01-10250. Use and Distribution of the San Carlos Apache Tribe Development Trust Fund and San Carlos Apache Tribe Lease Fund

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Final rule.

SUMMARY:

The Bureau of Indian Affairs (BIA) is amending its regulations by adding a new part in response to the San Carlos Apache Tribe Water Rights Settlement Act. The Act sets up two funds for the benefit of the San Carlos Apache Tribe, namely, the San Carlos Apache Tribe Development Trust Fund and the San Carlos Apache Tribe Lease Fund. This regulation sets out the criteria and processes involved in the distribution of principal and income for the Trust Fund and the distribution of income accrued for the Lease Fund, as administered by the BIA. The Act required the Secretary to promulgate rules no later than 30 days after December 31, 1999. The Secretary consulted extensively with the Tribe on the content of the rule from January through July 2000. Since the rule is more than one year late in being promulgated, the Secretary is issuing this rule as a Final Rule that will become effective upon publication.

DATES:

This rule is effective on April 27, 2001. Comments must be received on or before June 26, 2001.

ADDRESSES:

Send comments to: Terry Virden, Director, Office of Trust Responsibilities, Bureau of Indian Affairs, Attn: Branch of Irrigation and Power, MS 3061-MIB, Code 210, 1849 C Street, NW., Washington, DC 20240; Telephone [phone].

FOR FURTHER INFORMATION CONTACT:

Wayne Nordwall, Regional Director, Bureau of Indian Affairs, Western Regional Office, Attn: Branch of Water and Land Resources, P.O. Box 10, Phoenix, Arizona 85001; Telephone [phone].

SUPPLEMENTARY INFORMATION:

The authority to issue this document is vested in the Secretary of the Interior by 5 U.S.C. 301; the Act of August 14, 1914 (38 Stat. 583; 25 U.S.C. 385). The Secretary has delegated this authority to the Assistant Secretary—Indian Affairs under part 209 Departmental Manual, Chapter 8.1A and Memorandum dated January 25, 1994, from Chief of Staff, Department of the Interior, to Assistant Secretaries, and Heads of Bureaus and Offices.

Background

The San Carlos Apache Tribe Water Rights Settlement Act (the Act), Public Law 102-575, 106 Stat. 4740 et seq., set up two funds for the benefit of the San Carlos Apache Tribe (Tribe), namely, the San Carlos Apache Tribe Development Trust Fund (Trust Fund) and the San Carlos Apache Tribe Lease Fund (Lease Fund). The Act required the Secretary of the Interior (Secretary) to promulgate regulations to properly administer and provide for the distribution of principal and income accrued to the Trust Fund. For the sake of consistency, we are issuing regulations that will provide, also, for the distribution of income accrued to the Lease Fund—though the Act did not require this action. These regulations were developed in consultation between the Bureau of Indian Affairs (BIA) and the Tribe over the time from January through July, 2000. These consultations were in keeping with the Administration's policy on government-to-government consultations, as first iterated by the President's memorandum of April 29, 1994. While this has resulted in a longer regulation development period—a period beyond the statutory requirements of the Act—the result of a cohesive, consensus agreement as presented in the proposed regulations significantly mitigates against any delay in their promulgation.

A new part 183 is, therefore, being added to title 25 of the Code of Federal Regulations to allow for the administration of the Trust Fund and the Lease Fund for the benefit of the Tribe.

Public Comments

Comments should be submitted to the address indicated in the ADDRESSES section of this document, where they will be available for public inspection. All written comments received by the BIA, by the date indicated in the DATES section of this document, and all other relevant information in the record will be carefully assessed and fully considered.

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, that we will honor to the extent allowed by law. There also may be circumstances in that we would withhold a respondent's identity from the rulemaking record, 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.

Regulatory Planning and Review (Executive Order 12866)

In accordance with the criteria in Executive Order 12866, this rule is not a significant regulatory action. This rule will not have an annual economic effect of $100 million or adversely effect an economic sector, productivity, jobs, the environment or other units of government. The rule applies only to one small Tribal community in Arizona and is required to be promulgated by the Secretary as a pre-requisite to the Tribe being able to use trust funds provided to the Tribe in its water rights settlement act. A cost-benefit and economic analysis was not prepared because such analysis is irrelevant to the right of the Tribe to have access to this trust fund under its water rights settlement act. This rule will not create inconsistencies with other agencies' actions because no other agency has any program responsibility over the distribution of the Tribe's trust fund. This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients because the rule only applies to the distribution of money belonging to one Tribe and is required to permit the Tribe to use its money. This rule will not raise novel legal or policy issues because the Secretary's legal and policy authority to administer and distribute Indian trust funds is well-established.

