[Federal Register Volume 71, Number 136 (Monday, July 17, 2006)]
[Proposed Rules]
[Pages 40450-40458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-11293]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 171

RIN 1076-AD44


Irrigation Operation and Maintenance

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of the Interior, Bureau of Indian Affairs 
(BIA), is proposing to revise the regulations governing irrigation 
projects under its jurisdiction. The purpose of the revisions is to 
provide consistent administration; establish the process for updating 
practices, policies, and procedures for the administration, operation, 
maintenance, and rehabilitation of irrigation projects; and provide 
uniform accounting and recordkeeping procedures.
    These regulations have also been rewritten in plain English as 
mandated by Executive Order 12866. They also address several issues 
that prior regulations did not cover.

DATES: We must receive your written comments on this proposed 
rulemaking by November 14, 2006.

ADDRESSES: You may submit comments on this proposed rule, identified by 
the number 1076-AD44, by any of the following methods:
     Federal rulemaking portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: (202) 219-0006.
     Mail: Arch Wells, Acting Deputy Director, Office of Trust 
Services, Bureau of Indian Affairs, Department of the Interior, 1849 C 
Street, NW., Mail Stop 4655-MIB, Washington, DC 20240.
     Hand delivery: Office of Trust Services, Bureau of Indian 
Affairs, 1849 C Street, NW., Mail Stop 4655-MIB, Washington, DC 20240.
    You may submit comments with respect to the information collection 
burden of the proposed rule to the Office of Information and Regulatory 
Affairs, Office of Management and Budget, 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 above. Note that 
requests for comments on the rule and the information collection are 
separate.

FOR FURTHER INFORMATION CONTACT: John Anevski, Chief, Branch of 
Irrigation and Power, Division of Water and Land Resources, Bureau of 
Indian Affairs, Department of the Interior, 1849 C Street, NW., Mail 
Stop 4655-MIB, Washington, DC 20240; Telephone (202) 208-5480.

SUPPLEMENTARY INFORMATION: We are publishing this revised rule under 
the authority delegated by the Secretary of the Interior to the 
Assistant Secretary--Indian Affairs by 209 DM 8.

Background

    The revised regulations clarify prior regulatory language, in 
keeping with the ``plain language'' standard required by Executive 
Order 12866. In revising this regulation, many sections of the 
regulation were identified as redundant or unnecessary and are proposed 
to be deleted. New sections have been added to comply with the 
Inspector General's (IG) audit findings and to implement the provisions 
of the Debt Collection Improvement Act of 1996.
    Several IG audits, the most recent in 1996 (96-I-641), identified a 
management deficiency concerning full cost rates for operation and 
maintenance. Also, the Debt Collection Improvement Act of 1996 
established new procedures to manage monies owed the Federal 
Government. The revisions address both of these issues.
    The proposed revisions to 25 CFR part 171 were previously published 
on July 5, 1996 (61 FR 35167). Due to the length of time that has 
passed and changes to the proposed regulations, the proposed revisions 
are being published again for public comment. This republication is to 
provide a fresh start on the rulemaking process for this revision.
    Consultation meetings with the tribes that may be impacted by these 
regulations were held on August 24 and 26, 2004, and May 10 and 12, 
2005. Additional consultation meetings with tribes may be scheduled 
during the comment period. These consultation meetings are in 
accordance with Executive Order 13175 and are for tribes and tribal 
members only. The general public and non-tribal members must submit 
their comments in accordance with this document. Tribes and tribal 
members may also submit comments in accordance with this document.

Procedural Requirements

Regulatory Planning and Review (Executive Order 12866)

    This document is not a significant rule and the Office of 
Management and Budget has not reviewed this rule under Executive Order 
12866.
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities. This is an existing regulation that is being revised to 
implement the Inspector General's audit findings and the Debt 
Collection Improvement Act of 1996.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. The 
irrigation projects impacted by these revisions are solely owned by the 
BIA and no other agency provides supplemental services or is impacted 
by the operation.
    (3) This rule does not alter the budgetary effects of entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients. The user fees or assessments that the BIA establishes 
at each irrigation project to recover its costs will eventually be 
impacted as the BIA reviews its rates and strives to implement full 
cost rates.
    (4) This rule does not raise novel legal or policy issues. No new 
authorities or policies are being established.

Regulatory Flexibility Act

    The Department of the Interior certifies that this document will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
An initial Regulatory Flexibility Analysis is not required because 
Indian tribes are not considered to be small entities for purposes of 
this act.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million or 
more. The total revenue stream for the operation and maintenance of BIA 
irrigation projects is approximately $25 million annually. This is 
below the $100 million threshold.

[[Page 40451]]

    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. These revisions establish a procedure 
for identifying full cost rates for BIA irrigation projects. This is 
not expected to cause major increases in the near future. However, 
there is a potential that this could result in appreciable rate 
increases in the long-term.
    c. 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. BIA 
irrigation projects are generally small and have minimal impacts on the 
economy. The projects are not in competition with other entities since 
they are located on reservations that are under the strict purview of 
the Department of the Interior, Bureau of Indian Affairs.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or tribal governments or the private sector. The BIA irrigation 
projects are located on reservations that are under the strict purview 
of the Department of the Interior, Bureau of Indian Affairs. A 
statement containing the information required by the Unfunded Mandates 
Reform Act (2 U.S.C. 1531 et seq.) is not required.

Takings (Executive Order 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. The rule revisions do not deprive the 
public, state, or local governments of rights or property. A takings 
implication assessment is not required.

