[Federal Register Volume 68, Number 218 (Wednesday, November 12, 2003)]
[Proposed Rules]
[Pages 64023-64036]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-28320]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 161

RIN 1076-AE46


Navajo Partitioned Lands Grazing Permits

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This rulemaking adds a new part to the regulations of the 
Bureau of Indian Affairs to govern the grazing of livestock on the 
Navajo Partitioned Land (NPL) of the Navajo-Hopi Former Joint Use Area 
(FJUA) of the 1882 Executive Order reservation. The purpose of these 
regulations is to conserve the rangelands of the NPL in order to 
maximize future use of the land for grazing and other purposes.

DATES: Written comments must be submitted no later than February 10, 
2004.

ADDRESSES: All comments on the proposed rule must be in writing and 
addressed to: Bill Downes, Acting Director, Office of Trust 
Responsibilities, Attn.: Agriculture and Range, MS-3061-MIB, Code 210, 
1849 C Street, NW., Washington, DC 20240, Telephone (202) 208-6464.
    You may submit written comments on the proposed information 
collection to the Desk Officer for the Department of the Interior, 
Office of Management and Budget, either by telefaxing to (202) 395-
6566, or by e-mail to [email protected].

FOR FURTHER INFORMATION CONTACT: Harold Russell, (505) 863-8256, at the 
Navajo Regional Office in Gallup, New Mexico.

SUPPLEMENTARY INFORMATION: As a result of the long-standing dispute 
between the Hopi Tribe and the Navajo Nation over beneficial ownership 
of the reservation created by the Executive Order of December 16, 1882, 
Congress passed the Act of July 22, 1958, 72 Stat. 403, which permitted 
the Navajo Nation and the Hopi Tribe to sue each other in federal court 
to resolve the issue. The Hopi Tribe initiated such a suit on August 1, 
1958, in United States District Court for the District of Arizona in 
Healing v. Jones, 174 F. Supp. 211 (D. Ariz. 1959), (Healing I). The 
merits of the case were heard by a three judge panel of the United 
States District Court for the District of Arizona in Healing v. Jones, 
210 F. Supp. 125 (D. Ariz. 1962) aff'd 373 U.S. 758 (1963), (Healing 
II) after the initial procedural challenges to the suit were dismissed 
in Healing I. The district court determined that while the Hopi Tribe 
had a right to the exclusive use and occupancy of a portion of the 1882 
reservation know as District 6, it shared the remaining lands of the 
1882 reservation in common with the Navajo Nation. Disputes between the 
two tribes continued over the right to use and occupy the 1882 
reservation in spite of the district court's decision in Healing II. In 
an attempt to resolve these ongoing problems, Congress enacted the 
Navajo-Hopi Settlement Act, 25 U.S.C. 640d-640d-31, which provided for 
the partition of the Joint Use Area of the 1882 reservation, excluding 
District 6, between the two tribes. The Act was amended by the Navajo-
Hopi Indian Relocation Amendments Acts of 1980, 94 Stat. 929, due to 
the dissatisfaction expressed by both tribes with the relocation 
process.
    The Relocation Act Amendments added subsection (c) to 25 U.S.C. 
640d-18. It required the Secretary of the Interior to complete the 
livestock reduction program contained in 25

[[Page 64024]]

U.S.C. 640d-18(a) within 18 months of its enactment. The new subsection 
also required that all grazing control and range restoration activities 
be coordinated and executed with the concurrence of the tribe to which 
the land had been partitioned. In 1982, the U.S. District Court for the 
District of Arizona determined in Hopi Tribe v. Watt, 530 F. Supp. 1217 
(D. Ariz. 1982), that the grazing regulations contained in part 153 of 
25 CFR were invalid with respect to the 1882 reservation partitioned to 
both the Navajo Nation and the Hopi Tribe. The court reached that 
conclusion because the regulations did not provide for the concurrence 
of the Navajo Nation or the Hopi Tribe as required by the Relocation 
Act Amendments. The district court's ruling was upheld by the Ninth 
Circuit Court of Appeals in Hopi Tribe v. Watt, 719 F. 2d 314 (9th Cir. 
1983).
    As a result of the decision in Hopi Tribe v. Watt, Id., the Bureau 
of Indian Affairs sought the concurrence of the Navajo Nation for the 
regulations, which are herein published. The concurrence of the Navajo 
Nation to these regulations was provided verbally by the Navajo-Hopi 
Land Commission and the Navajo Nation Natural Resource Committee which 
met jointly on June 26, 2003. Non-substantive, editorial changes have 
been made to the proposed regulations, which were approved by the 
Navajo Nation.
    These regulations are issued to implement the Secretary of the 
Interior's responsibilities for the Navajo Partitioned Lands as 
mandated by the Navajo-Hopi Settlement Act, as amended by the 
Relocation Act Amendments, and the previously cited federal court 
decisions. In 1982, part 152 of 25 CFR was re-designated as part 167, 
Navajo Grazing Regulations, and part 153 of 25 CFR was re-designated as 
part 168, Hopi Partitioned Lands Grazing Regulations. All grazing 
permits issued for the joint Use Area under the old 25 CFR part 152, 
some of which dated from 1940, were canceled within one year pursuant 
to the Order of Compliance issued on October 14, 1972, by the U.S. 
District Court of the District of Arizona in Hamilton v. MacDonald, 
Civ. 579-PCT. From 1973 through 1978, the Bureau of Indian Affairs did 
not issue grazing permits for the Joint Use Area (JUA) during 
calculation of the range's carrying capacity and stocking rates. 
However, in late 1977 the Joint Use Area Administrative Office of the 
Bureau of Indian Affairs at Flagstaff, Arizona, completed its inventory 
and began issuing annual grazing permits to the residents of the JUA. 
These interim permits were limited to one year by order of the federal 
district court. Since the 1982 ruling in Hopi v. Watt, 530 F.2d 1217 
(1983), declaring that the pre-1982 regulations were invalid, the 
Bureau of Indian Affairs has been subject to the provisions of the 
Navajo-Hopi Settlement Act, as amended, which require the development 
of new grazing regulations for the Navajo Partitioned Land with the 
concurrence of the Navajo Nation. These regulations are the product of 
that consultation.
    Proposed rulemaking was published in the Federal Register on 
November 1, 1995 (60 FR 55506), and invited comments for 60 days ending 
January 2, 1996. To allow maximum input from the Navajo and Hopi Tribes 
and the public, an extension of the comment period to September 9, 1996 
was published in the Federal Register on June 10, 1996 (61 FR 29327). A 
total of 74 written comments were received from individuals and 
attorneys representing the Navajo Nation, as well as individuals 
commenting on their own behalf. The comments were reviewed by the 
Navajo-Hopi Land Commission of the Navajo Nation Council NPL 
Subcommittee during the week of November 17, 1996. The suggested 
responses to the comments were sent to the Navajo Nation Resources 
Committee for further review and consideration on September 10, 1998. 
Comments and recommendations were adopted and incorporated into a 
proposed rule which was never finalized. We have reviewed the comments 
and recommendations, and incorporated them in the proposed rule where 
appropriate.
    This rulemaking also incorporates the requirements of the American 
Indian Agricultural Resource Management Act (AIARMA)(107 Stat. 2011, 25 
U.S.C. Sec.  3703 et seq.), as amended. The purposes of AIARMA include 
carrying out the trust responsibility of the United States and 
promoting self-determination of Indian tribes by providing for the 
management of Indian agricultural lands and related renewable resources 
in a manner consistent with identified tribal goals and priorities for 
conservation, multiple use, and sustained yield; by authorizing the 
Secretary to take part in the management of Indian agricultural lands 
with the participation of the beneficial owners of the land in a manner 
consistent with the trust responsibility of the Secretary and the 
objectives of the beneficial owners; and by providing for the 
development and management of Indian agricultural land. The AIARMA 
requires that the Secretary conduct all land management activities on 
Indian agricultural lands in accordance with agricultural resource 
management plans, integrated resources management plans, and all tribal 
laws and ordinances, except where such compliance would be contrary to 
the trust responsibility of the United States.
    Final regulations governing grazing permits for all Indian lands 
were promulgated in 25 CFR part 166 on January 22, 2001, and are found 
at 25 CFR part 166. While part 166 applies to all Indian agricultural 
lands, part 161 applies only to the Navajo Partitioned Lands. Both 
regulations implement the requirements of AIARMA.

