Federal Register / Vol. 61, No. 135 / Friday, July 12, 1996 / Proposed Rules 36671

Inspector, who may add comments and then

send it to the Manager, Standardization

Branch, ANM–113.

Note 2: Information concerning the

existence of approved alternative methods of

compliance with this AD, if any, may be

obtained from the Standardization Branch,

ANM–113.

(c) Special flight permits may be issued in

accordance with sections 21.197 and 21.199

of the Federal Aviation Regulations (14 CFR

21.197 and 21.199) to operate the airplane to

a location where the requirements of this AD

can be accomplished.

Issued in Renton, Washington, on July 8,

1996.

Darrell M. Pederson,

Acting Manager, Transport Airplane

Directorate, Aircraft Certification Service.

[FR Doc. 96–17739 Filed 7–11–96; 8:45 am]

BILLING CODE 4910–13–U

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 5

RIN 1076–AD05

Preference in Employment

AGENCY: Bureau of Indian Affairs,

Interior.

ACTION: Proposed rule.

SUMMARY: The Bureau of Indian Affairs

is proposing to amend the Preference in

Employment regulations by clarifying

the application of Indian preference not

only within BIA but to other

organizations within the Department of

the Interior and removing the extension

of Indian preference to the individuals

of the Osage Tribe of Oklahoma who are

at least one-quarter degree Indian

ancestry. These regulations have also

been rewritten in plain English as

mandated by E.O. 12866.

DATES: Comments must be received by

September 10, 1996.

ADDRESSES: Mail comments to James

McDivitt, Acting Director, Office of

Management and Administration,

Bureau of Indian Affairs, Department of

the Interior 1849 C St. NW., Mail Stop

4616–MIB, Washington, DC 20240; OR,

hand deliver them to Room 4140 at the

above address. Comments will be

available for inspection at this address

from 9:00 a.m. to 4:00 p.m., Monday

through Friday beginning approximately

July 26, 1996.

FOR FURTHER INFORMATION CONTACT:

Carol Smalley, Bureau of Indian Affairs,

Department of the Interior, telephone

number (202) 208–5116.

SUPPLEMENTARY INFORMATION:

Background:

Indian Preference

The Indian preference statute, 25

U.S.C. 472, Section 12 of the Indian

Reorganization Act of June 18, 1934, 48

Stat. 986, requires that the Secretary of

the Interior establish standards of

health, age, character, experience,

knowledge, and ability for Indiana who

may be appointed to positions for the

administration of functions or services

affecting any Indian tribe. It further

provides that qualified Indians shall

have preference to the appointment to

vacancies in such positions.

The legal position of the Department

of the Interior on the scope of the

preference is set forth in a June 10,

1988, opinion by then-solicitor Ralph

Tarr, ‘‘The Scope of Indian Preference

Under the Indian Reorganization Act’’,

M–36960, 96 I.D.1. It concludes, in

general, that the preference is limited in

application to the Bureau of Indian

Affairs (BIA) or units removed intact

from the Bureau of Indian Affairs to

another Departmental bureau. By

memorandum dated April 10, 1996, the

Deputy Solicitor concluded that when a

Bureau of Indian Affairs unit is

transferred intact by virtue of an

administrative decision from the BIA to

a Departmental office where it will

continue to perform the functions it

formerly performed as part of the BIA,

it effectively remains a BIA organization

unit and the preference continues to

apply. The functions and personnel

structure of the organizational unit

remain segregated from the remainder of

the office to which it is transferred.

Indian Preference to the Individuals of

the Osage Tribe of Oklahoma

The Bureau of Indian Affairs must

apply Indian preference in filling every

vacant position, however created,

within the Bureau of Indian Affairs,

Freeman v. Morton, 499 F.2d 492 (DC

Cir. 1974). The Secretary issued a final

rule for the definition of ‘‘Indian’’ on

January 17, 1978, which identified five

categories of persons of Indian descent

eligible for Indian preference. The fifth

criterion applied to the Five Civilized

Tribes of Oklahoma and to the Osage

Tribe whose rolls were closed by the

Acts of Congress, and who had not as

yet reorganized to establish current

membership standards. Many such

individuals have received employment

preference based on the one-quarter

degree standard which was previously

established by the Secretary. In 1978,

these Tribes were allowed three years,

until July 17, 1981, to organize so that

members would not be deprived of the

one-quarter eligibility standard rather

than the one-half degree standard.

On October 4, 1984, the Bureau of

Indian Affairs published a final rule (49

FR 39157) to amend 25 CFR Part 5.

Section 5.1(e) specified the date of

October 4, 1985, as the final date for

making appointments of persons of onequarter degree Indian ancestry. On

September 15, 1986, the BIA published

a final rule (51 FR 32632) to revise 25

CFR Part 5, Preference in Employment.

