Tribal Energy Resource Agreements

CourtIndian Affairs Bureau
Record Number2019-27399
Published date18 December 2019
Federal Register, Volume 84 Issue 243 (Wednesday, December 18, 2019)
[Federal Register Volume 84, Number 243 (Wednesday, December 18, 2019)]
                [Rules and Regulations]
                [Pages 69602-69615]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2019-27399]
                [[Page 69601]]
                Vol. 84
                Wednesday,
                No. 243
                December 18, 2019
                Part IVDepartment of the Interior-----------------------------------------------------------------------Bureau of Indian Affairs-----------------------------------------------------------------------25 CFR Part 224Tribal Energy Resource Agreements; Final Rule
                Federal Register / Vol. 84 , No. 243 / Wednesday, December 18, 2019 /
                Rules and Regulations
                [[Page 69602]]
                -----------------------------------------------------------------------
                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: Final rule.
                -----------------------------------------------------------------------
                SUMMARY: The Bureau of Indian Affairs (BIA) is amending 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 final rule updates the regulations to incorporate changes recently
                made by Congress to the Act authorizing TERAs. This rule also
                establishes how, as an alternative to entering into a TERA, a Tribe may
                obtain certification of a Tribal Energy Development Organization
                (TEDO).
                DATES: This rule is effective on December 18, 2019.
                FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Director, Office of
                Regulatory Affairs & Collaborative Action, (202) 273-4680;
                [email protected].
                SUPPLEMENTARY INFORMATION:
                I. Background
                II. Responses to Comments on the Proposed Rule
                 A. General Comments
                 B. Comments on Consultation and Public Meetings
                 C. Section-by-Section Comments
                III. Overview of Final Rule
                IV. Summary of Changes Made to the Proposed Rule
                V. 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)
                 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)
                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 at 25 CFR part 224. 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 both
                renewable and nonrenewable domestic energy resources.
                 Congress updated provisions authorizing TERAs in the Indian Tribal
                Energy Development and Self-Determination Act Amendments of 2017 (2017
                Amendments). The 2017 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.
                 On July 2, 2019, the BIA published a proposed rule to incorporate
                changes made by the 2017 Amendments into the TERA regulations. See 84
                FR 31529. The public comment period ended on September 3, 2019.
                II. Responses to Comments on the Proposed Rule
                 BIA received input from Tribes at a listening session on June 24,
                2019 in Sparks, Nevada, at the National Congress of American Indians
                Mid-Year Conference and at Tribal consultation sessions on July 11,
                2019, in Catoosa, Oklahoma; July 16, 2019, in Ignacio, Colorado; July
                18, 2019, in New Town, North Dakota; and July 23, 2019, by
                teleconference. BIA also received 14 written comment submissions. (To
                view all comments, search by Docket Number ``BIA-2019-0002'' in https://www.regulations.gov.) The following discussion addresses each topic
                raised by the comments.
                A. General Comments
                 Comment: Several commenters, including six Tribes and one Tribal
                organization, stated their overall support of the revisions. A few
                individual commenters stated their opposition or expressed concern that
                TERAs in general may weaken protections for individual Indian
                landowners or minerals rights holders.
                 Response: The changes to the TERA regulations reflect statutory
                changes and are intended to encourage Tribes to enter into TERAs in
                support of Tribal self-governance. The regulation explicitly preserves
                the Department's trust responsibilities. See Sec. 224.40.
                B. Comments on Consultation and Public Meetings
                 Comment: One Tribe stated that BIA should have consulted with
                Tribes prior to publication of the proposed rule. An individual
                commenter requested a 90-day extension of the public comment period to
                obtain more input from individuals.
                 Response: BIA was unable to consult prior to publication due to
                statutory timing constraints. Likewise, BIA is unable to accommodate
                the request for an extension of the public comment period. The 2017
                Amendments require publication of updates to the TERA regulations not
                later than December 18, 2019 (one year after the date of enactment of
                the 2017 Amendments). See Public Law 115-325, section 103(b).
                 Comment: A few individual commenters requested BIA hold additional
                public meetings at the Fort Berthold Reservation in New Town, North
                Dakota, to provide majority trust landowners the opportunity to provide
                comment. One individual requested BIA hold both a special information
                session in Pawhuska, Oklahoma, and an election of the Osage headright
                owners to vote on whether they would like the Tribe to move forward
                with a TERA or TEDO before BIA approves any TERA or TEDO application
                from the Osage Nation.
                [[Page 69603]]
                 Response: The TERA regulations provide the opportunity for public
                comment before any TERA or TEDO application is approved. See Sec.
                224.67. Those provisions in the existing TERA regulations are unchanged
                by this final rule.
                C. Section-by-Section Comments
                1. Definitions (Sec. 224.30)
                 Comment: One commenter suggested clarifying that ``decision
                deadline'' is a point in time rather than a period of time.
                 Response: The final rule makes this change.
                 Comment: One Tribe requested that ``energy resources'' be broadly
                defined to include growing crops or trees for biomass.
                 Response: The existing regulation's definition of ``energy
                resources'' is broadly defined and includes biomass as an example.
                 Comment: Several Tribes supported the definition of ``qualified
                Tribe'' in lieu of the requirement for the Secretary to determine
                Tribal capacity. One Tribe had several questions regarding what would
                meet the requirement for ``substantial experience'' in the second
                option. Another commenter asked whether ``substantial experience'' in
                the definition of ``qualified Tribe'' may include experience related to
                an agreement regarding resources on Tribal land that are developed
                elsewhere (e.g., an agreement to obtain oil on Tribal land and
                transport to a refinery off Tribal land).
                 Response: The determination of what is ``substantial experience''
                or ``substantial participation'' in the administration, review, or
                evaluation of energy resource leases or agreements depends on the scope
                of the proposed TERA. There is no standard for the number of energy-
                related leases or agreements that a Tribe must have experience with,
                but the type of experience or substantial participation should be
                relevant. For example, experience in agreements regarding oil and gas
                wells, which involves significant front-end work, will differ from
                experience in agreements related to wind and solar farms, which
                involves significant back-end work on power purchase agreements. Other
                experience, such as treatment as a State status under the Clean Air Act
                may also be relevant. The definition of ``qualified Tribe'' allows two
                alternative means to qualify. Each requires a nexus to Tribal land. The
                second alternative would encompass experience with agreements regarding
                energy resources on Tribal land that are developed elsewhere.
