[Federal Register: February 29, 2008 (Volume 73, Number 41)]
[Rules and Regulations]
[Page 11028-11041]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29fe08-16]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 171
RIN 1076-AD44
Irrigation Operation and Maintenance
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of the Interior, Bureau of Indian Affairs (BIA)
is revising the regulation governing irrigation projects under its
jurisdiction.
[[Page 11029]]
The purpose of the revision is to provide consistent administration;
establish the process for updating practices, policies, and procedures
for the administration, operation, maintenance, and rehabilitation of
irrigation projects; and provide uniform accounting and recordkeeping
procedures.
This regulation has also been rewritten in plain English as
mandated by Executive Order 12866. It also addresses several issues
that the prior regulation did not cover.
DATES: Effective March 31, 2008.
FOR FURTHER INFORMATION CONTACT: John Anevski, Chief, Division of
Irrigation, Power and Safety of Dams, Office of Trust Services, Bureau
of Indian Affairs, 1849 C Street, NW., Mail Stop 4655-MIB, Washington,
DC 20240; Telephone (202) 208-5480.
SUPPLEMENTARY INFORMATION:
I. Background
II. Response to Comments
III. Subpart-by-Subpart Analysis
IV. Procedural Requirements
I. Background
This regulation is issued under the Secretary of the Department of
the Interior's (Secretary) authority to administer Indian irrigation
projects under 25 United States Code (U.S.C.) 381 et seq. This revised
regulation clarifies prior regulatory language, in keeping with the
``plain English'' standard required by Executive Order 12866. In
revising this regulation, redundant or unnecessary sections of the
existing part 171 of Title 25 of the Code of Federal Regulations (CFR)
were identified and deleted. New sections were also added to comply
with the Inspector General's (IG) audit findings and to implement the
provisions of the Debt Collection Improvement Act of 1996. For example,
several IG audits, the most recent in 1996 (96-I-641), identified a
management deficiency concerning full cost rates for operation and
maintenance. Also, the Debt Collection Improvement Act established new
procedures to manage moneys owed the Federal Government. This
regulation addresses both of these issues.
The proposed revisions to 25 CFR part 171 were first published on
July 5, 1996 (61 FR 35167). Based on the length of time that has passed
and changes to the earlier proposed regulation, these proposed
revisions were published for public comment on July 17, 2006 (71 FR
40450) with a 120-day public comment period that ended on November 14,
2006. The re-publication provided a fresh start to the rulemaking
process for this revision. Consultation meetings with the Indian tribes
(Tribes) that may be impacted by this regulation were held on August 24
and 26, 2004, and May 10 and 12, 2005. These consultation meetings were
held in accordance with Executive Order 13175. No additional
consultation meetings with Tribes were requested or held during the
public comment period.
II. Response to Comments
The Department solicited comments from all interested parties
through its publication of the proposed regulation in the Federal
Register on July 17, 2006 (71 FR 40450). In addition, prior to
publication of the proposed regulation, the BIA held four tribal
consultation meetings with affected Tribes on August 24 and 26, 2004,
and May 10 and 12, 2005. These meetings were well-attended and the BIA
received valuable input to help develop the proposed regulation as a
result. Transcripts from those consultations were used in the
development of the proposed regulation.
The Department received written comments from one individual and
three tribes. The comments included both general and specific
criticisms and suggestions. The comments were carefully reviewed by the
regulation drafting team made up of BIA employees from Central Office
and attorneys from the Office of the Solicitor. Depending on their
merit, the Department accepted, accepted with revision, or rejected
comments made on each part of the regulation. Some of the comments
included copies of previously submitted comments which were related to
earlier versions of the proposed regulation. Because the 2006 proposed
regulation was significantly different from earlier versions, those
earlier comments are not specifically addressed here; however, those
earlier comments were carefully considered in developing the latest
version of the regulation. As noted in the part-by-part analysis below,
certain sections of the regulation have been clarified in direct
response to comments. Additionally, some language has been deleted or
added to provide for increased clarity and precision. Substantive
comments are summarized below.
III. Subpart-by-Subpart Analysis
25 CFR Part 171--Irrigation Operation and Maintenance (O&M)
The purpose of this regulation is to provide consistent
administration of irrigation projects under the jurisdiction of the
BIA; establish uniform accounting and recordkeeping procedures for the
assessment of irrigation O&M charges; and establish the process for
updating practices, policies, and procedures for the administration,
operation, maintenance, and rehabilitation of Indian irrigation
projects.
The various subparts of part 171 address the applicability of the
regulation to individual irrigators; definition of relevant terms; the
nature and scope of the irrigation service provided by the BIA;
allowable uses of irrigation water; the responsibilities of irrigators
and the BIA; assessments, billing, and collections; record-keeping and
agreements between BIA and irrigators; and non-assessment status of
lands within an irrigation project.
General Comments
Comment: Adequacy of Consultation
Several commenters expressed concern that there was not adequate
formal consultation on the proposed regulation. Formal consultations
were held on August 24, 2004 and May 12, 2005 in Phoenix, AZ and on
August 26, 2004 and May 10, 2005 in Billings, MT. All affected Tribes
were invited to attend each of the four formal consultation meetings,
and all of the meetings were well-attended. The BIA indicated its
willingness to host consultations for individual affected Tribes or
additional consultations with groups of Tribes upon request. None of
the affected Tribes requested additional consultation meetings. Two of
the commenters stated that the Walker River Paiute Tribe was not
notified of the consultation meetings and thus could not participate.
However, BIA records indicate that the Walker River Paiute Tribe was
notified of all four formal consultations meetings, and in fact, three
representatives from the Walker River Paiute Tribe attended the May 12,
2005 consultation meeting held in Phoenix, AZ. One commenter noted that
a water user meeting held on her reservation two months after
publication of the proposed rule did not constitute adequate formal
consultation. The meeting this commenter referred to was held on the
Walker River Paiute Reservation on September 28, 2006. The purpose of
water user meetings is for the local BIA irrigation project to consult
with the project stakeholders on project-specific operations,
maintenance, budget, rates, and related matters. This meeting was not
held for the purpose of consulting with Tribes on the proposed revision
to Part 171. One commenter noted that the consultations did not address
project-specific operating guidelines and were therefore inadequate.
Consultations were held for this proposed regulation. The
[[Page 11030]]
establishment of operating guidelines specific to the individual
irrigation projects is distinct from this rule-making process. The BIA
will be consulting with Tribes and water users in the development of
individual project operating guidelines. No change was made to the
regulation to address these comments.
Comment: Timing of Issuance of Final Regulation
One commenter stated that the regulation should not be finalized
until after the BIA proposes and discusses new project-specific
operating guidelines. The commenter stated that studies should be
undertaken to determine how the regulation will affect the BIA's
ability to protect and manage Indian land and water. The establishment
of project-specific operating guidelines is distinct from this rule-
making process. This regulation will guide the development of the
project-specific guidelines, not the other way around. The regulation
will not affect the BIA's ability to protect and manage Indian land and
water. These regulations are intended to enhance our ability to
protect, manage, and operate irrigation projects by providing new
mechanisms for projects to begin addressing long-standing irrigation
issues. Additionally, the project-specific operating guidelines are
intended to provide additional and more specific guidance for
individual projects within the overarching regulations. Thus, it is
necessary to finalize this proposed regulation first before developing
the more detailed, project-specific operating guidelines. In response
to the comment suggesting that BIA study the impact of these
regulations prior to finalizing the rule, BIA's irrigation program and
the existing proposed regulation have already been the subject of
numerous studies, including General Accounting Office (GAO) reports and
IG audits. The overall impact of the revisions to the regulation are
relatively minor. Redundant or unnecessary sections were deleted. New
sections were added to comply with the Debt Collection Improvement Act,
better define what items should be included in project budgets for
better rate setting, improve lands within the irrigation projects by
using incentive agreements, and grant Annual Assessment Waivers when
BIA cannot deliver water to farm units. No change was made to the
regulation to address these comments.
One commenter noted that the Yakama Nation has a pending lawsuit in
federal district court against the United States that questions the
scope of BIA's authority to assess irrigation O&M charges. The
commenter urged the BIA to delay issuance of the regulation until that
litigation is decided. The litigation referenced--Confederated Tribes
and Bands of the Yakama Nation v. United States, No. CV-06-3032-LRS
(E.D. Wash.)--was dismissed on procedural grounds in December 2006. The
Yakama Nation's request for reconsideration was denied in February
2007. The Yakama Nation has served notice of appeal to the Ninth
Circuit Court of Appeals purely on the procedural issues, and briefs
were filed during the summer of 2007. If the courts were ever to
address the substantive issues raised in the litigation it could be
years until a judicial resolution would be obtained. Thus, the BIA does
not believe it would be prudent to delay issuance of the regulation on
that basis.
Comments: Plain English
Some commenters stated that the change to ``plain English''
oversimplified technical concepts and made the regulation vague and
less precise, and therefore more difficult to understand, than the
existing Part 171. While some commenters stated the regulation is too
simple, other commenters asserted that the regulation was too complex
and used too much ``bureaucratic jargon.'' The proposed rule was
written in ``plain English'' to comply with Executive Order 12866.
