81 FR 89015 - Traders With Indians
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs Federal Register Volume 81, Issue 237 (December 9, 2016)
Bureau of Indian Affairs
Federal Register Volume 81, Issue 237 (December 9, 2016)
| Page Range | 89015-89017 | |
| FR Document | 2016-29253 |
[Federal Register Volume 81, Number 237 (Friday, December 9, 2016)] [Proposed Rules] [Pages 89015-89017] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-29253] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Part 140 [178A2100DD/AAKC001030/A0A501010.999900 253G] RIN 1076-AF30 Traders With Indians AGENCY: Bureau of Indian Affairs, Interior. ACTION: Advance notice of proposed rulemaking; solicitation of comments. ----------------------------------------------------------------------- SUMMARY: The Department of the Interior (Department) is considering whether to propose an administrative rule that would comprehensively update 25 CFR part 140 (Licensed Indian Traders) in an effort to modernize the implementation of the Indian Trader statutes consistent with the Federal policies of Tribal self-determination and self- governance. The current regulations were promulgated in 1957 and have not been comprehensively updated since 1965. The purpose of this advance notice of proposed rulemaking (ANPRM) is to solicit public comments on whether and how the Department should update 25 CFR part 140, including how the Indian Trader regulations might be updated to govern who trades on Indian land and how the regulations can better promote Tribal self-determination regarding trade on Indian lands. In this ANPRM, the Department also announces dates and locations for Tribal consultations and public meetings to consider this issue. DATES: Comments must be submitted on or before April 10, 2017. ADDRESSES: You may submit comments by any of the following methods: Federal rulemaking portal: http://www.regulations.gov. The rule is listed under the agency name ``Bureau of Indian Affairs.'' The rule has been assigned Docket ID: BIA-2016-0007. Mail or hand delivery: Elizabeth K. Appel, Director, Office of Regulatory Affairs & Collaborative Action, Indian Affairs, U.S. Department of the Interior, 1849 C St. NW., Mail Stop 3642-MIB, Washington, DC 20240. Please see the SUPPLEMENTARY INFORMATION section of this document for information on Tribal consultation sessions. FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Director, Office of Regulatory Affairs and Collaborative Action, Office of the Assistant Secretary--Indian Affairs; telephone (202) 273-4680, [email protected]. SUPPLEMENTARY INFORMATION: Public Comment The Department is considering whether to propose an administrative rule that would comprehensively update 25 CFR part 140 (Licensed Indian Traders) in an effort to modernize the implementation of the Indian Trader statutes consistent with the Federal policies of Tribal self- determination and self-governance. We are interested in hearing from federally recognized tribes. We also welcome comments and information from states and their agencies and from the public. To be most useful, and most likely to inform decisions on the content of a potential administrative rule, comments should: --Be specific; --Be substantive; --Explain the reasoning behind the comments; and --Address the issues outlined in the ANPRM. For the purpose of this ANPRM, we are seeking input solely on questions related to a potential administrative rule on whether and how the Department of the Interior should update 25 CFR part 140, including how the Indian Trader regulations might be updated to govern who trades on Indian land in a manner more consistent with Tribal self-governance and self-determination. We are seeking comments solely on following questions: 1. Should the Federal government address trade occurring in Indian Country through an updated 25 CFR part 140, and why? 2. Are there certain components of the existing rule that should be kept, and if so, why? 3. How can revisions to the existing rule ensure that persons who conduct trade are reputable and that there are mechanisms in place to address traders who violate Federal or Tribal law? 4. How do Tribes currently regulate trade in Indian Country and how might [[Page 89016]] revisions to 25 CFR part 140 help Tribes regulate trade in Indian Country? 5. What types of trade should be regulated and what type of trader should be subject to regulation? 6. How might revisions to the regulations promote economic viability and sustainability in Indian Country? 7. What services do Tribes currently provide to individuals or entities doing business in Indian Country and what role do tax revenues play in providing those services? In addition to receiving comments through the Federal eRulemaking Portal, U.S. mail, courier services, and hand delivery (see ADDRESSES section above), we will conduct a series of in-person consultations with federally recognized Tribes, as listed below. Before including your address, phone number, email address, or other personal information in your comment--including personal identifying information--please be aware that your comment may be made publically available at any time. While you may ask in your comment that we withhold your personal identifying information from public review, we cannot guarantee we will be able to do so. Tribal Consultations The Department of the Interior will be hosting consultation sessions with Indian Tribes on this ANPRM We will accept both oral and written communications at these consultation sessions. The following table lists dates and tentative locations for the consultations. Specifics on the venue for each location will be provided in a subsequent Federal Register notice. ---------------------------------------------------------------------------------------------------------------- Date Time (local time zone) Location ---------------------------------------------------------------------------------------------------------------- Thursday, February 23, 2017......... 