This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

24731

Vol. 61, No. 96

Thursday, May 16, 1996

NUCLEAR REGULATORY

COMMISSION

10 CFR Part 26

RIN 3150–AF12

Meeting on Proposed Changes to the

Fitness-for-Duty Rule

AGENCY: Nuclear Regulatory

Commission.

ACTION: Notice of meeting.

SUMMARY: The Nuclear Regulatory

Commission (NRC) will conduct a

meeting to discuss the proposed

changes to the fitness-for-duty rule, 10

CFR Part 26, which were published in

the Federal Register on May 9, 1996 (61

FR 21105). The purpose of the meeting

is to ensure potential commenters

understand the proposed changes and

can make informed comments. The

discussions will be transcribed and

verbal comments may be made during

the meeting. The comment period closes

on August 7, 1996.

DATES: The meeting will be held on June

12, 1996, from 8:00 a.m. to 5:00 p.m.

ADDRESSES: Plaza Ballroom I and II of

the Doubletree Hotel Rockville, 1750

Rockville Pike, Rockville, Maryland

20852. Reservations for overnight

accommodations at the Doubletree Hotel

may be made at 1–800–222–Tree or

(301) 468–1100.

FOR FURTHER INFORMATION CONTACT:

Loren L. Bush, U.S. Nuclear Regulatory

Commission, Office of Nuclear Reactor

Regulation, Washington, DC 20555,

telephone (301) 415–2944.

Dated at Rockville, Maryland, this 10th day

of May 1996.

Loren L. Bush, Jr.,

Senior Program Manager, Safeguards Branch,

Division of Reactor Program Management,

Office of Nuclear Reactor Regulation.

[FR Doc. 96–12265 Filed 5–15–96; 8:45 am]

BILLING CODE 7590–01–P

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 144

RIN 1076–AD 28

The American Indian Trust Fund

Management Reform Act of 1994

AGENCY: Bureau of Indian Affairs,

Interior.

ACTION: Proposed rule with request for

comments.

SUMMARY: The Bureau of Indian Affairs

proposes to establish a regulation to

implement Title II of Pub. L. 103–412,

the American Indian Trust Fund

Management Reform Act of 1994 (the

Act), which for the first time, permits

American Indian Tribes to take

restricted tribal funds out of trust status

with the Department of the Interior

(DOI). The purpose of the Act is to

enable Tribes to manage the funds by

themselves, or with the help of capable

commercial fund managers. The

regulation affects tribal funds only, not

Individual Indian Money (IIM) funds.

DATES: Comments on this Proposed Rule

must be received on or before July 15,

1996.

ADDRESSES: Mail comments to Donna

Erwin, Director, Office of Trust Funds

Management (OTFM), Department of the

Interior, 505 Marquette Ave. NW, Suite

1000, Albuquerque, NM, 87102, OR

hand deliver them to Suite 1000 at the

above address. Comments will be

available for inspection at this address

from 9:00 a.m. to 4:00 p.m. (MDT),

Monday through Friday beginning

approximately 30 days after publication

of this document in the Federal

Register.

FOR FURTHER INFORMATION CONTACT: Joe

Weller, Office of Trust Funds

Management, at the above address.

Telephone (505) 248–5723, fax 248–

5782.

REQUEST FOR COMMENTS: It is the policy

of the Department of the Interior,

whenever practical, to afford the public

an opportunity to participate in the

rulemaking process. Accordingly,

interested persons may submit written

comments regarding this rule to the

location identified in the Address

section of this document. To ensure that

public comments have maximum effect

in developing the final regulations, the

Department urges that each comment

clearly identify the specific section or

sections of the regulations that the

comment addresses and that comments

be in the same order as the regulations.

Comments that concern information

collection requirements must be sent to

the Office of Management and Budget at

the address listed in the Paperwork

Reduction Act section of this preamble.

A copy of these comments may also be

sent to the Department representative

named in the preceding paragraph.

SUPPLEMENTARY INFORMATION: 25 CFR

Part 144 contains provisions which

affect 240 tribes with trust funds. These

tribes currently have approximately $1.5

billion dollars in judgments,

settlements, awards and associated

earnings held in trust status by the

Department of the Interior. Key concepts

of the regulation are as follows: (1)

Tribes wishing to withdraw some or all

of their restricted tribal funds under the

Act (not IIM funds) must present a tribal

resolution acknowledging that when

funds leave the U.S. Treasury, the

federal government has no further

liability relating to those funds; (2)

tribes must also present a management

plan for Secretarial approval, detailing

how the funds will be managed once

they are out of trust, including a

protection against a significant loss of

principal; (3) if the funds are not

managed by the tribes, they are to be

managed by capable investment

managers or investment firms with

proof of liability insurance; (4) tribes

must provide notification to tribal

members regarding their intent to

withdraw funds from trust; (5) tribes

may return any or all of their funds

withdrawn under this act, including any

earnings, to trust status; (6) tribes may

request technical assistance and/or

grants from the Department in order to

develop the management plan. The

ability to take funds from trust creates

new tribal opportunities for investment

of funds and for economic development;

therefore, establishment of the

regulation has a high priority in Indian

Country.

