under an approved encumbrance?
166.127   May the holder of a leasehold mortgage assign the 
leasehold interest after a sale or foreclosure of an approved 
encumbrance?

Non-trust Interest

166.128   May the Secretary grant or approve a permit for non-trust 
interests in Indian land?
166.129   Are non-trust interests in Indian land included in a 
permit?
166.130   How will a permittee know there are non-trust interests in 
Indian land?
166.131   From whom must a permittee permit a non-trust interest?
166.132   Is the non-trust interest shown in a permit of Indian 
land?
166.133   How much rent is due for the non-trust interest?
166.134   May a grazing rental payment made by a permittee to the 
BIA or to an Indian landowner include payment for any non-trust 
interest?
166.135   Will the BIA grant or approve a permit on a fractionated 
tract that is subject to a life estate held by the owner of a non-
trust interest?

Modifying a Permit

166.136   How can Indian land be removed from an existing permit?
166.137   How will the BIA provide notice if Indian land is removed 
from an existing permit?
166.138   Other than to remove land, how can a permit be amended, 
modified, assigned, transferred, or subpermitted?

Subpart C--Land and Operations Management

166.200   How is Indian agricultural land managed?
166.201   How is Indian land for grazing purposes described?
166.202   How is a range unit created?
166.203   Can more than one tract of Indian land be combined into 
one permit?
166.204   When is grazing capacity determined?
166.205   Will grazing capacity be increased if I graze adjacent 
trust or non-trust rangelands not covered by the permit?
166.206   What livestock can I graze on permitted Indian land?
166.207   What must a permittee do to protect livestock from 
exposure to disease?

Improvements

166.208   Can improvements be constructed on permitted Indian land?
166.209   What happens to improvements constructed on Indian lands 
when the permit has been terminated?

Management Plans and Environmental Compliance

166.210   Is an agricultural resource management plan required?
166.211   Is a conservation plan required?
166.212   Is environmental compliance required?

Subpart D--Tribal Policies and Laws Pertaining to Permits

166.300   What tribal policies will we apply to permitting on Indian 
agricultural lands?
166.301   May individual Indian landowners exempt their land from 
tribal policies for permitting on Indian agricultural lands?
166.302   Do tribal laws apply to permits?
166.303   What notifications are required that tribal laws apply to 
permits on Indian agricultural lands?
166.304   Who enforces tribal laws pertaining to Indian agricultural 
land?

Subpart E--Grazing Rental Rates

Rental Rate Determination and Adjustment

166.400   Who establishes grazing rental rates?
166.401   How does the Secretary establish grazing rental rates?
166.402   Why must the Secretary determine the fair annual rental of 
Indian land?
166.403   Will the Secretary ever grant or approve a permit at less 
than fair annual rental?
166.404   Whose grazing rental rate will be applicable for a permit 
on tribal land?
166.405   Whose grazing rental rate will be applicable for a permit 
on individually owned Indian land?
166.406   Whose grazing rental rate will be applicable for a permit 
on government land?
166.407   If a range unit consists of tribal and individually owned 
Indian lands, what is the grazing rental rate?
166.408   Can tribal members graze livestock that they do not own on 
tribal land at the grazing rental rate established for tribal 
members?
166.409   Is the grazing rental rate established by the BIA adjusted 
periodically?

Rental Payments

166.410   How is my grazing rental payment determined?
166.411   When do I pay grazing rental payments?
166.412   When is a grazing rental payment late?
166.413   Will a permittee be notified when a grazing rental payment 
is due?
166.414   If a permittee does not receive notice that a grazing 
rental payment is due must the scheduled payment still be made?
166.415   What will the BIA do to collect grazing rental payments 
that are not made in accordance with the terms of a permit?
166.416   Will I have to pay a penalty for late grazing rental 
payments?
166.417   What forms of grazing rental payments are acceptable?
166.418   To whom are grazing rental payments made?
166.419   May a permittee send a grazing rental payment directly to 
the Indian landowner?
166.420   Does the BIA accept partial payment for a grazing rental 
payment due?
166.421   May a permittee make a grazing rental payment in advance 
of the due date?
166.422   May an individual Indian landowner modify the terms of the 
permit on a fractionated tract for advance grazing rental payment?

Compensation to Indian Landowners

166.423   What does the BIA do with grazing rental payments received 
from permittees?
166.424   How do Indian landowners receive grazing rental payments 
that the BIA has received from permittees?
166.425   How will the rent be distributed if the permit covers more 
than one tract of land with different owners?

Subpart F--Administrative and Tribal Fees

166.500   Are there administrative fees for a permit?
166.501   How are administrative fees determined?
166.502   Are administrative fees refundable?
166.503   May the Secretary waive administrative fees?

[[Page 43936]]

166.504   Are there any other administrative or tribal fees, taxes, 
or assessments that must be paid?

Subpart G--Bonding and Insurance Requirements

166.600   Must a permittee provide a bond for a permit?
166.601   How is the amount of the bond determined?
166.602   What form of bonds will the BIA accept?
166.603   If cash is submitted as a bond, how is it administered?
166.604   Is interest paid on a cash performance bond?
166.605   Are cash performance bonds refunded?
166.606   Is insurance required for a permit?
166.607   What types of insurance may be required?

Subpart H--Permit Violations

166.700   What permit violations are addressed by this subpart?
166.701   How will the Secretary enforce compliance with permit 
provisions?
166.702   What happens if a violation of a permit occurs?
166.703   What will a written notice of a violation contain?
166.704   Can a determination of violation be contested?
166.705   What happens to a bond if a violation occurs?
166.706   What happens if a permit violation is not cured?
166.707   If a violation is not cured, what may an Indian landowner 
do?
166.708   Can the Secretary take emergency action without prior 
notice if the permitted premises are being damaged?
166.709   What rights does a permittee have if the Secretary takes 
emergency action under this subpart?

Subpart I--Trespass

166.800   What is trespass?
166.801   What is the BIA's trespass policy?
166.802   Who can enforce this subpart?

Notification

166.803   How are trespassers notified of a trespass determination?
166.804   What can I do if I receive a trespass notice?
166.805   Who else will the BIA notify?

Actions

166.806   What actions does the BIA take against trespassers?
166.807   When will we impound unauthorized livestock or other 
property?
166.808   How are trespassers notified if their unauthorized 
livestock or other property are to be impounded?
166.809   What happens after my unauthorized livestock or other 
property are impounded?
166.810   How do I redeem my impounded livestock or other property?
166.811   How will the sale of impounded livestock or other property 
be conducted?

Penalties, Damages, and Costs

166.812   What are the penalties, damages, and costs payable by 
trespassers on Indian agricultural land?
166.813   How will the BIA determine the value of forage or crops 
consumed or destroyed?
166.814   How will the BIA determine the value of the property 
illegally used or removed?
166.815   How will the BIA determine the amount of damages to Indian 
agricultural land?
166.816   How will the BIA determine the costs associated with 
enforcement of the trespass?
166.817   What happens if I do not pay the assessed penalties, 
damages and costs?
166.818   How are the proceeds from trespass distributed?
166.819   What happens if the BIA does not collect enough money to 
satisfy the penalty?

Subpart J--Appeals

166.900   Can decisions by the BIA be appealed?

Subpart K--Records

166.1000   Who owns records associated with this part?

Subpart L--Agriculture Education, Education Assistance, Recruitment, 
and Training

166.1100   How are the Indian agriculture education programs 
operated?
166.1101   How will the BIA select an agriculture intern?
166.1102   How can I become an agriculture educational employment 
student?
166.1103   How can I get an agriculture scholarship?
166.1104   What is agriculture education outreach?
166.1105   Who can get assistance for postgraduate studies?
166.1106   What can happen if we recruit you after graduation?
166.1107   Who can be an intern?
166.1108   Who can participate in continuing education and training?
166.1109   What are my obligations to the BIA after I participate in 
an agriculture education program?
166.1110   What happens if I do not fulfill my obligation to the 
BIA?

    Authority: 5 U.S.C. 301; R.S. 463, 25 U.S.C. 2; R.S. 465, 25 
U.S.C. 9; Sec. 6, 96 Stat. 986, 25 U.S.C. 466. Interpret or apply 
R.S. 2078, 25 U.S.C. 68; R.S. 2117, 25 U.S.C. 179; Sec. 3, 26 Stat. 
795, 25 U.S.C. 397; Sec 1, 28 Stat. 305, 25 U.S.C. 402; Sec. 4, 36 
Stat. 856, 25 U.S.C. 403; Sec. 1, 39 Stat. 128, 25 U.S.C. 394; Sec. 
1, 41 Stat. 1232, 25 U.S.C. 393; Secs. 16, 17, 48 Stat. 987, 988, 25 
U.S.C. 476, 477; Secs. 1, 2, 4, 5, 6, 69 Stat. 539, 540, 25 U.S.C. 
415, 415a, 415b, 415c, 415d, 25 U.S.C. 3701, 3702, 3703, 3711, 3712, 
3713, 3714, 3731, 3732, 3733, 3734, 3741, 3742, 3743, 3744, 3745, 
107 Stat. 2011.

Subpart A--Purpose, Policy, and Definitions


Sec. 166.1  What is the purpose of this part?

    (a) The purpose of this part is to describe the authorities, 
policies, and procedures the Secretary uses to approve, grant, and 
administer a permit for grazing on tribal land, individually owned 
Indian land, or government land.
    (b) If the Secretary's approval is not required for a permit, these 
regulations will not apply.
    (c) Nothing contained in the permit will operate to delay or 
prevent a termination of the Secretary's trust responsibility with 
respect to the Indian land by the issuance of a fee patent or otherwise 
during the term of the permit.


Sec. 166.2  What terms do I need to know?

    Adult means an individual Indian who is 18 years of age or older.
    Agency means the agency or field office or any other designated 
office in the Bureau of Indian Affairs (BIA) having jurisdiction over 
trust or restricted property or money.
    Agricultural product means:
    (1) Crops grown under cultivated conditions whether used for 
personal consumption, subsistence, or sold for commercial benefit;
    (2) Domestic livestock, including cattle, sheep, goats, horses, 
buffalo, swine, reindeer, fowl, or other animals specifically raised 
and used for food or fiber or as a beast of burden;
    (3) Forage, hay, fodder, food grains, crop residues and other items 
grown or harvested for the feeding and care of livestock, sold for 
commercial profit, or used for other purposes; and
    (4) Other marketable or traditionally used materials authorized for 
removal from Indian agricultural lands.
    Agricultural resource management plan means a ten year plan 
developed through the public review process specifying the tribal 
management goals and objectives developed for tribal agricultural and 
grazing resources. Plans developed and approved under AIARMA will 
govern the management and administration of Indian agricultural 
resources and Indian agricultural lands by the Secretary and Indian 
tribal governments.
    AIARMA means American Indian Agricultural Resources Management Act 
of December 3, 1993 (107 Stat. 2011, 25 U.S.C. 3701 et seq.), and 
amended on November 2, 1994 (108 Stat. 4572).
    Appeal bond means a type of bond that guarantees payment of an 
amount owed after the completion of an appeal process.
    Approving/approval means the action taken by the BIA to approve a 
permit.