Federalism (Executive Order 13132)

    In accordance with Executive Order 13132, the rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment because they will not interfere with the roles, 
rights, and responsibilities of states.

Civil Justice Reform (Executive Order 12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.

Paperwork Reduction Act of 1995

    These rule revisions affect the collection of information, which 
was previously approved by the Office of Information and Regulatory 
Affairs, Office of Management and Budget, under the Paperwork Reduction 
Act of 1995. The additions to the information collection reflect new 
requirements since the last renewal. A revised information collection 
package is being submitted to OMB for approval.
    The Bureau of Indian Affairs operates 15 irrigation projects that 
provide irrigation services to the end user. The information we collect 
enables us to properly bill for the services we provide by collecting 
information that identifies the individual responsible for paying the 
costs of the services. Some of the information is needed to satisfy the 
requirements of the Debt Collection Improvement Act of 1996. Our 
previous cleared collection of information did not reflect other 
services, which are now available to the user. The table addresses the 
services available, the number of users, the burden for each as well as 
the yearly total and the sections in the rule that apply to the 
collection items.

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                                                                                                    Salary per
                                                                     Number of                     hour ($20) x
                                   CFR section    Hourly burden     respondent     Total annual   all respondent
            Service                    171        to respondent      requests      burden hours     requests =
                                                   per request       annually                       annual cost
                                                                                                      burden
----------------------------------------------------------------------------------------------------------------
Requesting irrigation service..         200/600              0.5          26,156          13,078        $261,560
Subdividing a farm unit........             225              4                 1               4              80
Requesting leaching service....             305              1                40              40             800
Requesting water for domestic              *310               .3             474             142           2,840
 or stock purposes.............
Building non-government                     405              3                67             201           4,020
 structures in BIA rights-of-
 ways..........................
Installing a fence on BIA                   410              1.5              52              78           1,560
 property or rights-of-ways....
What information must be                    530              0.2             500             100           2,000
 provided for billing purposes.
Requesting Payment Plans on                 550              2               126             252           5,040
 bills.........................
Establishing a carriage                     605              1                 3               3              60
 agreement (carrying third
 party water through our
 facilities)...................
Negotiating an irrigation              *610/615              6                21             126           2,520
 incentive lease with the BIA..
Requesting annual assessment           *710/715              1               135             135           2,700
 waiver........................
                                --------------------------------------------------------------------------------
    Annual Totals..............  ..............  ...............          27,575          14,159        283,180
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* New requests for information collection are marked by an asterisk.

    We estimate that we service 6,539 users who submit information 
about 27,575 times a year. We estimate that the total annual hourly 
burden is 14,159 at an estimated cost of $283,180. The users mainly 
request water to be turned on or turned off. Users are not required to 
maintain records but may do so for business purposes. The information 
they submit is for the purpose of obtaining or retaining a benefit, 
namely irrigation water. While we do require personal information for 
the purpose of adhering to the controlling laws and regulations, we 
protect the information under the Privacy Act.
    We invite 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 the BIA Information Collection 
Clearance Officer, 625 Herndon Parkway, Herndon, VA 20171.

[[Page 40452]]

    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.
    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. However, this exemption does not apply to organizations or 
their representatives. We may also withhold this information for other 
reasons.

National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment and no detailed 
statement is required under the National Environmental Policy Act of 
1969 (42 U.S.C. 4321-4370(d)).

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

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we 
have identified potential effects on Indian trust resources and they 
are addressed in this rule. Consultation meetings have been held with 
the affected tribes and additional consultation is expected to take 
place during the public comment period. Accordingly:
    a. We have consulted with the affected tribes.
    b. We have consulted with tribes on a government-to-government 
basis and the consultations have been open and candid so that the 
affected tribes could fully evaluate the potential impact of the rule 
on trust resources.
    c. We will consider tribal views in the final rule.
    d. We have not consulted with the appropriate bureaus and offices 
of the Department about the potential effects of this rule on Indian 
tribes. Other Department bureaus and offices are not affected by this 
rule.
    The BIA irrigation projects are vital components of the local 
agricultural economy of the reservations on which they are located. To 
fulfill its responsibilities to the tribes, tribal organizations, water 
user organizations, and the individual water users, the BIA 
communicates, coordinates, and consults on a continuing basis with 
these entities on issues of water delivery, water availability, costs 
of administration, operation, maintenance, and rehabilitation. This is 
accomplished at the individual irrigation projects by Project, Agency, 
and Regional representatives, as appropriate, in accordance with local 
protocol and procedures. The BIA Central Office held four consultation 
meetings for tribes and tribal members. Consultation meetings were held 
on August 24, 2004 and May 12, 2005 in Phoenix, Arizona, and on August 
26, 2004 and May 10, 2005 in Billings, Montana. This notice is one 
component of the BIA's overall coordination and consultation process to 
provide notice and request comments from these entities.

Effects on the Nation's Energy Supply (Executive Order 13211)

    In accordance with Executive Order 13211, this regulation does not 
have a significant effect on the nation's energy supply, distribution, 
or use. The revision to 25 CFR 171 will have no adverse effects on 
energy supply, distribution, or use (including a shortfall in supply, 
price increases, and increase use of foreign supplies) should the 
proposed revisions be implemented. This rule impacts irrigation 
projects that have little or no energy supply issues.