Every attempt was made to make the regulation clear and easy to read,
while not oversimplifying technical issues. The commenters did not
provide any alternate language or suggestions for making this rule
easier to understand. No change was made to the regulation to address
these comments.
Comments: Small Business Regulatory Enforcement Fairness Act (SBREFA)
Several commenters expressed concern about the statement in the
proposed regulation regarding the Small Business Regulatory Enforcement
Fairness Act (SBREFA) and the potential for rate increases. The BIA
stated that this regulation will not have an annual effect on the
economy of $100 million or more. Although Indian irrigation projects
are significant components of reservation economy, this regulation will
not significantly change the economy, productivity, or investment
opportunities of State, local, or tribal governments or communities on
the affected reservations. Nor will this regulation cause a major
increase in costs or prices for consumers, individual industries, or
governments. This regulation does not increase irrigation O&M
assessment rates, and this regulation is not expected to result in
major increases in rates in the near future. However, there is a
potential that this regulation could result in appreciable rate
increases in the long-term. This regulation makes no change to the
present method of establishing rates for irrigation projects. The
regulation more clearly states the process the BIA has always used to
calculate rates. The underlying statutory authority to charge
irrigation O&M assessments remains unchanged under the regulation. No
change was made to the regulation to address these comments.
Comments: BIA Authority To Assess Irrigation O&M Charges
Several of the commenters questioned the scope of the BIA's
authority to charge irrigation O&M assessments. The comments came in
various forms, some more general in nature and others more specific to
other parts of the regulation, particularly subpart E--Financial
Matters, Billing, and Collections. General and cross-cutting comments
are addressed here, while more specific comments are addressed below
under the appropriate headings.
One commenter seemed to believe that the regulation created new
authority for the BIA to fully recover its O&M costs for Indian
irrigation projects in a way that it previously could not. Under 25
U.S.C. 381 et seq., the BIA is authorized to recover the full cost of
operation and maintenance of its irrigation facilities. This underlying
statutory authority to assess irrigation O&M charges remains unchanged
under the proposed regulation. No change was made to the regulation to
address these comments.
Two commenters read 25 U.S.C. 385 and the statutes it codifies to
impose a requirement that the BIA first determine an individual's
ability to pay irrigation O&M charges before setting rates and
assessing charges. One of the commenters also suggested that the parcel
of land on which the assessment is based must also have the ability to
produce adequate income to pay irrigation O&M assessments. These
comments misconstrue the Act of August 14, 1914 and 25 U.S.C. 385. The
Secretary's authority to set O&M charges and collect irrigation
assessments is not subject to a determination of an individual's
ability to pay or the ability of a particular parcel of land to produce
adequate income. The ability to pay language in both the 1914 Act and
25 U.S.C. 385 refers only to repayment of construction costs. No change
was made to the regulation to address these comments.
[[Page 11031]]
Comments: Trust Responsibility
All of the commenters addressed the United States' trust
responsibility to Indian tribes to some degree. Some questioned whether
the regulation undermined the trust responsibility in any way, while
others asserted a need for the regulation to expressly incorporate more
safeguards to protect trust resources. Nothing in this regulation
alters the BIA's responsibility regarding irrigation projects and
related resources. Instead, this regulation addresses how the BIA
administers its irrigation projects. Some commenters also asserted that
there is a trust responsibility to provide irrigation service, and one
commenter felt that such a trust responsibility required the BIA to
charge Indian farmers a different (lower) rate than non-Indian farmers.
The BIA does not have a trust obligation to operate and maintain its
irrigation projects. See, e.g., Grey v. United States, 21 Cl. Ct. 285
(1990), aff'd, 935 F.2d 281 (Fed. Cir. 1991), cert. denied, 502 U.S.
1057 (1992). No change was made to the regulation to address these
comments.
Comment: Protection of Trust Resources
One commenter stated that the regulation must incorporate
safeguards to protect trust resources. 25 CFR 171.110 describes how the
BIA will administer its irrigation facilities. Protection of trust
resources is addressed by other statutes or regulations specific to the
resource at issue. No change was made to the regulation to address
these comments.
Comment: Impacts on the Flathead Indian Irrigation Project Turnover
One commenter expressed concern that the regulation could impact
the transfer of operations and management of the Flathead Indian
Irrigation Project. This regulation will have no impact on the transfer
process, which is being undertaken pursuant to specific statutory
authority. The terms and conditions of the transfer, which are
currently being negotiated and developed, will address how the Flathead
Indian Irrigation Project will be operated and managed after transfer.
After transfer, this regulation will no longer apply to the Flathead
Indian Irrigation Project because it will no longer be operated by the
BIA. No change was made to the regulation to address these comments.
Comment: Impacts on Other Department Bureaus and Offices
One commenter stated that the regulation has the potential to
impact the operation of the Bureau of Reclamation's Yakima Project. The
Bureau of Reclamation has reviewed this regulation. Changes to the BIA
irrigation regulation will have no impact on the Yakima Project. No
change was made to the regulation to address these comments.
Comment: Indian Lands in Probate
One commenter recommended that the regulation include an O&M
assessment exemption for Indian lands in probate. There is currently a
process in place to resolve assessment of O&M on lands in probate
outside the scope of this regulation. The process is covered in 25 CFR
Part 15, Probate of Indian Estates, and the BIA Irrigation Handbook,
Section 12.3.7 Estates/Probates. No change was made to the regulation
to address these comments.
Comment: Idle Lands on the Yakama Reservation
One commenter stated that the regulation must study how the
proposed regulation would help alleviate the idle lands problem on the
Yakama Reservation. The overall idle agricultural lands issue is a
function of the BIA's Real Estate Services program. The regulation at
25 CFR 171.610 provides an avenue by which the BIA, at the project
level, may provide incentives to help alleviate some of the idle lands
issues. Furthermore, the BIA looks forward to working with Tribes to
explore the various options available for addressing the longstanding
idle lands issue, such as through the individual project operating
guidelines. No change was made to the regulation to address this
comment.
Subpart A--General Provisions
One comment asked that the BIA retain 25 CFR 171.1(b) from the
existing version of 25 CFR part 171, which provided authority for the
Officer-in-Charge to waive portions of the regulations, particularly
for small subsistence units and gardens. This provision was removed in
order to avoid conflicts with Departmental Delegations of Authority and
to provide consistent application of regulations across all irrigation
projects. No change was made to the regulation to address these
comments.
Three commenters had various suggestions, questions, or concerns
with some of the definitions in Section 171.100. Those comments are
addressed in the following paragraphs.
With regard to the definition of the annual assessment waiver and
carriage agreement, one commenter stated that there was no reference to
statutory authority for waiving annual O&M assessments or for carriage
agreements. In the ``authority'' portion of the regulation, located
just above Subpart A in the Federal Register notice, the authorities
for all components of the regulation are listed. 25 U.S.C. 381 et seq.
provide statutory authority for an annual assessment waiver and for
carriage agreements. No change was made to the regulation to address
these comments.
One commenter asked whether Tribes will have any input into the
determination of farm unit size, and another commenter asked where the
BIA's definition of a farm unit is. Additionally, one commenter stated
that the regulation fails to state what happens if a farm unit is
subdivided. If the farm unit size is not defined in a project's
authorizing legislation, it will be defined in the project-specific
operating guidelines, and the BIA will be consulting with Tribes and
water users in the development of these operating guidelines. With
regard to subdivision of farm units, 25 CFR 171.225 describes what must
be done to receive irrigation service to a subdivided farm unit. No
change was made to the regulation to address these comments.
One commenter stated that an incentive agreement should allow for
irrigation water delivery at no or reduced O&M cost for the period of
time required to realize the full agricultural potential of the
previously idle parcel. The commenter also added that he believed that
BIA lacked authority to assess O&M if the parcel is not producing
adequate funds to pay O&M. 25 CFR 171.610(a)(4) allows for the delivery
of water under an incentive agreement, the terms of which would be
described in the agreement. As discussed above, the law does not
require the BIA to determine or consider either an individual's ability
to pay or the economic viability of the irrigated parcel when setting
irrigation O&M assessment rates. No change was made to the regulation
to address these comments.
One commenter stated that the definition of incentive agreement
should include a reference to the statutory authority for the concept.
In the ``authority'' portion of the regulation, located just above
Subpart A in the Federal Register notice, the authorities for all
components of the regulation are listed. 25 U.S.C. 381 et seq. provide
statutory authority for an incentive agreement. No change was made to
the regulation to address these comments.
One commenter thought the definition of incentive agreement failed
to adequately define ``improve idle
[[Page 11032]]
lands.'' In response to that comment, Section 171.610(a)(1) has been
amended to include the language ``* * * other activities that will
improve idle lands to a condition that supports authorized use of
delivered water.''