[[Page 43937]]

    Assign means to transfer the contract rights in a permit for use of 
Indian land to an individual, company, corporation or partnership in 
exchange for compensation or other consideration.
    Assignee means the person to whom the contract rights for use of 
Indian land were assigned.
    Allocation means the apportionment of grazing privileges without 
competition to tribal members or tribal entities, including the tribal 
designation of permittees and the number and kind of livestock to be 
grazed.
    Animal Unit Month (AUM) means the amount of forage required to 
sustain one cow or one cow with one calf for one month.
    Bond means an agreement in writing in which a surety, or an obligor 
for a personal bond, guarantees performance or compliance with the 
permit terms.
    BIA means the Bureau of Indian Affairs within the Department of the 
Interior.
    Conservation plan means a statement of management objectives for 
grazing, including contract stipulations defining required uses, 
operations, and improvements. A conservation plan will be developed 
with the permittee and reviewed by us on an annual basis.
    Day means a calendar day unless otherwise specified.
    Encumbrance means mortgage, deed of trust or other instrument which 
secures a debt owed by a permittee to a lender or other holder of a 
leasehold mortgage on the permit interest.
    Fair annual rental means a reasonable annual return on fair market 
value, as this value may be determined by appraisal, advertisement, 
competitive bidding, negotiation, or any other appropriate method in 
accordance with Uniform Standards of Professional Appraisal Practices 
(USPAP).
    Farmland means Indian land, excluding Indian forest land, that is 
used for production of food, feed, fiber, forage, and seed, oil crops, 
or other agricultural products, and may be either dry land, irrigated 
land, or irrigated pasture.
    Fractionated tract means a parcel of Indian land with more than one 
owner.
    Government land means the surface estate of a tract of land, or any 
interest therein, which is acquired or reserved by the United States 
for the Bureau of Indian Affairs administrative purposes. Indian land 
is not government land.
    Grant/granting means the process of agreeing or consenting to a 
permit.
    Grazing capacity means the maximum sustainable number of livestock 
that may be grazed on a defined area and within a defined period, 
usually expressed in Animal Unit Month (AUM).
    Grazing rental payment means the total of the grazing rental rate 
multiplied by the number of AUMs or acres in the permit.
    Grazing rental rate means the amount you must pay for an AUM or 
acre based on the fair annual rental.
    I/You means the person to whom these regulations directly apply.
    Immediate family means the spouse, brothers, sisters, lineal 
ancestor, or lineal descendant of Indian blood.
    In loco parentis means the person whom the BIA recognizes as 
standing in place of a parent.
    Indian agricultural land means Indian land, including farmland and 
rangeland, excluding Indian forest land (except where authorized 
grazing occurs) that is used for production of agricultural products, 
and Indian lands occupied by industries that support the agricultural 
community, regardless of whether a formal inspection and land 
classification has been conducted.
    Indian land means: (1) The surface estate (non-mineral) of a tract 
of land, or any interest therein, which is held by the United States in 
trust for a tribe or an individual Indian; or (2) A tract of land, or 
any interest therein, which is owned by a tribe or an individual Indian 
subject to federal restrictions against alienation or encumbrance.
    Indian landowner means an Indian tribe or individual Indian who 
owns an interest in Indian land.
    Individually owned Indian land means Indian land or an interest 
therein owned by an individual Indian.
    Integrated resource management plan means the plan developed 
pursuant to the process used by tribal governments to assess available 
resources and to provide identified holistic management objectives that 
include quality of life, production goals, and landscape description of 
all designated resources that may include (but not limited to) water, 
fish, wildlife, forestry, agriculture, minerals, and recreation, as 
well as cultural, community, and municipal resources, and may include 
any previously adopted tribal codes and plans related to such 
resources.
    Irrevocable letter of credit means an arrangement, with specified 
conditions, including the incapability of being recalled or revoked, 
whereby a bank agrees to substitute its credit for a customer's.
    Majority interest means the total amount of tribal and/or Indian 
land ownership interest that is more than 50 percent of the entire 
ownership in the land.
    Irrevocable letter of credit means an arrangement, with specified 
conditions, including the incapability of being recalled or revoked, 
whereby a bank agrees to substitute its credit for a customer's.
    Majority interest means the total amount of tribal and/or Indian 
land ownership interest that is more than 50 percent of the entire 
ownership in the land.
    Minor means an individual who is not 18 years of age or older.
    Negotiable treasury securities means securities issued by the 
Treasury Department of the United States.
    Non compos mentis means an individual who has been found by a court 
of competent jurisdiction, based on established criteria that include a 
medical or psychological evaluation, to be of unsound mind or incapable 
of transacting or conducting business and managing his or her own 
affairs.
    Non-trust interest means an undivided interest in Indian land that 
is owned in fee simple, rather than in trust or restricted status.
    Permit means a contract which grants the right to possess, use, and 
enjoy Indian land for grazing purpose and duration in exchange for 
compensation or other consideration, but which can be revoked.
    Permittee means an individual, company, corporation, or 
partnership, who has entered into a permit for grazing on tribal, 
individually owned Indian, and/or government lands in exchange for 
compensation.
    Range unit means rangelands consolidated to form a unit of land for 
the management and administration of grazing under a permit. A range 
unit may consist of a combination of tribal, individually owned Indian, 
and/or government land.
    Rangeland means Indian land, excluding Indian forest land, on which 
native vegetation is predominantly grasses, grass-like plants, half-
shrubs or shrubs suitable for grazing or browsing use, and includes 
lands re-vegetated naturally or artificially to provide a forage cover 
that is managed as native vegetation.
    Restricted land means land for which a tribe or individual Indian 
holds fee simple title subject to limitations or restriction against 
alienation or encumbrance as set forth in the title or by operation of 
law or both.
    Secretary means the Secretary of the Interior or an authorized 
representative; it also means a tribe or tribal organization if that 
entity is administering specific programs, functions services or 
activities, previously administered by the

[[Page 43938]]

Secretary of the Interior, but now authorized under a Self-
Determination Act contract (pursuant to 25 U.S.C. 450f) or a Self-
Governance compact (pursuant to 25 U.S.C. 558cc). Such tribal authority 
does not include inherently federal functions.
    Subpermit means a permit granted by a permittee of all or part of 
the permitted property for a period up to the expiration date of the 
initial permit.
    Surety means one who guarantees the performance, default or debt of 
another.
    Sustained yield means the yield of agricultural products that a 
unit of land can produce continuously at a given level of use.
    Trespass means any unauthorized occupancy, use of, or action on 
Indian agricultural lands.
    Tribal land means land for which the United States holds fee title 
in trust for the benefit of a tribe, and includes assignments of tribal 
land.
    Tribal law means the body of non-federal law that governs tribal 
lands and activities, and includes ordinances or other enactments by a 
tribe, tribal constitutions, tribal court rulings and tribal common 
law.
    Trust land means land, or an interest therein, for which the United 
States holds fee title in trust for the benefit of a tribe or an 
individual Indian.
    Undivided interest means that the interest of co-owners is in the 
entire property and that such interest is indistinguishable. The 
interest has not been divided out from the whole parcel. (Example: If 
you own \1/4\ interest in 160 acres, you do not own an identifiable 40 
acre tract. You own \1/4\ of the whole 160 acres because your \1/4\ 
interest has not been divided out from the whole 160 acres.)
    Us/We/Our means the Secretary as defined in this section.
    Uniform Standards of Professional Appraisal Practices (USPAP) means 
the standards promulgated by the Appraisal Institute which establish 
requirements and procedures for professional real property appraisal 
practice.
    Written notice means actual written letter mailed by way of United 
States mail, certified return receipt requested, postage prepaid, or 
hand delivered letter.

Subpart B--Permit Requirements

General Requirements


Sec. 166.100  Must Indian owners of Indian land obtain a permit before 
using land for grazing purposes?

    (a) Indian landowners who own 100 percent (%) of a tract of land 
are not required to obtain a permit.
    (b) If an Indian landowner does not own 100 percent (%) of a tract 
of land and wants to use the land for grazing purposes, a permit must 
be obtained from the co-owners of the tract of land.


Sec. 166.101  Must parents or guardians of Indian minors who own Indian 
land obtain a permit before using land for grazing purposes?

    Parents, guardians, or other persons standing in loco parentis need 
not obtain a permit for Indian lands owned by their minor Indian 
children if:
    (a) Those minor children own 100 percent (%) of the land; and
    (b) The minor children directly benefit from the use. We may 
require the user to provide evidence of a direct benefit to the minor 
children. When one of the minor children becomes an adult, a permit 
must be obtained from the former minor child for the use to continue.


Sec. 166.102  Who can grant a permit?

    (a) Tribes grant permits of tribal land, including any tribally-
owned undivided interest(s) in a fractionated tract. A permit granted 
by the tribe must be approved by us, unless the permit is authorized by 
a charter approved by us under 25 U.S.C. 477, or unless our approval is 
not required under other applicable federal law. In order to permit 
tribal land in which the beneficial interest has been assigned to 
another party, the assignee and the tribe must both grant the permit, 
subject to our approval.
    (b) Individual Indian landowners may grant a permit of their own 
land, including their undivided interest in a fractionated tract, 
subject to our approval. Except as otherwise provided in this part, 
these landowners may include the owner of a life estate holding 100 
percent (%) interest in the permit tract.
    (c) We may grant a permit on behalf of:
    (1) An individual Indian landowner as provided in Sec. 166.103; and
    (2) Tribes that give us written authority to grant permits on their 
behalf.
    (d) We will grant permits on Government lands.


Sec. 166.103  Who may represent an individual Indian landowner in 
granting a permit?

    The following individuals or entities may represent an individual 
Indian landowner in granting a permit:
    (a) An adult acting on behalf of:
    (1) His or her minor children; or
    (2) Other minor children to whom the adult stands in loco parentis 
who do not have a guardian or other legal representative;
    (b) A guardian, conservator, or other fiduciary appointed by a 
court of competent jurisdiction to act on behalf of an individual 
Indian landowner;
    (c) An adult or legal entity who has been given a written power of 
attorney that:
    (1) Meets all of the formal requirements of any applicable tribal 
or state law;
    (2) Identifies the attorney-in-fact and the land to be permitted; 
and
    (3) Describes the scope of the power granted and any limits 
thereon.
    (d) The BIA acting on behalf of:
    (1) An individual who is non compos mentis;
    (2) An orphaned minor;
    (3) An individual Indian landowner who has granted us written 
authority to permit his or her land;
    (4) The undetermined heirs and devisees of a deceased Indian 
landowner;
    (5) An Indian landowner whose whereabouts are unknown to us after a 
reasonable attempt is made to locate the owner;
    (6) The Indian landowners of a fractionated tract who:
    (i) Have received actual notice of our intent to grant a permit on 
their behalf; and
    (ii) Are unable to agree upon a permit during the three month 
negotiation period following the notice;
    (7) The owners of a minority interest in the Indian ownership of a 
fractionated tract of Indian agricultural land when the majority 
interest has consented, as long as the minority interest owners receive 
fair annual rental;
    (8) The owners of ``highly fractionated undivided heirship lands,'' 
for agricultural permits, under 166.300; or
    (9) The individual Indian owners of fractionated Indian land, when 
necessary to protect the interests of the individual Indian landowners.


Sec. 166.104  May an emancipated minor grant a permit?

    No. An emancipated minor, a person who is under 18 years of age and 
declared by a court of competent jurisdiction to be an adult for 
certain purposes, may not grant a permit.


Sec. 166.105  What requirements apply to a permit on a fractionated 
tract?

    (a) The owners of a majority interest in the Indian ownership of a 
fractionated tract may grant a permit without giving prior notice to 
the minority owners as long as the minority interest owners receive 
fair annual rental. We must approve the permit.
    (b) We may grant a permit on behalf of all owners of a fractionated 
tract as

[[Page 43939]]

long as the owners receive fair annual rental. Before granting such a 
permit, we may offer a preference right to any Indian owner who:
    (1) Possesses the entire tract;
    (2) Submits a written offer to permit the land, subject to any 
required or negotiated terms and conditions, prior to our granting a 
permit to another party; and
    (3) Provides any supporting documents needed to demonstrate the 
ability to perform all of the permittee's obligations under the 
proposed permit.


Sec. 166.106  What provisions must be contained in a permit?

    A permit, at a minimum, must include:
    (a) Authorized use(s);
    (b) Prohibited use(s);
    (c) Prohibition against creating a nuisance, any illegal activity, 
and negligent use or waste or resources;
    (d) Numbers and types of livestock allowed;
    (e) Season(s) of use;
    (f) Grazing rental rate;
    (g) Administrative fees;
    (h) Tribal fees, if applicable;
    (i) Payment methodology;
    (j) Location of range unit;
    (k) Animal identification requirements;
    (l) A description (preferably a legal description) of the permitted 
area;
    (m) Term of permit;
    (n) Conditions for making improvements, if any; and
    (o) A right of entry by the Secretary for purposes of inspection or 
enforcement purposes.


