02-21692. Trust Management Reform: Repeal of Outdated Rules

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Final rule; removal of rules.

SUMMARY:

The Department of the Interior, Bureau of Indian Affairs (BIA) is removing nine outdated parts of Title 25 CFR. This action is meant to further fulfill the Secretary's responsibility to federally-recognized tribes and individual Indians by ensuring that regulations, policies, and procedures are up-to-date. The parts being removed include regulations relating to distribution of tribal funds among tribal members, establishment of private trusts for the Five Civilized Tribes, distribution of Osage Judgment Funds, assignment of future income from the Alaska Native Fund, payment of Sioux benefits, preparation of a competency roll of Osage Indians, reallotment of lands to Indian children, resale of lands within the Badlands Air Force Range, and registration of reindeer ownership in Alaska. In the interests of economy of administration, and because all of the regulations proposed to be removed are outdated, they are included in one rulemaking vehicle.

EFFECTIVE DATE:

October 25, 2002.

FOR FURTHER INFORMATION CONTACT:

Linda L. Richardson, Trust Policies and Procedures Subproject, Bureau of Indian Affairs, 1849 C Street, NW., MS-4070-MIB, Washington, DC 20240, telephone [phone].

SUPPLEMENTARY INFORMATION:

I. Background

II. Response to Comments

III. Procedural Requirements

A. Review Under Executive Order 12866 (Regulatory Planning and Review)

B. Review Under Executive Order 12988 (Civil Justice Reform)

C. Review Under Executive Order 12291 and the Regulatory Flexibility Act

D. Review Under Small Business Regulatory Enforcement Fairness Act of 1996

E. Review Under the Paperwork Reduction Act

F. Review Under Executive Order 13132 (Federalism)

G. Review Under the National Environmental Policy Act of 1969

H. Review Under the Unfunded Mandates Reform Act of 1995

I. Review Under Executive Order 12630 (Takings Implication Assessment)

J. Review Under Executive Order 13175 (Tribal Consultation)

I. Background

Proper management of Indian trust assets has been hampered by a lack of comprehensive, consistent, up-to-date regulations, policies, and procedures covering the entire trust cycle. The BIA began revising its trust management regulations by issuing proposed revisions to regulations governing probate, trust funds, leasing, and grazing. Updated regulations affecting these functions became effective on March 23, 2001.

In April 2001, BIA submitted a report to senior Departmental officials that provided a comprehensive review of regulations, manuals and handbooks that guide trust operations. The report included recommended actions to bring all policies and procedures current and outlined a multi-year schedule to accomplish this goal. The review identified a number of regulations still on the books that are no longer operative, either because all actions required by law have been fully implemented or because the regulation no longer comports with Federal Indian policy. On February 21, 2002 (67 FR 7985), BIA published a proposed rule with a request for comments to remove 25 CFR parts 112, 116, 121, 123, 125, 154, 156, 178, and 243.

II. Response to Comments

The BIA received comments from three Indian tribes, none of whom objected to the proposed removal of the nine parts; therefore, no changes have been made.

III. Procedural Requirements

A. Review Under Executive Order 12866 (Regulatory Planning and Review)

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the BIA must determine whether the regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

The rule would remove a number of outdated regulations. As such, it does not impose a compliance burden on the economy generally or on any person or entity. Accordingly, this rule is not a “significant regulatory action” from an economic standpoint, and it does not otherwise create any inconsistencies or budgetary impacts to any other agency or Federal program.

B. Review Under Executive Order 12988 (Civil Justice Reform)

With respect to the review of existing regulations and the promulgation of new regulations, subsection 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction.

With regard to the review of proposed regulations, subsection 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General.

Subsection 3(c) of Executive Order 12988 requires agencies to review proposed regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. The BIA has determined that the removal of outdated parts meets the relevant standards of Executive Order 12988.

C. Review Under Executive Order 12291 and the Regulatory Flexibility Act

Because this rule would remove outdated regulations, the BIA has determined that this rule is not a significant rule under Executive Order 12866. This rule was also reviewed under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., which requires preparation of a regulatory flexibility analysis for any rule which is likely to have significant economic impact on a substantial number of small entities.

This rule updates the Department's policies and procedures that apply to certain Indian trust resources by eliminating unneeded regulatory requirements. Accordingly, the BIA has determined that this rule will not have a significant economic impact on a substantial number of small entities, and, therefore, no regulatory flexibility analysis has been prepared.

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

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This proposed rule will not result in an annual effect on the economy of $100,000,000 or more. The effect of this rulemaking will be to streamline and modernize policies, procedures and management operations of the BIA by eliminating unnecessary regulations. No increases in costs for administration will be realized, and no prices would be affected through these revisions as, in practice, the regulations being removed are already inoperative.

This rulemaking will not result in any significant adverse effects on competition, employment, investment, productivity, or innovation, nor on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. These administrative revisions to BIA policy and procedure will not have an impact on any small business businesses or enterprises.

E. Review Under the Paperwork Reduction Act

This rule is exempt from the requirements of the Paperwork Reduction Act, since it repeals existing regulations. An OMB form 83-1 is not required.

F. Review Under Executive Order 13132 (Federalism)

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

G. Review Under the National Environmental Policy Act of 1969

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

H. Review Under the Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995, Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. Under section 202 of the Act, the BIA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to state, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. This 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.

I. Review Under Executive Order 12630 (Takings Implication Assessment)

In accordance with Executive Order 12630, this rule does not have significant takings implications. This rule does not involve the “taking” of private property interests.

J. Review under Executive Order 13175 (Tribal Consultation)

The BIA determined that, because the removal of current regulations has tribal implications, it was an appropriate topic for consultation with tribal governments. This consultation is in keeping with Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” In April 2001, BIA sent all tribal leaders a report that documents the results of a BIA review of existing regulations, policies, and procedures that affect delivery of trust services to tribal governments and individual Indians. Included in the report was a multi-year schedule for bringing all trust regulations, policies and procedures up-to-date. In May 2001, the BIA sent all tribal leaders a letter describing and identifying ten parts of Title 25 CFR that we were considering for removal. Regional directors followed up to determine if there were tribal concerns with any aspects of the proposal.

Following publication of the proposed rule, BIA again notified tribal governments of the substance of this rulemaking through a direct mailing. This enabled tribal officials and the affected tribal constituency throughout Indian Country to have meaningful and timely input in the development of the final rule.

List of Subjects

25 CFR Part 112

• Indians—business and finance

25 CFR Part 116

• Estates
• Indians—business and finance
• Trusts and trustees

25 CFR Part 121

• Indians—claims
• Indians—judgment funds

25 CFR Part 123

• Alaska
• Indian—claims

25 CFR Part 125

• Indians—claims
• Reporting and recordkeeping requirements

25 CFR Part 154

• Indians—lands

25 CFR Part 156

• Indians—lands

25 CFR Part 178

• Indians—lands

25 CFR Part 243

• Alaska
• Indians—business and finance
• Reindeer

Accordingly, under the authority in 25 U.S.C. 9, 25 CFR chapter 1 is amended by removing parts 112, 116, 121, 123, 125, 154, 156, 178, and 243.

Dated: August 12, 2002.

Neal A. McCaleb,

Assistant Secretary—Indian Affairs.