[Federal Register: March 10, 2008 (Volume 73, Number 47)]
[Rules and Regulations]
[Page 12807-12836]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10mr08-12]
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Part II
Department of the Interior
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Bureau of Indian Affairs
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25 CFR Part 224
Tribal Energy Resource Agreements Under the Indian Tribal Energy
Development and Self-Determination Act; Final Rule
[[Page 12808]]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 224
RIN 1076-AE80
Tribal Energy Resource Agreements Under the Indian Tribal Energy
Development and Self-Determination Act
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule.
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SUMMARY: The Secretary of the Interior (Secretary) is promulgating
final regulations providing that Indian tribes, at their discretion,
may enter into business agreements and leases for energy resource
development and grant rights-of-way for pipelines or electric
transmission or distribution lines on tribal land without the
Secretary's review and approval. Indian tribes entering into such
business agreements, leases, and grants of rights-of-way must execute
them under an approved tribal energy resource agreement (TERA) between
the Secretary and the tribe. These final regulations provide the
process under which a tribe may apply for, and the Secretary may grant,
authority for an Indian tribe to review and approve leases and business
agreements and grant rights-of-way for specific energy development
activities on tribal lands through an approved TERA. The regulations
also cover processes for implementation of TERAs, including periodic
review and evaluation of a tribe's activities under a TERA, enforcement
of TERA provisions, and administrative appeals. The regulations also
include a process for a tribe's voluntarily rescinding a TERA.
DATES: This rule is effective April 9, 2008.
ADDRESSES: Further information or questions regarding this final rule
should be addressed in writing to Robert Middleton, Director, Office of
Indian Energy and Economic Development, Room 20--South Interior
Building, 1951 Constitution Avenue, NW., Washington, DC 20245. Please
include your name and return address.
FOR FURTHER INFORMATION CONTACT: Darryl Francois, Program Analyst,
Office of Indian Energy and Economic Development, Room 20--South
Interior Building, 1951 Constitution Avenue, NW., Washington, DC 20245,
Telephone (202) 219-0740 or Fax (202) 208-4564.
SUPPLEMENTARY INFORMATION:
I. Background
II. Discussion of Final Rule
III. Discussion of Comments on Proposed Regulations and Responses
IV. Procedural Matters
I. Background
The Secretary is issuing this part under authority of the Indian
Tribal Energy Development and Self-Determination Act of 2005, Pub. L.
109-58, 119 Stat. 763, 25 U.S.C. 3501-3504, and 25 U.S.C. 2 and 9.
Title V, Section 503, of the Energy Policy Act of 2005 (Pub. L.
109-58) amended Title XXVI (Indian Energy) of the Energy Policy Act of
1992 to require the Secretary of the Interior (Secretary) to promulgate
regulations that implement provisions concerning tribal energy resource
development on tribal lands. Specifically, the Indian Tribal Energy
Development and Self-Determination Act of 2005, Title XXVI, Section
2604 of the Energy Policy Act, as amended, authorizes tribes, at their
discretion, to apply for and enter into TERAs with the Secretary. Upon
Secretarial approval of TERAs, tribes may enter into energy-related
business agreements and leases, and grant rights-of-way for pipelines
and electric transmission and distribution lines, on tribal lands
without the Secretary's review and approval. Implementation of the
final regulations providing for TERAs will 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. The Act and the regulations provide another process, in
addition to the Indian Minerals Development Act and the Indian Mineral
Leasing Act, under which tribes may develop their mineral resources.
Implementation of these regulations will also support the national
energy policy of increasing utilization of domestic energy resources.
As stated in the final regulations, the Secretary will interpret and
implement these regulations and the Act in keeping with the self-
determination and energy development provisions and policies of the
Act. In drafting the proposed regulations and finalizing regulations,
the Secretary has diligently attempted to conform to the requirements
of the Act and to address concerns that arose during the tribal
consultation and discussion of the proposed regulations during the
public comment process.
The Secretary held a series of public meetings and tribal
consultations in January 2006 to solicit stakeholder and tribal
comments on the implementation of the Act. In addition, in two letters
to tribal leaders, the Secretary solicited the direct involvement of
tribes in drafting a framework for the development of proposed
regulations. The Secretary identified three primary issues based on the
written and oral comments: Whether the definition of tribal land on
which tribes may conduct TERA-authorized activities should include
tribal fee land; what criteria the Secretary will use to determine that
a tribe has sufficient capacity to regulate its energy resource
development; and what will constitute adequate environmental review of
leases, business agreements, and rights-of-way a tribe may include or
enter into under an approved TERA.
Definition of Tribal Lands--In the preamble to the proposed
regulations, the Secretary specifically sought public comment on the
alternate definition of tribal land some tribes proposed: ``Those lands
for which the Secretary has determined that interests in real property
held in fee by a tribe and located outside of Indian Country, as
defined in 18 U.S.C. 1151, are not subject to a restriction on
alienation, unless otherwise specifically imposed by Congress.'' In
addition, the alternate definition of tribal land included the
statement that ``should a final, non-appealable decision of a court of
competent jurisdiction invalidate the Secretary's determination that
such land is not subject to a restriction on alienation and conclude
such land is subject to a restriction on alienation, this definition of
Tribal land will include real property held in fee by a tribe,
regardless of location, except in those instances in which Congress has
removed the restriction on alienation.''
In comments on the proposed regulations, some tribes suggested that
this more expansive definition of tribal lands had the potential to
create more economically robust energy resource development projects by
allowing TERA projects on tribal fee land. The Act, at 25 U.S.C.
3501(12), defines tribal land as ``any land or interests in land owned
by any Indian tribe, title to which is held in trust by the United
States, or is subject to a restriction against alienation under the
laws of the United States.'' Following publication of the proposed
regulations, at Sec. 224.30 Definitions, in which the Secretary used
the statutory definition, the Secretary considered public comments
received in support of the definition in the proposed regulations and
the alternate definition of tribal land offered in the preamble. The
Secretary determined that public comments for the alternate definition
of tribal land did not provide a convincing or compelling legal
argument, nor statutory or other legal support, for changing the
statutory definition of
[[Page 12809]]
tribal land to include tribal fee land in the regulatory definition. In
response to comments, the Secretary added ``or mineral interests''
after ``interests in land'' and added ``or tribes'' after ``any Indian
tribe'' to clarify that tribal mineral interests severed from the
surface estate and tribal jointly held interests are included in the
definition of tribal land.
Criteria for Determining Tribal Capacity--The Act requires that the
implementing regulations include criteria the Secretary will use to
determine that a tribe has sufficient capacity to manage. In the
preamble to the proposed regulations, the Secretary specifically sought
public comment concerning sufficient criteria to enable the Secretary
to determine a tribe's capacity to manage the full scope of
administrative, regulatory, and energy resource development a tribe
proposes to assume under an approved TERA. The proposed regulations
require that a tribe considering entering into a TERA participate in a
pre-application process designed to provide a preliminary analysis of
the type of expertise necessary to manage the particular type of energy
resource development that the tribe contemplates. Under the proposed
regulations, as part of the TERA application process, a tribe must
describe the level of expertise it possesses to manage the energy
resource development within the scope of the proposed TERA or how the
tribe will acquire the needed expertise. As the Act requires, criteria
the Secretary developed for the proposed regulations include the
tribe's experience managing natural resources and the administrative
and financial resources that will be available to it when implementing
an approved TERA.
Environmental Review Processes--The Secretary specifically
requested comments during the consultation process and in the preamble
to the proposed regulations on additional environmental review
requirements a tribe must meet beyond the minimum included in the Act.
The regulations require that a TERA include provisions that establish a
tribal environmental review and compliance process for any potential
environmental impacts that may occur from a lease, business agreement,
or right-of-way that a tribe plans to enter into.
A main component of the regulations regarding a tribe's approval
authority for leases, business agreement, and rights-of-way is ensuring
compliance with environmental laws. Under the regulations a tribe must
include in its TERA: all required provisions for the tribe's and any
third party's compliance with Federal environmental laws in regard to
leases, business agreements, and rights-of-way entered into or granted
under an approved TERA; provisions that the tribe include public notice
and opportunity for public comment on the potential environmental
effects of leases, business agreements, and rights-of-way a tribe
proposes to enter into or grant under an approved TERA; provisions that
the tribe notify the Secretary of any violation or breach; provisions
that acknowledge that the Secretary may take various actions, including
reassumption of the authority granted in a TERA, when the Secretary
finds that there is imminent jeopardy to a physical trust asset; and
the Secretary's remedies for an interested party who shows that an
interest of the party has sustained or will sustain an adverse
environmental impact as a result of a tribe's non-compliance with the
terms of an approved TERA.
The Secretary will also develop with a tribe in the application
process, include in an approved TERA, and conduct throughout the period
an approved TERA is in effect, periodic reviews and evaluations of the
tribe's performance of the energy resource development activities a
tribe undertakes.
In addition, in conducting review of a tribe's TERA application,
the Secretary will perform a National Environmental Policy Act (NEPA)
review consistent with the scope of the tribe's proposed energy
resource development in the TERA. The Secretary will also publish in
the Federal Register a notice that the Secretary is considering a final
proposed TERA and is requesting public comment.
In addition to the three issues identified in the consultation
process discussed above, the Secretary identified several other main
issues during the public comment period discussing: what is included as
a physical trust asset and the exception of inherently Federal
functions from responsibilities a tribe may assume under a TERA.
Physical Trust Asset--The regulatory definition of physical trust
asset includes physical trust assets the United States owns in trust
for a tribe or individual Indian or that a tribe or individual Indian
owns subject to a restriction against alienation under the laws of the
United States. The regulatory definition excludes improvements to the
physical trust assets and monetary assets. A few commenters requested
that the Secretary also exclude ``water'' from the definition of
physical trust asset. The commenters suggested that water and water
rights issues have a different legal basis under federal and tribal
laws than do other natural resources and that it is not appropriate to
include water as a physical trust asset. The Secretary relied on
Section 3504(e)(6)(A)(i) of the Act that provides that the Secretary
must ``act in accordance with the trust responsibility of the United
States relating to mineral and other trust resources.''