Sec. 166.107  How long is a permit term?

    (a) The duration must be reasonable given the purpose of the permit 
and the level of investment required by the permittee to place the 
property into productive use.
    (b) We will not grant or approve a permit more than 12 months 
before its beginning date.
    (c) On behalf of the undetermined heirs of an individual Indian 
decedent owning 100 percent (%) interest in the land, we will grant or 
approve permits for a maximum term of two years.
    (d) Permits granted for agricultural purposes will not usually 
exceed ten years. A term longer than ten years, but not to exceed 25 
years unless authorized by other federal law, may be authorized when a 
longer term is determined by us to be in the best interest of the 
Indian landowners and when such permit requires substantial investment 
in the development of the lands by the permittee.
    (e) A tribe may determine the duration of permits composed entirely 
of its tribal land or in combination with government land, subject to 
the same limitations provided in paragraph (d) of this section.
    (f) A permit may be extended only by renewal or extension as 
defined in the permit. Permits may provide multiple options for 
termination.
    (g) A permit will specify the beginning and ending dates of the 
term allowed, as well as any option to renew, extend, or terminate.


Sec. 166.108  Are permits recorded?

    All permits on Indian land in excess of one year must be recorded.


Sec. 166.109  Where are permits recorded?

    Permits are recorded in the appropriate BIA Land Titles and Records 
Office.


Sec. 166.110  Who is responsible for recording permits?

    We are responsible for ensuring that all permits we approve or 
grant are recorded in the Land Titles and Records Office. Tribes must 
record those permits not requiring our approval.


Sec. 166.111  When may a permittee take possession of permitted Indian 
land?

    The permittee may take possession of permitted Indian land on the 
date specified in the permit as the beginning date of the term, but not 
before we approve the permit.


Sec. 166.112  Must I comply with any standards of conduct if I am 
granted a permit?

    Yes. Permittees are expected to:
    (a) Conduct grazing operations in accordance with the principles of 
sustained yield management, agricultural resource management planning, 
sound conservation practices, and other community goals as expressed in 
tribal laws, agricultural resource management plans, and similar 
sources.
    (b) Comply with all applicable laws, ordinances, rules, 
regulations, and other legal requirements. You must also pay all 
applicable penalties if you do not comply.
    (c) Fulfill all financial obligations of your permit owed to the 
Indian landowners and the United States.
    (d) Conduct only those activities authorized by the permit.


Sec. 166.113  Will the BIA notify the permittee of any change in land 
title status?

    Yes. We will notify the permittee if a fee patent is issued or if 
restrictions are removed, but the permit continues in effect for its 
term. After we notify the permittee our obligation under 166.303 and 
this section ceases.


Sec. 166.114  When is a decision by the BIA regarding a permit 
effective?

    A decision by the BIA regarding a permit is effective 30 days after 
the issuance of the decision document and exhaustion of all appeal 
rights.

Obtaining a Permit


Sec. 166.115  How can I find Indian land available for grazing?

    You may contact a local BIA office or tribal office to determine 
what Indian land may be available for grazing permits.


Sec. 166.116  Who is responsible for permitting Indian land?

    The Indian landowner is primarily responsible for permitting Indian 
land, with the assistance and approval of the Secretary except where 
otherwise provided by law. You may contact the local BIA or tribal 
office for assistance in obtaining a permit for grazing purposes on 
Indian land.


Sec. 166.117  How do I acquire a permit on Indian land?

    (a) A tribe may permit tribal land through tribal allocation, 
negotiation, or advertisement. We must approve all permits of Indian 
land in order for the permit to be valid.
    (b) We will grant permits through negotiation or advertisement for 
range units containing, in whole or part, individually owned Indian 
land and range units that consist of, or in combination with 
individually owned Indian land, tribal or government land, under 
Sec. 166.102. We will consult with tribes prior to granting permits for 
range units that include tribal land.


Sec. 166.118  How do I acquire a permit through tribal allocation?

    (a) A tribe may allocate grazing privileges on range units 
containing trust or restricted land which is entirely tribally owned or 
which contains only tribal and government land under the control of the 
tribe.
    (b) A tribe may allocate grazing privileges to its members and to 
tribally authorized Indian entities without competitive bidding on 
tribal and tribally controlled government land.
    (c) We may implement the tribe's allocation procedure by 
authorizing the grazing privileges on individually owned Indian land.
    (d) A tribe may prescribe the eligibility requirements for 
allocations 60 days before granting a new permit or before an existing 
permit expires. The eligibility requirements are subject to our written 
agreement.
    (e) 120 days before the expiration of existing permits, we will 
notify the tribe

[[Page 43940]]

of the 60 day period during which the tribe may prescribe eligibility 
requirements.
    (f) We will prescribe the eligibility requirements after the 
expiration of the 60 day period in the event satisfactory action is not 
taken by the tribe.
    (g) Other than for tribal members, grazing rental rates for grazing 
privileges allocated from an existing permit, in whole or in part, must 
equal or exceed the rates paid by the preceding permittee(s) unless 
market conditions dictate a lower price. Tribal members will pay 
grazing rental rates established by the tribe.


Sec. 166.119  How do I acquire a permit through negotiation?

    (a) Permits may be negotiated and granted by the Indian landowners 
with the permittee of their choice. The Secretary also may negotiate 
and grant permits on behalf of Indian landowners pursuant to 
Sec. 166.102 of this part.
    (b) Upon the conclusion of negotiations with the Indian landowners 
or their representatives, and the satisfaction of any applicable 
conditions, you may submit an executed permit and any required 
supporting documents to us for appropriate action.
    (c) In negotiating a permit, the Indian owners may choose to 
contribute their land in exchange for their receipt of a share of the 
revenues or profits generated by the permit. Under such an arrangement, 
the permit may be granted to a joint venture or other legal entity 
owned, in part, by the Indian owners of the land. Unless otherwise 
required by this title, we will not enter into or approve any 
agreements related to the formation of such a joint venture or other 
legal entity.
    (d) Receipt of permit payments based upon income received from the 
land will not, of itself, make the Indian landowner a partner, joint 
venturer, or associate of the permittee(s).
    (e) We will assist prospective permittees in contacting the Indian 
landowners or their representatives, for the purpose of negotiating a 
permit.


Sec. 166.120  What are the basic steps for acquiring a permit through 
negotiation?

    The basic steps for acquiring a permit by negotiation are as 
follows:
    (a) We receive a request to permit from an Indian landowner or 
potential permittee;
    (b) We prepare the permit documents and provide them to the Indian 
landowner or potential permittee, or assist the Indian landowner to 
prepare the documents;
    (c) The Indian landowner, or the Secretary on the Indian 
landowner's behalf, grants (agrees to) a permit;
    (d) A potential permittee completes the requirements for securing a 
permit, e.g., bond, payment of administrative fee, etc.;
    (e) We review the permit for proper completion and compliance with 
all applicable laws and regulations;
    (f) We issue a decision on the permit based upon our review;
    (g) We send the approved permit to the permittee and, upon request, 
to the Indian landowner; and
    (h) We record and maintain the approved permit.


Sec. 166.121  Can I negotiate a contract with an Indian landowner to 
permit land at a future date?

    In negotiating a permit with Indian landowners or their 
representatives, a prospective permittee may enter into a contract to 
permit the land at a future date, with the contract specifying the 
essential permit terms, as described in Sec. 166.107 of this part, as 
well as any conditions that must be satisfied before the permit may be 
granted or approved.
    (a) The conditions to be satisfied may require that the permittee 
prepare environmental documents that comply with the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) or other 
preliminary federal or tribal land use requirements; the conditions 
also may require that certain permits or financing commitments be 
obtained before the permit is granted or approved.
    (b) We may participate in the contract negotiations (in order to 
ensure that all of the necessary terms and conditions are identified), 
but we will not be a party to such a contract.
    (c) We will not approve such a contract unless approval is required 
under 25 U.S.C. 81 and part 84 of this chapter.


Sec. 166.122  How do I acquire an advertised permit through competitive 
bidding?

    Advertised permits on Indian lands are awarded to the successful 
bidder after a public bidding process. We will grant or approve the 
permit on behalf of the Indian landowners. The basic steps for 
acquiring an advertised permit are as follows:
    (a) We prepare and distribute an advertisement of lands available 
for permit that identifies the terms and conditions of the permit sale, 
including, for agricultural permits, any preference rights;
    (b) We solicit sealed bids and conduct the public permit sale;
    (c) We determine and accept the highest bid(s), which may require 
further competitive bidding after the bid opening;
    (d) We prepare permits for successful bidders;
    (e) The successful bidder completes and submits the permit and 
satisfies requirements, e.g., bond, payment of administrative fee, 
etc.;
    (f) We review the permit for proper completion and compliance with 
all applicable laws and regulations;
    (g) We grant the permit on behalf of Indian landowners where we are 
authorized to do so by law;
    (h) We approve the permit;
    (i) We distribute the approved permit to successful bidder/
permittee and, upon request, to the Indian landowner; and
    (j) We record and maintain the approved permit.


Sec. 166.123  Are there standard permit forms?

    Yes. Standard permit forms, including bid forms, permit forms, and 
permit modification forms are available at our agency offices.

Permit (Leasehold) Mortgage


Sec. 166.124  Can I use a permit as collateral for a loan?

    We may approve a permit containing a provision that authorizes the 
permittee to encumber the permit interest, known as a leasehold 
mortgage, for the development and improvement of the permitted Indian 
land. We must approve the leasehold mortgage that encumbers the 
leasehold mortgage before it can be effective. We will record the 
approved leasehold mortgage instrument.


Sec. 166.125  What factors does the BIA consider when reviewing a 
leasehold mortgage?

    (a) We will approve the leasehold mortgage if:
    (1) All consents required in the permit have been obtained from the 
Indian landowners and any surety or guarantor;
    (2) The mortgage covers only the interest in the permitted 
premises, and no unrelated collateral belonging to the permittee;
    (3) The financing being obtained will be used only in connection 
with the development or use of the permitted premises, and the mortgage 
does not secure any unrelated obligations owed by the permittee to the 
mortgagee; and
    (4) We find no compelling reason to withhold our approval, in order 
to protect the best interests of the Indian landowner.
    (b) In making the finding required by paragraph (a)(4) of this 
section, we will consider whether:
    (1) The ability to perform the permit obligations would be 
adversely affected by the cumulative mortgage obligations;

[[Page 43941]]

    (2) Any negotiated permit provisions as to the allocation or 
control of insurance or condemnation proceeds would be modified;
    (3) The remedies available to us or the Indian landowners would be 
limited (beyond the additional notice and cure rights to be afforded to 
the mortgagee), if the permittee defaults on the permit;
    (4) Any rights of the Indian landowners would be subordinated or 
adversely affected in the event of a foreclosure, assignment in lieu of 
foreclosure, or issuance of a ``new permit'' to the mortgagee.
    (c) We will notify the Indian landowners of our approval of the 
leasehold mortgage.


Sec. 166.126  May a permittee voluntarily assign a leasehold interest 
under an approved encumbrance?

    With our approval, under an approved encumbrance, a permittee 
voluntarily may assign the leasehold interest to someone other than the 
holder of a leasehold mortgage if the assignee agrees in writing to be 
bound by the terms of the permit. A permit may provide the Indian 
landowners with a right of first refusal on the conveyance of the 
leasehold interest.


Sec. 166.127  May the holder of a leasehold mortgage assign the 
leasehold interest after a sale or foreclosure of an approved 
encumbrance?

    Yes. The holder of a leasehold mortgage may assign a leasehold 
interest obtained by a sale or foreclosure of an approved encumbrance 
without our approval if the assignee agrees in writing to be bound by 
the terms of the permit. A permit may provide the Indian landowners 
with a right of first refusal on the conveyance of the permit interest 
(leasehold).