Regulatory Flexibility Act

The Department of the Interior, BIA, certifies that this rule will not have a significant economic effect on a substantial number of small entities as defined 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

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule does not have an annual effect on the economy of $100 million or more because it applies only to one small Tribe in Arizona. This rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, state or local government agencies, or geographic regions because it applies only to one small Tribe in Arizona. This rule does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of the U.S.-based enterprises to compete with foreign-based enterprises because it applies only to one small Tribe in Arizona.

Unfunded Mandates Reform Act

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501, et seq.), this rule will not produce a Federal mandate of $100 million or greater in any year, i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act because the rule applies only to one small Tribe in Arizona. This rule will not “significantly or uniquely” affect small governments and a Small Government Agency Plan is not required because the rule applies only to one small Tribe in Arizona, concerns trust funds owned by this one small Tribe, and is required by the Tribe's water rights settlement act in order for the Tribe to use the trust funds provided under the settlement act. Further, the Secretary consulted extensively with the Tribe on the proposed rule from January through July 2000.

Takings Implication Assessment (Executive Order 12630)

In accordance with Executive Order 12630, the rule does not have significant takings implications. A takings implication assessment is not required. Nothing is taken by the Federal Government; the rule merely provides a process for administering this program.

Federalism (Executive Order 13132)

This rule does not have significant Federalism effects to warrant the preparation of a Federalism Assessment under Executive Order 13132. This rule will not have substantial direct effects on the states, in their relationship between the Federal Government and the states, or on the distribution of power and responsibilities among the various levels of government.

Civil Justice Reform (Executive Order 12988)

In accordance with Executive Order 12988, the Office of the Solicitor has determined that the 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

This rule contains information collection requirements. However, this collection comes from only one respondent in one Tribe. The Tribal Council of the San Carlos Apache Tribe has sole access to the money through submission of a spending plan and request for funds. Therefore, it does not meet the requirements of “ten or more persons annually” as defined in the Paperwork Reduction Act (5 CFR 1320.3(c)(4)) and need not be cleared by the Office of Management and Budget.

National Environmental Policy Act

We have analyzed this rule in accordance with the criteria of the National Environmental Policy Act and 318 DM 2.2(g) and 6.3(D). This rule does not constitute a major Federal action significantly affecting the quality of the human environment. An environmental impact statement/assessment is not required. The promulgation of this rule is mandated by Section 3703(d) of Public Law 102-575 and the Secretary has no discretion that could be informed by an environmental impact statement or environmental statement.

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 “§ ” and a numbered heading; for example, § 183.2 What terms 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? 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: [e-mail]

Administrative Procedure Act

We are publishing this rule as a final rule without first publishing a proposed rule, as allowed under the good cause exception in 5 U.S.C. section 553(b)(3)(B). Seeking public comment is impractical, unnecessary and contrary to the public interest for the following reasons:

• The San Carlos Apache Tribe Water Rights Settlement Act required us to promulgate rules no later than 30 days after December 31, 1999; and
• Further delaying publication of this rule could cause financial harm to the San Carlos Tribe.

We are also making the rule effective as of the date of publication as allowed under the good cause exception in 5 U.S.C. section 553(d)(3). Delaying the effective date of this rule is unnecessary and contrary to the public interest because this could cause financial harm to the San Carlos Apache Tribe.

We invite comments on any aspect of this rule and we will revise the rule if comments warrant. Send comments on this rule to the address in the ADDRESSES section.

List of Subjects in 25 CFR Part 183

• Accounting
• Indians—business and finance

For the reasons stated in the preamble, the Department of the Interior, Bureau of Indian Affairs, is adding a new Part 183 in subchapter H, chapter I of Title 25 of the Code of Federal Regulations as follows:

PART 183—USE AND DISTRIBUTION OF THE SAN CARLOS APACHE TRIBE DEVELOPMENT TRUST FUND AND SAN CARLOS APACHE TRIBE LEASE FUND

Subpart A—Introduction

183.1

What is the purpose of this part?

183.2

What terms do I need to know?

183.3

Does the American Indian Trust Fund Management Reform Act of 1994 apply to this part?

Subpart B—Trust Fund Disposition Use of Principal and Income

183.4

How can the Tribe use the principal and income from the Trust Fund?

Clearance Requirements

183.5

What documents must the Tribe submit to request money from the Trust Fund?

183.6

How long will it take to get a decision?

183.7

What would cause the Secretary to disapprove a request?

Limitations

183.8

How can the Tribe spend funds?

Subpart C—Lease Fund Disposition Use of Principal and Income

183.9

Can the Tribe request the principal of the Lease Fund?

183.10

How can the Tribe use income from the Lease Fund?

Clearance Requirements

183.11

What documents must the Tribe submit to request money from the Lease Fund?

183.12

How long will it take to receive a decision?

183.13

What would cause the Secretary to disapprove a request?