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.  171.105 Does this part apply to me?)
    (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

    Our policy is to give the public an opportunity to participate in 
the rulemaking process by submitting written comments to us regarding 
proposed rules. We will consider all comments received during the 
public comment period. We will determine necessary revisions and issue 
the final rule. Please refer to the ADDRESSES section of this document 
for submission of your written comments regarding this proposed 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 Subject in 25 CFR Part 171

    Indians--lands, Irrigation.

    Dated: March 15, 2006.
Michael D. Olsen,
Acting Principal Deputy Assistant Secretary--Indian Affairs.

    Editors Note: This document was received at the Office of the 
Federal Register on July 12, 2006.

    For the reasons set out in the preamble, the Bureau of Indian 
Affairs proposes to revise part 171 of Title 25

[[Page 40453]]

of the Code of Federal Regulations as follows:

PART 171--IRRIGATION OPERATION AND MAINTENANCE

Subpart A--General Provisions
Sec.
171.100 What are some of the terms I should know for this part?
171.105 Does this part apply to me?
171.110 How does BIA administer its irrigation facilities?
171.115 Can I and other irrigators establish representative 
organizations?
171.120 What are the authorities and responsibilities of a 
representative organization?
171.125 Can I appeal BIA decisions?
171.130 Who can I contact if I have any questions about these 
regulations or my irrigation service?
171.135 Where do I submit written information, requests, or appeals?
171.140 Information Collection.
Subpart B--Irrigation Service
171.200 How do I request irrigation service from the BIA?
171.205 How much water will I receive?
171.210 Where will BIA provide my irrigation service?
171.215 What if the elevation of my farm unit is too high to receive 
irrigation water?
171.220 What must I do to my farm unit to receive irrigation 
service?
171.225 What must I do to receive irrigation service to my 
subdivided farm unit?
171.230 What are my responsibilities for wastewater?
Subpart C--Water Use
171.300 Does BIA restrict my water use?
171.305 Will BIA provide leaching service to me?
171.310 Can I use water delivered by BIA for domestic or livestock 
purposes?
Subpart D--Irrigation Facilities
171.400 Who is responsible for structures on a BIA irrigation 
project?
171.405 Can I build my own structure or take over responsibility of 
a BIA structure?
171.410 Can I install a fence on a BIA irrigation project?
171.415 Can I place an obstruction on a BIA irrigation project?
171.420 Can I dispose of sewage, trash or other refuse on a BIA 
irrigation project?
Subpart E--Financial Matters: Assessments, Billing, and Collections
171.500 How does BIA determine the annual operation and maintenance 
assessment rate for the irrigation facility servicing my farm unit?
171.505 How does BIA calculate my annual operation and maintenance 
assessment?
171.510 How does BIA calculate my annual operation and maintenance 
assessment if supplemental water is available on the irrigation 
facility servicing my farm unit?
171.515 Who will BIA bill?
171.520 How will I receive my bill and when do I pay it?
171.525 How do I pay my bill?
171.530 What information must I provide BIA for billing purposes?
171.535 Why is BIA collecting this information from me?
171.540 What can happen if I do not provide this information?
171.545 What can happen if I don't pay my bill on time?
171.550 May I arrange a Payment Plan if I cannot pay the full amount 
due on my bill?
171.555 What additional costs will I incur if I am granted a Payment 
Plan?
171.560 What if I fail to make payments as specified in my Payment 
Plan?
171.565 How will I know if BIA plans to adjust my annual operation 
and maintenance assessment rate?
171.570 What is the Federal Register and where can I get it?
171.575 Can BIA change my annual operation and maintenance 
assessment without notifying me first?
Subpart F--Records, Agreements, and Other Matters
171.600 What information is collected and retained on the irrigation 
service I receive?
171.605 Can I establish a Carriage Agreement with the BIA?
171.610 May I arrange an Incentive Agreement if I want to farm idle 
lands?
171.615 Can I request improvements to BIA facilities as part of my 
Incentive Agreement?
Subpart G--Non-Assessment Status
171.700 When do I not have to pay my annual operation and 
maintenance assessment?
171.705 What criteria must be met for my land to be granted an 
Annual Assessment Waiver?
171.710 Can I receive irrigation water if I am granted an Annual 
Assessment Waiver?
171.715 How do I obtain an Annual Assessment Waiver?
171.720 For what period does an Annual Assessment Waiver apply?

    Authority: 25 U.S.C. 2; 25 U.S.C. 9; 25 U.S.C. 13; 25 U.S.C. 
381; Act of April 4, 1910, 36 Stat. 270, as amended (codified at 25 
U.S.C. 385); 25 U.S.C. 386a; Act of June 22, 1936, 49 Stat. 1803 
(codified at 25 U.S.C. 389 et seq.).

Subpart A--General Provisions


Sec.  171.100  What are some of the terms I should know for this part?

