[Federal Register Volume 66, Number 117 (Monday, June 18, 2001)]
[Rules and Regulations]
[Pages 32884-32890]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-15166]



[[Page 32883]]

-----------------------------------------------------------------------

Part III





Department of the Interior





-----------------------------------------------------------------------



Office of Hearings and Appeals



-----------------------------------------------------------------------



43 CFR Part 4



Trust Management Reform: Probate of Indian Trust Estates; Interim Final 
Rule

Federal Register / Vol. 66, No. 117 / Monday, June 18, 2001 / Rules 
and Regulations

[[Page 32884]]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Hearings and Appeals

43 CFR Part 4

RIN 1090-AA78


Trust Management Reform: Probate of Indian Trust Estates

AGENCY: Office of Hearings and Appeals, Office of the Secretary, 
Interior.

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: The Department of the Interior, Office of Hearings and Appeals 
(OHA), is revising its regulations regarding hearings and appeals 
involving the probate of property and funds held in trust or restricted 
status for individual Indians and Alaska Natives. These revisions are 
meant to further the Secretary's trust responsibility to these 
individuals. The revisions make OHA's probate regulations consistent 
with those recently adopted by the Bureau of Indian Affairs (BIA) to 
accommodate BIA's re-assumption of responsibility for some probate 
cases. OHA's revisions will ensure that BIA and OHA apply the same 
standards and criteria for determining heirs and paying claims and 
coordinate their procedures to expedite the probate process for Indian 
decedents' estates. Because of this need for consistency, OHA is making 
the revisions immediately effective, although OHA is also requesting 
comments on these revisions and will consider them prior to issuing a 
final rule.

DATES: This rule is effective June 18, 2001. Comments must be submitted 
in writing and received by us no later than August 17, 2001.

ADDRESSES: Comments should be addressed to Charles E. Breece, Principal 
Deputy Director, Office of Hearings and Appeals, 4015 Wilson Boulevard, 
Arlington, Virginia 22203, or by electronic mail to 
<a href="/cdn-cgi/l/email-protection#56262439343722330935393b3b33382225163f39257832393f78313920"><span class="__cf_email__" data-cfemail="2b5b5944494a5f4e74484446464e455f586b424458054f4442054c445d">[email protected]</span></a>. Comments will also be accepted by telefax 
at the following telephone number: 703-235-9014.

FOR FURTHER INFORMATION CONTACT: Charles E. Breece, Principal Deputy 
Director, Office of Hearings and Appeals, 4015 Wilson Boulevard, 
Arlington, Virginia 22203, telephone 703-235-3810.

SUPPLEMENTARY INFORMATION:
I. Background
II. Section-by-Section Analysis
III. Public Comment Procedures
IV. Procedural Requirements
    A. Review Under Executive Order 12866 (Regulatory Planning and 
Review)
    B. Review Under Executive Order 12988 (Civil Justice Reform)
    C. Review Under 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
    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)
    K. Review under Executive Order 13211 (Energy Impacts)
V. List of Subjects.

I. Background

    In an effort to improve the services provided by the Secretary of 
the Interior to individual Indians and Alaska Natives,\1\ and in 
recognition of its trust responsibility to such individuals, the 
Department's ``Trust Management Improvement Project--High Level 
Implementation Plan,'' as revised and updated on February 29, 2000, 
identified certain changes in the Department's procedures that are 
necessary in order to eliminate the current backlog in processing 
Indian probates and to promptly and efficiently process future Indian 
probates. Addressing the severe backlog in the Department's disposition 
of Indian decedents' estates was identified as essential to assuring 
the orderly transfer of Indian trust funds and lands. These revised 
procedures grew out of the Department's Indian Probate Reinvention Lab 
(IPRL), which was chartered in 1999. The IPRL examined the Department's 
Indian probate process from a multi-agency perspective, including the 
Bureau of Indian Affairs (BIA) and the Office of Hearings and Appeals 
(OHA). Based on its analysis, which included reviewing reports from 
previous studies of Indian probate matters, site visits, and interviews 
of customers and employees, the IPRL recommended numerous changes to 
the probate process. The Department's High Level Implementation Plan 
and the reports of the IPRL are available at http://www.doi.gov/bia/probates/index.htm.
---------------------------------------------------------------------------

    \1\ Throughout the remainder of this preamble, the term 
``Indian'' will be used as a shorthand to refer to both individual 
Indians and Alaska Natives.
---------------------------------------------------------------------------