In addition, the Secretary included the definition of physical
trust asset because of the imminent jeopardy to a physical trust asset
regulatory provisions the Act mandates. The Secretary asserts that the
inclusion of water as a physical trust asset is necessary to ensure
that any water supply to or body of water that exists on tribal land is
protected from imminent jeopardy because of a tribe's non-compliance
with a TERA or a third party's breach or violation of a lease, business
agreement, or right-of-way under a TERA or violation of applicable
tribal or Federal environmental laws. Imminent jeopardy means ``an
immediate threat of devaluation, degradation, damage, or loss of a
physical trust asset, as determined by the Secretary'' (Sec. 224.30,
Definitions). A tribe's energy resource development on tribal land may
affect physical trust assets, including water resources on its land,
adjacent Indian allotted land, or on another tribe's land. Devaluation,
degradation, or damage to, or loss of, any natural resource, including
water, because of a breach or violation of a term of a lease, business
agreement, or right-of-way under a TERA, or violation of applicable
environmental laws, are equally potentially environmentally or
financially devastating. The Secretary is required under the Act to
provide for taking actions necessary to protect the asset if the
Secretary determines that a non-compliance with a TERA or applicable
Federal or tribal environmental laws causes imminent jeopardy to a
physical trust asset or if the interest of an interested party, as
defined in the regulations, has sustained or will sustain an adverse
environmental impact due to a tribe's non-compliance with an approved
TERA. The Secretary must therefore include water, as a natural resource
and a trust resource, as a trust asset in the definition of physical
trust asset.
Inherently Federal Functions--In keeping with the intention of the
Act and the Secretary's intention to further tribes' opportunities to
manage their own energy resource development on tribal lands, the
regulations provide that tribes, at their discretion, may review
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and approve leases, business agreements, and rights-of-way associated
with energy resource development on tribal lands to tribes under
approved TERAs. In addition to the review and approval authority the
Secretary would ordinarily perform, the Act and the regulations require
that tribes provide for carrying out specific activities the Secretary
would ordinarily perform. The regulations include required provisions
for a tribe's establishing and carrying out an environmental review
process, ensuring environmental compliance in tribal approval of
leases, business agreements, and rights-of-way, and public
participation in environmental review of the effects that tribal
approval of leases, business agreements, and rights-of-way will have.
However, Congress also provided in the Act, and the regulations
state, that the United States is not absolved of any responsibility to
Indians or Indian tribes, including those derived from the trust
relationship or from any treaties, statutes, and other laws of the
United States, Executive Orders, or agreements between the United
States and any Indian tribe. In addition, under the Act and the
regulations, the Secretary must act in accordance with the trust
responsibility of the United States relating to mineral and other trust
resources and act in good faith and in the best interest of Indian
tribes. In addition, the Act and the regulations provide that the
Secretary must continue to fulfill the trust obligation of the United
States to ensure that the rights and interests of an Indian tribe are
protected ``if any other party to a lease, business agreement, or
right-of-way violates any applicable Federal law or the terms of any
lease, business agreement, or right-of-way a tribe enters into under an
approved TERA or any provision in a lease, business agreement, or
right-of-way violates the TERA under which the lease, business
agreement, or right-of-way was executed.'' Tribes with approved TERAs
must report any violation or breach of terms of a lease, business
agreement, or right-of-way or a Federal or tribal environmental law to
the Secretary. The Secretary must determine that a tribe has the
capacity to carry out the authority and the activities it proposes to
assume under a TERA before approving a TERA. Under an approved TERA,
the Secretary must conduct periodic review and evaluations of a tribe's
activities. In addition, the regulations, following the requirements of
the Act, provide that in a TERA a tribe must authorize the Secretary to
take any actions the Secretary determines are necessary to enable the
Secretary to carry out the trust responsibility upon the Secretary's
finding of imminent jeopardy to a physical trust asset.
The final regulations provide that tribes may assume activities
beyond those specified in the Act. Wherever possible within the
requirements of the Act and wherever tribal assumption of activities
would not conflict with inherently Federal functions, the Secretary
provided for as much flexibility as possible for participating tribes
in providing for tribal procedures and assumption of activities for
energy resource development under the regulations. Congress did not
expressly prohibit the use of the term ``Inherently Federal
Functions,'' and left this issue open to the Secretary when it outlined
the Secretary's trust responsibility in the Act (25 U.S.C. 3504(e)(6)).
Therefore, the regulations at Sec. 224.52(c) state that a tribe may
include in a TERA the ``assumption by the tribe of certain activities
normally carried out by the Secretary, except for inherently Federal
functions.'' The regulations further provide, at Sec. 224.53(e)(3),
that ``the tribe's intended scope of administrative activities [in a
TERA] may not include the responsibilities of the Federal government
under the Endangered Species Act or any other inherently Federal
functions.'' Under regulations for Indian self-determination, self-
governance, surface leasing and grazing, and Indian Reservation Roads,
for example, the Secretary has also reserved responsibility for
inherently Federal functions, which a tribe may not assume. While a few
commenters requested that, the Secretary define ``inherently Federal
functions,'' the Secretary declined to do so. Under the Indian Self-
Determination and Education Assistance Act (ISDEAA), as amended, the
Secretary determines inherently Federal functions on a case-by-case
basis.
In the final regulations at Sec. 224.58, the regulations provide
that in an application consultation meeting with the tribe the Director
will identify specific services, consistent with the Secretary's
ongoing trust responsibility and available resources, that the
Department will provide to the tribe upon approval of a TERA. The
Director will also discuss with the tribe the activities the tribe
proposes to assume under a TERA. It is the Secretary's policy to make
available to a tribe under an approved TERA all administrative
functions that may be lawfully contracted under the ISDEAA, as amended,
and the Federal Oil and Gas Royalty Management Act. It is the
Secretary's intention to interpret and implement this part as stated in
Sec. 224.20.
In the final regulations, the Secretary substituted the term
``activities'' for ``authority'' and ``responsibility'' where
``authority'' and ``responsibility'' were used interchangeably in the
proposed regulations for activities a tribe requests to assume in a
TERA. In the proposed regulations, the terms ``authority'' and
``responsibility'' were also used in a manner in which they
conceptually overlapped. In order to clarify meanings and distinguish
what authority a tribe obtains and what other activities a tribe may
assume under an approved TERA, the Secretary determined that the term
``responsibility'' relates to an inherently Federal function for which
the Secretary must retain final decision-making. The term ``authority''
is properly used in connection with a tribe's review and approval of
leases, business agreements, and rights-of-way to denote the effect of
an approved TERA. Under an approved TERA, the Secretary is granting
authority to a tribe to review and approve these instruments without
Secretarial approval. Therefore, the Secretary has maintained use of
the term ``authority'' when it applies to the Secretary's grant to a
tribe under an approved TERA. The Secretary has replaced the term
``authority'' or ``responsibility'' with ``activity'' or ``activities''
when referencing what a tribe may assume from the Secretary, in
addition to review and approval authority for leases, business
agreements, and rights-of-way, under an approved TERA.
In addition to the issues discussed above, in several instances the
Secretary found that clarification under the requirements of the Act
were necessary, as discussed below.
Miscellaneous Provisions--In order to meet the Secretary's
commitment to develop implementing regulations that conform to the
requirements of the Act, where the Secretary found provisions in the
regulations that incompletely reflected specific provisions of the Act,
the Secretary revised them to accurately reflect the requirements of
the Act. In addition, the Secretary included the following items in the
final regulations after review and consideration.
Recordkeeping Requirements--Based on the Act's requirements, the
Secretary carefully reviewed provisions for items required for
inclusion in a TERA under Sec. 224.63. The Secretary added Sec. Sec.
224.63(k) and 224.56(l) to subpart B, requiring that tribes include
provisions for recordkeeping in TERAs. Under these sections, tribes
must create,
[[Page 12811]]
maintain and preserve records concerning the activities and leases,
business agreements, and rights-of-way it enters into under a TERA. The
Secretary must have available at periodic reviews and evaluations
sufficient documentation to allow for meaningful review and evaluation
of a tribe's energy development activities under a TERA. In addition,
in the event a tribe voluntarily rescinds a TERA or the Secretary
reassumes a TERA, the Secretary must ensure that the tribe has
appropriate records to provide to the Secretary to allow the Secretary
to carry out the activities the tribe assumed; ensure compliance with
the leases, business agreements, or rights-of-way the tribe has entered
into with third parties; protect physical trust assets; and discharge
the United States' trust responsibility. Addition of this recordkeeping
provision is not a substantive change since the Act and Sec. 224.32(e)
provide that under a TERA the tribe must provide the Director with
``records and documents relevant to the provisions of an agreement.''
In addition, the Act and the final regulations provide that upon a
tribe's notifying the Secretary of a violation or breach, the Secretary
may ``review relevant transactions and reports.''
Definition of Violation or Breach--Upon the review of the
regulations, the Secretary determined that the definition of
``violation or breach'' in Sec. 224.30 should follow the definition in
the Act. Therefore, in order to complete the definition of ``violation
or breach'' in Sec. 224.30, the Secretary added ``other'' before
``violation'' and added ``by another party'' after ``violation.'' The
Secretary also added ``any provision in'' before ``lease'' and added,
``under a TERA or any activity or occurrence under a lease, business
agreement or right-of-way that constitutes a violation of'' before
``Federal or tribal environmental law.''
Provision for Hearing on Determination of Non-Compliance With
TERA--The proposed regulations did not include a provision for a
hearing for a tribe upon the Director's determination that the tribe is
not in compliance with the terms of its approved TERA. The Secretary
added a provision for a hearing for a tribe to Sec. 224.121 at (a),
along with a provision granting a tribe a reasonable opportunity to
comply with the TERA. The provision was inadvertently left out of the
proposed regulations. The Secretary wanted to acknowledge that a tribe
has due process rights in this section.
II. Discussion of Final Rule
The final regulations include the specific regulatory provisions
the Act required for TERAs: (1) Criteria for determining that a tribe
has sufficient capacity to regulate the development of its energy
resources; (2) a scope of, and procedures for, Secretarial review and
evaluation of tribal action under a TERA, including provisions for
review of transactions, reports and site inspections, and any other
review processes the Secretary deems appropriate; (3) provisions for
final agency actions after exhaustion of administrative appeals of
Secretarial decisions regarding interested party petitions; and (4) a
process and requirements for a tribe's voluntarily rescinding a TERA
and returning to the Secretary the review and approval authority for
future leases, business agreements and rights-of-way for energy
resource development. The regulations also provide for a tribal
application process for a TERA, tribal consultation throughout the pre-
application and application processes, and a process for Secretarial
review and approval of TERAs. The regulations require that the
Secretary provide notice of, and an opportunity for public comment on,
a final proposed TERA. In addition, the regulations require that a TERA
include provisions that cover tribal environmental compliance measures
and a process for review of any potential environmental impacts to
areas affected by activities that the tribe could approve under the
TERA. Further, the final regulations provide processes for tribes and
the Secretary to take any action necessary to protect physical trust
assets if activities undertaken under an approved TERA cause imminent
jeopardy to a physical trust asset. The regulations also require that
the Secretary take any action necessary upon a third-party lessee's
non-compliance with a lease or agreement or right-of-way or a violation
of a Federal or tribal environmental law results in imminent jeopardy
to a physical trust asset.