One commenter stated that where neither tribal nor individual water
rights have been quantified, there can be no such thing as a
supplemental water. Given that issue, the commenter was concerned with
the legality of the concept of supplemental water. If a water duty has
not been established for an irrigation project, then supplemental water
does not apply at that irrigation project. No change was made to the
regulation to address these comments.
One commenter thought the definition of total assessable acres
should include special provisions for how O&M charges are assessed on
the Toppenish-Simcoe Unit of the Wapato Irrigation Project. The BIA has
specifically addressed this issue with the Yakama Nation by letter of
June 2, 2006, from Michael Olsen, Principal Deputy Assistant Secretary-
Indian Affairs to Honorable Louis Cloud. The BIA intends to include in
the revised Project Operations and Maintenance Guidelines a provision
substantially similar to the current 25 CFR 171.19(a)(2). Furthermore,
project-specific provisions were removed from the regulation as part of
the effort to create a consistent set of rules applicable to all BIA
irrigation projects. No change was made to the regulation to address
these comments.
The definition of wastewater concerned one commenter. The commenter
stated that the regulation should require water users to control return
flows. In response to this comment, both the definition of wastewater
and the regulation at Section 171.230 have been amended accordingly.
One commenter stated that the BIA must specifically list each
document referenced in Section 171.110. Section 171.110 references a
broad array of laws, regulations, and policy documents too numerous to
list. Furthermore, many of these items would be specific to individual
irrigation project and thus would be inappropriate to reference in a
regulation of general applicability. The same commenter also noted that
the regulation should state where such documents could be obtained. A
listing, along with copies of the pertinent documents, will be made
available in the National Irrigation Handbook and the O&M guidelines
specific to individual projects. To address this comment, Section
171.110(a) has been amended to reflect that copies of the referenced
items can be obtained from the irrigation project serving you.
Another commenter stated that his irrigation project is not safely
or reliably operated or rehabilitated. The commenter asked when, under
the proposed Section 171.110(a), his project would be rehabilitated.
The physical state of the BIA's irrigation projects is directly related
to BIA's historic inability to recover the full cost of operating and
maintaining its irrigation projects. This regulation is intended to
improve the BIA's cost recovery. No change was made to the regulation
to address these comments.
One commenter stated that the consultation referenced in Section
171.110(b) is a mandatory trust responsibility and that consulting only
when appropriate or when time allows is insufficient. Consultation with
Indian tribes is a government-wide policy, not a trust responsibility
per se. As stated in the proposed rule, the BIA will consult with the
Tribes and the BIA agrees that consultation is possible and desirable.
No change was made to the regulation to address these comments.
A number of commenters expressed concern about Section 171.125,
which addresses appeals of the BIA's decisions on irrigation projects.
The regulation as proposed was unclear and potentially in conflict with
the 25 CFR Part 2. Section 171.125(b) has been amended to address these
comments, provide clarity, and ensure consistency with the appeals
process set forth in 25 CFR Part 2.
Subpart B--Irrigation Service
One commenter suggested that the regulation provide some authority
to enable tiered O&M assessment rates on irrigation facilities to
enable the projects to set rates based on quantity of water delivered
to farm units. Rates for irrigation O&M are based on the cost of
providing irrigation service, not on water quantity. Nothing in these
proposed regulations prohibits individual projects from establishing
various rates consistent with section 171.110. No change was made to
the regulation to address these comments.
With regard to Section 171.230, one commenter stated that the BIA
should pay for the cost of improvements on Indian lands to make
drainage water collection systems adequate. Where adequate funds exist
to improve irrigation infrastructure, the BIA will make improvements.
No change was made to the regulation in response to this comment.
However, Section 171.230 has been amended in response to comments
regarding the definition of wastewater in Section 171.100.
Subpart C--Water Use
One commenter expressed concern that allowing the BIA to provide
leaching service under Section 171.305 may not be a beneficial use
under some water right decrees, tribal water codes, or water use
statutes. The commenter expressed a similar concern with regard to the
BIA's authority to deliver domestic water and stock water under Section
171.310. Another commenter stated that the BIA was required to deliver
domestic and stock water to the Walker River Paiute Tribe pursuant to a
court decree. This regulation takes into consideration water rights and
related considerations under Section 171.205, which states that ``[t]he
amount of water you receive will be based on your request, your legal
entitlement to water, and the available water supply.'' Furthermore,
Section 171.110 describes how BIA will administer its irrigation
facilities, which is by enforcing the applicable statutes, regulations,
water rights decrees, and similar legal requirements, which may mandate
``not'' delivering leaching water or permitting delivery of domestic or
stock water in some cases. No change was made to the regulation to
address these comments.
One commenter stated that Section 171.305(a)(3) is a departure from
the status quo, contrary to practices necessary in some cases to
rehabilitate idle land within an irrigation project, and inconsistent
with the law. The regulation is not a departure from the status quo.
Under former Section 171.17 and now under Sections 171.545 and 171.550,
irrigation services are not provided until the annual O&M assessment is
paid or there is an approved payment plan in place. The regulation
accounts for rehabilitation of idle land. Section 171.610(a)(4) allows
for the delivery of water under an incentive agreement, the terms of
which could include delivery of water for the purposes of leaching
without charge. Section 171.305(a)(3) is consistent with existing law.
As discussed elsewhere in these responses to comments, the law does not
require the BIA to determine or consider either an individual's ability
to pay or the economic viability of the irrigated parcel when setting
irrigation O&M assessment rates. The BIA has the authority to deny
irrigation service if O&M charges are not paid. No change was made to
the regulation to address these comments.
Subpart D--Irrigation Facilities
One commenter stated that the BIA had no legal authority for
Section 171.400(b) because the BIA has a trust
[[Page 11033]]
responsibility to provide adequate irrigation infrastructure, including
necessary private structures to allow access to irrigation water. The
commenter added that, at the least, the BIA must engage in consultation
before any structures are built. As noted above, the operation and
maintenance of irrigation projects is not a trust responsibility. The
BIA is committed to engaging in meaningful tribal consultation when
appropriate. If the circumstances warrant tribal consultation, the BIA
will consult with the affected tribe(s). No change was made to the
regulation to address these comments.
One commenter objected to Section 171.400(c) to the extent it
suggests that the BIA can bill tribal members for costs relating to
trust or Indian-owned fee land within an irrigation project. Section
171.400, in its entirety, describes who is responsible for structures
on a BIA irrigation project. Section 171.405 describes the process
which an individual or group must go through to become responsible for
an irrigation project structure ``which is under a written agreement
between you and us.'' No change was made to the regulation to address
these comments.
One commenter asked that Section 171.405 be removed. The commenter
stated that authorizing individuals to take control of irrigation
project structures could interfere with the property rights of
individuals or tribes owning property underlying the irrigation project
facilities and could lead to unequal treatment between water users on a
project. The BIA disagrees. One commenter believed that Sections
171.405 and 171.410 contradicted Section 171.415 and, accordingly,
suggested that the regulation should be revised to require the BIA to
protect the irrigation facilities from encroachment. Section 171.405
provides that authorization to take control of a structure requires a
written agreement with the BIA. Revocable encroachment permits do not
transfer ownership. The requirement of a written agreement qualifies
the ability of an individual to build or assume responsibility of a
structure. Such written agreements will ensure that individual property
rights are not infringed upon. The BIA has determined that there are no
inconsistencies in these sections, especially when examined in concert
with the definition of obstruction in Section 171.100. No change was
made to the regulation to address these comments.
Subpart E--Financial Matters
One commenter expressed concerns that under Section 171.500, BIA
would abuse its authority and add unreasonable costs into the
calculation of its irrigation rates because the rates are based on cost
estimates rather than actual costs. The commenter was particularly
concerned about the potential for fraud, waste, and error. The
commenter also asked how the public can obtain irrigation project cost
information used to calculate rates. The Secretary of the Interior has
previously determined under the existing Section 171.1(f) ``that rates
will be based on a carefully prepared estimate of the cost of the
normal O&M of the project.'' Furthermore, because O&M assessment rates
are set a year in advance to give adequate notice to irrigators, it is
necessary to calculate the proposed rates based on an estimate of the
costs for the upcoming year. These figures are typically indexed based
on actual costs from previous years. There is opportunity for the
public to comment on the proposed rates published annually in the
Federal Register before they become final. Actual costs of operation
and maintenance activities are available from the irrigation facility
servicing your farm unit. No change was made to the regulation to
address these comments.
One commenter thought that Section 171.500(a) included a number of
costs that should not be used in calculating rates. The commenter
feared that inclusion of items such as depreciation, acquisition costs,
and other costs would lead to unreasonably high and unjustifiable
rates. The BIA has established rates based on the average per acre cost
of all activities involved in delivering irrigation water and
maintaining facilities. This regulation does not change that practice;
rather, it more specifically identifies those items included in
determining the annual costs. Actual costs of O&M activities are
available from the irrigation facility servicing your farm unit. No
change was made to the regulation to address these comments.