8:30 a.m.-12:00 p.m... Seattle area. Tuesday, February 28, 2017.......... 8:30 a.m.-12:00 p.m... Southeastern U.S. Thursday, March 2, 2017............. 8:30 a.m.-12:00 p.m... Southern California. Tuesday, March 7, 2017.............. 8:30 a.m.-12:00 p.m... Billings, Montana. Thursday, March 9, 2017............. 8:30 a.m.-12:00 p.m... Rapid City, South Dakota. Tuesday, March 14, 2017............. 8:30 a.m.-12:00 p.m... Prior Lake, Minnesota. Thursday, March 16, 2017............ 8:30 a.m.-12:00 p.m... Northeastern U.S. ---------------------------------------------------------------------------------------------------------------- Background The Department is considering whether to propose a rule that would comprehensively update 25 CFR part 140 (Licensed Indian Traders) to modernize the implementation of the Indian Trader statutes consistent with the Federal policies of Tribal self-government and self- determination. The current Indian Trader regulations were promulgated in 1957, revised in 1965, and modified in 1984 in a piecemeal fashion. The current regulations largely reflect policies that ignore Tribal self-determination and the growth of Tribal economies. Congress granted the Department broad and comprehensive authority to regulate trade in Indian Country by determining the proper persons to be ``Indian traders.'' See 25 U.S.C. 261 et seq.; see also 25 U.S.C. 9. The Department would seek to implement these responsibilities in a manner that reflects the current Nation-to-Nation relationship with Tribes should the Department propose a rule that updates 25 CFR part 140. The Department recognizes that many Tribes have enacted comprehensive laws concerning economic activity occurring on Tribal lands and that Tribal courts often retain jurisdiction over Indian traders. This ANPRM solicits information regarding current Tribal regulatory activity over trade occurring within Indian Country. Additionally, the Department recognizes that dual taxation on Tribal lands can undermine the Federal policies supporting Tribal economic development, self-determination, and strong Tribal governments. Dual taxation of traders and activities conducted by traders and purchasers can impede a Tribe's ability to attract investment to Indian lands where such investment and participation are critical to the vitality of Tribal economies. Tribal communities continue to struggle with unmet needs, such as in their schools and housing, as well as economic development, to name a few. Moreover, beyond the operation of their governments, Tribes continually pursue funding for infrastructure, roads, dams, irrigation systems and water delivery. Thus, the Department solicits information under this ANPRM about how revisions to the regulations could promote economic viability and sustainability in Indian Country. Description of the Information Requested We are particularly interested in receiving comments on the following questions relating to revisions of the 25 CFR part 140 we may develop concerning trade occurring in Indian Country: 1. Should the Federal government address trade occurring in Indian Country through an updated 25 CFR part 140, and why? We are seeking views on whether there is a need in Indian Country for the Federal government to revise 25 CFR part 140. As mentioned, Congress granted the Department broad authority to regulate trade in Indian Country. Specifically, under 25 U.S.C. 261, Power to appoint traders with Indians, the Department of the Interior (previously the Commissioner of Indian Affairs) has authority to make rules specifying the kind and quantity of goods that may be sold to Indians and the prices at which such goods shall be sold. Under 25 U.S.C. 262, Persons permitted to trade with Indians, the Department has the authority to establish rules and regulations governing trade on Indian reservations for the protection of the Indians. The Department acknowledges the comprehensive Federal regulation of Indian traders in some areas of Indian Country, but also notes that many Tribes currently regulate trade occurring within their jurisdictions under Tribal laws and authority, often without Federal involvement. The Department also acknowledges its trust responsibility to Tribes and solicits information on whether there is a need for updated regulations addressing a modern approach to the Federal role concerning trade occurring in Indian Country. 