30560 Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Proposed Rules

154.5 What is a competency eligibility roll?

154.6 How is age determined?

154.7 Who pays for the recording of

certificates of competency?

154.8 When will I get delivery of my funds,

if any?

Authority: 62 Stat. 18; 25 U.S.C. 331 note.

§ 154.1 What are the definitions of the

terms used in this part?

Certificate of competency is a

certificate issued by the Superintendent

of the Osage Agency declaring a certain

Osage Indian to be competent to handle

his or her allotted or inherited Osage

Indian lands or Osage headright

interest(s).

Commissioner includes the Deputy

Commissioner of Indian Affairs or

authorized representative acting under

delegated authority.

Person means an unallotted member

of the Osage Tribe of Oklahoma of less

than one-half Osage Indian blood who

has not received a certificate of

competency.

Secretary means the Secretary of the

Interior or authorized representative

acting under delegated authority.

Superintendent means the

Superintendent of the Osage Agency,

Bureau of Indian Affairs, Department of

the Interior.

§ 154.2 Why do I need a certificate of

competency?

If you do not wish to be under the

supervision of the Bureau of Indian

Affairs and feel that you are competent

to handle your own allotted or inherited

Osage Indian lands or Osage headright

interests, you may apply for a certificate

of competency which will remove the

restrictions from your land as well as

make any income deriving from your

Osage headright interests fully taxable

by both Federal and State. In addition,

a certificate of competency will make

any Osage lands or headright subject to

creditors’ claims.

§ 154.3 How do I apply for a certificate of

competency?

You must complete and file with the

agency superintendent a written

application in the form approved by the

Secretary.

§ 154.4 How do I qualify for a certificate of

competency?

You must be at least 21 years old and

be determined by the Osage Agency

Superintendent to be competent to

handle your own land and financial

affairs.

§ 154.5 What is a competency eligibility

roll?

It is a listing, prepared for the Osage

Agency Superintendent, of persons 21

years or older who have not received a

certificate of competency. It contains the

following information for each

individual:

(a) Name;

(b) Last known address;

(c) Date of birth; and

(d) Total quantity of Osage Indian

blood of each person listed.

§ 154.6 How is age determined?

The date of birth as shown on a

standard or delayed birth certificate or

census records maintained by the Osage

Indian Agency is accepted as prima

facie evidence in determining the age of

a person.

§ 154.7 Who pays for the recording of

certificates of competency?

The Superintendent may disburse IIM

funds of the persons to whom a

certificate of competency is issued in

order to provide for the direct payment

of costs of recording the certificate of

competency into the official land

records of the Osage County Clerk.

§ 154.8 When will I get delivery of my

funds, if any?

After a certificate of competency is

issued and recorded, the

Superintendent will deliver to the

individual or legal guardian named, the

original copy of the certificate and a

check for all funds on deposit in the IIM

account of the individual at the Osage

Indian Agency. At the request of the

Superintendent, you will be required to

sign a receipt.

Dated: May 31, 1996.

Ada E. Deer,

Assistant Secretary—Indian Affairs.

[FR Doc. 96–14641 Filed 6–14–96; 8:45 am]

BILLING CODE 4310–02–M

25 CFR Part 162

RIN 1076–AA29

Leasing and Permitting

AGENCY: Bureau of Indian Affairs,

Interior.

ACTION: Proposed rule.

SUMMARY: This rulemaking action will

revise the leasing and permitting

regulations in 25 CFR Part 162, and

incorporate the general grazing permit

regulations now found in 25 CFR Part

166. The rule will also implement the

relevant provisions in a number of

statutes of general application,

including the American Indian

Agricultural Resource Management Act

(AIARMA). Finally, the rule will

implement many policy decisions, legal

opinions, and administrative actions

which have been issued or implemented

by the Bureau of Indian Affairs (BIA)

since the last publication of these

regulations in the 1960’s.

DATE: Comments must be submitted on

or before October 15, 1996.

ADDRESSES: Mail comments to: Mark

Bradford, Bureau of Indian Affairs,

Division of Land and Water, 1849 C

Street, N.W., Mail Stop 4559 MIB,

Washington, D.C. 20240.

FOR FURTHER INFORMATION CONTACT: Stan

Webb, Branch of Real Estate Services,

Phoenix Area Office, Bureau of Indian

Affairs, at 602–379–6781, or Virgil

Dupuis, Lands Division, Confederated

Salish and Kootenai Tribes of the

Flathead Nation, at 406–675–2700.

SUPPLEMENTARY INFORMATION: Section

301 of the AIARMA requires that the act

be implemented through the

promulgation of final regulations within

24 months, and that such regulations be

‘‘developed by the Secretary with the

participation of the affected Indian

tribes.’’ Four work groups (including a

leasing and permitting group) were

established by a steering committee,

with the work groups and the steering

committee each being comprised of BIA

and tribal representatives. The work

groups met in March 1994, and a first

set of draft regulations was distributed

for comment to some 3000 addressees

on April 29, 1994. The first draft did not

provide for a consolidation of the

permitting provisions in 25 CFR Parts

162 and 166, although such a

consolidation had been planned by the

BIA since 1988; it did, however, include

a number of proposed revisions

(unrelated to the AIARMA) intended to

address questions raised during the past

25 years by other statutory enactments

and various administrative actions and

judicial decisions.

After five formal hearings were

conducted throughout the nation, a

second mailing was distributed for

comment on June 28, 1994. The second

mailing included a cross-references

summary sheet which indicated how

most of the permitting provisions in the

existing 25 CFR Part 166 would be

incorporated in Subpart D of the

proposed 25 CFR Part 162, but it did not

include the text of the proposed Subpart

D. The text of a revised Subpart D—and

all of the other proposed regulations

drafted to implement the AIARMA—

were distributed for a final round of

comments on November 30, 1994. The

leasing and permitting work group met

in September 1994 and March 1995,

respectively, to review the written

comments and public testimony

received in response to the mass

mailings.
Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Proposed Rules 30561

The Statutory Framework

Early Statutes—Tribal Land

Under the trade and intercourse acts

which are codified at 25 U.S.C. 177,

valid leases of tribal land may be made

only with specific statutory

authorization. The first general leasing

statute for Indian land was enacted on

February 28, 1891 (26 Stat. 795, 25

U.S.C. 397), and a proviso in that act

authorized tribal councils to lease tribal

‘‘purchased’’ land (on treaty

reservations) for grazing purposes, for

up to five years. These tribal leases,

unlike the leases of allotments

authorized by the same statute, were

expressly made subject to approval by

we of the Interior. A proviso in an

August 15, 1894, appropriations act (28

Stat. 305) authorized tribal councils to

lease any unallotted ‘‘surplus’’ land for

farming purposes, for up to five years.

By act dated July 3, 1926 (44 Stat. 894,

25 U.S.C. 402a), leases of irrigable tribal

land were authorized for up to ten years,

‘‘with the consent of the tribal council,

business committee, or other authorized

body.’’ By Section 17 of the Indian

Reorganization Act (IRA) of June 18,

1934 (48 Stat. 988, 25 U.S.C. 477), tribes

which did not vote to reject the IRA

were authorized to adopt corporate

charters (to be ‘‘issued’’ by us). Among

other things, these charters initially

allowed tribes to grant leases for up to

ten years, without further secretarial

approval. Section 17 of the IRA was

amended on May 24, 1990 (104 Stat.

207), to eliminate the need for a special

tribal election to support a proposed

corporate charter, and to allow tribes

which rejected the IRA to nonetheless

adopt a charter pursuant to Section 17.

The amendment also authorized 25-year

leases of tribal land without secretarial

approval, where such leases are

authorized by a secretarially-issued

charter. The legislative history of the

amendment does not reveal why

corporate leases were limited to 25

years, when longer terms would have

been consistent with the long-term

leasing statutes enacted between 1934

and 1990.

Early Statutes—Allotted Land

Leases and other dispositions of

allotted land are generally prohibited by

the treaties and statutes which

authorized the allotments and

established the periods during which

the land would be held in trust or

restricted status. These prohibitions

were modified by a series of statutes

which authorized the leasing of

allotments, subject to various

limitations as to the lease purpose,

maximum lease term, the leasing

authority of the individual Indian

landowners, and our approval power.

