Tribal Energy Resource Agreements
| Published date | 02 July 2019 |
| Citation | 84 FR 31529 |
| Record Number | 2019-13265 |
| Section | Proposed rules |
| Court | Indian Affairs Bureau |
Federal Register, Volume 84 Issue 127 (Tuesday, July 2, 2019)
[Federal Register Volume 84, Number 127 (Tuesday, July 2, 2019)]
[Proposed Rules]
[Pages 31529-31538]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13265]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 224
RIN 1076-AF47
[192D0102DR/DS5A300000/DR.5A311.IA000118]
Tribal Energy Resource Agreements
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Proposed rule.
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SUMMARY: The Bureau of Indian Affairs (BIA) proposes to amend its
regulations governing Tribal Energy Resource Agreements (TERAs) between
the Secretary of the Interior (Secretary) and Indian Tribes. Tribes, at
their discretion, may apply for TERAs. TERAs allow Tribes to enter into
leases, business agreements, and rights-of-way for energy resource
development on Tribal land without the Secretary's review and approval.
This proposed rule would update the regulations to incorporate changes
recently made by Congress to the Act authorizing TERAs. This proposed
rule would also establish how Tribal Energy Development Organizations
(TEDOs) may obtain certification, as an alternative to a TERA.
DATES: Please submit comments by September 3, 2019. Please see ``III.
Tribal Consultation'' of this preamble for dates of Tribal consultation
sessions on this proposed rule.
ADDRESSES: You may send comments, identified by number 1076-AF47, by
any of the following methods:
--Federal rulemaking portal: http://www.regulations.gov. Follow the
instructions for sending comments.
--Email: [email protected]. Include the number 1076-AF47 in the
subject line of the message.
--Mail or hand-delivery: Elizabeth Appel, Office of Regulatory Affairs
& Collaborative Action, U.S. Department of the Interior, 1849 C Street
NW, MIB-4660-MS, Washington, DC 20240. Include the number 1076-AF47 in
the subject line of the message.
Instructions: All submissions received must include ``Bureau of
Indian Affairs'' and ``1076-AF47.'' All comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov. We cannot ensure
that comments received after the close of the comment period (see
DATES) will be included in the docket for this rulemaking and
considered.
Comments on the information collections contained in this proposed
regulation (see ``Paperwork Reduction Act'' section, below) are
separate from those on the substance of the rule. Send comments on the
information collection burden to OMB by facsimile to (202) 395-5806 or
email to the OMB Desk Officer for the Department of the Interior at
[email protected]. Please send a copy of your comments to the
person listed in the FOR FURTHER INFORMATION CONTACT section of this
notice.
Please see ``III. Tribal Consultation'' of this preamble for
addresses of Tribal consultation sessions on this proposed rule.
FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Director, Office of
Regulatory Affairs & Collaborative Action, (202) 273-4680;
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Summary of This Proposed Rule
III. Tribal Consultation
IV. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866, 13563, and 13771)
B. Regulatory Flexibility Act
C. Small Business Regulatory Enforcement Fairness Act
D. Unfunded Mandates Reform Act
E. Takings (E.O. 12630)
F. Federalism (E.O. 13132)
G. Civil Justice Reform (E.O. 12988)
[[Page 31530]]
H. Consultation With Indian Tribes (E.O. 13175)
I. Paperwork Reduction Act
J. National Environmental Policy Act
K. Effects on the Energy Supply (E.O. 13211)
L. Clarity of This Regulation
M. Public Availability of Comments
I. Background
The Secretary is issuing these regulations under the authority of
the Indian Tribal Energy Development and Self-Determination Act of 2005
as amended by the Indian Tribal Energy Development and Self-
Determination Act Amendments of 2017, 25 U.S.C. 3501-3504, Public Law
115-325, and 25 U.S.C. 2 and 9.
In 2005, Congress passed a law authorizing Tribes, at their
discretion, to apply for and enter into TERAs with the Secretary. See
the Indian Tribal Energy Development and Self-Determination Act of
2005, Title XXVI, Section 2604 of the Energy Policy Act (Pub. L. 109-
58). Upon Secretarial approval of a TERA, the Tribe may enter into
energy-related leases, business agreements, and rights-of-way on Tribal
lands without the Secretary's review and approval. The BIA finalized
regulations to implement this authority in 2008. See 73 FR 12807 (March
10, 2008).
TERAs further the Federal Government's policy of providing enhanced
self-determination and economic development opportunities for Indian
Tribes by promoting Tribal oversight and management of energy resource
development on tribal lands. TERAs provide another avenue, in addition
to the Indian Minerals Development Act and the Indian Mineral Leasing
Act, under which Tribes may develop their mineral resources. TERAs also
support the national energy policy of increasing utilization of
domestic energy resources.
Congress updated provisions authorizing TERAs in the Indian Tribal
Energy Development and Self-Determination Act Amendments of 2017. The
Act's amendments update the procedures and conditions for the
Secretary's approval of TERAs, authorize Tribes to enter into leases
and business agreements that pool a tribe's energy resources with other
energy resources and, among other things, establishes that energy-
related leases, business agreements, and rights-of-way between a Tribe
and certified TEDO do not require the Secretary's approval.
II. Summary of This Proposed Rule
This proposed rule would address the requirements of the Indian
Tribal Energy Development and Self-Determination Act Amendments of 2017
(2017 Amendments). Wherever possible, BIA has attempted to interpret
these statutory changes in a manner that will impose the least burden
on Tribes. As described in more detail, below, the proposed rule would:
(1) Reduce the information Tribes must provide in TERA applications;
(2) impose timelines on the Secretary for review and approval of TERAs;
(3) limit the grounds on which the Secretary may disapprove a TERA and
require an explanation of each of the grounds; (4) establish a process
for amending a TERA; (5) narrow who may be considered an interested
party and procedures for petitioning and for the Secretary's handling
of interested party petitions; (6) address how BIA will provide
unexpended funds to Tribes; (7) establish a process and criteria for
certifying TEDOs ; and (8) make various technical nomenclature and
other technical edits.