Because an approved TERA is the decisional and operational document
governing tribal authority to approve leases and business agreements
on, and to grant rights-of-way, over tribal land, the Act requires that
specific provisions be included in a TERA. In addition to requiring
that a tribe provide information regarding its capacity to assume
certain duties, a TERA, pursuant to the Act, also sets forth detailed
provisions a tribe must include in a lease, business agreement, or
grant of right-of-way to ensure environmental compliance, including
reporting violations and breaches of leases, business agreements, and
rights-of-way and violations of Federal and tribal environmental laws
to the Secretary. TERAs must also specify that the Secretary will
conduct periodic reviews and evaluations of a tribe's performance under
a TERA. During the application consultation, the Director and the tribe
will develop a periodic review and evaluation process that addresses
the tribe's specific circumstances and the tribe will include the
process in its final TERA. The regulations also provide that a tribe
may voluntarily rescind its authority to the Secretary. Under the
regulations, the Secretary may reassume all of a tribe's activities
under a TERA under very specific circumstances. Consequently, the
Secretary carefully reviewed provisions requiring items to be included
in a TERA. The Secretary added Sec. Sec. 224.63(k) and 224.63(l) to
subpart B, to provide that tribes include a provision for recordkeeping
in each TERA. Under this section, tribes must create, maintain and
preserve records concerning the leases, business agreements, and
rights-of-way it enters into under a TERA. The Secretary must have
available at periodic reviews and evaluations sufficient documentation
to allow for meaningful review and evaluation of a tribe's energy
development activities under a TERA. In addition, in the event a tribe
voluntarily rescinds a TERA or the Secretary reassumes a TERA, the
Secretary must ensure that the tribe has appropriate records to allow
the Secretary to carry out the activities; protect physical trust
assets; and discharge the United States' trust responsibility. The
Secretary does not consider the addition of this section to be a
substantive change, since Sec. 224.32(e) already requires that the
tribe provide the Director with ``records and documents relevant to the
provisions of an agreement.''
III. Discussion of Comments on Proposed Regulations and Responses
The Secretary received input from 20 commenters on the proposed
regulations published in the Federal Register on August 21, 2006 (71 FR
48626). Tribes, private companies, tribal organizations, non-
governmental associations, a Federal government agency, and individuals
provided written comments. A number of comments indicated that
commenters were not familiar with provisions of the Act from which we
developed the regulations. In responses to comments, the Secretary
indicated where the Act required specific provisions in the
[[Page 12812]]
regulations. Public comments and the Secretary's responses are arranged
first by general comments and then by comments to subpart and/or
section. We have included responses only to substantive comments. Where
commenters suggested minor editorial revisions such as changes in
grammar or minor word changes that we accepted, we have made such
changes to the regulations, but have not included these comments in the
responses that follow. In addition, in final review of these
regulations, we identified minor editorial revisions and provisions
that required edits, either to clarify a section or to provide for
agreement between the regulations and the Act. We made those changes.
In a few instances, we identified items that we wanted to add to
sections either to clarify the section or to provide for agreement
between the regulations and the Act. We also made those changes. We did
not make substantive changes in any of these instances, and have
provided a discussion of them in this document.
Subpart A--General Provisions
Section 224.20 How will the Secretary interpret and implement this Part
and the Act?
Several commenters requested that the Department impose specific
timeline requirements on tribes for energy development activities that
they manage under a TERA or mandate that tribes develop processes that
parallel state and federal practices. In fulfilling the requirement to
write implementing regulations for Title V--Indian Energy of the Act,
we have imposed specific requirements where appropriate or mandated by
the Act. In other places, we have allowed as much flexibility as
possible to participating tribes in accordance with the mission of the
Department to advance the objectives of the Indian Self-Determination
and Education Assistance Act, as amended, and in recognition of tribal
sovereignty. The regulations in Sec. 224.20 incorporate the
Department's attempt to balance requirements of the Act and the
flexibility tribes need to facilitate economic development.
Section 224.30 What definitions apply to this Part?
There were several comments concerning definitions. Several
commenters said that the use of the term ``agreement'' throughout the
regulations, when referring to a Tribal Energy Resource Agreement
(TERA), was confusing and could lead to misinterpretation of the
regulations. We agree with these commenters, and throughout the final
rule, we replaced the term ``agreement'' with ``TERA,'' where
appropriate, and added a definition of TERA to Sec. 224.30. In the
Preamble of the proposed rule, the Secretary published an alternate
definition of the term ``tribal land'' and sought comment on how the
term ``tribal land'' should be defined. The Secretary received comments
on both the proposed definition and the alternate definition of tribal
land. The Secretary determined that the definition of tribal land at
Sec. 224.30, which follows the definition in the Act at 25 U.S.C.
3501(12), is the appropriate definition.
Some commenters suggested that the definition of ``Interested
Party'' unfairly limits the interests of parties that could appeal
actions taken under a TERA. The Secretary recognizes the limitation of
the definition, but it follows the definition in the Act. In addition,
there are other avenues for appeal of TERA approved actions in Subpart
I Appeals. A few commenters suggested that the Secretary constrain the
definition of Violation or Breach by inserting the word ``significant''
to indicate that only a violation or breach of a certain degree of
seriousness would require Secretarial action. The definition the
Secretary uses follows the definition in the Act. In addition, under
the definition the Secretary has discretion to determine the
seriousness of the violation or breach within the context of the
approved TERA. Some commenters suggested excluding water from the
definition of a ``Physical Trust Asset.'' The Secretary determined that
the regulations must include a definition of ``Physical Trust Asset''
because the Secretary has a trust responsibility for natural resources
and the Act mandates provisions dealing with a breach or violation that
has caused or will cause ``imminent jeopardy to a physical trust
asset.'' The Secretary determined that the inclusion of water as a
physical trust asset is necessary to ensure that any water supply or
body of water that exists on tribal land has protection from imminent
jeopardy because of the action or inaction of a tribe or a third party
under a TERA.
Section 224.40 How does the Act or a TERA affect the Secretary's trust
responsibility?
One commenter asked that the regulations reflect the Secretary's
ongoing accountability for stewardship of energy and other subsurface
resources. Another commenter requested that the Secretary state the
specific requirements of the trust responsibility. We note that the
proposed regulations in Sec. 224.40 states that the Secretary
continues to maintain trust responsibilities (as defined by statutes
and regulations under U.S. v. Mitchell, 463 U.S. 206 (1983) and its
progeny) and that the regulatory language is consistent with the Act at
25 U.S.C. Section 3504(e)(6)(B). One commenter objected to Sec.
224.40(d), which relieves the Secretary of liability for any losses
resulting from a business agreement, lease, or right-of-way granted
under a TERA, and claims that this provision is inconsistent with the
Secretary's obligation to intervene where imminent jeopardy to a
physical trust asset occurs under a business agreement, lease, or grant
of right-of-way. However, this provision is entirely consistent with
the language of the Act which states that the Secretary `` shall not be
liable to any party (including any Indian tribe) for any negotiated
term of, or loss resulting from the negotiated terms for, a lease,
business agreement, or right-of-way executed pursuant to and in
accordance with a tribal energy resource agreement approved by the
Secretary.'' The Secretary believes that the regulations outlined in
Subpart E are sufficient to protect physical trust assets from imminent
jeopardy conditions. Another commenter asked what form a TERA would
take. The language of the Act and the regulations provide that an
approved TERA is the Secretary's grant of authority to a tribe to
approve leases, business agreements, or rights-of-way for specific
energy development activities on tribal lands. The Secretary conditions
this grant of authority on the Secretary's periodic review and
evaluation of the tribe's compliance with the terms of the TERA and
these regulations as mandated by Title V, Section 503 of the Energy
Policy Act of 2005. The final regulations contain provisions under
which the Secretary may reassume the authority granted to the tribe
under a TERA. One commenter expressed concern that in the case of
jointly held tribal land that Sec. 224.41 should specifically refer to
``tribal minerals.'' However, the definition of tribal land in Sec.
224.30 includes ``land or interests'' owned by a ``tribe or tribes''
and therefore jointly held mineral interests are covered in the final
regulations.
Subpart B--Procedures for Obtaining Tribal Energy Resource Agreements
A commenter expressed concern that the Secretary would not fully
consult with tribes on the range of opportunities available to
determine the scope of energy development and regulatory authority that
they may want to assume under a TERA. The commenter suggested that the
Secretary apprise
[[Page 12813]]
tribes of financial resources available to help them develop the
expertise and capacity to develop their energy resources. In response,
the Secretary notes that the regulations under Subparts B and C require
the Secretary to conduct a thorough consultation process with a tribe
applying for a TERA that will lead to a comprehensive review of the
capacity of a tribe to conduct the activities that are the subject of a
TERA. In addition, under Subpart F, the Secretary will conduct periodic
review and evaluation of the tribe's compliance with a TERA to identify
any inadequacy in the tribe's capacity to perform under the
requirements of its approved TERA. If the Secretary identifies any
inadequacies in the tribe's capacity to implement the provisions of the
TERA, the Secretary will communicate those concerns and incorporate
those findings in a decision to allow the tribe's activities to
continue or to reassume the authority granted to the tribe in the TERA.
Finally, in Sec. 224.63(h), the regulations require that the TERA
identify the financial assistance, if any, that the Secretary has
agreed to provide to the tribe to assist in the implementation of the
TERA, including the tribe's environmental review of individual energy
development activities. In addition, Sec. 224.89 of the regulations
requires that the Secretary and the tribe consult regarding the extent
of Secretarial assistance, if any, to enforce leases, business
agreements or rights-of-way entered into under a TERA.
Some commenters noted that the regulations should retain the
greatest flexibility possible to allow tribes to acquire the
appropriate level of involvement with a TERA.
The Secretary recognizes the need for ongoing consultation with
tribes during the process of approval and implementation of a TERA. The
regulations include a pre-application consultation process at Subpart
B, Sec. Sec. 224.51-53. In addition, Sec. Sec. 224.58-62 outline the
consultation process that begins with receipt of a tribe's formal
application for a TERA. Finally, at many points throughout the TERA
review, approval, and monitoring process the Secretary will consult
with the tribe when making decisions about the tribe's TERA. Throughout
the consultation processes and implementation of TERAs, the Secretary
will strive to include officials at the local level as well as
officials that deal with Indian affairs in other bureaus within the
Department, relevant Federal agencies outside the Department, and the
Department's advisory committee in discussions with the tribe.