Non-Trust Interest


Sec. 166.128  May the Secretary grant or approve a permit for non-trust 
interests in Indian land?

    No. The Secretary has no statutory authority to grant or approve a 
permit for non-trust interests in Indian land.


Sec. 166.129  Are non-trust interests in Indian land included in a 
permit?

    No. The undivided non-trust interests are not included in a permit 
granted or approved by the BIA.


Sec. 166.130  How will a permittee know there are non-trust interests 
in Indian land?

    When we permit Indian land, we will advise the permittee whether 
the title to the Indian land contains non-trust interests. Upon 
request, and subject to applicable law, we will provide the permittee 
with the information we have in our records identifying the owner(s) of 
the non-trust interest.


Sec. 166.131  From whom must a permittee permit a non-trust interest?

    A permittee must obtain a permit on any non-trust interest(s) 
directly from owner(s) of the non-trust interest(s).


Sec. 166.132  Is the non-trust interest shown in a permit of Indian 
land?

    No. The permit will describe only the Indian owned interests. For 
example, if the Indian owned interests constitutes \3/4\ of the Indian 
land, the land will be described as: An undivided \3/4\ interest in and 
to the W/2 SW/4, Section 1, Township 10 North, Range 1 East, Principal 
Meridian, Billings, Montana. This will notify the permittee that the 
full interest in the tract has not been permitted. The remaining 
undivided \1/4\ interest is the non-trust interest and the permittee 
must contact the non-trust interest owners directly to secure a permit 
of their interest.


Sec. 166.133  How much rent is due for the non-trust interest?

    It is the responsibility of the permittee to contact the non-trust 
owners to negotiate the amount of rental to be paid and to make rental 
payments to the owners of the non-trust interest.


Sec. 166.134  May a grazing rental payment made by a permittee to the 
BIA or to an Indian landowner include payment for any non-trust 
interest?

    No. Payment for a non-trust interest must be made to the owner of 
that interest.


Sec. 166.135  Will the BIA grant or approve a permit on a fractionated 
tract that is subject to a life estate held by the owner of a non-trust 
interest?

    We will grant or approve a permit on a fractionated tract that is 
subject to a life estate held by the owner of a non-trust interest only 
when it is necessary to preserve the value of the trust interest in the 
land.

Modifying a Permit


Sec. 166.136  How can Indian land be removed from an existing permit?

    (a) We will remove Indian land from your permit if:
    (1) The trust status of the Indian land terminates;
    (2) The Indian landowners request removal, and we determine that 
the removal is beneficial to such interests;
    (3) A tribe allocates grazing privileges for Indian land covered by 
your permit under Sec. 166.117;
    (4) The permittee requests removal and we determine that the 
removal is warranted; or
    (5) We determine that removal is appropriate.
    (b) We will revise the grazing capacity to reflect the removal of 
Indian land and show it on the permit.


Sec. 166.137  How will the BIA provide notice if Indian land is removed 
from an existing permit?

    If the reason for removal is:
    (a) Termination of trust status. We will notify the parties to the 
permit in writing within 30 days. The removal will be effective on the 
next anniversary date of the permit.
    (b) A request from Indian landowners or the permittee, or our 
determination. We will notify the parties to the permit in writing 
within 30 days of such request. The removal will be effective 
immediately if all sureties, Indian landowners, and permittee agree. 
Otherwise, the removal will be effective upon the next anniversary date 
of the permit. If our written notice is within 180 days of the 
anniversary date of the permit, the removal of Indian land will be 
effective 180 days after the written notice.
    (c) Tribal allocation under Sec. 166.117. We will notify the 
parties to the permit in writing within 180 days of such action. The 
removal of tribal land will be effective on the next anniversary date 
of the permit. If our written notice is within 180 days of the 
anniversary date of the permit, the removal of Indian land will be 
effective 180 days after the written notice.
    (d) Request by the permittee. We will notify the Indian landowner 
in writing within 30 days of such request.


Sec. 166.138  Other than to remove land, how can a permit be amended, 
modified, assigned, transferred, or subpermitted?

    (a) We must approve an amendment, modification, assignment, 
transfer, or subpermit with the written consent of all parties to the 
permit and the sureties.
    (b) Indian landowners may designate in writing one or more of their 
co-owners or representatives to negotiate and/or agree to amendments on 
their behalf.
    (1) The designated landowner or representative may:
    (i) Negotiate or agree to amendments; and
    (ii) Consent to or approve other items as necessary.
    (2) The designated landowner or representative may not:
    (i) Negotiate or agree to amendments that reduce the grazing rental 
payments payable to the other Indian landowners; or
    (ii) Terminate the permit or modify the term of the permit.

[[Page 43942]]

    (c) We may approve a permit for tribal land to individual members 
of a tribe which contains a provision permitting the assignment of the 
permit by the permittee or the lender without our approval when:
    (1) A lending institution or an agency of the United States:
    (i) Accepts the interest in the permit (leasehold) as security for 
the loan; and
    (ii) Obtains the interest in the permit (leasehold) through 
foreclosure or otherwise.
    (d) We may approve a permit containing a provision which authorizes 
the permittee to subpermit the Indian land in whole or in part without 
further approval. Subpermits made under this provision do not relieve 
the original permittee (permittee of record) from any liability under 
the permit, nor will it diminish our authority.
    (e) We will revise the grazing capacity and show it on your permit.

Subpart C--Land and Operations Management


Sec. 166.200  How is Indian agricultural land managed?

    Tribes, individual Indian landowners, and the BIA will manage 
Indian agricultural land either directly or through contracts, 
compacts, cooperative agreements, or grants under the Indian Self-
Determination and Education Assistance Act (Pub. L. 93-638, as 
amended).


Sec. 166.201  How is Indian land for grazing purposes described?

    Indian land for grazing purposes should be described by aliquot 
parts, metes and bounds, or other acceptable description.


Sec. 166.202  How is a range unit created?

    We create a range unit after we consult with the Indian landowners 
of rangeland, by designating units of compatible size, availability, 
and location. Range units can be modified under Secs. 166.136 through 
166.138. A permit may cover more than one range unit.


Sec. 166.203  Can more than one tract of Indian land be combined into 
one permit?

    Yes. A permit may include more than one tract of Indian land. 
Permits may include tribal land, individually owned Indian land, or 
government land, or any combination thereof.


Sec. 166.204  When is grazing capacity determined?

    Before we grant, modify, or approve a permit, in consultation with 
the Indian landowners, we will establish the grazing capacity for each 
range unit and the season(s) of use on Indian lands. In consultation 
with the Indian landowners, we will review the grazing capacity on a 
continuing basis using the best evaluation method(s) relevant to the 
ecological region.


Sec. 166.205  Will grazing capacity be increased if I graze adjacent 
trust or non-trust rangelands not covered by the permit?

    No. You will not receive an increase in grazing capacity if you 
graze trust or non-trust rangeland in common with the permitted land. 
Grazing capacity will be established only for tracts of land covered by 
your permit


Sec. 166.206  What livestock can I graze on permitted Indian land?

    (a) Tribes may determine the class of livestock that may be grazed 
on range units composed entirely of tribal land or which include 
government land, subject to the grazing capacity prescribed by us under 
Sec. 166.204.
    (b) For permits on range units containing, in whole or part, 
individually owned Indian land, we will adopt the tribal determination 
in paragraph (a) of this section if it is consistent with the grazing 
capacity determination under Sec. 166.204.


Sec. 166.207  What must a permittee do to protect livestock from 
exposure to disease?

    Permittees must:
    (a) Vaccinate livestock in accordance with applicable law.
    (b) Treat all livestock exposed to or infected with contagious or 
infectious diseases in accordance with applicable law.
    (c) Restrict the movement of exposed or infected livestock in 
accordance with applicable law.

Improvements


Sec. 166.208  Can improvements be constructed on permitted Indian land?

    Improvements may be constructed on permitted Indian land if the 
permit contains a provision allowing improvements.


Sec. 166.209  What happens to improvements constructed on Indian lands 
when the permit has been terminated?

    (a) If improvements are to be constructed on Indian land, the 
permit must contain a provision that improvements will either:
    (1) Remain on the land upon termination of the permit, in a 
condition that is in compliance with applicable building, health and 
other codes, to become the property of the Indian landowner; or
    (2) Be removed and the land restored within a time period specified 
in the permit. The land must be restored as close as possible to the 
original condition prior to construction of such improvements. At the 
request of the permittee we may, at our discretion, grant an extension 
of time for the removal of improvements and restoration of the land for 
circumstances beyond the control of the permittee.
    (b) If the permittee fails to remove improvements within the time 
allowed in the permit, the permittee may forfeit the right to remove 
the improvements and the improvements may become the property of the 
Indian landowner.

Management Plans and Environmental Compliance


Sec. 166.210  Is an agricultural resource management plan required?

    An agricultural resource management plan must be developed either 
by the tribe or by us in consultation with the affected tribe. This 
plan should be consistent with the tribe's integrated resource 
management plan. The agricultural resource management plan must:
    (a) Determine available agricultural resources;
    (b) Identify specific tribal agricultural resource goals and 
objectives;
    (c) Establish management objectives for the resources;
    (d) Define critical values of the tribe and its members and provide 
identified holistic management objectives;
    (e) Identify actions to be taken to reach established objectives;
    (f) Be developed through public meetings;
    (g) Use the public meeting records, existing survey documents, 
reports, and other research from federal agencies, tribal community 
colleges, and land grant universities; and
    (h) Be completed within three(3) years of the initiation of 
activity to establish the plan.


Sec. 166.211  Is a conservation plan required?

    A conservation plan must be developed by the permittee for each 
permit and approved by us prior to the issuance of the permit. The 
conservation plan must be consistent with the tribe's agricultural 
resource management plan and integrated resource management plan, and 
must address the permittee's management objectives regarding animal 
husbandry and resource conservation. The conservation plan must cover 
the entire permit period.


Sec. 166.212  Is environmental compliance required?

    Actions taken by the Secretary under the regulations in this part 
must comply with the National Environmental Policy Act of 1969 (42 
U.S.C. 4321 et seq.),

[[Page 43943]]

applicable regulations of the Council on Environmental Quality (40 CFR 
1500.1 et seq.), and applicable tribal laws and regulations.

Subpart D--Tribal Policies and Laws Pertaining to Permits


Sec. 166.300  What tribal policies will we apply to permitting on 
Indian agricultural lands?

    (a) When specifically authorized by an appropriate tribal 
resolution establishing a general policy for permitting of Indian 
agricultural lands, the Secretary will:
    (1) Provide a preference to Indian permittees in issuing or 
renewing a permit, so long as the Indian landowner receives fair annual 
rental;
    (2) Waive or modify the requirement that a permittee post a surety 
or performance bond;
    (3) Provide for posting of other collateral or security in lieu of 
a bond; and
    (4) Approve permits on tribal lands at rates determined by the 
tribal governing body.
    (b) When specifically authorized by an appropriate tribal 
resolution establishing a general policy for leasing of Indian 
agricultural lands, and subject to paragraph (c) of this section, the 
Secretary may:
    (1) Waive or modify any general notice requirement of federal law; 
and
    (2) Grant or approve a permit on ``highly fractionated undivided 
heirship lands'' as defined by tribal law.
    (c) The Secretary may take the action specified in paragraph (b) of 
this section only if:
    (1) The tribe defines by resolution what constitutes ``highly 
fractionated undivided heirship lands';
    (2) The tribe adopts an alternative plan for notifying Indian 
landowners; and
    (3) The Secretary's action is necessary to prevent waste, reduce 
idle land acreage and ensure income.


Sec. 166.301  May individual Indian landowners exempt their land from 
tribal policies for permitting on Indian agricultural lands?

    (a) The individual Indian landowner(s) of a tract of land or an 
undivided interest may exempt their land from our application of a 
tribal policy referred to under Sec. 166.300 if:
    (1) The Indian landowner(s) have at least 50% interest in such 
tract; and
    (2) The Indian landowner(s) submit a written objection to us.
    (b) The same procedure applies to withdrawing a request for 
exemption.
    (c) Upon verification of the written objection we will notify the 
tribe of the Indian landowners' exemption from the specific tribal 
policy. If the individual Indian landowner withdraws a request for 
exemption, we will notify the tribe of the withdrawal.