The Act of February 28, 1891,

authorized an allottee who could not

personally occupy and improve his

land—‘‘by reason of age or other

disability’’—to lease the allotment for

farming and grazing purposes. The

statute limited the maximum term of the

authorized leases to three years, and the

legislative history dictated that

applications to lease be made directly to

us (rather than to the ‘‘agent in charge

of any reservation’’).

In its August 15, 1894, appropriations

act, Congress lessened the 1891 act’s

restrictions by authorizing farming and

grazing leases by any allottee with an

‘‘inability’’ to personally occupy and

improve his land. In this statute,

Congress also extended the maximum

term of farming and grazing leases to

five years, and authorized leases of up

to ten years for business purposes. In

appropriations acts from 1897 and 1900,

however, Congress vacillated in

defining the restrictions to be imposed

on the owners of allotted land. In the

1897 act (30 Stat. 85), the ‘‘inability’’

provision was dropped, and the

maximum terms for farming/grazing and

business leases were reduced to three

and five years, respectively. Then, in the

1900 act (31 Stat. 229, 25 U.S.C. 395),

the ‘‘inability’’ provision was restored,

and five-year farming leases were reauthorized.

A more expansive leasing statute was

enacted on June 25, 1910 (36 Stat. 856,

25 U.S.C. 403), authorizing five-year

leases of allotments held under trust

patents, without regard to the purpose

of the lease or the Indian landowner’s

age, ‘‘disability,’’ or ‘‘inability.’’ This act

also provided that lease ‘‘proceeds’’

could be paid directly to the allottee or

his/her heirs, or expended for their

benefit by us. Congress attempted to

both expand and limit its leasing policy

in the Act of May 18, 1916 (39 Stat. 128,

25 U.S.C. 394), which authorized leases

of irrigable allotted land for up to ten

years, but made such leases subject to

the ‘‘age or other disability’’ restrictions

set forth in the Act of February 28, 1891.

By statute enacted on March 3, 1921 (41

Stat. 1232, 25 U.S.C. 393), allottees and

their heirs were authorized to grant

farming and grazing leases of

‘‘restricted’’ allotments (which were not

covered by trust patents, and thus fell

outside the scope of the 1910 act). (In

earlier statutes, the leasing authority of

the heirs of allottees had been left to

inference.) Leases granted under the

1921 act were expressly made subject to

‘‘the approval of the superintendent or

other officer in charge of the reservation

where the land is located.’’ A September

21, 1922, statute (42 Stat. 995, 25 U.S.C.

392) subsequently authorized us to

approve leases of allotments wherever

the patents covering such allotments

prohibited any type of alienation

without the consent of the President.

When the IRA was enacted in 1934,

its purposes included the prohibition of

the further allotment of Indian

reservations and the curtailment of the

future alienation of allotted land.

Although none of the provisions in the

final version of the IRA specifically

addressed the leasing or permitting of

allotments, Section 6 (48 Stat. 986, 25

U.S.C. 466) directed us to make rules

‘‘to restrict the number of livestock

grazed on Indian range units to the

estimated carrying capacity * * *, to

protect the range from deterioration, to

prevent soil erosion, to assure full

utilization of the range, and like

purposes.’’

A statute was enacted on July 8, 1940

(54 Stat. 745, 25 U.S.C. 380), to address

questions which had arisen about our

authority to approve leases that had not

been executed by all of the individual

Indian owners. This act expressly

authorized us to grant leases of heirship

land (owned by the heirs or devisees of

the original allottee) under specific

circumstances. The act provided, in its

entirety, as follows:

[R]estricted allotments of deceased Indians

may be leased, except for oil and gas mining

purposes, by the superintendent of the

reservation within which the lands are

located (1) when the heirs or devisees of such

decedents have not been determined and (2)

when the heirs or devisees of the decedents

have been determined, and such lands are

not in use by any of the heirs and the heirs

have not been able during a three-months’

period to agree upon a lease by reason of the

number of the heirs, their absence from the

reservation, or for other cause, under such

rules and regulations as the Secretary of the

Interior may prescribe. The proceeds derived

from such leases will be credited to the

estates or other accounts of the individuals

entitled thereto in accordance with their

respective interests.

The 3 month negotiation period

required by the 1940 act is now subject

to modification by tribes, insofar as

agricultural leases are concerned,

through the enactment of the American

Indian Agricultural Resource

Management Act on December 3, 1993.

The provisions of this act are described

in some detail below.

The Long-Term Leasing Act

Before 1955, leases for more than five

years were generally prohibited on both

tribal and individually-owned land; 10

year leases were authorized only where

irrigable land was involved, or where

the leases were made pursuant to a
30562 Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Proposed Rules

tribal corporate charter or a reservationspecific statute. Section 1 of the Act of

August 9, 1955 (69 Stat. 539, 25 U.S.C.

415), authorized long-term leases of

both tribal and individually-owned

land, but Section 6 (25 U.S.C. 415d)

expressly provided that previouslyenacted statutes would not be repealed.

Specifically, ten-year leases were

authorized for grazing purposes, and 25-

year leases were authorized ‘‘for public,

religious, educational, recreational,

residential, or business purposes, * * *

and for those farming purposes which

require the making of a substantial

investment in the improvement of the

land for the production of specialized

crops.’’ Single renewal periods of up to

25 years were authorized in leases made

for purposes other than farming or

grazing.

Section 1 of the 1955 act authorized

leases by the Indian landowners, subject

to the approval of the Secretary, and

Section 2 (25 U.S.C. 415a) confirmed

that long-term leases of heirship land

could be granted by the Secretary

pursuant to the Act of July 8, 1940.

Section 2 also provided that if this grant

authority was delegated by the

Secretary, any ‘‘heirs and devisees’’

whose interests were leased under such

authority would have a right to appeal.

Section 4 (25 U.S.C. 415b) generally

prohibited the payment of rentals more

than one year in advance of the rental

period, and Section 5 (25 U.S.C. 415c)

absolutely prohibited lease provisions

which would prevent or delay a

termination of federal trust

responsibilities during the lease term.

The legislative history of the 1955 act

indicates that it was intended to

facilitate the long-term financing of

development on Indian land, and to

thereby increase the rental income

payable to Indian landowners. The

House Report reflects that Section 4 was

intended to serve the termination-era

‘‘objective of removing restrictions from

Indian lands as rapidly as the Indian

owners become able to handle their own

affairs without assistance from the

Federal Government.’’ The House

Report also indicates that a statutory

provision which would have mandated

rental adjustment clauses in long-term

leases (‘‘to insure adjustments * * *

reflecting appreciation or depreciation

of real and personal property values’’)

was deleted in favor of a committee

recommendation to that effect.

Specifically, the House Committee on

Interior and Insular Affairs

recommended that adjustment

provisions be included in leases

wherever ‘‘applicable and appropriate,’’

and that decisions not to include such

provisions be documented on a case-bycase basis. Finally, the Conference

Report indicates that the ten-year

maximum term for grazing leases was

established in the belief it would

provide adequate security for private

loans to livestock operators.

To date, the 1955 act has been

amended numerous times, and 99-year

leasing authority now exists on several

reservations. A June 2, 1970,

amendment (84 Stat. 303) added the

following sentence at the end of Section

1 of the 1955 act:

Prior to approval of any lease or extension

of an existing lease * * *, the Secretary of

the Interior will first satisfy himself that

adequate consideration has been given to the

relationship between the use of the leased

lands and the use of neighboring lands; the

height, quality, and safety of any structures

or other facilities to be constructed on such

lands; the availability of police and fire

protection and other services; the availability

of judicial forums for all criminal and civil

causes arising on the leased lands; and the

effect on the environment of the uses to

which the leased lands will be subject.

Miscellaneous Statutes—The American

Indian Agricultural Resource

Management Act

The AIARMA was enacted on

December 3, 1993 (107 Stat. 2011, 25

U.S.C. 3701 et seq.), and amended on

November 2, 1994 (108 Stat. 4572).

Section 102(a) of the AIARMA requires

that all ‘‘land management activities’’—

defined in Section 4(12)(D) to include

the ‘‘administration and supervision of

agricultural leasing and permitting

activities, including a determination of

proper land use, * * * appraisal,

advertisement, negotiation, contract

preparation, collecting, recording, and

distributing lease rental receipts’’—

conform to agricultural resource

management plans, integrated resource

management plans, and all tribal laws

and ordinances. Section 102(b) requires

that we recognize and enforce all tribal

laws and ordinances which regulate

land use or pertain to Indian

agricultural land, and provide notice of

such laws and ordinances to individuals

or groups ‘‘undertaking activities’’ on

any affected land. Section 102(c)

authorizes—but does not require—

waivers of federal regulations or

administrative policies which conflict

with an agricultural resource

management plan or a tribal law. It

should be noted, however, that Sections

102(a)–(c) expressly provide for the

recognition of only those tribal

enactments which are not contrary to

federal law or our trust responsibility.