Section 224.52 What may a tribe include in a TERA?
In Sec. 224.52(c), the Secretary states that a tribe may assume
under a TERA ``* * * certain activities normally carried out by the
Secretary, except for inherently Federal functions.'' Several
commenters objected to the exclusion of inherently Federal functions
from a TERA. These commenters either wanted the exclusion deleted or
expanded into a definition. In response, the Secretary notes that
Congress did not expressly prohibit the use of the term ``Inherently
Federal Function,'' and left this issue up to the Secretary's
discretion when it outlined the Secretary's trust responsibility in the
Act (25 U.S.C. Section 33504(e)(6)(A) and (B)). The Secretary therefore
determined that exclusion of inherently Federal functions from a TERA
is consistent with the Act and other legislation, specifically the
Indian Self Determination and Education Assistance Act, as amended.
Furthermore, the pre- and post-application consultation process between
tribes and the Department outlined in the regulations should enable the
tribes and the Department to reach an agreement as to what activities a
tribe can assume under a TERA.
Section 224.53 What must an application for a TERA contain?
This section describes the various elements that a TERA application
must contain. One commenter said that the provision in Sec. 224.53
went beyond the provisions of the Act. However, the Secretary
determined that the regulations are fully consistent with the Act's
stated purpose of assisting Indian tribes in the development of their
energy resources and furthering the goal of Indian self-determination.
Furthermore, the specific provisions of the Act that are codified at 25
U.S.C. 3504(e)(2)(B)(i) provide that the Secretary shall approve a TERA
if the Secretary determines that the Indian tribe has demonstrated
sufficient capacity to regulate the development of its energy
resources. At the tribe's discretion, the tribe may include the full
range of development activities in its TERA application which the
Secretary must approve or disapprove.
Several commenters requested that the regulations provide an ``opt
out'' clause for tribes so that tribes may choose to pursue agreements
outside the TERA process. The Secretary notes that a tribe is not
required to enter into a TERA to pursue energy development activity. In
fact, the Act and the regulations provide that it is a tribe's
discretion whether to enter into a TERA. When applying for a TERA, a
tribe may preserve the option to use the provisions of the Indian
Mineral Development Act, or other existing authorities, to pursue
energy development on tribal land by complying with the requirements in
Sec. 224.53(c)(1) and (2).
Some commenters seek to insert language to clarify that after a
TERA goes into effect, tribes may amend existing leases, business
agreements, and rights-of-way and exercise TERA regulatory authority
under a TERA with respect to the existing agreements to promote
efficient administration of energy resource development projects on
tribal land. The Secretary agrees with the commenters and has added
clauses (c)(3) and (e)(3) to Sec. 224.53 to allow a tribe to state its
intent to amend or modify (with the agreement of relevant third
parties) leases, business agreements, and rights-of-way that exist when
a TERA is approved, if those activities are directly related to the
activities authorized by the TERA.
Section 224.55 Is information a tribe submits throughout the TERA
process under this Part subject to disclosure to third parties?
Although this section states that a tribe may identify information
it determines is confidential and proprietary, one commenter requested
that the regulations outline the process the Secretary will use if it
receives a Freedom of Information Act (FOIA) request concerning a TERA.
The Secretary does not think it is necessary to outline the procedures
in these regulations, because we will follow the procedures found at 43
CFR Part 2. This commenter also requested the addition of language to
the regulations that would require that the Secretary consult with the
tribe before responding to a FOIA request. The Department will comply
with applicable sections of both FOIA (5 U.S.C. 552) and the
Departmental regulations (43 CFR Part 2) in responding to FOIA requests
for tribal information submitted in pre-application and application
processes.
Section 224.59 How will the Director use the results of the application
consultation meeting?
One commenter noted that this section does not sufficiently
describe the factors the Secretary will consider based on the
information from the application consultation meeting. In response, the
Secretary revised the section so that it refers to the specific
[[Page 12814]]
sections in which the regulations describe the evaluation process.
Section 224.62 May a final proposed TERA differ from the original
proposed TERA?
A commenter requested that time limits on the review process for a
TERA change only with the consent of the affected tribe when changes
are made between the original proposed TERA proposal and the final
proposed TERA. We agree with this request and modified the language in
Sec. 224.62(b) to indicate that tribal consent is required.
Section 224.63 What provisions must a TERA contain?
Several commenters questioned the environmental review provisions
in Sec. 224.63(c). One commenter said that the regulations did not set
a ``real standard'' for what would constitute an ``appropriate''
environmental evaluation for activities proposed under a TERA. Other
commenters noted that the provisions are more stringent than what is
required under the National Environmental Policy Act (NEPA). In
response, the Secretary agrees that the provisions in Sec. 224.63(c)
go beyond the requirements of NEPA. However, this language is
consistent with the requirements of the Act at 25 U.S.C.
3504(e)(2)(C)(i)-(ii). With respect to environmental review, we agree
that it is the Secretary's responsibility to ensure that the
environmental review process that the tribe proposes as part of the
TERA is sufficient to ensure that the tribe identifies, evaluates, and
mitigates foreseeable impacts during energy resource development. The
Secretary will address the process and procedures to use in this
evaluation, guided by the specifics of each tribe's TERA proposal as we
implement these regulations.
Another commenter requested that the Secretary require that all
tribes use the same royalty accounting methodology. However, in
fulfilling the requirement to write implementing regulations for Title
V--Indian Energy of the Act, also called the Indian Tribal Energy and
Self-Determination Act of 2005, the Secretary has imposed specific
requirements where appropriate or mandated by the Act. In other
sections, the Secretary has allowed as much flexibility as possible to
participating tribes in accordance with the mission of the Department
to advance the objectives of the Indian Self-Determination and
Education Assistance Act, as amended, and in recognition of tribal
sovereignty.
One commenter noted that it is important to provide that the option
for a lease, business agreement, or right-of-way may have retroactive
application from the date it becomes effective because parties in
commercial transactions often fix the operative date of a transaction
as the date upon which an agreement was reached. The Act provides that
a lease, business agreement, or right-of-way becomes effective when a
tribe executes it and mails it to the Secretary. Therefore, in these
regulations the Secretary agrees that commercial considerations may
necessitate a retroactive applicability date for a lease, business
agreement or right-of-way. We modified Sec. 224.63(c)(14) to allow for
a lease, business agreement, or right-of-way to become applicable
retroactively by agreement of the tribe and other parties, under
certain conditions.
Another commenter noted that in the proposed regulations we used
the word ``reassume'' in Sec. 224.63(c)(13), but the Act uses the word
``suspend.'' We have made the word change to make the regulations
consistent with the Act. The same commenter also suggested re-
designation for clauses (c)(15) to (c)(21). We agree with the
suggestions, in part, and have changed Sec. 224.63(c)(15) to Sec.
224.63(d) and have similarly re-designated the clauses that follow from
Sec. 224.63(c)(16) to (21) to Sec. 224.63(e) to (j).
Section 224.67 What must the Secretary do upon the Director's receipt
of a final proposed TERA?
One commenter said that it was not clear if the public notification
of a TERA application would also provide access to the proposed TERA,
and suggested that the public should have sufficient time to review any
proposed TERA. We note that the regulations clearly state at Sec.
224.67(a) that the Federal Register notice shall advise the public on
how to request and receive copies of the final proposed TERA from the
Secretary. Since this is a NEPA process (40 CFR 1502.25(a)), the
Department will follow the longstanding procedures of the Federal
government outlined in its NEPA public notice procedures to allow the
public sufficient time to review the proposed TERAs.
Subpart C--Approval of Tribal Energy Resource Agreements
Section 224.70 Will the Secretary conduct a review of a final proposed
TERA under the National Environmental Policy Act (NEPA)?
Several commenters asked that we insert clarifying language in
Sec. 224.70 that the Secretary's NEPA review is triggered by a tribe's
submittal of a TERA for review and approval, but that such review does
not extend to subsequent leases, business agreements, or grants or
rights-of-way that a tribe may enter into with third parties pursuant
to an approved TERA. The Secretary agrees that this is the intent of
the Act and we have added language to Sec. 224.70 of the regulations
to make this clear.
One commenter stated that the relationship between these
regulations, NEPA, and other Federal laws was unclear. The Secretary
believes that the language in the proposed regulations at Sec. 224.70
is consistent with the NEPA public notice and public comment
requirements at 40 CFR 1503 and 1506. Furthermore, the Secretary will
comply with all applicable Federal laws in the TERA review and approval
process. In addition, one commenter noted that some projects might not
be viable unless a tribe can opt out of the environmental review
process required to be included in the TERA. We note that the proposed
regulations already addressed this issue at Sec. 224.53(c)(1), which
we have retained in the final regulations. This provision of the
regulations provides a tribe an opportunity to identify resources on
tribal land or parts of tribal land that the tribe does not want to
include in the proposed TERA.
Section 224.72 How will the Secretary determine whether a tribe has
demonstrated sufficient capacity?
One commenter objects to the Secretary approving a TERA because
other provisions in the Act that would build tribal capacity have not
been put in place. Until these provisions have been implemented for a
considerable time, according to the commenter, all tribes should be
prevented from taking advantage of the TERA program. In response, the
Secretary states that, in fulfilling the Act's requirement to develop
implementing regulations for Title V--Indian Energy of the Act, also
called the Indian Tribal Energy and Self-Determination Act of 2005, we
have imposed specific requirements where appropriate or mandated by the
Act. In other places, we have allowed participating tribes as much
flexibility as possible in accordance with the mission of the
Department to advance the objectives of the Indian Self-Determination
and Education Assistance Act, as amended, and in recognition of tribal
sovereignty.
In addition, given the varying experiences of tribes with managing
their energy resources, the Secretary cannot ignore the intent and will
of Congress in the Act, which is to provide tribes with an additional
tool to enhance their financial sovereignty while
[[Page 12815]]
requiring a thorough evaluation of the tribe's capacity to develop its
own resources. The Secretary will diligently carry out the regulations'
requirement that the Secretary evaluate a tribe's technical, financial,
and administrative capacity in full consultation with the tribe and in
response to individual proposed TERAs. A couple of commenters indicated
that the language in this section should make it clear that the
Secretary's determination of tribal capacity to manage energy
development under a TERA is limited to the administrative and
regulatory activities the tribe seeks to assume from the Secretary, and
not specific projects that a tribe may seek to develop under a TERA. In
response, we have made changes consistent with these comments. Finally,
one commenter objected to a provision in Sec. 224.72(i) that allows
the Secretary, in evaluating tribal capacity to assume energy
development regulatory authority, to determine ``any other relevant
factors'' for consideration. In response to this comment, the Secretary
notes that the Act specifically provides this discretion to the
Secretary.