Two commenters stated that the BIA should calculate O&M assessments
based on an individual farmer's ability to pay under 25 U.S.C. 385,
386a, and 389. Under these statutes, the Secretary's authority to set
O&M charges is not subject to a determination of an individual's
ability to pay. As stated above in these responses, the ``ability to
pay'' provision included in 25 U.S.C. 385 refers only to repayment of
construction costs. 25 U.S.C. 385 codifies several separate provisions
taken from the Act of August 1, 1914, Public Law 63-160, 38 Stat. 582,
583 (1914). In addition to authorizing the Secretary to set and assess
O&M rates on irrigation projects, the 1914 Act also appropriated a lump
sum of money to use for construction of irrigation projects. The second
provision of 25 U.S.C. 385, regarding reimbursement of construction
costs where Indians have the ability to pay, only applies to the
construction money appropriated in the 1914 Act and does not relate to
the Secretary's O&M rate-setting authority. 25 U.S.C. 386a refers only
to construction charges and is not applicable to this regulation, which
only addresses O&M charges. 25 U.S.C. 389 authorizes the Secretary to
investigate whether non-Indians have the ability to pay irrigation
charges. Based on the outcome of such an investigation, the Secretary
has discretion to adjust irrigation charges, but nowhere does the law
require that an individual's ability to pay be factored into the
irrigation rate-setting process. No change was made to the regulation
to address these comments.
Two commenters stated that Sections 171.500 and 171.505 violated
the BIA's trust responsibility to Indians. As stated above, the
operation and maintenance of BIA irrigation projects is not a trust
responsibility. See, e.g., Grey v. United States. With regard to
comments about protection of trust resources that might be affected by
the operation and maintenance of irrigation projects, the proposed
regulation in no way changes the BIA's responsibility regarding
irrigation projects and related resources. No change was made to the
regulation to address these comments.
One commenter suggested that the amount of any rate increase should
be limited from year-to-year to no more than the rate of inflation.
Because the actual cost of O&M may or may not coincide with inflation,
this regulation does not limit O&M rate increases to annual inflation
rates. No change was made to the regulation to address these comments.
One commenter objected to Section 171.505(d), which provides that
some projects may charge a minimum O&M assessment. The commenter
objected to owners of small fractionated parcels being charged for
irrigation service and recommended, at a minimum, that this section not
apply to trust or allotted land. The commenter also claimed there was
no legal basis for the minimum charge concept and stated that the BIA
cannot charge O&M assessments where the land is not producing adequate
funds to pay O&M assessments. This provision only applies to irrigation
[[Page 11034]]
projects that establish a minimum assessment. The authority to
establish a minimum charge is inherent in the Secretary's statutory
authority to charge O&M assessments on Indian irrigation projects. See
25 U.S.C. 381 et seq. Contrary to the assertion of the commenter, the
BIA can charge a minimum O&M assessment regardless of the whether the
land produces adequate funds to pay the assessment. No change was made
to the regulation to address these comments.
One commenter noted that Section 171.510 failed to specify which
irrigation projects distribute supplemental water. Such information
will be available in the project-specific operating guidelines. This
information was purposefully left out of the regulation because it is
potentially subject to change at individual projects as water rights
are determined and settled. No change was made to the regulation to
address these comments.
Section 171.515 prompted one commenter to state that the BIA needs
to send bills to the water users before the irrigation season starts so
that farmers have an adequate amount of time to pay. Because each
irrigation project sends out its own bills, this comment is most
appropriately directed to the individual irrigation projects. No change
was made to the regulation to address these comments.
One commenter objected to Section 171.540. No rationale was
provided for the objection. To conform to the Debt Collection
Improvement Act of 1996, collection of the information specified in the
regulation is necessary. No change was made to the regulation to
address these comments.
One commenter objected to Section 171.545 because it does not
account for whether the Indian-owned land produces adequate funds to
pay the O&M charges. As discussed above, the BIA can charge a minimum
O&M assessment regardless of the whether the land produces adequate
funds to pay the assessment. The BIA does not consider an individual's
ability to pay or the ability of the land to produce adequate funds
when it sets O&M rates and charges assessments. No change was made to
the regulation to address these comments.
One commenter suggested that water users should be notified
individually through the mail of all proposed rate changes instead of
through the Federal Register as is provided in Section 171.565. It
would not be practical for the BIA to notify each of its water users
individually, nor is such notice required by law. No change was made to
the regulation to address these comments.
Several commenters expressed concern about Section 171.575, in
which the proposed regulation stated that the BIA could change O&M
rates without first notifying irrigators if uncontrolled costs arose.
Commenters were concerned that the proposed language was overly broad
and should be limited to emergency situations when structural failures
threatened property, public safety, or the ability of the BIA to
deliver water to a majority of an irrigation project. In response to
these concerns, Section 171.575 has been revised to provide for special
assessments only when urgencies arise. Rates cannot be changed without
notice. Special assessments are now defined in the regulation at
Section 171.100. The term ``urgency'' is defined in Section 171.100 as
``a situation that we have determined may adversely impact our
irrigation facilities, operation, or other irrigation activities;
affect public safety; damage property or equipment.''
Subpart F--Records, Agreements, and Other Matters
One commenter raised concerns about Section 171.610. The comments
are addressed above in the discussion of incentive agreements under
Section 171.100. No change was made to the regulation to address this
comment.
Subpart G--Non-Assessment Status
One commenter objected to Section 171.705 because it places the
burden on the land owner to apply for an annual assessment waiver. The
commenter stated that Section 171.705 is unfair because the United
States, as trustee, is placing a burden on the trust beneficiary to
seek relief from O&M charges. The purpose of Section 171.705 is to help
address the problem of areas of an irrigation project within the
constructed works where, for whatever reason, water cannot be
delivered. The annual assessment waiver provides a mechanism for
waiving the O&M assessment, eliminating the need for an expensive and
time-consuming process to appeal a bill which has already been issued.
It also provides an incentive for an irrigation project to repair or
rehabilitate infrastructure to obtain assessment monies. Additionally,
it would provide relief to the water user during the time it takes for
lands to be re-designated to Temporarily or Permanently Non-Assessable
status if so warranted. With regard to the notion of unfairness based
on a trust relationship, as stated above, the operation and maintenance
of BIA Irrigation Projects is not a trust responsibility.
IV. Procedural Requirements
A. Review Under Executive Order 12866
This regulation updates an existing regulation and is not a
significant rule under Executive Order 12866.
(1) This regulation will not have an effect of $100 million or more
on the economy. It will not adversely affect in a material way the
economy, productivity, competition, jobs, the environment, public
health or safety, or state, local, or tribal governments or
communities. This is an existing regulation that is being updated and
revised to implement the Inspector General's audit findings and the
Debt Collection Improvement Act of 1996.
(2) This regulation will not create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency.
The irrigation projects impacted by these revisions are solely owned by
the BIA and no other agency provides supplemental services or is
impacted by the operation of these projects.
(3) This regulation does not alter the budgetary effects of
entitlements, grants, user fees, or loan programs or the rights or
obligations of their recipients. The user fees or assessments that the
BIA establishes at each irrigation project to recover its costs will
eventually be impacted as the BIA reviews its rates and strives to
implement full cost rates.
(4) This rule does not raise novel legal or policy issues. No new
authorities or policies are being established.
B. Review Under the Regulatory Flexibility Act
The Department of the Interior certifies that this regulation will
not have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
An initial Regulatory Flexibility Analysis is not required because
Indian tribes are not considered to be small entities for purposes of
this Act.
C. Review Under the Small Business Regulatory Enforcement Fairness Act
(SBREFA)
This regulation is not a major regulation under 5 U.S.C. 804(2),
the SBREFA. This regulation:
(1) Does not have an annual effect on the economy of $100 million
or more. The total revenue stream for the operation and maintenance of
all BIA irrigation projects is approximately $25 million annually. This
is below the $100 million threshold.
(2) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, state, or
[[Page 11035]]
local government agencies, or geographic regions. These revisions
establish a procedure for identifying full cost rates for BIA
irrigation projects. This is not expected to cause major increases in
the near future. However, there is a potential that this could result
in appreciable rate increases in the long-term for those served by BIA
irrigation projects.
(3) Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises. BIA
irrigation projects are generally small and have minimal impacts on the
economy. The projects are not in competition with other entities since
they are located on reservations that are under the purview of the
Department of the Interior, Bureau of Indian Affairs.
D. Review Under the Unfunded Mandates Reform Act
This regulation does not impose an unfunded mandate on state,
local, or tribal governments or the private sector of more than $100
million per year. The regulation does not have a significant or unique
effect on state, local, or tribal governments or the private sector.
The BIA irrigation projects are located on reservations that are under
the purview of the Department of the Interior, Bureau of Indian
Affairs. A statement containing the information required by the
Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.
E. Review Under Executive Order 12630
In accordance with Executive Order 12630, the regulation does not
have significant takings implications. The regulation revisions do not
deprive the public, state, or local governments of rights or property.
A takings implication assessment is not required.
F. Review Under Executive Order 13211
In accordance with Executive Order 13211, this regulation does not
have a significant effect on the nation's energy supply, distribution,
or use. The revision to 25 CFR part 171 will have no adverse effects on
energy supply, distribution, or use (including a shortfall in supply,
price increases, and increase use of foreign supplies). This regulation
impacts irrigation projects that have little or no energy supply
issues.