Sec. 166.302  Do tribal laws apply to permits?

    Tribal laws will apply to permits of Indian land under the 
jurisdiction of the tribe enacting such laws, unless those tribal laws 
are inconsistent with applicable federal law.


Sec. 166.303  What notifications are required that tribal laws apply to 
permits on Indian agricultural lands?

    (a) Tribes must notify us of the content and effective dates of new 
tribal laws.
    (b) We will then notify any persons or entities undertaking 
activities on Indian lands of the superseding or modifying effect of 
the tribal law. We will provide:
    (1) Individual written notice to each permittee; or
    (2) Public notice. This notice will be posted at the tribal 
community building, U.S. Post Office, and published in the local 
newspaper nearest to the Indian lands where activities are occurring.


Sec. 166.304  Who enforces tribal laws pertaining to Indian 
agricultural land?

    (a) The tribe is responsible for enforcing tribal laws and 
ordinances pertaining to Indian agricultural lands.
    (b) The Secretary will:
    (1) Provide assistance in the enforcement of tribal laws; and
    (2) Require appropriate federal officials to appear in tribal 
forums when requested by a tribe.

Subpart E--Grazing Rental Rates

Rental Rate Determination and Adjustment


Sec. 166.400  Who establishes grazing rental rates?

    (a) For tribal lands, a tribe may establish a grazing rental rate 
that is less or more than the grazing rental rate established by us. We 
will assist a tribe to establish a grazing rental rate by providing the 
tribe with available information concerning the value of grazing on 
tribal lands.
    (b) We will establish the grazing rental rate by determining the 
fair annual rental for:
    (1) Individually owned Indian lands; and
    (2) Tribes that have not established a rate under paragraph (a) of 
this section.
    (c) Indian landowners may give us written authority to grant 
grazing privileges on their individually owned Indian land at a grazing 
rental rate that is:
    (1) Above the grazing rental rate set by us; or
    (2) Below the grazing rental rate set by us, subject to our 
approval, when the permittee is a member of the Indian landowner's 
immediate family as defined in this part.


Sec. 166.401  How does the Secretary establish grazing rental rates?

    The Secretary establishes grazing rental rates by determining the 
fair annual rental through appraisal, advertisement, competitive 
bidding, negotiation, or any other appropriate method, in accordance 
with the Uniform Standards of Professional Appraisal Practices (USPAP).


Sec. 166.402  Why must the Secretary determine the fair annual rental 
of Indian land?

    (a) The Secretary must determine the fair annual rental of Indian 
land to:
    (1) Assist the Indian landowner in negotiating a permit with 
potential permittees; and
    (2) Enable us to determine whether a permit is in the best 
interests of the Indian landowner.


Sec. 166.403  Will the Secretary ever grant or approve a permit at less 
than fair annual rental?

    (a) We will grant a permit for grazing on individually owned Indian 
land at less than fair annual rental if, after advertising the permit, 
we determine that such action would be in the best interests of the 
individual Indian landowners.
    (b) We may approve a permit for grazing on individually owned 
Indian land at less than fair annual rental if:
    (1) The permit is for the Indian landowner's immediate family or 
co-owner; or
    (2) We determine it is in the best interest of the Indian 
landowners.
    (c) We may approve a permit for grazing on tribal land at less than 
fair annual rental if:
    (1) The permittee is a tribal member or tribal entity; or
    (2) We determine that it is in the best interest of the tribe.


Sec. 166.404  Whose grazing rental rate will be applicable for a permit 
on tribal land?

    The following grazing rental rate schedule will apply for tribal 
land:

[[Page 43944]]



------------------------------------------------------------------------
                                                     Then you will pay *
      If you are * * *            And if * * *               * *
------------------------------------------------------------------------
(a) Grazing livestock on      The tribe             The rate set by the
 tribal land.                  established the       tribe.
                               grazing rental rate.
(b) Grazing livestock on      No tribal grazing     The rate set by the
 tribal land.                  rental rate has       BIA.
                               been established.
(c) The successful bidder       ..................  Your rental rate
 for use of any of these                             bid, but not less
 specific tracts of Indian                           than the minimum
 land.                                               bid rate
                                                     advertised.
------------------------------------------------------------------------

    Sec. 166.405 Whose grazing rental rate will be applicable for a 
permit on individually owned Indian land?

      The following grazing rental rate schedule will apply for 
individually owned Indian land:

------------------------------------------------------------------------
            If you are * * *                 Then you will pay * * *
------------------------------------------------------------------------
(a) Grazing livestock on Individually    The rate set by the BIA.
 owned Indian land.
(b) The successful bidder for use of     Your rental rate bid, but not
 any of these specific tracts of Indian   less than the minimum bid rate
 land.                                    advertised.
------------------------------------------------------------------------

    Sec. 166.406 Whose grazing rental rate will be applicable for a 
permit on government land?

      The following grazing rental rate schedule will apply for 
government land:

------------------------------------------------------------------------
                                                     Then you will pay *
      If you are * * *            And if * * *               * *
------------------------------------------------------------------------
(a) Grazing livestock on      The tribe has         The rate set by the
 government land.              control over the      tribe.
                               land or the tribe
                               has authority to
                               set the rate.
(b) Grazing livestock on      Government controls   The rate set by the
 government land.              all use of the land.  BIA.
------------------------------------------------------------------------

Sec. 166.407  If a range unit consists of tribal and individually owned 
Indian lands, what is the grazing rental rate?

    The grazing rental rate for tribal land will be the rate set by the 
tribe. The grazing rental rate for individually owned Indian land will 
be the grazing rental rate set by us.


Sec. 166.408  Can tribal members graze livestock that they do not own 
on tribal land at the grazing rental rate established for tribal 
members?

    Yes. Tribal members may graze livestock that they do not own on 
tribal land at the rate set by the tribe.


Sec. 166.409  Is the grazing rental rate established by the BIA 
adjusted periodically?

    Yes. To ensure that Indian landowners are receiving the fair annual 
return, we may adjust the grazing rental rate established by the BIA, 
based upon an appropriate valuation method, taking into account the 
value of improvements made under the permit, unless the permit provides 
otherwise, following the Uniform Standards of Professional Appraisal 
Practice.
    (a) We will review the grazing rental rate prior to each 
anniversary date or when specified by the permit.
    (b) We will provide you with written notice of any adjustment of 
the grazing rental rate 60 days prior to each anniversary date.
    (c) The adjusted grazing rental rate may be less than the fair 
annual rental if we determine that such a rate is in the best interest 
of the Indian landowner.
    (d) If adjusted, the grazing rental rate will become effective on 
the next anniversary date of the permit following the date of 
adjustment.
    (e) These adjustments will be retroactive, if they are not made at 
the time specified in the permit.
    (f) For permits granted by tribes, we will consult with the 
granting tribe to determine whether an adjustment of the grazing rental 
payment should be made. The permit must be modified to document the 
granting tribe's waiver of the adjustment.

Rental Payments


Sec. 166.410  How is my grazing rental payment determined?

    The grazing rental payment is the total of the grazing rental rate 
multiplied by the number of AUMs or acres covered by the permit.


Sec. 166.411  When do I pay grazing rental payments?

    All grazing rental payments are due and payable as specified in the 
permit. The BIA will not accept a grazing rental payment beyond the 
permit term, except in collection of unpaid grazing rental payments.


Sec. 166.412  When is a grazing rental payment late?

    A grazing rental payment is late if it is not received within 
fifteen days of the payment date specified in the permit.


Sec. 166.413  Will a permittee be notified when a grazing rental 
payment is due?

    Each permittee will receive written notice stating when grazing 
rental payments are due. In addition, each permit informs the permittee 
of the schedule of payments agreed to by the parties.


Sec. 166.414  If a permittee does not receive notice that a grazing 
rental payment is due must the scheduled payment still be made?

    If a permittee does not receive notice that a grazing rental 
payment is due, the permittee remains responsible for making timely 
payment of all amounts due under the permit.

[[Page 43945]]

Sec. 166.415  What will the BIA do to collect grazing rental payments 
that are not made in accordance with the terms of a permit?

    Failure to make grazing rental payments in accordance with the 
terms of a permit may be a permit violation. The Secretary will enforce 
permit violations under subpart H of this part.


Sec. 166.416  Will I have to pay a penalty for late grazing rental 
payments?

    Yes. The permit will contain a provision that specifies the late 
grazing rental payment penalty that will be assessed and collected for 
late payments.


Sec. 166.417  What forms of grazing rental payments are acceptable?

    Payments of money must be United States currency in one of the 
following forms:
    (a) Postal money order;
    (b) Bank money order;
    (c) Cashier's check;
    (d) Certified check; or
    (e) Electronic funds transfer.


Sec. 166.418  To whom are grazing rental payments made?

    All grazing rental payments must be submitted as provided in the 
permit. The permittee must make payments payable to the party 
identified in the permit in the amount due, including any late payment, 
penalties, interest, or other amount if applicable.


Sec. 166.419  May a permittee send a grazing rental payment directly to 
the Indian landowner?

    Yes. A permittee may send grazing rental payments directly to the 
Indian landowner if the permit provides for direct payment.


Sec. 166.420  Does the BIA accept partial payment for a grazing rental 
payment due?

    Yes, in special circumstances. Ordinarily, the total amount is due 
and payable by the payment date specified in the permit, and failure to 
make complete payment may constitute a violation of the permit. 
Exceptions are rarely granted and require a specific written request 
and the consent of the parties to the permit and our approval.


Sec. 166.421  May a permittee make a grazing rental payment in advance 
of the due date?

    Rent may be paid no more than 30 days in advance of the due date as 
specified in the permit. The BIA will not accept a grazing rental 
payment more than 30 days prior to the beginning of the new permit 
term.


Sec. 166.422  May an individual Indian landowner modify the terms of 
the permit on a fractionated tract for advance grazing rental payment?

    No. An individual Indian landowner of a fractionated tract may not 
modify a permit to allow a grazing rental payment in advance of the due 
date specified in the permit.

Compensation to Indian Landowners


Sec. 166.423  What does the BIA do with grazing rental payments 
received from permittees?

    Rent will be distributed to the Indian landowners in accordance 
with the interest that each owns in the permitted land. The rent will 
be deposited to the appropriate account maintained by the Office of 
Trust Funds Management in accordance with 25 CFR part 115.


Sec. 166.424  How do Indian landowners receive grazing rental payments 
that the BIA has received from permittees?

    Funds will be paid to the Indian landowners by the Office of Trust 
Funds Management in accordance with 25 CFR part 115.


Sec. 166.425  How will the rent be distributed if the permit covers 
more than one tract of land with different owners?

    The rent will be prorated based upon the number and size of the 
tracts in relation to the total permit interest (leasehold), and 
distributed to each owner according to their fractional share of each 
tract.

Subpart F--Administrative and Tribal Fees


Sec. 166.500  Are there administrative fees for a permit?

    Yes. We will charge an administrative fee before approving any 
permit, subpermit, assignment, encumbrance, modification, or other 
related document.


Sec. 166.501  How are administrative fees determined?

    (a) Except as provided in subsection (b), we will charge 
administrative fees based on the annual grazing rental rate, according 
to the following table:

------------------------------------------------------------------------
 If the annual grazing rental rate is *    Then the administrative fee
                  * *                             will be * * *
------------------------------------------------------------------------
(1) Less than $500.00..................  3% of the annual rent.
(2) Between $500.00 and $5,000.00......  2% of the annual rent.
(3) Greater than $5,000.00.............  1% of the annual rent.
(4) Percentage rental..................  Based on the minimum annual
                                          rental or an estimated
                                          percentage of rental.
------------------------------------------------------------------------

    (b) The minimum administrative fee is $10.00 and the maximum 
administrative fee is $500.00.
    (c) If a tribe performs all or part of the administrative duties 
for this part under Pub. L. 93-638, the tribe may establish, collect, 
and use reasonable fees to cover its costs associated with the 
performance of administrative duties.
    (d) The fees for subpermits, assignments, encumbrances, 
modifications, or other related documents will be in accordance with 
this table.