Section 224.73 How will the scope of energy resource development
proposed in a tribe's TERA affect the Secretary's determination of the
tribe's capacity?
One commenter stated that the language in this section again
suggests that a TERA will include a description of each energy resource
development subject to a TERA and that tribes will have to go through
multiple capacity determinations as each proposed development project
arises under a TERA. We agree that this is not the intent of the Act.
We have revised the language in this section to indicate that the
Secretary's capacity determination will include a determination as to
each type of energy resource development subject to the TERA which the
tribe seeks to regulate and each type of administrative or regulatory
activity the tribe proposes to assume. Furthermore, the section now
makes it clear that the Secretary's review of a TERA is limited to
activities specified by its provisions. Another commenter requested
that we change the word ``manage'' in Sec. 224.73 to ``monitor,''
stating that this would be consistent with language in Sec. 224.71(b).
The Secretary believes that the word ``manage'' is consistent with
intent of the Act, and, in response, has made a change in Sec. Sec.
224.71(b) and 224.72 to refer to tribe's intent to ``manage''
regulatory activities under a TERA.
Section 224.75 What must the Secretary do upon approval or disapproval
of a final proposed TERA?
In this section, a commenter objected to the inclusion of the terms
``if any'' in reference to revisions in Sec. 224.75(b)(2). The
commenter stated that addition of ``if any'' contradicts the language
and one of the purposes of the Act, which is to ``provide the Indian
Tribe with an opportunity to revise and resubmit the tribal energy
resource agreement.'' Under the Act, if the Secretary disapproves of
the submitted TERA, the Secretary is required to state the ``changes or
other actions'' a tribe is required to submit to address the
Secretary's concerns. Therefore, the commenter recommends that we
delete the phrase ``if any.'' The Secretary agrees with this comment,
and we have made the suggested change. Another commenter suggested that
in Sec. 224.75(c), where there is a reference to complying with FOIA,
that the regulations refer to the disclosure procedures in Sec.
224.55. The Secretary agrees that this proposed change would clarify
the regulations and has eliminated the references to FOIA in Sec.
224.75(c).
Subpart D--Implementation of Tribal Energy Resource Agreements
Section 224.82 What activities will the Department continue to perform
after approval of a TERA?
A commenter said that Sec. 224.82(e) is ambiguous and needs
clarification. The commenter specifically requested that the reference
to Department ``activities'' should be changed to ``services.'' The
commenter also stated that the phrase ``does not affect'' is unclear.
We agree with the comments about the ``does not affect'' language and
have revised this section. For the purposes of consistency with other
provisions of the regulations, we are not changing ``activities'' to
``services.'' Another commenter sought the addition of a subsection
that would state that the Department would provide ``access to leases,
agreements, rights-of-way, and other contracts entered into between the
tribe and any third party.'' The Secretary believes the existing
language in Sec. 224.82(a) and (e) has the same effect as proposed by
this commenter. In addition, we note that when a tribe enters into a
TERA, the Department's existing responsibilities to provide information
or services to the tribe remains unchanged.
Section 224.84 When may a tribe grant a right-of-way?
One commenter said that this section contained too many limitations
on a tribe's ability to grant a right-of-way. The Secretary notes that
the limitations in the regulations regarding rights-of-way are fully
consistent with the Act. Another commenter suggested that the authority
for ``* * * renewals of leases and rights of ways and other rights
under the current TERA regulations should be included and be clear and
flexible enough to allow a project to retain its lease or other rights
as long as a project is being depreciated.'' The Secretary agrees with
this comment. In response, we added a Sec. 224.86(d) that states that
when a tribe enters into a lease or business agreement or grants a
right-of-way, at its discretion, this tribe may renew the lease,
business agreement, or right-of-way as long as the TERA remains in
effect and as long as the tribe still has the authority to approve
leases and business agreements, and grant rights-of-way under the TERA.
Section 224.85 When may a tribe enter into a lease or business
agreement?
A couple of commenters said that Sec. 224.85 is too narrow in its
limitation of energy resource development activities and it could be
interpreted to preclude tribes from entering into agreements for
processing minerals or other activities which include non-tribal
sources of production. These commenters suggested that the Secretary
delete this section of the regulations or modify it to indicate that a
tribe may enter into a lease or business agreement for the purpose of
energy resource development on ``or affecting'' tribal land. In
response, the Secretary notes that the Act limits energy resource
development projects to those that develop resources on tribal land as
defined in Sec. 224.30 and so has not made the requested change.
Section 224.86 Are there limits on the duration of leases, business
agreements, and rights-of-way?
One commenter noted that no mention was made of how to deal with
renewals of leases, business agreements, and rights-of-way under a
TERA. As noted before, the Secretary agrees with this comment and in
response has added a Sec. 224.86(d) that states that when a tribe
enters into a lease or business agreement or grants a right-of-way, it
may be renewed at the discretion of the tribe as long as the TERA
remains in effect and as long as the tribe still has the authority to
approve leases, business agreements, or rights-of-way under the TERA.
Another commenter requested that we change the phrase ``in terms''
to ``on the duration'' to clearly indicate that this section deals with
the temporal existence of leases, business agreements,
[[Page 12816]]
and rights-of-way under a TERA and not the legal ``terms'' and
conditions. The Secretary agrees with this comment and has made the
requested change.
Section 224.87 What are the obligations of a tribe if it discovers a
violation or breach?
A commenter suggested we clarify this section to state that
Secretarial responsibilities also apply to third-party violators and
that Sec. 224.89 should be cross-referenced in these other sections to
better clarify the delineation of actions by the Secretary. In response
to this comment we have made specific reference to third party actions
in Sec. 224.87 and in the Sec. 224.30 definition of imminent
jeopardy.
Subpart E--Interested Party Petitions
Section 224.100 May a person or entity ask the Secretary to review a
tribe's compliance with a TERA?
One commenter suggested that we delete this section because it
creates a conflict of interest for the Secretary in its requirement
that the Secretary act as an arbiter of a dispute between a tribe and a
third party petitioner. The commenter stated that this would be a clear
violation of the Secretary's trust responsibilities. Another commenter
suggested that this Subpart implies that a tribe waives its sovereign
immunity when it enters into a TERA. The Secretary notes that the
language in Subpart E regarding the rights of a third party petitioner
is identical to language in the Act codified at 25 U.S.C. 3504(e)(7)(A)
and (B). The Act expressly provides that any person or entity, who is
an interested party, as defined in the Act, may file a petition
alleging that a tribe is not complying with a TERA. The Act also
provides that an interested party must first exhaust tribal remedies if
the tribe has enacted laws, regulations, or procedures providing tribal
remedies. There is no waiver of sovereign immunity implied or intended
in the Act or these regulations.
Section 224.101 Who is an interested party?
Several commenters objected to this regulatory provision as too
broad, and permitting ``anyone who claims a hypothetical or other form
of inadequate `interest' to participate as an `interested party' '' or
that ``* * * such a loose standard may create a cause of action where
no actual standing exists.'' One commenter requested that we define
``Interested Party'' in Sec. 224.101 as a person or entity ``that has
demonstrated that a legally cognizable interest of the person or entity
in property or a resource has sustained, or will sustain, an adverse
environmental impact because of a tribe's failure to comply with an
agreement.'' The commenter notes that this suggested definition is
consistent with the Department's existing administrative appeal
practice at 43 CFR 4.410(d) (requiring a legally cognizable interest).
In response, the Secretary notes that Congress defined this term in the
Act as codified at 25 U.S.C. 3504(e)(7)(A). In developing the
regulations, the Secretary cannot limit the definition when the Act
does not do so.
Section 224.106 If a tribe has enacted tribal laws, regulations, or
procedures for challenging tribal action, how must the tribe respond to
a petitioner's challenge?
One commenter noted that while under Sec. 224.106(a) a tribe must
respond within a ``reasonable'' time, the regulation should include a
specified time period no longer than 30 days. In fulfilling the
requirement to write implementing regulations for the Act, the
Secretary has imposed specific requirements where appropriate or
mandated by the Act. In other places, such as this section, the
Secretary has allowed as much flexibility as possible to participating
tribes in accordance with the mission of the Department to advance the
objectives of the Indian Self Determination and Education Assistance
Act, as amended, and in recognition of tribal sovereignty.
Section 224.107 What must a petitioner do before filing a petition with
the Secretary?
One commenter stated that Sec. 224.107(a) should explicitly
require a petitioner to use ``any appeals or appellate court review''
allowed under the tribe's laws. The inclusion of such language would
ensure that a petitioner must proceed through all available tribal
remedies prior to filing a petition with the Secretary. We have added
``including any tribal appeal process'' to Sec. 224.107. In addition,
we note that Sec. 224.109(c) requires a petitioner to include specific
facts demonstrating that the petitioner has exhausted tribal remedies
in the petition. Also, in Sec. 224.113, a tribe may state whether the
petitioner has exhausted tribal remedies in its response to a petition.
Another commenter said that this section lists as a prerequisite to
filing a petition that a petitioner has participated in a tribal
hearing or comment process regarding allegations of tribal non-
compliance with its TERA. The commenter suggests that a petitioner
should have participated in a tribal hearing or comment process
regarding the tribe's proposed activity, if such a process was
provided, in addition to exhaustion of tribal remedies, if any, for
alleging non-compliance with a TERA. The Secretary believes that this
would place an unfair burden on a petitioner to have known with
foresight the full range of potential impacts and their magnitude prior
to their implementation. The Secretary believes that the provision, as
written, reflects the intent of Congress.
Section 224.110 When may a petitioner file a petition with the
Secretary?
One commenter recommended that we shorten to 30 days the 45-day
period for filing a petition that Sec. 224.110(a) allows after receipt
of the tribe's written decision on a petition, noting that Act did not
specify a period for filing a petition for review and 30 days should be
adequate for doing so. The Secretary agrees with the commenter and has
made the change.
Section 224.115 When must the Director make a threshold determination
about a petition?
