Rights-of-Way on Indian Land; Bond Exemption
| Published date | 19 August 2019 |
| Citation | 84 FR 42806 |
| Record Number | 2019-17781 |
| Section | Rules and Regulations |
| Court | Indian Affairs Bureau |
Federal Register, Volume 84 Issue 160 (Monday, August 19, 2019)
[Federal Register Volume 84, Number 160 (Monday, August 19, 2019)]
[Rules and Regulations]
[Pages 42806-42808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17781]
[[Page 42806]]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 169
[190A2100DD/AAKC001030/A0A501010.999900 253G]
RIN 1076-AF20; 1076-AF37
Rights-of-Way on Indian Land; Bond Exemption
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule.
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SUMMARY: This final rule exempts Federal, State, Tribal, and local
governments from the requirement to obtain a bond, insurance, or
alternative form of security for a right-of-way across Indian land and
Bureau of Indian Affairs (BIA) land where such governments are
prohibited by law from obtaining security.
DATES: This rule is effective on September 18, 2019.
FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Director, Office of
Regulatory Affairs & Collaborative Action, (202) 273-4680;
[email protected].
SUPPLEMENTARY INFORMATION: On November 19, 2015, the Bureau of Indian
Affairs (BIA) finalized revisions to the regulations governing rights-
of-way on Indian land and BIA land at 25 CFR part 169. See 80 FR 72492.
The regulations became effective on April 21, 2016 under Regulation
Identifier Number (RIN) 1076-AF20. 81 FR 14976. The final regulations
established new requirements for bonding, insurance, or alternative
form of security to cover the annual rental, estimated damages,
operation and maintenance charges, and restoration. See 25 CFR
169.103(a). The regulations allow for waiver of this requirement on a
case-by-case basis. See 25 CFR 169.103(f).
Currently, a governmental entity applying for a right-of-way across
Indian land or BIA land must seek a waiver (and landowner consent for
the waiver) from the requirement to provide bonding, insurance, or
alternate security in those cases in which the entity is prohibited by
law from obtaining such bonding, insurance, or alternate security. On
July 23, 2018, the BIA published a proposed rule to eliminate the need
for governmental entities to seek a waiver for each instance by
exempting governmental entities from the requirement to obtain bonding,
insurance, or alternative form of security if they are prohibited by
law from doing so. See 83 FR 34802. The proposed rule would require
governmental entities to: (1) Provide a certification with their
application, with citation to applicable law, that they are prohibited
by law from providing security; and (2) notify landowners that they are
prohibited by law from providing security when they notify the Indian
landowners of their application under 25 CFR 169.107.
Comments and Responses on Proposed Rule
The public comment period on the proposed rule ended on September
21, 2018. During that time, the Department received one comment that
was relevant to the rulemaking. (To view all comments, search by Docket
Number ``BIA-2018-0003-0001'' in https://www.regulations.gov.) That
comment asked for further explanation on the reason for the rule
change, expressed concern with whether governmental entities could
contaminate the land, and asked whether the rule change gives
governments an unfair advantage. The following discussion addresses
each of these items.
Reason for Rule Change
The current version of part 169 requires applicants for a right-of-
way across Indian or BIA land to obtain bonding, insurance or
alternative form of security. Governmental entities sometimes need to
apply for rights-of-way across Indian or BIA land, but are unique in
that applicable laws often prohibit governmental entities from
obtaining bonding, insurance, or other security. The rule change
effectively streamlines a step in the process of obtaining a right-of-
way by eliminating the need for the governmental entity to seek a
waiver as long as the governmental entity provides a certification and
citation to applicable law stating they are prohibited from providing
security. The governmental entity must notify landowners as part of the
application that they are prohibited from providing security, so that
landowners may consider this as part of determining whether to consent
to the right-of-way. Providing this exemption in lieu of requiring
governmental entity applicants for rights-of-way to seek individual
waivers in each instance streamlines the process and provides
transparency for landowners, who may review the exemption as part of
the application in determining whether to consent to the right-of-way.
Environmental Contamination by Governmental Entities
The commenter pointed out that, in finalizing part 169, BIA stated
that the potential for environmental contamination was a reason for
imposing the bonding, insurance, or alternate security. Bonding,
insurance, or alternate security are some of several tools BIA has at
its disposal if a right-of-way grantee contaminates Indian or BIA land.
For grantees who are governmental entities that are prohibited by law
from providing bonding, insurance, or other security, the BIA may
pursue recourse through a variety of means ranging from negotiation to
legal action, as appropriate according to the circumstances.
Potential Advantage to Governmental Entities
The commenter expressed concern that eliminating the need for
governmental entities applying for a right-of-way across Indian land or
BIA land to obtain bonding, insurance, or other security under certain
circumstances somehow provides those entities an unfair advantage. Any
advantage would be in the entities' legal inability to comply with part
169's security requirement. The rule does not create that legal
inability; rather, the rule accounts for the inability by clarifying
what information the entities must provide in the alternative to
qualify for the exemption. The exemption requires documentation of
eligibility for the exemption (proof that the governmental entity
cannot legally comply with the security requirement) \1\ and landowner
consent. Any other grantee may seek an individual waiver from the
security requirement and the BIA is open to any other suggestions for
categories of grantees that have a sound basis for another exemption.
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\1\ For example, for Federal government entities, sufficient
documentation would be a citation to 31 U.S.C. 1301(a) and an
explanation that appropriated funds are not available for the
purchase of insurance.
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No changes to the proposed rule have been made as a result of the
above comments. Today's publication references both Regulation
Identifier Number (RIN) 1076-AF20 and 1076-AF37 because while the
proposed rule was inadvertently listed under RIN 1076-AF20, that RIN
was assigned to the final rule for 25 CFR part 169 that effective in
2016. The proposed rule published in 2018 and this final rule are
identified as RIN 1076-AF37 on the semi-annual regulatory agenda.