Section-by-Section Analysis of the Proposed Rule

    Subpart A, ``Definitions, Authority, Purpose and Scope,'' contains 
key terms used throughout the proposed regulation. These terms are 
consistent with those found in AIARMA. This subpart also describes the 
Secretary's authorities under this part.
    Subpart B, ``Tribal Policies and Laws Pertaining to Permits,'' is 
consistent with AIARMA and makes clear that Navajo Nation laws 
generally apply to land under the jurisdiction of the Navajo Nation, 
except to the extent that those Navajo Nation laws are inconsistent 
with applicable federal law. Further, unless prohibited by federal law, 
BIA will recognize and comply with tribal laws regulating activities on 
the Navajo Partitioned Lands, including tribal laws relating to land 
use, environmental protection, and historic or cultural preservation.
    Subpart C, ``General Provisions,'' lists the environmental 
compliance and management documents that are required by AIARMA. This 
subpart also discusses how carrying capacity and stocking rates are 
established.
    Subpart D, ``Grazing Permit Requirements,'' describes the general 
requirements for obtaining a permit, the provisions contained in a 
grazing permit, the restrictions placed on permits, and other permit 
requirements.
    Subpart E, ``Reissuance of Grazing Permits,'' sets forth 
eligibility and priority criteria for reissuance of cancelled grazing 
permits. This subpart makes clear that the Navajo Nation may prescribe 
eligibility requirement for grazing allocations within 180 days 
following the effective date of these regulations. BIA will prescribe 
the eligibility requirements after expiration of the 180-day period in 
the event that the Navajo Nation does not prescribe eligibility 
requirements, or in the event that satisfactory action is not taken by 
the Navajo Nation. This subpart also describes how new permits may be 
granted after the initial reissuance of permits, and sets forth the 
procedures

[[Page 64025]]

for re-issuing permits and allocating permits within each range unit.
    Subpart F, ``Modifying A Permit,'' describes how permits may be 
transferred, assigned or modified.
    Subpart G, ``Permit Violations,'' sets forth the procedures for the 
investigation, notification and processing of permit violations. This 
section also describes the process by which mediation can be used in 
the event of a permit violation.
    Subpart H, ``Trespass,'' describes the process for trespass 
notification, enforcement, actions and penalties, damages and costs. 
This subpart is substantially similar to the general grazing 
regulations, 25 CFR, part 166, subpart I, and is consistent with 
AIARMA.
    Subpart I, ``Concurrence/Appeals/Amendments,'' sets forth the 
procedures for the Navajo Nation to provide concurrence to BIA under 
this part. This subpart also states that decisions made by BIA under 
this part may be appealed, and that decisions made by the Navajo Nation 
under this part may be appealed to the appropriate hearing body of the 
Navajo Nation.

Procedural Requirements

A. Regulatory Planning and Review (Executive Order 12866)

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Office of Management and Budget (OMB) 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 in the 
Executive Order.
    This proposed rule describes how BIA will administer grazing 
permits on trust land. Thus, the impact of the rule is confined to the 
Federal Government and individual Indian and the Navajo Nation, 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'' under any of the preceding criteria.

B. Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., as 
amended, whenever an agency is required to publish a notice of rule 
making for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (e.g., small 
businesses, small organizations, and small government jurisdictions). 
Indian tribes are not considered to be small entities for purposes of 
the Act and, consequently, no regulatory flexibility analysis has been 
done.
    This proposed implementation guidance does not have significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or the ability of U.S. based enterprises to compete with 
foreign-based enterprises because it concerns only the Navajo Nation. 
Accordingly, this proposed regulation will not have an economic impact 
on a substantial number of small entities, and, therefore, no 
regulatory flexibility analysis has been prepared.

C. Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996

    Under 5 U.S.C. 804(2), SBREFA, a rule is major if OMB finds that it 
results in (1) An annual effect on the economy of $100 million or more; 
(2) A major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; or (3) Significant adverse effects on competition, employment, 
investment, productivity, innovation, or the ability of U.S.-based 
enterprises to compete with foreign-based enterprises.
    This proposed rule is not a major rule as defined by Section 804 of 
the SBREFA. This rule is uniquely confined to the Federal Government, 
individual Indians and the Navajo Nation, thus, it will not result in 
the expenditure by State, local and tribal governments, in the 
aggregate, or by the private sector, of $100 million or more in any one 
year. This proposed rule provides regulatory guidance for grazing 
permits on trust lands owned by individual Indians and the Navajo 
Nation.

D. Unfunded Mandates Reform Act

    The proposed implementation guidance would not impose unfunded 
mandates as defined by the Unfunded Mandates Reform Act of 1995 (Public 
Law 104-4, March 22, 1995, 109 Stat. 48). This proposed rule will not 
result in the expenditure by State, local and tribal governments, in 
the aggregate, or by the private sector, of $100 million or more in any 
one year (2 U.S.C. 1532). The impact of this proposed rule is confined 
to grazing permits on land held in trust for the Navajo Nation. 
Accordingly, this proposed rule will not result in the expenditure of 
$100 million or more in any one year.

E. Takings Implication Assessment (Executive Order 12630)

    This proposed implementation guidance does not have significant 
``takings'' implications. Policies that have taking implications do not 
include actions affecting properties that are held in trust by the 
United States. The NPL grazing regulations provide specific regulatory 
guidance on trust lands.

F. Energy Effects (Executive Order 13211)

    On May 18, 2001, the President issued Executive Order 13211 which 
speaks to regulations that significantly affect energy supply, 
distribution, and use. The Executive Order requires agencies to prepare 
Statements of Energy Effects when undertaking certain actions. This 
proposed rule is restricted to 25 CFR 161, Navajo Partitioned Lands 
Grazing Permits on lands held in trust for individual Indians and 
tribes. Mineral development on lands held in trust for individual 
Indians and the Navajo Nation are regulated under the Indian Mineral 
Development Act. Regulations for mineral development are provided under 
a separate part in 25 CFR 211, 212 and 225. This proposed 
implementation guidance is not expected to significantly affect energy 
supplies, distribution, or use. Therefore, no Statement of Energy 
Effects has been prepared.

G. Federalism (Executive Order 12612)

    This proposed implementation guidance does not have significant 
Federalism effects because it pertains solely to Federal-tribal 
relations and will not interfere with the roles, rights, and 
responsibilities of States. 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

[[Page 64026]]

determined that this rule will not have sufficient federalism 
implications to warrant the preparation of a federalism assessment.

H. Civil Justice Reform (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 
effective 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 executives agencies make every reasonable effort to 
insure that the regulations: (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 affecting 
conduct while promoting simplification and burden reduction; (4) 
specifies the retroactive affect if any; (5) adequately defines key 
terms; and (6) addresses other important issues affecting clarity and 
general draftsmanship under any guidelines issued by the Attorney 
General. Section 3(c) of Executive Order 12988 requires executive 
agencies to review regulations in light of the applicable standards in 
section 3(a) and section 3(b) to determine whether they are met or it 
is unreasonable to meet on or more of them. This proposed 
implementation guidance does not unduly burden the judicial system and 
meets the applicable standards provided in sections 3(a) and 3(b)(2) of 
the Executive Order 12988.

I. National Environmental Policy Act (NEPA)

    This proposed rule is categorically excluded from the preparation 
of an environmental assessment or an environmental impact statement 
under the National Environmental Policy Act of 1969, 42 U.S.C. 4321, et 
seq., because its environmental effects are too broad, speculative, or 
conjectural to lend themselves to meaningful analysis and the Federal 
actions under the proposed rule (i.e., approval or disapproval of 
grazing permits on Indian lands) will be subject at the time of the 
action itself to the National Environmental Policy Act process, either 
collectively or case-by-case. Further, no extraordinary circumstances 
exist to require preparation of an environmental assessment or 
environmental impact statement.

J. Consultation and Coordination With Indian Tribal Governments 
(Executive Order 13175)

    Pursuant to Executive Order 13175 of November 6, 2000, Consultation 
and Coordination with Indian Tribal Governments, the Department has 
determined that because the proposed rule making will uniquely affect 
tribal governments it will follow Department and Administrative 
protocols in consulting with tribal governments on the rulemaking. 
Consequently, tribal governments will be notified through this Federal 
Register document and through BIA field offices, of the ramifications 
of this rulemaking. This will enable tribal officials and the affected 
tribal constituency throughout the Navajo Partitioned Lands to have 
meaningful and timely input in the development of the final rule. This 
will reinforce good intergovernmental relations with the Navajo Nation 
and better inform, educate and advise the Navajo Nation on compliance 
requirements of the rulemaking. We consulted with representatives of 
the Navajo Nation during the formulation of this proposed regulation. 
Representatives from the Navajo-Hopi Land Commission and Navajo Nation 
Natural Resource Committee met in consultation several times from 
November 2002 to June of 2003 to draft the proposed regulations. The 
comments received from these consultations were taken into 
consideration in the formulation of the following proposed NPL Grazing 
regulations. We have committed to consulting with the Navajo Nation in 
the formulation of a final rule for the Navajo Partitioned Lands 
Grazing regulations.

K. Paperwork Reduction Act

    This regulation requires an information collection from 10 or more 
parties, and therefore is subject to review under the Paperwork 
Reduction Act of 1995 (Pub. L. 104-13).
    The table showing the burden of the information collection is 
included below for your information.