A commenter objected to Sec. 224.115(c), which allows the Director
to reject the resolution mutually agreed upon by the tribe and the
petitioning party. The commenter expressed the opinion that resolution
of such disputes should be encouraged. The Act provides that ``[t]he
Secretary [shall take certain steps to ensure compliance with a TERA]
only if the Indian tribe fails, refuses, is unable to cure or otherwise
resolve each claim made in the petition within a reasonable period, as
determined by the Secretary, after the expiration of the [consultation]
period.'' 25 U.S.C. 3504(e)(7)(C)(iii)(II). The commenter understands
the language ``as determined by the Secretary'' gives the Secretary the
right to determine what is a reasonable period, not to reject a
settlement that the tribe and petitioning party have reached. The
commenter suggests changing ``may'' to ``will'' in line 7 of Sec.
224.114 and deleting Sec. 224.115(c). However, the Secretary believes
that the existing language in this section is consistent with the
intent of the Act, and fulfills the Department's residual trust
responsibility as noted in the Act (25 U.S.C. 3504(e)(6)(A)(I) and
(ii)) and Section 3504(e)(6)(B)) to consider the best interests of the
tribe and the protection of trust resources in the Secretary's
decision-making. Therefore, the Secretary declines to make the
suggested change.
[[Page 12817]]
Section 224.117 When must the Director dismiss a petition after making
a threshold determination about a petition?
A commenter suggested that Sec. 224.117(b) include as a basis for
dismissal that a petitioner's lack of participation in a tribal hearing
or comment process regarding the tribe's proposed activity, as well as
failing to exhaust tribal remedies, if any, for alleging non-compliance
with a TERA. The Secretary determined in response to a comment for
Sec. 224.107 that participation in a tribal hearing or comment process
regarding a tribe's proposed activity under a TERA as a prerequisite
for filing a petition would place an unfair burden on a petitioner and
declined to make the suggested change. The Secretary also declines to
make the suggested changes to Sec. 224.117(b) because such a change
would be inconsistent with the requirements in Sec. 224.107 and would
impose more requirements on a petitioner than Congress intended.
Section 224.119 How must the Director proceed if the Director does not
dismiss the petition based on a threshold determination?
A commenter suggested that, if a petition is not dismissed based on
threshold determinations, the Secretary's action on a petition should
be limited to that necessary to cure or otherwise resolve each claim of
adverse environmental impact to the petitioner's interest. The
Secretary disagrees with the comment by noting that the Act expressly
provides that the basis for an interested party's petition is a claim
of a tribe's noncompliance with a TERA (5 U.S.C. 3504(e)(7)(B)). In
addition, the Secretary's required consultation with a tribe after
receipt of an interested party's petition is about ``any noncompliance
alleged in the petition'' (25 U.S.C. 3504(e)(7)(C)(i)(II)). Also, if a
tribe ``denies, or fails to respond to, each claim made in the petition
* * * or fails, refuses, or is unable to cure or otherwise resolve each
claim made in the petition, * * * the Secretary shall determine whether
the Indian tribe is not in compliance with the TERA.'' (25 U.S.C.
3504(e)(7)(C)(iii)(I) and (II) and (e)(7)(D)(I)).
While we have maintained the general petition process included in
Subpart E of the proposed regulations, after further review we have
modified sections of Subpart E that did not accurately reflect the
provisions of the Act or that required clarification, as follows:
Under the statutory scheme, Congress is providing third parties who
may be interested parties, as defined in the Act, the opportunity to
request that the Secretary review a claim that a tribe is not complying
with a TERA. However, before a person or entity that may be an
interested party may file a petition with the Secretary, the person or
entity must exhaust tribal remedies. Under Sec. 224.105(a) we
clarified that tribal laws, regulations, or procedures establish
``tribal remedies'' rather than ``a process for hearing and comments''
because under Sec. 224.105(b) tribal remedies provide a person or
entity the opportunity to file a petition with the tribe. We have added
a new provision at Sec. 224.107 to clarify that during the tribal
remedy process a tribe may resolve the claims in a petition with the
petitioner. The new provision does not provide for how a tribe may
resolve the claims or require that the Director make any determination
on the tribe's resolution during the tribal remedy process. Under the
final regulations at Sec. 224.106(c) a person or entity that files a
petition becomes a petitioner. In Sec. 224.111 we added as a provision
under which a petitioner may file a petition with the Secretary that
the tribe failed to provide a person or entity that may be an
interested party with copies of applicable tribal laws within a
reasonable time of a request.
In review of the proposed regulations, the Secretary finds that
proposed Sec. 224.112 inaccurately states that after a petition
consultation with the Director, a tribe ``may'' respond to the
petition. Consequently, Sec. 224.112 is re-numbered to Sec. 224.113
and we have changed ``may'' to ``must'' to reflect the Act's
requirement in 25 U.S.C. 3504(e)(7)(C)(ii). The Secretary also finds
that Sec. 224.113 states that a tribe ``may or may not'' dispute the
petitioner's allegations. Consequently, Sec. 224.113 is re-numbered to
Sec. 224.114 and we have changed this provision to state that a tribe
``must respond to any claims made in the petition * * *'' to reflect
the Act's requirement in 25 U.S.C. 3504(e)(7)(C)(ii). We have also
added subsection (b) to state that a tribe ``must cure or otherwise
resolve each claim of noncompliance made in the petition'' as required
under 25 U.S.C. 3504(e)(7)(C)(iii).
In review of comments on proposed Sec. 224.119 on threshold
determinations, the Secretary finds that proposed Sec. 224.119 does
not accurately reflect when the Director makes a threshold
determination or what the threshold determination should be. The Act
requires the Secretary, upon receipt of a petition, to notify the tribe
of the petition within 20 days of receipt and initiate consultation
with the tribe. The Act requires the tribe, within 45 days of
completion of the consultation, to respond to the claims in the
petition. Following consultation, the tribe has the opportunity to deny
or respond to the claims in the petition and then has the opportunity
to resolve or otherwise cure the claims. The Act requires the Director
to make certain threshold determinations on a petition following
consultation with the tribe before proceeding to review a tribe's
compliance with a TERA, not upon receipt of the petition (25 U.S.C.
3504(e)(7)(C)(iii) and (e)(7)(D)(I). The Act at (e)(7) (D)(I) requires
that the Director investigate a tribe's compliance with a TERA within
120 days of receipt of a petition, only upon making a threshold
determination under 25 U.S.C. 3504(e)(7)(c)(iii). The threshold
determinations the Director must make are whether the tribe has denied
or failed to respond to each claim made in the petition or whether the
tribe has failed or refused or is unable to cure or otherwise resolve
each claim made in the petition (25 U.S.C. 3504(e)(7)(C)(iii)(I) and
(II)). The Director may not proceed with a review of the tribe's
compliance with a TERA unless the Director determines that one of the
threshold determinations is met (25 U.S.C. 3504(e)(7)(C)(iii)). It is
only upon the Director's determination that one of the threshold
determinations is met that the Director reviews the petition and the
tribe's response, if any, makes a written determination on the tribe's
compliance with a TERA, and offers the tribe an opportunity for a
hearing and a reasonable opportunity to attain compliance (25 U.S.C.
3504(e)(7)(E)). The Director may not take action to ensure compliance
with the TERA under 25 U.S.C. 3504(e)(7)(D)(iii) before complying with
25 U.S.C. 3504(e)(7)(E)(i)-(iii). Therefore, the Secretary has modified
proposed Sec. 224.112 through Sec. 224.122 in final Sec. 224.113
through Sec. 224.120 to accurately reflect the provisions of the Act.
The Secretary has added a new provision in Sec. 224.117 that the
Director provide the tribe an opportunity for a hearing, as required by
25 U.S.C. 3504(e)(7)(C)(iii)). New provision Sec. 224.118 requires
that a tribe must respond in writing to the Director's opportunity for
a hearing within 20 days and, if the tribe does not respond, the
Director will proceed to a determination of whether the tribe is in
compliance with the TERA. Requiring the tribe to respond to the
opportunity for a hearing allows for a timely hearing if the tribe
requests it and allows the Director to
[[Page 12818]]
make a determination on compliance under the petition without undue
delay.
Subpart F--Periodic Reviews
Section 224.132 How does the Director conduct a periodic review and
evaluation?
One commenter raised concern that a tribe's provision of records
and documents in the TERA review and evaluation process raises
confidentiality issues similar to those involved in the initial
application process. They recommend that the Secretary add a provision
concerning record and document confidentiality. The Secretary agrees
with the concern expressed in the comment. Our change is to insert in
Sec. 224.132(e) that the tribe should identify any information in
these submitted records and documents that is confidential and
proprietary. Specific exemptions to disclosure under the Freedom of
Information Act, or other statutory protections against disclosure, may
apply and preclude disclosure of this information to third parties.
Section 224.140 What must the Secretary do if the tribe fails to
respond to or does not comply with the Director's order?
Two commenters raised a concern that under this section the
Secretary could make a decision to reassume all activities the tribe
assumed under the agreement if the tribe does not comply or respond to
the Director's order to cease conduct or take a specific action to
correct a condition that caused imminent jeopardy to a physical trust
asset. These commenters requested that flexibility be added to this
requirement so that the Secretary could reassume either all or a part
of the activities the tribe assumed under the TERA. The Secretary
recognizes this concern, but notes that the Act at 25 U.S.C.
3504(e)(2)(D)(ii) does not provide the desired flexibility. The Act
requires total reassumption where the Secretary determines there is
imminent jeopardy to a physical trust asset and the tribe does not
comply or respond to the Director's order to cease conduct or take a
specific action to correct a condition that caused imminent jeopardy to
a physical trust asset.
Subpart G--Reassumption
Section 224.151 When may the Secretary reassume activities?
One commenter in this section suggested that when the Secretary
invokes reassumption procedures because of a tribe's actions or
inaction, such reassumption should be limited to the specific activity
(or inactivity) giving rise to the reassumption, and not to the TERA in
its entirety. The commenter further suggests that, at the very least,
the regulations should give the Secretary discretion to reassume only a
specific activity. In the case of reassumption in this section, the
Secretary notes that the intent of the existing language of the
regulations is consistent with the Act at 25 U.S.C. 3504(e)(2)(D)(ii)
where there is imminent jeopardy to a physical trust asset. The
language of the Act at 25 U.S.C. 3504(e)(7)(D)(iii)(II) refers to a
condition of non-compliance with the conditions of the TERA that do not
rise to the level of imminent jeopardy and gives the Secretary
discretion to rescind all or part of a TERA. However, if the Secretary
makes a decision to rescind all provisions of the TERA based on a
finding of imminent jeopardy to a physical trust asset, then the
Secretary must reassume all of the activities and authority under the
TERA.