Section 5.1(e) specified the date of

September 5, 1988, as the final date for

making appointments of persons of onequarter degree Indian ancestry. The last

final rule published (54 FR 282, January

5, 1989), extended Section 5.1(e) to

January 5, 1990.

On February 10, 1994, the Assistant

Secretary—Indian Affairs approved the

Osage Tribe constitution as ratified by

qualified voters of the Osage Nation

February 4, 1994. By memorandum

dated July 15, 1994, the Assistant

Secretary—Indian Affairs recognized the

authority of the Osage National Council

to identify those Osage Indians who are

eligible for Indian preference and

suggested the voting list prepared for

the constitutional election and the

election of officers serve as a temporary

membership roll.

The authority to issue rules and

regulations is vested in the Secretary of

the Interior by 5 U.S.C. 301 and sections

463 and 465 of the Revised Statutes, 25

U.S.C. 2 and 9.

Notice of our intent to amend Section

5.1(e), Indian Preference to the

Individuals of the Osage Tribe of

Oklahoma, appeared in the proposed

rule which was published at 59 FR

47046 (Sept. 13, 1994). No comments

were received by the Bureau following

the publication of the proposed rule.

Certain individuals who are of Indian

descent may receive preference when

appointments are made to vacancies in

positions in the Bureau of Indian Affairs

and in any Bureau of Indian Affairs unit

that has been transferred intact to a

bureau of office within the Department

of the Interior and continues to perform

the functions it formerly performed as

part of the Bureau of Indian Affairs.

Individuals seeking Indian preference

in employment must subject proof: of

his or her membership in a Federally

recognized Indian tribe; of descendancy

from a member and that he or she was

residing within the present boundaries

of any Indian reservation on June 1,

1934; that he or she is an Eskimo or

another aboriginal person of Alaska as

defined by the Alaska Native Claims

Settlement Act (43 U.S.C. 1601 et seq.);

or proof of one-half or more Indian
36672 Federal Register / Vol. 61, No. 135 / Friday, July 12, 1996 / Proposed Rules

blood of tribes that are indigenous to the

United States.

Section 5.3 is intended to clarify how

eligibility for Indian preference is

determined. Specifically, the

application of the definition of Indian in

the Indian Reorganization Act of June

18, 1934 (48 Stat. 984, 988, 25 U.S.C.

479) to descendants of members born

after June 1, 1934. By memorandum

dated March 24, 1976, then-Associate

Solicitor for Indian Affairs, Reid P.

Chambers, concluded:

[O]nly persons residing within any

Indian reservation on June 1, 1934, who

are descendants of members may be

considered preference eligibles.

‘‘Members’’ in this context means

persons identified on approved census

rolls or through other means prior to

June 1, 1934. Persons born after June 1,

1934, must meet any of the other criteria

in order to qualify for preference

eligibility.

The form to be used by the Bureau of

Indian Affairs to verify eligibility for

Indian preference follows the proposed

rule.

Publication of the proposed rule by

the Department of the Interior

(Department) provides the public an

opportunity to participate in the

rulemaking process. Interested persons

may submit written comments regarding

the proposed rule to the location

identified in the ADDRESSES section of

this document.

Evaluation and Certification

The Department has certified to the

Office of Management and Budget

(OMB) that this rule meets the

applicable standards provided in

sections 2(a) and 2(b)(2) of Executive

Order 12778.

This rule is not a significant

regulatory action under Executive Order

12866 and does not require review by

the Office of Management and Budget.

This rule will not have a significant

economic impact on a substantial

number of small entities under the

Regulatory Flexibility Act (5 U.S.C. 601

et seq.).

The Department has determined that

this rule does not have ‘‘significant’’

takings implications. This rule does not

pertain to ‘‘taking’’ of private property

interests, nor does it impact private

property.

The Department has determined that

this rule does not have significant

federalism effects because it will not

interfere with the roles, rights and

responsibilities of states and it impacts

only the application of the Indian

preference by the Bureau of Indian

Affairs and the Department of the

Interior.

The Department has determined that

this rule does not constitute a major

Federal action significantly affecting the

quality of the human environment and

that no detailed statement is required

pursuant to the National Environmental

Policy Act of 1969.

This rule imposes no unfunded

mandates on any governmental or

private entity and is in compliance with

the provisions of the Unfunded

Mandates Act of 1995.

This rule has been found to contain

no information collection requirements

under the Paperwork Reduction Act of

1995. By memorandum dated January

11, 1984, then-Deputy Administrator for

the Office of Information and Regulatory

Affairs, Robert P. Bedell, Office of

Management and Budget (OMB),

determined that information collections

related to certificates of Indian blood

did not require OMB clearance.