A. Information Required in Applications for TERAs
The 2017 Amendments deleted a requirement for the Secretary to
consider the capacity (experience in managing natural, financial and
administrative resources) of a Tribal applicant to carry out a TERA.
See Section 103(a) of the 2017 Amendments. To reflect this deletion,
the proposed rule would delete several TERA application items and
several required TERA provisions.
B. Timelines
The proposed rule would incorporate timelines established by the
2017 Amendments to ensure that the TERA application process moves
forward in a timely manner. Specifically, the proposed rule would:
Require the Secretary to do the following within 30 days
of a Tribe submitting a TERA:
o Notify the Indian tribe as to whether the agreement is complete
or incomplete;
o If the agreement is incomplete, notify the Indian tribe of what
information or documentation is needed to complete the submission; and
o Identify and notify the Indian tribe of the financial assistance,
if any, to be provided by the Secretary to the Indian tribe to assist
in the implementation of the tribal energy resource agreement,
including the environmental review of individual projects.
Establish that a TERA takes effect 271 days after the
Secretary receives the TERA, unless the Secretary disapproves it.
Establish that a revised TERA takes effect 91 days after
the Secretary receives the TERA, unless the Secretary disapproves it.
The proposed rule would also incorporate statutory requirements that
the TERA remains in effect to the extent any provision is consistent
with applicable Federal law (including regulations), unless the
Secretary reassumes the authority by necessity to protect the physical
trust asset or the Tribe voluntarily rescinds the TERA pursuant to the
regulations.
C. Grounds for Disapproval of a TERA
The proposed rule would promote certainty in the TERA application
process by limiting the grounds upon which the Secretary may disapprove
a TERA. Specifically, the proposed rule would establish that the
Secretary may disapprove a TERA only if:
The Tribe does not meet the definition of a ``qualified
Tribe;''
A provision of the TERA violates applicable Federal law,
regulations, or a treaty; or
The TERA fails to include certain provisions.
In addition, the proposed rule would provide that, where the Secretary
does disapprove a TERA application, the Secretary must provide the
Tribe with a detailed, written explanation of each reason for a
disapproval, specify the revisions or changes to the TERA necessary to
address each reason, and offer the Tribe an opportunity to revise and
resubmit the TERA.
D. Amendments to TERAs
The proposed rule provides more flexibility to the Tribe, in that
it would establish a process to amend an approved TERA to assume
authority for approving leases, business agreements, or rights-of-way
for development of another energy resource that is not already covered,
without requiring the Tribe to apply for a new TERA.
E. Petitions by Interested Parties
The proposed rule would update the existing current regulatory
process for ensuring that the public is informed of, and has reasonable
opportunity to comment on, environmental impacts by:
Limiting who is considered an interested party to those
able to demonstrate their interest with substantial evidence;
Requiring exhaustion of any remedies provided under Tribal
law before an interested party may submit to the Secretary a petition
to review Tribal compliance with the TERA;
Requiring the Secretary to determine whether the
petitioner is an interested party and whether the Tribe
[[Page 31531]]
is not in compliance with the TERA as alleged in the petition;
Limiting the Secretary to taking only such action as the
Secretary determines is necessary to address the noncompliance claims;
and
Requiring the Secretary to dismiss a petition if the Tribe
and interested party who filed the petition reach a resolution of the
petition's claims.
F. Unexpended Amounts
The proposed rule would broadly set out the manner in which the
Secretary will provide to a requesting Tribe the amounts that the
Secretary would have spent carrying out activities the Tribe carries
out in the TERA (unexpended amounts), and will provide the Tribe with
an accounting of those unexpended amounts.
G. Certification of TEDOs
The proposed rule would establish a process for the Tribal Energy
Development Organizations (TEDOs) to obtain certification from the
Secretary so that they may enter into leases, business agreements, and
rights-of-way with Tribes on Tribal land without Secretarial approval.
See Section 103(b) of the 2017 Amendments.
H. Nomenclature and Technical Changes
The proposed rule would also make changes to:
Capitalize ``Tribe'' consistent with the Government
Printing Office Manual;
Add reference to the annual list of federally recognized
Tribes in the definition of ``Tribe;''
Replace ``Director'' of the Office of Indian Energy &
Economic Development (IEED) with ``Secretary'' to indicate the
Secretary of the Interior and maintain delegation flexibility, except
where necessary to provide for administrative appeal options;
Add an address for receipt of TERA applications and
requests for TEDO certifications.
I. Table of Proposed Changes
The following table summarizes revisions to part 224, by showing
where the substance of each section of the current rule is in the
proposed rule and describing the changes. The table does include
sections for which there was no substantive change, including those
sections where the only changes were to capitalize ``Tribe'' or replace
``Director'' with ``Secretary.''
----------------------------------------------------------------------------------------------------------------
Proposed 25 Description of proposed
Current 25 CFR Sec. Current provision CFR Sec. change
----------------------------------------------------------------------------------------------------------------
224.30............................... What definitions apply to 224.30 In definition of ``Act,''
this part?. adds reference to the 2017
Amendments; adds new
definitions for ``qualified
Tribe'' and ``Tribal energy
development organization''
and updates the definition
of ``Tribe'' to refer to the
list of federally recognized
Tribes.