    After the IPRL issued its reports, BIA developed regulations in 
consultation with OHA and the Office of the Special Trustee for 
American Indians (OST) to implementation the IPRL's recommendations and 
to improve the administration and management of individual Indian trust 
resources. BIA developed its probate rules through informal 
consultation with affected tribal governments and Indian individuals. 
Drafts of the various parts were initially developed through the use of 
in-house teams within BIA. These teams consisted of federal personnel 
from headquarters and the field, and included program officers and 
Departmental attorney's possessing extensive knowledge and experience 
with the particular subject matter.
    BIA then shared these drafts with tribal entities and national 
tribal organizations for their input and recommendations. In many 
cases, the draft regulations were further expanded to respond to tribal 
concerns about clarity and ease of administration. BIA also invited 
tribal participation by contacting the National Congress of American 
Indians, which represents a number of tribes. The National Congress of 
American Indians established a working group to assist in the 
development of the regulations. BIA also secured input from tribes by 
requesting that BIA field personnel contact their respective tribes on 
a regional basis and transmit drafts of the proposed rules to them for 
discussion and comment. In addition, in accordance with the government-
to-government relationship with tribes, BIA scheduled consultations 
with the tribes during the comment period on the proposed rule to 
facilitate an informed final rule. The recently adopted regulations at 
25 CFR part 15 implementation for BIA procedural aspects of the IPRL's 
recommendations. OHA is now amending its regulations to make them 
consistent with BIA's newly adopted regulations governing these probate 
cases, and to ensure that BIA and OHA are applying the same standards 
and criteria for determining heirs and paying claims. OHA is requesting 
comments on its revised procedures and anticipates issuing a final rule 
in October 2001.
    In this interim rule, OHA is making those changes to its 
regulations that are necessary to avoid inconsistencies in the 
processing of Indian probate cases between BIA and OHA deciding 
officials. BIA and OHA are both contemplating further revisions to the 
probate process, and will ensure that such future changes are 
coordinated to avoid any gaps or inconsistencies.

II. Section-by-Section Analysis

    The purpose of the changes to 43 CFR part 4, subpart D, is to make 
the policies

[[Page 32885]]

and procedures that OHA uses to probate an Indian decedent's trust 
estate consistent with those recently adopted by BIA to ensure 
uniformity of treatment within the Department. The various provisions 
of subpart D address the purpose and scope of the Indian probate 
procedures; the mechanics of initiating the probate process; the 
disposition of claims against an estate; the ultimate distribution of 
the decedent's assets to the determined heirs or beneficiaries; and an 
appeals process to follow should disputes arise during any stage of the 
probate process. Cross references have been made to the BIA hearings 
procedures, including the determination of heirs, approval of wills, 
and the approval of claims.

Authority Citation

    The authority citation for 43 CFR part 4, subpart D is revised to 
add 25 U.S.C. 410.

Cross Reference

    The Cross Reference in subpart D is revised to refer to BIA's 
probate regulations at 25 CFR part 15.

Section 4.201  Definitions

    This section is revised to add several new definitions taken from 
the new BIA regulations in 25 CFR 15.2, including definitions for the 
terms ``attorney decision maker,'' ``BIA,'' ``BIA deciding official,'' 
``beneficiary,'' ``day,'' ``decedent,'' ``estate,'' ``heir,'' ``IIM 
account,'' ``intestate,'' ``OTFM,'' ``probate specialist,'' 
``testate,'' and ``will.'' Other definitions from the existing 
Sec. 4.201 have been retained, although they have been rearranged in 
alphabetical order with the added terms.
    The definition of ``administrative law judge'' is revised, for 
purposes of this subpart only, to include both judges appointed under 5 
U.S.C. 3105 and other OHA deciding officials designated by the 
Director. Although the latter (GS-15 attorney-advisers who serve as 
probate judges) have not been appointed under 5 U.S.C. 3105 and are 
therefore not administrative law judges for purposes of the 
Administrative Procedure Act, they have been delegated the authority to 
handle the probate of Indian trust estates under this subpart. Rather 
than revising all of subpart D at this time to substitute the phrase 
``administrative law judge or other OHA deciding official'' wherever 
the term ``administrative law judge'' presently appears, the interim 
rule redefines the term ``administrative law judge'' for this limited 
purpose to include other OHA deciding officials. As explained above, 
OHA is contemplating further revisions to its probate process and will 
consider revising all of subpart D in the future to use the longer 
phrase. As used in the remainder of this preamble, the term 
``administrative law judge'' will carry the same expanded meaning as 
the revised definition in Sec. 4.201.
    The definition of ``agency'' is revised to include any office of a 
tribe which has contracted or compacted the BIA probate function under 
25 U.S.C. 450f or 458cc. The definition of ``Board'' is revised to 
include the non-probate functions of the Interior Board of Indian 
Appeals, which are also set forth in subpart D. The definition of 
``Commissioner'' is revised to include the Deputy Commissioner and his 
or her authorized representatives. The definition of ``minor'' is 
revised to conform to the definition of the same term in 25 CFR 15.2. 
The definition of ``trust property'' is revised to conform more closely 
to the definition of the term ``trust land'' in 25 CFR 15.2 and to 
remove its parenthetical definition of ``restricted property''; the 
latter has been made a separately defined term.