                                                             Table of Burden for 25 CFR 161
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                                                                                                       Salary:                                 Salary:
                                                                                                       $5.00 x                                 $18.52 x
                                                                              Hourly       Total        total       Federal        Total        total
                                                  Number of    Number of    burden per     annual       hourly     burden per     Federal       hourly
                  CFR Section                    respondents     annual      response      hourly      burden =     response      annual       burden =
                                                               responses     (hours)       burden       total       (hours)    burden hours     total
                                                                                                        hourly                                 Federal
                                                                                                     burden cost                             burden cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
161.102........................................          700          700  ...........  ...........  ...........        \1/2\       350           $6,482
161.206........................................          700          700        \1/2\       350          $1,750        \1/4\       175            3,241
161.301........................................          700          700  ...........  ...........  ...........        \1/4\       175            3,241
161.302........................................          700          700        \1/3\       233           1,165        \1/4\       175            3,241
161.304........................................          700          700  ...........  ...........  ...........        \1/4\       175            3,241
161.402........................................          700          700        \1/3\       233           1,165            1       700           12,964
161.500........................................           70           70        \1/3\        23             115            1        70            1,296
161.502........................................           70           70  ...........  ...........  ...........        \1/4\        17.5            324
161.604........................................           35           35        \1/2\        17.5            87            1        35              648
161.606........................................           35           35        \1/2\        17.5            87            1        35              648
161.703........................................           35           35        \1/2\        17.5            87            1        35              648
161.704........................................           35           35        \1/2\        17.5            88            1        35              648
161.708........................................           10           10        \1/2\         5              25            1        10              185
161.717........................................           10           10            1        10              50            2        20              370
161.800........................................          700          700        \1/4\       175             875        \1/4\       212.5          3,936
161.801........................................           85           85        \1/2\        42.5           213            1        85            1,575
161.802........................................           85           85            1        85             425        \1/2\        42.5            787
================================================

[[Page 64027]]

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    DOI invites comments on the information collection requirements in 
the proposed regulation. You may submit comments by telefacsimile at 
(202) 395-6566 or by e-mail at [email protected]. Please also 
send a copy of your comments to BIA at the location specified under the 
heading ADDRESSES. Note that requests for comments on the rule and the 
information collection are separate.
    You can receive a copy of BIA's submission to OMB by contacting the 
person listed in the FOR FURTHER INFORMATION CONTACT section, or by 
requesting the information from BIA Information Collection Clearance 
Officer, 1951 Constitution Avenue, NW., Mail Stop 52 SIB, Washington, 
DC 20240.
    Comments should address: (1) Whether the proposed collection of 
information is necessary for the proper performance of the Program, 
including the practical utility of the information to BIA; (2) the 
accuracy of 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.
    Please note that an agency may not sponsor or request, and an 
individual need not respond to, a collection of information unless it 
has a valid OMB Control Number. This is a new collection. OMB will 
assign an OMB Control Number when the collection is approved. OMB must 
make a decision concerning the collection of information requirements 
in this proposed rule no sooner than 30 days, and no later than 60 
days, after it is published in the Federal Register. Therefore, a 
comment is best assured of having its maximum effect if OMB receives it 
within 30 days of publication. Comments on information collection 
requirements do not relate, however, to the deadline for general public 
comments on the proposed rule, indicated in the DATES section.
    We are collecting this information in order to properly manage the 
grazing permits on the Navajo Partitioned Lands in keeping with good 
grazing practices. We estimate that the hourly public burden for 
providing the information ranges from 15 minutes to 1 hour. We estimate 
the cost to the public to be $6,132.00 based on an hourly cost of 
$5.00. The requested information is submitted in order to obtain or 
retain a benefit, i.e., a grazing permit. We do not require the public 
to maintain records except temporarily for those needed to complete 
reports. There is no need for confidentiality protections other than 
those which would be covered by FOIA/Privacy Act.
    Organizations and individuals who submit comments on the 
information collection requirements should be aware that BIA keeps such 
comments available for public inspection during regular business hours. 
If you wish to have your name and address withheld from public 
inspection, you must state this prominently at the beginning of any 
comments you make. BIA will honor your request to the extent allowable 
by law.
Clarity of This Regulation
    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand, including answers to questions such as 
the following:
    (1) Are the requirements in the rule clearly stated?
    (2) Does the rule contain technical language or jargon that 
interferes with its clarity?
    (3) Does the format of the rule (grouping and order of sections, 
use of headings, paragraphing, etc.) aid or reduce its clarity?
    (4) Would the rule be easier to understand if it were divided into 
more (but shorter) sections? (A ``section'' appears in bold type and is 
preceded by the symbol ``Sec.  '' and a numbered heading; for example, 
Sec.  161.1 What definitions do I need to know?)
    (5) Is the description of the rule in the SUPPLEMENTARY INFORMATION 
section of the preamble helpful in understanding the proposed rule?
    (6) What else could we do to make the rule easier to understand?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to: Office of Regulatory Affairs, Department 
of the Interior, Room 7229, 1849 C Street NW., Washington, DC 20240. 
You may also e-mail the comments to this address: [email protected].
Public Comment Solicitation
    If you wish to comment on this proposed rule, you may mail or hand-
deliver your written comments to the person listed in the ADDRESSES 
section of this document. Comments may also be telefaxed to the 
following number: (202) 219-0006. We cannot accept electronic 
submissions at this time. All written comments received by the date 
indicated in the DATES section of this document will be carefully 
assessed and fully considered before publication of a final rule.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address from the rulemaking record. We will honor the 
request to the extent allowable by law. There also may be circumstances 
in which we would withhold from the rulemaking record a respondent's 
identity, as allowable by law. If you wish us to withhold your name 
and/or address, you must state this prominently at the beginning of 
your comment. However, we will not consider anonymous comments. We will 
make all submissions from organizations or businesses, and from 
individuals identifying themselves as representatives or officials of 
organizations or businesses, available for public inspection in their 
entirety.

List of Subjects in 25 CFR Part 161

    Grazing lands, Indians-lands, Livestock.

    Dated: November 6, 2003.
Aurene M. Martin,
Principal Deputy Assistant Secretary--Indian Affairs.
    For the reasons stated in the preamble, the Bureau of Indian 
Affairs proposes to add part 161 to chapter I of

[[Page 64028]]

title 25 of the Code of Federal Regulations as follows.

PART 161--NAVAJO PARTITIONED LANDS GRAZING PERMITS

Subpart A--Definitions, Authority, Purpose and Scope
Sec.
161.1 What definitions do I need to know?
161.2 What are the Secretary's authorities under this part?
161.3 What is the purpose of this part?
161.4 To what lands does this part apply
161.5 Can BIA waive the application of this part?
161.6 Are there any other restrictions on information given to BIA?
Subpart B--Tribal Policies and Laws Pertaining to Permits
161.100 Do tribal laws apply to grazing permits?
161.101 How will tribal laws be enforced on the Navajo Partitioned 
Lands?
161.102 What notifications are required that tribal laws apply to 
grazing permits on the Navajo Partitioned Lands?
Subpart C--General Provisions
161.200 Is an Indian agricultural resource management plan required?
161.201 Is environmental compliance required?
161.202 How are range units established?
161.203 Are range management plans required?
161.204 How are carrying capacities and stocking rates established?
161.205 How are range improvements treated?
161.206 What must a permittee do to protect livestock from exposure 
to disease?
161.207 What livestock are authorized to graze?
Subpart D--Permit Requirements
161.300 When is a permit needed to authorize grazing use?
161.301 What will a grazing permit contain?
161.302 What restrictions are placed on grazing permits?
161.303 How long is a permit valid?
161.304 Must a permit be recorded?
161.305 When is a decision by BIA regarding a permit effective?
161.306 When are permits effective?
161.307 When may a permittee commence grazing on Navajo Partitioned 
Land?
161.308 Must permittee comply with standards of conduct if granted a 
permit?
Subpart E--Reissuance of Grazing Permits
161.400 What are the criteria for reissuing grazing permits?
161.401 Will new permits be granted after the initial reissuance of 
permits?
161.402 What are the procedures for reissuing permits?
161.403 How are grazing permits allocated within each range unit?
Subpart F--Modifying a Permit
161.500 May permits be transferred, assigned or modified?
161.501 When will a permit modification be effective?
161.502 Will a special land use require permit modification?
Subpart G--Permit Violations
161.600 What permit violations are addressed by this subpart?
161.601 How will BIA monitor permit compliance?
161.602 Will my permit be canceled for non-use?
161.603 Can a permit provide for mediation in the event of a permit 
violation or dispute?
161.604 What happens if a permit violation occurs?
161.605 What will a written notice of a permit violation contain?
161.606 What will BIA do if the permitee doesn't cure a violation on 
time?
161.607 What appeal bond provisions apply to permit cancellation 
decisions?
161.608 When will a permit cancellation be effective?
161.609 Can BIA take emergency action if the rangeland is 
threatened?
161.610 What will BIA do if livestock is not removed when a permit 
expires or is cancelled?
Subpart H--Trespass
161.700 What is trespass?
161.701 What is BIA's trespass policy?
161.702 Who will enforce this subpart?

Notification

161.703 How are trespassers notified of a trespass determination?
161.704 What can a permittee do if they receive a trespass notice?
161.705 How long will a written trespass notice remain in effect?

Actions

161.706 What actions does BIA take against trespassers?
161.707 When will BIA impound unauthorized livestock or other 
property?
161.708 How are trespassers notified of impoundments?
161.709 What happens after unauthorized livestock or other property 
are impounded?
161.710 How can impounded livestock or other property be redeemed?
161.711 How will BIA sell impounded livestock or other property?

