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Proposed Rule

Tribal Energy Resource Agreements

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Start Preamble

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Proposed rule.

SUMMARY:

The Bureau of Indian Affairs (BIA) proposes to amend its regulations governing Tribal Energy Resource Agreements (TERAs) between the Secretary of the Interior (Secretary) and Indian Tribes. Tribes, at their discretion, may apply for TERAs. TERAs allow Tribes to enter into leases, business agreements, and rights-of-way for energy resource development on Tribal land without the Secretary's review and approval. This proposed rule would update the regulations to incorporate changes recently made by Congress to the Act authorizing TERAs. This proposed rule would also establish how Tribal Energy Development Organizations (TEDOs) may obtain certification, as an alternative to a TERA.

DATES:

Please submit comments by September 3, 2019. Please see “III. Tribal Consultation” of this preamble for dates of Tribal consultation sessions on this proposed rule.

ADDRESSES:

You may send comments, identified by number 1076-AF47, by any of the following methods:

Federal rulemaking portal: http://www.regulations.gov. Follow the instructions for sending comments.

Email: consultation@bia.gov. Include the number 1076-AF47 in the subject line of the message.

Mail or hand-delivery: Elizabeth Appel, Office of Regulatory Affairs & Collaborative Action, U.S. Department of the Interior, 1849 C Street NW, MIB-4660-MS, Washington, DC 20240. Include the number 1076-AF47 in the subject line of the message.

Instructions: All submissions received must include “Bureau of Indian Affairs” and “1076-AF47.” All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov. We cannot ensure that comments received after the close of the comment period (see DATES) will be included in the docket for this rulemaking and considered.

Comments on the information collections contained in this proposed regulation (see “Paperwork Reduction Act” section, below) are separate from those on the substance of the rule. Send comments on the information collection burden to OMB by facsimile to (202) 395-5806 or email to the OMB Desk Officer for the Department of the Interior at OIRA_DOCKET@omb.eop.gov. Please send a copy of your comments to the person listed in the FOR FURTHER INFORMATION CONTACT section of this notice.

Please see “III. Tribal Consultation” of this preamble for addresses of Tribal consultation sessions on this proposed rule.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Elizabeth Appel, Director, Office of Regulatory Affairs & Collaborative Action, (202) 273-4680; elizabeth.appel@bia.gov.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

I. Background

II. Summary of This Proposed Rule

III. Tribal Consultation

IV. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866, 13563, and 13771)

B. Regulatory Flexibility Act

C. Small Business Regulatory Enforcement Fairness Act

D. Unfunded Mandates Reform Act

E. Takings (E.O. 12630)

F. Federalism (E.O. 13132)

G. Civil Justice Reform (E.O. 12988)Start Printed Page 31530

H. Consultation With Indian Tribes (E.O. 13175)

I. Paperwork Reduction Act

J. National Environmental Policy Act

K. Effects on the Energy Supply (E.O. 13211)

L. Clarity of This Regulation

M. Public Availability of Comments

I. Background

The Secretary is issuing these regulations under the authority of the Indian Tribal Energy Development and Self-Determination Act of 2005 as amended by the Indian Tribal Energy Development and Self-Determination Act Amendments of 2017, 25 U.S.C. 3501-3504, Public Law 115-325, and 25 U.S.C. 2 and 9.

In 2005, Congress passed a law authorizing Tribes, at their discretion, to apply for and enter into TERAs with the Secretary. See the Indian Tribal Energy Development and Self-Determination Act of 2005, Title XXVI, Section 2604 of the Energy Policy Act (Pub. L. 109-58). Upon Secretarial approval of a TERA, the Tribe may enter into energy-related leases, business agreements, and rights-of-way on Tribal lands without the Secretary's review and approval. The BIA finalized regulations to implement this authority in 2008. See 73 FR 12807 (March 10, 2008).

TERAs further the Federal Government's policy of providing enhanced self-determination and economic development opportunities for Indian Tribes by promoting Tribal oversight and management of energy resource development on tribal lands. TERAs provide another avenue, in addition to the Indian Minerals Development Act and the Indian Mineral Leasing Act, under which Tribes may develop their mineral resources. TERAs also support the national energy policy of increasing utilization of domestic energy resources.

Congress updated provisions authorizing TERAs in the Indian Tribal Energy Development and Self-Determination Act Amendments of 2017. The Act's amendments update the procedures and conditions for the Secretary's approval of TERAs, authorize Tribes to enter into leases and business agreements that pool a tribe's energy resources with other energy resources and, among other things, establishes that energy-related leases, business agreements, and rights-of-way between a Tribe and certified TEDO do not require the Secretary's approval.