Development of the Regulation

In accordance with the Act, this

regulation was developed with the

active participation of tribal

representatives. A Regulatory

Workgroup was established by OTFM,

which had tribal representation, as well
24732 Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Proposed Rules

as representation from the InterTribal

Monitoring Association (ITMA),

Departmental Office of the Solicitor

(SOL), and Bureau of Indian Affairs

(BIA). Also in furtherance of tribal

participation, draft regulations were

sent to all tribes with trust funds in

August, 1995; a formal presentation was

made by OTFM at a National Tribal

Consultation in September, 1995.

Comments which were incorporated

from this consultation are as follows: (a)

A specific provision for notifying the

tribal membership of an intent to

remove funds was included based on

comments by the Delaware Tribe of

Oklahoma; (b) the ‘‘certification’’ by

tribe’s legal counsel of authority of tribal

government to withdraw funds was

changed to a requirement for a ‘‘legal

opinion’’ to be included in the

application package based on comments

from both the Hopi and Cheyenne River

Tribes; (c) a requirement to provide a

copy of audit or investment report when

requesting to withdraw additional funds

was included based on comments from

the First Nations Development Institute;

(d) a requirement for liability insurance

of tribal officials was added based on a

suggestion from the Skokomish Tribe of

Washington State. Other changes were

made, such as changing the approving

official to the Secretary, Department of

the Interior, from the Commissioner of

Indian Affairs, Bureau of Indian Affairs,

removing duplicative language from the

policy statement; adding clarifying

language regarding applicability of these

regulations to ‘‘proceeds of labor’’

funds; and requiring tribes to submit

copies of applicable distribution plans

or settlement acts when making

application to withdraw funds. The

regulation has also been rewritten into

a ‘‘user-friendly’’ format.

Statutory Authority

Title II of Pub. L. 103–412, the

American Indian Trust Fund

Management Reform Act of 1994,

governs the withdrawal of tribal funds

from trust status within the Department

of the Interior. Specifically, the

Secretary is authorized to approve

withdrawals of funds based on a Tribal

Management Plan. The law states that

regulations do not need to be in place

for funds to be withdrawn.

Procedural Determinations

The Regulatory Flexibility Act

The Department has determined that

this rulemaking will not have a

significant economic effect on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.).

Executive Order 12630

The Department certifies that the rule

does not represent a governmental

action capable of interference with

constitutionally protected property

rights. Thus, a Takings Implication

Assessment need not be prepared under

Executive Order 12630, ‘‘Government

Action and Interference with

Constitutionally Protected Property

Rights.’’

Executive Order 12778

The Department has certified to the

Office of Management and Budget that

this rule meets the applicable standards

provided in Sections 2 (a) and 2 (b) (2)

of Executive Order 12778.

Executive Order 12866

This document has been reviewed

under Executive Order 12866 and is not

a significant regulatory action.

Paperwork Reduction Act of 1995

Section 144.7 contains information

collection requirements. As required by

the Paperwork Reduction Act of 1995

(44 U.S.C. 3507 (d) ), the Department of

Interior has submitted a copy of this

section to the Office of Management and

Budget (OMB) for its review. These

regulations affect any tribe for whom the

Office of Special Trustee manages funds

in tribal trust.

Information in Subpart B (Application

to Withdraw Tribal Funds from Trust

Status) is being collected to determine

the eligibility of applicants, and the

capability of tribes or their contractors

to manage and invest large blocks of

funds. This is in accordance with

statutory authority which requires that a

tribal Management Plan be approved by

the Secretary prior to release of funds

from trust. This information will be

collected once only from each applicant.

Annual reporting and recordkeeping

burden for this collection of information

is estimated to average 342 hours for

each response for 12 tribal respondents,

including the time for reviewing

instructions, searching existing data

sources, gathering and maintaining the

data needed, and completing and

reviewing the collection of information.

Thus, the total annual reporting and

recordkeeping burden for this collection

is estimated to be 4,104 hours.

Information in Subpart D (Application

for Federal Assistance and Budget

Information—Non-Construction

Programs) is being collected to

determine the eligibility of applicants,

as well as the level of need for technical

assistance in order for tribes to develop

the Management Plans and to complete

the application for withdrawal process.

This is in accordance with statutory

authority which requires the Secretary

to provide technical assistance for tribes

to complete the required Management

Plan. This information will be collected

once only from each applicant. Annual

reporting and recordkeeping burden for

this collection of information is

estimated to average 52 hours for each

response for 12 tribal respondents,

including the time for reviewing

instructions, searching existing data

sources, gathering and maintaining the

data needed, and completing and

reviewing the collection of information.

Thus, the total annual reporting and

recordkeeping burden for this collection

is estimated to be 624 hours.

Organizations and individuals

desiring to submit comments on the

information collection requirements

should direct them to the Office of

Information and Regulatory Affairs,

OMB, Room 10235, New Executive

Office Building, Washington, D.C.

20503; Attention: Desk Officer for U.S.

Department of the Interior.