2. Are there certain components of the existing rule that should be kept, and if so, why? Should the Department conclude that there is a need for revisions to the existing rule, the Department seeks comments as to which parts, if any, of the existing rule should be kept. For instance, where the Department has issued licenses, should there be a grandfathering clause for currently valid licenses that the Department has issued under part 140? Alternatively, if commenters believe there is a need to update 25 CFR part 140, and that no components of the existing rule should be kept, the [[Page 89017]] Department requests information as to why this should be so. Additionally, the Department seeks views and proposals on what an entirely new proposed rule may look like. For instance, if the Department should no longer issue licenses, what do commenters envision Federal involvement to be? 3. How can revisions to the existing rule ensure that persons who conduct trade are reputable and that there are mechanisms in place to address traders who violate Federal or Tribal law? If there is a need to update 25 CFR part 140, we solicit information and suggestions on how revisions to the existing rule can ensure that there are reputable actors in Indian Country. Further, the Department requests information and suggestions on revisions to the existing rule to ensure that violations of Federal or Tribal law are properly addressed. The Department acknowledges that many Tribes have comprehensive schemes in place regulating traders conducting business within their jurisdiction. 4. How do Tribes currently regulate trade in Indian Country, and how might revisions to 25 CFR part 140 help Tribes regulate trade in Indian Country? As mentioned, the Department recognizes that many Tribes have enacted comprehensive laws concerning economic activity occurring on Tribal lands and that many Tribal courts retain jurisdiction over Indian traders. For example, the Department is aware that some Tribes have required disclosure of violations of business licenses and of enforcement actions taken by a Federal, Tribal, or State entity for trade-related activity. Tribes have also required the disclosure of any pending lawsuits involving the person and the business, and disclosure of tax liens against the business and other unsatisfied judgments. Other items that Tribes have required include a Federal employer identification number, a State registration number, insurance or bonding information, copies of all licenses (state, county, city or Tribal) currently held by the business, and affiliation with any other businesses. With this in mind, the Department requests information on how Tribes currently regulate trade within their jurisdiction. The Department requests specific information and suggestions, including language on how the Federal government can bolster those Tribes that currently comprehensively regulate trade, as well as those Tribes that do not do so presently. 5. What types of trade should be regulated and what types of traders should be subject to regulation? The Department has received numerous proposals from various Tribes pertaining to Indian Trader regulation. Many of these proposals suggest that trade regulated under part 140 should include not only commercial activities, but also mineral and energy development and any form of natural-resources extraction or agriculture. Currently, section 140.5(a)(1) of the existing rule has the following definitions: (5) Contract means any agreement made or under negotiation with any Indian for the purchase, transportation or delivery of goods or supplies. (6) Trading means buying, selling, bartering, renting, leasing, permitting and any other transaction involving the acquisition of property or services. (7) Commercial trading means any trading transaction where an employee engages in the business of buying or selling services or items which he/she is trading. The Department seeks comments on whether the definitions of contract, trading, and commercial trading should be revised, or struck in their entirety, and why. Additionally, the current definitions do not define the type of trader conducting business with an Indian Tribe. The draft proposals the Department has received recommend that the revised rule apply to any person conducting trade in Indian Country, including non-Indians. The Department solicits comments on whether an updated part 140 should define who the rule would apply to and whether or not this definition should broadly include any person conducting trade within Indian Country. 6. How might revisions to the regulations promote economic viability and sustainability in Indian Country? The Department is interested in receiving feedback on how revisions to the trade regulations could facilitate economic activity in Indian country and tribal economic self-sufficiency. 7. What services do Tribes currently provide to individuals or entities doing business in Indian Country and what role do tax revenues play in providing such services? The Department recognizes that Tribes provide a range of services to Indians and non-Indians doing business within their Indian Country. The Department seeks comments identifying the types of services offered, such as law enforcement, food sanitation and health inspections, transportation and other infrastructure, etc. The Department also seeks information on whether and to what extent Tribes are able to rely on tax revenues to provide such services. Dated: December 1, 2016. Lawrence S. Roberts, Principal Deputy Assistant Secretary--Indian Affairs. [FR Doc. 2016-29253 Filed 12-8-16; 8:45 am] BILLING CODE 4337-15-P
![Federal Register / Vol. 81, No. 237 / Friday, December 9, 2016 / Proposed Rules 89015
summary of relevant comments we but is unpaid at the death of that spouse Mail or hand delivery: Elizabeth K.