Penalties, Damages, and Costs

161.712 What are the penalties, damages, and costs payable by 
trespassers?
161.713 How will BIA determine the amount of damages to Navajo 
Partitioned Lands?
161.714 How will BIA determine the costs associated with enforcement 
of the trespass?
161.715 What will BIA do if a trespasser fails to pay penalties, 
damages and costs?
161.716 How are the proceeds from trespass distributed?
161.717 What happens if BIA does not collect enough money to satisfy 
the penalty?
Subpart I--Concurrence/Appeals/Amendments
161.800 How does the Navajo Nation to provide concurrence to BIA?
161.801 May decisions under this part be appealed?
161.802 How will the Navajo Nation recommend amendments to this 
part?

    Authority: 25 U.S.C. 2; 5 U.S.C. 301; 25 U.S.C. 640d et seq.

Subpart A--Definitions, Authority, Purpose, and Scope


Sec.  161.1  What definitions do I need to know?

    Agricultural Act means the American Indians Agricultural Resource 
Management Act (AIARMA) of December 3, 1993 (107 Stat. 2011, 25 U.S.C. 
Sec.  3701 et seq.), and amended on November 2, 1994 (108 Stat. 4572).
    Agricultural resource management plan means a 10-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 BIA and Indian tribal 
governments.
    Allocation means the number of animal units authorized in each 
grazing permit.
    Animal Unit (AU) means one adult cow and her 6-month-old calf or 
the equivalent thereof based on comparable forage consumption. Thus as 
defined in the following:
    (1) One adult sheep or goat is equivalent to one-fifth (0.20) of an 
AU;
    (2) One adult horse, mule, or burro is equivalent to one and one 
quarter (1.25) AU; or
    (3) One adult llama is equivalent to three-fifths (0.60) of an AU.
    Appeal means a written request for review of an action or the 
inaction of an official of the Bureau of Indian Affairs that is claimed 
to adversely affect the interested party making the request.
    Appeal Bond means a bond posted upon filing of an appeal that 
provides a security or guaranty if an appeal creates a delay in 
implementing our decision that could cause a significant and measurable 
financial loss to another party.
    BIA means the Bureau of Indian Affairs within the Department of the 
Interior.
    Bond means security for the performance of certain permit 
obligations, as furnished by the permittee, or a guaranty of such 
performance as furnished by a third-party surety.

[[Page 64029]]

    Business day means Monday through Friday, excluding federally or 
tribally recognized holidays.
    Carrying capacity means the number of livestock and/or wildlife, 
which may be sustained on a management unit compatible with management 
objectives for the unit.
    Concurrence means the written agreement of the Navajo Nation with a 
policy, action, decision or finding submitted for consideration by BIA.
    Conservation practice refers to any management measure taken to 
maintain or improve the condition, productivity, sustainability, or 
usability of targeted resources.
    Customary Use Area refers to an area to which an individual 
traditionally confined his or her traditional grazing use and occupancy 
and/or an area traditionally inhabited by his or her ancestors.
    Day means a calendar day, unless otherwise specified.
    Enumeration means the list of persons living on and identified 
improvements located within the Former Joint Use Area obtained through 
interviews conducted by BIA in 1974 and 1975.
    Former Joint Use Area means the area that was divided between the 
Navajo Nation and the Hopi Tribe by the Judgment of Partition issued 
April 18, 1979, by the United States District Court for the District of 
Arizona. This area was established by the United States District Court 
for the District of Arizona in Healing v. Jones, 210 F. Supp. 125 
(1962), aff'd. 373 U.S. 758 (1963) and is located:
    (1) Inside the Executive Order area (Executive Order of December 
16, 1882); and
    (2) Outside Land Management District 6.
    Grazing Committee means the District Grazing Committee established 
by the Navajo Nation Council, who is responsible for enforcing and 
implementing tribal grazing regulations on the Navajo Partitioned 
Lands.
    Grazing Permit means a revocable privilege granted in writing and 
limited to entering on and utilizing forage by domestic livestock on a 
specified range unit. The term as used herein shall include 
authorizations issued to enable the crossing or trailing of domestic 
livestock within assign range unit.
    Historical Land Use: see Customary Use Area.
    Improvement means any structure or excavation to facilitate 
management of the range for livestock.
    Livestock means horses, cattle, sheep, goats, mules, burros, 
donkeys, and llamas.
    Management Unit is a subdivision of a geographic area where unique 
resource conditions, goals, concerns, or opportunities require specific 
and separate management planning.
    Navajo Nation means all offices/entities/programs under the direct 
jurisdiction of the Navajo Nation Government.
    Navajo Partitioned Lands (NPL) means that portion of the Former 
Joint Use Area awarded to the Navajo Nation under the Judgment of 
Partition issued April 18, 1979, by the United States District Court 
for the District of Arizona, and now a separate administrative entity 
within the Navajo Indian Reservation.
    Non-Concurrence means the official written denial of approval by 
the Navajo Nation of a policy, action, decision, or finding submitted 
for consideration by BIA.
    Range management plan is a statement of management objectives for 
grazing, farming, or other agriculture management including contract 
stipulations defining required uses, operations, and improvements.
    Range Unit means a tract of land designated as a separate 
management subdivision for the administration of grazing.
    Resident means a person who lives on the Navajo Partitioned Lands.
    Resources Committee means the oversight committee for the Division 
of Natural Resources within the Navajo Nation Government. The Resources 
Committee of the Navajo Nation Council to whom authority is delegated 
to exercise the powers of the Navajo Nation with regards to the range 
development and grazing management of the Navajo Partitioned Lands.
    Secretary means the Secretary of the Interior or his or her 
designated representative.
    Settlement Act means the Navajo Hopi Settlement Act of December 22, 
1974 (88 Stat. 1712, 25 U.S.C. Sec.  64d et seq., as amended).
    Sheep Unit means an adult ewe with un-weaned lamb. It is also the 
basic unit in which forage allocations are expressed.
    Sheep Unit Year Long refers to the amount of forage needed to 
sustain one sheep unit for one year.
    Special land use means all land usage for purposes other than for 
grazing withdrawn in accordance with Navajo Nation laws, Federal laws, 
and BIA policies and procedures, such as but not limited to: Housing 
permits, farm leases, governmental facilities, rights-of-way, schools, 
parks, business leases, etc.
    Special management area means an area for which a single management 
plan is developed and applied in response to special management 
objectives such as watershed management, fire hazard areas, or other 
similar concerns.
    Stocking rate means the maximum number of sheep units, or animal 
units authorized to graze on a particular pasture, management unit, or 
range unit during a specified period of time.
    Trespass means any unauthorized occupancy, grazing, use of, or 
action on the Navajo Partitioned Lands.


Sec.  161.2  What are the Secretary's authorities under this part?

    (a) Under Section 640d-9(e) of the Settlement Act, lands 
partitioned under the Settlement Act are subject to the jurisdiction of 
the tribe to whom partitioned. The laws of the tribe apply to the 
partitioned lands as in paragraphs (a)(1) and (a)(2) of this section.
    (1) Effective October 6, 1980:
    (i) All conservation practices on the Navajo Partitioned Lands, 
including control and range restoration activities, must be coordinated 
and executed with the concurrence of the Navajo Nation; and
    (ii) All grazing and range restoration matters on the Navajo 
Reservation lands must be administered by BIA, under applicable laws 
and regulations.
    (2) Effective April 18, 1981, the Navajo Nation has jurisdiction 
and authority over any lands partitioned to it and over all persons on 
these lands. This jurisdiction and authority apply:
    (i) To the same extent as is applicable to those other portions of 
the Navajo reservation; and
    (ii) Notwithstanding any provision of law to the contrary, except 
where there is a conflict with the laws and regulations referred to in 
paragraph (a) of this section.
    (b) Under the Agricultural Act, the Secretary is authorized to:
    (1) Carry out the trust responsibility of the United States and 
promote Indian tribal self-determination by providing for management of 
Indian agricultural lands and renewable resources consistent with 
tribal goals and priorities for conservation, multiple use, and 
sustained yield;
    (2) Take part in managing Indian agricultural lands, with the 
participation of the land's beneficial owners, in a manner consistent 
with the Secretary's trust responsibility and with the objectives of 
the beneficial owners;
    (3) Provide for the development and management of Indian 
agricultural lands; and
    (4) Improving the expertise and technical abilities of Indian 
tribes and their members by increasing the

[[Page 64030]]

educational and training opportunities available to Indian people and 
communities in the practical, technical, and professional aspects of 
agricultural and land management.


Sec.  161.3  What is the purpose of this part?

    The purpose of this part is to describe the goals and objectives of 
grazing management on the Navajo Partitioned Lands:
    (a) Provide resources to rehabilitate range resources in the 
preservation of forage, soil, and water on the Navajo Partitioned 
Lands;
    (b) Monitor the recovery of those resources where they have 
deteriorated;
    (c) Protect, conserve, utilize, and maintain the highest productive 
potential on the Navajo Partitioned Lands through the application of 
sound conservation practices and techniques. These practices and 
techniques will be applied to planning, development, inventorying, 
classification, and management of agricultural resources;
    (d) Increase production and expand the diversity and availability 
of agricultural products for subsistence, income, and employment of 
Indians, through the development of agricultural resources on the 
Navajo Partitioned Lands;
    (e) Manage agricultural resources consistent with integrated 
resource management plans in order to protect and maintain other values 
such as wildlife, fisheries, cultural resources, recreation and to 
regulate water runoff and minimize soil erosion;
    (f) Enable the Navajo Nation to maximize the potential benefits 
available to its members from their lands by providing technical 
assistance, training, and education in conservation practices, 
management and economics of agribusiness, sources and use of credit and 
marketing of agricultural products, and other applicable subject areas;
    (g) Develop the Navajo Partitioned Lands to promote self-sustaining 
communities; and
    (h) Assist the Navajo Nation with permitting the Navajo Partitioned 
Lands, consistent with prudent management and conservation practices, 
and community goals as expressed in the tribal management plans and 
appropriate tribal ordinances.