Section 105 of the AIARMA confirms

and expands the existing leasing and

permitting authority of both us and

Indian landowners, and it also limits the

authority of tribes to regulate such

activities under Section 102. First,

Section 105(a)(1) extends the existing

25-year authority for farming leases

requiring a ‘‘substantial investment’’ to

grazing leases that meet the same

requirement. Second, Section 105(a)(2)

confirms existing authority to grant or

approve a lease or permit at less than

the appraised rental value of the land,

when the land has been advertised and

it has been determined that the lease or

permit would serve the best interests of

the Indian landowners. Third, Section

105(b)(5) of the amended AIARMA

confirms that tribes may determine the

rentals to be paid under agricultural

leases and permits of tribal land. Fourth,

the negotiation rights of the owners of

heirship land are expanded by Section

105(c)(2), which authorizes the owners

of a ‘‘majority interest’’ to grant an

agricultural lease or permit which will

bind the remaining owners (so long as

the minority owners receive ‘‘fair

market value’’ for their interests).

Finally, while Sections 105(b)(1)–(4)

confirm the newly-recognized authority

of tribes to supersede federal rules and

regulations on preferences, bonding,

and the leasing or permitting of heirship

land, Section 105(c)(3) allows

individual landowners to exempt their

land from these specific types of tribal

actions where the owners of at least a 50

percent interest in such land object in

writing.

Although renewals of farming and

grazing leases and permits were not

previously authorized by statute,

Section 105(b)(1) of the AIARMA

implicitly authorizes such renewals, at

least on land under the jurisdiction of

a tribe which has established

preferences for individual Indian lessees

and permittees. Moreover, the threemonth negotiation period required by

the Act of July 8, 1940, has been

expressly made subject to modification

by tribes under Section 105(b)(4),

insofar as ‘‘highly fractionated’’ heirship

land is concerned; the three-month

period may only be modified, however,

where a tribe defines ‘‘highly

fractionated’’ and establishes an

alternative plan for providing the

individual Indian owners of heirship

land with notice of our intent to lease

their land pursuant to the 1940 act. In

an apparent reference to the newlyrecognized authority of tribes to

establish alternative notice/negotiation

periods, Section 105(c)(1) originally

confirmed the rights of individual

‘‘allottees’’ to use their own property

and negotiate their own leases and

permits. (By contrast, the 1940 act

allowed the ‘‘heirs and devisees’’ of
Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Proposed Rules 30563

allottees to prevent us from exercising

our broad grant authority on heirship

land, by putting the land to direct use

or by entering into a lease or permit

during a three-month negotiation

period.) Section 105(c)(1) was

subsequently amended to clarify that

nothing in the AIARMA should be

construed as ‘‘limiting or altering’’ the

use and negotiation rights of either an

‘‘allottee’’ or a tribe, but the amendment

failed to address the question of

whether the ‘‘heirs and devisees’’ of

allottees (or individual Indian

landowners who acquired their interests

by deed) may exercise ‘‘owner’s use’’

rights under the 1940 act.

Interpretation and Implementation

Audits and Opinions

Since 1984, the Department of the

Interior’s Office of Inspector General

(OIG) has completed audit reports on:

(1) Agricultural leasing and permitting

activities in Montana, South Dakota,

and North Dakota; (2) conservation

problems on leased property within the

Crow Indian Reservation in Montana;

and (3) the administration of

commercial leases on the Agua Caliente

Indian Reservation in California. In the

latter report (from 1992), the OIG

expressed concern about whether

lessees should benefit from favorable or

subsidized lease rentals by entering into

‘‘sandwich’’ leases which allow them to

retain all or part of the differential

between market (sublease) and contract

(lease) rents. While the Agua Caliente

audit report criticized existing

regulations as providing ‘‘insufficient

guidance for commercial leasing

activities,’’ it also asserted that such

regulations now make us responsible for

ensuring that: (1) All lease rentals

(including percentage rentals and

interest on delinquencies) are paid; (2)

adequate security for such payments is

maintained throughout the lease term;

(3) negotiated leases provide for a fair

rental throughout the lease term,

without fixed (or capped) rental

adjustments; and (4) all leases and

subleases are recorded in accordance

with 25 CFR 150.

In three audit reports from 1984—

1986, the OIG reviewed the agricultural

leasing and permitting activities on six

reservations in North and South Dakota.

In two reports pertaining to the Fort

Berthold Reservation, the OIG criticized

the BIA’s failure to: (1) Identify

unleased agricultural land and advertise

such land for lease or permit; (2)

advertise land on which leases or

permits will be expiring, where the

landowners have not granted a new

lease or permit (to the existing lessee/

permittee or anyone else) within a threemonth period; (3) issue timely notices of

delinquent rentals; (4) require a

minimum cash rental where cropshare

rentals are authorized; and (5) monitor

and document crop production where

cropshare rentals are to be paid. In a

1986 report pertaining to five other

reservations in North and South Dakota,

the OIG reiterated most of the Fort

Berthold criticisms, and also

recommended that: (1) Minimum

grazing rentals be set at a higher rate,

with adjustments to off-reservation

market data based on such ‘‘factors’’ as

seasonal limitations, tribal taxes,

interest on rental ‘‘advances,’’

administrative fees, and bonding

requirements; (2) the ‘‘brokering’’ of

unauthorized ‘‘subleases’’ on allocated

range units be monitored, so that

minimum grazing rentals are paid for all

livestock owned by non-Indians; (3) the

grazing rentals for the various tracts

within a range unit reflect any

differences in the production

capabilities of such tracts; and (4)

stocking rates be continuously reviewed

and adjusted as range conditions

warrant.

In four audit reports from 1985—

1988, the OIG reviewed selected leasing

and permitting activities on three

reservations in Montana (as well as the

Turtle Mountain Chippewa allotments

in eastern Montana), focusing primarily

on trespass, conservation, and income

collection issues. Two of these reports

also reiterated the above-referenced

concerns about unleased land, expiring

leases, and delinquent rentals. Two of

the reports dealt solely with

conservation issues on the Crow Indian

Reservation, with specific reference to

(unapproved) leases granted by

competent Indian landowners pursuant

to the amended Crow allotment act.

Based on its review of the legislative

history—and its view of our continuing

trust responsibility to the allotments in

question—the OIG recommended that

the BIA clarify its responsibility and

authority over land under leases granted

by competent Indian landowners, by

legislation if necessary.

National Environmental Policy Act

§ 162.16(c)(1) provides that the lessee

must comply with the National

Environmental Policy Act (42 U.S.C.

4371 et seq.). The courts have held in

Davis v. Morton, 469 F.2d 593 (10th Cir.

1972), that the National Environmental

Policy Act applies to the Bureau of

Indian Affairs approval of leases of trust

land.

List of Subjects in 25 CFR Part 162

Agriculture and agricultural products;

Grazing lands; Indian-lands.

For the reasons set out in the

preamble, we propose to revise Part 162

of Title 25 of the Code of Federal

Regulations, as follows:

PART 162—LEASING AND

PERMITTING

Subpart A—General Provisions

Sec.

162.1 Definitions.

162.2 Objectives.

162.3 Scope.

162.4 Tribal laws.

162.5 Information collection.

Subpart B—Administrative Provisions

162.10 How are leasing and permitting

units created?

162.11 How are leasing and permitting

units advertised?

162.12 Can landowners grant leases or

permits?

162.13 When do we grant leases or permits?

162.14 What land is exempt from leasing

and permitting?

162.15 What administrative fees are

required?

162.16 Who reviews and approves leases or

permits?

162.17 What happens if you default?

162.18 When can leases or permits be

canceled?

Subpart C—General Requirements

162.20 Who can obtain a lease or permit?

162.21 How do we describe leased or

permitted areas?

162.22 What uses of leased or permitted

areas are allowed?

162.23 For how long are leases or permits

valid?

162.4 What provisions must be in every

lease or permit?