224.53............................... What must an application for 224.53 Deletes provisions require
a TERA contain?. descriptions of the Tribe's
expertise and capabilities
and adds a provision
requiring documentation that
the tribe is a ``qualified
Tribe''
224.54............................... How must a tribe submit an 224.54 Adds an email and physical
application?. address for submitting a
TERA application.
224.56............................... What is the effect of the 224.56 Adds that the TERA takes
Director's receipt of a effect on the 271st day
tribe's complete after the Secretary receives
application? a complete application,
unless the Tribe consents to
an extension.
224.57............................... What must the Director do 224.57 Adds that the Secretary must
upon receipt of an identify in the written
application? notice any financial
assistance available from
the Secretary to assist in
implementing the TERA.
224.63............................... What provisions must a TERA 224.63 Deletes provisions requiring
contain?. that the environmental
review process identifies
and evaluates all
significant environmental
effects and proposed
mitigation measures and
provisions requiring
mechanisms for obtaining
qualifications of third
parties and for securing
technical information. Adds
provision for the Tribe to
identify functions the Tribe
intends to conduct to
authorize operational or
development activities.
224.64............................... How may a tribe assume 224.64 Adds provisions allowing
management of development of amendments to TERAs. Deletes
different types of energy provision requiring
resources? application for a new TERA
and determination of the
Tribe's capacity.
224.65............................... How may a tribe assume 224.65 Deletes provision that the
additional activities under Secretary will determine
a TERA? whether the Tribe has
sufficient capacity.
224.71............................... What standards will the 224.71 Revises to provide that the
Secretary use to decide to Secretary must approve the
approve a final proposed TERA unless the Tribe is not
TERA? a qualified Tribe, a TERA
provision violates law or a
treaty applicable to the
Tribe, or the TERA fails to
include required provisions.
224.72............................... How will the Secretary 224.72 Deletes the text of this
determine whether a tribe section and reserves the
has demonstrated sufficient section number to maintain
capacity? numbering.
224.73............................... How will the scope of energy 224.73 Deletes the text of this
resource development affect section and reserves the
the Secretary's section number to maintain
determination of the tribe's numbering.
capacity?
224.74............................... When must the Secretary 224.74 Adds that if the Secretary
approve or disapprove a fails to approve or
final proposed TERA? disapprove a final proposed
TERA, the TERA takes effect
on the 271st day after
receipt.
[[Page 31532]]
224.75............................... What must the Secretary do 224.75 Adds that the Secretary must
upon approval or disapproval provide a detailed, written
of a final proposed TERA? explanation of each reason
for the disapproval, the
changes required to address
each reason, and the
opportunity to revise and
resubmit the TERA.
224.76............................... Upon notification of 224.76 Adds that if the Secretary
disapproval, may a tribe re- fails to approve or
submit a revised final disapprove a revised final
proposed TERA? proposed TERA, it takes
effect on the 91st day after
receipt.
224.78 New section to address how
long a TERA remains in
effect. Adds that a TERA
remains in effect until the
Secretary reassumes
activities under Subpart G
or the Tribe rescinds the
TERA under Subpart H.
224.79 New section to address how
the Secretary will make non-
expended amounts available
to the Tribe.
224.80............................... Under what authority will a 224.80 Clarifies that the Tribe will
tribe perform activities for perform activities under
energy resource development? ``Federal'' authorities
provided in the approved
TERA.
224.84............................... When may a tribe grant a 224.84 Revises this section to
right-of-way?. clarify that the right-of-
way may serve any of the
listed purposes.
224.85............................... When may a tribe enter into a 224.85 Adds additional purposes,
lease or business agreement? listed in the 2017
Amendments, for which the
Tribe may enter into a lease
or business agreement.
224.101.............................. Who is an interested party?.. 224.101 Clarifies that the Secretary
must determine that the
person or entity has
demonstrated their interest
with substantial evidence.
224.107.............................. What must a petitioner do 224.107 Clarifies that the petitioner
before filing a petition must have exhausted all
with the Secretary? tribal remedies available
under laws, regulations, or
procedures of the Tribe.
224.115.............................. When in the petition process 224.115 Adds that the Secretary must
must the Director make a threshold
investigate a tribe's determination that the
compliance with a TERA? petitioner is an interested
party.
224.116.............................. What is the time period in 224.116 Adds that the Secretary must
which the Director must determine whether the
investigate a tribe's petitioner is an interested
compliance with a TERA? party and, if so, that the
Secretary must determine
whether the Tribe is out of
compliance with the TERA for
the reason alleged in the
petition.
224.119.............................. What must the Director do 224.119 Adds that the Secretary must
when making a decision on a limit findings and
petition? conclusions to the claims
made in the petition, and
that the Secretary will
dismiss a petition if the
interested party and Tribe
have reached a resolution.
224.120.............................. What action may the Director 224.120 Limits the Secretary to
take to ensure compliance taking such action as
with a TERA? necessary to address the
noncompliance identified in
petition.
224.200 New section to address the
purpose of Tribal energy
development organization
(TEDOs) as an alternative to
a TERA.
224.201 New section to address what
an application for
certification as a TEDO must
include.
224.202 New section to establish an
email and physical address
for submission of an
application for
certification.
224.203 New section to address that
the Secretary will approve
or disapprove an application
for certification within 90
days.
224.204 New section to establish the
criteria by which a
Secretary will determine
whether to certify a TEDO.
224.205 New section to establish what
the Secretary will do upon
approving a certification.
224.206 New section to establish the
effect of certification to
allow a Tribe and the TEDO
to enter into leases,
business agreements, and
rights-of-way without
Secretarial approval and
without a TERA.