Section 4.202  General Authority of Administrative Law Judges

    This section is revised to provide administrative law judges with 
the authority to review probate decisions issued by BIA deciding 
officials and to provide that such review is to be conducted de novo.

Section 4.210  Commencement of Probate

    This section is revised to incorporate the provisions of BIA's 
comparable rules at 25 CFR 15.202.

Section 4.234  Witnesses, Interpreters and Fees

    Section 4.234 is revised to recognize that it is no longer the 
Superintendent who actually pays the costs of administration, pursuant 
to orders of the administrative law judge. Rather, the Superintendent 
initiates payment by providing appropriate documentation to OST's 
Office of Trust Fund Management (OTFM) for such payment, as set forth 
in the BIA rules at 25 CFR 15.312(b). Section 4.234 is further revised 
to reflect 25 CFR 15.308, under which estates will not be held open to 
pay claims.

Section 4.241  Rehearing

    Under the previous version of Sec. 4.241(a), a petition for 
rehearing was to be filed with the Superintendent, who then forwarded 
it to the adminsitrative law judge. Since the petition is asking the 
administrative law judge to change his or her prior decision in some 
way, it makes more sense to have the petition go to the administrative 
law judge in the first instance, and provide that the administrative 
law judge will forward a copy to the Superintendent. The interim rule 
adopts this latter approach.

Section 4.243  Appeals From BIA

    A new section 4.243 is added to set forth procedures to be followed 
when a probate matter is appealed from the decision of a BIA deciding 
official to an administrative law judge.

Section 4.250  Filing and Proof of Creditor Claims; Limitations

    Paragraph (a) of this section is revised to provide that all claims 
must be filed within 60 days from the date BIA receives verification of 
the decedent's death, in accordance with 25 CFR 15.303(c). A new 
paragraph (b) is added to adopt the BIA rule set forth at 25 CFR 
15.304(b) that claims will not be paid from trust assets when non-trust 
assets are available for that purpose.

Section 4.251  Allowance of Administrative Expenses and Claims

    This section is revised by adding a new paragraph (a), authorizing 
the payment of the costs of administering the estate as they arise, and 
by replacing the existing provisions with provisions comparable to 
BIA's regulations at 25 CFR 15.305 through 15.309. The BIA regulations 
do not mention costs of administration, which may potentially include 
such items as witness or interpreter fees under 43 CFR 4.234 and 
attorney fees chargeable against the estate under 43 CFR 4.281. Such 
costs are not expected to arise in the more informal probate 
proceedings handled by BIA under 25 CFR part 15, but they may arise in 
some cases under the more formal proceedings handled by administrative 
law judges under 43 CFR part 4, subpart D.
    In adopting the BIA's list of priority claims in 25 CFR 15.305, OHA 
is adding to its current rules priorities for nursing home or other 
care facility expenses and for claims reduced to judgment by a court of 
competent jurisdiction, while removing from its current rules the 
priority for claims of the United States. OHA specifically invites 
comments from tribes, other federal agencies, and the public on these 
changes to the claims priorities set forth in the existing 43 CFR 
4.25(a). OHA also invites comments on the potential impact to the 
Department's efficient administration of Indian probates if OHA were to 
adopt a different list of priorities from those adopted by BIA and set 
forth in this interim rule.

[[Page 32886]]

Section 4.270  Custody and Control of Trust Estates

    Section 4.270 is revised to add a reference to BIA's rules at 25 
CFR 15.311, which give the BIA deciding official authority to issue 
decisions and orders in appropriate probate cases. Section 4.270 is 
also revised to provide that expenses chargeable against the estate may 
be paid with the approval of the administrative law judge or BIA 
deciding official assigned to adjudicate the estate.

Section 4.271  Summary Distribution

    This section is removed in its entirety because BIA's new 
regulations at 25 CFR 15.206 adequately govern this procedure. If a 
formal hearing before an administrative law judge is requested under 25 
CFR 15.206(a), the BIA probate specialist will forward the probate 
package to the administrative law judge, who will then proceed in 
accordance with 43 CFR 4.210 et seq.

