Tribal Energy Resource Agreements
| Published date | 18 December 2019 |
| Citation | 84 FR 69602 |
| Record Number | 2019-27399 |
| Section | Rules and Regulations |
| Court | Indian Affairs Bureau |
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]]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 224
RIN 1076-AF47
[192D0102DR/DS5A300000/DR.5A311.IA000118]
Tribal Energy Resource Agreements
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: 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