162.25 How much will the lease or permit

cost?

162.26 Will you have to provide a security

deposit?

162.27 How can leases or permits be

amended or modified?

162.28 Can leases or permits be assigned,

transferred, or sublet?

162.29 Can you use a lease or permit as

collateral for a loan?

162.30 What restrictions apply if you

acquire interest in a lease or permit?

162.31 What fees, taxes and assessments

must you pay?

162.32 What happens if your lease or

permit includes improvements?

162.33 Do you need insurance?

162.34 What remedies are available if there

is a default or dispute?

Subpart D—Special Provisions for Grazing

Permits

162.40 How are grazing units established?

162.41 How many animals can you graze?

162.42 When do we issue grazing permits?

162.43 What happens when we implement

a tribal allocation program?
30564 Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Proposed Rules

162.44 When will we give stocking rate

credit?

162.45 How much will grazing rental cost?

162.46 When will permits or tracts be

revoked or withdrawn?

Subpart E—Special Provisions for Specific

Reservations

162.50 Crow Reservation

162.51 Cabazon, Augustine, and TorresMartinez Reservations

162.52 Salt River and San Xavier

Reservations

162.53 Tulalip Reservation.

Authority: 5 U.S.C. 301, R.S. 463 and 465;

25 U.S.C. 2 and 9. Interpret or apply sec. 3,

26 Stat. 795, sec. 1, 28 Stat. 305, secs. 1, 2,

31 Stat. 229, 246, secs. 7, 12, 34 Stat. 545,

34 Stat. 1015, 1034, 35 Stat. 70, 95, 97, sec.

4, 36 Stat. 856, sec. 1, 39 Stat. 128, 41 Stat.

415, as amended, 751, 1232, sec. 17, 43 Stat.

636, 641, 44 Stat. 658, as amended, 894,

1365, as amended, 47 Stat. 1417, sec. 17, 48

Stat. 984, 988, 49 Stat. 115, 1135, sec. 55, 49

Stat. 781, sec. 3, 49 Stat. 1967, 54 Stat. 745,

1057, 60 Stat. 308, secs. 1, 2, 60 Stat. 962,

sec. 5, 64 Stat. 46, secs. 1, 2, 4, 5, 6, 64 Stat.

470, 69 Stat. 539, 540, 72 Stat. 968; 25 U.S.C.

380, 393, 393a, 394, 395, 397, 402, 402a, 403,

403a, 403b, 403c, 413, 415, 415a, 415b, 415c,

415d, 477, 635. 25 U.S.C. 3701, 3702, 3703,

3715, 107 Stat. 2018, 108 Stat. 4572.

Subpart A—General Provisions

§ 162.1 Definitions.

Adult means an individual Indian

who is 18 years or older.

Agricultural land means farmland,

rangeland, or other land which is used

in conjunction with farmland or

rangeland.

Agricultural lease or permit means a

lease or permit or permit for farming

and/or grazing purposes.

Allocation means the apportionment

of grazing units to tribal members or

tribal entities, including the tribal

designation of permittees and the

number and kind of livestock to be

grazed.

Conservation plan means a statement

of management objectives for an

agricultural lessee or permittee,

including contract stipulations defining

required uses, operations, and

improvements. A conservation plan

may be prepared or adopted by us, and

will be reviewable on an annual basis.

Fair annual rental means

consideration for a lease or permit

which provides a reasonable return on

land value, as may be determined by an

appraisal of comparable properties,

advertisement and/or competitive

bidding, or a negotiated percentage of

the income to be derived from the land.

Fair annual rental will reflect the

highest and best use of the land,

consistent with applicable law, and will

take into account the costs associated

with the proposed use and the

reversionary value of any improvements

to be made by the lessee or permittee.

Farmland means land which is used

for the development of crops, pasture, or

other agricultural products grown or

harvested for personal consumption or

for commercial purposes.

Government land means the surface

estate of a tract of land, or any interest

therein, which is owned by the United

States and administered by the Bureau

of Indian Affairs, not including tribal

land which has been reserved for the

Bureau’s administrative purposes but is

not immediately needed for such

purposes.

Grazing permit means a permit of

specified duration, granting the

permittee a privilege to use tribal,

individually-owned, and/or

Government land for grazing purposes.

Unless otherwise provided by

agreement, a grazing permit will be

assignable by the permittee, with the

consent of the owners and our approval,

and may only be canceled or revoked by

us pursuant to §§ 162.18 and 162.46 of

this part, respectively.

Grazing unit means one or more tracts

which have been designated for grazing

purposes, pursuant to § 162.40.

Heirship land means the surface

estate of a tract of land having two or

more owners, in which any interest is

owned by an individual Indian in trust

or restricted status. Any such interest

will be characterized as individuallyowned land, while the entire tract will

be considered to be heirship land. Other

interests in a tract of heirship land may

be owned by Indian or non-Indian

individuals or entities, in unrestricted

status, or by tribes, in trust or restricted

status.

Individual Indian means any person

for whom the United States holds title

in trust status, or who holds title subject

to federal restrictions against alienation

or encumbrance.

Individually-owned land means the

surface estate of a tract of land, or any

interest therein, which is held by the

United States in trust for an individual

Indian, or a tract of land, or any interest

therein, which is owned by an

individual Indian subject to federal

restrictions against alienation or

encumbrance.

Interest means an undivided

fractional share in the ownership of

heirship land.

Lease means a grant to a lessee of a

right to possession of tribal and/or

individually-owned land, for a specified

purpose and duration.

Majority interest means an aggregate

of tribal and individually-owned

interests totaling more than 50 percent

of the total ownership in heirship land.

Owner means the tribe or individual

Indian holding beneficial or restricted

title to tribal or individually-owned

land.

Permit means a grant to a permittee of

a privilege to enter on and use tribal,

individually-owned, and/or

Government land for a specified

purpose.

Rangeland means land on which the

native vegetation is predominantly

grasses, forbs, or shrubs suitable for

grazing.

Secretary means the Secretary of the

Interior or his authorized representative,

acting pursuant to delegated authority.

Tract means a distinct parcel of

Government or heirship land, or a

distinct parcel of tribal or individuallyowned land in which the full beneficial

or restricted title is held by or on behalf

of a single tribe or individual Indian

owner. A tract may be leased or

permitted either in all or in part, or it

may be incorporated in a unit for leasing

or permitting purposes.

Tribal corporation means a

corporation chartered by us under

Section 17 of the Indian Reorganization

Act of June 18, 1934 (48 Stat. 984, 25

U.S.C. 477).

Tribal land means a tract of land, or

any interest therein, which is held by

the United States in trust for a tribe or

tribal corporation, or a tract of land, or

any interest therein, which is owned by

a tribe subject to federal restrictions

against alienation or encumbrance.

Tribal law means an ordinance or

other enactment by a tribe, which

applies to leasing and permitting

activities on tribal land and/or

individually-owned agricultural land

and is applicable under § 162.4.

Tribe means any Indian tribe, band,

nation, or other organized Indian group

or community, including any Alaskan

Native village, which is recognized by

us as having special rights and

responsibilities, and as being eligible for

the services provided by the United

States to Indians because of their status

as Indians.

Unit means two or more tracts which

have been combined for leasing or

permitting purposes, pursuant to

§ 162.10 of this part.

We means the Secretary of the Interior

or a Federal official with delegated

authority.

§ 162.2 Objectives.

(a) We will prepare and administer

leases and permits in accordance with

tribal laws which are not contrary to

Federal law or our trust responsibility to

protect the resources of individual
Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Proposed Rules 30565

Indian owners. That means we will

manage tribal and individually owned

agricultural land in a manner which is

consistent with recognized principles of

sustained yield management, integrated

resource management planning, sound

conservation practices, and other

community goals as expressed in tribal

laws.

(b) We will assist owners in the

granting of leases and permits through

negotiation, advertisement, or

allocation. We will also recognize the

rights of owners to use their own land,

if the other owners receive a fair annual

rental for this use and the long term

value of the land is preserved.

(c) We will ensure that lessees and

permittees comply with the terms of

their leases and permits, through

cancellation or other action necessary to

protect the interest of the owners. If the

effective use of the land requires, we

may grant leases and permits on behalf

of the owners and obtain a fair annual

rental.

§ 162.3 Scope.