Sec.  161.4  To what lands does this part apply?

    The grazing regulations in this part apply to the Navajo 
Partitioned Lands within the boundaries of the Navajo Indian 
Reservation held in trust by the United States for the Navajo Nation. 
Contiguous areas outside of the Navajo Partitioned Lands may be 
included under this part, for management purposes by BIA in 
consultation with the affected permittees and other affected land 
users, and with the concurrence of the Resources Committee.


Sec.  161.5  Can BIA waive the application of this part?

    Yes, if a provision of this part conflicts with the objectives of 
the agricultural resource management plan provided for in Sec.  
161.200, or with a tribal law, BIA may waive the application of this 
part unless the waiver would either:
    (a) Constitute a violation of a federal statute or judicial 
decision; or
    (b) Conflict with BIA's general trust responsibility under federal 
law.


Sec.  161.6  Are there any other restrictions on information given to 
BIA?

    Information that the BIA collects in connection with permits for 
NPL in sections 161.102, 161.206, 161.301, 161.302, 161.304, 161.402, 
161.500, 161.502, 161.604, 161.606, 161.703, 161.704, 161.708, 161.717, 
161.800, 161.801, and 161.802 have been reviewed and approved by the 
Office of Management and Budget. The OMB Control Number assigned is 
1076-01XX. Please note that a federal agency may not conduct or 
sponsor, and you are not required to respond to a collection of 
information unless it displays a currently valid OMB control number.

Subpart B--Tribal Policies and Laws Pertaining to Permits


Sec.  161.100  Do tribal laws apply to grazing permits?

    Navajo Nation laws generally apply to land under the jurisdiction 
of the Navajo Nation, except to the extent that those Navajo Nation 
laws are inconsistent with this part or other applicable federal law. 
This part may be superseded or modified by Navajo Nation laws with 
Secretarial approval, however, so long as:
    (a) The Navajo Nation laws are consistent with the enacting Navajo 
Nation's governing documents;
    (b) The Navajo Nation has notified BIA of the superseding or 
modifying effect of the Navajo Nation laws;
    (c) The superseding or modifying of the regulation would not 
violate a federal statute or judicial decision, or conflict with the 
Secretary's general trust responsibility under federal law; and
    (d) The superseding or modifying of the regulation applies only to 
Navajo Partitioned Lands.


Sec.  161.101  How will tribal laws be enforced on the Navajo 
Partitioned Lands?

    (a) Unless prohibited by federal law, BIA will recognize and comply 
with tribal laws regulating activities on the Navajo Partitioned Lands, 
including tribal laws relating to land use, environmental protection, 
and historic or cultural preservation.
    (b) While the Navajo Nation is primarily responsible for enforcing 
tribal laws pertaining to the Navajo Partitioned Lands, BIA will:
    (1) Assist in the enforcement of Navajo Nation laws;
    (2) Provide notice of Navajo Nation laws to persons or entities 
undertaking activities on the Navajo Partitioned Lands; and
    (3) Require appropriate federal officials to appear in tribal 
forums when requested by the tribe, so long as the appearance would 
not:
    (i) Be consistent with the restrictions on employee testimony set 
forth at 43 CFR part 2, subpart E;
    (ii) Constitute a waiver of the sovereign immunity of the United 
States; or
    (iii) Authorize or result in a review of (BIA) actions by the 
tribal court.
    (c) Where the provisions in this subpart are inconsistent with a 
Navajo Nation law, but the provisions cannot be superseded or modified 
by the Navajo Nation laws under Sec.  161.5, BIA may waive the 
provisions under part 1 of this title, so long as the new waiver does 
not violate a federal statute or judicial decision or conflict with the 
Secretary's trust responsibility under federal law.


Sec.  161.102  What notifications are required that tribal laws apply 
to grazing permits on the Navajo Partitioned Lands?

    (a) The Navajo Nation must provide BIA with an official copy of any 
tribal law or tribal policy that relates to this part. The Navajo 
Nation must notify BIA of the content and effective dates of tribal 
laws.
    (b) BIA will then notify affected permittees of the effect of the 
Navajo Nation law on their grazing permits. BIA will:
    (1) Provide individual written notice; or
    (2) Post public notice. This notice will be posted at the tribal 
community building, U.S. Post Office, announced on local radio station, 
and/or published in the local newspaper nearest to the permitted Navajo 
Partitioned Lands where activities are occurring.

[[Page 64031]]

Subpart C--General Provisions


Sec.  161.200  Is an Indian agricultural resource management plan 
required?

    (a) Yes, Navajo Partitioned Lands must be managed in accordance 
with the goals and objectives in the agricultural resource management 
plan developed by the Navajo Nation, or by BIA in close consultation 
with the Navajo Nation, under the Agricultural Act.
    (b) The 10-year agricultural resource management and monitoring 
plan must be developed through public meetings and completed within 3 
years of the initiation of the planning activity. The plan must be 
based on the public meeting records and existing survey documents, 
reports, and other research from Federal agencies, tribal community 
colleges, and land grant universities. When completed, the plan must:
    (1) Determine available agricultural resources;
    (2) Identify specific tribal agricultural resource goals and 
objectives;
    (3) Establish management objectives for the resources;
    (4) Define critical values of the tribe and its members and provide 
identified resource management objectives; and
    (5) Identify actions to be taken to reach established objectives.
    (c) Where the provisions in this subpart are inconsistent with the 
Navajo Nation's agricultural resource management plan, the Secretary 
may waive the provisions under part 1 of this title, so long as the 
waiver does not violate a federal statute or judicial decision or 
conflict with the Secretary's trust responsibility under federal law.


Sec.  161.201  Is environmental compliance required?

    Actions taken by BIA under this part must comply with the National 
Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., applicable 
provisions of the Council on Environmental Quality, 40 CFR part 1500, 
and applicable tribal laws and provisions of the Navajo Nation 
Environmental Policy Act CAP-47-95, where the tribal laws and 
provisions do not violate a federal or judicial decision or conflict 
with the Secretary's trust responsibility under federal law.


Sec.  161.202  How are range units established?

    (a) BIA, with the concurrence of the Navajo Nation, will establish 
range units on the Navajo Partitioned Lands to provide unified areas 
for which range management plans can be developed to improve and 
maintain soil and forage resources. Physical land features, watersheds, 
drainage patterns, vegetation, soil, resident concentration, problem 
areas, historical land use patterns, chapter boundaries, special land 
uses and comprehensive land use planning will be considered in the 
determination of range unit boundaries.
    (b) BIA may modify range unit boundaries with the concurrence of 
the Navajo Nation. This may include small and/or isolated portions of 
Navajo Partitioned Lands contiguous to Navajo tribal lands in order to 
develop more efficient land management.


Sec.  161.203  Are range management plans required?

    Range management plans are required. BIA will:
    (a) Consult with the Navajo Nation in planning conservation 
practices, including grazing control and range restoration activities 
for the Navajo Partitioned Lands.
    (b) Develop range management plans with the concurrence of the 
Navajo Nation.
    (c) Approve the range management plan, after concurrence with the 
Navajo Nation, and the implementation of the plan may begin 
immediately. The plan will address, but is not limited to, the 
following issues:
    (1) Goals for improving vegetative productivity and diversity;
    (2) Stocking rates;
    (3) Grazing schedules;
    (4) Wildlife management;
    (5) Needs assessment for range and livestock improvements;
    (6) Schedule for operation and maintenance of existing range 
improvements and development for cooperative funded projects;
    (7) Cooperation in the implementation of range studies;
    (8) Control of livestock diseases and parasites;
    (9) Fencing or other structures necessary to implement any of the 
other provisions in the range management plan;
    (10) Special land uses; and
    (11) Water development and management.


Sec.  161.204  How are carrying capacities and stocking rates 
established?

    (a) BIA, with the concurrence of the Navajo Nation, will prescribe, 
review and adjust the carrying capacity of each range unit by 
determining the number of livestock, and/or wildlife, that can be 
grazed on the Navajo Partitioned Lands without inducing damage to 
vegetation or related resources on each range unit and the season or 
seasons of use to achieve the objectives of the agricultural resource 
management plan and range unit management plan.
    (b) BIA, with the concurrence of the Navajo Nation, will establish 
the stocking rate of each range or management unit. The stocking rate 
will be based on forage production, range utilization, the application 
of land management practices, and range improvements in place to 
achieve uniformity of grazing under sustained yield management 
principles on each range or management unit.
    (c) BIA will review the carrying capacity of the grazing units on a 
continuing basis and, in consultation with the Grazing Committee and 
affected permittees, adjust the stocking rate for each range or 
management unit as conditions warrant.
    (d) Any adjustments in stocking rates will be applied equally to 
each permittee within the management unit requiring adjustment.