G. Review Under Executive Order 13132
In accordance with Executive Order 13132, the regulation does not
have sufficient federalism implications to warrant the preparation of a
Federalism Assessment because they will not interfere with the roles,
rights, and responsibilities of states.
H. Review Under Executive Order 12988
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this regulation does not unduly burden
the judicial system and meets the requirements of sections 3(a) and
3(b)(2) of the Order.
I. Review Under the National Environmental Policy Act (NEPA)
This regulation does not constitute a major Federal action
significantly affecting the quality of the human environment and no
detailed statement is required under the National Environmental Policy
Act of 1969 (42 U.S.C. 4321-4370(d)).
J. Review Under Executive Order 13175
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we
have identified potential effects on Indian trust resources and they
are addressed in this rule. Consultation meetings have been held with
the affected Tribes. Accordingly:
(1) We have consulted with the affected Tribes.
(2) We have consulted with Tribes on a government-to-government
basis and the consultations have been open and candid so that the
affected Tribes could fully evaluate the potential impact of the rule
on trust resources.
(3) We have considered tribal views in the final regulation.
(4) We have not consulted with the other bureaus and offices of the
Department about the potential effects of this regulation on Indian
Tribes. Other Department bureaus and offices are not affected by this
rule.
The BIA irrigation projects are vital components of the local
agricultural economy of the reservations on which they are located. To
fulfill its responsibilities to the Tribes, tribal organizations, water
user organizations, and the individual water users, the BIA
communicates, coordinates, and consults on a continuing basis with
these entities on issues of water delivery, water availability, costs
of administration, operation, maintenance, and rehabilitation. This is
accomplished at the individual irrigation projects by project, agency,
and regional representatives, as appropriate, in accordance with local
protocol and procedures. The BIA Central Office held four consultation
meetings for Tribes and tribal members. Consultation meetings were held
on August 24, 2004 and May 12, 2005 in Phoenix, Arizona, and on August
26, 2004 and May 10, 2005 in Billings, Montana.
K. Review Under Paperwork Reduction Act of 1995
These regulation revisions affect the collection of information,
which has been approved by the Office of Information and Regulatory
Affairs, Office of Management and Budget, under the Paperwork Reduction
Act of 1995 with the OMB Control Number 1076-0141, expiring August 31,
2009.
The Bureau of Indian Affairs operates 15 irrigation projects that
provide irrigation services to the end user. The information we collect
enables us to properly bill for the services we provide by collecting
information that identifies the individual responsible for paying the
costs of the services. Some of the information is needed to satisfy the
requirements of the Debt Collection Improvement Act of 1996. The table
addresses the services available, the number of users, the burden for
each, as well as the yearly total and the sections in the rule that
apply to the collection items.
----------------------------------------------------------------------------------------------------------------
Salary per
Number of hour ($20) x
CFR section Hourly burden respondent Total annual all respondent
Service 171 to respondent requests burden hours requests =
per request annually annual cost
burden
----------------------------------------------------------------------------------------------------------------
Requesting irrigation service.. 200/600 0.5 26,156 13,078 $261,560
Subdividing a farm unit........ 225 4 1 4 80
Requesting leaching service.... 305 1 40 40 800
Requesting water for domestic 310 .3 474 142 2,840
or stock purposes.............
Building non-government 405 3 67 201 4,020
structures in BIA rights-of-
ways..........................
Installing a fence on BIA 410 1.5 52 78 1,560
property or rights-of-ways....
[[Page 11036]]
What information must be 530 0.2 500 100 2,000
provided for billing purposes.
Requesting payment plans on 550 2 126 252 5,040
bills.........................
Establishing a carriage 605 1 3 3 60
agreement (carrying third
party water through our
facilities to your lands).....
Negotiating an irrigation 610/615 6 21 126 2,520
incentive lease with the BIA..
Requesting annual assessment 710/715 1 135 135 2,700
waiver........................
--------------------------------------------------------------------------------
Annual totals.............. .............. ............... 27,575 14,159 $283,180
----------------------------------------------------------------------------------------------------------------
We estimate that we service 6,539 users who submit information
about 27,575 times a year. We estimate the total annual hourly burden
to be 14,159 at an estimated cost of $283,180. The users mainly request
water to be turned on or turned off. Users are not required to maintain
records, but may do so for business purposes. The information they
submit is for the purpose of obtaining or retaining a service, namely
delivery of irrigation water. While we do require personal information
for the purpose of adhering to the controlling laws and regulations, we
protect the information under the Privacy Act.
Comments on this information collection can be made at any time and
sent to the BIA Information Collection Clearance Officer, 625 Herndon
Parkway, Herndon, VA 20171. Please note that comments about the burden
are separate from comments on the rule. If you wish to withhold
personal information, such as your name, you must state this
prominently at the beginning of you comments. We will honor your
request to the extent that the law allows.
List of Subjects in 25 CFR Part 171
Indians--lands, Irrigation.
Dated: January 22, 2008.
Carl J. Artman,
Assistant Secretary--Indian Affairs.
0
For the reasons set out in the preamble, the Department of the
Interior, Bureau of Indian Affairs, is revising part 171 of Title 25 of
the Code of Federal Regulations to read as follows:
PART 171--IRRIGATION OPERATION AND MAINTENANCE
Subpart A--General Provisions
Sec.
171.100 What are some of the terms I should know for this part?
171.105 Does this part apply to me?
171.110 How does BIA administer its irrigation facilities?
171.115 Can I and other irrigators establish representative
organizations?
171.120 What are the authorities and responsibilities of a
representative organization?
171.125 Can I appeal BIA decisions?
171.130 Who can I contact if I have any questions about these
regulations or my irrigation service?
171.135 Where do I submit written information or requests?
171.140 Information collection.
Subpart B--Irrigation Service
171.200 How do I request irrigation service from the BIA?
171.205 How much water will I receive?
171.210 Where will BIA provide my irrigation service?
171.215 What if the elevation of my farm unit is too high to receive
irrigation water?
171.220 What must I do to my farm unit to receive irrigation
service?
171.225 What must I do to receive irrigation service to my
subdivided farm unit?
171.230 What are my responsibilities for wastewater?
Subpart C--Water Use
171.300 Does BIA restrict my water use?
171.305 Will BIA provide leaching service to me?
171.310 Can I use water delivered by BIA for livestock purposes?
Subpart D--Irrigation Facilities
171.400 Who is responsible for structures on a BIA irrigation
project?
171.405 Can I build my own structure or take over responsibility of
a BIA structure?
171.410 Can I install a fence on a BIA irrigation project?
171.415 Can I place an obstruction on a BIA irrigation project?
171.420 Can I dispose of sewage, trash or other refuse on a BIA
irrigation project?
Subpart E--Financial Matters: Assessments, Billing, and Collections
171.500 How does BIA determine the annual operation and maintenance
assessment rate for the irrigation facility servicing my farm unit?
171.505 How does BIA calculate my annual operation and maintenance
assessment?
171.510 How does BIA calculate my annual operation and maintenance
assessment if supplemental water is available on the irrigation
facility servicing my farm unit?
171.515 Who will BIA bill?
171.520 How will I receive my bill and when do I pay it?
171.525 How do I pay my bill?
171.530 What information must I provide BIA for billing purposes?
171.535 Why is BIA collecting this information from me?
171.540 What can happen if I do not provide this information?
171.545 What can happen if I don't pay my bill on time?
171.550 Can I arrange a Payment Plan if I cannot pay the full amount
due?
171.555 What additional costs will I incur if I am granted a Payment
Plan?
171.560 What if I fail to make payments as specified in my Payment
Plan?
171.565 How will I know if BIA plans to adjust my annual operation
and maintenance assessment rate?
171.570 What is the Federal Register and where can I get it?
171.575 Can BIA charge me special assessments?
Subpart F--Records, Agreements, and Other Matters
171.600 What information is collected and retained on the irrigation
service I receive?
171.605 Can I establish a Carriage Agreement with BIA?
171.610 Can I arrange an Incentive Agreement if I want to farm idle
lands?
171.615 Can I request improvements to BIA facilities as part of my
Incentive Agreement?
Subpart G--Non-Assessment Status
171.700 When do I not have to pay my annual operation and
maintenance assessment?
171.705 What criteria must be met for my land to be granted an
Annual Assessment Waiver?
171.710 Can I receive irrigation water if I am granted an Annual
Assessment Waiver?
171.715 How do I obtain an Annual Assessment Waiver?
171.720 For what period does an Annual Assessment Waiver apply?
Authority: 25 U.S.C. 2; 25 U.S.C. 9; 25 U.S.C. 13; 25 U.S.C.
381; Act of April 4, 1910, 36 Stat. 270, as amended (codified at 25
U.S.C. 385); 25 U.S.C. 386a; Act of June 22,
[[Page 11037]]
1936, 49 Stat. 1803 (codified at 25 U.S.C. 389 et seq.).