Sec. 166.502  Are administrative fees refundable?

    No. We will not refund administrative fees.


Sec. 166.503  May the Secretary waive administrative fees?

    Yes. We may waive the administrative fee for a justifiable reason.


Sec. 166.504  Are there any other administrative or tribal fees, taxes, 
or assessments that must be paid?

    (a) The permittee may be required to pay additional fees, taxes, 
and/or assessments associated with the use of the land as determined by 
us or by the tribe.
    (b) If the permitted land is within an Indian irrigation project or 
drainage district, the permittee must pay all charges that may accrue 
during the term of the permit. These may include charges for operation 
and maintenance of the irrigation project unless superseded by part 171 
of this chapter. The permittee must pay the appropriate official in 
charge of the irrigation project or drainage district having 
jurisdiction.

[[Page 43946]]

Subpart G--Bonding and Insurance Requirements


Sec. 166.600  Must a permittee provide a bond for a permit?

    Yes. A permittee, assignee or subpermittee must provide a bond for 
each permit interest acquired. Upon request by an Indian landowner, we 
may waive the bond requirement.


Sec. 166.601  How is the amount of the bond determined?

    (a) The amount of the bond for each permit is based on the:
    (1) Value of one year's grazing rental payment;
    (2) Value of any improvements to be constructed;
    (3) Cost of performance of any additional obligations such as 
irrigation charges; and
    (4) Cost of performance of restoration and reclamation.
    (b) Tribal policy made applicable by Sec. 166.300 of this part may 
establish or waive specific bond requirements for permits.
    (c) We may adjust security or bond requirements at anytime to 
reflect changing conditions.


Sec. 166.602  What form of bonds will the BIA accept?

    (a) We will only accept bonds in the following forms:
    (1) Cash;
    (2) Negotiable Treasury securities that:
    (i) Have a market value equal to the bond amount; and
    (ii) Are accompanied by a statement granting full authority to the 
Secretary to sell such securities in case of a violation of the terms 
of the permit.
    (3) Certificates of deposit that indicate on their face that 
Secretarial approval is required prior to redemption by any party;
    (4) Irrevocable letters of credit (LOC) issued by federally-insured 
financial institutions authorized to do business in the United States. 
LOC's must:
    (i) Contain a clause that grants the Secretary authority to demand 
immediate payment if the permittee defaults or fails to replace the LOC 
within 30 calendar days prior to its expiration date;
    (ii) Be payable to the ``Department of the Interior, BIA'';
    (iii) Be irrevocable during its term and have an initial expiration 
date of not less than one year following the date we receive it; and
    (iv) Be automatically renewable for a period of not less than one 
year, unless the issuing financial institution provides the BIA with 
written notice at least 90 calendar days before the letter of credit's 
expiration date that it will not be renewed;
    (5) Surety bond; or
    (6) Any other form of highly liquid, non-volatile security 
subsequently approved by us that is easily convertible to cash by us 
and for which our approval is required prior to redemption by any 
party.
    (b) For tribal permits, a tribe may negotiate a permit term that 
specifies the use of any of the bond forms described in paragraph (a) 
of this section.


Sec. 166.603  If cash is submitted as a bond, how is it administered?

    If cash is submitted as a bond, we will establish an account in 
your name with the Office of Trust Funds Management to retain the 
funds.


Sec. 166.604  Is interest paid on a cash performance bond?

    No. Interest will not be paid on a cash performance bond.


Sec. 166.605  Are cash performance bonds refunded?

    If the cash performance bond has not been forfeited for cause, the 
principal amount deposited will be refunded to the depositor at the end 
of the permit period.


Sec. 166.606  Is insurance required for a permit?

    When we determine it to be in the best interest of the Indian 
landowners, we will require a permittee to provide insurance. If 
insurance is required, it must:
    (a) Be provided in an amount sufficient to:
    (1) Protect any improvements on the permit premises;
    (2) Cover losses such as personal injury or death; and
    (3) Protect the interest of the Indian landowner.
    (b) Identify the tribe, individual Indian landowners, and United 
States as insured parties.


Sec. 166.607  What types of insurance may be required?

    We may require any or all of the following types of insurance 
depending upon the activity conducted under the permit: liability, 
casualty (such as for fire, hazard, or flood).

Subpart H--Permit Violations


Sec. 166.700  What permit violations are addressed by this subpart?

    This subpart addresses violations of permit provisions other than 
trespass. Trespass is addressed under subpart I of this part.


Sec. 166.701  How will the Secretary enforce compliance with permit 
provisions?

    When reasonable grounds exist, the Secretary may enter the 
permitted premises at any reasonable time with or without prior notice 
to determine whether there has been a violation of the permit 
provisions and to protect Indian trust assets and resources.


Sec. 166.702  What happens if a violation of a permit occurs?

    If we determine that a violation of the permit has occurred based 
on facts known to us, as soon as practicable, we will provide written 
notice to the permittee and the sureties of the violation. This written 
notice will include an explanation of the violation.


Sec. 166.703  What will a written notice of a violation contain?

    The written notice will provide the permittee with 10 days from the 
receipt of the written notice to:
    (a) Cure the violation and notify us that the violation is cured.
    (b) Explain why we should not cancel the permit; or
    (c) Request in writing additional time to complete corrective 
actions. If additional time is granted, we may require that certain 
corrective actions be taken immediately.


Sec. 166.704  Can a determination of violation be contested?

    In the written notice of violation, we will advise the permittee of 
the procedure to follow to contest our determination that a violation 
of the permit has occurred.


Sec. 166.705  What happens to a bond if a violation occurs?

    We may apply the bond to remedy the violation, in which case we 
will require the permittee to submit a replacement bond of an 
appropriate amount.


Sec. 166.706  What happens if a permit violation is not cured?

    (a) We will:
    (1) Issue a written determination to cancel the permit if the 
violation is not cured. The decision letter will contain:
    (i) An explanation why we are canceling the permit;
    (ii) An order to vacate the property;
    (iii) Notice of the right to appeal under 25 CFR part 2;
    (iv) An order to pay delinquent rentals, damages, and other 
charges; and
    (v) A requirement to post an appeal bond if applicable.
    (2) Notify all interested parties, including the Indian landowners, 
by written notice as soon as practicable, of our determination to 
cancel a permit.
    (b) We may require the permittee to post an appeal bond in an 
amount

[[Page 43947]]

determined by us. The amount of the appeal bond will be the amount of 
damages, and additional rentals expected to accrue during the 
settlement of the appeal.


Sec. 166.707  If a violation is not cured, what may an Indian landowner 
do?

    (a) If a violation is not cured within the required time frame, the 
Indian landowner may exercise rights under the permit, including a 
right of entry, if any, or request that we cancel the permit.
    (b) If a permit authorizes termination according to tribal or other 
law, or provides for the resolution of certain types of disputes 
through alternative dispute resolution methods, the permit provisions 
will govern in place of these regulations.


Sec. 166.708  Can the Secretary take emergency action without prior 
notice if the permitted premises are being damaged?

    Yes. If the permittee causes or contributes to a severe harm to the 
premises, the Secretary may take appropriate emergency action, in 
consultation with the Indian landowner, by:
    (a) Initiating action to cancel the permit;
    (b) Requiring immediate cessation of the activity resulting in the 
harm;
    (c) Ordering the permittee to vacate the premises immediately; and
    (d) Taking formal legal action as may be appropriate, including 
seeking emergency judicial action.


Sec. 166.709  What rights does a permittee have if the Secretary takes 
emergency action under this subpart?

    A permittee may:
    (a) Agree to remedy the harm in a manner and time frame 
satisfactory to the Secretary and the Indian landowner;
    (b) Seek to have the permit reinstated after the harm to the 
property has been cured; and
    (c) Contest the Secretary's emergency actions under 25 CFR part 2.

Subpart I--Trespass


Sec. 166.800  What is trespass?

    Under this part, trespass is any unauthorized occupancy, use of, or 
action on Indian agricultural and government lands assigned to the 
control of a tribe. The following are some examples of trespass:
    (a) Cultivating or harvesting of irrigated or non-irrigated crops 
or the harvesting of native hay, forage, or seed;
    (b) Erecting or damaging fencing, gates, or other structures;
    (c) Developing water resources;
    (d) Commercial filming or photography;
    (e) Sale or barter of goods or services;
    (f) Placing or storing of beehives;
    (g) Cutting, damaging, taking, harvesting, or removing agricultural 
products for commercial purposes, including but not limited to: 
berries, nuts, flowers, seeds, moss, cones, leaves, mushrooms, cactus, 
yucca, and greenery;
    (h) Recreation, hunting, trapping, or fishing;
    (i) Disturbing soil, plants, or otherwise exposing or disturbing, 
damaging, or removing archaeological or paleontological resources;
    (j) Littering or disposing of agricultural related products, 
hazardous waste, household or business waste, or garbage;
    (k) Applying pesticides without proper certification or misusing 
pesticides;
    (l) Aquaculture or the harvesting of fish raised for commercial 
sale or consumption;
    (m) Unauthorized livestock activities, including:
    (1) Driving livestock across Indian agricultural land without an 
approved crossing permit;
    (2) Allowing livestock to drift and graze on Indian agricultural 
land without an approved permit;
    (3) Grazing livestock within an area closed to grazing of that 
class of livestock; and
    (4) Grazing livestock in an area withdrawn from use by the BIA when 
damage to the Indian agricultural land is occurring due to improper 
handling of livestock; and
    (n) Other actions designated by tribes as acts of trespass on 
Indian agricultural lands.


Sec. 166.801  What is the BIA's trespass policy?

    We will:
    (a) Investigate accidental, and willful, or incidental trespass on 
Indian agricultural land.
    (b) Respond to alleged trespass in a prompt, efficient manner.
    (c) Assess trespass penalties for the value of products used or 
removed, cost of damage to the Indian agricultural land, and 
enforcement costs incurred as a consequence of the trespass.
    (d) Ensure that damage to Indian agricultural lands resulting from 
trespass is rehabilitated and stabilized at the expense of the 
trespasser.


Sec. 166.802  Who can enforce this subpart?

    (a) The BIA enforces the provisions of this subpart. If the tribe 
adopts the provisions of this subpart, the tribe will have concurrent 
jurisdiction to enforce this subpart. Additionally, if the tribe so 
requests, we will defer to tribal prosecution of trespass on Indian 
agricultural lands.
    (b) The provisions in this subpart are exclusive of and in addition 
to any tribal action that may be taken under tribal law.

Notification


Sec. 166.803  How are trespassers notified of a trespass determination?

    (a) Unless otherwise provided under tribal law, when we have reason 
to believe that a trespass on Indian agricultural land has occurred, we 
or the authorized tribal representative will provide written notice to 
the alleged trespasser, the possessor of trespass property, any known 
lien holder, and beneficial Indian landowner, as appropriate. The 
written notice will include the following:
    (1) The basis for the trespass determination;
    (2) A legal description of where the trespass occurred;
    (3) A verification of brands in the State Brand Book for cases of 
livestock trespass;
    (4) Corrective actions that must be taken;
    (5) Time frames for taking the corrective actions; and
    (6) Potential consequences and penalties for failure to take 
corrective action.
    (b) If we determine that the alleged trespasser or possessor of 
trespass property is unknown or refuses delivery of the written notice, 
a public trespass notice will be posted at the tribal community 
building, U.S. Post Office, and published in the local newspaper 
nearest to the Indian agricultural lands where the trespass is 
occurring.
    (c) Trespass notices under this subpart are not subject to appeal 
under 25 CFR part 2.


Sec. 166.804  What can I do if I receive a trespass notice?