                 Comment: One individual commenter opposed deletion of the Tribal
                capacity requirements and stated opposition to removing environmental
                review.
                 Response: The deletion of Tribal capacity requirements conforms to
                changes in the 2017 Amendments. The final rule does not remove
                environmental review.
                 Comment: One commenter requested changing language in the
                definition of ``Tribe'' from ``because of their status as Indians'' to
                ``because of their status as sovereign governments.''
                 Response: While BIA recognizes that Tribes are sovereign
                governments, the wording of the definition referring to ``Indians''
                comes from the original TERA statute, using the definition of ``Tribe''
                from Public Law 93-638, which BIA is retaining here for consistency.
                See 25 U.S.C. 3504(e).
                 Comment: A few commenters requested clarification that the Osage
                minerals estate falls within the phrase ``interests in land'' in the
                definition of ``Tribal land.''
                 Response: BIA agrees that the definition of ``Tribal land''
                includes the Osage minerals estate in its reference to ``interests in
                land,'' but for brevity declines to amend the definition to list every
                individual Tribal surface and/or mineral estate it covers.
                 Comment: A Tribal organization commented that the definition of
                ``TEDO'' contains inaccurate statutory citations and suggested adding
                language stating that the TEDO is organized under Tribal law and
                subject to Tribal jurisdiction, laws, and regulatory authority.
                 Response: The final rule includes references to the correct
                citations, which are sections in the 2017 Amendments. The additional
                language is not necessary in the definition of TEDO because the Tribal
                law and Tribal jurisdiction language is provided in existing Sec.
                224.201(b) and (d).
                2. Trust Responsibility (Sec. 224.40)
                 Comment: Several commenters sought confirmation that the
                Secretary's trust responsibility and provisions of other statutes are
                unaffected by the TERA regulations or expressed concern that they will
                lose the trust responsibility protections of the Secretary if a Tribe
                enters into a TERA or TEDO.
                 Response: The TERA regulations explicitly preserve the Secretary's
                trust responsibility. See Sec. 224.40. The TERA regulations do not
                affect who is considered a trust beneficiary, the 1906 Osage Allotment
                Act, or the ability of beneficiaries to elect to maintain their trustee
                for collection and disbursement of funds.
                 Comment: A Tribe requested clarification on what actions the
                Secretary will or will not take to maintain his or her trust
                responsibility.
                 Response: The existing TERA regulations set out what activities the
                Department will continue to perform after approval of a TERA. See Sec.
                224.82. Additionally, the application consultation meeting between the
                Tribal applicant and Secretary will identify the specific services
                consistent with the Secretary's ongoing trust responsibility and
                available resources that the Department would provide to the Tribe. See
                Sec. 224.58(c). These existing sections are unchanged by this final
                rule.
                3. Pre-Application Consultation (Sec. 224.51)
                 Comment: One commenter objected to the proposed change from the
                Director of IEED to the Secretary as participating in pre-application
                consultation because the Secretary's heavy schedule could cause delays.
                 Response: The regulations' definition of ``Secretary'' includes the
                Secretary's designee. See Sec. 224.30. In the Departmental Manual, the
                Secretary delegates authority to the Assistant Secretary--Indian
                Affairs, and the Assistant Secretary is able to re-delegate down to
                other officials. See 209 DM 8. Using the term ``Secretary'' affords the
                Department the flexibility to delegate authorities to the most
                appropriate official at any given time.
                 Comment: Two Tribes suggested adding a deadline, beginning when the
                Department receives the Tribe's pre-application, by which the Secretary
                must provide the required consultation to the Tribe. One of these
                commenters suggested a 30-day deadline.
                 Response: A 30-day deadline for the entire pre-application
                consultation process may be unrealistic if there are scheduling
                challenges with the Department's and Tribe's schedules. Instead, the
                final rule incorporates a 30-day deadline for contacting the Tribe to
                schedule a pre-application consultation. See Sec. 224.51(b). This new
                deadline for coordination meets the spirit of the comment by ensuring
                that the Department will not delay responding to a pre-application and
                the process moves forward.
                 Comment: A Tribe noted that BIA could provide additional legal and
                technical assistance beyond the pre-application consultation to include
                assistance in drafting the application and speeding up the approval
                process. This commenter also suggested the Department provide a
                template TERA.
                 Response: The Department is available to provide assistance to
                Tribes,
                [[Page 69604]]
                beyond the formal pre-application consultation, in preparing a TERA. No
                templates are available at this time because it is not yet clear what
                standard approach would be most helpful without inadvertently limiting
                creative approaches.
                4. Application Contents (Sec. 224.53)
                 Comment: A Tribe and Tribal organization expressed support for
                removing requirements related to a determination of Tribal capacity.
                 Response: The final rule finalizes this change.
                 Comment: A Tribe pointed out that the proposed rule would require
                Tribes to submit information that the Department likely already has: A
                statement that the Secretary recognizes the Tribe and has Tribal land
                (proposed Sec. 224.53(a)(2)); a brief description of the Tribe's form
                of government (proposed Sec. 224.53(a)(3)); or documentation that the
                Tribal governing body has authority to enter into leases, rights-of-
                way, and business agreements (proposed Sec. 224.53(b)).
                 Response: The final rule deletes these provisions in response to
                this comment.
                 Comment: The same Tribe also suggested the requirement for a map
                and description of Tribal land the Tribe intends to include in the TERA
                (Sec. 224.53(a)(5)) is duplicative with the requirement at Sec.
                224.53(c)(2).
                 Response: The final rule retains both of these provisions because
                one provision requires a map and description of the Tribal land, while
                the other requires the Tribe to specify which energy resources or
                categories of energy-related leases, business agreements, or rights of
                way it intends to include in the TERA.
                 Comment: The same Tribe stated that the provision at Sec.
                224.53(d)(1), requiring the Tribe to describe the scope of its plan for
                administration and management of activities, duplicates the provision
                at (d)(3), requiring the Tribe to describe the regulatory activities it
                desires to assume in the geographical area with respect to leases,
                business agreements, and rights-of-way that exist when a TERA is
                approved.