Sec.  161.205  How are range improvements treated?

    (a) Improvements placed on the Navajo Partitioned Lands will be 
considered affixed to the land unless specifically exempted in the 
permit. No improvement may be constructed or removed from Navajo 
Partitioned Lands without the written consent of BIA and the Navajo 
Nation.
    (b) Before undertaking an improvement, BIA, Navajo Nation and 
permittee will negotiate who will complete and maintain improvements. 
The improvement agreement will be reflected in the permit.


Sec.  161.206  What must a permittee do to protect livestock from 
exposure to disease?

    In accordance with applicable law, permittees must:
    (a) Vaccinate livestock;
    (b) Treat all livestock exposed to or infected with contagious or 
infectious diseases; and
    (c) Restrict the movement of exposed or infected livestock.


Sec.  161. 207  What livestock are authorized to graze?

    The following livestock are authorized to graze on the Navajo 
Partitioned Lands: horses, cattle, sheep, goats, mules, burros, 
donkeys, and llamas.

Subpart D--Permit Requirements


Sec.  161.300  When is a permit needed to authorize grazing use?

    Unless otherwise provided for in this part, any person or legal 
entity, including an independent legal entity owned and operated by the 
Navajo Nation, must obtain a permit under this part before using Navajo 
Partitioned Land for grazing purposes.

[[Page 64032]]

Sec.  161.301  What will a grazing permit contain?

    (a) All grazing permits will contain the following provisions:
    (1) Name of permit holder;
    (2) Range management plan requirements;
    (3) Applicable stocking rate;
    (4) Range unit number and description of the permitted area;
    (5) Animal identification requirements (i.e. brand, microchip, 
freeze brand, earmark, tattoo, etc.);
    (6) Term of permit (including beginning and ending dates of the 
term allowed, as well as an option to renew, or extend);
    (7) A provision stating that the permittee agrees that he or she 
will not use, cause, or allow to be used any part of the permitted area 
for any unlawful conduct or purpose;
    (8) A provision stating that the permit authorizes no other 
privilege than grazing use;
    (9) A provision stating that no person is allowed to hold a grazing 
permit in more than one range unit of the Navajo Partitioned Lands, 
unless the customary use area extends beyond the range unit boundary;
    (10) A provision reserving a right of entry by BIA and the Navajo 
Nation for range survey, inventory and inspection or compliance 
purposes;
    (11) A provision prohibiting the creation of a nuisance, any 
illegal activity, and negligent use or waste of resources;
    (12) A provision stating how trespass proceeds are to be 
distributed;
    (13) A provision stating whether mediation will be used in the 
event of a permit violation;
    (14) A provision stating that the permittee holds harmless the 
United States and the Navajo Nation 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 permitted premises that 
occur during the permit term, regardless of fault; and
    (15) A provision stating that the permit cannot be subdivided once 
it has been issued.
    (b) Grazing permits will contain any other provision that in the 
discretion of BIA with the concurrence of the Navajo Nation is 
necessary to protect the land and/or resources, may be added to the 
permit.
    (c) Grazing permits will contain any special land use authorized 
under Sec.  161.503 of this part must be included on the permit.


Sec.  161.302  What restrictions are placed on grazing permits?

    Only a grazing permit issued under this part authorizes the grazing 
of livestock within the Navajo Partitioned Lands. Grazing permits are 
subject to the following restrictions:
    (a) Grazing permits should not be issued for less than 2 animal 
units (10 sheep units) or exceed 70 animal units (350 sheep units). 
However, all grazing permits issued before the adoption of this 
regulation will be honored and reissued if the permittee meets the 
eligibility and priority criteria found in Sec.  400 of this part, and 
only if the carrying capacity and stocking rate as determined under 
Sec. Sec.  204 and 403 allows.
    (b) A grazing permit will be issued in the name of one individual.
    (c) Only two horses will be permitted on a grazing permit.
    (d) Grazing permits may contain additional conditions authorized by 
Federal law or Navajo Nation law.
    (e) A state/tribal brand only identifies the owner of the 
livestock, but does not authorize the grazing of any livestock within 
the Navajo Partitioned Lands.
    (f) A permit cannot be subdivided once it has been issued.


Sec.  161.303  How long is a permit valid?

    After its initial issuance, each grazing permit is valid for one 
year beginning on the following January 1. All permits will be 
automatically renewed annually if the permittee is in compliance with 
all applicable laws including tallies and permit requirements.


Sec.  161.304  Must a permit be recorded?

    A permit must be recorded by BIA following approval under this 
subpart.


Sec.  161.305  When is a decision by BIA regarding a permit effective?

    BIA approval of a permit will be effective immediately upon 
signature, notwithstanding any appeal, which may be filed under part 2 
of this title. Copies of the approved permit will be provided to the 
permittee and made available to the Navajo Nation upon request.


Sec.  161.306  When are permits effective?

    Unless otherwise provided in the permit, a permit will be effective 
on the date on which BIA approves the permit.


Sec.  161.307  When may a permittee commence grazing on Navajo 
Partitioned Land?

    The permittee may graze on Navajo Partitioned Land on the date 
specified in the permit as the beginning date of the term, but not 
before BIA approves the permit.


Sec.  161.308  Must permittee comply with standards of conduct if 
granted a permit?

    Permittees must comply with standards of conduct and 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 
Navajo Nation laws, agricultural resource management plans, and similar 
sources.
    (b) Comply with all applicable laws, ordinances, rules, provisions, 
and other legal requirements. Permittee must also pay all applicable 
penalties that may be assessed for non-compliance.
    (c) Fulfill all financial permit obligations owed to the Navajo 
Nation and the United States.
    (d) Conduct only those activities authorized by the permit.

Subpart E--Reissuance of Grazing Permits


Sec.  161.400  What are the criteria for reissuing grazing permits?

    (a) The Navajo Nation may prescribe eligibility requirements for 
grazing allocations within 180 days following the effective date of 
this part. BIA will prescribe the eligibility requirements after 
expiration of the 180-day period if the Navajo Nation does not 
prescribe eligibility requirements, or if satisfactory action is not 
taken by the Navajo Nation.
    (b) With the written concurrence of the Navajo Nation, BIA will 
prescribe the following eligibility requirements, where only those 
applicants who meet the following criteria are eligible to receive 
permits to graze livestock:
    (1) Those who had grazing permits on Navajo Partitioned Lands under 
25 CFR part 167 (formerly part 152), and whose permits were canceled on 
October 14, 1973;
    (2) Those who are listed in the 1974 and 1975 Former Joint Use Area 
enumeration;
    (3) Those who are current residents on Navajo Partitioned Lands; 
and
    (4) Those who have a customary use area on Navajo Partitioned 
Lands.
    (c) Permits reissued to applicants under this section may be 
granted by BIA based on the following priority criteria:
    (1) The first priority will go to individuals currently over the 
age of 65; and
    (2) The second priority will go to individuals under the age of 65.
    (d) Upon the recommendation of the NPL District Grazing Committee 
and

[[Page 64033]]

Resource Committee, BIA or Navajo Nation will have authority to waive 
one of the eligibility or priority criteria.


Sec.  161.401  Will new permits be granted after the initial reissuance 
of permits?

    (a) Following the initial reissuance of permits under Sec.  
161.400, the Navajo Nation can grant new permits if:
    (1) Additional permits become available; and
    (2) The carrying capacity and stocking rates as determined under 
Sec. Sec.  161.204 and 161.403 allow.
    (b) The Navajo Nation must inform BIA if it grants any permits 
under paragraph (a) of this section.


Sec.  161.402  What are the procedures for reissuing permits?

    BIA, with the concurrence of the Navajo Nation, will reissue 
grazing permits only to individuals that meet the eligibility 
requirements in Sec.  161.400. Responsibilities for reissuance of 
grazing permits are as follows:
    (a) BIA will develop a complete list consisting of all former 
permittees whose permits were cancelled and the number of animal units 
previously authorized in prior grazing permits. This list will be 
provided to the Grazing Committee and Resources Committee for their 
review. BIA will also provide the Grazing Committee and Resources 
Committee with the current carrying capacity and stocking rate for each 
range unit within the Navajo Partitioned Lands, as determined under 
Sec.  161.204.
    (b) Within 90 days of receipt, the Grazing Committee will review 
the list developed under Sec.  161.402(a), and make recommendations to 
the Resources Committee for the granting of grazing permits according 
to the eligibility and priority criteria in Sec.  161.400.
    (c) If the Grazing Committee fails to make its recommendation to 
the Resources Committee within 90 days after receiving the list of 
potential permittees, BIA will submit its recommendations to the 
Resources Committee.
    (d) The Resources Committee will review and concur with the list of 
proposed permit grantees, and then forward a final list to BIA for the 
reissuance of grazing permits. If the Resources Committee does not 
concur, the procedures outlined in Sec.  161.800 will govern.
    (e) The final determination list of eligible permittees will be 
published. Permits will not be issued sooner than 90 days following 
publication of the final list.


Sec.  161.403  How are grazing permits allocated within each range 
unit?