Section 4.273 Distribution of Estates

    This section (4.274 in the previous version of these rules) is 
renumbered and revised to reflect the Superintendent's role of 
directing his or her staff and providing appropriate documentation to 
OTFM for the payment of claims and distribution of the estate, in 
accordance with the final order of the administrative law judge.

Section 4.320  Who May Appeal

    Pending the adoption of probate regulations by BIA, OHA had revised 
its appeal regulation at section 4.320 to add a provision for an appeal 
to the Board of Indian Appeals from BIA decisions in summary 
distribution cases. See 65 FR 25449 (May 2, 2000). Now that BIA has 
adopted regulations providing that appeals in such cases, as well as 
appeals from all other probate decisions issued by BIA deciding 
officials, are to be referred to an administrative law judge for de 
novo review, that addition to the introductory paragraph of section 
4.320 can be removed.

III. Public Comments

A. Determination To Issue Interim Rule

    The Department has determined that the public notice and comment 
provisions of the Administrative Procedure Act, 5 U.S.C. 553(b), do not 
apply to this rulemaking because, for the most part, these regulations 
are procedural in nature and do not alter the substantive rights of the 
affected parties. They therefore satisfy the exemption from notice and 
comment rulemaking in 5 U.S.C. 553(b)(A). To the extent any provisions 
of the regulation might alter the substantive rights of affected 
parties, they would not satisfy that exemption from notice and comment 
rulemaking. However, the Department believes there is also good cause 
for dispensing with the notice and comment requirements as unnecessary 
and contrary to the public interest under 5 U.S.C. 553(b)(B). Notice 
and comment are unnecessary for these provisions because the 
substantive changes have already been subject to advance notice and 
comment during the promulgation of BIA's probate regulations that were 
published on January 22, 2001, and became effective on March 23, 2001. 
Requiring the Department to engage in further notice and comment would 
be contrary to the public interest because BIA and OHA would be 
operating under inconsistent probate regulatory schemes during the 
interim period, and this may result in inconsistent adjudication of 
probate estates.

B. Determination To Make Rule Immediately Effective

    Because, for the most part, these revisions do not impact the 
substance of the regulations, and because of the need to avoid 
inconsistent adjudication of probate estates, the Department has 
determined that there is good cause to waive the requirement of 
publication 30 days in advance of the rule's effective date under 5 
U.S.C. 553(d). The Department further concludes that his rule should be 
effective immediately because it eliminates delays in having certain 
probate cases adjudicated by BIA decision makers and increases 
opportunities for the efficient distribution of trust estates. 
Accordingly, this amendment is issued as an interim rule effective on 
the date of publication in the Federal Register for good cause shown 
under 5 U.S.C. 553(d)(3).

C. Request for Public Comments

    Even though the Department is making these revisions to OHA's 
probate procedures immediately effective as an interim rule, OHA will 
consider comments on the revisions for a period of 60 days after the 
effective date of this rule. The public is invited to offer substantive 
comments on any of these changes, whether with respect to the 
organization or substance of the interim rule.
    Comments should be submitted in writing to the address indicated in 
the ADDRESSES section of this notice. Comments may also be telefaxed to 
the following number: 703-235-9014. Electronic mail comments will be 
accepted at <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="7e0e0c111c1f0a1b21211d1113131b100a0d3e17110d501a111750191108">[email protected]</a>. All comments received will 
be available for public inspection at the Department of the Interior, 
Office of Hearings and Appeals, 4015 Wilson Boulevard, Arlington, 
Virginia 22203. All written comments received by the date indicated in 
the DATES section of this notice and all other relevant information in 
the record will be carefully assessed and fully considered prior to 
publication of the final rule. Any information considered to be 
confidential must be so identified and submitted in writing. We will 
not consider comment submitted anonymously. However, if you wish us to 
withhold your name and/or address form public inspection or from 
disclosure under the Freedom of Information Act, you must state this 
prominently at the beginning of your comment. Such requests will be 
honored to the extent allowed by law. The Department reserves the right 
to determine the confidential status of the information and to treat it 
according to our determination (see 10 CFR 1004.11).
    The Department will hold consultation meetings with interested 
tribes, individual Indians, and tribal entities as requested to discuss 
the regulations and receive input from interested persons.