II. Summary of This Proposed Rule

This proposed rule would address the requirements of the Indian Tribal Energy Development and Self-Determination Act Amendments of 2017 (2017 Amendments). Wherever possible, BIA has attempted to interpret these statutory changes in a manner that will impose the least burden on Tribes. As described in more detail, below, the proposed rule would: (1) Reduce the information Tribes must provide in TERA applications; (2) impose timelines on the Secretary for review and approval of TERAs; (3) limit the grounds on which the Secretary may disapprove a TERA and require an explanation of each of the grounds; (4) establish a process for amending a TERA; (5) narrow who may be considered an interested party and procedures for petitioning and for the Secretary's handling of interested party petitions; (6) address how BIA will provide unexpended funds to Tribes; (7) establish a process and criteria for certifying TEDOs ; and (8) make various technical nomenclature and other technical edits.

A. Information Required in Applications for TERAs

The 2017 Amendments deleted a requirement for the Secretary to consider the capacity (experience in managing natural, financial and administrative resources) of a Tribal applicant to carry out a TERA. See Section 103(a) of the 2017 Amendments. To reflect this deletion, the proposed rule would delete several TERA application items and several required TERA provisions.

B. Timelines

The proposed rule would incorporate timelines established by the 2017 Amendments to ensure that the TERA application process moves forward in a timely manner. Specifically, the proposed rule would:

  • Require the Secretary to do the following within 30 days of a Tribe submitting a TERA:

o Notify the Indian tribe as to whether the agreement is complete or incomplete;

o If the agreement is incomplete, notify the Indian tribe of what information or documentation is needed to complete the submission; and

o Identify and notify the Indian tribe of the financial assistance, if any, to be provided by the Secretary to the Indian tribe to assist in the implementation of the tribal energy resource agreement, including the environmental review of individual projects.

  • Establish that a TERA takes effect 271 days after the Secretary receives the TERA, unless the Secretary disapproves it.
  • Establish that a revised TERA takes effect 91 days after the Secretary receives the TERA, unless the Secretary disapproves it.

The proposed rule would also incorporate statutory requirements that the TERA remains in effect to the extent any provision is consistent with applicable Federal law (including regulations), unless the Secretary reassumes the authority by necessity to protect the physical trust asset or the Tribe voluntarily rescinds the TERA pursuant to the regulations.

C. Grounds for Disapproval of a TERA

The proposed rule would promote certainty in the TERA application process by limiting the grounds upon which the Secretary may disapprove a TERA. Specifically, the proposed rule would establish that the Secretary may disapprove a TERA only if:

  • The Tribe does not meet the definition of a “qualified Tribe;”
  • A provision of the TERA violates applicable Federal law, regulations, or a treaty; or
  • The TERA fails to include certain provisions.

In addition, the proposed rule would provide that, where the Secretary does disapprove a TERA application, the Secretary must provide the Tribe with a detailed, written explanation of each reason for a disapproval, specify the revisions or changes to the TERA necessary to address each reason, and offer the Tribe an opportunity to revise and resubmit the TERA.

D. Amendments to TERAs

The proposed rule provides more flexibility to the Tribe, in that it would establish a process to amend an approved TERA to assume authority for approving leases, business agreements, or rights-of-way for development of another energy resource that is not already covered, without requiring the Tribe to apply for a new TERA.

E. Petitions by Interested Parties

The proposed rule would update the existing current regulatory process for ensuring that the public is informed of, and has reasonable opportunity to comment on, environmental impacts by:

  • Limiting who is considered an interested party to those able to demonstrate their interest with substantial evidence;
  • Requiring exhaustion of any remedies provided under Tribal law before an interested party may submit to the Secretary a petition to review Tribal compliance with the TERA;
  • Requiring the Secretary to determine whether the petitioner is an interested party and whether the Tribe Start Printed Page 31531is not in compliance with the TERA as alleged in the petition;
  • Limiting the Secretary to taking only such action as the Secretary determines is necessary to address the noncompliance claims; and
  • Requiring the Secretary to dismiss a petition if the Tribe and interested party who filed the petition reach a resolution of the petition's claims.

F. Unexpended Amounts

The proposed rule would broadly set out the manner in which the Secretary will provide to a requesting Tribe the amounts that the Secretary would have spent carrying out activities the Tribe carries out in the TERA (unexpended amounts), and will provide the Tribe with an accounting of those unexpended amounts.