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[[Page 31533]]
III. Tribal Consultation
We will be hosting several Tribal consultation sessions at targeted
locations throughout the country to discuss this proposed rule. The
dates and locations for the consultation sessions are as follows:
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Date Time Location Venue
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Monday, June 24, 2019, (Listening 1 p.m.-4 p.m., (Local Sparks, NV............ (In association with
session). Time). National Congress of
American Indians Mid-Year
Conference) Nugget Casino
& Resort, 1100 Nugget
Ave., Sparks, NV 89431,
Room: Southern Pacific B.
Thursday, July 11, 2019............ 9 a.m.-12 p.m. (Local Tulsa, Oklahoma....... Hard Rock Hotel & Casino,
time). 777 W. Cherokee Street,
Catoosa, OK 74015.
Tuesday, July 16, 2019............. 9 a.m.-12 p.m. (Local Ignacio, Colorado..... Sky Ute Casino Resort,
time). 14324 Highway 172 North,
Ignacio, CO 81137.
Thursday, July 18, 2019............ 9 a.m.-12 p.m. (Local New Town, North Dakota MHA Nation TERO/Energy
time). Building, 305 4th Avenue,
New Town, ND 58763.
Tuesday, July 23, 2019............. 1 p.m.-4 p.m. Eastern Teleconference........ Call-in number: 888-810-
Time. 4791, Passcode: 8466506.
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IV. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866, 13563, and 13771)
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. This rule is also part of the Department's commitment
under the Executive Order to reduce the number and burden of
regulations.
E.O. 13771 of January 30, 2017, directs Federal agencies to reduce
the regulatory burden on regulated entities and control regulatory
costs. OIRA has determined that this rule is deregulatory because the
updates will reduce the requirements and annual burden hours imposed on
Tribes seeking to enter into a TERA.
B. Regulatory Flexibility Act
The Department of the Interior certifies that 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.).
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) Does not have an annual effect on the economy of $100 million
or more because it merely codifies eligibility requirements that were
already established by past practice and a Federal District Court
ruling.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions because this rule affects only
individuals' eligibility for certain education contracts.
(c) 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
because this rule affects agreements between Tribes and the Department
to allow Tribes to authorize individual leases, business agreements,
and rights-of-way on Tribal land
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 monetarily 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.
E. Takings (E.O. 12630)
This rule does not affect a taking of private property or otherwise
have taking implications under Executive Order 12630 because this rule
does not affect individual property rights protected by the Fifth
Amendment or involve a compensable ``taking.'' A takings implication
assessment is not required.
F. Federalism (E.O. 13132)
Under the criteria in section 1 of Executive Order 13132, this rule
does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement because the rule
affects only agreements entered into by Tribes and the Department. A
federalism summary impact statement is not required.
G. Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of Executive Order 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 Executive Order 13175 and have determined that it has substantial
direct effects on federally recognized Indian Tribes because the rule
affects the criteria, process, and effectiveness of agreements Tribes
may
[[Page 31534]]
enter into with the Department of the Interior to develop energy
resources. The Department is hosting consultation sessions with Tribes
(see ``III. Tribal Consultation'' above) and will be individually
notifying each federally recognized Tribe of these opportunities to
consult.
I. Paperwork Reduction Act
OMB Control No. 1076-0167 currently authorizes the collections of
information contained in 25 CFR part 224, with an expiration of January
31, 2020. With this rulemaking, we are seeking to renew this
information collection. The current authorization totaling an estimated
3,968 annual burden hours. If this proposed rule is finalized, the
annual burden hours will decrease by an estimated 900 hours. This
decrease is due to: (1) A decrease in the information requested as part
of the TERA application process in Sec. Sec. 224.53 and 224.63; and
(2) the streamlined process for seeking an expansion of the scope of an
existing TERA to cover additional Tribal land, energy resources, or
categories of energy-related leases, business agreements, or rights-of-
way in Sec. 224.64. This change would require a revision to an
approved information collection under the Paperwork Reduction Act
(PRA), 44 U.S.C. 3501 et seq. for which the Department is requesting
OMB approval.
OMB Control Number: 1076-0167.
Title: Tribal Energy Resource Agreements, 25 CFR 224.
Brief Description of Collection: Submission of this information is
required for Federally Recognized Indian Tribes to apply for,
implement, reassume, or rescind a TERA that has been entered into in
accordance with 25 U.S.C. 3501 et. seq., and 25 CFR 224. This
collection also requires the Tribe to notify the public of certain
actions and allows a petition from the public to be submitted to the
Secretary of the Interior to inform of possible noncompliance with a
TERA.
Type of Review: Revision of a currently approved collection.
Respondents: Federally recognized Indian Tribes and the public.
Number of Respondents: 1 on average (each year).
Number of Responses: 11 on average (each year).
Frequency of Response: On occasion.
Estimated Time per Response: Varies from 32 hours to 540 hours.
Estimated Total Annual Hour Burden: 3,068 hours.
Estimated Total Non-Hour Cost: $18,100
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 Executive Order 13211. A Statement of Energy Effects is not
required.
L. Clarity of This Regulation
We are required by Executive Orders 12866 (section 1(b)(12)), and
12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and,
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you believe lists or tables would be
useful, etc.
M. Public Availability of Comments
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
List of Subjects in 25 CFR Part 224
Agreement, Appeals, Application, Business Agreements, Energy
Development, Interested Party, Lease, Record keeping requirements,
Reporting requirements, Right-of-Way, Tribal Energy Resource
Agreements, Tribal capacity, Tribal lands, Trust, Trust asset.