(a) The regulations in this part

prescribe the procedures, terms, and

conditions under which non-mineral

leases and permits covering tribal,

individually owned, and government

land may be granted, approved, and

administered. The regulations in

subparts A through C of this part apply

to all leases and permits, except as

otherwise indicated, and the regulations

in subpart D also apply to grazing

permits. Mineral leases and permits will

be subject to the regulations in

subchapter I of this chapter.

(b) The regulations in subpart E

prescribe certain procedures, terms, and

conditions which apply to leasing and

permitting activities on specific

reservations. The provisions in subparts

A through D will also apply on these

reservations, unless superseded by

subpart E.

(c) The regulations in this part will

not apply if a lease or permit is granted

by an owner without our approval being

required. Such leases and permits must

be recorded according to part 150 of this

chapter.

§ 162.4 Tribal laws.

(a) Tribal laws may apply to tribal

land and individually owned

agricultural land under the jurisdiction

of the enacting tribe. To be applicable,

the law must apply equally to all land

under the jurisdiction of the tribe.

(b) Tribes must notify us of the

content, record of public notices and

hearings, and effective date of new tribal

laws. If the new tribal law applies to

individually owned agricultural land,

we will notify the affected owners.

Either actual or constructive notice may

be provided, depending on whether the

tribe afforded any notice and hearing

rights to the owners before enactment.

Actual notice is required if the tribal

law is of the type described in

paragraphs (c) (1) through (3) of this

section.

(c) A tribal law may supersede the

regulations in this part, except when the

law conflicts with a Federal statute or

with the objectives in § 162.2. Also,

owners of individually-owned land or

the owners of at least a 50 percent

interest in heirship land may exempt

their land from a tribal law if it:

(1) Provides a preference for Indians

or tribal members in issuing or renewing

agricultural leases or permits;

(2) Establishes specific security

requirements for agricultural leases or

permits, or waives our security

requirements; or

(3) Defines ‘‘highly fractionated’’

heirship land and establishes a plan to

provide the owners with notice of our

intent to grant an agricultural lease or

permit under § 162.13(b).

(d) The owners of a tract of

individually owned or 50 percent

interest in heirship land may exempt

their land from a tribal law by

submitting a written statement or

petition to us. We will notify the tribe

of your request. The same procedure

applies to changing your request for

exemption.

§ 162.5 Information collection.

The information collection

requirements contained in this part do

not require the review and approval of

the Office of Management and Budget

under the Paperwork Reduction Act (44

U.S.C. 3501 et seq.).

Subpart B—Administrative Provisions

§ 162.10 How are leasing and permitting

units created?

We may establish a unit if it is

consistent with prudent management or

efficient administration of tribal,

individually owned, or Government

land. If the value of each tract is not

identified in a lease or permit, the value

of each tract will be proportionate to its

acreage within the unit.

§ 162.11 How are leasing and permitting

units advertised?

(a) If necessary to establish a fair

annual rental, we will advertise a tract

of individually owned or heirship land

before granting or approving a lease or

permit. Advertisements will require

sealed bids, and may also provide for

competitive bidding among the

potential lessees.

(b) Advertisements will provide

potential lessees with notice of the

applicable tribal laws, and the basic

terms and conditions of the lease or

permit. Advertisements will state if

there is preference for Indians or

members of the tribe that has

jurisdiction over the land.

§ 162.12 Can landowners grant leases or

permits?

(a) We will approve a lease or non

grazing permit of individually owned

land negotiated and granted by:

(1) Adult owners, except those under

a legal disability;

(2) Parents and other persons standing

in loco parentis to minor children

owners; and

(3) Guardians, conservators, and other

fiduciaries appointed by courts of

competent jurisdiction to act on behalf

of individual Indian owners.

(b) We will approve leases or permits

of tribal land negotiated and granted by

tribes and tribal corporations. If allowed

by its charter, a tribal corporation may

grant a lease or permit for up to 25

years, including any option period,

without our approval. If tribal land

assigned to a tribal member under tribal

law or custom which authorizes further

leasing and permitting, the assignee and

tribe may jointly grant a lease or permit

with our approval.

(c) We will approve agricultural leases

or permits granted by owners of a

majority interest in heirship land to

owners of a minority interest. The lease

or permit must provide a fair annual

rental to the other owners who do not

grant the lease or permit.

§ 162.13 When do we issue leases or

permits?

(a) We may grant leases or non grazing

permits, or join in agreements which

have been negotiated by other owners

under § 162.12(a), on behalf of the

following owners of individually owned

land:

(1) Adults who are legally disabled;

(2) Orphaned minors;

(3) The undetermined heirs or

devisees of individual Indian decedents;

(4) Individual Indians who have given

us written authority to act on their

behalf; and

(5) Individual Indians whose

whereabouts are unknown.

(b) We may grant a lease or permit

covering all tribal and individually

owned interests in heirship land, if a

lease or permit cannot be granted for

each interest under paragraph (a) of this

section and/or § 162.12.

(c) When a tribal law applies, we may

only grant a lease or permit after

providing the tribal and individual
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Indian owners with written notice, and

allowing owners 3 months to grant a

lease or permit pursuant to § 162.12. We

may grant a non-grazing permit covering

all trust and restricted interests in a tract

of heirship land if it is impractical to

provide notice to the owners and no

substantial injury to the land would

occur. If we grant a lease or permit for

10 years or more, we will notify the

owners of their right to appeal under

part 2 of this chapter.

(d) We will grant permits for

Government land.

§ 162.14 What land is exempt from leasing

and permitting?

(a) The parent, guardian, or other

person standing in loco parentis to

minor children may use a tract of

individually owned or heirship land

without charge, if the minor children

are the only owners and will directly

benefit from the use. This use may

continue until one of the owners

becomes an adult.

(1) In that event a lease or permit

must be obtained for the use to

continue.

(2) The user must provide evidence of

a direct benefit to the minor children, or

we will proceed to lease or permit.

(b) We will not grant a lease or permit

pursuant to §§ 162.13(b) or 162.42(b), if

the land is used by an individual Indian

owner and the other owners are

receiving a fair annual rental. An

individual Indian owner who is

personally using heirship land must

notify us of the use and provide

evidence of an accounting to the other

owners before the end of the applicable

notice period.

§ 162.15 What administrative fees are

required?

(a) We will collect an administrative

fee before we approve any lease, permit,

sublease, assignment, encumbrance,

modification, or other related document.

The fee will be based on the annual

rental payable by the lessee or

permittee, calculated as follows: 3

percent of the first $500, 2 percent of the

next $4500, and 1 percent of all rentals

exceeding $5000. Grazing permittees

will also pay an annual administrative

fee for the duration of their permits, at

the same rates. In no event will an

administrative fee be less than $2, nor

exceed $250.

(b) For leases or permits with

percentage rentals, we will collect an

administrative fee based on the

minimum annual rental or an estimated

percentage rental. For crop share rental

or another type of special consideration

is authorized by a lease or permit, we

will establish a cash rental value. We

will collect an administrative fee based

on the cash rental value.

(c) If a tribe performs all or part of the

administrative duties, the tribe may

establish an alternate fee schedule. We

must approve the alternative schedule if

any of the fees collected will not be

deposited in the U.S. Treasury.

(d) If less than fair annual rental is

payable under a lease or permit, or if a

document is being processed primarily

for the benefit of the owners, we will

waive collection of the administrative

fee. No refund of previously collected

fees is allowed.

§ 162.16 Who reviews and approves leases

or permits?

(a) We must identify potential impacts

and ensure compliance with all

applicable environmental and land use

laws and ordinances before we grant or

approve a lease or permit. Usually a

formal assessment of potential impacts

is not required if the proposed action

will not result in a physical alteration of

the land or a change in the land use.

(b) To assess potential impacts of

approving a permit or lease, we will

consider the following:

(1) Relationship between the

proposed land use and the use of

adjoining land;

(2) Type of improvements;

(3) Availability of essential

community services; and

(4) Existence of appropriate regulatory

controls and forums for adjudicating

disputes.

(c) We may conditionally approve a

permit or lease and reserve the right to

further modify or rescind it as necessary

to mitigate significant environmental

impacts. You must not take possession

or start operations until:

(1) You complete an environmental

analysis under the National

Environmental Policy Act (42 U.S.C.

