32884 Federal Register / Vol. 66, No. 117 / Monday, June 18, 2001 / Rules and Regulations

1Throughout the remainder of this preamble, the

term ‘‘Indian’’ will be used as a shorthand to refer

to both individual Indians and Alaska Natives.

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

probate_comments@ios.doi.gov.

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.

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-togovernment 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

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

§ 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.

32886 Federal Register / Vol. 66, No. 117 / Monday, June 18, 2001 / Rules and Regulations

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

probatelcomments@ios.doi.gov. 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

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

32888 Federal Register / Vol. 66, No. 117 / Monday, June 18, 2001 / Rules and Regulations

‘‘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 § 4.201 to read as follows;

§ 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 § 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.

Federal Register / Vol. 66, No. 117 / Monday, June 18, 2001 / Rules and Regulations 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 § 4.202 to read as follows:

§ 4.202 General authority of administrative

law judges.

Administrative law judges will,

except as otherwise provided in

§ 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 § 4.210 to read as follows:

§ 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

§§ 4.250 and 4.251.

6. Revise the final sentence to § 4.234

to read as follows:

§ 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 § 4.241(a) to read as follows:

§ 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 § 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

§ 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

§ 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 § 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:

§ 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 § 4.251 to read as follows:

§ 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.

32890 Federal Register / Vol. 66, No. 117 / Monday, June 18, 2001 / Rules and Regulations

(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 § 4.270 to read as follows:

§ 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

§§ 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.

§ 4.271 [Removed and Redesignated]

12. Remove § 4.271 in its entirety and

redesignate §§ 4.272 and 4.273 as

§§4.271 and 4.272, respectively.

13. Redesignate § 4.274 as § 4.273 and

revise it to read as follows:

§ 4.273 Distribution of estates.

(a) Unless the Superindent has

received a copy of a petition for

rehearing filed pursuant to the

requirements of § 4.241(a) or a copy of

a notice of appeal filed pursuant to the

requirements of § 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 §4.241

or §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 § 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:

§ 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