    If you receive a trespass notice, you may within the time frame 
specified in the notice:
    (a) Comply with the ordered corrective actions; or
    (b) Contact us in writing to explain why the trespass notice is in 
error. You may contact us by telephone but any explanation of trespass 
you wish to provide must be in writing. If we determine that we issued 
the trespass notice in error, we will withdraw the notice.


Sec. 166.805  Who else will the BIA notify?

    We will notify anyone in possession of the Indian agricultural land 
on which the unauthorized livestock or other

[[Page 43948]]

property has been identified that such property could be Indian trust 
property and that no action to remove or otherwise dispose of the 
unauthorized livestock or other property may be taken unless authorized 
by us.

Actions


Sec. 166.806  What actions does the BIA take against trespassers?

    If the trespasser fails to take the corrective action specified by 
us, we may take one or more of the following actions, as appropriate:
    (a) Seize, impound, sell or dispose of unauthorized livestock or 
other property involved in the trespass. We may keep such property we 
seize for use as evidence.
    (b) Assess penalties, damages, and costs, under Sec. 166.812.


Sec. 166.807  When will we impound unauthorized livestock or other 
property?

    We will impound unauthorized livestock or other property under the 
following conditions:
    (a) Where there is imminent danger of severe injury to growing or 
harvestable crop or destruction of the range forage.
    (b) When the known owner or his/her representative of the 
unauthorized livestock or other property refuses to accept delivery of 
a written notice of trespass and the unauthorized livestock or other 
property are not removed within the period prescribed in the written 
notice.
    (c) Any time after five days of providing notice of impoundment if 
you failed to correct the trespass.


Sec. 166.808  How are trespassers notified if their unauthorized 
livestock or other property are to be impounded?

    (a) If the trespass is not corrected in the time specified in the 
initial trespass notice, we will send written notice of our intent to 
impound unauthorized livestock or other property to the owner or his/
her representative, and any known lien holder of the unauthorized 
livestock or other property.
    (b) If we determine that the owner of the unauthorized livestock or 
other property or his/her representative is unknown or refuses delivery 
of the written notice, we will post a public notice of intent to 
impound at the tribal community building, U.S. Post Office, and 
published in the local newspaper nearest to the Indian agricultural 
lands where the trespass is occurring.
    (c) After we have given notice as described above, we will impound 
unauthorized livestock or other property without any further notice.


Sec. 166.809  What happens after my unauthorized livestock or other 
property are impounded?

    Following the impoundment of unauthorized livestock or other 
property, we will provide notice that we will sell the impounded 
property as follows:
    (a) We will provide written notice of the sale to the owner, his/
her representative, and any known lien holder. The written notice must 
include the procedure by which the impounded property may be redeemed 
prior to the sale.
    (b) We will provide public notice of sale of impounded property by 
posting at the tribal community building, U.S. Post Office, and 
publishing in the local newspaper nearest to the Indian agricultural 
lands where the trespass is occurring. The public notice will include a 
description of the impounded property, and the date, time, and place of 
the public sale. The sale date must be at least five days after the 
publication and posting of notice.


Sec. 166.810  How do I redeem my impounded livestock or other property?

    You may redeem impounded livestock or other property by submitting 
proof of ownership and paying all penalties, damages, and costs under 
Sec. 166.812. and completing all corrective actions identified by us 
under Sec. 166.803.


Sec. 166.811  How will the sale of impounded livestock or other 
property be conducted?

    (a) Unless the owner or known lien holder of the impounded 
livestock or other property redeems the property prior to the time set 
by the sale, by submitting proof of ownership and settling all 
obligations under Sec. 166.803 and Sec. 166.811, the property will be 
sold by public sale to the highest bidder.
    (b) If a satisfactory bid is not received, the livestock or 
property may be re-offered for sale, returned to the owner, condemned 
and destroyed, or otherwise disposed of.
    (c) We will give the purchaser a bill of sale or other written 
receipt evidencing the sale.

Penalties, Damages, and Costs


Sec. 166.812  What are the penalties, damages, and costs payable by 
trespassers on Indian agricultural land?

    Trespassers on Indian agricultural land must pay the following 
penalties and costs:
    (a) The reasonable value of forage or crops consumed or destroyed;
    (b) Expenses incurred in gathering, impounding, caring for, and 
disposal of livestock in cases which necessitate impoundment under 
Sec. 166.807;
    (c) The costs associated with any damage to Indian agricultural 
land;
    (d) The value of the property illegally used or removed plus a 
penalty of double their values;
    (e) The costs associated with enforcement of the regulations, 
including field examination and survey, damage appraisal, investigation 
assistance and reports, witness expenses, demand letters, court costs, 
and attorney fees; and
    (g) All other penalties authorized by law.


Sec. 166.813  How will the BIA determine the value of forage or crops 
consumed or destroyed?

    We will determine the value of forage or crops consumed or 
destroyed based upon the average rate received per month for comparable 
property or grazing privileges, or the estimated commercial value for 
such property or privileges.


Sec. 166.814  How will the BIA determine the value of the property 
illegally used or removed?

    We will determine the value of the property illegally used or 
removed based upon a valuation of similar property.


Sec. 166.815  How will the BIA determine the amount of damages to 
Indian agricultural land?

    We will determine the damages by considering the costs of 
rehabilitation and revegetation, loss of future revenue, loss of 
profits, loss of productivity, loss of market value, damage to other 
resources, and other factors.


Sec. 166.816  How will the BIA determine the costs associated with 
enforcement of the trespass?

    Costs of enforcement may include detection and all actions taken by 
us through prosecution and collection of damages. This includes field 
examination and survey, damage appraisal, investigation assistance and 
report preparation, witness expenses, demand letters, court costs, 
attorney fees, and other costs.


Sec. 166.817  What happens if I do not pay the assessed penalties, 
damages and costs?

    Unless otherwise provided by applicable tribal law:
    (a) We will refuse to issue you a permit for use, development, or 
occupancy of Indian agricultural lands; and
    (b) We will forward your case for appropriate legal action.

[[Page 43949]]

Sec. 166.818  How are the proceeds from trespass distributed?

    Unless otherwise provided by tribal law:
    (a) We will treat any amounts recovered under Sec. 166.812 as 
proceeds from the sale of agricultural property from the Indian 
agricultural land upon which the trespass occurred.
    (b) All amounts collected in excess of the amounts assessed under 
Sec. 166.812 will be applied by us against costs associated with the 
enforcement of this subpart.
    (c) If we seize and dispose of impounded livestock or other 
property of the trespasser, we will apply any cash or other proceeds to 
satisfy the penalties and costs of enforcement. If any money is left 
over, we will return it to the trespasser or, where we cannot identify 
the owner of the impounded property, we will deposit the net proceeds 
of the sale into the accounts of the landowners where the trespass 
occurred.


Sec. 166.819  What happens if the BIA does not collect enough money to 
satisfy the penalty?

    If we do not collect enough money from the trespasser, we will 
distribute collected penalties as follows:
    (a) All amounts collected up to and including the amount assessed 
under Secs. 166.810 through 166.811 will be distributed equally:
    (1) Between the beneficial Indian landowner; and
    (2) Towards the cost of restoring the Indian agricultural land.
    (b) We will send written notice to the trespasser and any known 
lien holders demanding immediate settlement and advising the trespasser 
that unless settlement is received within five working days from the 
date of receipt, we will forward the case for appropriate legal action.

Subpart J--Appeals


Sec. 166.900  Can decisions by the BIA be appealed?

    Except as otherwise provided in this part, appeals from decisions 
of the BIA under this part may be taken pursuant to 25 CFR part 2.

Subpart K--Records


Sec. 166.1000  Who owns records associated with this part?

    Any records generated in the fulfillment of this part are the 
property of the United States, and must be maintained in accordance 
with approved records retention procedures under the Federal Records 
Act, 44 U.S.C. 3101, et seq.

Subpart L--Agriculture Education, Education Assistance, 
Recruitment, and Training


Sec. 166.1100  How are the Indian agriculture education programs 
operated?

    (a) The purpose of the Indian agriculture education programs is to 
recruit and develop promising Indian and Alaska Natives who are 
enrolled in secondary schools, tribal or Alaska Native community 
colleges, and other post-secondary schools for employment as 
professional resource managers and other agriculture-related 
professionals by approved organizations.
    (b) We will operate the student educational employment program as 
part of our Indian agriculture education programs in accordance with 
the provisions of 5 CFR 213.3202(a) and (b).
    (c) We will establish an education committee to coordinate and 
carry out the agriculture education assistance programs and to select 
participants for all agriculture education assistance programs. The 
committee will include at least one Indian professional educator in the 
field of natural resources or agriculture, a personnel specialist, a 
representative of the Intertribal Agriculture Council, and a natural 
resources or agriculture professional from the BIA and a representative 
from American Indian Higher Education Consortium. The committee's 
duties will include the writing of a manual for the Indian and Alaska 
Native Agriculture Education and Assistance Programs.
    (d) We will monitor and evaluate the agriculture education 
assistance programs to ensure that there are adequate Indian and Alaska 
Native natural resources and agriculture-related professionals to 
manage Indian natural resources and agriculture programs by or for 
tribes and Alaska Native Corporations. We will identify the number of 
participants in the intern, student educational employment program, 
scholarship, and outreach programs; the number of participants who 
completed the requirements to become a natural resources or 
agriculture-related professional; and the number of participants 
completing advanced degree requirements.


Sec. 166.1101  How will the BIA select an agriculture intern?

    (a) The purpose of the agriculture intern program is to ensure the 
future participation of trained, professional Indians and Alaska 
Natives in the management of Indian and Alaska Native agricultural 
land. In keeping with this purpose, we will work with tribes and Alaska 
Natives:
    (1) To obtain the maximum degree of participation from Indians and 
Alaska Natives in the agriculture intern program;
    (2) To encourage agriculture interns to complete an undergraduate 
degree program in natural resources or agriculture-related field; and
    (3) To create an opportunity for the advancement of natural 
resources and agriculture-related technicians to professional resource 
management positions with the BIA, other federal agencies providing an 
agriculture service to their respective tribe, a tribe, or tribal 
agriculture enterprise.
    (b) Subject to restrictions imposed by agency budgets, we will 
establish and maintain in the BIA at least 20 positions for the 
agriculture intern program. All Indians and Alaska Natives who satisfy 
the qualification criteria may compete for positions.
    (c) Applicants for intern positions must meet the following 
criteria:
    (1) Be eligible for Indian preference as defined in 25 CFR part 5;
    (2) Possess a high school diploma or its recognized equivalent;
    (3) Be able to successfully complete the intern program within a 3-
year period; and
    (4) Possess a letter of acceptance to an accredited post-secondary 
school or demonstrate that one will be sent within 90 days.
    (d) We will advertise vacancies for agriculture intern positions 
semi-annually, no later than the first day of April and October, to 
accommodate entry into school.
    (e) In selecting agriculture interns, we will seek to identify 
candidates who:
    (1) Have the greatest potential for success in the program;
    (2) Will take the shortest time period to complete the intern 
program; and
    (3) Provide the letter of acceptance required by paragraph (c)(4) 
of this section.
    (f) Agriculture interns must:
    (1) Maintain full-time status in an agriculture-related curriculum 
at an accredited post secondary school;
    (2) Maintain good academic standing;
    (3) Enter into an obligated service agreement to serve as a 
professional resource manager or agriculture-related professional with 
an approved organization for two years in exchange for each year in the 
program; and
    (4) Report for service with the approved organization during any 
break in attendance at school of more than three weeks.
    (g) The education committee will evaluate annually the performance 
of the agriculture intern program participants against requirements to

[[Page 43950]]

ensure that they are satisfactorily progressing toward completion of 
program requirements.
    (h) We will pay all costs for tuition, books, fees, and living 
expenses incurred by an agriculture intern while attending an 
accredited post secondary school.


Sec. 166.1102  How can I become an agriculture educational employment 
student?