For the reasons stated in the preamble, the Department of the
Interior, Bureau of Indian Affairs, proposes to amend part 224 in Title
25 of the Code of Federal Regulations as follows:
PART 224--TRIBAL ENERGY RESOURCE AGREEMENTS UNDER THE INDIAN TRIBAL
ENERGY DEVELOPMENT AND SELF DETERMINATION ACT
0
1. Revise the authority citation for part 224 to read as follows:
Authority: 25 U.S.C. 2 and 9; 25 U.S.C. 3501-3504; Pub. L. 109-
58; Pub. L. 115-325
0
2. In part 224:
0
a. Throughout the part, remove the words ``tribe'', ``tribe's'',
``tribes'', and ``tribal'', wherever they appear, and add in their
place the words ``Tribe'', ``Tribe's'', ``Tribes'', and ``Tribal''.
0
b. In subparts B through H, remove the words ``Director'' and
``Director's'' and add in their place the words ``Secretary'' and
``Secretary's'', respectively, wherever they appear.
0
4. Amend Sec. 224.30 by:
0
a. Revising the definitions of ``Act'', ``Decision Deadline'', and
``Designated Tribal Official'';
0
b. Adding in alphabetical order definitions for ``Qualified Tribe''
and ``Tribal energy development organization''; and
0
c. Revising the definition of ``Tribe''.
The revisions and additions read as follows:
Sec. 224.30 What definitions apply to this part?
Act means the Indian Tribal Energy Development and Self-
Determination Act of 2005, as promulgated in Title V of the Energy
Policy Act of 2005, Public Law 109-58, 25 U.S.C. 3501-3504, and as
amended by the Indian Tribal Energy Development and Self-Determination
Act Amendments of 2017, Public Law 115-325.
* * * * *
Decision Deadline means the 120-day period within which the
Secretary will make a decision about a petition submitted by an
interested party under subpart E. The Secretary may extend this period
for up to 120 days.
* * * * *
Designated Tribal Official means the official designated in a
Tribe's pre-application consultation request,
[[Page 31535]]
application, or agreement to assist in scheduling consultations or to
receive communications from the Secretary to the Tribe regarding the
status of a TERA or activities under a TERA.
* * * * *
Qualified Tribe means a Tribe with Tribal land that has--
(1) For a period of not less than 3 consecutive years ending on the
date on which the Tribe submits the application, carried out a contract
or compact relating to the management of tribal land or natural
resources under title I or IV of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 5301 et seq.) without material
audit exception (or without any material audit exceptions that were not
corrected within the 3-year period); or
(2) Substantial experience in the administration, review, or
evaluation of energy resource leases or agreements or has otherwise
substantially participated in the administration, management, or
development of energy resources located on the tribal land of the
Indian Tribe.
* * * * *
Tribal energy development organization or TEDO means:
(1) Any enterprise, partnership, consortium, corporation, or other
type of business organization that is engaged in the development of
energy resources and is wholly owned by a Tribe, including but not
limited to an organization incorporated under section 17 of the Indian
Reorganization Act, 25 U.S.C. 5124 or section 3 of the Oklahoma Indian
Welfare Act, 49 Stat, 1967, chapter 831; and
(2) Any organization of two or more entities, at least one of which
is a Tribe, that has the written consent of the governing bodies of all
Tribes participating in the organization, to apply for a grant, loan,
or other assistance under 25 U.S.C. 2602 or to enter into a lease or
business agreement with, or acquire a right-of-way from, a Tribe under
25 U.S.C. 2604(a)(2)(A)(ii) or (b)(2)(b).
* * * * *
Tribe means any Indian Tribe, band, nation, or other organized
group or community that is recognized as eligible for the special
programs and services provided by the United States to Indians because
of their status as Indians, except a Native Corporation as defined in
the Alaska Native Claims Settlement Act, 43 U.S.C. 1602, as evidenced
by inclusion of the tribe on the list of recognized tribes published by
the Secretary under 25 U.S.C. 5131.
Sec. 224.51 [Amended]
0
5. In Sec. 224.51, in paragraph (a), remove the words ``Office of
Indian Energy and Economic Development''.
0
6. Amend Sec. 224.53 by:
0
a. Removing paragraphs (a)(7), (8), (10);
0
b. Adding a new paragraph (a)(7);
0
c. Redesignating paragraph (a)(9) as (a)(8) and removing the words
``paragraph (e)'' and adding the words ``paragraph (d)'' in their
place;
0
d. Redesignating paragraphs (a)(11) and (12) as paragraphs (a)(9) and
(10), respectively.
0
e. Removing paragraphs (d) and (f);
0
f. Redesignating paragraph (e) as paragraph (d) and removing the words
``paragraph (a)(9)'' and adding the words ``paragraph (a)(8)'' in their
place;
0
g. Removing the phrase ``in sufficient detail for the Secretary to
determine the Tribe's capacity to administer and manage the regulatory
activity(ies)'' in newly redesignated paragraph (d)(1).
The revision reads as follows:
Sec. 224.53 What must an application for a TERA contain?
(a) * * *
(7) Documentation that the Tribe meets the definition of
``qualified Tribe'' in Sec. 224.30;
* * * * *
0
7. Revise Sec. 224.54 to read as follows:
Sec. 224.54 How must a Tribe submit an application?
A Tribe must submit an application and all supporting documents in
written and electronic forms to the Secretary at 1849 C Street NW,
Washington, DC 20240, and [email protected].
0
8. Revise Sec. 224.56 to read as follows:
Sec. 224.56 What is the effect of the Secretary's receipt of a
qualified Tribe's complete application?
The Secretary's receipt of a qualified Tribe's complete application
begins a 270-day statutorily mandated period during which the Secretary
must approve or disapprove a proposed TERA. With the consent of the
Tribe, the Secretary may extend the 270-day period for making a
decision. The TERA takes effect upon the 271st day after the
Secretary's receipt of a complete application from a qualified Tribe,
unless the Secretary approves the TERA to take effect on an earlier
date, the Tribe consents to extending the 270-day period, or the
Secretary disapproves the application before that date.