    Annual Assessment Waiver means a mechanism for us to waive your 
annual operation and maintenance assessment under certain specified 
circumstances.
    Annual operation and maintenance assessment means the charges you 
must pay us for our costs of administration, operation, maintenance, 
and rehabilitation of the irrigation facility servicing your farm unit.
    Annual operation and maintenance assessment rate means the per acre 
charge we establish for the irrigation facility servicing your farm 
unit.
    Assessable acres (see Total assessable acres).
    Authorized use means your use of water delivered by us that 
supports irrigated agriculture, livestock, Carriage Agreements or other 
uses defined by laws, regulations, treaty, compact, judicial decree, 
the river regulatory plan, or other authority.
    BIA means the Bureau of Indian Affairs within the United States 
Department of the Interior.
    Bill means our statement to you of the assessment charges and/or 
fees you owe the United States for administration, operation, 
maintenance, rehabilitation, and/or construction of the irrigation 
facility servicing your farm unit.
    Carriage Agreement means a legally binding contract we enter into:
    (1) to convey third party water through our irrigation facilities; 
or
    (2) to convey our water through third party facilities.
    Construction assessment means the periodic charge we assess you to 
repay us the funds we used to construct our irrigation facilities 
serving your farm unit that are determined to be reimbursable under 
applicable statutes.
    Customer means any person or entity to whom we provide irrigation 
service.
    Ditch, see Farm ditch or Service ditch.
    Due date means the date printed on your bill, 30 days after which 
your bill becomes past due.
    Facility, see Irrigation facility.
    Farm ditch means a ditch or canal, which you own, operate, 
maintain, and rehabilitate.
    Farm unit means the smallest parcel of land for which we will 
establish a delivery point. The size of farm units at our irrigation 
facilities is defined in the authorizing legislation for each 
irrigation facility, or in the absence of such legislation, we will 
define the farm unit size.
    I, me, my, you, and your means all interested parties, especially 
persons or entities to which we provide irrigation service and receive 
use of our irrigation facilities, such as irrigators, landowners, 
lessees, irrigator organizations, irrigation districts, or other 
entities affected by this part and our supporting policies, manuals, 
and handbooks.
    Idle lands means lands that are not currently farmed because they 
have characteristics that limit crop production.
    Incentive Agreement means a written agreement between you and us 
that allows us to waive your annual operation and maintenance 
assessment, for up to 3 years, when you agree to improve idle lands and 
we determine

[[Page 40454]]

that it is in the best interest of our irrigation facility.
    Irrigation bill, see Bill.
    Irrigation district, see Representative organization.
    Irrigation facility means all structures and appurtenant works for 
the delivery, diversion, and storage of irrigation water. These 
facilities may be referred to as projects, systems, or irrigation 
areas.
    Irrigation service means the full range of services we provide 
customers, including, but not limited to, administration, operation, 
maintenance, and rehabilitation of our irrigation facilities.
    Irrigation water or water means water we deliver through our 
facilities for the general purpose of irrigation and other authorized 
purposes.
    Irrigator, see Customer.
    Landowner means a person or entity that owns fee, tribal trust, 
and/or individual allotted trust lands.
    Leaching Service means our delivery of water to you at your request 
for the purpose of transporting salts below the root zone of a farm 
unit.
    Lessee means any person or entity that holds a lease approved by us 
on lands that we provide irrigation service to.
    Must means an imperative or mandatory act or requirement.
    My land and your land mean all or part of your farm unit.
    Obstruction means anything permanent or temporary that blocks, 
hinders, impedes, stops or cuts off our facilities or our ability to 
perform the services we determine necessary to provide service to our 
customers.
    Organization, see Representative organization.
    Past due bill means a bill that has not been paid within 30 days of 
the due date stated on your bill. Beginning on the 31st day after the 
due date we will begin assessing additional charges.
    Permanently non-assessable acres (PNA) means lands that the 
Secretary of the Interior has determined to be permanently non-
irrigable pursuant to the standards set out in 25 U.S.C. 389b.
    Representative organization or organization means a legally 
established organization representing your interests that confers with 
us on how we provide irrigation service at a particular irrigation 
facility.
    Service(s), see Irrigation service.
    Service Area means lands designated by us to be served by one of 
our irrigation facilities.
    Service ditch means a ditch or canal which we own, administer, 
operate, maintain, and rehabilitate that we use to provide irrigation 
service to your farm unit.
    Soil salinity means soils containing high salt content that limit 
crop production.
    Structures (see Irrigation facilities).
    Subdivision means a farm unit that has been subdivided into smaller 
parcels.
    Supplemental water means water available for delivery by our 
irrigation facilities beyond the quantity necessary to provide all 
project customers requesting water with the per-acre water duty 
established for that project.
    Taxpayer identifying number means either your Social Security 
Number or your Employer Identification Number.
    Temporarily non-assessable acres (TNA) means lands that the 
Secretary of the Interior has determined to be temporarily non-
irrigable pursuant to the standards set out in 25 U.S.C. 389a.
    Total assessable acres means the total acres of land served by one 
of our irrigation facilities to which we assess operation and 
maintenance charges. The Total assessable acres within the service area 
of an irrigation facility do not include those acres of land that are 
designated PNA or TNA, nor those acres of land granted an Annual 
Assessment Waiver.
    Trust or restricted land or land in trust or restricted status, 
refer to 25 CFR 151.2, ``definitions.''
    Urgency means a situation we have determined that may adversely 
impact our irrigation facilities, operation, or other irrigation 
activities and/or affect public safety or damage property and/or 
equipment.
    Wastewater means irrigation water returned to our irrigation 
facilities.
    Water, see Irrigation water.
    Water delivery is an activity that is part of the irrigation 
service we provide to our customers when water is available.
    Water duty means the amount of water, in acre-feet per acre, 
necessary for full-service irrigation. This value is established by 
decree, compact, or other legal document, or by specialized engineering 
studies.
    Water user, see Customer.
    We, us, and our means the United States Government, the Secretary 
of the Interior, the BIA, and all who are authorized to represent us in 
matters covered under this part.


Sec.  171.105  Does this part apply to me?