The Department considers comments

by the public on these proposed

collections of information in:

Evaluating whether the proposed

collections of information are necessary

for the proper performance of the

functions of the Department, including

whether the information will have

practical utility;

Evaluating the accuracy of the

Department’s estimate of the burden of

the proposed collections of information,

including the validity of the

methodology and assumptions used;

and

Enhancing the quality, usefulness,

and clarity of the information to be

collected.

OMB is required to make a decision

concerning the collections of

information contained in these

proposed regulations between 30 and 60

days after publication of this document

in the Federal Register. Therefore, a

comment to OMB is best assured of

having its full effect if OMB receives it

within 30 days of publication. This does

not affect the deadline for the public to

comment to the Department on the

proposed regulations.

National Environmental Policy Act of

1969

We have determined that this

rulemaking is not a major Federal action

significantly affecting the quality of the

human environment, and a detailed

statement under section 102(2)(C) of the

National Environmental Policy Act of

1969 (42 U.S.C. 4332(2)(C)) is not

required.
Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Proposed Rules 24733

List of Subjects in 25 CFR Part 144

Indians, Indian tribal trust funds,

Indian trust responsibility.

For the reasons set out in the

preamble, Part 144 of Title 25, Chapter

1, of the Code of Federal Regulations is

proposed to be added as set forth below.

PART 144—AMERICAN INDIAN TRUST

FUND REFORM ACT

Subpart A—General Provisions

Sec.

144.1 Purpose of this regulation.

144.2 Definitions.

144.3 What is the Department’s policy on

tribal management of trust funds?

144.4 May tribes exercise increased

direction over their trust funds and

retain the protections of Federal trust

status?

144.5 What are the advantages and

disadvantages of managing trust funds?

144.6 Do these regulations tell tribes how to

receive future income directly rather

than having the government continue to

collect it?

144.7 Information collection.

Subpart B—Withdrawing Tribal Funds From

Trust

144.10 Who is eligible to withdraw their

tribal funds from trust?

144.11 What funds may be withdrawn?

144.12 What limitations and restrictions

apply to withdrawn funds?

144.13 How does a tribe apply to withdraw

funds?

144.14 What must the Tribal Management

Plan contain?

144.15 What is the approval process for

management plans?

144.16 What criteria will be used in

evaluating the management plan?

144.17 What special criteria will be used to

evaluate management plans for judgment

or settlement funds?

144.18 When does the Department’s trust

responsibility end?

144.19 How can the plan be revised?

144.20 How can a tribe withdraw additional

funds?

144.21 How may a tribe appeal denials

under this part?

Subpart C—Returning Tribal Funds to Trust

144.30 How does a tribe notify the

Department if it wishes to return

withdrawn funds to Federal trust status?

144.31 What part of withdrawn funds can

be returned to trust?

144.32 How often can funds be returned?

144.33 How can funds be returned?

144.34 Can a tribe withdraw redeposited

funds?

Subpart D—Technical Assistance

144.40 How will the Department provide

technical assistance for tribes?

144.41 What types of technical assistance

are available?

144.42 Who can provide technical

assistance?

144.43 How can a tribe apply for technical

assistance?

144.44 What action will the Department

take on requests for technical assistance?

Authority: 25 U.S.C. 4001.

Subpart A—General Provisions

§ 144.1 Purpose of this regulation.

This part describes the processes by

which Indian tribes can manage tribal

funds currently held in trust by the

United States. It defines how tribes may

withdraw their funds from trust status;

how they may return funds to trust; and

how they may request technical

assistance or grants to help prepare

plans to manage funds or to ensure the

capability to manage those funds.

§ 144.2 Definitions.

As used in this part:

Act means the American Indian Trust

Fund Management Reform Act of 1994

(Pub. L. 103–412, 108 Stat. 4239, 25

U.S.C. 4001).

Agency Superintendent means the

official in charge of a Bureau of Indian

Affairs Agency.

Area Director means the official in

charge of a Bureau of Indian Affairs area

office.

Bureau or BIA means the Bureau of

Indian Affairs within the Department of

the Interior.

Department or DOI means the

Department of the Interior.

General Counsel means the attorney

for the tribe.

OTFM means the Office of Trust

Funds Management, Department of the

Interior.

Resolution means the formal manner

in which a tribal government expresses

its legislative will.

Secretary means the Secretary of the

Interior or his designee.

Solicitor means the Office of the

Solicitor, Department of the Interior.

Special Trustee means the Special

Trustee for American Indians appointed

under Title III of the Act.

Tribal Council means the elected or

appointed governing officials of any

Tribe which is recognized by the

Secretary.

Tribe means any Indian Tribe, Band,

Nation, Rancheria, Pueblo, Colony or

Community, including any Alaska

Native village or regional or village

corporation as defined or established

pursuant to the Alaska Native Claims

Settlement Act which is federally

recognized by the U.S. Government for

special programs and services provided

by the Secretary to Indians because of

their status as Indians. For this purpose,

it also means two or more tribes joined

for any purpose, the joint assets of

which include funds held in trust by the

Secretary. An example of this would be

the KCA (consisting of the Kiowa,

Comanche and Apache Tribes).