0
9. Amend Sec. 224.57 by:
0
a. Redesignating paragraph (a)(3)(i)(B) as paragraph (a)(3)(i)(C); and
0
b. Adding a new paragraph (a)(3)(i)(B).
The additions read as follows:
Sec. 224.57 What must the Secretary do upon receipt of an
application?
(a) * * *
(3) * * *
(i) * * *
(B) Identify in the written notice any financial assistance
available from the Secretary to assist in implementing the TERA,
including environmental review of individual projects; and
* * * * *
0
10. Amend Sec. 224.63 by:
0
a. Removing paragraphs (c)(1) and (2);
0
b. Redesignating paragraphs (c)(3) through (6) as (c)(1) through (4);
0
c. Removing paragraphs (d)(1) and (5);
0
d. Redesignating paragraphs (d)(2) through (4) as paragraphs (d)(1)
through (3);
0
e. Redesignating paragraphs (d)(6) through (14) as paragraphs (d)(4)
through (12); and
0
f. Adding paragraph (m).
The addition reads as follows:
Sec. 224.63 What provisions must a TERA contain?
* * * * *
(m) At the option of the Tribe, identify which functions, if any,
the Tribe intends to conduct to authorize any operational or
development activities pursuant to a lease, business agreement, or
right-of-way approved by the Tribe.
0
11. Revise Sec. 224.64 to read as follows:
Sec. 224.64 How may a Tribe assume management of development of
different types of energy resources?
(a) In order for a Tribe to assume authority for approving leases,
business agreements, and rights-of-way for the development of another
energy resource that is not included in the TERA, a Tribe must submit
to the Secretary:
(1) An amendment to the TERA that specifies and describes the
additional Tribal land, energy resources, or categories of energy-
related leases, business agreements, or rights-of-way that the Tribe
intends to include in the TERA; and
(2) A copy of the resolution or formal action of the Tribal
governing body, or Tribal governing bodies if the land is held for the
benefit of more than one Tribe, that approves submission of the TERA
amendment.
(b) Submission of the documents in paragraph (a) of this section
will trigger the public notice and opportunity for comment consistent
with Sec. 224.67.
(c) The Secretary will process the amendment in accordance with
Sec. Sec. 224.67 through 224.78.
(d) Each Tribal governing body that is party to the TERA must sign
the TERA amendment upon approval.
[[Page 31536]]
Sec. 224.65 [Amended]
0
12. In Sec. 224.65, remove the last sentence.
0
13. Revise Sec. 224.71 to read as follows:
Sec. 224.71 What standards will the Secretary use to decide to
approve a final proposed TERA?
The Secretary must approve a final proposed TERA unless:
(a) The Tribe does not meet the definition of a ``qualified Tribe''
in Sec. 224.30;
(b) A provision of the TERA violates applicable Federal law
(including regulations) or a treaty applicable to the Tribe; or
(c) The TERA fails to include the provisions required by Sec.
224.63.
Sec. Sec. 224.72 and 224.73 [Removed and Reserved]
0
14. Remove and reserve Sec. Sec. 224.72 and 224.73.
0
15. Revise Sec. 224.74 to read as follows:
Sec. 224.74 When must the Secretary approve or disapprove a final
proposed TERA?
The Secretary must approve or disapprove a final proposed TERA
within 270 days of the Secretary's receipt of a complete application
for a TERA. With the consent of the Tribe, or as provided in Sec.
224.62(b), the Secretary may extend the period for a decision. If the
Secretary fails to approve or disapprove a final proposed TERA within
270 days and the Tribe does not consent to extend the 270-day period,
the TERA takes effect on the 271st day after the Secretary's receipt of
a complete application from a qualified Tribe.
0
16. In Sec. 224.75, revise paragraphs (b)(1) through (3) and add
paragraph (b)(4) to read as follows:
Sec. 224.75 What must the Secretary do upon approval or disapproval
of a final proposed TERA?
* * * * *
------------------------------------------------------------------------
If the Secretary's decision is . . . Then the Secretary will . . .
------------------------------------------------------------------------
* * * * *
(b) * * *.............................. * * * *
(1) A detailed written
explanation of each reason for
the disapproval;
(2) The changes or other
actions required to address
each reason for the
Secretary's disapproval;
(3) An opportunity to revise
and resubmit the TERA: and
(4) A statement that the
decision is a final agency
action and is subject to
judicial review.
------------------------------------------------------------------------
0
17. In Sec. 224.76, revise the introductory text to read as follows:
Sec. 224.76 Upon notification of disapproval, may a Tribe re-submit a
revised final proposed TERA?
Yes, within 45 days of receiving the notice of disapproval, or a
later date as the Secretary and the Tribe agree to in writing, the
Tribe may re-submit a revised final proposed TERA, approved by the
tribal governing body and signed by the Tribe's authorized
representative, to the Secretary that addresses the Secretary's
concerns. Unless the Secretary and the Tribe otherwise agree, the
Secretary must approve or disapprove the revised final proposed TERA
within 90 days of the Secretary's receipt of the revised final proposed
TERA. If the Secretary does not approve or disapprove the revised
proposed TERA within that time, it will take effect on the 91st day.
Within 10 days of the Secretary's approval or disapproval of a revised
final proposed TERA, the Secretary must notify the tribal governing
body in writing and take the following actions:
* * * * *
0
18. Add Sec. 224.78 to subpart C to read as follows:
Sec. 224.78 How long will a TERA remain in effect?