                 Response: The first provision requires the Tribe to state its
                intent, if applicable, to regulate activities and describe a plan for
                administration and management, while the second provision requires the
                Tribe to describe which particular permitting, approval, or monitoring
                activities it plans undertake in the geographical areas it defines.
                 Comment: One commenter requested that the Secretary require a
                forensic audit of all Tribal funds as a ``stress test'' before
                accepting a TERA or TEDO.
                 Response: The final rule does not include a requirement for a
                forensic audit; including such a requirement would be inconsistent with
                other changes in the 2017 Amendments that limit the Secretary's
                examination of Tribal capacity to enter into a TERA.
                5. How a Tribe Submits an Application (Sec. 224.54)
                 Comment: A commenter suggested specifying only one means of
                submitting a TERA, clarifying that electronic submissions must be in
                searchable portable document format (PDF), and clarifying that the time
                period begins upon the Secretary's receipt of a submission in that
                form, to eliminate confusion on when the date of receipt occurred.
                 Response: The final rule incorporates these suggestions by
                establishing email as the means of submission and requiring submissions
                be in PDF in Sec. 224.54. The electronic submission will provide
                certainty for both the Tribe and the Department as to the date of
                receipt. The final rule also makes this change to the TEDO section at
                Sec. 224.202 for the same reason.
                 Comment: A commenter requested the rule clarify that a submission
                is not technically an ``application'' if it does not include all the
                required documents and information.
                 Response: The requested clarification is not necessary because the
                existing regulations already specify that an application must be
                ``complete'' and, if the application is not complete, then the
                Secretary must specify to the Tribe what additional information is
                required to make the application complete. See Sec. 224.56 and Sec.
                224.57.
                6. Disclosure to Third Parties (Sec. 224.55)
                 Comment: One Tribe stated that information submitted by Tribes
                should not be subject to disclosure to third parties under the Freedom
                of Information Act (FOIA) and that the procedures for identifying and
                justifying that information should be withheld as confidential or
                sensitive are burdensome.
                 Response: Information submitted by Tribes to Interior is subject to
                disclosure to third parties under FOIA. U.S. Department of the Interior
                v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (2001). The
                procedures in Sec. 224.55 for identifying and justifying that
                information should be withheld are standard FOIA Exemption 4 procedures
                that are in the existing regulation and are not being changed as a part
                of this rulemaking.
                 Comment: A few commenters from one Tribe requested more disclosure
                of documents related to oil and gas production on their reservation and
                asked whether the Tribe could take over the responsibility to maintain
                custody of those records.
                 Response: The individual terms of the TERA will determine what
                responsibilities a Tribe takes over; however, even if a Tribe were to
                take over as custodian of the records, the records would continue to be
                Federal records with proprietary information subject to withholding
                under FOIA exemptions.
                7. Receipt of Complete Application (Sec. 224.56)
                 Comment: A few commenters noted the 270-day deadline for the
                Secretary to issue a decision: Some stated that the time period is long
                and should be shortened, and others stated that the time period is
                reasonable considering all the steps that need to occur.
                 Response: The 270-day timeline is in the existing regulations and
                was established by statute. This rule does not change that timeline.
                 Comment: Two commenters stated that there is no statutory authority
                to allow a TERA to take effect prior to the 271st day or extend the
                deadline. Two other commenters suggested imposing a maximum on any
                extension to the 270-day period for making a decision.
                 Response: In response to these comments, the final rule deletes
                provisions allowing for an extension of the deadline. This change will
                simplify the regulation to clearly provide that the TERA takes effect
                on the 271st day unless the Secretary disapproves it or approves it
                before that deadline. See, also, Sec. Sec. 224.62, 224.74. While a
                strict reading of the statute would mean that the TERA could take
                effect only on the 271st day and no earlier, such a strict reading
                would undermine the clear purposes of the statute (to streamline energy
                development and promote Tribal self-determination) by preventing a TERA
                from taking effect earlier. See, e.g., S. Rept. 115-84. See, also,
                Sec. Sec. 224.62, 224.74.
                8. Financial Assistance (Sec. 224.57)
                 Comment: One commenter stated that the new language providing that
                the Secretary will include, in the notice of a complete application, a
                notice of any available financial assistance duplicates the required
                TERA provision addressing financial assistance in Sec. 224.63(h).
                 Response: The notice to the Tribe of available financial assistance
                may ultimately be different from what the Tribe and Secretary agree to
                include as part of the TERA, so these provisions are not duplicative.
                [[Page 69605]]
                9. Application Consultation Meeting (Sec. 224.58)
                 Comment: One commenter stated that the application consultation
                meeting should take place no later than 195 days after the Secretary
                receives the TERA application.
                 Response: The Department agrees with this commenter's calculation
                that the meeting should take place by that time, but is not including
                this benchmark in the rule in order to retain the flexibility afforded
                in the existing regulation, which provides that the meeting will occur
                as at the earliest practicable time. See Sec. 224.58(a).
                 Comment: A commenter stated that the Department should be required
                to consult with other Federal agencies that may be impacted by a
                proposed TERA and resolve any conflicting requirements.
                 Response: Paragraph (d) of this section provides that the Secretary
                will discuss the relationship of the Tribe to other Federal agencies
                with responsibilities for leases, business agreements, or rights-of-
                way. In practice, the Department will strive to use this opportunity to
                resolve any conflicting requirements with other Federal agencies.
                 Comment: A commenter also stated that paragraph (e), regarding a
                discussion of the Tribe's relationship to State and local governments
                and non-Indians who may be affected by a TERA, should not hinder or
                halt a TERA approval.
                 Response: Discussion regarding those who may be affected by a TERA
                will not hinder or halt approval of the TERA because the final rule
                limits the grounds upon which a TERA may be disapproved. See Sec.
                224.71.
                10. Review of Final TERA Proposal (Sec. 224.62)
                 Comment: A Tribe stated that the regulation refers to a ``final
                proposed TERA'' without defining what that is. This commenter expressed
                concern that having both an original proposed TERA version and a final
                proposed TERA version would cause delays.
                 Response: A final proposed TERA may differ from an original
                proposed TERA in a limited number of ways, as enumerated in Sec.