Subpart A--General Provisions
Sec. 171.100 What are some of the terms I should know for this part?
Annual Assessment Waiver means a mechanism for us to waive your
annual operation and maintenance assessment under certain specified
circumstances.
Annual operation and maintenance assessment means the charges you
must pay us for our costs of administration, operation, maintenance,
and rehabilitation of the irrigation facility servicing your farm unit.
Annual operation and maintenance assessment rate means the per acre
charge we establish for the irrigation facility servicing your farm
unit.
Assessable acres (see Total assessable acres).
Authorized use means your use of water delivered by us that
supports irrigated agriculture, livestock, Carriage Agreements or other
uses defined by laws, regulations, treaty, compact, judicial decree,
river regulatory plan, or other authority.
BIA means the Bureau of Indian Affairs within the United States
Department of the Interior.
Bill means our statement to you of the assessment charges and/or
fees you owe the United States for administration, operation,
maintenance, rehabilitation, and/or construction of the irrigation
facility servicing your farm unit.
Carriage Agreement means a legally binding contract we enter into:
(1) To convey third-party water through our irrigation facilities;
or
(2) To convey our water through third-party facilities.
Construction assessment means the periodic charge we assess you to
repay us the funds we used to construct our irrigation facilities
serving your farm unit that are determined to be reimbursable under
applicable statutes.
Customer means any person or entity to whom we provide irrigation
service.
Ditch (see Farm ditch or Service ditch).
Due date means the date printed on your bill, 30 days after which
your bill becomes past due.
Facility (see Irrigation facility).
Farm ditch means a ditch or canal that you own, operate, maintain,
and rehabilitate.
Farm unit means the smallest parcel of land for which we will
establish a delivery point. Farm unit size is defined in the
authorizing legislation for each irrigation facility, or in the absence
of such legislation, we will define the farm unit size.
I, me, my, you, and your means all interested parties, especially
persons or entities to which we provide irrigation service and receive
use of our irrigation facilities, such as irrigators, landowners,
leasees, irrigator organizations, irrigation districts, or other
entities affected by this part and our supporting policies, manuals,
and handbooks.
Idle lands means lands that are not currently farmed because they
have characteristics that limit crop production.
Incentive Agreement means a written agreement between you and us
that allows us to waive your annual operation and maintenance
assessment, when you agree to improve idle lands and we determine that
it is in the best interest of our irrigation facility.
Irrigation bill (see Bill).
Irrigation district (see Representative organization).
Irrigation facility means all structures and appurtenant works for
the delivery, diversion, and storage of irrigation water. These
facilities may be referred to as projects, systems, or irrigation
areas.
Irrigation service means the full range of services we provide
customers, including but not limited to administration, operation,
maintenance, and rehabilitation of our irrigation facilities.
Irrigation water or water means water we deliver through our
facilities for the general purpose of irrigation and other authorized
purposes.
Irrigator (see Customer).
Landowner means a person or entity that owns fee, tribal trust,
and/or individual allotted trust lands.
Leaching Service means our delivery of water to you at your request
for the purpose of transporting salts below the root zone of a farm
unit.
Lessee means any person or entity that holds a lease approved by us
on lands to which we provide irrigation service.
Must means an imperative or mandatory act or requirement.
My land and your land mean all or part of your farm unit.
Obstruction means anything permanent or temporary that blocks,
hinders, impedes, stops or cuts off our facilities or our ability to
perform the services we determine necessary to provide service to our
customers.
Organization (see Representative organization).
Past due bill means a bill that has not been paid within 30 days of
the due date stated on your bill.
Permanently non-assessable acres (PNA) means lands that the
Secretary of the Interior has determined to be permanently non-
irrigable pursuant to the standards set out in 25 U.S.C. 389b.
Representative organization or organization means a legally
established organization representing your interests that confers with
us on how we provide irrigation service at a particular irrigation
facility.
Service(s) (see Irrigation service).
Service area means lands designated by us to be served by one of
our irrigation facilities.
Service ditch means a ditch or canal which we own, administer,
operate, maintain, and rehabilitate that we use to provide irrigation
service to your farm unit.
Soil salinity means soils containing high salt content that limit
crop production.
Special assessment means a charge to cover the uncontrolled cost
arising from an urgency on an irrigation facility.
Structures (see Irrigation facility).
Subdivision means a farm unit that has been subdivided into smaller
parcels.
Supplemental water means water available for delivery by our
irrigation facilities beyond the quantity necessary to provide all
project customers requesting water with the per-acre water duty
established for that project.
Taxpayer identifying number means either your Social Security
Number or your Employer Identification Number.
Temporarily non-assessable acres (TNA) means lands that the
Secretary of the Interior has determined to be temporarily non-
irrigable pursuant to the standards set out in 25 U.S.C. 389a.
Total assessable acres means the total acres of land served by one
of our irrigation facilities to which we assess operation and
maintenance charges. The Total assessable acres within the service area
of an irrigation facility do not include those acres of land that are
designated PNA or TNA, nor those acres of land granted an Annual
Assessment Waiver.
Trust or restricted land or land in trust or restricted status (see
definitions in 25 CFR 151.2).
Urgency means a situation that we have determined may adversely
impact our irrigation facilities, operation, or other irrigation
activities; affect public safety; or damage property or equipment.
Wastewater means surface runoff and subsurface drainage from your
farm unit from water delivered by us that exceeds irrigation
requirements.
Water (see Irrigation water).
Water delivery is an activity that is part of the irrigation
service we provide to our customers when water is available.
Water duty means the amount of water, in acre-feet per acre,
necessary
[[Page 11038]]
for full-service irrigation. This value is established by decree,
compact, or other legal document, or by specialized engineering
studies.
Water user (see Customer).
We, us, and our means the United States Government, the Secretary
of the Interior, BIA, and all who are authorized to represent us in
matters covered under this part.
Sec. 171.105 Does this part apply to me?
This part applies to you if you own or lease land within an
irrigation project where we assess fees and collect monies to
administer, operate, maintain, and rehabilitate project facilities.
Sec. 171.110 How does BIA administer its irrigation facilities?
(a) We administer our irrigation facilities by enforcing the
applicable statutes, regulations, Executive Orders, directives, Indian
Affairs Manual, the Irrigation Handbook, and other written policies,
procedures, directives, and practices to ensure the safe, reliable, and
efficient administration, operation, maintenance, and rehabilitation of
our facilities. Such enforcement can include refusal or termination of
irrigation services to you. Copies of the above listed items may be
obtained from the irrigation project serving you.
(b) We will cooperate and consult with you, as appropriate, on
irrigation activities and policies of the particular irrigation
facility serving you.
Sec. 171.115 Can I and other irrigators establish representative
organizations?
Yes. You and other irrigators may establish a representative
organization under applicable law to represent your interests for the
particular irrigation facilities serving you.
Sec. 171.120 What are the authorities and responsibilities of a
representative organization?
(a) A legally established organization representing you may make
rules, policies, and procedures it may find necessary to administer the
activities it is authorized to perform.
(b) An organization must not make rules, policies, or procedures
that conflict with our regulations or any of our other written
policies, procedures, directives, and manuals.
(c) If this organization collects operation and maintenance
assessments and construction assessments on your behalf to be paid to
us, it must pay us all your past and current operation and maintenance
and construction assessment charges before we will provide irrigation
service to you.
Sec. 171.125 Can I appeal BIA decisions?
(a) You may appeal our decisions in accordance with procedures set
out in 25 CFR Part 2, unless otherwise prohibited by law.
(b) If you appeal an irrigation bill, you must pay the bill in
accordance with subpart E before we will provide irrigation service to
you. If you prevail on appeal, any overpayment will be refunded to you.
Sec. 171.130 Who can I contact if I have any questions about these
regulations or my irrigation service?
Contact the local irrigation project where you receive service or
want to apply for service. If your questions are not addressed to your
satisfaction at the local project level, you may contact the
appropriate BIA Regional Office.
Sec. 171.135 Where do I submit written information or requests?
Submit written information to us or make request of us in writing
at the irrigation project servicing your farm unit.
Sec. 171.140 Information collection.
The information collection requirements contained in this part have
been approved by the Office of Management and Budget under 44 U.S.C.
3501 et seq. and assigned clearance number 1076-0141. This information
collection is specifically found in 25 CFR Sections 171.200, 171.225,
171.305, 171.310, 171.405, 171.410, 171.530, 171.550, 171.600, 171.605,
171.610, 171.615, 171.710, 171.715. A Federal agency may not conduct or
sponsor, and you are not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
Subpart B--Irrigation Service
Sec. 171.200 How do I request irrigation service from the BIA?
(a) You must request service from the irrigation facility servicing
your farm unit.
(b) Your request must contain at least the following information:
(1) Your full legal name;
(2) Where you want service;
(3) The time and date you want service to start;
(4) How long you want service;
(5) The rate of water flow you want, if available;
(6) How many acres you want to irrigate; and
(7) Any additional information required by the project office
responsible for providing your irrigation service.