received, if any, and responses to them. or former spouse, the unpaid amount Appel, Director, Office of Regulatory
We will also include an explanation of may be paid in accordance with Affairs & Collaborative Action, Indian
how we will apply the new rule. § 234.31 of this chapter, pertaining to Affairs, U.S. Department of the Interior,
employee annuities unpaid at death. 1849 C St. NW., Mail Stop 3642–MIB,
Regulatory Procedures Washington, DC 20240.
* * * * *
Executive Order 12866, as Please see the SUPPLEMENTARY
Dated: December 6, 2016. INFORMATION section of this document
Supplemented by Executive Order
By Authority of the Board. for information on Tribal consultation
13563
Martha P. Rico, sessions.
The Board, with the concurrence of
Secretary to the Board. FOR FURTHER INFORMATION CONTACT:
the Office of Management and Budget,
[FR Doc. 2016–29496 Filed 12–8–16; 8:45 am] Elizabeth Appel, Director, Office of
has determined that this is not a
significant regulatory action under BILLING CODE P Regulatory Affairs and Collaborative
Executive Order 12866, as Action, Office of the Assistant
supplemented by Executive Order Secretary—Indian Affairs; telephone
13563. Therefore, no regulatory impact DEPARTMENT OF THE INTERIOR (202) 273–4680, elizabeth.appel@
analysis is required. bia.gov.
Bureau of Indian Affairs SUPPLEMENTARY INFORMATION:
Regulatory Flexibility Act
The Board certifies that this proposed 25 CFR Part 140 Public Comment
rule would not have a significant The Department is considering
[178A2100DD/AAKC001030/
economic impact on a substantial whether to propose an administrative
A0A501010.999900 253G]
number of small entities because it rule that would comprehensively
affects individuals only. Therefore, a RIN 1076–AF30 update 25 CFR part 140 (Licensed
regulatory flexibility analysis is not Indian Traders) in an effort to
required under the Regulatory Traders With Indians modernize the implementation of the
Flexibility Act, as amended. Indian Trader statutes consistent with
AGENCY: Bureau of Indian Affairs,
the Federal policies of Tribal self-
Paperwork Reduction Act Interior.
determination and self-governance. We
This Proposed Rule imposes no ACTION: Advance notice of proposed are interested in hearing from federally
reporting or recordkeeping requirements rulemaking; solicitation of comments. recognized tribes. We also welcome
subject to OMB clearance. comments and information from states
SUMMARY: The Department of the
List of Subjects in 20 CFR Part 295 and their agencies and from the public.
Interior (Department) is considering To be most useful, and most likely to
Railroad retirement. whether to propose an administrative inform decisions on the content of a
For the reasons set out in the rule that would comprehensively potential administrative rule, comments
preamble, the Railroad Retirement update 25 CFR part 140 (Licensed should:
Board proposes to amend title 20, Indian Traders) in an effort to —Be specific;
chapter II, subchapter B, part 295 of the modernize the implementation of the —Be substantive;
Code of Federal Regulations as follows: Indian Trader statutes consistent with —Explain the reasoning behind the
the Federal policies of Tribal self- comments; and
PART 295—PAYMENTS PURSUANT determination and self-governance. The —Address the issues outlined in the
TO COURT DECREE OR COURT- current regulations were promulgated in ANPRM.