A TERA that takes effect under this part remains in effect to the
extent any provision of the TERA is consistent with applicable Federal
law (including regulations), unless and until either:
(a) The Secretary reassumes all activities included within a TERA
without the consent of the Tribe under Subpart G; or
(b) The Tribe rescinds a TERA under Subpart H.
0
19. Add Sec. 224.79 to subpart C to read as follows:
Sec. 224.79 Will the Secretary make non-expended amounts available to
the Tribe?
Upon written request of a Tribe for whom an approved TERA is in
effect, the Secretary will provide to the Tribe those amounts that the
Secretary would otherwise have expended to carry out any program,
function, service, or activity (or portion thereof) that the Secretary
does not expend as a result of the Tribe carrying out the activities
under a TERA. The Secretary will provide the Tribe with a full
accounting of the amounts as calculated based on the specific terms of
the TERA, the scope of the contracted functions, and applicable
circumstances.
Sec. 224.80 [Amended]
0
20. In Sec. 224.80, add the word ``Federal'' before the word
``authorities''.
0
21. Revise Sec. 224.84 to read as follows:
Sec. 224.84 When may a Tribe grant a right-of-way?
A Tribe may grant a right-of-way under a TERA if the grant of
right-of-way is over tribal land and the right-of-way serves:
(a) An electric production, generation, transmission, or
distribution facility (including a facility that produces electricity
from renewable energy resources) located on tribal land;
(b) A facility located on tribal land that processes or refines
energy resources; or
(c) The purposes, or facilitates in carrying out the purposes, of
any lease or agreement entered into for energy resources development on
tribal land.
0
22. Revise Sec. 224.85 to read as follows:
Sec. 224.85 When may a Tribe enter into a lease or business
agreement?
A Tribe may enter into a lease or business agreement for the
purpose of energy resource development for:
(a) Exploration for, extraction of, or other development of the
Tribe's energy mineral resources on tribal land including, but not
limited to, marketing or distribution;
(b) Construction or operation of an electric production,
generation, transmission, or distribution facility (including a
facility that produces electricity from renewable energy resources)
located on tribal land;
(c) Construction or operation of a facility to process or refine
energy resources, at least a portion of which have been developed on
tribal land; or
(d) Pooling, unitization, or communitization of the energy mineral
resources of the Indian tribe located on tribal land with any other
energy mineral resource (including energy mineral resources owned by
the Indian tribe or an individual Indian in fee, trust, or restricted
status or by any other persons or entities) if the owner, or, if
appropriate, lessee, of the resources has consented or consents to the
pooling, unitization, or communitization of the other resources under
any lease or agreement.
0
23. Revise Sec. 224.101 to read as follows:
[[Page 31537]]
Sec. 224.101 Who is an interested party?
For the purposes of this part, an interested party is a person or
entity that the Secretary determines has demonstrated with substantial
evidence that an interest of the person or entity has sustained, or
will sustain, an adverse environmental impact as a result of a Tribe's
failure to comply with a TERA.
0
24. Revise Sec. 224.107 to read as follows:
Sec. 224.107 What must a petitioner do before filing a petition with
the Secretary?
Before a petitioner may file a petition with the Secretary under
this subpart, the petitioner must have exhausted all tribal remedies by
participating in any tribal process under Sec. 224.106, and available
under the laws, regulations, or procedures of the Tribe, including any
tribal appeal process.
0
25. In Sec. 224.110 revise paragraph (b) to read as follows:
Sec. 224.110 What must a petition to the Secretary contain?
* * * * *
(b) Specific facts demonstrating that the petitioner is an
interested party under Sec. 224.101, including identification of the
affected interest;
* * * * *
0
26. In Sec. 224.115, revise the introductory text to read as follows:
Sec. 224.115 When in the petition process must the Secretary
investigate a Tribe's compliance with a TERA?
The Secretary must investigate the petitioner's claims of the
Tribe's noncompliance with a TERA only after making a threshold
determination that the petitioner is an interested party and:
* * * * *
0
27. Revise Sec. 224.116 to read as follows:
Sec. 224.116 What is the time period in which the Secretary must
investigate a Tribe's compliance with a TERA?
(a) If the Secretary determines under Sec. 224.115 that one of the
threshold determinations in Sec. 224.114 has been met, then within 120
days of the Secretary's receipt of a petition, the Secretary must
determine:
(1) Whether the petitioner is an interested party; and
(2) If the petitioner is an interested party, whether or not a
Tribe is in compliance with the TERA as alleged in the petition;
(b) The Secretary may extend the time for Tribe making the
determinations in paragraph (a) of this section for up to 120 days in
any case in which the Secretary determines that additional time is
necessary to evaluate the claims in the petition and the Tribe's
written response, if any. If the Secretary decides to extend the time,
the Secretary must notify the petitioner and the Tribe in writing of
the extension.
0
28. In Sec. 224.119, revise paragraph (b)(1) and add paragraph (c) to
read as follows:
Sec. 224.119 What must the Secretary do when making a decision on a
petition?
* * * * *
(b) * * *
(1) Include findings of fact and conclusions of law with respect to
each claim made in the petition in the written decision to the Tribe;
and
* * * * *
(c) The Secretary will dismiss any petition if the interested party
who filed the petition has agreed with the Tribe to a resolution of the
claims presented in the petition.
0
29. In Sec. 224.120, revise the introductory text to read as follows:
Sec. 224.120 What action may the Secretary take to ensure compliance
with a TERA?
If the Secretary decides that a Tribe is not in compliance with a
TERA, the Secretary may take only such action as the Secretary
determines to be necessary to address the claims of noncompliance made
the petition including:
* * * * *
0
31. In Sec. 224.181 revise paragraph (c) to read as follows:
Sec. 224.181 Who may appeal Departmental decisions or inaction under
this part?