    This part applies to you if you own or lease land within an 
irrigation project where we assess fees and collect monies to 
administer, operate, maintain, and rehabilitate project facilities.


Sec.  171.110  How does BIA administer its irrigation facilities?

    (a) We administer our irrigation facilities by enforcing the 
applicable statutes, regulations, Executive Orders, directives, Indian 
Affairs Manual, the Irrigation Handbook, and other written policies, 
procedures, directives, and practices to ensure the safe, reliable, and 
efficient administration, operation, maintenance, and rehabilitation of 
our facilities. Such enforcement can include refusal or termination of 
irrigation services to you.
    (b) We will cooperate and consult with you, when appropriate and 
time allows, on irrigation activities and policies of the particular 
irrigation facility serving you.


Sec.  171.115  Can I and other irrigators establish representative 
organizations?

    Yes. You and other irrigators may establish a representative 
organization under applicable law, to represent your interests for the 
particular irrigation facilities serving you.


Sec.  171.120  What are the authorities and responsibilities of a 
representative organization?

    (a) A legally established organization representing you may make 
rules, policies, and procedures it may find necessary to administer the 
activities it is authorized to perform.
    (b) An organization must not make rules, policies, or procedures 
that conflict with our regulations, or any of our other written 
policies, procedures, directives and manuals.
    (c) If this organization collects operation and maintenance 
assessments and construction assessments on your behalf to be paid to 
us, it must pay us all your past and current operation and maintenance 
and construction assessment charges before we will provide irrigation 
service to you.


Sec.  171.125  Can I appeal BIA decisions?

    (a) You may appeal our decisions in accordance with procedures set 
out in 25 CFR 2, unless otherwise prohibited by law.
    (b) Until your appeal is resolved, you must conform to our 
requirements before we will provide irrigation service to you.


Sec.  171.130  Who can I contact if I have any questions about these 
regulations or my irrigation service?

    Contact the local irrigation project where you receive service or 
want to apply for service. If your questions are not addressed to your 
satisfaction at the local project level, you may contact the 
appropriate BIA Regional Office.

[[Page 40455]]

Sec.  171.135  Where do I submit written information, requests, or 
appeals?

    You must submit any required or requested written information, 
requests, or appeals to the irrigation project servicing your farm 
unit.


Sec.  171.140  Information Collection.

    The information collection requirements contained in this part have 
been approved by the Office of Management and Budget under 44 U.S.C. et 
seq. and assigned clearance number 1076-xxxx. This information 
collection is specifically found in Sec. Sec.  171.200, 171.225, 
171.305, 171.310, 171.405, 171.410, 171.530, 171.550, 171.600, 171.605, 
171.610, 171.615, 171.710, and 171.715. 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--Irrigation Service


Sec.  171.200  How do I request irrigation service from the BIA?

    (a) You must request service from the irrigation facility servicing 
your farm unit.
    (b) Your request must contain at least the following information:
    (1) Your full legal name;
    (2) Where you want service;
    (3) The time and date you want service to start;
    (4) How long you want service;
    (5) The rate of water flow you want, if available;
    (6) How many acres you want to irrigate; and
    (7) Any additional information required by the project office 
responsible for providing your irrigation service.
    (c) You must request supplemental water in accordance with the 
project guidelines established by the specific project providing your 
irrigation service.


Sec.  171.205  How much water will I receive?

    The amount of water you receive will be based on your request, your 
legal entitlement to water and the available water supply.


Sec.  171.210  Where will BIA provide my irrigation service?

    (a) We will provide service to your farm unit at a single delivery 
point which we designate.
    (b) At our discretion, we may establish additional delivery points 
when:
    (1) We determine it is impractical to deliver water to your farm 
unit from a single delivery point;
    (2) You agree in writing to be responsible for all costs to 
establish an additional delivery point;
    (3) You pay us our costs prior to our establishing an additional 
delivery point; and
    (4) Any work accomplished under this section does not disrupt our 
service to other customers without their written agreement.
    (c) We may establish your delivery point(s) at a well head.


Sec.  171.215  What if the elevation of my farm unit is too high to 
receive irrigation water?

    (a) We will not change our service ditch level to provide service 
to you.
    (b) You may install, operate, and maintain your own facilities, at 
your cost, to provide service to your land:
    (1) From a delivery point we designate; and
    (2) In accordance with specifications we approve.


Sec.  171.220  What must I do to my farm unit to receive irrigation 
service?

    You must meet the following requirements for us to provide service:
    (a) Put water we deliver to authorized uses;
    (b) Make sure your farm ditch has sufficient capacity to carry the 
water we deliver; and
    (c) Properly operate, maintain, and rehabilitate your farm ditch.


Sec.  171.225  What must I do to receive irrigation service to my 
subdivided farm unit?

    In order to receive irrigation service, you must:
    (a) Provide us a copy of the recorded plat or map of the 
subdivision which shows us how the irrigation water will be delivered 
to the irrigable acres;
    (b) Pay for any extensions or alterations to our facilities that we 
approve to serve the subdivided units;
    (c) Construct, at your cost, any facilities within your subdivided 
farm unit; and
    (d) Operate and maintain, at your cost, any facilities within your 
subdivided farm unit.


Sec.  171.230  What are my responsibilities for wastewater?