Us means the Department of the

Interior, i.e., the Secretary of the Interior

or his/her designee.

We means the Department of the

Interior, i.e., the Secretary of the Interior

or his/her designee.

§ 144.3 What is the Department’s policy on

tribal management of trust funds?

(a) We will give tribes as much

responsibility as they desire for the

management of their tribal funds that

we currently hold in trust.

(b) Title II of the American Indian

Trust Fund Management Reform Act,

implemented by these regulations, offers

tribes one approach for assuming

increased management of their funds

that we now hold in trust and

administer. Under Title II, a tribe may

completely remove its funds from

Federal trust status and manage them as

it wishes, subject to the requirements

and conditions in this part. When a tribe

withdraws its funds under this part, it

may invest those funds in equities or

other investment vehicles that are

statutorily unavailable to us.

§ 144.4 May tribes exercise increased

direction over their trust funds and retain

the protections of Federal trust status?

Yes. The Tribal Self-Governance Act

(25 U.S.C. 458) and the Indian SelfDetermination and Education

Assistance Act (25 U.S.C. 450 et seq.)

provide other options for trust funds

management. A tribe may choose to

manage its trust funds under the

provisions of these Acts if it wishes.

These options are covered in these

regulations: ‘‘Indian Self-Determination

and Education Assistance Act Program’’

( 25 CFR Part 271, et seq.) and the ‘‘SelfGovernance Program’’ (25 CFR Part

1001).

§ 144.5 What are the advantages and

disadvantages of managing trust funds?

Under these other options, the funds

remain in Federal trust status and the

tribe can exercise a range of control over

their management. However, the tribe

has fewer investment options than it has

when it withdraws its funds completely

from Trust status. If a tribe chooses to

keep its funds in trust status, the tribe

is subject to the same statutory

investment restrictions that bind us.

That means that the tribe’s investments

are limited to bank deposits and

securities guaranteed by the United

States. (See 25 U.S.C. 162a for specific

statutory investment restrictions).
24734 Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Proposed Rules

§ 144.6 Do these regulations tell tribes

how to receive future income directly rather

than having the government continue to

collect it?

No. These regulations apply only to

the withdrawal of funds which are in

trust. Some of these funds come from

the sale or lease of trust resources. Even

if a tribe withdraws its funds, we will

collect and manage future income. If a

tribe wishes to receive future income

directly, it should contact its agency or

area office to find out how to do this.

§ 144.7 Information collection.

Information collection requirements

contained in Subpart B of this part,

Withdrawal of Tribal Funds from Trust,

and Subpart D of this part, Technical

Assistance, have been submitted to the

Office of Management and Budget for

approval as required by 44 U.S.C. 3501

et seq. Information collected in § 144.13,

(How does a tribe apply to withdraw

funds?) will be used to determine the

eligibility of applicants, and the

capability of tribes or their contractors

to manage and invest large blocks of

funds. Information collected in § 144.43,

(How can a tribe apply for technical

assistance?) will be used to determine

the eligibility of applicants, as well as

the level of need for technical

assistance, in order for tribes to develop

Management Plans and to complete the

application for withdrawal process. The

collections of information for Subpart B

and Subpart D of this part will not be

required until approved by the Office of

Management and Budget.

Subpart B—Withdrawing Tribal Funds

From Trust

§ 144.10 Who is eligible to withdraw their

tribal funds from trust?

Any tribe for whom we manage funds

in trust.

§ 144.11 What funds may be withdrawn?

A tribe may withdraw some or all

funds that we hold in trust if we

approve a plan that it submits under

this part.

§ 144.12 What limitations and restrictions

apply to withdrawn funds?

(a) A tribe may withdraw funds

appropriated to satisfy judgments of the

Indian Claims Commission (ICC) and

the Court of Federal Claims and that we

hold under the Indian Judgment Funds

Use and Distributions Act (25 U.S.C.

1401) or another act of Congress if:

(1) The tribe uses the funds as

specified in the previously approved

judgment fund plan, and;

(2) The tribe withdraws only funds

held for Indian tribes and does not

include any funds held for individual

tribal members.

(b) A tribe may withdraw funds

appropriated to satisfy settlement

agreements relating to certain tribal

claims and that we hold and manage for

the tribe pursuant to an act of Congress

if:

(1) The tribe uses the funds as

specified in the previously approved

settlement act plan;

(2) The tribe withdraws only funds

held for Indian tribes and does not

include any funds held for individual

tribal members; and

(3) It is determined that there is no

provision in the act or settlement

agreement requiring that the funds

remain in trust to implement the act or

agreement that cannot be waived.

(c) Tribal funds commonly known as

‘‘Proceeds of Labor’’ funds, usually

income to trust resources, are generally

withdrawn under normal tribal

budgeting procedures, but may also be

withdrawn from trust under this part.

These funds may be returned to trust

under the provisions of Subpart C of

this part.

§ 144.13 How does a tribe apply to

withdraw funds?