IV. Procedural Requirements

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

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Department must determine whether a 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.
    This interim rule describes how the federal government will 
administer its trust responsibility in probating the trust and 
restricted property interests of

[[Page 32887]]

individual Indians. Thus, the impact of the rule is confined to the 
federal government and Indian trust beneficiaries and does not impose a 
compliance burden on the economy generally. Accordingly, it has been 
determined that this rule is not a ``significant regulatory action'' 
from an economic standpoint, and that 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 both 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 new regulations, subsection 3(b) of 
Executive Order 12988 specifically requires that Executive agencies 
make every reasonable effort to ensure that the regulations (1) clearly 
specify the preemptive effect, if any; (2) clearly specify any effect 
on existing Federal law or regulation; (3) provide a clear legal 
standard for affected conduct while promoting simplification and burden 
reduction; (4) specify the retroactive effect, if any; (5) adequately 
define key terms; and (6) address 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 new 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 Department has determined 
that this interim rule meets the relevant standards of Executive Order 
12988.

C. Review Under the Regulatory Flexibility Act

    This interim 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 streamlines the Department's policies and procedures that 
apply to certain Indian trust resources. Indian tribes are not small 
entities under the Regulatory Flexibility Act. Any impacts on 
identified small entities affected by this rulemaking are minimal, as 
they would concern a small number of farmers, ranchers, and individuals 
doing business on Indian lands (e.g., convenience stores, gasoline 
stations, sundry shops). Accordingly, the Department has determined 
that this interim 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 interim rule is not a major rule as defined by section 804 of 
the Small Business Regulatory Enforcement Fairness Act of 1996. This 
rule will not result in an annual effect on the economy of $100,000,000 
or more. The revised subpart represents programs that are going within 
the Department, and no new monies are being introduced into the stream 
of commerce. This rule will not result in a major increase in costs or 
prices. The effect of this rulemaking will be to streamline ongoing 
policies, procedures, and management operations of the Department in 
probating individual Indian trust and/or restricted property. No 
increase in costs for administration will be realized, and no prices 
would be affected through these minor revisions to existing practice.
    This interim rule 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. 
The impact of the rule will be realized primarily by individual Indians 
having a protected trust resource. These administrative revisions to 
departmental policy and procedure will not otherwise have a significant 
impact any small businesses or enterprises.

E. Review Under the Paperwork Reduction Act

    This interim rule is exempt from the requirements of the Paperwork 
Reduction Act, since it applies to the conduct of agency administrative 
proceedings involving specific individuals and entities. 44 U.S.C. 
3518(c); 5 CFR 1320.4(a)(2). An OMB form 83-1 is not required.

F. Review Under Executive Order 13132 (Federalism)

    This interim 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. While this rule may be of interest to 
tribes, there is no Federalism impact on the trust relationship or 
balance of power between the Untied 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 interim 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 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 
Department 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 interim 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)

    In accordance with Executive Order 12630, this interim rule does 
not have significant taking implications. This rule does not involve 
the ``taking'' of private property interests.

J. Review under Executive Order 13175 (Tribal Consultation)

    The Department determined that, because this interim rule may have 
tribal Implications, it would consult with tribal governments on this 
rulemaking. These consultations are in keeping with Executive Order 
13175,

[[Page 32888]]

``Consultation and Coordination with Indian Tribal Governments.'' In 
promulgating its probate regulations, BIA consulted extensively with 
tribal governments. Because OHA is effectively incorporating certain 
BIA regulations into its regulations, tribal governments will already 
be aware of the substance of these regulations. However, the Department 
has begun an additional consultation process by providing a draft of 
this rule to all the tribes and to the National Congress of American 
Indians and by soliciting their comments. No comments were received 
from any tribe or tribal organization during this pre-prosal comment 
period.
    In addition, tribal governments will be notified of the substance 
of this rulemaking through the publication of this rule in the Federal 
Register and through direct mailings to tribal leaders. OHA will also 
meet with tribes and tribal organizations as requested to discuss the 
rule. This will enable tribal officials and the affected tribal 
constituency throughout Indian Country to have meaningful and timely 
input in the development of the final rule.

K. Review Under Executive Order 13211 (Energy Impacts)

    The Department has determined that this interim rule is not a 
``significant energy action'' as defined in Executive Order 13211, 
``Actions Concerning Regulations that Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 18, 2001), because it 
is not a significant regulatory action under Executive Order 12866 (as 
discussed above), nor is it likely to have a significant adverse effect 
on the supply, distribution, or use of energy.

List of Subjects in 43 CFR Part 4

    Administrative practice and procedure, Civil rights, Claims, 
Estates, Hearing and appeal procedures, Indians Lawyers, Penalties.

    Dated: June 11, 2001.
Robert J. Lamb,
Deputy Assistant Secretary--Budget and Finance.