Limitations

183.14

What limits are there on how the Tribe can spend funds?

Subpart D—Reports

183.15

Must the Tribe submit any reports?

183.16

What information must be included in the Tribe's annual report?

Subpart E—Liability

183.17

If expenditures under this part lead to a claim or cause of action, who is liable?

183.18

Information collection requirements

Authority: Pub. L. 102-575, 106 Stat. 4740 et seq.

Subpart A—Introduction

§ 183.1

What is the purpose of this part?

This part implements section 3707(e) of the San Carlos Apache Tribe Water Settlement Act (the Act), Public Law 102-575, 106 Stat. 4748, that requires regulations to administer the Trust Fund, and the Lease Fund established by the Act.

§ 183.2

What terms do I need to know?

In this part:

Administrative costs means any cost, including indirect costs, incurred by the Tribe reasonably related to an allowed use of funds under the Settlement Act, including indirect costs.

Beneficial use means any use to which the Tribe's water entitlement is put that is authorized by the Settlement Act, the Settlement Agreement, or by the Tribal Council under the Settlement Act, the Settlement Agreement or otherwise permitted by law.

CAP means the Central Arizona Project, a reclamation project authorized under title III of the Colorado River Basin Project Act of 1968 (43 U.S.C. 1521 et seq.).

Community development project or purpose means any business, recreational, social, health, education, environment, or general welfare project approved by the Tribal Council for the benefit of any community within the reservation.

Economic development project or purpose means any commercial, industrial, agricultural, or business project approved by the Tribal Council for the purpose of profit to the Tribe.

Income means interest or income earned or accrued on the principal of the Trust Fund or the Lease Fund and is available for distribution to the Tribe in accordance with the Settlement Act and this part. Beginning with calendar year 2001, any income that has been earned or has accrued on the principal of the Trust Fund or the Lease Fund and that has not been requested for distribution by the Tribe by December 31, shall become part of the principal of the Trust Fund or the Lease Fund on January 1 of the next calendar year.

Lease Fund means the San Carlos Apache Tribe Lease Fund established in the Treasury of the United States under section 3711(d)(3)(E)(iv) of the Settlement Act.

Principal means:

(1) The amount of funds in the Trust Fund or the Lease Fund as of January 1, 2002; and

(2) Any income thereon that is not distributed, and has been added to the principal, in accordance with the Settlement Act and this part.

Pro forma budget means a budget, and operating statement, showing the estimated results for operating the economic development project for two years after injection of the principal or income into the operation.

Secretary means the Secretary of the Interior or an authorized representative acting under delegated authority. The term “Secretary':

(1) Includes the Regional Director for the Western Regional Office of the Bureau of Indian Affairs; and

(2) Does not include the Superintendent of the San Carlos Agency of the Bureau of Indian Affairs.

Settlement Act means the San Carlos Apache Tribe Water Settlement Act of 1992, Title XXXVII of Public Law 102-575, 106 Stat. 4740, and any amendments thereto.

Settlement Agreement means the agreement and any amendments executed and approved in accordance with the Settlement Act.

Tribe means the San Carlos Apache Tribe, a Tribe of Apache Indians, under the Apache Treaty, July 1, 1852, 10 Stat. 970, organized under section 16 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 987; 25 U.S.C. 476), and duly recognized by the Secretary of the Interior.

Trust Fund means the San Carlos Apache Tribe Development Trust Fund established in the Treasury of the United States under section 3707(b) of the Settlement Act.

We and us mean the Secretary of the Interior as defined in this section.

§ 183.3

Does the American Indian Trust Fund Management Reform Act of 1994 apply to this part?

Yes. We will manage and make distributions from the Trust Fund in accordance with the American Indian Trust Funds Management Act of 1994 (Management Act), except where the Management Act conflicts with the Settlement Act or this part. If there is a conflict, we will follow the provisions of the Settlement Act or this part.

Subpart B—Trust Fund Disposition

Use of Principal and Income

§ 183.4

How can the Tribe use the principal and income from the Trust Fund?

The Tribe may use the principal and income from the Trust Fund in the following ways:

(a) To put to beneficial use the water entitlement provided to the Tribe in the Settlement Act;

(b) To defray the cost to the Tribe of CAP operation, maintenance, and replacement charges;

(c) For economic development purposes; provided, however, that principal may only be used for long-term economic development projects and income may be used for other economic and community development purposes; and

(d) For Administrative Costs reasonably related to the above uses.

Clearance Requirements

§ 183.5

What documents must the Tribe submit to request money from the Trust Fund?

To request a distribution of principal or income from the Trust Fund, the Tribe must submit to us all of the following documents.