    (a) You must convey your wastewater back to our facilities for 
drainage, at your cost.
    (b) You must return wastewater to our facilities only at locations 
we designate and in a manner we approve.
    (c) You may share wastewater facilities with other customers, but 
you remain responsible for conveying your wastewater to our facilities.
    (d) You must not allow your wastewater to flow or collect on our 
facilities or roads, except at locations we designate and in a manner 
we approve.
    (e) If you fail to comply with this section, we may withhold 
services to you.

Subpart C--Water Use


Sec.  171.300  Does BIA restrict my water use?

    (a) You must not interfere with or alter our service to you without 
our prior written authorization; and
    (b) You must only use water we deliver for authorized uses. We may 
withhold services if you use water for any other purpose.


Sec.  171.305  Will BIA provide leaching service to me?

    (a) We may provide you leaching service if:
    (1) You submit a written plan that documents how soil salinity 
limits your crop production and how leaching service will correct the 
problem;
    (2) We approve your plan in writing; and
    (3) Your irrigation bills are not past due.
    (b) Leaching service will only be available during the timeframe 
established by your irrigation facility.
    (c) We reserve the right to terminate this service if we determine 
you are not complying with paragraph (a) of this section.


Sec.  171.310  Can I use water delivered by BIA for domestic or 
livestock purposes?

    Yes. If we determine it will not:
    (a) Interfere with the operation, maintenance, or rehabilitation of 
our facilities;
    (b) Be detrimental to or jeopardize our facilities;
    (c) Adversely affect the water supply; or
    (d) Cause additional costs to us that we do not agree to in 
writing.

Subpart D--Irrigation Facilities


Sec.  171.400  Who is responsible for structures on a BIA irrigation 
project?

    (a) We may build, operate, maintain, rehabilitate and/or remove 
structures, including bridges and other crossings on our irrigation 
projects.
    (b) We may build other structures for your private use during the 
construction or extension of an irrigation project. We may charge you 
for structures built for your private use under this section, and we 
may require you to maintain them.
    (c) If we require you to maintain a structure and you do not do so 
to our satisfaction, we may remove it, or perform the necessary 
maintenance, and we will bill you for our costs.

[[Page 40456]]

Sec.  171.405  Can I build my own structure or take over responsibility 
of a BIA structure?

    You may build a structure on our irrigation facility for your 
private use or take responsibility of one of our structures, under a 
written agreement between you and us, which:
    (a) Relieves us from any future liability or responsibility for the 
structure;
    (b) Relieves us from any future costs incurred for maintaining the 
structure;
    (c) Describes what is granted by us and accepted by you; and
    (d) Provides that if you do not regularly use a structure for a 
period of time that we have determined, or you do not properly maintain 
and rehabilitate the structure, we will notify you in writing that:
    (1) You must either remove it or correct any unsafe condition;
    (2) If you do not comply with our notice, we may remove the 
structure and you must reimburse us our costs; and
    (3) We may modify, close or remove your structure without notice 
due to an urgency we have identified.


Sec.  171.410  Can I install a fence on a BIA irrigation project?

    Yes. Fences are considered structures and may be installed in 
compliance with Sec.  171.405.


Sec.  171.415  Can I place an obstruction on a BIA irrigation project?

    No. You may not place obstructions on BIA irrigation projects.
    (a) If you do so, we will notify you in writing that you must 
remove it.
    (b) If you do not remove your obstruction in compliance with our 
notice, we will remove it and we will bill you for our costs.
    (c) We can remove your obstruction without notice due to an urgency 
we have identified.


Sec.  171.420  Can I dispose of sewage, trash or other refuse on a BIA 
irrigation project?

    No. Sewage, trash, or other refuse are considered obstructions and 
must be removed in accordance with Sec.  171.415.

Subpart E--Financial Matters: Assessments, Billing, and Collections


Sec.  171.500  How does BIA determine the annual operation and 
maintenance assessment rate for the irrigation facility servicing my 
farm unit?

    (a) We calculate the annual operation and maintenance assessment 
rate by estimating the following annual costs and then dividing by the 
total assessable acres for your irrigation facility:
    (1) Personnel salary and benefits for the facility engineer/manager 
and employees under their management control;
    (2) Materials and supplies;
    (3) Vehicle and equipment repairs;
    (4) Equipment costs, including lease fees;
    (5) Depreciation;
    (6) Acquisition costs;
    (7) Maintenance of a reserve fund available for contingencies or 
emergency costs for, and insuring, reliable operation of the irrigation 
facility infrastructure;
    (8) Maintenance of a vehicle and heavy equipment replacement fund;
    (9) Systematic rehabilitation and replacement of project 
facilities;
    (10) Contingencies for unknown costs and omitted budget items; and
    (11) Other costs we determine necessary to properly perform the 
activities and functions characteristic of an irrigation facility.
    (b) Annual operation and maintenance assessment rates may be 
lowered through the exercise of our discretion when items listed in (a) 
of this section are adjusted pursuant to our authority under 25 U.S.C. 
385, 386a and 389.
    (c) If you subdivide your farm unit, you may be subject to a higher 
annual operation and maintenance assessment rate, which we publish 
annually in the Federal Register.
    (d) At projects where supplemental water is available, the 
calculation of your annual operation and maintenance assessment rate 
may take into consideration the total estimated annual amount to be 
collected for supplemental water deliveries.


Sec.  171.505  How does BIA calculate my annual operation and 
maintenance assessment?