    (a) Initial allocation of the number of animal units authorized in 
each grazing permit will be determined by considering the number of 
animal units previously authorized in prior grazing permits and the 
current authorized stocking rate on a given range unit.
    (b) Grazing permit allocations may vary from range unit to range 
unit depending on the stocking rate of each unit, the range management 
plan, and the number of eligible grazing permittees in the unit.

Subpart F--Modifying A Permit


Sec.  161.500  May permits be transferred, assigned or modified?

    (a) Grazing permits may be transferred, assigned, or modified only 
as provided in this section. Permits may only be transferred or 
assigned as a single permit under Navajo Nation procedures and with the 
approval of BIA. Permittees must reside within the same range unit as 
the original permittee.
    (b) Permits may be transferred, assigned, or modified with the 
written consent of the permittee, District Grazing Committee and/or 
Resource Committee and approved by BIA.
    (c) BIA must record each transfer, assignment, or modification that 
it approves under a permit.


Sec.  161.501  When will a permit modification be effective?

    BIA approval of a transfer, assignment, or modification under a 
permit will be effective immediately, notwithstanding any appeal, which 
may be filed under part 2 of this title. Copies of approved documents 
will be provided to the permittee and made available to the Navajo 
Nation upon request.


Sec.  161.502  Will a special land use require permit modification?

    Yes, when the Navajo Nation and BIA approve a special land use, the 
grazing permit will be modified to reflect the change in available 
forage. If a special land use is inconsistent with grazing activities 
authorized in the permit, the special land use area will be withdrawn 
from the permit, and grazing cannot take place on that part of the 
range unit.

Subpart G--Permit Violations


Sec.  161.600  What permit violations are addressed by this subpart?

    This subpart addresses violations of permit provisions other than 
trespass. Trespass is addressed under subpart H.


Sec.  161.601  How will BIA monitor permit compliance?

    Unless the permit provides otherwise, BIA may enter the range unit 
at any reasonable time, without prior notice, to protect the interests 
of the Navajo Nation and ensure that the permittee is in compliance 
with the operating requirements of the permit.


Sec.  161.602  Will my permit be canceled for non-use?

    (a) If a grazing permit is not used by the permittee for a 2-year 
period, BIA may cancel the permit upon the recommendation of the 
Grazing Committee and with the concurrence of the Resources Committee 
under Sec.  161.606(c). Non-use consists of, but is not limited to, 
absence of livestock on the range unit, and/or abandonment of a 
permittee's grazing permit.
    (b) Unused grazing permits or portions of grazing permits that are 
set aside for range recovery will not be cancelled for non-use.


Sec.  161.603  Can a permit provide for mediation in the event of a 
permit violation or dispute?

    A permit may provide for permit disputes or violations to be 
resolved with the District Grazing Committee through mediation.
    (a) The District Grazing Committee will conduct the mediation 
before the Resources Committee or BIA invoke any cancellation remedies.
    (b) Conducting the mediation may substitute for permit 
cancellation. However, BIA retains the authority to cancel the permit 
under Sec.  161.606.
    (c) The Resources Committee decision will be final, unless it is 
appealed to the Navajo Nation Supreme Court on a question of law. BIA 
may not be bound by decisions made in these forums, but BIA will defer 
to any ongoing proceedings, as appropriate, in deciding whether to 
exercise any of the remedies available to BIA under Sec.  161.606.


Sec.  161.604  What happens if a permit violation occurs?

    (a) If the Resources Committee notifies BIA that a specific permit 
violation has occurred, BIA will initiate an appropriate investigation 
within 5 business days of that notification.
    (b) Unless otherwise provided under tribal law, when BIA has reason 
to believe that a permit violation has occurred, BIA or the authorized 
tribal representative will provide written notice to the permittee 
within 5 business days.

[[Page 64034]]

Sec.  161.605  What will a written notice of a permit violation 
contain?

    The written notice of a permit violation will provide the permittee 
with 10 days from the receipt of the written notice to:
    (a) Cure the permit violation and notify BIA that the violation is 
cured;
    (b) Explain why BIA should not cancel the permit;
    (c) Request in writing additional time to complete corrective 
actions. If additional time is granted, BIA may require that certain 
actions be taken immediately; or
    (d) Request mediation under Sec.  161.603.


Sec.  161.606  What will BIA do if the permitee doesn't cure a 
violation on time?

    (a) If the permittee does not cure a violation within the required 
time period, or if the violation is not referred to District Grazing 
Committee for mediation, BIA will consult with the Navajo Nation, as 
appropriate, and determine whether:
    (1) The permit may be canceled by BIA under paragraph (c) of this 
section and Sec. Sec.  161.607 through 161.608;
    (2) BIA may invoke any other remedies available to BIA under the 
permit;
    (3) The Navajo Nation may invoke any remedies available to them 
under the permit; or
    (4) The permittee may be granted additional time in which to cure 
the violation.
    (b) If BIA grants a permittee a time extension to cure a violation, 
the permittee must proceed diligently to complete the necessary 
corrective actions within a reasonable or specified time from the date 
on which the extension is granted.
    (c) If BIA cancels the permit, BIA will send the permittee and the 
District Grazing Committee a written notice of cancellation within 5 
business days of the decision. BIA will also provide actual or 
constructive notice of the cancellation to the Navajo Nation, as 
appropriate. The written notice of cancellation will:
    (1) Explain the grounds for cancellation;
    (2) Notify the permittee of the amount of any unpaid fees and other 
financial obligations due under the permit;
    (3) Notify the permittee of its right to appeal under 25 CFR part 2 
of this title, as modified by Sec.  161.607, including the amount of 
any appeal bond that must be posted with an appeal of the cancellation 
decision; and
    (4) Order the permittee to cease grazing livestock on the next 
anniversary date of the grazing permit or 180 days following the 
receipt of the written notice of cancellation, whichever is sooner.


Sec.  161.607  What appeal bond provisions apply to permit cancellation 
decisions?

    (a) The appeal bond provisions in Sec.  2.5 of part 2 of this title 
will not apply to appeals from permit cancellation decision. Instead, 
when BIA decides to cancel a permit, BIA may require the permittee to 
post an appeal bond with an appeal of the cancellation decision. The 
requirement to post an appeal bond will apply in addition to all of the 
other requirements in part 2 of this title.
    (b) An appeal bond should be set in an amount necessary to protect 
the Navajo Nation against financial losses that will likely result from 
the delay caused by an appeal. Appeal bond requirements will not be 
separately appealable, but may be contested during the appeal of the 
permit cancellation decision.


Sec.  161.608  When will a permit cancellation be effective?

    A cancellation decision involving a permit will not be effective 
for 30 days after the permittee receives a written notice of 
cancellation from BIA. The cancellation decision will remain 
ineffective if the permittee files an appeal under Sec.  161.607 and 
part 2 of this title, unless the decision is made immediately effective 
under part 2. While a cancellation decision is ineffective, the 
permittee must continue to comply with the other terms of the permit. 
If an appeal is not filed in accordance with Sec.  161.607 and part 2 
of this title, the cancellation decision will be effective on the 31st 
day after the permittee receives the written notice of cancellation 
from BIA.


Sec.  161.609  Can BIA take emergency action if the rangeland is 
threatened?

    Yes, if a permittee or any other party causes or threatens to cause 
immediate, significant and irreparable harm to the Navajo Nation land 
during the term of a permit, BIA will take appropriate emergency 
action. Emergency action may include trespass proceedings under subpart 
H, or judicial action seeking immediate cessation of the activity 
resulting in or threatening harm. Reasonable efforts will be made to 
notify the Navajo Nation, either before or after the emergency action 
is taken.


Sec.  161.610  What will BIA do if livestock is not removed when a 
permit expires or is cancelled?

    If the livestock is not removed after the expiration or 
cancellation of a permit, BIA will treat the unauthorized use as a 
trespass. BIA may remove the livestock on behalf of the Navajo Nation, 
and pursue any additional remedies available under applicable law, 
including the assessment of civil penalties and costs under subpart H.

Subpart H--Trespass


Sec.  161.700  What is trespass?

    Under this part, trespass is any unauthorized use of, or action on, 
Navajo partitioned grazing lands.


Sec.  161.701  What is BIA's trespass policy?

    BIA will:
    (a) Investigate accidental, willful, and/or incidental trespass on 
Navajo Partitioned Lands;
    (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 Navajo Partitioned Lands, and 
enforcement costs incurred as a consequence of the trespass; and
    (d) Ensure, to the extent possible, that damage to Navajo 
Partitioned Lands resulting from trespass is rehabilitated and 
stabilized at the expense of the trespasser.


Sec.  161.702  Who will enforce this subpart?

    (a) BIA enforces the provisions, the Navajo Nation adopts the 
provisions, and the Navajo Nation will have concurrent jurisdiction to 
enforce this subpart. Additionally, if the Navajo Nation so requests, 
BIA will defer to tribal prosecution of trespass on Navajo Partitioned 
Lands.
    (b) Nothing in this subpart will be construed to diminish the 
sovereign authority of the Navajo Nation with respect to trespass.

Notification


Sec.  161.703  How are trespassers notified of a trespass 
determination?