The tribe must submit four copies of

its application and the attachments

listed below to: Director, Office of Trust

Funds Management, Department of the

Interior, 505 Marquette NW, Suite 1000,

Albuquerque, NM 87102. We will notify

the tribe if the application is incomplete

and will help the tribe complete the

application if requested. When we

determine that the application is

complete, we will send copies to the

appropriate agency superintendent and

area director, the Special Trustee and

the Solicitor. Each application package

must contain the items listed below.

(a) Proof that the tribe has notified its

members of its intent to remove funds

from trust and that, when the request is

approved, the tribe and not the United

States Government will be liable for

funds management. Notification must be

by the method(s) that the tribe

customarily uses to notify its members

of significant tribal actions. The

notification must identify the specific

funds to be withdrawn.

(b) A tribal resolution that:

(1) Expressly authorizes the

withdrawal of the funds and indicates

the (approximate) dollar amount of the

funds to be withdrawn;

(2) Expressly acknowledges that the

funds, once withdrawn in accordance

with the Act, will no longer be held in

trust status by the United States, and

that we have no further liability or

responsibility for the funds; and

(3) Acknowledges that:

(i) Neither we nor the tribe necessarily

accept the account balances at the time

of withdrawal as accurate; and

(ii) Neither we nor the tribe have

waived any rights regarding the

balances, including the right to seek

compensation for incorrect balances.

(c) A copy of a formal agreement

between the tribe and the manager of

the funds to be withdrawn, in which the

manager agrees to:

(1) Comply with the terms of the plan

we approve under § 144.15 and make

only those changes that conform to

revision procedures in the approved

plan and the requirements of § 144.19;

and

(2) Transfer funds to the tribe or

another manager only after receiving a

valid tribal resolution calling for this

transfer and proof that the tribe has

notified its members of intent to transfer

the funds. The resolution must clearly

state that:

(i) The funds are being withdrawn to

be reinvested by the tribe in a manner

consistent with the goals and strategies

of the approved plan; and

(ii) The fund managers will continue

to follow any previously approved

distribution plan conditions.

(d) A legal opinion by the tribe’s

attorney or its general counsel that:

(1) The resolution referred to in

paragraph (b) of this section was

enacted under procedures established

by the tribe’s organic documents or oral

tradition;

(2) The tribal governing body has the

legal authority to withdraw funds from

trust status and that the withdrawal

does not require a referendum vote or

other procedure beyond a tribal council

resolution; and

(3) If the funds to be withdrawn are

judgment or settlement funds, that the

tribe’s plan for managing the funds

meets the requirements of any

applicable judgment fund use and

distribution plan or settlement act.

(e) The results of a tribal referendum,

if one was held.

(f) If the funds to be withdrawn are

judgment or settlement funds, a copy of

the act and/or plan that sets out the

conditions for the uses of the funds or

income from them.

(g) A management plan as provided

for in § 144.14.

§ 144.14 What must the Tribal

Management Plan contain?

The Tribal Management Plan required

by § 144.13 must include each of the

following.

(a) Tribal investment goals and the

strategy for achieving them.
Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Proposed Rules 24735

(b) A description of the protection

against the substantial loss of principal,

as set forth in § 144.16.

(c) A copy of the tribe’s ordinances

and procedures for managing or

overseeing the management of the funds

to be withdrawn. These must include

adequate protections against fraud,

abuse, and violations of the

management plan.

(d) A description of the tribe’s

previous experience managing or

overseeing the management of invested

funds. This should include factual data

of past performance of tribally-managed

funds (i.e., audited reports) and the

identity and qualifications of the tribe’s

investment officer.

(e) A description of the capability of

all of the individuals or investment

institutions that will be involved in

managing and investing the funds for

the tribe. Provide copies of state or

federal security applications for account

executive(s).

(1) Investment entities named must

submit:

(i) Ownership information (including

Central Registry Depository (CRD)

numbers);

(ii) Asset size and capitalization;

(iii) Assets under management;

(iv) Performance statistics on

managed accounts for the past 5 years;

and

(v) Any adverse actions by licensing

and/or regulatory bodies within the past

5 years.

(2) In addition, we may ask about:

(i) Soft dollar arrangements;

(ii) Affiliation with broker dealers,

banks, insurance and/or investment

companies;

(iii) Research done in house;

(iv) Recent changes in active portfolio

managers; and

(v) Any other information necessary

to make an adequate evaluation of the

proposed plan.

(f) A description of how the plan will

ensure that the fund manager will

comply with any conditions established

in judgment fund plans or settlement

acts.

(g) Proof of liability insurance of the

investment firm.

(h) Proof of liability insurance that

protects against fraud for those Tribal

Council members with authority to

disburse funds. In many tribes the

chairperson, and the comptroller and/or

the tribal treasurer, for example, would

be the positions having this authority.

(i) A plan for custodianship of

investment securities that includes:

(1) Name of persons in the tribe who

can direct the custodian;

(2) Name of the custodian;

(3) Copy of intended custodian

agreement;

(4) Size of custodian operation;

(5) Disclosure of any security lending

provisions; and

(6) Insurance coverage.