APPROVED SETTLEMENT 1957 and have not been For the purpose of this ANPRM, we
comprehensively updated since 1965. are seeking input solely on questions
■ 1. The authority citation for part 295 The purpose of this advance notice of related to a potential administrative rule
continues to read as follows: proposed rulemaking (ANPRM) is to on whether and how the Department of
Authority: 45 U.S.C. 231f; 45 U.S.C. 231m. solicit public comments on whether and the Interior should update 25 CFR part
how the Department should update 25 140, including how the Indian Trader
§ 295.5 [Amended] CFR part 140, including how the Indian regulations might be updated to govern
■ 2. Amend § 295.5 to revise paragraph Trader regulations might be updated to who trades on Indian land in a manner
(d) to read as follows: govern who trades on Indian land and more consistent with Tribal self-
how the regulations can better promote governance and self-determination.
§ 295.5 Limitations.
Tribal self-determination regarding We are seeking comments solely on
* * * * * trade on Indian lands. In this ANPRM, following questions:
(d) Payees. Payment of an amount the Department also announces dates 1. Should the Federal government
awarded to a spouse or former spouse and locations for Tribal consultations address trade occurring in Indian
by a court decree or property settlement and public meetings to consider this Country through an updated 25 CFR
will be made only to the spouse or issue. part 140, and why?
former spouse except where the Board 2. Are there certain components of the
determines that another person shall be DATES: Comments must be submitted on existing rule that should be kept, and if
mstockstill on DSK3G9T082PROD with PROPOSALS
recognized to act on behalf of the spouse or before April 10, 2017. so, why?
or former spouse as provided in Part 266 ADDRESSES: You may submit comments 3. How can revisions to the existing
of the chapter, relating to incompetence. by any of the following methods: rule ensure that persons who conduct
Payment will not be made to the heirs, Federal rulemaking portal: http:// trade are reputable and that there are
legatees, creditors or assignees of a www.regulations.gov. The rule is listed mechanisms in place to address traders
spouse or former spouse, except that under the agency name ‘‘Bureau of who violate Federal or Tribal law?
where an amount is payable to a spouse Indian Affairs.’’ The rule has been 4. How do Tribes currently regulate
or former spouse pursuant to this part, assigned Docket ID: BIA–2016–0007. trade in Indian Country and how might
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![Federal Register / Vol. 81, No. 237 / Friday, December 9, 2016 / Proposed Rules 89017
Department requests information as to The Department has received Dated: December 1, 2016.
why this should be so. Additionally, the numerous proposals from various Tribes Lawrence S. Roberts,
Department seeks views and proposals pertaining to Indian Trader regulation. Principal Deputy Assistant Secretary—Indian
on what an entirely new proposed rule Many of these proposals suggest that Affairs.
may look like. For instance, if the trade regulated under part 140 should [FR Doc. 2016–29253 Filed 12–8–16; 8:45 am]
Department should no longer issue include not only commercial activities, BILLING CODE 4337–15–P
licenses, what do commenters envision but also mineral and energy
Federal involvement to be? development and any form of natural-
3. How can revisions to the existing resources extraction or agriculture. DEPARTMENT OF THE TREASURY
rule ensure that persons who conduct Currently, section 140.5(a)(1) of the
trade are reputable and that there are existing rule has the following Internal Revenue Service
mechanisms in place to address traders definitions:
who violate Federal or Tribal law? (5) Contract means any agreement 26 CFR Part 57
If there is a need to update 25 CFR made or under negotiation with any
Indian for the purchase, transportation [REG–134438–15]
part 140, we solicit information and
suggestions on how revisions to the or delivery of goods or supplies. RIN 1545–BN10
(6) Trading means buying, selling,
existing rule can ensure that there are
bartering, renting, leasing, permitting Health Insurance Providers Fee
reputable actors in Indian Country.
and any other transaction involving the
Further, the Department requests AGENCY: Internal Revenue Service (IRS),
acquisition of property or services.
information and suggestions on (7) Commercial trading means any Treasury.
revisions to the existing rule to ensure trading transaction where an employee ACTION: Notice of proposed rulemaking.
that violations of Federal or Tribal law engages in the business of buying or
are properly addressed. The Department selling services or items which he/she is SUMMARY: This document contains
acknowledges that many Tribes have trading. proposed regulations that would modify
comprehensive schemes in place the current definition of ‘‘net premiums
The Department seeks comments on
regulating traders conducting business written’’ for purposes of the fee imposed
whether the definitions of contract,
within their jurisdiction. by section 9010 of the Patient Protection
trading, and commercial trading should
4. How do Tribes currently regulate and Affordable Care Act, as amended.
be revised, or struck in their entirety,
trade in Indian Country, and how might The proposed regulations will affect
and why.