4371 et seq.) and we approve it and

decide to approve the permit or lease;

(2) The lease or permit is modified to

incorporate mitigation measures

identified in the record of decision; and

(3) We certify that all conditions in

the original grant or approval are

satisfied, and we authorize you to take

possession and commence operations.

(d) There is no standard format for a

lease or permit. The provisions must

conform to the general and special

requirements in subparts (C) through (E)

of this part. A lease or permit must

include a citation of the authority used

to grant or approve it and the delegation

authority to the granting or approving

official.

(e) We will not grant or approve a

lease or permit more than one year

before its starting date. If a lease or

permit is granted or approved after its

starting date, it is retroactive to that

starting date except when another date

is stipulated.

§ 162.17 What happens if you default?

(a) We will determine when a default

occurs. We will then notify you and any

sureties or encumbrancers.

(b) You have 30 days from the receipt

of the notice to cure the default or

provide information to justify not

canceling the lease or permit. We may

grant you additional time to complete

corrective actions, but you must

immediately begin the work necessary

to cure the default and diligently

proceed to completion within the time

allowed.

(c) You have the right to appeal our

decision on whether you defaulted

under part 2 of this chapter.

§ 162.18 When can leases or permits be

canceled?

(a) We will cancel a lease or permit if

you fail to justify extra time to correct

or fail to complete required corrective

actions. We will notify you and any

sureties or encumbrancers of our

decision to cancel.

(b) In our notice, we will advise you

of your right to appeal under part 2 of

this chapter, and we will demand the

payment of delinquent rentals and

damages due. An appeal bond may be

required, the amount of the bond will be

the amount of delinquent rentals,

damages, and additional rentals

expected to accrue during the settlement

of the appeal. An appeal filed without

the required bond will be dismissed.

Subpart C—General Requirements

§ 162.20 Who can obtain a lease or

permit?

(a) The lease or permit must identify

all parties, including the owners, the

lessee or permittee, and representatives.

If a representative executes a lease or

permit, it must be clearly stated who is

represented and under what authority

the representation is allowed.

(b) We may grant a lease or permit to

an individual who has ability to

contract under applicable law. If a lease

or permit is granted to several

individuals or an informal association of

individuals, the lease or permit will be

executed by each individual.

(c) Where a lease or permit is granted

to a partnership, all of the general

partners must execute the lease or

permit in the absence of evidence that

all partners are not authorized to bind

the lessee or permittee.

(1) A lease or permit to a partnership

will indicate whether general partners

whose partnership interests are later
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terminated will continue to be liable for

the debts of the lessee or permittee.

(2) A lease or permit to a limited

partnership, corporation, or other

limited liability company will identify

the place where the organizational

documents of the lessee or permittee

have been filed.

(d) If a lease or permit is granted to

a governmental entity, that is prohibited

by law from complying with any of the

requirements in this part, we may waive

those requirements. But, we must

ensure that your sovereign immunity

has been waived to the extent necessary

to protect the interests of the owners.

§ 162.21 How do we describe leased or

permitted areas?

A legal description or the parcel

number of the premises must be in the

lease or permit. If you propose any

development or a metes and bounds

description is used, you must provide a

current survey plat showing

encroachments and the natural features

of the land.

§ 162.22 What uses of leased or permitted

areas are allowed?

(a) A lease or permit must include:

(1) Authorized uses;

(2) Restricted uses;

(3) Prohibited uses; and

(4) Prohibition of creating a nuisance,

any illegal activity, and negligent use or

the waste of resources.

(b) You must conduct farming and

grazing operations in accordance with

the principles of sustained yield

management, integrated resource

management planning, sound

conservation practices, and other

community goals as expressed in tribal

laws.

(c) You must comply with all

applicable laws, ordinances, rules,

regulations, and other legal

requirements. You must also pay all

costs if you do not comply.

§ 162.23 For how long are leases or

permits valid?

(a) Leases and permits will specify the

beginning and ending dates. The length

of time allowed will be the shortest

possible considering the purpose, your

investment, prudent management, and

efficient administration.

(b) The maximum term will depend

on the purpose for the lease or permit,

the location of the land, and the leasing

and permitting authority.

(1) The maximum primary term for

public, religious, educational,

recreational, residential, or business

purposes is 25 years, unless a longer

term is specifically authorized by

Federal statute. The maximum term for

renewals and extensions is 25 years.

(2) We will usually grant agricultural

leases or permits not to exceed 10 years

including renewals and extensions. The

maximum term is 25 years, including

renewals and extensions, if substantial

investment in development or

production of a specialized crop is

required. To determine if a long term is

justified, we will consider the feasibility

of the proposed development or crop

production.

(3) The maximum term is 2 years

when we grant a lease or permit for the

undetermined heirs of an individual

Indian decedent, under § 162.13(a)(3).

(c) You cannot extend a lease or

permit by holdover. The only ways a

lease or permit can be extended is by

renewal or automatic extension. Only

one extension is allowed. Leases or

permits may provide multiple options

for unilateral termination. The lease or

permit must specify the time and

manner an option to renew or terminate

is allowed.

§ 162.24 What provisions must be in every

lease or permit?

A lease or permit must include

provisions stating that:

(a) If the land has trust or restricted

status, you and your sureties obligations

will be to the United States and the

owners;

(b) The lease will not delay or prevent

the issue of a fee patent; and

(c) If a fee patent is issued, our

responsibilities are assumed by the

owners; and

(d) We will notify you of any change

land status.

§ 162.25 How much will the lease or permit

cost?

(a) We will not approve leases or

permits at less than fair annual rental by

individual Indian owners or their

representatives except:

(1) For religious, educational,

recreational, or other public purposes;

(2) For a homesite for the owner’s

spouse, brother, sister, lineal ancestor,

lineal descendent or co-owner.

(3) When a special relationship exists

between the parties; or

(4) When we determine it is in the

best interest of the owners.

(b) We will not approve leases or

permits at less than fair annual rental by

a tribe or tribal corporation for tribal

land, except:

(1) For religious, educational,

recreational, or other public purposes;

(2) For housing or agriculture to a

tribal member or tribal entity; or

(3) For a business subsidy for a tribal

member or tribal entity.

(c) We will specify in the lease or

permit the dates that rents are due and

payable. We will also develop a formula

for apportionment and/or abatement of

rent when you are unable to take

possession for the entire rental period.

We will not collect rent or other

consideration more than one year before

its due date unless agreed to by all

parties.

(d) We will specify who receives

rental payments. If we do not receive

the rental payments, you must provide

us proof of payment. We may suspend

direct payment provisions at any time.

If an owner that receives direct

payments dies, you must make all future

payments to us until the estate is

probated.

(e) All leases or permits of more than

5 years duration must have periodic

rental adjustments, except when the

rental is less than fair annual rental, or

if rentals are a percentage of income. We

will specify how, and when the

adjustments are made, who will make

them, and how disputes will be settled.

Unless agreed to before hand,

adjustments will not:

(1) Give consideration to the value of

improvements or developments

completed;

(2) Be retroactive if not made on time;

and

(3) Be appealable under part 2 of this

chapter.

§ 162.26 Will you have to provide a

security deposit?

(a) We will usually require that you

provide a deposit of cash or marketable

securities, a surety bond, an irrevocable

letter of credit, a chattel mortgage on

personal property located on the

premises, or some other type of security,

to ensure:

(1) Payment of one year’s rental;

(2) Construction of improvements;

and

(3) Performance of additional

obligations, including the restoration of

the land to its original condition.

(b) Tribal laws may establish specific

security requirements for agricultural

leases or permits, or waive our

requirements.

(c) We may waive security

requirements for agricultural leases or

permits if annual rental is payable in

advance, and if performance is secured

by compliance to a conservation plan

and participation in conservation

programs administered by other Federal

agencies.

(d) We can adjust security

requirements at any time. If you default,

we may apply the security and seek

replenishment, or we may retain the

security and proceed with a notice of

default under § 162.17. We may release

a security required to ensure the
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construction of improvements after

completion of construction.

§ 162.27 How can leases or permits be

amended or modified?

(a) We will amend leases and permits

the same way we approve them under

§§ 162.12 and 162.13(a).

(b) Some owners of heirship land may

designate one or more of their fellow

owners to negotiate and/or agree to

amendments or permits on their behalf.

In these cases the designated owner:

(1) May negotiate or agree to

amendments or permits;

(2) May consent to or approve other

items as necessary; and

(3) Cannot negotiate or agree to

amendments that reduce the rentals

payable to the other owners or terminate

or modify the term of the lease or

permit.