G. Certification of TEDOs

The proposed rule would establish a process for the Tribal Energy Development Organizations (TEDOs) to obtain certification from the Secretary so that they may enter into leases, business agreements, and rights-of-way with Tribes on Tribal land without Secretarial approval. See Section 103(b) of the 2017 Amendments.

H. Nomenclature and Technical Changes

The proposed rule would also make changes to:

  • Capitalize “Tribe” consistent with the Government Printing Office Manual;
  • Add reference to the annual list of federally recognized Tribes in the definition of “Tribe;”
  • Replace “Director” of the Office of Indian Energy & Economic Development (IEED) with “Secretary” to indicate the Secretary of the Interior and maintain delegation flexibility, except where necessary to provide for administrative appeal options;
  • Add an address for receipt of TERA applications and requests for TEDO certifications.

I. Table of Proposed Changes

The following table summarizes revisions to part 224, by showing where the substance of each section of the current rule is in the proposed rule and describing the changes. The table does include sections for which there was no substantive change, including those sections where the only changes were to capitalize “Tribe” or replace “Director” with “Secretary.”

Current 25 CFR § Current provisionProposed 25 CFR § Description of proposed change
224.30What definitions apply to this part?224.30In definition of “Act,” adds reference to the 2017 Amendments; adds new definitions for “qualified Tribe” and “Tribal energy development organization” and updates the definition of “Tribe” to refer to the list of federally recognized Tribes.
224.53What must an application for a TERA contain?224.53Deletes provisions require descriptions of the Tribe's expertise and capabilities and adds a provision requiring documentation that the tribe is a “qualified Tribe”
224.54How must a tribe submit an application?224.54Adds an email and physical address for submitting a TERA application.
224.56What is the effect of the Director's receipt of a tribe's complete application?224.56Adds that the TERA takes effect on the 271st day after the Secretary receives a complete application, unless the Tribe consents to an extension.
224.57What must the Director do upon receipt of an application?224.57Adds that the Secretary must identify in the written notice any financial assistance available from the Secretary to assist in implementing the TERA.
224.63What provisions must a TERA contain?224.63Deletes provisions requiring that the environmental review process identifies and evaluates all significant environmental effects and proposed mitigation measures and provisions requiring mechanisms for obtaining qualifications of third parties and for securing technical information. Adds provision for the Tribe to identify functions the Tribe intends to conduct to authorize operational or development activities.
224.64How may a tribe assume management of development of different types of energy resources?224.64Adds provisions allowing amendments to TERAs. Deletes provision requiring application for a new TERA and determination of the Tribe's capacity.
224.65How may a tribe assume additional activities under a TERA?224.65Deletes provision that the Secretary will determine whether the Tribe has sufficient capacity.
224.71What standards will the Secretary use to decide to approve a final proposed TERA?224.71Revises to provide that the Secretary must approve the TERA unless the Tribe is not a qualified Tribe, a TERA provision violates law or a treaty applicable to the Tribe, or the TERA fails to include required provisions.
224.72How will the Secretary determine whether a tribe has demonstrated sufficient capacity?224.72Deletes the text of this section and reserves the section number to maintain numbering.
224.73How will the scope of energy resource development affect the Secretary's determination of the tribe's capacity?224.73Deletes the text of this section and reserves the section number to maintain numbering.
224.74When must the Secretary approve or disapprove a final proposed TERA?224.74Adds that if the Secretary fails to approve or disapprove a final proposed TERA, the TERA takes effect on the 271st day after receipt.
Start Printed Page 31532
224.75What must the Secretary do upon approval or disapproval of a final proposed TERA?224.75Adds that the Secretary must provide a detailed, written explanation of each reason for the disapproval, the changes required to address each reason, and the opportunity to revise and resubmit the TERA.
224.76Upon notification of disapproval, may a tribe re-submit a revised final proposed TERA?224.76Adds that if the Secretary fails to approve or disapprove a revised final proposed TERA, it takes effect on the 91st day after receipt.
224.78New section to address how long a TERA remains in effect. Adds that a TERA remains in effect until the Secretary reassumes activities under Subpart G or the Tribe rescinds the TERA under Subpart H.
224.79New section to address how the Secretary will make non-expended amounts available to the Tribe.
224.80Under what authority will a tribe perform activities for energy resource development?224.80Clarifies that the Tribe will perform activities under “Federal” authorities provided in the approved TERA.
224.84When may a tribe grant a right-of-way?224.84Revises this section to clarify that the right-of-way may serve any of the listed purposes.
224.85When may a tribe enter into a lease or business agreement?224.85Adds additional purposes, listed in the 2017 Amendments, for which the Tribe may enter into a lease or business agreement.
224.101Who is an interested party?224.101Clarifies that the Secretary must determine that the person or entity has demonstrated their interest with substantial evidence.
224.107What must a petitioner do before filing a petition with the Secretary?224.107Clarifies that the petitioner must have exhausted all tribal remedies available under laws, regulations, or procedures of the Tribe.
224.115When in the petition process must the Director investigate a tribe's compliance with a TERA?224.115Adds that the Secretary must make a threshold determination that the petitioner is an interested party.
224.116What is the time period in which the Director must investigate a tribe's compliance with a TERA?224.116Adds that the Secretary must determine whether the petitioner is an interested party and, if so, that the Secretary must determine whether the Tribe is out of compliance with the TERA for the reason alleged in the petition.
224.119What must the Director do when making a decision on a petition?224.119Adds that the Secretary must limit findings and conclusions to the claims made in the petition, and that the Secretary will dismiss a petition if the interested party and Tribe have reached a resolution.
224.120What action may the Director take to ensure compliance with a TERA?224.120Limits the Secretary to taking such action as necessary to address the noncompliance identified in petition.
224.200New section to address the purpose of Tribal energy development organization (TEDOs) as an alternative to a TERA.
224.201New section to address what an application for certification as a TEDO must include.
224.202New section to establish an email and physical address for submission of an application for certification.
224.203New section to address that the Secretary will approve or disapprove an application for certification within 90 days.
224.204New section to establish the criteria by which a Secretary will determine whether to certify a TEDO.
224.205New section to establish what the Secretary will do upon approving a certification.
224.206New section to establish the effect of certification to allow a Tribe and the TEDO to enter into leases, business agreements, and rights-of-way without Secretarial approval and without a TERA.
Start Printed Page 31533