revisions to 25 CFR part 140 help Tribes Additionally, the current definitions persons engaged in the business of
regulate trade in Indian Country? do not define the type of trader providing health insurance for United
As mentioned, the Department conducting business with an Indian States health risks.
recognizes that many Tribes have Tribe. The draft proposals the DATES: Comments and requests for a
enacted comprehensive laws concerning Department has received recommend public hearing must be received by
economic activity occurring on Tribal that the revised rule apply to any person March 9, 2017.
lands and that many Tribal courts retain conducting trade in Indian Country, ADDRESSES: Send submissions to:
jurisdiction over Indian traders. For including non-Indians. The Department
example, the Department is aware that CC:PA:LPD:PR (REG–134438–15), room
solicits comments on whether an 5203, Internal Revenue Service, PO Box
some Tribes have required disclosure of updated part 140 should define who the
violations of business licenses and of 7604, Ben Franklin Station, Washington,
rule would apply to and whether or not DC 20044. Submissions may be hand-
enforcement actions taken by a Federal, this definition should broadly include
Tribal, or State entity for trade-related delivered Monday through Friday
any person conducting trade within between the hours of 8 a.m. and 4 p.m.
activity. Tribes have also required the Indian Country.
disclosure of any pending lawsuits to CC:PA:LPD:PR (REG–134438–15),
6. How might revisions to the Courier’s Desk, Internal Revenue
involving the person and the business, regulations promote economic viability
and disclosure of tax liens against the Service, 1111 Constitution Avenue NW,
and sustainability in Indian Country? Washington, DC 20224, or sent
business and other unsatisfied The Department is interested in
judgments. Other items that Tribes have electronically, via the Federal
receiving feedback on how revisions to eRulemaking portal at
required include a Federal employer the trade regulations could facilitate
identification number, a State www.regulations.gov (IRS REG–134438–
economic activity in Indian country and 15)
registration number, insurance or tribal economic self-sufficiency.
bonding information, copies of all 7. What services do Tribes currently FOR FURTHER INFORMATION CONTACT:
licenses (state, county, city or Tribal) provide to individuals or entities doing Concerning the proposed regulations,
currently held by the business, and business in Indian Country and what Rachel S. Smith, (202) 317–6855;
affiliation with any other businesses. role do tax revenues play in providing concerning submissions of comments
With this in mind, the Department such services? and request for a hearing, Regina
requests information on how Tribes The Department recognizes that Johnson, (202) 317–6901 (not toll-free
currently regulate trade within their Tribes provide a range of services to numbers).
jurisdiction. The Department requests Indians and non-Indians doing business SUPPLEMENTARY INFORMATION:
specific information and suggestions, within their Indian Country. The
mstockstill on DSK3G9T082PROD with PROPOSALS
including language on how the Federal Department seeks comments identifying Background
government can bolster those Tribes that the types of services offered, such as law Section 9010 of the Patient Protection
currently comprehensively regulate enforcement, food sanitation and health and Affordable Care Act (PPACA),
trade, as well as those Tribes that do not inspections, transportation and other Public Law 111–148 (124 Stat. 119
do so presently. infrastructure, etc. The Department also (2010)), as amended by section 10905 of
5. What types of trade should be seeks information on whether and to PPACA, and as further amended by
regulated and what types of traders what extent Tribes are able to rely on section 1406 of the Health Care and
should be subject to regulation? tax revenues to provide such services. Education Reconciliation Act of 2010,
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Document Created: 2018-02-14 09:03:44
Document Modified: 2018-02-14 09:03:44
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Advance notice of proposed rulemaking; solicitation of comments. | |
| Dates | Comments must be submitted on or before April 10, 2017. | |
| Contact | Elizabeth Appel, Director, Office of Regulatory Affairs and Collaborative Action, Office of the Assistant Secretary--Indian Affairs; telephone (202) 273-4680, [email protected] | |
| FR Citation | 81 FR 89015 | |
| RIN Number | 1076-AF30 |
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