                224.62. The final proposed TERA is the version of the TERA that the
                Tribe submits after the application consultation meeting, which may
                address any recommendations provided by the Secretary in the report
                provided after the application consultation meeting. See Sec. 224.60.
                The 270-day deadline for a decision on a TERA begins to run from the
                time the Department receives the original proposed TERA, so there is no
                risk of delay. See Sec. 224.62.
                 Comment: Two commenters again noted that the statute does not
                provide the Secretary discretion to extend the 270-day review period.
                 Response: The final rule deletes provisions allowing for an
                extension of the deadline. This change will simplify the regulation to
                clearly provide that the TERA takes effect on the 271st day unless the
                Secretary disapproves it or approves it before that deadline. See,
                also, Sec. Sec. 224.62, 224.74.
                11. Required TERA Provisions (Sec. 224.63)
                 Comment: One Tribe stated that certain paragraphs (e.g., paragraph
                (c)(1), regarding public opportunity to comment) should not be
                construed to mean that public comment or non-Tribal entities may impact
                TERA application approval or continuation.
                 Response: This section will impact TERA application approval or
                continuation only to the extent that the listed provisions must be
                included in a TERA for the Department to approve the TERA.
                 Comment: One commenter stated that the provision requiring the
                environmental review process to identify and evaluate significant
                environmental effects and proposed mitigation measures should not be
                deleted because deletion will degrade trust land, water, and air
                quality.
                 Response: The final rule retains provisions informing the public of
                the opportunity to comment on environmental impacts and provides for
                Tribal responses to relevant and substantive public comments before
                approval of the lease, right-of-way, or business agreement. The
                specific references to significant environmental effects and proposed
                mitigation were deleted in the proposed and final rule to conform to
                changes to the statute at 25 U.S.C. 3504(e)(2)(C).
                12. Assuming Management of Different Resources Under TERAs (Sec.
                224.64)
                 Comment: Tribes and Tribal organizations supported these revisions.
                 Response: The final rule retains the proposed revisions.
                13. Assuming Additional Activities Under TERA (Sec. 224.65)
                 Comment: One Tribe requested that this section include a definite
                timeframe for Secretarial approval of an amendment to assume additional
                activities.
                 Response: Because the Department has not yet developed any
                experience in reviewing TERA amendments by which to judge what
                timeframe would be most appropriate for such a review, the final rule
                does not include a definite timeframe at this point.
                14. Reducing the Scope of TERAs (Sec. 224.66)
                 Comment: One Tribe requested that this section include a definite
                timeframe for Secretarial approval of an amendment to reduce the scope
                of a TERA.
                 Response: Because the Department has not yet developed any
                experience in reviewing TERA amendments by which to judge what
                timeframe would be most appropriate for such a review, the final rule
                does not include a definite time frame at this point.
                 Comment: The Osage Minerals Council stated that, in the case of the
                Osage Nation, there is no single Tribal governing body that can
                unilaterally decide to reduce the scope of a TERA related to the Osage
                mineral estate, because both the Osage Minerals Council and the Osage
                Nation Congress and Chief would have to agree.
                 Response: No change is made to the rule to address this comment
                because the regulation continues to define ``Tribal governing body'' to
                be a Tribe's governing entity, such as Tribal council or Tribal
                business committee, as established under Tribal or Federal law and
                recognized by the Secretary. See Sec. 224.30. In the case of the
                Osage, the Osage Minerals Council is ``an independent agency within the
                Osage Nation . . . with no legislative authority for the Osage Nation
                government.'' Osage Const., Art. XV Sec. 4. See also, Boone v. Osage
                Nation of Oklahoma, No. SCV-2015-01 (Supreme Court of the Osage Nation;
                September 9, 2016). Thus, under the Osage Constitution and a decision
                of the Osage Supreme Court, the ``Tribal governing body'' as defined in
                the TERA regulations is the Chief and Osage Nation Congress, not the
                Osage Minerals Council. The Department will not insert itself into the
                internal consultation process of the Osage Nation government.
                15. Public Notification and Comment (Sec. Sec. 224.67-224.68)
                 Comment: Two Tribes expressed concern that allowing for comment
                from the public, States, or local governments on a TERA would derail
                the Tribe's plans and requested adding language to protect Tribes from
                undue influence.
                 Response: The Tribe and Secretary may mutually agree to make
                changes to the TERA based on comments from the public, States, or local
                governments, but those comments cannot alone provide the basis for
                approving or disapproving
                [[Page 69606]]
                a TERA because the final rule restricts the basis for disapproving a
                TERA to three reasons. See Sec. 224.68 and Sec. 224.71.
                 Comment: One Tribe suggested that Tribes provide a robust plan for
                public involvement and participation in Tribal projects under TERAs.
                 Response: The Department defers to Tribes on the extent to which
                they involve their members and the public in Tribal projects under
                TERAs.
                16. Standards To Approve a TERA (Sec. 224.71)
                 Comment: All the comments received on this section supported the
                revisions in limiting grounds for disapproval.
                 Response: The final rule retains these revisions.
                17. Timing of Approval (Sec. 224.74)
                 Comment: A commenter stated that there is no statutory authority to
                allow a TERA to take effect prior to the 271st day or extend the
                deadline.
                 Response: The final rule deletes provisions allowing for an
                extension of the deadline. This change will simplify the regulation to
                clearly provide that the TERA takes effect on the 271st day unless the
                Secretary disapproves it or approves it before that deadline. See,
                also, Sec. Sec. 224.56, 224.62. The rule does delete the provision
                allowing for an earlier effective date because of the reasons stated in
                response to the comments on Sec. 224.56, above.
                18. Action Upon Approval or Disapproval (Sec. 224.75)
                 Comment: One Tribe expressed concern that the Department may wait
                until the last day to disapprove an application and require the Tribe
                to revise and resubmit the application multiple times. This Tribe
                suggested that the final rule limit the Secretary to one revision
                encompassing all needed changes or show cause for failing to request
                such changes the first time.
                 Response: The final rule is designed to avoid the need for multiple
                resubmissions by first allowing the opportunity for a ``thorough
                discussion of the Tribe's application'' at the application consultation
                meeting (Sec. 224.58(b)) and then, after submission of the final
                proposed TERA, by requiring the Secretary to specify the changes or
                other actions required to address each reason for the disapproval
                (Sec. 224.75(b)).