(a) A certified copy of a duly enacted resolution of the Tribal Council requesting a distribution from the Trust Fund;

(b) A written budget and supporting documentation, approved by the Tribal Council, showing precisely how the tribe will spend the money, including what amounts should come from principal and what amounts should come from income;

(c) A pro forma budget for each identified economic development project, and a program budget for each identified community development project; and

(d) A certification stating that the Tribe will use the funds in accordance with budgets submitted under this section.

§ 183.6

How long will it take to get a decision?

Within 30 days of receiving the information required by § 183.5 we will approve your request if it complies with the Settlement Act and this part. If we disapprove your request we will do so in writing and will provide you with the reasons for disapproval.

§ 183.7

What would cause the Secretary to disapprove a request?

We will only disapprove a request for the distribution of principal or income from the Trust Fund if the request does any of the following:

(a) Fails to provide the documents identified in § 183.5;

(b) Fails to provide reports required under §§ 183.15 and 183.16; or

(c) Includes a use requested or written budget that does not comply with a specific provision of the Settlement Act, or this part.

Limitations

§ 183.8

How can the Tribe spend funds?

(a) The Tribe must spend principal or income distributed from the Trust Fund only in accordance with a written budget submitted under § 183.5.

(b) The Tribe must not spend the principal or income from the Trust Fund to make per capita payments to members of the Tribe.

Subpart C—Lease Fund Disposition

Use of Principal and Income

§ 183.9

Can the Tribe request the principal of the Lease Fund?

No. We cannot distribute the principal from the Lease Fund to the Tribe.

§ 183.10

How can the Tribe use income from the Lease Fund?

The Tribe may use income from the Lease Fund for the following purposes:

(a) For economic development purposes;

(b) For community development purposes; and

(c) For administrative costs reasonably related to the above.

Clearance Requirements

§ 183.11

What documents must the Tribe submit to request money from the Lease Fund?

To request a distribution of income from the Lease Fund, the Tribe must submit to us all of the following documents:

(a) A certified copy of a duly enacted resolution of the Tribal Council requesting a distribution from the Lease Fund;

(b) A pro forma budget for each identified economic development project and a program budget for each identified community development project, approved by the Tribal Council, showing precisely how the Tribe will spend the money;

(c) Supporting documentation for the budgets required by paragraph (b) of this section, and

(d) A certification stating that the Tribe will use the funds in accordance with budgets submitted under this section.

§ 183.12

How long will it take to receive a decision?

Within 30 days of receiving the information required by § 183.11 we will approve your request if it complies with the Settlement Act and this part. If we disapprove your request we will do so in writing and will provide you with the reasons for disapproval.

§ 183.13

What would cause the Secretary to disapprove a request?

We will only disapprove a request for distribution of income from the Lease Fund if the request does any of the following:

(a) Fails to provide the documents identified in § 183.5;

(b) Fails to provide reports required under §§ 183.15 and 183.16; or

(c) Includes a use requested or written budget that does not comply with a specific provision of the Settlement Act or this part.

Limitations

§ 183.14

What limits are there on how the Tribe can spend funds?

(a) The Tribe must spend income distributed from the Lease Fund only in accordance with a written budget submitted under § 183.5.

(b) The Tribe must not spend the income from the Lease Fund to make per capita payments to members of the Tribe.

Subpart D—Reports

§ 183.15

Must the Tribe submit any reports?

Yes. The Tribe must submit the following reports after receiving funds under this part:

(a) An Annual Report, that must be submitted no later than December 31 of each year; and

(b) A Financial Audit, that must be submitted no later than March 1 of each year.

§ 183.16

What information must be included in the Tribe's annual report?

The Tribe's annual report must contain the following information:

(a) An accounting of the expenditures of funds distributed to the Tribe from the Trust Fund or the Lease Fund for the preceding 12 months;

(b) A description, in detail, of how the Tribe has used the funds distributed from the Trust Fund or the Lease Fund consistently with the requirements in the Settlement Act, this part, and the budget approved by the Tribal Council and the Secretary; and

(c) Sufficient documentation for us to determine that the Tribe has satisfied the requirements of paragraph (b) of this section.

Subpart E—Liability

§ 183.17

If expenditures under this part lead to a claim or cause of action, who is liable?

The Tribe may be liable. The United States must not be liable for any claim or cause of action arising from the Tribe's use or expenditure of monies distributed from the Trust Fund or the Lease Fund.

§ 183.18

Information Collection Requirements

The information collection requirements contained in this part do not meet the requirements of “ten or more persons” annually; therefore, the Office of Management and Budget does not need to clear the collection. You may direct comments concerning this information collection to the Bureau of Indian Affairs, Information Collection Control Officer, 1849 C Street, NW, Washington, DC 20240.

Dated: April 19, 2001.

James H. McDivitt,

Deputy Assistant Secretary—Indian Affairs (Management).