III. Tribal Consultation

We will be hosting several Tribal consultation sessions at targeted locations throughout the country to discuss this proposed rule. The dates and locations for the consultation sessions are as follows:

DateTimeLocationVenue
Monday, June 24, 2019, (Listening session)1 p.m.-4 p.m., (Local Time)Sparks, NV(In association with National Congress of American Indians Mid-Year Conference) Nugget Casino & Resort, 1100 Nugget Ave., Sparks, NV 89431, Room: Southern Pacific B.
Thursday, July 11, 20199 a.m.-12 p.m. (Local time)Tulsa, OklahomaHard Rock Hotel & Casino, 777 W. Cherokee Street, Catoosa, OK 74015.
Tuesday, July 16, 20199 a.m.-12 p.m. (Local time)Ignacio, ColoradoSky Ute Casino Resort, 14324 Highway 172 North, Ignacio, CO 81137.
Thursday, July 18, 20199 a.m.-12 p.m. (Local time)New Town, North DakotaMHA Nation TERO/Energy Building, 305 4th Avenue, New Town, ND 58763.
Tuesday, July 23, 20191 p.m.-4 p.m. Eastern TimeTeleconferenceCall-in number: 888-810-4791, Passcode: 8466506.

IV. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866, 13563, and 13771)

Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is not significant.

E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The E.O. directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements. This rule is also part of the Department's commitment under the Executive Order to reduce the number and burden of regulations.

E.O. 13771 of January 30, 2017, directs Federal agencies to reduce the regulatory burden on regulated entities and control regulatory costs. OIRA has determined that this rule is deregulatory because the updates will reduce the requirements and annual burden hours imposed on Tribes seeking to enter into a TERA.

B. Regulatory Flexibility Act

The Department of the Interior certifies that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

C. Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

(a) Does not have an annual effect on the economy of $100 million or more because it merely codifies eligibility requirements that were already established by past practice and a Federal District Court ruling.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions because this rule affects only individuals' eligibility for certain education contracts.

(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises because this rule affects agreements between Tribes and the Department to allow Tribes to authorize individual leases, business agreements, and rights-of-way on Tribal land

D. Unfunded Mandates Reform Act

This rule does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The rule does not have a monetarily significant or unique effect on State, local, or Tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

E. Takings (E.O. 12630)

This rule does not affect a taking of private property or otherwise have taking implications under Executive Order 12630 because this rule does not affect individual property rights protected by the Fifth Amendment or involve a compensable “taking.” A takings implication assessment is not required.

F. Federalism (E.O. 13132)

Under the criteria in section 1 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement because the rule affects only agreements entered into by Tribes and the Department. A federalism summary impact statement is not required.