(c) You must request supplemental water in accordance with the
project guidelines established by the specific project providing your
irrigation service.
Sec. 171.205 How much water will I receive?
The amount of water you receive will be based on your request, your
legal entitlement to water, and the available water supply.
Sec. 171.210 Where will BIA provide my irrigation service?
(a) We will provide service to your farm unit at a single delivery
point that we designate.
(b) At our discretion, we may establish additional delivery points
when:
(1) We determine it is impractical to deliver water to your farm
unit from a single delivery point;
(2) You agree in writing to be responsible for all costs to
establish an additional delivery point;
(3) You pay us our costs prior to our establishing an additional
delivery point; and
(4) Any work accomplished under this section does not disrupt our
service to other customers without their written agreement.
(c) We may establish your delivery point(s) at a well head.
Sec. 171.215 What if the elevation of my farm unit is too high to
receive irrigation water?
(a) We will not change our service ditch level to provide service
to you.
(b) You may install, operate, and maintain your own facilities, at
your cost, to provide service to your land:
(1) From a delivery point we designate; and
(2) In accordance with specifications we approve.
Sec. 171.220 What must I do to my farm unit to receive irrigation
service?
You must meet the following requirements for us to provide service:
(a) Put water we deliver to authorized uses;
(b) Make sure your farm ditch has sufficient capacity to carry the
water we deliver; and
(c) Properly operate, maintain, and rehabilitate your farm ditch.
Sec. 171.225 What must I do to receive irrigation service to my
subdivided farm unit?
In order to receive irrigation service, you must:
(a) Provide us a copy of the recorded plat or map of the
subdivision which shows us how the irrigation water will be delivered
to the irrigable acres;
(b) Pay for any extensions or alterations to our facilities that we
approve to serve the subdivided units;
[[Page 11039]]
(c) Construct, at your cost, any facilities within your subdivided
farm unit; and
(d) Operate and maintain, at your cost, any facilities within your
subdivided farm unit.
Sec. 171.230 What are my responsibilities for wastewater?
(a) You are responsible for your wastewater.
(b) Wastewater may be returned to our facilities, but only at
locations we designate, in a manner we approve, and at your cost.
(c) You must not allow your wastewater to flow or collect on our
facilities or roads, except at locations we designate and in a manner
we approve.
(d) If you fail to comply with this section, we may withhold
services to you.
Subpart C--Water Use
Sec. 171.300 Does BIA restrict my water use?
(a) You must not interfere with or alter our service to you without
our prior written authorization; and
(b) You must only use water we deliver for authorized uses. We may
withhold services if you use water for any other purpose.
Sec. 171.305 Will BIA provide leaching service to me?
(a) We may provide you leaching service if:
(1) You submit a written plan that documents how soil salinity
limits your crop production and how leaching service will correct the
problem;
(2) We approve your plan in writing; and
(3) Your irrigation bills are not past due.
(b) Leaching service will only be available during the timeframe
established by your irrigation facility.
(c) We reserve the right to terminate this service if we determine
you are not complying with paragraph (a) of this section.
Sec. 171.310 Can I use water delivered by BIA livestock purposes?
Yes, if we determine it will not:
(a) Interfere with the operation, maintenance, or rehabilitation of
our facilities;
(b) Be detrimental to or jeopardize our facilities;
(c) Adversely affect the water rights or water supply; or
(d) Cause additional costs to us that we do not agree to in
writing.
Subpart D--Irrigation Facilities
Sec. 171.400 Who is responsible for structures on a BIA irrigation
project?
(a) We may build, operate, maintain, rehabilitate or remove
structures, including bridges and other crossings, on our irrigation
projects.
(b) We may build other structures for your private use during the
construction or extension of an irrigation project. We may charge you
for structures built for your private use under this section, and we
may require you to maintain them.
(c) If we require you to maintain a structure and you do not do so
to our satisfaction, we may remove it or perform the necessary
maintenance, and we will bill you for our costs.
Sec. 171.405 Can I build my own structure or take over responsibility
of a BIA structure?
You may build a structure on our irrigation facility for your
private use or take responsibility of one of our structures, but only
under a written agreement between you and us which:
(a) Relieves us from any future liability or responsibility for the
structure;
(b) Relieves us from any future costs incurred for maintaining the
structure;
(c) Describes what is granted by us and accepted by you; and
(d) Provides that if you do not regularly use a structure for a
period of time that we have determined, or you do not properly maintain
and rehabilitate the structure, we will notify you in writing that:
(1) You must either remove it or correct any unsafe condition;
(2) If you do not comply with our notice, we may remove the
structure and you must reimburse us our costs; and
(3) We may modify, close, or remove your structure without notice
due to an urgency we have identified.
Sec. 171.410 Can I install a fence on a BIA irrigation project?
Yes. Fences are considered structures and may be installed in
compliance with Sec. 171.405.
Sec. 171.415 Can I place an obstruction on a BIA irrigation project?
No. You may not place obstructions on BIA irrigation projects.
(a) If you do so, we will notify you in writing that you must
remove it.
(b) If you do not remove your obstruction in compliance with our
notice, we will remove it and we will bill you for our costs.
(c) We can remove your obstruction without notice because of an
urgency we have identified.
Sec. 171.420 Can I dispose of sewage, trash, or other refuse on a BIA
irrigation project?
No. Sewage, trash, or other refuse are considered obstructions and
must be removed in accordance with Sec. 171.415.
Subpart E--Financial Matters: Assessments, Billing, and Collections
Sec. 171.500 How does BIA determine the annual operation and
maintenance assessment rate for the irrigation facility servicing my
farm unit?
(a) We calculate the annual operation and maintenance assessment
rate by estimating the following annual costs and then dividing by the
total assessable acres for your irrigation facility:
(1) Personnel salary and benefits for the facility engineer/manager
and employees under their management or control;
(2) Materials and supplies;
(3) Vehicle and equipment repairs;
(4) Equipment costs, including lease fees;
(5) Depreciation;
(6) Acquisition costs;
(7) Maintenance of a reserve fund available for contingencies or
emergency costs needed for the reliable operation of the irrigation
facility infrastructure;
(8) Maintenance of a vehicle and heavy equipment replacement fund;
(9) Systematic rehabilitation and replacement of project
facilities;
(10) Contingencies for unknown costs and omitted budget items; and
(11) Other costs we determine necessary to properly perform the
activities and functions characteristic of an irrigation facility.
(b) Annual operation and maintenance assessment rates may be
lowered through the exercise of our discretion when items listed in (a)
of this section are adjusted pursuant to our authority under 25 U.S.C.
385, 386a and 389.
(c) If you subdivide your farm unit, you may be subject to a higher
annual operation and maintenance assessment rate, which we publish
annually in the Federal Register.
(d) At projects where supplemental water is available, the
calculation of your annual operation and maintenance assessment rate
may take into consideration the total estimated annual amount to be
collected for supplemental water deliveries.
Sec. 171.505 How does BIA calculate my annual operation and
maintenance assessment?
(a) We calculate your annual operation and maintenance assessment
by multiplying the total assessable acres of your land within the
service area of
[[Page 11040]]
our irrigation facility by the annual operation and maintenance
assessment rate we establish for that facility.
(b) We will not assess lands that have been re-classified as either
permanently non-assessable (PNA) or temporarily non-assessable (TNA) or
lands that have been granted an Annual Assessment Waiver.
(c) If your lands are under an approved Incentive Agreement, we may
waive your assessment as described in the Incentive Agreement (See
Sec. 171.610).
(d) Some irrigation facilities may charge a minimum operation and
maintenance assessment. If the irrigation facility serving your farm
unit charges a minimum operation and maintenance assessment that is
more than your assessment calculated by the method described in subpart
(a) of this section, you will be charged the minimum operation and
maintenance assessment. We provide public notice of any minimum
operation and maintenance assessments annually in the Federal Register
(See Sec. 171.565).
Sec. 171.510 How does BIA calculate my annual operation and
maintenance assessment if supplemental water is available on the
irrigation facility servicing my farm unit?
(a) For projects where supplemental water is available, and you
request and receive supplemental water, your assessment will include
two components: a base rate, which is for your per-acre water duty
delivered to your farm unit; and a supplemental water rate, which is
for water delivered to your farm unit in addition to your per-acre
water duty.
(b) We publish base and supplemental water rates annually in the
Federal Register. The base and supplemental water rates are established
to recover the costs identified in Section 171.500(a) of this Subpart.
(c) If your project has established a supplemental water rate, and
you request and receive supplemental water, we will calculate your
total annual operation and maintenance assessment by adding the
following two totals: (1) The total assessable acres of your land
within the service area of our irrigation facility multiplied by the
annual operation and maintenance assessment rate we establish for that
facility; and (2) the actual quantity of supplemental water you request
and we agree to deliver (in acre-feet) times the supplemental water
rate established for that facility.
Sec. 171.515 Who will BIA bill?