(j) A tribal council agreement to

provide an annual audit and report on

performance of withdrawn funds to the

tribal membership, with a copy to:

Office of the Special Trustee for

American Indians, Department of the

Interior, MS–5140, 1849 C Street NW,

Washington, DC 20240. This agreement

must include:

(1) A statement that the copy to the

Special Trustee is for information only,

and infers no liability on our part

regarding the audit results, nor does it

infer a requirement for us to take any

action whatsoever; and

(2) A description of the steps

(including audit performance and

reporting) the tribe will take to ensure

its membership that the tribe is

continuing to comply with the terms of

the plan submitted and approved

pursuant to judgment fund limitations

(if any) and/or the terms of the Act.

(k) The proposed date for transfer of

funds.

(l) A statement as to whether the tribe

chooses to receive the withdrawal as a

cash balance transfer, as a transfer of

marketable investments that we own for

the tribe, or as a combination of the two.

(1) A cash balance transfer may

require us to sell bonds, notes, or other

investments that we purchased when

investing the tribe’s monies.

(2) We cannot transfer non-marketable

securities to a tribe. We can only

purchase and hold them and must sell

them back to the U.S. Treasury.

(3) If we sell a tribe’s security at a loss

(i.e., when market value is less than

book value or carrying value) we will

first notify the tribe. The tribe must

instruct us to proceed with the sale and

must agree not to hold us responsible

for the loss before we will make the sale.

(4) If the tribe asks us to transfer

marketable securities, upon proper

instructions from the new tribal

custodian, we will order our custodian

to physically transfer the proper

security to the new custodian on the

agreed upon date.

(m) Agreement that judgment award

funds will have segregated accounts.

(n) A description of the procedures for

amending or revising the plan.

§ 144.15 What is the approval process for

management plans?

The Secretary will approve or

disapprove each management plan,

based in part upon our

recommendation.

(a) We will determine the

completeness of the application,

provide for adequate professional

review of the application and the

management plan, and provide

technical assistance as necessary to

make an application complete.

(b) We will coordinate with area

directors in confirming authority of

tribal governments to make requests,

and in providing technical assistance.

(c) We will approve or disapprove a

request within 90 calendar days of

receiving a completed application. This

90-day period does not include time

that we spend awaiting a response from

the tribe for additional information that

we have requested. All determinations

will be in writing, and all responses will

be by certified mail.

(d) If we find that a plan does not

meet the criteria in § 144.16, we will

notify the tribe of shortcomings of the

request, and allow the tribe to respond

before recommending formal

disapproval.

(e) Before final approval, we will

reach agreement with the tribe on how

many days after final approval we will

transfer the funds. We will transfer the

funds as soon after final approval as the

tribe or manager is ready to receive

them, unless we need additional time to

sell existing instruments.

§ 144.16 What criteria will be used in

evaluating the management plan?

Each plan must be approved by the

appropriate tribal governing body, and

must be accompanied by a resolution

approving the plan. The plan must be

reasonable in light of the trust

responsibility and the principles of

Indian self-determination, and other

appropriate factors, including, but not

limited to, the factors listed below:

(a) We will evaluate the individuals or

entities that will manage the funds to be

withdrawn, or that will advise the tribe

on investing the funds to be withdrawn

in order to determine if they have the

capability and experience to manage the

funds. Among the elements we will

evaluate are: the number of years in

business, the performance record for

funds management, and the ability to

compensate the tribe if the entity is

found liable for failing to comply with

the tribe’s management plan (i.e., its

assets, bonding, and insurance).

(b) We will review the tribe’s

experience in managing investments.

We will compare this experience to the

complexity of the proposed

management plan to determine whether

the tribe has the experience to manage

its proposed plan or whether it should

begin with a less complex approach.

(c) We will evaluate the tribe’s

internal audit and control systems for
24736 Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Proposed Rules

overseeing or monitoring its investment

activity.

(d) We will evaluate the adequacy of

protection against substantial loss of

principal. Our determination will

include a thorough evaluation of the

tribe’s investment plan including:

(1) The goals and objectives;

(2) The proposed uses of the fund in

order to meet business objectives;

(3) The size and diversity of the

investment portfolio (for example, the

class of stocks and the mixture of types

of investments);

(4) The financial condition of the

tribe;

(5) The inherent riskiness of the

proposed investments; and

(6) The tribe’s projected need and

proposed timeframes to draw down the

funds being invested or the income from

them.

(e) We will determine the likelihood

that the plan will be followed. We will

base this determination on the contents

of the agreement between the tribe and

the fund manager and other appropriate

factors.

§ 144.17 What special criteria will be used

to evaluate management plans for judgment

or settlement funds?

For judgment or settlement funds, in

addition to the criteria in § 144.16, we

will determine if the plan adequately

provides for compliance with any

conditions, uses of funds, or other

requirements established by the

appropriate judgment fund plan or

settlement act.

§ 144.18 When does the Department’s

trust responsibility end?

Our trust responsibility for funds

withdrawn under this part ends on the

date that the funds are withdrawn.

However at the time of withdrawal

neither we nor the tribe may be deemed

to have accepted the account balance at

the time of withdrawal as accurate, or

waived any rights regarding the balance

and our ability to seek compensation.

§ 144.19 How can the plan be revised?