    (a) Unless otherwise provided under tribal law, when BIA has reason 
to believe that a trespass on Navajo Partitioned Lands has occurred, 
BIA or the authorized tribal representative will provide written notice 
within 5 business days to:
    (1) The alleged trespasser;
    (2) The possessor of trespass property; and
    (3) Any known lien holder.
    (b) The written notice under paragraph (a) of this section will 
include the following:
    (1) The basis for the trespass determination;
    (2) A legal description of where the trespass occurred;
    (3) A verification of ownership of unauthorized property (e.g., 
brands in the State Brand Book for cases of livestock trespass, if 
applicable);

[[Page 64035]]

    (4) Corrective actions that must be taken;
    (5) Time frames for taking the corrective actions;
    (6) Potential consequences and penalties for failure to take 
corrective action; and
    (7) A statement that unauthorized livestock or other property may 
not be removed or disposed of unless authorized by BIA under paragraph 
(b)(4) of this section.
    (c) If BIA determines 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.
    (d) Trespass notices under this subpart are not subject to appeal 
under part 2 of this title.


Sec.  161.704  What can a permittee do if they receive a trespass 
notice?

    The trespasser will within the time frame specified in the notice:
    (a) Comply with the ordered corrective actions; or
    (b) Contact BIA in writing to explain why the trespass notice is in 
error. The trespasser may contact BIA by telephone but any explanation 
of trespass must be provided be in writing. If BIA determines that a 
trespass notice was issued in error, the notice will be withdrawn.


Sec.  161.705  How long will a written trespass notice remain in 
effect?

    A written trespass notice will remain in effect for the same action 
identified in that written notice for a period of one year from the 
date of receipt of the written notice by the trespasser.

Actions


Sec.  161.706  What actions does BIA take against trespassers?

    If the trespasser fails to take the corrective action as specified, 
BIA 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. BIA may keep the property 
seized for use as evidence.
    (b) Assess penalties, damages, and costs under Sec.  161.712.


Sec.  161.707  When will BIA impound unauthorized livestock or other 
property?

    BIA 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 the owner's 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 5 days of providing notice of impoundment if the 
trespasser failed to correct the trespass.


Sec.  161.708  How are trespassers notified of impoundments?

    (a) If the trespass is not corrected in the time specified in the 
initial trespass notice, BIA will send written notice of its intent to 
impound unauthorized livestock or other property to:
    (1) The unauthorized livestock or property owner or representative; 
and
    (2) Any known lien holder of the unauthorized livestock or other 
property.
    (b) If BIA determines that the owner of the unauthorized livestock 
or other property or the owner's representative is unknown or refuses 
delivery of the written notice, a public notice of intent to impound 
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) After BIA has given notice as described in Sec.  161.707, 
unauthorized livestock or other property will be impounded without any 
further notice.


Sec.  161.709  What happens after unauthorized livestock or other 
property are impounded?

    Following the impoundment of unauthorized livestock or other 
property, BIA will provide notice that the impounded property will be 
sold as follows:
    (a) BIA will provide written notice of the sale to the owner, the 
owner's representative, and any known lien holder. The written notice 
must include the procedure by which the impounded property may be 
redeemed before the sale.
    (b) BIA 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 5 days after the 
publication and posting of notice.


Sec.  161.710  How can impounded livestock or other property be 
redeemed?

    Impounded livestock or other property may be redeemed by submitting 
proof of ownership and paying all penalties, damages, and costs under 
Sec.  161.712 and completing all corrective actions identified by BIA 
under Sec.  61.704.


Sec.  161.711  How will BIA sell impounded livestock or other property?

    (a) Unless the owner or known lien holder of the impounded 
livestock or other property redeems the property before the time set by 
the sale, by submitting proof of ownership and settling all obligations 
under Sec. Sec.  161.704 and 161.712, 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) BIA will give the purchaser a bill of sale or other written 
receipt evidencing the sale.

Penalties, Damages, and Costs


Sec.  161.712  What are the penalties, damages, and costs payable by 
trespassers?

    Trespassers on Navajo Partitioned Lands must pay the following 
penalties and costs:
    (a) Collection of the value of the products illegally used or 
removed plus a penalty of double their values;
    (b) Costs associated with any damage to Navajo Partitioned Lands 
and/or property;
    (c) The costs associated with enforcement of the provisions, 
including field examination and survey, damage appraisal, investigation 
assistance and reports, witness expenses, demand letters, court costs, 
and attorney fees;
    (d) Expenses incurred in gathering, impounding, caring for, and 
disposal of livestock in cases which necessitate impoundment under 
Sec.  161.707; and
    (e) All other penalties authorized by law.


Sec.  161.713  How will BIA determine the amount of damages to Navajo 
Partitioned Lands?

    (a) BIA will determine the damages by considering the costs of 
rehabilitation and re-vegetation, loss of future revenue, loss of 
profits, loss of productivity, loss of market value, damage to other 
resources, and other factors.
    (b) BIA will determine the value of forage or crops consumed or 
destroyed based upon the average rate received per

[[Page 64036]]

month for comparable property or grazing privileges, or the estimated 
commercial value or replacement costs of the products or property.
    (c) BIA will determine the value of the products or property 
illegally used or removed based upon a valuation of similar products or 
property.


Sec.  161.714  How will 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.  161.715  What will BIA do if a trespasser fails to pay penalties, 
damages and costs?

    This section applies if a trespasser fails to pay the assessed 
penalties, damages, and costs as directed. Unless otherwise provided by 
applicable Navajo Nation law, BIA will:
    (a) Refuse to issue the permittee a permit for use, development, or 
occupancy of Navajo Partitioned Lands; and
    (b) Forward the case for appropriate legal action.


Sec.  161.716  How are the proceeds from trespass distributed?

    Unless otherwise provided by Navajo Nation law:
    (a) BIA will treat any amounts recovered under Sec.  161.712 as 
proceeds from the sale of agricultural property from the Navajo 
Partitioned Lands upon which the trespass occurred.
    (b) Proceeds recovered under Sec.  161.712 may be distributed to:
    (1) Repair damages of the Navajo Partitioned Lands and property; or
    (2) Reimburse the affected parties, including the permittee for 
loss due to the trespass, as negotiated and provided in the permit.
    (c) Reimburse for costs associated with the enforcement.
    (d) If any money is left over after the distribution of the 
proceeds described in paragraph (b) of this section, BIA will return it 
to the trespasser or, where the owner of the impounded property cannot 
be identified within 180 days, the net proceeds of the sale will be 
deposited into the appropriate Navajo Nation account or transferred to 
the Navajo Nation under applicable tribal law.


Sec.  161.717  What happens if BIA does not collect enough money to 
satisfy the penalty?

    BIA will send written notice to the trespasser demanding immediate 
settlement and advising the trespasser that unless settlement is 
received within 5 business days from the date of receipt, BIA will 
forward the case for appropriate legal action. BIA may send a copy of 
the notice to the Navajo Nation, permittee, and any known lien holders.

Subpart I--Concurrence/Appeals/Amendments


Sec.  161.800  How does the Navajo Nation to provide concurrence to 
BIA?

    (a) Actions taken by BIA under this part require concurrence of the 
Navajo Nation under the Settlement Act.
    (b) For any action requiring the concurrence of the Resource 
Committee, the following procedures will apply:
    (1) Unless a longer time is specified in a particular section, or 
unless BIA grants an extension of time, the Resources Committee will 
have 45 days to review and concur with the proposed action;
    (2) If the Resources Committee concurs in writing with all or part 
of BIA proposed action, the action or a portion of it may be 
immediately implemented;
    (3) If the Resources Committee does not concur with all or part of 
the proposed action within the time prescribed in paragraph (b)(1) of 
this section, BIA will submit to the Resources Committee a written 
declaration of non-concurrence. BIA will then notify the Resources 
Committee in writing of a formal hearing to be held not sooner than 30 
days from the date of the non-concurrence declaration;
    (4) The formal hearing on non-concurrence will permit the 
submission of written evidence and argument concerning the proposal. 
BIA will take minutes of the hearing. Following the hearing, BIA may 
amend, alter, or otherwise change the proposed action. If, following a 
hearing, BIA alters or amends portions of the proposed plan of action, 
BIA will submit the altered or amended portions of the plan to the 
Resources Committee for its concurrence; and
    (5) If the Resources Committee fails or refuses to give its 
concurrence to the proposal, BIA may implement the proposal only after 
issuing a written order, based upon findings of fact, that the proposed 
action is necessary to protect the land under the Settlement Act and 
the Agricultural Act.


Sec.  161.801  May decisions under this part be appealed?

    (a) Appeals of BIA decisions issued under this part may be taken in 
accordance with procedures set out in part 2 of this title.
    (b) All appeals of decisions by the Grazing Committee and Resource 
Committee will be forwarded to the appropriate hearing body of the 
Navajo Nation.


Sec.  161.802  How will the Navajo Nation recommend amendments to this 
part?

    The Resources Committee will have final authority on behalf of the 
Navajo Nation to approve amendments to the Navajo Partitioned Lands 
grazing provisions, upon the recommendation of the Grazing Committee 
and the Navajo-Hopi Land Commission, and the concurrence of BIA.

[FR Doc. 03-28320 Filed 11-6-03; 4:32 pm]
BILLING CODE 4310-W7-P