PART 4--[AMENDED]

    For the reasons stated in the preamble, the Department of the 
Interior, Office of Hearings and Appeals, amends 43 CFR part 4, subpart 
D as follows:
    1. Revise the authority citation for part 4, subpart D to read as 
follows:

    Authority: Secs. 1, 2, 36 Stat. 855, as amended, 856, as 
amended, sec. 1, 38 Stat. 586, 42 Stat. 1185, as amended, secs. 1, 
2, 56 Stat. 1021, 1022; R.S. 463, 465; 5 U.S.C. 301; 25 U.S.C. secs. 
2, 9, 372, 373, 374, 373a, 373b, 410, 100 Stat, 61, as amended by 
101 Stat. 886 and 101 Stat. 1433, 25 U.S.C. 331 note.


    2. Revise the Cross Reference following the authority citation to 
read as follows:

    Cross Reference: See 25 CFR part 15 for rules setting forth the 
responsibilities and practices of the Bureau of Indian Affairs in 
the probate of Indian estates. See subpart A of this part for the 
authority, jurisdiction, and membership of the Board of Indian 
Appeals within the Office of Hearings and Appeals. For general rules 
applicable to proceeding before the Hearings Division, Board of 
Indian Appeals, and other Appeals Boards of the office of Hearings 
and Appeals, see subpart B of this part.


    3. Revise Sec. 4.201 to read as follows;


Sec. 4.201  Definitions.

    As used in this subpart:
    Administrative law judge means any employee of the Office of 
Hearings and Appeals appointed pursuant to the Administrative Procedure 
Act, 5 U.S.C. 3105, or any other OHA deciding official designated by 
the Director, Office of Hearings and Appeals.
    Agency means the agency office or any other designated office in 
BIA having jurisdiction over trust or restricted property and money. 
This term also means any office of a tribe which has contracted or 
compacted the BIA probate function under 25 U.S.C. 450f or 458cc.
    Attorney decision maker means an attorney with BIA who reviews a 
probate package, determines heirs, approves wills and beneficiaries of 
the will, determines creditors' claims, and issues a written decision 
to the extent authorized by 25 CFR part 15.
    Beneficiary means any individual who receives trust or restricted 
property or money in a decedent's will.
    BIA means the Bureau of Indian Affairs within the Department of the 
Interior.
    BIA deciding official means the official with the delegated 
authority to make a decision on a probate matter pursuant to 25 CFR 
part 15, and may include a BIA regional director, agency 
superintendent, field representative, or attorney decision maker.
    Board means the Board of Indian Appeals in the Office of Hearings 
and Appeals, Office of the Secretary, authorized by the Secretary to 
hear, consider, and determine finally for the Department appeals taken 
by aggrieved parties from actions by administrative law judges on 
petitions for rehearing or reopening, and allowance of attorney fees, 
and from actions of BIA officials as provided in Sec. 4.1(b)(2).
    Child or children includes an adopted child or children.
    Commissioner includes the Deputy Commissioner of Indian Affairs and 
his or her authorized representatives.
    Day means a calendar day, unless otherwise stated.
    Decedent means a person who is deceased.
    Department means the Department of the Interior.
    Estate means the trust cash assets and restricted or trust property 
owned by the decedent at the time of his death.
    Heir means any individual who receives trust or restricted property 
or money from a decedent in an intestate proceeding.
    IIM account means funds held in an individual Indian monies account 
by OTFM or a tribe performing this function under a contract or 
compact.
    Intestate means the decedent dies without a will.
    Minor means an individual who has not reached the age of majority 
as defined by the applicable tribal or state law.
    OTFM means the Office of Trust Funds Management within the Office 
of the Special Trustee for American Indians, Department of the 
Interior, or its authorized representative.
    Party in interest means any presumptive or actual heir, any 
beneficiary under a will, any party asserting a claim against a 
deceased Indian's estate, and any Tribe having a statutory option to 
purchase interests of a decedent.
    Probate means the legal process by which applicable tribal law, 
state law, or federal law that affects the distribution of the 
decedent's estate is applied to:
    (1) Determine the heirs,
    (2) Approve wills and beneficiaries, and
    (3) Transfer any funds or property held in trust by the Secretary 
for a decedent to their heirs, beneficiaries, or other persons or 
entities.
    Probate specialist means a BIA or tribal employee who is trained in 
Indian probate matters.
    Restricted property means real or personal property held by an 
Indian which he or she cannot alienate or encumber without the consent 
of the Secretary or his or her authorized representative. In this 
subpart, restricted property is treated as if it were trust property. 
The term ``restricted property'' as used in this subpart does not 
include the restricted lands of the Five Civilized Tribes and Osage 
Tribe of Indians.
    Secretary means the Secretary of the Interior or his or her 
authorized representative.