Drafting Information. The primary authors

of this document are Carol Smalley, Bureau

of Indian Affairs, Department of the Interior

and Mercedes C. Lewis, formerly of the

Division of Personnel Management.

List of Subjects in 25 CFR Part 5

Employment, Government employees,

Indians.

For the reasons set out in the

preamble, Part 5 of Title 25, Chapter I

of the Code of Federal Regulations is

proposed to be revised as set forth

below.
Federal Register / Vol. 61, No. 135 / Friday, July 12, 1996 / Proposed Rules 36673

PART 5—INDIAN PREFERENCE IN

EMPLOYMENT

Sec.

5.1 Definitions.

5.2 Do certain individuals receive

preference in employment?

5.3 How is eligibility for Indian preference

determined?

5.4 When does Indian preference apply?

5.5 Is placement assistance provided to

non-Indians affected by the application

of Indian preference?

5.6 Information collection.

Authority: 4 Stat. 737, 25 U.S.C. 43; 22

Stat. 88, 25 U.S.C. 46; 28 Stat. 313, 25 U.S.C.

44; 24 Stat. 389, 25 U.S.C. 348; and 48 Stat.

986, 25 U.S.C. 472 and 479, 93 Stat. 1056, 25

U.S.C. 472a and 5 U.S.C. 8336, 43 U.S.C.

1601.

§ 5.1 Definitions.

Alaska Native means a member of an

Alaska Native Tribe; or, an individual

whose name appears on the roll of

Alaska Natives prior to July 31, 1981,

and not subsequently disenrolled; or, an

individual who was issued stock in a

Native corporation pursuant to 43

U.S.C. 1606(g)(1)(B)(i).

Indian tribe means an Indian or

Alaska Native tribe, band, nation,

pueblo, village, or community that the

Secretary of the Interior acknowledges

to exist as an Indian tribe pursuant to

Public Law 103–454, 108 Stat. 4791.

Annually, the Bureau of Indian Affairs

publishes a list of Federally recognized

tribes in the Federal Register.

Roll of Alaska Natives means the roll

of Alaska Natives prepared pursuant to

the Alaska Native Claims Settlement

Act, 43 U.S.C. 1601 et seq.

§ 5.2 Do certain individuals receive

preference in employment?

Yes. Certain persons who are of

Indian descent, as described in § 5.3,

receive preference when appointments

are made to vacancies in positions:

(a) In the Bureau of Indian Affairs;

and

(b) In any unit that has been

transferred intact from the Bureau of

Indian Affairs to a Bureau or Office

within the Department of the Interior

and that continues to perform the

functions formerly performed as part of

the Bureau of Indian Affairs.

§ 5.3 How is eligibility for Indian

preference determined?

You are eligible for preference if:

(a) You are a member of any Federally

recognized Indian tribe;

(b) You are a descendant of a member

and you were residing within the

present boundaries of any Indian

reservation on June 1, 1934;

(c) You are an Alaska Native; or

(d) You possess one-half or more

Indian blood of tribes that are

indigenous to the United States.

§ 5.4 When does Indian preference apply?

(a) If you meet a standard in § 5.3, you

are eligible for preference in an initial

hire; reinstatement; transfer;

reassignment; reduction-in-force;

promotion, including a temporary

promotion; and details exceeding 120

days.

(b) If you are eligible for preference,

we may appoint you under a Schedule

A excepted appointment, Exception

Number 213.3112(a)(7), and after three

consecutive years you may be converted

to a career appointment in competitive

service. The conversion will not alter

your eligibility for preference in

personnel actions.

(c) If you are within reach on a Civil

Service Register, we may give you a

competitive appointment.

§ 5.5 Is placement assistance provided to

non-Indians affected by the application of

Indian preference?

Yes. The Office of Personnel

Management provides assistance to the

Bureau of Indian Affairs in placing nonIndian employees in other Federal

positions.

§ 5.6 Information collection.

In accordance with Office of

Management and Budget regulations in

5 CFR 1320.4, approval of information

collections contained in this part is not

required.

BILLING CODE 4310–02–P
36674 Federal Register / Vol. 61, No. 135 / Friday, July 12, 1996 / Proposed Rules

Appendix to Part 5
Federal Register / Vol. 61, No. 135 / Friday, July 12, 1996 / Proposed Rules 36675
36676 Federal Register / Vol. 61, No. 135 / Friday, July 12, 1996 / Proposed Rules
Federal Register / Vol. 61, No. 135 / Friday, July 12, 1996 / Proposed Rules 36677

Ada E. Deer,

Assistant Secretary—Indian Affairs.

[FR Doc. 96–16672 Filed 7–11–96; 8:45 am]

BILLING CODE 4310–02–C