G. Civil Justice Reform (E.O. 12988)

This rule complies with the requirements of Executive Order 12988. Specifically, this rule: (a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and (b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

H. Consultation With Indian Tribes (E.O. 13175)

The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it has substantial direct effects on federally recognized Indian Tribes because the rule affects the criteria, process, and effectiveness of agreements Tribes may Start Printed Page 31534enter into with the Department of the Interior to develop energy resources. The Department is hosting consultation sessions with Tribes (see “III. Tribal Consultation” above) and will be individually notifying each federally recognized Tribe of these opportunities to consult.

I. Paperwork Reduction Act

OMB Control No. 1076-0167 currently authorizes the collections of information contained in 25 CFR part 224, with an expiration of January 31, 2020. With this rulemaking, we are seeking to renew this information collection. The current authorization totaling an estimated 3,968 annual burden hours. If this proposed rule is finalized, the annual burden hours will decrease by an estimated 900 hours. This decrease is due to: (1) A decrease in the information requested as part of the TERA application process in §§ 224.53 and 224.63; and (2) the streamlined process for seeking an expansion of the scope of an existing TERA to cover additional Tribal land, energy resources, or categories of energy-related leases, business agreements, or rights-of-way in § 224.64. This change would require a revision to an approved information collection under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. for which the Department is requesting OMB approval.

OMB Control Number: 1076-0167.

Title: Tribal Energy Resource Agreements, 25 CFR 224.

Brief Description of Collection: Submission of this information is required for Federally Recognized Indian Tribes to apply for, implement, reassume, or rescind a TERA that has been entered into in accordance with 25 U.S.C. 3501 et. seq., and 25 CFR 224. This collection also requires the Tribe to notify the public of certain actions and allows a petition from the public to be submitted to the Secretary of the Interior to inform of possible noncompliance with a TERA.

Type of Review: Revision of a currently approved collection.

Respondents: Federally recognized Indian Tribes and the public.

Number of Respondents: 1 on average (each year).

Number of Responses: 11 on average (each year).

Frequency of Response: On occasion.

Estimated Time per Response: Varies from 32 hours to 540 hours.

Estimated Total Annual Hour Burden: 3,068 hours.

Estimated Total Non-Hour Cost: $18,100

J. National Environmental Policy Act

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because this is an administrative and procedural regulation. (For further information see 43 CFR 46.210(i)). We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

K. Effects on the Energy Supply (E.O. 13211)

This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.

L. Clarity of This Regulation

We are required by Executive Orders 12866 (section 1(b)(12)), and 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use clear language rather than jargon;

(d) Be divided into short sections and sentences; and,

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you believe lists or tables would be useful, etc.

M. Public Availability of Comments

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

Start List of Subjects

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
End List of Subjects

For the reasons stated in the preamble, the Department of the Interior, Bureau of Indian Affairs, proposes to amend part 224 in Title 25 of the Code of Federal Regulations as follows:

Start Part

PART 224—TRIBAL ENERGY RESOURCE AGREEMENTS UNDER THE INDIAN TRIBAL ENERGY DEVELOPMENT AND SELF DETERMINATION ACT

End Part Start Amendment Part

1. Revise the authority citation for part 224 to read as follows:

End Amendment Part Start Authority

Authority: 25 U.S.C. 2 and 9; 25 U.S.C. 3501-3504; Pub. L. 109-58; Pub. L. 115-325

End Authority Start Amendment Part

2. In part 224:

End Amendment Part Start Amendment Part

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”.

End Amendment Part Start Amendment Part

b. In subparts B through H, remove the words “Director” and “Director's” and add in their place the words “Secretary” and “Secretary's”, respectively, wherever they appear.

End Amendment Part Start Amendment Part

4. Amend § 224.30 by:

End Amendment Part Start Amendment Part

a. Revising the definitions of “Act”, “Decision Deadline”, and “Designated Tribal Official”;

End Amendment Part Start Amendment Part

b. Adding in alphabetical order definitions for “Qualified Tribe” and “Tribal energy development organization”; and

End Amendment Part Start Amendment Part

c. Revising the definition of “Tribe”.

End Amendment Part

The revisions and additions read as follows:

What definitions apply to this part?

Act means the Indian Tribal Energy Development and Self-Determination Act of 2005, as promulgated in Title V of the Energy Policy Act of 2005, Public Law 109-58, 25 U.S.C. 3501-3504, and as amended by the Indian Tribal Energy Development and Self-Determination Act Amendments of 2017, Public Law 115-325.

* * * * *

Decision Deadline means the 120-day period within which the Secretary will make a decision about a petition submitted by an interested party under subpart E. The Secretary may extend this period for up to 120 days.