Another commenter requests the insertion of language in this
section that states reassumption is ``based on a tribal violation of an
agreement or applicable Federal law.'' The purpose of this change would
be to clarify the underlying legal basis required for the Secretary's
reassumption. However, the Secretary believes that the regulations
already adequately deal with this issue and declines to make this
addition.
Section 224.152 Must the Secretary always reassume the activities upon
a finding of imminent jeopardy to a physical trust asset?
A commenter recommends that the text of this section should
correspond to the question and should address situations involving
imminent jeopardy to a physical trust asset. The Secretary believes
that the section adequately responds to the question and refers to the
flexibility that the Secretary has to take action when there is
imminent jeopardy to a physical trust asset. The commenter also
suggests that the regulations note that under the Act, (25 U.S.C.
3504(e)(2)(D)(ii), the time period for reassumption appears to expire
once the violation and any condition that caused the jeopardy is
corrected. The Secretary agrees with this assertion and notes that
Sec. Sec. 224.154 and 224.157 deal with setting conditions and a
timeline for a reassumption or termination of the reassumption process.
Section 224.160 How will reassumption affect a TERA?
One commenter noted a conflict in the regulations in which Sec.
224.160 states that reassumption of a TERA applies to all activities
undertaken under a TERA and Sec. 224.150 of Subpart G titled ``What is
the purpose of this subpart?'' states that the subpart explains when
and how the Secretary may reassume all or certain activities included
within an agreement. The Secretary agrees that these sections of the
regulation conflict with each other and notes that the question of
reassumption as stated in the Act applies to all activities and
resources transferred under a TERA. The Secretary has made changes to
both sections to make them consistent and clarify their meaning. In
addition, the Secretary made a change to Sec. 224.137(d) to make clear
that in case of a finding of non-compliance with a TERA or other
applicable Federal law, where said non-compliance does not cause
imminent jeopardy to a physical trust asset, the Secretary has the
discretion to suspend or rescind a part or all activities approved
under a TERA.
Subpart H--Rescission
Section 224.170 What is the purpose of this subpart?
A commenter states that the reassumption and rescission processes
should allow for reassumption of specific activities and should not
automatically require a tribe to relinquish all activities assumed
under a TERA. The Secretary does not agree with this contention. We
believe that the language in the regulations is consistent with the
Act. When a rescission of a TERA takes place because of a voluntary
action by the tribe, it must be done in its entirety. It is only when
the rescission is a result of Secretarial action to remedy a finding of
non-compliance with the TERA or other applicable Federal laws that the
rescission action can be taken in part or whole.
Section 224.172 May a tribe rescind only some of the activities subject
to a TERA while retaining a portion of those activities?
One commenter suggests the addition of a new sentence to the end of
this section that states, ``Nothing in this section shall prohibit the
Secretary and a tribe from amending an agreement to change its scope.''
Another commenter agrees and states that the Secretary's authority
could, through an amendment to a TERA, permit a tribe to rescind a
portion of a TERA voluntarily. The commenter notes that this would
appear to be precluded by Sec. 224.172 in which the Secretary appears
to have limited rescission of a TERA to an all or nothing proposition.
If the Secretary feels that that is the only statutorily permitted form
of unilateral tribal rescission, the
[[Page 12819]]
commenter suggests, the Secretary should nonetheless make provision for
a mutually agreed upon amendment of a TERA so that the scope of a TERA
can be reduced without negating the entire TERA. The commenter argues
that it is foreseeable that, in many instances, the precise scope of
the optimal TERA will be developed over time and urges the Secretary to
retain and apply a flexible approach to TERA amendments. The Secretary
believes that the language in this section is consistent with the
intent of Congress. However, the Department has added a Sec. 224.66 to
allow for a reduction in the scope of a TERA. The Secretary believes
that, the addition of this section preserves the flexibility of the
tribe and the Secretary while meeting the intent of Congress.
IV. Procedural Matters
Regulatory Planning and Review (Executive Order 12866)
This rule is a significant rule and the Office of Management and
Budget has reviewed this rule under Executive Order 12866. We have made
the assessments required by E.O. 12866 and the results are summarized
below and can be obtained by writing to the address in the addressees
section.
(1) This rule will not have an effect of $100 million or more on
the economy. It will not adversely affect in a material way the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities. These regulations create a process that will allow tribes
to enter into an agreement with the Department whose intent is to
promote tribal oversight and management of energy and mineral resource
development on tribal lands. Approval of a Tribal Energy Resource
Agreement (TERA) under the requirements of the regulations and will
not, by itself, result in energy development related leases, business
agreements, or rights-of-way.
It is important to note that there is a great amount of flexibility
in the construction of a TERA with the Department. A TERA can cover
energy development on all or part of the tribal land controlled by the
tribe for development of energy resources (renewable and/or
nonrenewable); including, but not limited to, natural gas, oil,
uranium, coal, nuclear, wind, solar, geothermal, biomass, and
hydrologic. Energy resource development may include the following types
of arrangements between a tribe and private industry or a tribal energy
resource development organization (in which the tribe is a partner):
Lease defined as a written agreement, or modification of a written
agreement, between a tribe and a tenant or lessee, whereby the tenant
or lessee grants a right to possession of tribal land or energy mineral
resources for purposes of energy resource development.
Business agreement which includes (1) Any permit, contract, joint
venture, option, or other agreement that furthers any activity related
to locating, producing, transporting, or marketing energy resources on
tribal land; (2) Any amendment, supplement, or other modification to
such an agreement; or (3) Any other business agreement entered into or
subject to administration under a TERA.
Right-of-Way which means an easement, right, or other authorization
over tribal lands, granted or subject to administration under a TERA,
for a pipeline or electric transmission or distribution line that
serves a facility located on tribal land related to energy resource
development.
The ability to derive a quantitative estimate for the overall
impact on the economy of these regulations is highly speculative
because of the varying size of Indian Tribes, their level of
infrastructure and economic development, tribal development expertise,
and the type of energy resource that they possess. In addition, it is
not known how many tribes will choose a TERA as a development vehicle,
since the decision to enter into a TERA is voluntary. In addition the
large degree of flexibility with regard to the range of regulatory
activities, type of business arrangements, and type and scale of energy
development that a tribe may wish to a engage in makes any quantitative
analysis of the costs or benefits to a tribe highly uncertain.
The business climate for companies that seek to negotiate for
leases, business agreements or rights-of-way for energy development
projects on tribal land (as defined in Sec. 224.30) would not change
substantially because of these regulations. National or regional
economic costs of energy development (i.e. coal vs. natural gas; wind
vs. coal) and other market forces (e.g., location, access to
transmission networks, cost of technology, etc.) would be the most
likely principal drivers for companies that want to enter into energy
development-related business arrangements than whether a tribe is
negotiating under Indian Mineral Leasing Act, Indian Mineral
Development Act or TERA regulations.
One benefit, to both industry and tribes that may occur, could be a
reduction in the time needed to complete negotiations and enter into
contracts for proposed projects. Presumably once a TERA is final a
tribe's capacity to conduct negotiations, complete contractual
arrangements, and conduct any needed technical analyses leading to the
commencement of operations, would increase with time and could lead to
an increased ability of tribes and third parties to more readily take
advantage of and adjust to current market conditions without waiting
for Departmental approval.
The requirement for submittal of commercial and financial
information by businesses contracting with tribes should not change
markedly because the regulations require tribes to adhere to
administrative practices similar to what the Department already
requires. Therefore, compliance costs for businesses should largely
remain the same as in the pre-TERA climate.
For tribes, one factor that could increase their administrative
costs would be, in some cases, an increased need for creating,
maintaining and preserving records of their technical and financial
arrangements with industry. These record keeping requirements now
largely are the responsibility of the Department.
These recordkeeping requirements are necessary because of the
Department's residual trust responsibility under the Act. In the case
of a reassumption by the Department or a voluntary rescission by a
tribe of authority that is granted through a TERA the Department must
be able to regain effective regulatory and management control over any
energy development projects on tribal trust land. However, these costs
should be largely related to the initial creation of records management
systems, acquisition of physical space, and training of staff for
implementation.
Another factor that could increase tribal costs would be the
assumption by the tribe of costs for assessing potential environmental
impacts and creating an ongoing environmental review process for
activities covered by a TERA. The regulations as authorized by the Act
require a tribe to develop these internal capacities and programs or to
identify how they will acquire these capacities externally.
Although a tribe is permitted to identify in a proposed TERA, any
Departmental resources that they could use to fund administrative and
technical programs that they want to assume activities there is no
guarantee that an affirmative decision by the Department would provide
enough financial resources to allow the tribe to not incur increased
cost. However, the magnitude of these costs is highly uncertain, again
because of the large variation in the
[[Page 12820]]
range of activities and scale of energy development that a tribe may
seek to assume.
The Department believes that the benefits derived from
implementation of these regulations are in keeping with Congressional
and Departmental goals for advancing tribal self-governance and far
outweigh the potential costs as described. Furthermore, these
regulations are not unduly burdensome to Indian Tribes, private
industry, or consumers and will actually serve to decrease the workload
currently in place.
(2) The regulations do not preclude tribes from using other
existing regulations to pursue economic development opportunities and
so will not create serious inconsistency or otherwise interfere with
any action taken or planned by another agency. The main benefit of this
rulemaking is an enhanced self-governance opportunity for tribes. By
implementing the provisions of the Act, these regulations will further
the goal of Indian self-determination, that is a longstanding goal of
the Federal Government and the Department.
(3) The creation of a TERA between a tribe and the Department does
not affect other entitlement, grant, or loan programs with the
Department or any other Federal agency. Furthermore, this rule does not
establish new user fees, or restrict in any way any other existing user
fees. Therefore, these regulations will not affect any such programs or
the rights or obligations of their recipients.
(4) These regulations will not create serious inconsistency with
existing laws or executive orders or raise novel legal or policy
issues. As stated before the main benefit from these regulations is an
enhanced self-governance opportunity for tribes. Implementation of the
provisions of the Act is consistent with the Indian Self Determination
and Education Assistance Act, as amended. These regulations further the
development of Indian self-determination, which is a longstanding goal
of the Federal Government and the Department.