                 Comment: A Tribal organization suggested adding a requirement that
                the Secretary include notification in the approval that the Tribe may
                request non-expended amounts.
                 Response: Section 224.79 provides notice of this opportunity.
                 Comment: One commenter noted that the new approach that provides
                Tribes with the opportunity to revise and resubmit a TERA and requiring
                the Department to provide technical assistance to Tribes is consistent
                with contracting and compacting approvals under the Indian Self-
                Determination and Education Assistance Act (ISDEAA).
                 Response: The final rule includes these provisions.
                19. Resubmission of TERA (Sec. 224.76)
                 Comment: A commenter noted that the statute does not provide the
                Secretary discretion to agree with the Tribe to extend the period for
                resubmission review period or the period for a decision.
                 Response: Provisions allowing for extensions have been deleted; see
                response to the last comment regarding Sec. 224.56.
                20. Appeals of Secretary's Decision on TERA (Sec. 224.77)
                 Comment: One Tribe stated that this section should be revised to
                allow a TEDO to appeal a Secretary's decision.
                 Response: The final rule does not incorporate this suggested change
                because this section addresses appeals related to TERAs and a
                Secretary's decision on a TERA would not affect a TEDO, as the TEDO is
                an alternative to a TERA. The final rule does account for a TEDO's
                ability to appeal Departmental decisions or inaction in Sec. 224.181,
                however.
                21. How Long a TERA Is in Effect (Sec. 224.78)
                 Comment: A Tribe expressed support for the proposed changes
                providing that the TERA remains in effect unless and until the Tribe
                rescinds or the Secretary reassumes activities because these provisions
                provide certainty.
                 Response: These provisions are included in the final rule.
                22. Providing Unexpended Amounts to Tribe (Sec. 224.79)
                 Comment: One Tribe stated that TEDOs should also have the
                opportunity to obtain unexpended amounts.
                 Response: No change has been made to address this comment because
                the statute limits the availability of unexpended amounts to Tribes
                with a TERA. Additionally, because TEDOs do not take over any
                Departmental activities, there would be no unexpended amounts
                associated with a TEDO.
                 Comment: A few Tribes stated that the rule should include more
                detail on how the Secretary will calculate the amount of unexpended
                funds to provide to Tribes.
                 Response: The rule provides a basic framework for accounting
                because the accounting depends on the scope and breadth of activities
                each Tribe undertakes in its TERA. The Department will, by necessity,
                analyze on a case-by-case basis the particular functions undertaken,
                the funding available for those functions, and the extent to which
                there will be unexpended funds remaining when the Tribe takes over the
                functions. The accounting will be too specific to each TERA to provide
                a detailed breakdown of how the Department will calculate unexpended
                funds across the board.
                 Comment: One commenter asked that this section clarify that
                unexpended funds are available based on the availability of
                appropriations.
                 Response: While it is true that the availability of appropriations
                will affect the amount of unexpended funds that are available, the
                Department declines to specify this in the final rule because this fact
                applies nearly universally.
                23. When a Tribe May Grant a Right-of-Way (Sec. 224.84)
                 Comment: One Tribe supported revisions to this section that broaden
                the types of rights-of-way that may be included in a TERA.
                 Response: The final rule includes these revisions.
                 Comment: One commenter suggested making a technical edit to delete
                the word ``renewable'' from the parenthetical description in paragraph
                (a) because the regulatory definition of ``energy resources'' includes
                both renewable and nonrenewable.
                 Response: The final rule does not make this edit because the term
                ``renewable energy resources'' is an example of a source of electricity
                production, rather than a restriction on the source of electricity
                production. This example is included in the statute and carried into
                the regulation because it appears that Congress intended to emphasize
                that an electric production facility includes one that produces
                electricity from renewable energy resources. See 25 U.S.C. 3504(g).
                24. When a Tribe May Enter Into a Lease or Business Agreement (Sec.
                224.85)
                 Comment: A commenter suggested, in paragraph (d) (which addresses
                pooling, unitization, or communitization of energy mineral resources),
                deleting the word ``mineral'' from ``energy mineral resources'' and
                adding the word ``mineral'' at the end of the sentence to read ``or
                other mineral resources''.
                [[Page 69607]]
                 Response: The Department did not make these edits because the
                wording included in the rule currently matches the wording in the
                statute. In particular, the rule does not delete the word ``mineral''
                specifying that pooling, unitization, or communitization is for
                ``energy mineral resources'' because it appears Congress intended this
                paragraph to apply only to mineral resources.
                25. Interested Party Petitions (Sec. 224.101) and Requirements Before
                Filing a Petition (224.107)
                 Comment: One Tribe suggested defining the phrase ``substantial
                evidence'' in this section, which requires persons or entities to
                demonstrate with substantial evidence that they have sustained or will
                sustain, an adverse environmental impact as a result of a Tribe's
                failure to comply with a TERA.
                 Response: The Department declines to define ``substantial
                evidence'' in order to allow for a case-by-case analysis.
                 Comment: Two individual commenters objected to limiting who is
                considered an interested party to those able to demonstrate the adverse
                environmental impact with substantial evidence, and to the requirement
                that an interested party exhaust all Tribal remedies. A Tribe supported
                limiting who is considered an interested party and requiring exhaustion
                of all Tribal remedies before filing a petition with the Secretary as
                affirming Tribal self-determination and acknowledging that Tribes are
                responsible for managing the TERA.
                 Response: The final rule incorporates changes made by Congress to
                limit who is an interested party and require exhaustion of ``all''
                Tribal remedies before filing a petition. See 25 U.S.C. 3504(e)(7)(A).
                 Comment: A Tribe stated that the provisions regarding interested
                party petitions may be unduly burdensome and interfere with Tribal
                business because in the past, non-Tribal comments have derailed
                proposed actions of Tribes. This commenter suggested adding language to
                protect Tribes from undue influence.
                 Response: The public comment procedures included in the regulation
                are established by statute. The revisions include protections for
                Tribes by limiting who is considered an interested party, requiring
                interested parties to first exhaust all Tribal remedies, and by
                limiting the grounds on which the Secretary may disapprove of a TERA.
                See Sec. Sec. 224.101, 224.107, and 224.71, respectively.