* * * * *

Designated Tribal Official means the official designated in a Tribe's pre-application consultation request, Start Printed Page 31535application, or agreement to assist in scheduling consultations or to receive communications from the Secretary to the Tribe regarding the status of a TERA or activities under a TERA.

* * * * *

Qualified Tribe means a Tribe with Tribal land that has—

(1) For a period of not less than 3 consecutive years ending on the date on which the Tribe submits the application, carried out a contract or compact relating to the management of tribal land or natural resources under title I or IV of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5301 et seq.) without material audit exception (or without any material audit exceptions that were not corrected within the 3-year period); or

(2) Substantial experience in the administration, review, or evaluation of energy resource leases or agreements or has otherwise substantially participated in the administration, management, or development of energy resources located on the tribal land of the Indian Tribe.

* * * * *

Tribal energy development organization or TEDO means:

(1) Any enterprise, partnership, consortium, corporation, or other type of business organization that is engaged in the development of energy resources and is wholly owned by a Tribe, including but not limited to an organization incorporated under section 17 of the Indian Reorganization Act, 25 U.S.C. 5124 or section 3 of the Oklahoma Indian Welfare Act, 49 Stat, 1967, chapter 831; and

(2) Any organization of two or more entities, at least one of which is a Tribe, that has the written consent of the governing bodies of all Tribes participating in the organization, to apply for a grant, loan, or other assistance under 25 U.S.C. 2602 or to enter into a lease or business agreement with, or acquire a right-of-way from, a Tribe under 25 U.S.C. 2604(a)(2)(A)(ii) or (b)(2)(b).

* * * * *

Tribe means any Indian Tribe, band, nation, or other organized group or community that is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians, except a Native Corporation as defined in the Alaska Native Claims Settlement Act, 43 U.S.C. 1602, as evidenced by inclusion of the tribe on the list of recognized tribes published by the Secretary under 25 U.S.C. 5131.

[Amended]
Start Amendment Part

5. In § 224.51, in paragraph (a), remove the words “Office of Indian Energy and Economic Development”.

End Amendment Part Start Amendment Part

6. Amend § 224.53 by:

End Amendment Part Start Amendment Part

a. Removing paragraphs (a)(7), (8), (10);

End Amendment Part Start Amendment Part

b. Adding a new paragraph (a)(7);

End Amendment Part Start Amendment Part

c. Redesignating paragraph (a)(9) as (a)(8) and removing the words “paragraph (e)” and adding the words “paragraph (d)” in their place;

End Amendment Part Start Amendment Part

d. Redesignating paragraphs (a)(11) and (12) as paragraphs (a)(9) and (10), respectively.

End Amendment Part Start Amendment Part

e. Removing paragraphs (d) and (f);

End Amendment Part Start Amendment Part

f. Redesignating paragraph (e) as paragraph (d) and removing the words “paragraph (a)(9)” and adding the words “paragraph (a)(8)” in their place;

End Amendment Part Start Amendment Part

g. Removing the phrase “in sufficient detail for the Secretary to determine the Tribe's capacity to administer and manage the regulatory activity(ies)” in newly redesignated paragraph (d)(1).

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The revision reads as follows:

What must an application for a TERA contain?

(a) * * *

(7) Documentation that the Tribe meets the definition of “qualified Tribe” in § 224.30;

* * * * *
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7. Revise § 224.54 to read as follows:

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How must a Tribe submit an application?

A Tribe must submit an application and all supporting documents in written and electronic forms to the Secretary at 1849 C Street NW, Washington, DC 20240, and TERA@bia.gov.

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8. Revise § 224.56 to read as follows:

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What is the effect of the Secretary's receipt of a qualified Tribe's complete application?

The Secretary's receipt of a qualified Tribe's complete application begins a 270-day statutorily mandated period during which the Secretary must approve or disapprove a proposed TERA. With the consent of the Tribe, the Secretary may extend the 270-day period for making a decision. The TERA takes effect upon the 271st day after the Secretary's receipt of a complete application from a qualified Tribe, unless the Secretary approves the TERA to take effect on an earlier date, the Tribe consents to extending the 270-day period, or the Secretary disapproves the application before that date.

Start Amendment Part

9. Amend § 224.57 by:

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a. Redesignating paragraph (a)(3)(i)(B) as paragraph (a)(3)(i)(C); and

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b. Adding a new paragraph (a)(3)(i)(B).

End Amendment Part

The additions read as follows:

What must the Secretary do upon receipt of an application?

