[Federal Register Volume 66, Number 82 (Friday, April 27, 2001)]
[Rules and Regulations]
[Pages 21086-21090]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-10250]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 183

RIN: 1076-AE10


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.

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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 (202) 208-5480.

FOR FURTHER INFORMATION CONTACT: Wayne Nordwall, Regional Director,

[[Page 21087]]

Bureau of Indian Affairs, Western Regional Office, Attn: Branch of 
Water and Land Resources, P.O. Box 10, Phoenix, Arizona 85001; 
Telephone (602) 379-6789.

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

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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 ``Sec. '' and a numbered heading; for example, 
Sec. 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: <a href="/cdn-cgi/l/email-protection#b7f2cfc4d2d4f7ded8c499d3d8de99d0d8c1"><span class="__cf_email__" data-cfemail="21645952444261484e520f454e480f464e57">[email protected]</span></a>

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:
    <bullet> The San Carlos Apache Tribe Water Rights Settlement Act 
required us to promulgate rules no later than 30 days after December 
31, 1999; and
    <bullet> 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
Sec.
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


Sec. 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.


Sec. 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

[[Page 21089]]

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.


Sec. 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


Sec. 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


Sec. 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.


Sec. 183.6  How long will it take to get a decision?

    Within 30 days of receiving the information required by Sec. 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.


Sec. 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 Sec. 183.5;
    (b) Fails to provide reports required under Secs. 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


Sec. 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 
Sec. 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


Sec. 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.


Sec. 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;

[[Page 21090]]

    (b) For community development purposes; and
    (c) For administrative costs reasonably related to the above.

Clearance Requirements


Sec. 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.


Sec. 183.12  How long will it take to receive a decision?

    Within 30 days of receiving the information required by Sec. 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.


Sec. 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 Sec. 183.5;
    (b) Fails to provide reports required under Secs. 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


Sec. 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 Sec. 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


Sec. 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.


Sec. 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


Sec. 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.


Sec. 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).
[FR Doc. 01-10250 Filed 4-26-01; 8:45 am]
BILLING CODE 4310-02-P


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