                26. Action To Ensure Compliance (Sec. 224.120)
                 Comment: A Tribe stated that, when the Secretary reassumes
                activities under a TERA, Tribes should have the opportunity for a
                hearing and the Secretary should have the burden of proving by clear
                and convincing evidence the grounds for the reassumption.
                 Response: Later provisions in the regulation set out the processes
                for the Secretary to notify the Tribe of noncompliance, including the
                opportunity for a hearing, and the process for the Secretary to
                reassume functions. See Sec. Sec. 224.115 through 224.121, and 224.136
                through 224.161. This rulemaking does not change these processes.
                27. Appeal of Secretary's Decision on Tribal Compliance With a TERA
                (Sec. 224.121)
                 Comment: One commenter suggested technical edits to clarify that
                the Secretary's designees will be carrying out the regulation because,
                otherwise, it appears odd for the Principal Deputy Assistant
                Secretary--Indian Affairs to be the arbiter of actions taken by the
                ``Secretary.''
                 Response: The regulation refers to ``Secretary'' in order to
                provide the Secretary with the maximum flexibility as to who to
                designate to act on his or her behalf. See response to comment
                regarding delegation under ``3. Pre-Application Consultation (Sec.
                224.51), above.
                28. Appeals of Departmental Decisions (Sec. Sec. 224.181-224.185)
                 Comment: One individual commenter objected to the regulations'
                limit on who may appeal to only those who are adversely affected, as
                limiting the ability of a Tribal member to appeal and to limiting the
                basis of the appeal to those issues raised in prior participation in
                the petitioning process. Another commenter requested adding a paragraph
                to clarify that the person may petition under the First Amendment to
                the U.S. Constitution.
                 Response: The Department did not propose any changes to the rights
                of an interested party to appeal, and is not making any changes in the
                final rule to an interested party's right to appeal. To the extent
                someone would have the right to petition under the First Amendment to
                the U.S. Constitution notwithstanding Congress's limitations on appeals
                as reflected in this rule, that right would exist regardless of whether
                the Department makes the right explicit in the rule.
                29. TEDOs (Subpart J)
                 Comment: Several Tribes expressed their strong support of
                provisions allowing for TEDOs, stating that these provisions promote
                Tribal self-determination and Tribal economic development and provide
                additional opportunities for Tribes to develop their energy resources.
                One Tribe requested clarification that a TEDO may consist of more than
                one Tribe.
                 Response: The final rule includes the proposed provisions for
                certification of TEDOs as an alternative to TERAs. Paragraph (2) of the
                definition of ``TEDO'' already allows for two or more Tribes to
                organize as a TEDO. See Sec. 224.30.
                 Comment: A Tribe requested clarification regarding whether a Tribe
                could enter into a TEDO with another entity if the other entity has a
                refinery that is not on Tribal land.
                 Response: The regulations would allow a Tribe to enter into a TEDO
                with another entity if the other entity has a refinery not on Tribal
                land, as long as the Tribe owns and controls the majority of the
                interest in the TEDO and owns the Tribal land being developed (i.e.,
                the energy resources being developed for transfer to the refinery are
                on Tribal land). See Sec. 224.201(c).
                 Comment: A Tribe requested clarification on whether a joint venture
                organized under State laws (e.g., a Delaware limited liability company)
                could be certified as a TEDO.
                 Response: Both the statute and regulations provide that the joint
                venture must be organized under the Tribe's law to be certified as a
                TEDO. See 25 U.S.C. 3504(h)(2)(B), and 25 CFR 224.201(b).
                 Comment: One commenter asked whether a Tribe could do both a TEDO
                and a TERA and what the difference between the two is.
                 Response: The TEDO is an alternative to a TERA that allows a Tribe
                to create its own entity as a TEDO or enter into a joint venture with
                other Tribes or non-Tribal entities as a TEDO and then, once the
                Secretary certifies the TEDO, the Tribe can enter into leases, rights-
                of-way, and business agreements with the TEDO without the Secretary's
                approval. A TERA, on the other hand, is an agreement between the Tribe
                and the Secretary that allows the Tribe to enter into leases, rights-
                of-way, and business agreements with any other entity or person (not
                just a TEDO). It would be possible for a Tribe to create a TEDO and
                also have a TERA with the Secretary.
                 Comment: A commenter suggested a technical edit to clarify that the
                Tribe
                [[Page 69608]]
                must exercise sovereign authority over the Tribal land being developed
                by a TEDO.
                 Response: The current language ``the Tribal land of which is being
                developed'' appears in several sections of the regulation and was not
                proposed for change; therefore, the final rule retains this language.
                See, e.g., Sec. Sec. 224.201(c), (d), and 224.205(a)(2), (4).
                 Comment: An individual commenter stated that the intent of this
                language is to withhold trust responsibilities of the Federal
                government, especially when an individual Tribal member's energy
                resources are included in a TEDO, and that this does not comply with
                the Federal government's trust responsibility to individual Tribal
                members.
                 Response: While a lease of individual Tribal member energy
                resources could be included in a Tribe's pooling, unitization, or
                communitization agreement with a TEDO, the usual requirements for
                landowner consent would still apply. Additionally, the regulation
                states that the Act preserves the Secretary's trust responsibilities
                relating to trust resources. See Sec. 224.40.
                D. Inherently Federal Functions
                 Comment: Several Tribes and other commenters expressed the need to
                define ``inherently Federal functions'' to clarify what functions are
                not available for Tribes to undertake in a TERA. According to these
                Tribes, a definition is necessary for several reasons, including to
                address issues, provide certainty, and ensure consistency in
                interpretation. A few requested that the definition exclude basic
                minerals development functions, like applications for permits to drill,
                thereby allowing Tribes to undertake these functions through TERAs. A
                Tribal organization commenter requested consultation with Tribes before
                the Department defines the term.
                 Response: The Department has undertaken efforts to define
                ``inherently Federal functions'' based on years of Tribal input and
                anticipates releasing a list of functions that it has determined to be
                ``inherently Federal'' in the near future.
                E. Other Comments
                 Comment: Two Tribes requested that the TERA regulations address
                dual taxation by clarifying that Tribes are the exclusive sovereign
                authority to tax improvements and activities on lands and energy
                development under TERAs.