    (a) To be considered for selection, applicants for the student 
educational employment program must:
    (1) Meet the eligibility requirements in 5 CFR part 308; and
    (2) Be accepted into or enrolled in a course of study at an 
accredited post secondary institution which grants degrees in natural 
resources or agriculture-related curricula.
    (b) Student educational employment steering committees established 
at the field level will select program participants based on 
eligibility requirements without regard to applicants' financial needs.
    (c) A recipient of assistance under the student educational 
employment program will be required to enter into an obligated service 
agreement to serve as a natural resources or agriculture-related 
professional with an approved organization for one year in exchange for 
each year in the program.
    (d) We will pay all costs of tuition, books, fees, and 
transportation to and from the job site to school, for an Indian or 
Alaska Native student who is selected for the cooperative education 
program.


Sec. 166.1103  How can I get an agriculture scholarship?

    (a) We may grant agriculture scholarships to Indians and Alaska 
Natives enrolled as full time students in accredited post-secondary and 
graduate programs of study in natural resources and agriculture-related 
curricula.
    (b) The education committee established in Sec. 166.1100(a) will 
select program participants based on eligibility requirements 
stipulated in paragraphs (e) through (g) of this section without regard 
to applicants' financial needs or past scholastic achievements.
    (c) Recipients of scholarships must reapply annually to continue to 
receive funding beyond the initial award period. Students who have 
received scholarships in past years, are in good academic standing, and 
have been recommended for continuation by their academic institution 
will be given priority over new applicants for scholarship assistance.
    (d) The amount of scholarship funds an individual is awarded each 
year will be contingent upon the availability of funds appropriated 
each fiscal year and is subject to yearly change.
    (e) Preparatory scholarships may be available for a maximum of 3 
academic years of general, undergraduate course work leading to a 
degree in natural resources or agriculture-related curricula and may be 
awarded to individuals who:
    (1) Possess a high school diploma or its recognized equivalent; and
    (2) Are enrolled and in good academic standing at an acceptable 
post secondary school.
    (f) Undergraduate scholarships are available for a maximum of three 
academic years and may be awarded to individuals who:
    (1) Have completed a minimum of 55 semester hours toward a 
bachelor's degree in a natural resources or agriculture-related 
curriculum; and
    (2) Have been accepted into a natural resource or agriculture-
related degree-granting program at an accredited college or university.
    (g) Graduate scholarships are available for a maximum of five 
academic years for individuals selected into the graduate program of an 
accredited college or university that grants advanced degrees in 
natural resources or agriculture-related fields.
    (h) A recipient of assistance under the scholarship program must 
enter into an obligated service agreement to serve as a natural 
resources or agriculture-related professional with the BIA, other 
federal agency providing assistance to their respective tribe, a tribe, 
tribal agriculture enterprise, or an ANCSA Corporation for one year for 
each year in the program.
    (i) We will pay all scholarships approved by the education 
committee established in Sec. 166.1100(d)(a) for which funding is 
available.


Sec. 166.1104  What is agriculture education outreach?

    (a) We will establish and maintain an agriculture education 
outreach program for Indian and Alaska Native youth that will:
    (1) Encourage students to acquire academic skills needed to succeed 
in post secondary mathematics and science courses;
    (2) Promote agriculture career awareness;
    (3) Involve students in projects and activities oriented to 
agriculture related professions early so students realize the need to 
complete required pre college courses; and
    (4) Integrate Indian and Alaska Native agriculture program 
activities into the education of Indian and Alaska Native students.
    (b) We will develop and carry out the program in consultation with 
appropriate community education organizations, tribes, ANCSA 
Corporations, Alaska Native organizations, and other federal agencies 
providing agriculture services to Indians.
    (c) The education committee established under Sec. 166.1100(a) will 
coordinate and implement the program nationally.


Sec. 166.1105  Who can get assistance for postgraduate studies?

    (a) The purpose of the postgraduate studies program is to enhance 
the professional and technical knowledge of Indian and Alaska Native 
natural resource and agriculture-related professionals working for an 
approved organization so that the best possible service is provided to 
Indian and Alaska Natives.
    (b) We may pay the cost of tuition, fees, books, and salary of 
Alaska Natives and Indians who are employed by an approved organization 
and who wish to pursue advanced levels of education in natural resource 
or agriculture-related fields.
    (c) The goal of the advanced study program is to encourage 
participants to obtain additional academic credentials such as a degree 
or diploma in a natural resources or agriculture-related field. 
Requirements of the postgraduate study program are:
    (1) The duration of course work cannot be less than one semester or 
more than three years; and
    (2) Students in the postgraduate studies program must meet 
performance standards as required by the graduate school offering the 
study program.
    (d) Program applicants must submit application packages to the 
education committee. At a minimum, such packages must contain a resume 
and an endorsement signed by the applicant's supervisor clearly stating 
the need for and benefits of the desired training.
    (e) The education committee must use the following criteria to 
select participants:
    (1) Need for the expertise sought at both the local and national 
levels;
    (2) Expected benefits, both locally and nationally; and
    (3) Years of experience and the service record of the employee.
    (f) Program participants will enter into an obligated service 
agreement to serve as a natural resources or agriculture-related 
professional with an approved organization for two years for each year 
in the program. We may reduce the obligated service requirement if the 
employee receives

[[Page 43951]]

supplemental funding such as research grants, scholarships, or graduate 
stipends and, as a result, reduces the need for financial assistance 
under this part. If the obligated service agreement is breached, we 
will collect the amount owed us in accordance with Sec. 166.1110.


Sec. 166.1106  What can happen if we recruit you after graduation?

    (a) The purpose of the post graduation recruitment program is to 
recruit Indian and Alaska Native natural resource and trained 
agriculture technicians into the agriculture programs of approved 
organizations.
    (b) We may assume outstanding student loans from established 
lending institutions of Indian and Alaska Native natural resources and 
agriculture technicians who have successfully completed a post-
secondary natural resources or agriculture-related curriculum at an 
accredited institution.
    (c) Indian and Alaska Natives receiving benefits under this program 
will enter into an obligated service agreement in accordance with 
Sec. 166.1110. Obligated service required under this program will be 
one year for every $5,000 of student loan debt repaid.
    (d) If the obligated service agreement is breached, we will collect 
student loan(s) in accordance with Sec. 166.1110.


Sec. 166.1107  Who can be an intern?

    (a) Natural resources or agriculture personnel working for an 
approved organization may apply for an internship within agriculture-
related programs of agencies of the Department of the Interior or other 
federal agencies providing an agriculture service to their respective 
reservations.
    (b) Natural resources or agriculture-related personnel from other 
Department of the Interior agencies may apply through proper channels 
for ``internships'' within the BIA's agriculture programs. With the 
consent of a tribe or Alaska Native organization, the BIA can arrange 
for an Intergovernmental Personnel Act assignment in tribal or Alaska 
Native agriculture programs.
    (c) Natural resources and agriculture personnel from agencies not 
within the Department of the Interior may apply, through proper agency 
channels and pursuant to an interagency agreement, for an 
``internship'' within the BIA and, with the consent of a tribe or 
Alaska Native organization, we can facilitate an Intergovernmental 
Personnel Act assignment in a tribe, tribal agriculture enterprise, or 
Alaska Native Corporation.
    (d) Natural resources or agriculture personnel from a tribe, tribal 
agriculture enterprise, or Alaska Native Corporation may apply, through 
proper channels and pursuant to a cooperative agreement, for an 
internship within another tribe, tribal forest enterprise, or ANCSA 
Corporation agriculture program.
    (e) The employing agency of participating federal employees will 
provide for the continuation of salary and benefits.
    (f) The host agency for participating tribal, tribal agriculture 
enterprise, or Alaska Native Corporation agriculture employees will 
provide for salaries and benefits.
    (g) A bonus pay incentive, up to 25 percent (%) of the intern's 
base salary, may be provided to intergovernmental interns at the 
conclusion of the internship period. Bonus pay incentives will be at 
the discretion of and funded by the host organization and must be 
conditioned upon the host agency's documentation of the intern's 
superior performance, in accordance with the agency's performance 
standards, during the internship period.


Sec. 166.1108  Who can participate in continuing education and 
training?

    (a) The purpose of continuing education and training is to 
establish a program to provide for the ongoing education and training 
of natural resources and agriculture personnel employed by approved 
organizations. This program will emphasize continuing education and 
training in three areas:
    (1) Orientation training including tribal-federal relations and 
responsibilities;
    (2) Technical agriculture education; and
    (3) Developmental training in agriculture-based enterprises and 
marketing.
    (b) We will maintain an orientation program to increase awareness 
and understanding of Indian culture and its effect on natural resources 
management and agriculture practices and on federal laws that effect 
natural resources management and agriculture operations and 
administration in the Indian agriculture program.
    (c) We will maintain a continuing technical natural resources and 
agriculture education program to assist natural resources managers and 
agriculture-related professionals to perform natural resources and 
agriculture management on Indian land.
    (d) We will maintain an agriculture land-based enterprise and 
marketing training program to assist with the development and use of 
Indian and Alaska Native agriculture resources.


Sec. 166.1109  What are my obligations to the BIA after I participate 
in an agriculture education program?

    (a) Individuals completing agriculture education programs with an 
obligated service requirement may be offered full time permanent 
employment with an approved organization to fulfill their obligated 
service within 90 days of the date all program education requirements 
have been completed. If employment is not offered within the 90 day 
period, the student will be relieved of obligated service requirements. 
Not less than 30 days before to the start of employment, the employer 
must notify the participant of the work assignment, its location and 
the date work must begin. If the employer is other than the BIA, the 
employer must also notify us.
    (b) Employment time that can be credited toward obligated service 
requirement will begin the day after all program education requirements 
have been completed, with the exception of the agriculture intern 
program which includes the special provisions outlined in 
Sec. 166.1101(f)(4). The minimum service obligation period will be one 
year of full time employment.
    (c) The employer has the right to designate the location of 
employment for fulfilling the service obligation.
    (d) A participant in any of the agriculture education programs with 
an obligated service requirement may, within 30 days of completing all 
program education requirements, request a deferment of obligated 
service to pursue postgraduate or post-doctoral studies. In such cases, 
we will issue a decision within 30 days of receipt of the request for 
deferral. We may grant such a request; however, deferments granted in 
no way waive or otherwise affect obligated service requirements.
    (e) A participant in any of the agriculture education programs with 
an obligated service requirement may, within 30 days of completing all 
program education requirements, request a waiver of obligated service 
based on personal or family hardship. We may grant a full or partial 
waiver or deny the request for waiver. In such cases, we will issue a 
decision within 30 days of receiving the request for waiver.


Sec. 166.1110  What happens if I do not fulfill my obligation to the 
BIA?

    (a) Any individual who accepts financial support under agriculture 
education programs with an obligated service requirement, and who does 
not accept employment or unreasonably terminates employment must repay 
us in accordance with the following table:

[[Page 43952]]



------------------------------------------------------------------------
                               Then the costs that   And then the costs
      If you are * * *        you must repay are *  that you do not need
                                       * *           to repay are * * *
------------------------------------------------------------------------
(1) Agriculture intern......  Living allowance,     Salary paid during
                               tuition, books, and   school breaks or
                               fees received while   when recipient was
                               occupying position    employed by an
                               plus interest.        approved
                                                     organization
(2) Cooperative education...  Tuition, books, and
                               fees plus interest.
(3) Scholarship.............  Costs of scholarship
                               plus interest.
(4) Post graduation           All student loans
 recruitment.                  assumed by us under
                               the program plus
                               interest.
(5) Postgraduate studies....  Living allowance,     Salary paid during
                               tuition, books, and   school breaks or
                               fees received while   when recipient was
                               in the program plus   employed by an
                               interest.             approved
                                                     organization.
------------------------------------------------------------------------

    (b) For agriculture education programs with an obligated service 
requirement, we will adjust the amount required for repayment by 
crediting toward the final amount of debt any obligated service 
performed before breach of contract.

    Dated: June 22, 2000.
Kevin Gover,
Assistant Secretary-Indian Affairs.
[FR Doc. 00-17195 Filed 7-13-00; 8:45 am]
BILLING CODE 4310-02-P