(a) We will bill the landowner, unless:
(1) The land is leased under a lease approved by us, in which case
we will bill the lessee, or
(2) The landowner(s) is represented by a representative
organization that collects annual operation and maintenance assessments
on behalf of its members and the representative organization makes a
direct payment to us on your behalf.
(b) If you own or lease assessable lands within a BIA irrigation
facility, you will be billed for annual operation and maintenance
assessments, whether you request water or not, unless otherwise
specified in Sec. 171.505(b).
Sec. 171.520 How will I receive my bill and when do I pay it?
(a) You will receive your bill in the mail at the address of record
you provide us.
(b) You should pay your bill no later than the due date stated on
your bill.
(c) You will not receive a bill for supplemental water. You must
pay us in advance at the supplemental water rate established for you
project published annually in the Federal Register.
Sec. 171.525 How do I pay my bill?
(a) You can pay your bill by:
(1) Personally going to the local office of the irrigation facility
authorized to receive your payment during normal business hours;
(2) Depositing your payment in an authorized drop box, if
available, at the local office of the irrigation facility; or
(3) Mailing your payment to the address indicated on your bill.
(b) Your payment must be in the form of:
(1) Check or money order in the mail or authorized drop box; or
(2) Cash, check, or money order if you pay in person.
Sec. 171.530 What information must I provide BIA for billing
purposes?
We must obtain certain information from you to ensure we can
properly bill, collect, deposit, and account for money you owe the
United States. At a minimum, this information is:
(a) Your full legal name;
(b) Your correct mailing address; and
(c) Your taxpayer identifying number.
Sec. 171.535 Why is BIA collecting this information from me?
(a) As part of doing business with you, we must collect enough
information from you to properly bill and service your account.
(b) We are required to collect your taxpayer identifying number
under the authority of, and as prescribed in, the Debt Collection
Improvement Act of 1996, Public Law 104-134 (110 Stat. 1321-364).
Sec. 171.540 What can happen if I do not provide this information?
We will not provide you irrigation service.
Sec. 171.545 What can happen if I don't pay my bill on time?
(a) We will not provide you irrigation service until:
(1) Your bill is paid; or
(2) You make arrangement for payment pursuant to Sec. 171.550 of
this part.
(b) If you do not pay your bill prior to the close of business on
the 30th day after the due date, we consider your bill past due, send
you a notice, and assess you the following:
(1) Interest, as required by 31 U.S.C. 3717. Interest will accrue
from the original due date stated on your bill.
(2) An administrative fee, as required by 31 CFR 901.9.
(c) If you do not pay your bill prior to the close of business of
the 90th day after the due date, we will assess you a penalty, as
required by 31 CFR 901.9(d). Penalties will accrue from the original
due date stated on your bill.
(d) We will forward your past due bill to the United States
Treasury no later than 180 days after the original due date, as
required by 31 CFR 901.1, ``Aggressive agency collection activity.''
Sec. 171.550 Can I arrange a Payment Plan if I cannot pay the full
amount due?
We may approve a Payment Plan if:
(a) You are a landowner and your land is not leased;
(b) You certify that you are financially unable to make a lump sum
payment;
(c) You provide additional information we request, which may
include information identified in 31 CFR 901.8, ``Collection in
installments''; and
(d) You sign our Payment Plan containing terms and conditions we
specify.
Sec. 171.555 What additional costs will I incur if I am granted a
Payment Plan?
You will incur the following costs:
(a) An administrative fee to process your Payment Plan, as required
by 31 CFR 901.9.
(b) Interest, accrued on your unpaid balance, in accordance with
Sec. 171.545.
Sec. 171.560 What if I fail to make payments as specified in my
Payment Plan?
(a) We will discontinue irrigation service until your bill is paid
in full;
(b) You will be in default, you will be assessed an administrative
fee, and your debt will be immediately forwarded to the United States
Treasury in accordance with the Debt Collection Improvement Act of 1996
(Pub. L. 104-134).
[[Page 11041]]
(c) You will be ineligible for Payment Plans for the next 6 years.
Sec. 171.565 How will I know if BIA plans to adjust my annual
operation and maintenance assessment rate?
(a) We provide public notice of our proposed rates annually in the
Federal Register.
(b) You may contact the irrigation facility servicing your farm
unit.
Sec. 171.570 What is the Federal Register and where can I get it?
(a) The Federal Register is the official daily publication for
Rules, Proposed Rules, and Notices of official actions by Federal
agencies and organizations, as well as Executive Orders and other
Presidential Documents, and is produced by the United States Government
Printing Office (GPO).
(b) You can get publications of the Federal Register:
(1) By going on the World Wide Web at http://www.gpo.gov;
(2) By writing to the GPO, Superintendent of Documents, P.O. Box
371954, Pittsburgh, Pennsylvania 15250-7954; or
(3) By calling GPO at (202) 512-1530.
Sec. 171.575 Can BIA charge me a special assessment?
Yes. We will make every reasonable effort to avoid charging special
assessments. However, if we determine that we have a significant
uncontrolled cost due to an urgency, we may charge you a special
assessment. We will only charge special assessments when there are
inadequate project funds available, including any emergency reserve
funds held by the project.
The special assessment rate will be calculated by dividing the
total uncontrolled cost, or some portion of that cost, by the total
number of assessable acres. Your individual special assessment will be
equal to the special assessment rate multiplied by the number of
assessable acres in your farm unit.
Subpart F--Records, Agreements, and Other Matters
Sec. 171.600 What information is collected and retained on the
irrigation service I receive?
We will collect and retain at least the following information as
part of our record of the irrigation service we have provided you:
(a) Your name;
(b) Delivery point(s) where service was provided;
(c) Beginning date and time of your irrigation service;
(d) Ending date and time of your irrigation service; and
(e) Amount of water we delivered to your farm unit.
Sec. 171.605 Can I establish a Carriage Agreement with BIA?
(a) We may agree in writing to carry third-party water through our
facilities to your lands not served by our facilities if we have
determined that our facilities have adequate capacity to do so.
(b) If we determine that carrying water in accordance with
paragraph (a) of this section is jeopardizing our ability to provide
irrigation service to the lands we are required to serve, we will
terminate the Agreement.
(c) We may enter into an agreement with a third party to provide
service through their facilities to your isolated assessable lands.
(d) You must pay us all administrative, operating, maintenance, and
rehabilitation costs associated with any agreement established under
this section before we will convey water.
(e) We will notify you in writing no less than five days before
terminating a Carriage Agreement established under this section.
(f) We may terminate a Carriage Agreement without notice due to an
urgency we have identified.
Sec. 171.610 Can I arrange an Incentive Agreement if I want to farm
idle lands?
We may approve an Incentive Agreement if:
(a) You request one in writing at least 90 days prior to the
beginning of the irrigation season that includes a detailed plan to
improve the idle lands, which contains at least the following:
(1) A description of specific improvements you will make, such as
clearing, leveling, or other activities that will improve idle lands to
a condition that supports authorized use of delivered water;
(2) The estimated cost of the improvements you will make;
(3) The time schedule for your proposed improvements;
(4) Your proposed schedule for water delivery, if necessary; and
(5) Justification for use of irrigation water during the
improvement period.
(b) You sign our Incentive Agreement containing terms and
conditions we specify.
Sec. 171.615 Can I request improvements to BIA facilities as part of
my Incentive Agreement?
Yes. You may request and we may agree to make improvements as part
of your Incentive Agreement that we determine are in the best interest
of the irrigation facility servicing your farm unit.
Subpart G--Non-Assessment Status
Sec. 171.700 When do I not have to pay my annual operation and
maintenance assessment?
You do not have to pay your annual operation and maintenance
assessment for your land(s) within the service area of your irrigation
facility when:
(a) We grant you an Annual Assessment Waiver; or
(b) We grant you an Incentive Agreement which may include waiving
your annual operation and maintenance assessment; or
(c) Your land is re-designated as permanently non-assessable or
temporarily non-assessable.
Sec. 171.705 What criteria must be met for my land to be granted an
Annual Assessment Waiver?
For your land to be granted an Annual Assessment Waiver, we must
determine that our irrigation facilities are not capable of delivering
adequate irrigation water to your farm unit. Inadequate water supply
due to natural conditions or climate is not justification for us to
grant an Annual Assessment Waiver.
Sec. 171.710 Can I receive irrigation water if I am granted an Annual
Assessment Waiver?
No. Water will not be delivered in any quantity to your farm unit
if you have been granted an Annual Assessment Waiver.
Sec. 171.715 How do I obtain an Annual Assessment Waiver?
For your land to be granted an Annual Assessment Waiver, you must:
(a) Send us a request in writing to have your land granted an
Annual Assessment Waiver;
(b) Submit your request prior to the bill due date for the year for
which you are requesting the Annual Assessment Waiver; and
(c) Receive our approval in writing.
Sec. 171.720 For what period does an Annual Assessment Waiver apply?
Annual Assessment Waivers are only valid for the year in which they
are granted. To obtain an Annual Assessment Waiver for a subsequent
year, you must reapply.
[FR Doc. E8-3698 Filed 2-28-08; 8:45 am]
BILLING CODE 4310-W7-P