    (a) We calculate your annual operation and maintenance assessment 
by multiplying the total assessable acres of your land within the 
service area of our irrigation facility by the annual operation and 
maintenance assessment rate we establish for that facility.
    (b) We will not assess lands that have been re-classified as either 
permanently non-assessable (PNA) or temporarily non-assessable (TNA) or 
lands that have been granted an Annual Assessment Waiver.
    (c) If your lands are under an approved Incentive Agreement, we may 
waive your assessment as described in the Incentive Agreement (See 
Sec.  171.610).
    (d) Some irrigation facilities may charge a minimum operation and 
maintenance assessment. If the irrigation facility serving your farm 
unit charges a minimum operation and maintenance assessment that is 
more than your assessment calculated by the method described in subpart 
(a) of this section, you will be charged the minimum operation and 
maintenance assessment. We provide public notice of any minimum 
operation and maintenance assessments annually in the Federal Register 
(See Sec.  171.565).


Sec.  171.510  How does BIA calculate my annual operation and 
maintenance assessment if supplemental water is available on the 
irrigation facility servicing my farm unit?

    (a) For projects where supplemental water is available, and you 
request and receive supplemental water, your assessment will include 
two components: A base rate, which is for your per-acre water duty 
delivered to your farm unit; and a supplemental water rate, which is 
for water delivered to your farm unit in addition to your per acre 
water duty.
    (b) We publish base and supplemental water rates annually in the 
Federal Register. The base and supplemental water rates are established 
to recover the costs identified in Sec.  171.500(a) of this subpart.
    (c) If your project has established a supplemental water rate, and 
you request and receive supplemental water, we will calculate your 
total annual operation and maintenance assessment by multiplying the 
total assessable acres of your land within the service area of our 
irrigation facility by the annual operation and maintenance assessment 
rate we establish for that facility plus, the actual quantity of 
supplemental water you request and we deliver (in acre-feet) times the 
supplemental water rate established for that facility.


Sec.  171.515  Who will BIA bill?

    (a) We will bill the landowner, unless:
    (1) The land is leased under a lease approved by us, in which case 
we will bill the lessee, or
    (2) The landowner(s) is represented by a representative 
organization that collects annual operation and maintenance assessments 
on behalf of its members and the representative organization makes a 
direct payment to us on your behalf.
    (b) If you own or lease assessable lands within a BIA irrigation 
facility, you will be billed for annual operation and maintenance 
assessments, whether you request water or not, unless specified in 
Sec.  171.505(b).


Sec.  171.520  How will I receive my bill and when do I pay it?

    (a) You will receive your bill in the mail at the address of record 
you provide us.

[[Page 40457]]

    (b) You should pay your bill no later than the due date stated on 
your bill.
    (c) You will not receive a bill for supplemental water. You must 
pay us in advance at the supplemental water rate established for you 
project published annually in the Federal Register.


Sec.  171.525  How do I pay my bill?

    (a) You can pay your bill by:
    (1) Personally going to the local office of the irrigation facility 
authorized to receive your payment during normal business hours;
    (2) Depositing your payment in an authorized drop box, if 
available, at the local office of the irrigation facility; or
    (3) Mailing your payment to the address indicated on your bill.
    (b) Your payment must be in the form of:
    (1) Check or money order in the mail or authorized drop box; or
    (2) Cash, check or money order if you pay in person.


Sec.  171.530  What information must I provide BIA for billing 
purposes?

    We must obtain certain information from you to ensure we can 
properly bill, collect, deposit and account for money you owe the 
United States. At a minimum, this information is:
    (a) Your full legal name;
    (b) Your correct mailing address; and
    (c) Your taxpayer identifying number.


Sec.  171.535  Why is BIA collecting this information from me?

    (a) As part of doing business with you, we must collect enough 
information from you to properly bill and service your account.
    (b) We are required to collect your taxpayer identifying number 
under the authority of, and as prescribed in, the Debt Collection 
Improvement Act of 1996, Public Law 104-134 (110 Stat. 1321-364).


Sec.  171.540  What can happen if I do not provide this information?

    We will not provide you irrigation service.


Sec.  171.545  What can happen if I don't pay my bill on time?

    (a) We will not provide you irrigation service until:
    (1) Your bill is paid; or
    (2) You make arrangement for payment, pursuant to Sec.  171.550 of 
this part.
    (b) If you do not pay your bill prior to the close of business on 
the 30th day after the due date, we consider your bill past due, send 
you a notice, and assess you the following:
    (1) Interest, as required by 31 U.S.C. 3717. Interest will accrue 
from the original due date stated on your bill.
    (2) An administrative fee, as required by 31 CFR 901.9.
    (c) If you do not pay your bill prior to the close of business of 
the 90th day after the due date, we will assess you a penalty, as 
required by 31 CFR 901.9(d). Penalties will accrue from the original 
due date stated on your bill.
    (d) We will forward your past due bill to the United States 
Treasury no later than 180 days after the original due date, as 
required by 31 CFR 901.1, ``Aggressive agency collection activity.''


Sec.  171.550  May I arrange a Payment Plan if I cannot pay the full 
amount due on my bill?

    We may approve a Payment Plan if:
    (a) You are a landowner and your land is not leased;
    (b) You certify that you are financially unable to make a lump sum 
payment;
    (c) You provide additional information we request, which may 
include information identified in 31 CFR 901.8, ``Collection in 
installments''; and
    (d) You sign our Payment Plan containing terms and conditions we 
specify.


Sec.  171.555  What additional costs will I incur if I am granted a 
Payment Plan?

    You will incur the following costs:
    (a) An administrative fee to process your Payment Plan, as required 
by 31 CFR 901.9.
    (b) Interest, accrued on your unpaid balance, in accordance with 
Sec.  171.545.