§ 162.28 Can leases or permits be

assigned, transferred, or sublet?

(a) We will approve subleases or

assignments of a lease or permit only

with the written consent of all parties

and sureties.

(b) Under a lease or permit for

business purposes, you may sublet a

portion of the premises without the

consent of the owners, sureties, or us, if

the owners receive a fair annual rental

for this additional use. A sublease will

not relieve you of any liability under the

lease or permit, nor will it diminish our

supervisory authority.

(c) A tribal housing authority leasing

tribal land may make assignments

without the consent of the tribe or our

approval, if the assignment is to a tribal

member and associated with the transfer

of a home.

§ 162.29 Can you use a lease or permit as

collateral for a loan?

Yes. You may use a lease or grazing

permit as loan collateral if you get our

approval and the written consent of the

owners and sureties. The lease or permit

then has an approved encumbrance.

§ 162.30 What restrictions apply if you

acquire interest in a lease or permit?

(a) If you acquire interest in a lease or

permit by sale or foreclosure of an

approved encumbrance:

(1) You may give amortization of the

loan priority over your rental payments;

and

(2) You may assign your interest

without consent or approval, if the

assignee agrees in writing to be bound

by the terms of the lease or permit.

(b) If you acquire interest in a lease or

permit other than by sale of foreclosure

of an approved encumbrance:

(1) You need our approval and the

consent of the owners and sureties

before you may assign your interest; and

(2) The assignee must agree in writing

to be bound by the terms of the lease or

permit.

§ 162.31 What fees, taxes and

assessments must you pay?

(a) If you lease or permit tribal land,

you must pay all tribal fees, taxes, and

assessments associated with the use of

the premises. If you lease or permit

individually owned land, you may have

to pay also. You will make the payments

to the appropriate tribal official.

(b) If you lease or permit land within

an Indian irrigation project or drainage

district, you will have to pay all charges

accruing during the term of the lease or

permit, except if part 171 of this chapter

supersedes this section. You will make

payment to the appropriate Federal

official.

§ 162.32 What happens if your lease or

permit includes improvements?

(a) We will set starting and ending

dates for development of the premises

or the construction of improvements.

We will also require plans and

specifications be submitted before work

begins.

(b) Permanent improvements will

remain on the premises at the

termination of a lease or permit. You

can remove other improvements within

a set time period if all parties agree. You

must restore the premises after removal.

§ 162.33 Do you need insurance?

You must provide enough insurance

to protect all insurable improvements

on the premises. You must also obtain

liability insurance to protect the

interests of the owners. All insurance

policies must identify the individual

Indian and tribal owners and the United

States as insured parties.

§ 162.34 What remedies are available if

there is a default or dispute?

(a) A lease or permit covering a tract

of tribal land may provide a tribe with

self-help remedies such as a right of

entry. Upon default, a tribe may elect to

exercise its rights under the lease or

permit, or it may request that we cancel

the lease or permit pursuant to § 162.18.

(b) If a lease or permit covering a tract

of tribal land authorizes termination

pursuant to state or tribal law, or

provides for the resolution of certain

types of disputes through arbitration,

the lease or permit provisions will

govern the termination or dispute

arbitration.

Subpart D—Special Provisions for

Grazing Permits

§ 162.40 How are grazing units

established?

We will establish and modify grazing

units boundaries to provide for the

conservation, development, and

effective use of Indian, and Government

rangeland. We will consult with the

tribe having jurisdiction to comply with

tribal land management policies.

§ 162.41 How many animals can you

graze?

(a) We will prescribe the maximum

number of livestock that can graze on a

grazing unit, and the seasons of

authorized grazing use consistent with

tribal land management policies. We

will continuously review stocking rates

and adjust them to meet changing

conditions.

(b) A tribe may prescribe the kind of

livestock that graze on rangeland within

its jurisdiction. But, we may require

other kinds of livestock if it is essential

to the prudent management or efficient

administration of the permitted land.

§ 162.42 When do we issue grazing

permits?

(a) We may include one or more tracts

of individually owned rangeland in a

grazing unit, and grant a grazing permit

covering such land, on behalf of the

following owners:

(1) Adults who are legally disabled;

(2) Orphaned minors;

(3) The undetermined heirs or

devisees of individual Indian decedents;

(4) Individual Indians who have given

us written authority to act on their

behalf; and

(5) Individual Indians whose

whereabouts are unknown.

(b) We must notify the Indian owners

before we grant a grazing permit on

heirship rangeland. They must have 90

days to agree to the permit, withdraw

their tract from the grazing unit, or

stipulate a higher rental than we

proposed.

(c) We may include tribal rangeland

within a grazing unit, and grant a

grazing permit if the tribe has given us

written authority. Without tribal

authority, we can only include tribal

rangeland if it is essential to the prudent

management or efficient administration

of the land. We must give the tribe

written notice 60 days before the start of

a permit. We will not issue the permit

if the tribe files a written objection to

the proposed permit within the notice

period.
Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Proposed Rules 30569

§ 162.43 What happens when we

implement a tribal allocation program?

(a) A tribe may authorize us to

allocate rangeland under its jurisdiction

without negotiation or advertisement.

We may grant permits under § 162.42(a)

and (b), to implement a tribal allocation

program, despite there not being an

applicable tribal law. The minimum

grazing rentals established under

§ 162.45(a) will generally be payable to

any individual Indian owners of

allocated land.

(b) The tribe having jurisdiction will

prescribe eligibility requirements with

our concurrence. If a tribe fails to

establish its eligibility requirements on

time, we may establish the requirements

after a 60-day notice.

§ 162.44 When will we give stocking rate

credit?

A grazing permit may grant a

permittee a stocking rate credit where

the permittee owns or controls other

rangeland which adjoins or lies within

the grazing unit, and which is grazed in

common with the permitted land. The

stocking rate credit will be reflected in

the grazing capacity of the grazing unit,

established pursuant to § 162.40 of this

part.

§ 162.45 How much will grazing rental

cost?

(a) We will determine fair annual

rentals for reservations with rangeland

by establishing its minimum grazing

rental. These minimum grazing rentals

will apply to all livestock owned by non

Indians or nonmembers when their

livestock grazes on tribal land.

(b) Owners may set alternative

minimum rentals, when we grant a

grazing permit under § 162.42(a) and (b).

Except when lower rentals are

authorized under § 162.25(a), the

alterative minimum rentals may not be

lower than the minimum we set.

§ 162.46 When will permits or tracts be

revoked or withdrawn?

(a) If you default, we may cancel the

grazing permit under § 162.18, unless

we agree to an alternative remedy.

(b) We may revoke or withdraw tracts

from a permit if the tribe wants to

include the land in its allocation

program or an individual Indian owner

wants his/her land exempt from

permitting under § 162.14(b). The new

user must compensate the previous user

for any improvements completed before

the revocation or withdrawal, and adopt

an established conservation plan or

develop a new plan acceptable to us.

Owners may only withdraw a tract after

it is fenced.

(c) We must notify the user 180 days

before a revocation or withdrawal is

executed. The effective date will be the

next anniversary date after notice

period, unless a different date is agreed

to.

Subpart E—Special Requirements for

Specific Reservations

§ 162.50 Crow Reservation.

(a) Some Crow Indians are classified

as competent under the Act of June 4,

1920 (41 Stat. 751), as amended. They

may lease their trust lands and the trust

lands of their minor children for

farming or grazing without our approval

per the Act of May 26, 1926 (44 Stat.

658), as amended by the Act of March

15, 1948 (62 Stat. 80). We must issue a

public notice if competent Crow Indians

authorize us to lease or permit, or assist

in the leasing and permitting their

lands. When this occurs, we will

comply with the regulations in this part.

We must approve leases or permits

signed by non competent Crow Indians

and leases or permits on inherited or

devised trust lands owned by more than

five competent devisees or heirs.

(b) The Act of May 26, 1926 (44 Stat.

658), as amended by the Act of March

15, 1948 (62 Stat. 80), sets five years as

the maximum lease term for farming or

grazing. The maximum term for leases

or permits of irrigable lands under the

Big Horn Canal is 10. You will not have

a preference right to future leases or

permits if the total period of

encumbrance would exceed the

maximum terms allowed.