Once a tribe has withdrawn its funds,

the tribe may revise its plan without our

approval. All revisions should conform

to the procedures outlined in the

approved management plan. The tribe

should inform its members of all

revisions to a plan through normal tribal

procedures before the revisions are

implemented.

§ 144.20 How can a tribe withdraw

additional funds?

(a) If a tribe has withdrawn funds

under an approved tribal management

plan and wishes to withdraw additional

funds that will be managed under the

same plan, it need not submit a

complete new application. The tribe

must:

(1) notify us of the additional amount

it intends to withdraw and whether the

funds to be withdrawn are in kind or

cash. (Written notification should be

provided to our address in Section

144.13);

(2) send us a tribal resolution

approving the new withdrawal and

certifying that the funds are being

withdrawn subject to the same

conditions and that they will be

managed under the plan in the original

approved application;

(3) send us a copy of the most recent

compliance audit or investment report.

(b) After we finish our review we will

release the additional funds, unless the

compliance audit or investment report

indicates that the tribe is not complying

with its management plan. In this case,

we will not release the additional funds

until the tribe demonstrates that it is

complying with the management plan.

§ 144.21 How may a tribe appeal denials

under this part?

If we deny a request or do not approve

an application within 90 days of a

request, the tribe may address any

problems that we identify and resubmit

a revised request, seek technical

assistance, or appeal the denial under

43 CFR Part 4.

Subpart C—Returning Tribal Funds to

Trust

§ 144.30 How does a tribe notify the

department if it wishes to return withdrawn

funds to Federal trust status?

If a tribe elects to return some or all

of the funds it has withdrawn from

Federal trust status pursuant to this Act,

it must first notify us in writing at our

address in Section 144.13. This

notification must provide a proposed

date for the return of the funds, as well

as the amount of funds to be returned,

or actual securities to be delivered to the

appropriate custodian.

§ 144.31 What part of withdrawn funds can

be returned to trust?

A tribe may return all or a portion of

the principal which was removed from

trust under this Act along with earnings

and profits. We will verify the amount

declared for earnings before we accept

a return. We will accept any amount

less than the original principal amount

as a principal amount.

§ 144.32 How often can funds be returned?

Tribes may return all or part of

withdrawn funds no more than twice a

year, beginning no sooner than 6

months after date of withdrawal, except

with approval of the Secretary.

§ 144.33 How can funds be returned?

Funds may be returned either as cash

or securities which meet the

requirements for investments in 25

U.S.C. 162(a). Cash can be transferred to

the US Treasury by Electronic Funds

Transfers (EFT), or the Automated

Clearing House (ACH) process. Tribes

must coordinate transfer of ownership

in securities with us to ensure proper

credit to the tribe. The securities must

meet investment restrictions contained

in 25 U.S.C. 162(a).

§ 144.34 Can a tribe withdraw redeposited

funds?

Yes, if a tribe wishes to withdraw

redeposited funds from Federal trust

status, it must submit a written request

to do so, accompanied by a new

resolution and any revisions it wishes to

make in its original management plan.

Subpart D—Technical Assistance

§ 144.40 How will the Department provide

technical assistance for tribes?

(a) We will provide direct or contract

technical assistance, in accordance with

appropriations availability, to tribes for

developing, implementing, and

managing Indian trust fund investment

plans. We will ensure that our legal,

financial and other expertise is made

fully available to advise tribes in

developing, implementing, and

managing investment plans.

(b) We may award grants to tribes for

developing and implementing plans for

investing Indian tribal trust funds.

(c) Tribes may also obtain technical

assistance on their own.

§ 144.41 What types of technical

assistance are available?

The types of technical assistance

include: investment planning;

accounting; selection of investment

managers; monitoring of investments;

asset management; or other assistance

appropriate to support funds

withdrawal.

§ 144.42 Who can provide technical

assistance?

A sample of competent providers

includes any of the following entities

with the appropriate skills and

capabilities: available DOI or BIA staff;

intertribal organizations; public

agencies; and contracted private

investment firms.

§ 144.43 How can a tribe apply for

technical assistance?

(a) Tribes wishing technical assistance

may request it by sending us a letter

along with a tribal resolution outlining
Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Proposed Rules 24737

the technical assistance required, tribal

resources which may be applied to the

need, and suggested provider, if known.

The resolution must state clearly that

the assistance is needed for developing,

implementing, or managing an

investment plan under the provisions of

this authority.

(b) Tribes requesting funds for

technical assistance must send a

completed SF–424, APPLICATION FOR

FEDERAL ASSISTANCE, and SF–424A,

BUDGET INFORMATION, along with a

tribal resolution, detailing the assistance

specifically requested, and the

suggested provider to our address in

Section 144.13.

(c) We will make grants subject to

funds availability. We will publish a

notice in the Federal Register

concerning the availability of funding,

deadlines for grants, the application

process, and approval criteria. If

funding is limited, grants will be

awarded based on criteria that we feel

will best meet the intent of the Act. We

will consult with tribes in determining

annual criteria. Unsolicited grant

requests will not be accepted.

§ 144.44 What action will the Department

take on requests for technical assistance?