(a) * * *

(3) * * *

(i) * * *

(B) Identify in the written notice any financial assistance available from the Secretary to assist in implementing the TERA, including environmental review of individual projects; and

* * * * *
Start Amendment Part

10. Amend § 224.63 by:

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a. Removing paragraphs (c)(1) and (2);

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b. Redesignating paragraphs (c)(3) through (6) as (c)(1) through (4);

End Amendment Part Start Amendment Part

c. Removing paragraphs (d)(1) and (5);

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d. Redesignating paragraphs (d)(2) through (4) as paragraphs (d)(1) through (3);

End Amendment Part Start Amendment Part

e. Redesignating paragraphs (d)(6) through (14) as paragraphs (d)(4) through (12); and

End Amendment Part Start Amendment Part

f. Adding paragraph (m).

End Amendment Part

The addition reads as follows:

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.

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11. Revise § 224.64 to read as follows:

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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 § 224.67.

(c) The Secretary will process the amendment in accordance with §§ 224.67 through 224.78.

(d) Each Tribal governing body that is party to the TERA must sign the TERA amendment upon approval.

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[Amended]
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12. In § 224.65, remove the last sentence.

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13. Revise § 224.71 to read as follows:

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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 § 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 § 224.63.

[Removed and Reserved]
Start Amendment Part

14. Remove and reserve §§ 224.72 and 224.73.

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15. Revise § 224.74 to read as follows:

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When must the Secretary approve or disapprove a final proposed TERA?

The Secretary must approve or disapprove a final proposed TERA within 270 days of the Secretary's receipt of a complete application for a TERA. With the consent of the Tribe, or as provided in § 224.62(b), the Secretary may extend the period for a decision. If the Secretary fails to approve or disapprove a final proposed TERA within 270 days and the Tribe does not consent to extend the 270-day period, the TERA takes effect on the 271st day after the Secretary's receipt of a complete application from a qualified Tribe.

Start Amendment Part

16. In § 224.75, revise paragraphs (b)(1) through (3) and add paragraph (b)(4) to read as follows:

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What must the Secretary do upon approval or disapproval of a final proposed TERA?
* * * * *
If the Secretary's decision is . . .Then the Secretary will . . .
*    *    *    *    *
(b) * * ** * * *
(1) A detailed written explanation of each reason for the disapproval;
(2) The changes or other actions required to address each reason for the Secretary's disapproval;
(3) An opportunity to revise and resubmit the TERA: and
(4) A statement that the decision is a final agency action and is subject to judicial review.
Start Amendment Part

17. In § 224.76, revise the introductory text to read as follows:

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Upon notification of disapproval, may a Tribe re-submit a revised final proposed TERA?

Yes, within 45 days of receiving the notice of disapproval, or a later date as the Secretary and the Tribe agree to in writing, the Tribe may re-submit a revised final proposed TERA, approved by the tribal governing body and signed by the Tribe's authorized representative, to the Secretary that addresses the Secretary's concerns. Unless the Secretary and the Tribe otherwise agree, the Secretary must approve or disapprove the revised final proposed TERA within 90 days of the Secretary's receipt of the revised final proposed TERA. If the Secretary does not approve or disapprove the revised proposed TERA within that time, it will take effect on the 91st day. Within 10 days of the Secretary's approval or disapproval of a revised final proposed TERA, the Secretary must notify the tribal governing body in writing and take the following actions:

* * * * *
Start Amendment Part

18. Add § 224.78 to subpart C to read as follows:

End Amendment Part
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.

Start Amendment Part

19. Add § 224.79 to subpart C to read as follows:

End Amendment Part
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.

[Amended]
Start Amendment Part

20. In § 224.80, add the word “Federal” before the word “authorities”.

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21. Revise § 224.84 to read as follows:

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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.

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22. Revise § 224.85 to read as follows:

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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.

Start Amendment Part

23. Revise § 224.101 to read as follows:

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Start Printed Page 31537
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.

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24. Revise § 224.107 to read as follows:

End Amendment Part
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 § 224.106, and available under the laws, regulations, or procedures of the Tribe, including any tribal appeal process.

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25. In § 224.110 revise paragraph (b) to read as follows:

End Amendment Part
What must a petition to the Secretary contain?
* * * * *

(b) Specific facts demonstrating that the petitioner is an interested party under § 224.101, including identification of the affected interest;

* * * * *
Start Amendment Part

26. In § 224.115, revise the introductory text to read as follows:

End Amendment Part
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:

* * * * *
Start Amendment Part

27. Revise § 224.116 to read as follows:

End Amendment Part
What is the time period in which the Secretary must investigate a Tribe's compliance with a TERA?