[[Page 32889]]

    Solicitor means the Solicitor of the Department of the Interior or 
his or her authorized representative.
    Superintendent means the BIA Superintendent or other BIA officer 
having jurisdiction over an estate, including area field 
representatives or one holding equivalent authority.
    Testate means the decedent executed a will before his death.
    Trust property means real or personal property, or an interest 
therein, which the United States holds in trust for the benefit of an 
individual Indian.
    Will or last will and testament means a written testamentary 
document, including any properly executed written changes, called 
codicils, which was signed by the decedent and was attested by two 
disinterested adult witnesses, that states who will receive the 
decedent's trust or restricted property.

    4. Revise Sec. 4.202 to read as follows:


Sec. 4.202  General authority of administrative law judges.

    Administrative law judges will, except as otherwise provided in 
Sec. 4.205(b) and 25 CFR part 15, determine the heirs of Indians who 
die intestate possessed of trust property; approve or disapprove wills 
of deceased Indians disposing of trust property; accept or reject full 
or partial renunciations of interest in both testate and intestate 
proceedings; allow or disallow creditors' claims against estates of 
deceased Indians; and decree the distribution of trust property to 
heirs and devisees, including the partial distribution to known heirs 
or devicees where one or more potential heirs or devisees are missing 
but not presumed dead, after attributing to and setting aside for such 
missing person or persons the share or shares such person or persons 
would be entitled to if living. Administrative law judges will 
determine the right of a tribe to take inherited interests and the fair 
market value of the interests taken in appropriate cases as provided by 
statute. They will review cases de novo, hold hearings as necessary or 
appropriate, and issue decisions in matters appealed from decisions of 
BIA deciding officials. Administrative law judges appointed under 5 
U.S.C. 3105 will also hold hearings and issue recommended decisions in 
matters referred to them by the Board in the Board's consideration of 
appeals from administrative actions of BIA officials.

    5. Revise Sec. 4.210 to read as follows:


Sec. 4.210  Commencement of probate.

    The probate of a trust estate before an administrative law judge 
will commence when the probate specialist or BIA deciding official 
files with the administrative law judge all information shown in the 
records relative to the family of the deceased and his or her property. 
The information must include the complete probate package described in 
25 CFR 15.202 and any other relevant information. The agency or BIA 
deciding official must promptly transmit to the administrative law 
judge any creditor's or other claims that are received after the case 
is transmitted to the administrative law judge, for a determination of 
their timeliness, validity, priority, and allowance under Secs. 4.250 
and 4.251.

    6. Revise the final sentence to Sec. 4.234 to read as follows:


Sec. 4.234  Witnesses, interpreters, and fees.

    * * * Upon receipt of such order, the Superintendent must 
immediately initiate payment of such sums from the estate account, or 
if such funds are insufficient, then out of funds as they are received 
in such account prior to closure of the estate, with the proviso that 
such costs must be paid in full with a later allocation against the 
interest of a party, if the administrative law judge has so ordered.

    7. Revise Sec. 4.241(a) to read as follows:


Sec. 4.241  Rehearing.

    (a) Any person aggrieved by the decision of the administrative law 
judge may, within 60 days after the date on which notice of the 
decision is mailed to the interested parties, file with the 
administrative law judge a written petition for rehearing. Such 
petition must be under oath and must state specifically and concisely 
the grounds upon which it is based. If the petition is based on newly-
discovered evidence, it must be accompanied by affidavits or 
declarations of witnesses stating fully what the new testimony is to 
be. It must also state justifiable reasons for the failure to discover 
and present that evidence, tendered as new, at the hearings held prior 
to the issuance of the decision. The administrative law judge, upon 
receiving a petition for rehearing, must promptly forward copies to the 
Superintendent. The Superintendent must not initiate payment of claims 
or distribute the estate while such petition is pending, unless 
otherwise directed by the administrative law judge.

    8. Add Sec. 4.243 under the undesignated center heading ``Appeals 
from Decisions of BIA Deciding Officials'' to read as follows: Appeals 
From Decisions of BIA Deciding Officials


Sec. 4.243  Appeals from BIA.

    Any appeal filed pursuant to 25 CFR part 15, subpart E, will be 
referred to the administrative law judge pursuant to Sec. 4.210. The 
administrative law judge will review the merits of the case de novo and 
conduct a hearing as necessary or appropriate pursuant to the 
regulations in this subpart. The BIA deciding official must forward to 
the administrative law judge the entire file upon which the BIA 
deciding official's decision was based.

    9. In Sec. 4.250, redesignate paragraphs (b) through (g) as 
paragraphs (c) through (h), and revise paragraph (a) and add new 
paragraph (b) to read as follows:


Sec. 4.250  Filing and proof of creditor claims; limitations.