                 Response: The leasing and right-of-way regulations at 25 CFR part
                162 and 169, respectively, each include provisions that address
                taxation; these provisions apply to surface leases and rights-of-way
                under TERAs.
                 Comment: One commenter stated that the rule will adversely affect
                property rights.
                 Response: The rule does not affect property rights in any way
                because the Tribe is requesting the right to approve agreements related
                to Tribal land. In cases where an individual's land may be affected
                through pooling, unitization, or communitization, the requirements to
                obtain the consent of individual landowners remain.
                 Comment: A few commenters asked how the National Environmental
                Policy Act (NEPA) applies to the rule and to actions taken under a
                TERA. One commenter stated the rule will be a major Federal action
                significantly affecting the quality of the human environment.
                 Response: The rule will not significantly affect the quality of the
                human environment, because no action is being taken with a TERA except
                that the Tribe takes over for the Department as approving authority for
                individual leases, rights-of-way, and business agreements on Tribal
                land. The regulation requires the TERA to include an environmental
                review process for the individual leases, business agreements, and
                rights-of-way entered into under the TERA. See Sec. 224.63(c). The
                regulation also requires the Secretary to issue a notice advising the
                public when it receives a final proposed TERA of any NEPA review it is
                conducting related to approval of the final proposed TERA. See Sec.
                224.67(a)(2).
                 Comment: Two commenters asked for economic analysis of how the rule
                could impact different Tribes or how much it costs to administer
                mineral estates.
                 Response: Any economic effect of the TERA regulations on Tribes
                would be too speculative to estimate at this point because the
                economics will depend on whether any Tribe enters a TERA and what
                functions each Tribe chooses to undertake. To date, no Tribe has
                entered into a TERA, so there is no baseline for estimating what
                potential economic impacts may be.
                 Remaining comments addressed issues specific to one individual
                Tribe, advocated for funding, were out of scope, or addressed
                implementation, rather than the regulation itself.
                III. Overview of Final Rule
                 This rule addresses the requirements of the Indian Tribal Energy
                Development and Self-Determination Act Amendments of 2017 (2017
                Amendments). Wherever possible, BIA has interpreted these statutory
                changes in a manner that will impose the least burden on Tribes. As
                described in more detail, below, the rule: (1) Reduces the information
                Tribes must provide in TERA applications; (2) imposes timelines on the
                Secretary for review and approval of TERAs; (3) limits the grounds on
                which the Secretary may disapprove a TERA and require an explanation of
                each of the grounds; (4) establishes a process for amending a TERA; (5)
                narrows who may be considered an interested party and procedures for
                petitioning and for the Secretary's handling of interested party
                petitions; (6) addresses how BIA will provide unexpended funds to
                Tribes; (7) establishes a process and criteria for certifying TEDOs ;
                and (8) makes 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 rule deletes several TERA application items and several required
                TERA provisions.
                B. Timelines
                 The rule incorporates timelines established by the 2017 Amendments
                to ensure that the TERA application process moves forward in a timely
                manner. Specifically, the rule:
                 Requires the Secretary to contact the Tribe within 30 days
                of receiving a pre-application consultation request;
                 Requires the Secretary to do the following within 30 days
                of a Tribe submitting a TERA:
                 [cir] Notify the Tribe as to whether the agreement is complete or
                incomplete;
                 [cir] If the agreement is incomplete, notify the Tribe of what
                information or documentation is needed to complete the submission; and
                 [cir] Identify and notify the Tribe of the financial assistance, if
                any, to be provided by the Secretary to the Tribe to assist in the
                implementation of the TERA, including the environmental review of
                individual projects.
                 Establishes that a TERA takes effect 271 days after the
                Secretary receives the TERA, unless the Secretary approves the TERA to
                take effect on an earlier date, or the Secretary disapproves the
                application before the 271st day.
                 Establishes that a revised TERA takes effect 91 days after
                the Secretary receives the TERA, unless the Secretary and the Secretary
                approves the revised TERA to take effect on an earlier date,
                [[Page 69609]]
                or the Secretary disapproves it before the 91st day.
                 The rule also incorporates 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 rule promotes certainty in the TERA application process by
                limiting the grounds upon which the Secretary may disapprove a TERA.
                Specifically, the rule establishes 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 rule provides 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 rule provides more flexibility to the Tribe, in that it
                establishes 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 rule updates 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 all 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 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 rule broadly sets 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 rule establishes a process for the 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 rule also makes 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; and
                 Add an address for receipt of TERA applications and
                requests for TEDO certifications.
                IV. Summary of Changes Made to Proposed Rule
                 The Department made the following changes to the proposed rule in
                response to comments, as described above:
                 In Sec. 224.30, updated the definition of ``decision
                deadline'' to refer to an end date rather than a period of time, and
                corrected U.S.C. citations in the definition of ``Tribal energy
                development organization (TEDO)'';
                 In Sec. 224.51, added a requirement for the Secretary to
                contact the Tribe within 30 days of receiving a request for pre-
                application consultation;
                 In Sec. 224.53, deleted requirements for the TERA
                application to include a statement that the Tribe is federally
                recognized and has Tribal land, a brief description of the Tribe's form
                of government, and documents such as a Tribal constitution;
                 In Sec. Sec. 224.54 and 224.202, eliminated the need to
                submit a hard copy application and instead required Tribes and TEDOs to
                email a searchable, portable document format (PDF);
                 In Sec. Sec. 224.56, 224.62, 224.74, and 224.76, deleting
                provisions allowing the Secretary to extend time periods; and
                 In Sec. 224.181, adding that a TEDO may appeal
                Departmental decisions or inaction.
                 The Department also made an additional conforming edit to the
                proposed rule, which now appears in the final Sec. 224.59 to delete
                reference to a determination of the Tribe's capacity.
                V. 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.).
                [[Page 69610]]
                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 enter into with the Department of the Interior to develop energy
                resources. The Department hosted consultation sessions with Tribes and
                individually notified each federally recognized Tribe of those
                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 totals an estimated
                3,968 annual burden hours. This rule decreases the annual burden hours
                by an estimated 1,008 hours, due to: A decrease in the information
                requested as part of the TERA application process in Sec. Sec. 224.53
                and 224.63, and the streamlined process for seeking expansion 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. Also, under Sec. 224.64, a Tribe now may submit
                an amendment, rather than applying for a new TERA. These revisions
                reduce the hour burden, as a result of a program change made through
                regulatory updates to implement a new statute, and so require a
                revision to an approved information collection under the Paperwork
                Reduction Act (PRA), 44 U.S.C. 3501 et seq. for which we are 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 under
                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 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 432 hours.