(c) All leases or permits entered into

by competent Crow Indians must be

recorded at the Crow Agency. Recording

will constitute public notice.

(1) Under these special statutes, Crow

Indians classified as competent are free

to lease their property within certain

limitations. The 5-year (10-year in the

case of lands under the Big Horn Canal)

limitation is intended to afford a

protection to the Indians. The essence of

this protection is the right to deal with

the property free, clear, and

unencumbered at intervals at least as

frequent as those provided by law. If

lessees or permittees are able to obtain

new leases or permits long before the

termination of existing leases or

permits, they may set their own term. In

these circumstances, lessees could

perpetuate their leaseholds and bypass

the statutory limitations on terms.

(2) In implementation of the

interpretation, in paragraph (c)(1) of this

section we will not record any lease

which:

(i) On its face, violates statutory

limitations or requirements;

(ii) Is executed more than 12 months

(if a grazing lease) or 18 months (if a

farming lease), before its term begins; or

(iii) Purports to cancel an existing

lease with the same lessee as of a future

date and take effect upon cancellation.

(3) Under a Crow tribal program,

competent Crow Indians may enter into

agreements which require that, for a

specified term, their leases or permits be

approved. Information about whether a

competent Crow Indian has executed

such an instrument is available at the

office of the Superintendent of the Crow

Agency, Bureau of Indian Affairs, Crow

Agency, Montana. We will return

without recordation any lease entered

into with a competent Crow Indian

during the time such instrument is in

effect that is not in accordance with the

instrument.

(d) Where any of the following

conditions are found to exist, leases will

be recorded but the lessee and lessor

will be notified upon discovery of the

condition:

(1) The lease in single or counterpart

form has not been executed by all

owners of the land described in the

lease;

(2) There is, of record, a lease on the

land for all or a part of the same term;

(3) The lease does not contain

stipulations requiring sound land

utilization plans and conservation

practices; or

(4) There are other deficiencies such

as, but not limited to, erroneous land

descriptions, and alterations which are

not clearly endorsed by the lessor.

(e) Any competent adult Crow Indian

will have the full responsibility for

obtaining compliance with the terms of

any lease made by him/her under this

section. This will not preclude action by

us to ensure conservation and

protection of these trust lands.

(f) Leases made by competent Crow

Indians will be subject to the right to

issue permits and leases to prospect for,

develop, and mine oil, gas, and other

minerals, and to grant rights of way and

easements, in accordance with

applicable law and regulations. In

issuing or granting of permits, leases,

rights of way or easements we will give

due consideration to the interests of

lessees and to the adjustment of any

damages to such interests. If there is a

dispute over the amount of damage, the

matter will be referred to us. Our

determination of the amount of damage

will be final.

§ 162.51 Cabazon, Augustine, and TorresMartinez Reservations.

(a) We may grant a lease of trust or

restricted land on the Cabazon,

Augustine, and Torres-Martinez Indian
30570 Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Proposed Rules

reservations, if the land is irrigable by

the Coachella Valley County Water

District and we determine that the

owners are not benefitting from its use.

(b) You must file a lease of trust or

restricted land on the Cabazon,

Augustine, and Torres-Martinez Indian

reservations with the appropriate

county recorder. You must also file the

lease with the Coachella Valley County

Water District or other appropriate

irrigation or water district.

§ 162.52 Salt River and San Xavier

Reservations.

(a) A lease of trust or restricted land

on the Salt River or San Xavier

reservation may authorize more than

one renewal period, but the maximum

term allowable by law can not be

exceeded. A lease for public, religious,

educational, recreational, residential, or

business purposes may run for a

maximum term of 99 years, and a lease

for farming purposes may run for up to

40 years where a substantial investment

in the development of the land or the

production of a specialized crop is

required.

(b) If we determine that the

governmental interests of a municipality

contiguous to either the Salt River or

San Xavier reservation would be

substantially affected by the grant or

approval of a lease, and these interests

cannot be adequately assessed on the

basis of the information available (under

§ 162.16), we must notify the

municipality of the proposed action and

give them 30 days to comment.

(c) The scenic, historic, and religious

values of the Mission San Xavier del

Bac on the San Xavier Reservation must

be protected.

§ 162.53 Tulalip Reservation.

The Tulalip Tribes may grant a lease

without our approval, if the term of the

lease does not exceed 15 years including

renewal or extension periods. The

Tulalip Tribes may grant a lease without

our approval for up to 30 years,

including renewal or extension periods,

under tribal law approved by us.

Date: May 31, 1996.

Ada E. Deer,

Assistant Secretary—Indian Affairs.

[FR Doc. 96–14640 Filed 6–14–96; 8:45 am]

BILLING CODE 4310–02–P

NATIONAL LABOR RELATIONS

BOARD

29 CFR Part 102

Rules Governing Misconduct by

Attorneys or Party Representatives

Before the Agency

AGENCY: National Labor Relations

Board.

ACTION: Notice of Extension of Time for

filing comments to proposed

rulemaking.

SUMMARY: Pursuant to a request from the

Management Co-Chair of the American

Bar Association Subcommittee on NLRB

Practice and Procedure, the NLRB gives

notice that it is extending by

approximately 45 days the time for

filing comments on the proposed rule

changes governing misconduct by

attorneys or party representatives before

the Agency (61 FR 25158, May 20,

1996).

DATES: The comment period which

currently ends on June 19, 1996, is

extended to August 2, 1996.

ADDRESSES: Comments on the proposed

rulemaking should be sent to: Office of

the Executive Secretary, 1099 14th

Street, NW., Rm. 11600, Washington,

DC 20570.

FOR FURTHER INFORMATION CONTACT:

John J. Toner, Executive Secretary,

Telephone: (202) 273–1940.

Dated, Washington, DC, June 11, 1996.

By direction of the Board:

John J. Toner,

Executive Secretary.

[FR Doc. 96–15164 Filed 6–14–96; 8:45 am]

BILLING CODE 7545–01–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 70

[AD–FRL–5521–3 ]

Clean Air Act Proposed Interim

Approval and in the Alternative

Disapproval of Operating Permits

Program, State of Idaho; Clean Air Act

Proposed Delegation of National

Emission Standards for Hazardous Air

Pollutants as They Apply to Part 70

Sources and Approval of Streamlined

Mechanism for Future Delegations,

State of Idaho

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed action.

SUMMARY: The EPA is reproposing

action on two limited aspects of the

Operating Permits Program submitted

by the Idaho Division of Environmental

Quality for the purpose of complying

with Federal requirements for an

approvable State program to issue

operating permits to all major stationary

sources and to certain other sources.

The first element involves the changes

EPA believes are necessary as a

condition of full approval to the State’s

regulations dealing with general

permits. The second element involves

the effect of the State’s environmental

audit statute on the State’s enforcement

obligations under title V of the Clean

Air Act.

In addition, if EPA grants interim

approval of Idaho’s title V operating

permits program, EPA proposes to

delegate the National Emission

Standards for Hazardous Air Pollutants

(NESHAP) as adopted by the State and

as they apply to part 70 sources. EPA

also proposes to approve a streamlined

mechanism for future NESHAP

delegations.

DATES: Comments must be submitted by

July 17, 1996.

ADDRESSES: Comments must be

submitted to Elizabeth Waddell, at EPA

Region 10, 1200 Sixth Avenue, M/D–

108, Seattle, WA 98101. Copies of the

State’s submittal and other supporting

information used in developing this

proposed action are available for

inspection during normal business

hours at the following location: U.S.

Environmental Protection Agency,

Region 10, 1200 Sixth Avenue, Docket

# 10V100, Seattle, Washington.

FOR FURTHER INFORMATION CONTACT:

Elizabeth Waddell, 1200 Sixth Avenue,

M/D–108, Seattle, WA 98101, (206)

553–4303.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

1. Title V

Title V of the 1990 Clean Air Act

Amendments (sections 501–507 of the

Clean Air Act (‘‘the Act’’)), and

implementing regulations at 40 Code of

Federal Regulations (CFR) Part 70

require that States develop and submit

operating permits programs to EPA by

November 15, 1993, and that EPA act to

approve or disapprove each program

within 1 year after receiving the

submittal. The EPA’s program review

occurs pursuant to section 502 of the

Act and the part 70 regulations, which

together outline criteria for approval or

disapproval. Where a program

substantially, but not fully, meets the

requirements of part 70, EPA may grant

the program interim approval for a