We will respond in writing to all

requests for technical assistance and

grants, advising of decision, availability

of appropriate expertise and funding,

and anticipated delivery of the service.

Dated: May 8, 1996.

Ada E. Deer,

Assistant Secretary—Indian Affairs.

[FR Doc. 96–12143 Filed 5–15–96; 8:45 am]

BILLING CODE 4310–02–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[OH90–1–7255b; FRL–5500–6]

Approval and Promulgation of

Implementation Plan; Ohio

AGENCY: United States Environmental

Protection Agency (USEPA).

ACTION: Proposed rule.

SUMMARY: The United States

Environmental Protection Agency

(USEPA) proposes to conditionally

approve a revision to the Ohio State

Implementation Plan (SIP) to meet the

requirements of the USEPA

transportation conformity rule. The

Transportation conformity SIP revisions

enable the State of Ohio to implement

and enforce the Federal transportation

conformity requirements at the State or

local level.

DATES: Comments on this proposed

action must be received by June 17,

1996.

ADDRESSES: Written comments should

be sent to: J. Elmer Bortzer, Chief,

Regulation Development Section,

Regulation Development Branch (AR–

18J), USEPA, Region 5, 77 West Jackson

Boulevard, Chicago, Illinois 60604–

3590.

FOR FURTHER INFORMATION CONTACT:

Patricia Morris at (312) 353–8656.

SUPPLEMENTARY INFORMATION: For

additional information, see the Direct

Final notice which is located in the

Rules section of this Federal Register.

Copies of the request are available for

inspection at the following address:

(Please telephone Patricia Morris at

(312) 353–8656 before visiting the

Region 5 office.) EPA, Region 5, Air and

Radiation Division, 77 West Jackson

Boulevard, Chicago, Illinois 60604–

3590.

Dated: April 19, 1996.

Valdas V. Adamkus,

Regional Administrator.

[FR Doc. 96–12358 Filed 5–15–96; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 52

[PA 078–4019b; FRL–5467–7]

Approval and Promulgation of Air

Quality Implementation Plans;

Pennsylvania; Approval of SourceSpecific VOC and NOX RACT and

Synthetic Minor Permit Conditions,

and 1990 Baseyear Emissions for One

Source

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA proposes to approve the

State Implementation Plan (SIP)

revision submitted by the

Commonwealth of Pennsylvania for the

purpose of establishing VOC and NOX

RACT for eleven sources, federally

enforceable conditions on three sources

to make them synthetic minor sources,

and approving the 1990 emissions for

one source in the Pittsburgh 1990

baseyear emission inventory. This

action affects a total of 14 sources. In the

Final Rules section of this Federal

Register, EPA is approving the State’s

SIP revision as a direct final rule

without prior proposal because the

Agency views this as a noncontroversial

SIP revision and anticipates no adverse

comments. A detailed rationale for the

approval is set forth in the direct final

rule and the accompanying technical

support document. If no adverse

comments are received in response to

this proposed rule, no further activity is

contemplated in relation to this rule. If

EPA receives adverse comments, the

direct final rule will be withdrawn and

all public comments received will be

addressed in a subsequent final rule

based on this proposed rule. EPA will

not institute a second comment period

on this action. Any parties interested in

commenting on this action should do so

at this time. If adverse comments are

received that do not pertain to all

documents subject to this rulemaking

action, those documents not affected by

the adverse comments will be finalized

in the manner described here. Only

those documents that receive adverse

comments will be withdrawn in the

manner described here.

DATES: Comments must be received in

writing by June 17, 1996.

ADDRESSES: Written comments on this

action should be addressed to Marcia L.

Spink, Associate Director, Air Programs,

Mailcode 3AT00, U.S. Environmental

Protection Agency, Region III, 841

Chestnut Building, Philadelphia,

Pennsylvania 19107. Copies of the

documents relevant to this action are

available for public inspection during

normal business hours at the Air,

Radiation, and Toxics Division, U.S.

Environmental Protection Agency,

Region III, 841 Chestnut Building,

Philadelphia, Pennsylvania 19107; and

the Pennsylvania Department of

Environmental Protection, Bureau of Air

Quality Control, P.O. Box 8468, 400

Market Street, Harrisburg, Pennsylvania

17105.

FOR FURTHER INFORMATION CONTACT:

Cynthia H. Stahl, (215) 597–9337, at the

EPA Region III office or via e-mail at

stahl.cynthia@epamail.epa.gov. While

information may be requested via email, comments must be submitted in

writing to the above Region III address.

SUPPLEMENTARY INFORMATION: See the

information, pertaining to this action

(VOC and NOX RACT approval,

synthetic minor approval, and approval

of 1990 emissions for one source in the

Pittsburgh 1990 baseyear emissions

inventory) affecting 14 sources in

Pennsylvania, provided in the Direct

Final action of the same title which is

located in the Rules and Regulations

Section of this Federal Register.

Authority: 42 U.S.C. 7401–7671q.

Dated: April 19, 1996.

W.T. Wisniewski,

Acting Regional Administrator, Region III.

[FR Doc. 96–12356 Filed 5–15–96; 8:45 am]

BILLING CODE 6560–50–P