                 Estimated Total Annual Hour Burden: 2,960 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.
                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, amends part 224 in Title 25 of the
                Code of Federal Regulations as follows:
                [[Page 69611]]
                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'',
                respectively.
                0
                b. In subparts B through H, remove the words ``Director'' and
                ``Director's'', wherever they appear, and add in their place the words
                ``Secretary'' and ``Secretary's'', respectively.
                0
                3. 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 end of 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
                deadline for up to 120 days.
                * * * * *
                 Designated Tribal Official means the official designated in a
                Tribe's pre-application consultation request, 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. 3502 or to enter into a lease or
                business agreement with, or acquire a right-of-way from, a Tribe under
                25 U.S.C. 3504(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
                4. Amend Sec. 224.51 by:
                0
                a. Removing the words ``Office of Indian Energy and Economic
                Development'' in paragraph (a);
                0
                b. Adding the words ``within 30 days'' after the words ``Designated
                Tribal Official'' in paragraph (b).
                0
                5. Amend Sec. 224.53 by:
                0
                a. Removing paragraphs (a)(2), (3), (4), (7), (8), (10);
                0
                b. Redesignating paragraphs (a)(5) and (6) as (a)(2) and (3),
                respectively;
                0
                c. Adding a new paragraph (a)(4);
                0
                d. Redesignating paragraph (a)(9) as paragraph (a)(5);
                0
                e. In newly redesignated paragraph (a)(5), removing the words
                ``paragraph (e)'' and adding the words ``paragraph (d)'' in their
                place;
                0
                f. Redesignating paragraphs (a)(11) and (12) as paragraphs (a)(6) and
                (7), respectively.
                0
                g. Removing paragraph (b);
                0
                h. Redesignating paragraph (c) and paragraph (b);
                0
                i. Removing paragraphs (d) and (f);
                0
                j. Redesignating paragraph (e) as paragraph (c);
                0
                k. In newly redesignated paragraph (c) introductory text, removing the
                words ``paragraph (a)(9)'' and adding the words ``paragraph (a)(5)'' in
                their place; and
                0
                l. In newly redesignated paragraph (c)(1), removing the phrase ``in
                sufficient detail for the Secretary to determine the Tribe's capacity
                to administer and manage the regulatory activity(ies)''.
                 The addition reads as follows:
                Sec. 224.53 What must an application for a TERA contain?
                 (a) * * *
                 (4) Documentation that the Tribe meets the definition of
                ``qualified Tribe'' in Sec. 224.30;
                * * * * *
                0
                6. 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
                a searchable portable document format (PDF) to [email protected].
                0
                7. 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. 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, or the Secretary disapproves the application
                before that date.
                0
                8. Amend Sec. 224.57 by redesignating paragraph (a)(3)(i)(B) as
                paragraph (a)(3)(i)(C) and adding a new paragraph (a)(3)(i)(B).
                 The addition reads as follows:
                [[Page 69612]]
                Sec. 224.57 What must the Secretary do upon receipt of an
                application?
                 (a) * * *
                 (3) * * *
                ------------------------------------------------------------------------
                 If the Director determines that .
                 . . Then the Director must . . .
                ------------------------------------------------------------------------
                (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
                9. Revise Sec. 224.59 to read as follows:
                Sec. 224.59 How will the Secretary use the results of the
                application consultation meeting?
                 The Secretary will use the information gathered during the
                application consultation meeting in conjunction with information
                provided through Sec. Sec. 224.53 and 224.63 to determine whether to
                recommend any revisions to the proposed TERA.
                0
                10. Revise Sec. 224.62 to read as follows:
                Sec. 224.62 May a final proposed TERA differ from the original
                proposed TERA?
                 The final proposed TERA may or may not contain provisions that
                differ from the original proposed TERA submitted with the application.
                In either case, the 270-day review period will begin to run on the date
                the original complete application was received (under Sec. 224.57).
                0
                11. 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
                12. 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.
                Sec. 224.65 [Amended]
                0
                13. In Sec. 224.65, remove the last sentence.
                Sec. 224.68 [Amended]
                0
                14. In Sec. 224.68, remove the last sentence in paragraph (d).
                0
                15. 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
                16. Remove and reserve Sec. Sec. 224.72 and 224.73.
                0
                17. 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. If the Secretary fails to approve or disapprove a final
                proposed TERA within 270 days, the TERA takes effect on the 271st day
                after the Secretary's receipt of a complete application from a
                qualified Tribe.
                0
                18. In Sec. 224.75, revise paragraph (b) 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) To disapprove the final Send the Tribe a notice of
                 proposed TERA. disapproval that must include:
                 (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.
                ------------------------------------------------------------------------
                [[Page 69613]]
                0
                19. 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. 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
                20. 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
                21. 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
                22. In Sec. 224.80, add the word ``Federal'' before the word
                ``authorities''.
                0
                23. 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
                24. 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
                25. Revise Sec. 224.101 to read as follows:
                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
                26. 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
                27. 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
                28. 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
                29. 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 the 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
                30. 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?
                * * * * *
                [[Page 69614]]
                 (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
                31. 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
                in the petition including:
                * * * * *
                0
                32. In Sec. 224.181 revise paragraphs (a) and (c) to read as follows:
                Sec. 224.181 Who may appeal Departmental decisions or inaction under
                this part?
                * * * * *
                 (a) A Tribe or TEDO that is adversely affected by a decision of or
                inaction by an official of the Department of the Interior 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
                33. 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
                34. 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 TEDO?
                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?
                224.206 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;
                 (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:
                 (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 a
                searchable portable document format (PDF) to [email protected].
                Sec. 224.203 What must the Secretary do upon receipt of an
                application for certification as a TEDO?
                 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.
                [[Page 69615]]
                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: November 15, 2019.
                Tara Sweeney,
                Assistant Secretary--Indian Affairs.
                [FR Doc. 2019-27399 Filed 12-17-19; 8:45 am]
                 BILLING CODE 4337-15-P
                

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