Sec.  171.560  What if I fail to make payments as specified in my 
Payment Plan?

    (a) We will discontinue irrigation service until your bill is paid 
in full;
    (b) You will be subject to the provisions in Sec.  171.555; and
    (c) You will be ineligible for Payment Plans for the next 6 years.


Sec.  171.565  How will I know if BIA plans to adjust my annual 
operation and maintenance assessment rate?

    (a) We provide public notice of our proposed rates annually in the 
Federal Register.
    (b) You may contact the irrigation facility servicing your farm 
unit.


Sec.  171.570  What is the Federal Register and where can I get it?

    (a) The Federal Register is the official daily publication for 
Rules, Proposed Rules, and Notices of official actions by Federal 
agencies and organizations, as well as Executive Orders and other 
Presidential Documents and is produced by the United States Government 
Printing Office (GPO).
    (b) You can get publications of the Federal Register:
    (1) By going on the World Wide Web at http://www.gpo.gov;
    (2) By writing to the GPO, Superintendent of Documents, P.O. Box 
371954, Pittsburgh, Pennsylvania 15250-7954; or
    (3) By calling them at (202) 512-1530.


Sec.  171.575  Can BIA change my annual operation and maintenance 
assessment without notifying me first?

    Yes. If we determine in writing we have a significant uncontrolled 
cost change that requires an immediate adjustment we will change your 
annual operation and maintenance assessment without notifying you 
first. However, we will make every reasonable effort to comply with 
Sec.  171.565 as soon as practicable.

Subpart F--Records, Agreements, and Other Matters


Sec.  171.600  What information is collected and retained on the 
irrigation service I receive?

    We will collect and retain at least the following information as 
part of our record of the irrigation service we have provided you:
    (a) Your name;
    (b) Delivery point(s) where service was provided;
    (c) Beginning date and time of your irrigation service;
    (d) Ending date and time of your irrigation service; and
    (e) Amount of water we delivered to your farm unit.


Sec.  171.605  Can I establish a Carriage Agreement with the BIA?

    (a) We may agree in writing to carry third party water through our 
facilities to your lands not served by our facilities if we have 
determined that our facilities have adequate capacity to do so.
    (b) If we determine that carrying water in accordance with 
paragraph (a) of this section is jeopardizing our ability to provide 
irrigation service to the lands we are required to serve, we will 
terminate the Agreement.
    (c) We may enter into an agreement with a third party to provide 
service through their facilities to your isolated assessable lands.
    (d) You must pay us all administrative, operating, maintenance, and 
rehabilitation costs associated with any agreement established under 
this section before we will convey water.
    (e) We will notify you in writing no less than 5 days before 
terminating a Carriage Agreement established under this section.
    (f) We may terminate a Carriage Agreement without notice due to an 
urgency we have identified.

[[Page 40458]]

Sec.  171.610  May I arrange an Incentive Agreement if I want to farm 
idle lands?

    We may approve an Incentive Agreement if:
    (a) You request one in writing at least 90 days prior to the 
beginning of the irrigation season that includes a detailed plan to 
improve the idle lands, which contains at least the following:
    (1) A description of specific improvements you will make, such as 
clearing, leveling, or other activities;
    (2) The estimated cost of the improvements you will make;
    (3) The time schedule for your proposed improvements;
    (4) Your proposed schedule for water delivery, if necessary; and
    (5) Justification for use of irrigation water during the 
improvement period.
    (b) You sign our Incentive Agreement containing terms and 
conditions we specify.


Sec.  171.615  Can I request improvements to BIA facilities as part of 
my Incentive Agreement?

    Yes. You may request and we may agree to make improvements as part 
of your Incentive Agreement that we determine are in the best interest 
of the irrigation facility servicing your farm unit.

Subpart G--Non-Assessment Status


Sec.  171.700  When do I not have to pay my annual operation and 
maintenance assessment?

    You do not have to pay your annual operation and maintenance 
assessment for your land(s) within the service area of your irrigation 
facility when:
    (a) We grant you an Annual Assessment Waiver; or
    (b) Your land is re-designated as permanently non-assessable or 
temporarily non-assessable.


Sec.  171.705  What criteria must be met for my land to be granted an 
Annual Assessment Waiver?

    For your land to be granted an Annual Assessment Waiver, we must 
determine that our irrigation facilities are not capable of delivering 
adequate irrigation water to your farm unit. Inadequate water supply 
due to natural conditions or climate is not justification for us to 
grant an Annual Assessment Waiver.


Sec.  171.710  Can I receive irrigation water if I am granted an Annual 
Assessment Waiver?

    No. Water will not be delivered in any quantity to your farm unit 
if you have been granted an Annual Assessment Waiver.


Sec.  171.715  How do I obtain an Annual Assessment Waiver?

    For your land to be granted an Annual Assessment Waiver, you must:
    (a) Send us a request in writing to have your land granted an 
Annual Assessment Waiver.
    (b) Submit your request prior to the bill due date for the year for 
which you are requesting the Annual Assessment Waiver; and
    (c) Receive our approval in writing.


Sec.  171.720  For what period does an Annual Assessment Waiver apply?

    Annual Assessment Waivers are only valid for the year in which they 
are granted. To obtain an Annual Assessment Waiver for a subsequent 
year, you must reapply.

 [FR Doc. E6-11293 Filed 7-14-06; 8:45 am]
BILLING CODE 4310-W7-P