* * * * *
(c) An interested party who is adversely affected by a decision or
inaction by the Secretary under subpart E of this part, provided that
the interested party may appeal only those issues raised in its prior
participation under subpart E of this part and may not appeal any other
decision rendered or inaction under this part.
0
32. In Sec. 224.182, revise paragraph (a) to read as follows:
Sec. 224.182 What is the Initial Appeal Process?
* * * * *
(a) Within 30 days of receiving an adverse decision by the Director
or similar level official within 30 days after the time period within
which the Secretary is required to act under subpart E, a party that
may appeal under this subpart may file an appeal to the Principal
Deputy Assistant Secretary--Indian Affairs;
* * * * *
0
33. Add subpart J, consisting of Sec. Sec. 224.200 through 224.206, to
read as follows:
Subpart J--Alternative to TERAs: Tribal Energy Development
Organization (TEDO) Certification
Sec.
224.200 What is the purpose of this subpart?
224.201 What must an application for certification as a Tribal
energy development organization (TEDO) include?
224.202 How must a TEDO submit an application for certification?
224.203 What must the Secretary do upon receipt of an application
for certification as a Tribal energy development organization?
224.204 What criteria will the Secretary use to determine whether to
approve an application for certification of a TEDO?
224.205 What must the Secretary do upon approval of an application
for certification? What is the effect of a TEDO receiving
certification?
Sec. 224.200 What is the purpose of this subpart?
The purpose of this part is to establish a process by which an
entity may be certified as an Tribal energy development organization
(TEDO) that may enter into a lease or business agreement with an Indian
Tribe without Secretarial review under 25 U.S.C. 3504(a)(2) or right-
of-way with an Indian Tribe without Secretarial review under 25 U.S.C.
3504(b)(2)(B) and without a TERA.
Sec. 224.201 What must an application for certification as a Tribal
energy development organization (TEDO) include?
An application for certification as a TEDO must include
documentation of the items listed in paragraphs (a) through (d) of this
section.
(a) The Tribe has carried out a contract or compact under title I
or IV of the Indian Self-Determination and Education Assistance Act (25
U.S.C. 5301 et seq.) for a period of not less than 3 consecutive years
ending on the date on which the Tribe submits the application, and the
contract or compact:
(1) Has been carried out by the Tribe without material audit
exceptions (or without any material audit exceptions that were not
corrected within the 3-year period); and
(2) Has included programs or activities relating to the management
of Tribal land; and
(b) The TEDO is organized under the Tribe's laws;
(c) The majority of the interest in the TEDO is owned and
controlled by the Tribe (or the Tribe and one or more other Tribes) the
Tribal land of which is being developed; and
(d) The TEDO's organizing document:
[[Page 31538]]
(1) Requires the Tribe with jurisdiction over the land to maintain,
at all times, the controlling interest in the TEDO;
(2) Requires the Tribe (or the Tribe and one or more other Tribes
the Tribal land of which is being developed) to own and control, at all
times, a majority of the interest in the TEDO; and
(3) Includes a statement that the TEDO is subject to the
jurisdiction, laws, and authority of the Tribe.
Sec. 224.202 How must a TEDO submit an application for certification?
A TEDO must submit an application and all supporting documents in
written and electronic form to the Secretary at 1849 C Street NW,
Washington, DC 20240, and [email protected].
Sec. 224.203 What must the Secretary do upon receipt of an
application for certification as a Tribal energy development
organization?
Within 90 days of receiving an application for certification as a
TEDO, the Secretary must approve or disapprove the application.
Sec. 224.204 What criteria will the Secretary use to determine
whether to approve an application for certification of a TEDO?
The Secretary will approve the application for certification upon
determining that the application contains the documentation required in
Sec. 224.201.
Sec. 224.205 What must the Secretary do upon approval of an
application for certification?
If the Secretary approves an application for certification, the
Secretary must do the following within 10 days of making the
determination under Sec. 224.203:
(a) Issue a certification stating that:
(1) The TEDO is organized under the laws of the Tribe and subject
to the Tribe's jurisdiction, laws, and authority;
(2) The majority of the interest in the TEDO is owned and
controlled by the Tribe (or the Tribe and one or more other Tribes) and
the Tribal land of which is being developed;
(3) The TEDO's organizing document requires the Tribe with
jurisdiction over the land to maintain, at all times, the controlling
interest in the TEDO;
(4) The TEDO's organizing document requires the Tribe (or the Tribe
and one or more other Tribes the Tribal land of which is being
developed) to own and control, at all times, a majority of the interest
in the TEDO;
(5) The certification is issued under 25 U.S.C. 3504(h); and
(6) Nothing in the certification waives the sovereign immunity of
the Tribe.
(b) Deliver a copy of the Certification to the applicant Tribe (or
Tribes, as applicable); and
(c) Publish the certification in the Federal Register.
Sec. 224.206 What is the effect of a TEDO receiving certification?
Upon receiving certification under this subpart, a TEDO may enter
into a lease, business agreement, or right-of-way with an Indian Tribe
without Secretarial approval as long as:
(a) The scope of the lease or business agreement does not exceed
that of a TERA as established in Sec. 224.85 of this part.
(b) The scope of a right-of-way does not exceed that of a TERA as
established in Sec. 224.84 of this part.
(c) The term of a lease, business agreement, or right-of-way does
not exceed that of a TERA as established in Sec. 224.86 of this part.
Dated: May 30, 2019.
Tara Sweeney,
Assistant Secretary--Indian Affairs.
[FR Doc. 2019-13265 Filed 7-1-19; 8:45 am]
BILLING CODE 4337-15-P