(a) If the Secretary determines under § 224.115 that one of the threshold determinations in § 224.114 has been met, then within 120 days of the Secretary's receipt of a petition, the Secretary must determine:

(1) Whether the petitioner is an interested party; and

(2) If the petitioner is an interested party, whether or not a Tribe is in compliance with the TERA as alleged in the petition;

(b) The Secretary may extend the time for Tribe making the determinations in paragraph (a) of this section for up to 120 days in any case in which the Secretary determines that additional time is necessary to evaluate the claims in the petition and the Tribe's written response, if any. If the Secretary decides to extend the time, the Secretary must notify the petitioner and the Tribe in writing of the extension.

Start Amendment Part

28. In § 224.119, revise paragraph (b)(1) and add paragraph (c) to read as follows:

End Amendment Part
What must the Secretary do when making a decision on a petition?
* * * * *

(b) * * *

(1) Include findings of fact and conclusions of law with respect to each claim made in the petition in the written decision to the Tribe; and

* * * * *

(c) The Secretary will dismiss any petition if the interested party who filed the petition has agreed with the Tribe to a resolution of the claims presented in the petition.

Start Amendment Part

29. In § 224.120, revise the introductory text to read as follows:

End Amendment Part
What action may the Secretary take to ensure compliance with a TERA?

If the Secretary decides that a Tribe is not in compliance with a TERA, the Secretary may take only such action as the Secretary determines to be necessary to address the claims of noncompliance made the petition including:

* * * * *
Start Amendment Part

31. In § 224.181 revise paragraph (c) to read as follows:

End Amendment Part
Who may appeal Departmental decisions or inaction under this part?
* * * * *

(c) An interested party who is adversely affected by a decision or inaction by the Secretary under subpart E of this part, provided that the interested party may appeal only those issues raised in its prior participation under subpart E of this part and may not appeal any other decision rendered or inaction under this part.

Start Amendment Part

32. In § 224.182, revise paragraph (a) to read as follows:

End Amendment Part
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;

* * * * *
Start Amendment Part

33. Add subpart J, consisting of §§ 224.200 through 224.206, to read as follows:

End Amendment Part

Subpart J—Alternative to TERAs: Tribal Energy Development Organization (TEDO) Certification

224.200
What is the purpose of this subpart?
224.201
What must an application for certification as a Tribal energy development organization (TEDO) include?
224.202
How must a TEDO submit an application for certification?
224.203
What must the Secretary do upon receipt of an application for certification as a Tribal energy development organization?
224.204
What criteria will the Secretary use to determine whether to approve an application for certification of a TEDO?
224.205
What must the Secretary do upon approval of an application for certification? What is the effect of a TEDO receiving certification?
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.

What must an application for certification as a Tribal energy development organization (TEDO) include?

An application for certification as a TEDO must include documentation of the items listed in paragraphs (a) through (d) of this section.

(a) The Tribe has carried out a contract or compact under title I or IV of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5301 et seq.) for a period of not less than 3 consecutive years ending on the date on which the Tribe submits the application, and the contract or compact:

(1) Has been carried out by the Tribe without material audit exceptions (or without any material audit exceptions that were not corrected within the 3-year period); and

(2) Has included programs or activities relating to the management of Tribal land; and

(b) The TEDO is organized under the Tribe's laws;

(c) The majority of the interest in the TEDO is owned and controlled by the Tribe (or the Tribe and one or more other Tribes) the Tribal land of which is being developed; and

(d) The TEDO's organizing document:Start Printed Page 31538

(1) Requires the Tribe with jurisdiction over the land to maintain, at all times, the controlling interest in the TEDO;

(2) Requires the Tribe (or the Tribe and one or more other Tribes the Tribal land of which is being developed) to own and control, at all times, a majority of the interest in the TEDO; and

(3) Includes a statement that the TEDO is subject to the jurisdiction, laws, and authority of the Tribe.

How must a TEDO submit an application for certification?

A TEDO must submit an application and all supporting documents in written and electronic form to the Secretary at 1849 C Street NW, Washington, DC 20240, and TERA@bia.gov.

What must the Secretary do upon receipt of an application for certification as a Tribal energy development organization?

Within 90 days of receiving an application for certification as a TEDO, the Secretary must approve or disapprove the application.

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 § 224.201.

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 § 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.

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 § 224.85 of this part.

(b) The scope of a right-of-way does not exceed that of a TERA as established in § 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 § 224.86 of this part.

Start Signature

Dated: May 30, 2019.

Tara Sweeney,

Assistant Secretary—Indian Affairs.

End Signature End Supplemental Information

[FR Doc. 2019-13265 Filed 7-1-19; 8:45 am]

BILLING CODE 4337-15-P