    (a) All claims against the estate of a deceased Indian held by 
creditors chargeable with notice of the decedent's death must be filed 
with the agency within 60 days from the date BIA receives verification 
of the decedent's death under 25 CFR 15.101.
    (b) No claim will be paid from trust or restricted assets when the 
administrative law judge is aware that the decedent's non-trust estate 
may be available to pay the claim.
* * * * *

    10. Revise Sec. 4.251 to read as follows:


Sec. 4.251  Allowance of administrative expenses and claims.

    (a) Upon motion of the Superintendent or a party in interest, the 
administrative law judge many authorize payment of the costs of 
administering the estate as they arise and prior to the allowance of 
any claims against the estate.
    (b) After the costs of administration, the administrative law judge 
may authorize payment of priority claims as follows:
    (1) Claims for funeral expenses (including the cemetery marker);
    (2) Claims for medical expenses for the last illness;
    (3) Claims for nursing home or other care facility expenses;
    (4) Claims for an Indian tribe; and
    (5) Claims reduced to judgment by a court of competent 
jurisdiction.
    (c) After the priority claims, the administrative law judge may 
authorize payment of all remaining claims, referred to as general 
claims.
    (d) The administrative law judge has the discretion to decide that 
part or all of an otherwise valid claim is unreasonable, reduce the 
claim to a reasonable amount, or disallow the claim in its entirely.

[[Page 32890]]

    (1) If a claim is reduced, the administrative law judge will order 
payment only of the reduced amount.
    (2) An administrative law judge may reduce or disallow both 
priority claims and general claims.
    (e) If there is not enough money in the IIM account to pay all 
claims, the administrative law judge will order payment of allowed 
priority claims first, either in the order identified in paragraph (b) 
of this section or on a pro rata (reduced) basis.
    (f) If less than $1,000 remains in the IIM account after payment of 
priority claims is ordered, the general claims may be ordered paid on a 
pro rata basis or disallowed in their entirety.
    (g) The unpaid balance of any claims will not be enforceable 
against the estate after the estate is closed.
    (h) Interest or penalties charged against either priority or 
general claims after the date of death will not be paid.

    11. Revise Sec. 4.270 to read as follows:


Sec. 4.270  Custody and control of trust estates.

    The Superintendent may assume custody or control of all tangible 
trust personal property of deceased Indian, and he or she may take such 
action, including sale thereof, as in his or her judgment is necessary 
for the benefit of the estate, the heirs, legatees, and devises, 
pending entry of the decision provided for in 25 CFR 15.311 or in 
Secs. 4.240, 4.241, or 4.312. All expenses, including expenses of 
roundup, branding, care, and feeding of livestock, are chargeable 
against the estate and may be paid from those funds of the deceased 
that are under the Department's control, or from the proceeds of a sale 
of the property or a part thereof. If an administrative law judge or 
BIA deciding official has been assigned to adjudicate the estate, his 
or her approval is required prior to such payment.


Sec. 4.271   [Removed and Redesignated]

    12. Remove Sec. 4.271 in its entirety and redesignate Secs. 4.272 
and 4.273 as Secs. 4.271 and 4.272, respectively.

    13. Redesignate Sec. 4.274 as Sec. 4.273 and revise it to read as 
follows:


Sec. 4.273  Distribution of estates.

    (a) Unless the Superindent has received a copy of a petition for 
rehearing filed pursuant to the requirements of Sec. 4.241(a) or a copy 
of a notice of appeal filed pursuant to the requirements of 
Sec. 4.320(b), he or she shall initiate payment of allowed claims, 
distribution of the estate, and all other actions required by the 
administrative law judge's final order.
    (b) The Superintendent must not initiate the payment of claims or 
distribution of the estate during the pendency of proceedings under 
Sec. 4.241 or Sec. 4.242, unless the administrative law judge orders 
otherwise in writing. The Board may, at any time, authorize the 
administrative law judge to issue interim orders for payment of claims 
or for partial distribution during the pendency of proceeding on 
appeal.

    14. In Sec. 4.320, redesignate paragraphs (a) through (c) as 
paragraphs (b) through (d), remove the undesignated introductory 
paragraph, and add new paragraph (a) to read as follows:


Sec. 4.320  Who may appeal.

    (a) A party in interest has a right to appeal to the Board from and 
order of an administrative law judge on a petition for rehearing, a 
petition for reopening, or regarding tribal purchase of interests in a 
deceased Indian's trust estate.
* * * * *
[FR Doc. 01-15166 Filed 6-15-01; 8:45 am]
BILLING CODE 4310-79-M


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>