[[Page 42807]]
Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866)
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) at the Office of Management
and Budget (OMB) will review all significant rules. OIRA has determined
that this rule is not significant.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the Nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The E.O. directs agencies to consider regulatory approaches that reduce
burdens and maintain flexibility and freedom of choice for the public
where these approaches are relevant, feasible, and consistent with
regulatory objectives. E.O. 13563 emphasizes further that regulations
must be based on the best available science and that the rulemaking
process must allow for public participation and an open exchange of
ideas. We have developed this rule in a manner consistent with these
requirements.
B. Regulatory Flexibility Act
This rule 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.). This rule does not change current funding
requirements and would not impose any economic effects on small
governmental entities.
C. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
(a) Will not have an annual effect on the economy of $100 million
or more.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
(c) Will not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of the
U.S.-based enterprises to compete with foreign-based enterprises.
This rule acknowledges that some governmental entities are legally
prohibited from complying with the regulatory requirement for providing
security and merely establishes a procedure for documenting and
notifying that the entities are legally prohibited from complying with
the security requirement.
D. Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
Tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or Tribal governments or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1531 et seq.) is not required. This rule does uniquely affect
those governmental entities that are prohibited by law from complying
with a regulatory requirement to provide security for a right-of-way
across Indian or BIA land; however, the purpose of the rule is to
account for that legal prohibition. The rule accounts for the legal
prohibition in a manner that allows those governmental entities a
transparent process for applying for a right-of-way across Indian or
BIA land.
E. Takings (E.O. 12630)
This rule does not effect a taking of private property or otherwise
have taking implications under E.O. 12630. A takings implication
assessment is not required.
F. Federalism (E.O. 13132)
Under the criteria in section 1 of E.O. 13132, this rule does not
have sufficient federalism implications to warrant the preparation of a
federalism summary impact statement. A federalism summary impact
statement is not required.
G. Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of E.O. 12988.
Specifically, this rule: (a) Meets the criteria of section 3(a)
requiring that all regulations be reviewed to eliminate errors and
ambiguity and be written to minimize litigation; and (b) Meets the
criteria of section 3(b)(2) requiring that all regulations be written
in clear language and contain clear legal standards.
H. Consultation With Indian Tribes (E.O. 13175)
The Department of the Interior strives to strengthen its
government-to-government relationship with Indian tribes through a
commitment to consultation with Indian tribes and recognition of their
right to self-governance and tribal sovereignty. We have evaluated this
rule under the Department's consultation policy and under the criteria
in E.O. 13175 and have determined there are no substantial direct
effects on federally recognized Indian Tribes that will result from
this rulemaking because the rule addresses an inconsistency that may
have otherwise prevented governments from obtaining rights-of-way on
Indian land.
I. Paperwork Reduction Act
The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq.,
prohibits a Federal agency from conducting or sponsoring a collection
of information that requires OMB approval, unless such approval has
been obtained and the collection request displays a currently valid OMB
control number. Nor is any person required to respond to an information
collection request that has not complied with the PRA. In accordance
with 44 U.S.C. 3507(d), the information collections in 25 CFR part 169
are authorized by OMB Control Number 1076-0181, Rights-of-Way on Indian
Land, which expires 10/31/2019. The requirements in this rule to
provide a legal citation and notice is not expected to have a
quantifiable effect on the hour burden estimate for the information
collection, but BIA will review whether its current estimates are
affected by this change at the next renewal.
A Federal agency may not conduct or sponsor, and you are not
required to respond to, a collection of information unless the form or
regulation requesting the information displays a currently valid OMB
Control Number.
J. National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 (NEPA) is not
required because this is an administrative and procedural regulation.
(For further information see 43 CFR 46.210(i)). We have also determined
that the rule does not involve any of the extraordinary circumstances
listed in 43 CFR 46.215 that would require further analysis under NEPA.
K. Effects on the Energy Supply (E.O. 13211)
This rule is not a significant energy action under the definition
in E.O. 13211. A Statement of Energy Effects is not required.
L. E.O. 13771: Reducing Regulation and Controlling Regulatory Costs
This action is not an E.O. 13771 regulatory action because it
imposes no more than de minimis costs.
[[Page 42808]]
List of Subjects in 25 CFR Part 169
Indians--lands, Reporting and recordkeeping requirements, Rights-
of-way.
For the reasons stated in the preamble, the Department of the
Interior, Bureau of Indian Affairs, amends 25 CFR part 169 as follows:
PART 169--RIGHTS-OF-WAY OVER INDIAN LAND
0
1. The authority citation for part 169 continues to read as follows:
Authority: 5 U.S.C. 301; 25 U.S.C. 323-328; 25 U.S.C. 2201 et
seq.
0
2. Amend Sec. 169.103 by adding paragraph (k) to read as follows:
Sec. 169.103 What bonds, insurance, or other security must accompany
the application?
* * * * *
(k) The requirements of this section do not apply to Federal,
State, Tribal, or local governments who are prohibited by law from
providing a bond, insurance, or other security. Federal, State, Tribal,
or local governments seeking this exemption must include with their
application a certification, including a citation to applicable law,
that they are prohibited by law from providing security. Federal,
State, Tribal, or local governments must also notify landowners that
they are prohibited by law from providing security when they notify the
Indian landowners of their application under Sec. 169.107.
Dated: April 26, 2019.
Tara Sweeney,
Assistant Secretary--Indian Affairs.
Editorial note: This document was received for publication by
the Office of the Federal Register on August 14, 2019.
[FR Doc. 2019-17781 Filed 8-16-19; 8:45 am]
BILLING CODE 4337-15-P