Regulatory Flexibility Act (RFA)
The Department certifies that this rule will not have a significant
economic effect on a substantial number of small entities as defined
under the RFA (5 U.S.C. 601 et seq.). Most of the costs for complying
with this rule would be information collection costs. The total
estimated annual burden hours for responding to the information
collection requirements in this rule are 10,752. Respondents to the
information collection required by these regulations would need to
acquire the services of individuals in the project management and
energy, environmental, financial and legal analyses fields as well as
administrative service staff. The annual non-hour burden associated
with the regulations is $48,200 for office and maintenance expenses
associated with preparation of reports and a variety of correspondence.
When added to the salary and benefits for personnel, the annual
industry-wide cost for the information collection burden in this rule
would be about $375,795. Therefore, complying with ``Part 224--Tribal
Energy Resource Agreements under The Indian Tribal Energy Development
and Self-Determination Act'' should not be a significant financial
burden. For a rule with these relatively low projected costs, a
Regulatory Flexibility Analysis is not required. Accordingly, a Small
Entity Compliance Guide is not required.
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This rule is not a major rule under SBREFA (5 U.S.C. 804(2))
because:
(a) Most of the costs for complying with this rule would be
information collection costs. The total estimated industry-wide cost
for the information collection burden in this rule would be about
$375,000. Therefore, the rule will not have an annual effect on the
economy of $100 million or more.
(b) The approval of a Tribal Energy Resource Agreement will not, by
itself, result in energy development related leases, business
agreements, or rights-of-way. Therefore, the regulations will not cause
a major increase in costs or prices for consumers, individual
industries, federal, state, or local government agencies, or geographic
areas.
(c) Because the regulations do not directly result in energy
resource development projects, they will 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.
Unfunded Mandates Reform Act (UMRA)
Participation in the development of Tribal Energy Resource
Agreements as outlined in these regulations is voluntary. In addition,
there are regulatory alternatives for tribes that want to develop
energy resources on tribal lands, but they may not want to develop a
TERA. Furthermore, the regulations will not result in the expenditure
by the state, local or tribal governments or private sector of $100
million or more in any one year. Therefore, these regulations do not
impose an unfunded mandate on state, local, or tribal governments, or
the private sector, of more than $100 million per year, and the
regulations do not have a significant or unique effect on state, local,
or tribal governments, or the private sector. A statement containing
the information required by the UMRA (2 U.S.C. 1531 et seq.) is not
required.
Federalism (Executive Order 13132)
According to Executive Order 13132, these regulations do not have
Federalism implications. While these regulations are of interest to
tribes, there is no federalism impact on the trust relationship or
balance of power between the United States government and the various
tribal governments affected by this rulemaking. Therefore, the
regulations do not substantially and directly affect the relationship
between the Federal and State governments, and would not impose costs
on states or localities and so do not require a federalism assessment.
Civil Justice Reform (Executive Order 12988)
With respect to Executive Order 12988, the Office of the Solicitor
has determined that this rule would not unduly burden the judicial
system, and meets the requirements of sections 3(a) and 3(b)(2) of the
Executive Order.
Paperwork Reduction Act (PRA)
Under the proposed rule (71 FR 48626, August 21, 2006), we asked
for comments regarding any information collection burdens that would
arise under these regulations at 25 CFR part 224 that govern the review
of Tribal Energy Resource Agreements and activities undertaken pursuant
to a TERA.
We specifically solicited comments on the following questions:
(a) Is the proposed collection of information necessary for the
Department to properly perform its functions, and will it be useful?
(b) Are the estimates of the burden hours of the proposed
collection reasonable?
(c) Do you have any suggestions that would enhance the quality,
clarify, or usefulness of the information to be collected?
(d) Is there a way to minimize the information collection burden on
those who are to respond, including the use of appropriate automated
electronic, mechanical, or other forms of information technology?
The Department issued a Federal Register notice for the information
[[Page 12821]]
collection authorization for the proposed rule. After the comment
period, the Office of Management and Budget (OMB) subsequently approved
the information collection associated with this rule on March 12, 2007
under OMB control number 1076-0167 (OMB approval expires March 31,
2010). The total hour burden currently approved under 1076-0167 is
9,290 hours.
Respondents to the information collections in these regulations
derive economic benefit from an enhanced ability to manage energy
resources that exist on tribal lands. Therefore, the frequency of
response will vary and depends on the respondents' needs. The
information collection (IC) does not include questions of a sensitive
nature. The Department will protect proprietary information according
to the Freedom of Information Act (5 U.S.C. 522) and its implementing
regulations (43 CFR part 2) or other applicable laws. You may obtain a
copy of the supporting statement for the new collection of information
by contacting the Bureau of Indian Affairs' Information Collection
Clearance Officer at (703) 735-4414.
National Environmental Policy Act (NEPA)
This final rule is categorically excluded from the preparation of
an environmental assessment or an environmental impact statement under
the National Environmental Policy Act of 1969, 42 U.S.C. 4321, et seq.,
because its environmental effects are too broad, speculative, or
conjectural to lend themselves to meaningful analysis and the federal
actions under the final rule (i.e., approval or disapproval of TERAs)
will be subject at the time of the action itself to the NEPA process,
either collectively or case-by-case. (Because they are not Federal
actions, approval or disapproval by a tribe of leases, business
agreements, and rights-of-way under a TERA will not be subject to NEPA
review.) Further, no extraordinary circumstances exist to require
preparation of an environmental assessment or environmental impact
statement.
Data Quality Act
In developing these regulations, we did not conduct or use a study,
experiment, or survey requiring peer review under the Data Quality Act
(Pub. L. 106-554).
Energy Supply, Distribution, or Use (Executive Order 13211)
This rule is not a significant rule and is not subject to review by
the Office of Management and Budget under Executive Order 13211. The
regulations are administrative in nature and will not directly lead to
energy development projects. Therefore, they will not have a
significant effect on energy supply, or distribution. Thus, a Statement
of Energy Effects is not required.
Consultation and Coordination With Indian Tribal Governments (Executive
Order 13175)
Pursuant to Executive Order 13175 of November 6, 2000, Consultation
and Coordination with Indian Tribal Governments, the Department
determined that because the rulemaking will uniquely affect tribal
governments it would follow Department and Administrative protocols in
consulting with tribal governments on the rulemaking. Consequently, the
Department notified tribal governments through a Federal Register
notice of the proposed rulemaking and through the BIA regional offices.
The notices enabled tribal officials and the affected tribal
constituency throughout Indian country to have meaningful and timely
input in the development of the proposed rule. We believe that these
actions reinforce good intergovernmental relations with tribal
governments and better inform, educate, and advise such tribal
governments on compliance requirements of the rulemaking.
The Department sent letters to tribal leaders on October 31, 2005
with information about the TERA provisions of Title V, Section 503 and
solicited participation in a process to develop a framework for the
implementing regulations. On December 9, 2005, the Department published
a Federal Register notice (70 FR 73257) announcing public meetings and
tribal consultations in 10 cities between January 9 and 20, 2006. The
Federal Register notice also solicited written comments and the BIA
regional offices distributed the notice to all tribes. We held the
meetings in the following cities: Tulsa, OK; Denver, CO; Houston, TX;
Albuquerque, NM; Las Vegas, NV; Sacramento, CA; Minneapolis, MN;
Billings, MT; Portland, OR; and Washington, DC. The comments received
from these public meetings and consultations and the written comments
submitted were taken into consideration in the formulation of the
proposed regulations. In response to the proposed rule, the Department
received comments from several tribes and organizations that represent
tribal interests. We have committed to consulting with tribal
representatives in developing processes and procedures for the
implementation of these Tribal Energy Resource Agreement regulations
following publication of the final rule. In addition, the Department
has incorporated a Pre- and Post-Application consultation process
designed to enable tribes that pursue a TERA with the Department to
have the widest available knowledge base with which to operate during
the application review and evaluation phase.
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.
Dated: October 1, 2007.
Carl J. Artman,
Assistant Secretary--Indian Affairs.
0
For the reasons stated in the preamble, the Department amends Chapter I
of Title 25 of the Code of Federal Regulations to add a new part 224,
to read as follows:
PART 224--TRIBAL ENERGY RESOURCE AGREEMENTS UNDER THE INDIAN TRIBAL
ENERGY DEVELOPMENT AND SELF DETERMINATION ACT
Subpart A--General Provisions
Sec.
224.10 What is the purpose of this part?
224.20 How will the Secretary interpret and implement this Part and
the Act?
224.30 What definitions apply to this Part?
224.40 How does the Act or a TERA affect the Secretary's trust
responsibility?
224.41 When does the Secretary require agreement of more than one
tribe to approve a TERA?
224.42 How does the Paperwork Reduction Act affect these
regulations?
Subpart B--Procedures for Obtaining Tribal Energy Resource Agreements
224.50 What is the purpose of this subpart?
Pre-application Consultation and the Form of Application
224.51 What is a pre-application consultation between a tribe and
the Director?
224.52 What may a tribe include in a TERA?
224.53 What must an application for a TERA contain?
Processing Applications
224.54 How must a tribe submit an application?
224.55 Is information a tribe submits throughout the TERA process
under this Part subject to disclosure to third parties?
224.56 What is the effect of the Director's receipt of a tribe's
complete application?
224.57 What must the Director do upon receipt of an application?
Application Consultation Meeting
[[Page 12822]]
224.58 What is an application consultation meeting?
224.59 How will the Director use the results of the application
consultation meeting?
224.60 What will the Director provide to the tribe after the
application consultation meeting?
224.61 What will the tribe provide to the Director after receipt of
the Director's report on the application consultation meeting?
224.62 May a final proposed TERA differ from the original proposed
TERA?
TERA Requirements
224.63 What provisions must a TERA contain?
224.64 How may a tribe assume management of development of different
types of energy resources?
224.65 How may a tribe assume additional activities under a TERA?
224.66 How may a tribe reduce the scope of a TERA?
Public Notification and Comment
224.67 What must the Secretary do upon the Director's receipt of a
final proposed TERA?
224.68 How will the Secretary use public comments?
Subpart C--Approval of Tribal Energy Resource Agreements
224.70 Will the Secretary review a proposed TERA under the National
Environmental Policy Act?
224.71 What standards will the Secretary use to decide to approve a
final proposed TERA?
224.72 How will the Secretary determine whether a tribe has
demonstrated sufficient capacity?
224.73 How will the scope of energy resource development affect the
Secretary's determination of the tribe's capacity?
224.74 When must the Secretary approve or disapprove a final
proposed TERA?
224.75 What must the Secretary do upon approval or disapproval of a
final proposed TERA?
224.76 Upon notification of disapproval, may a tribe re-submit a
revised final proposed TERA?
224.77 Who may appeal the Secretary's decision on a final proposed
TERA or a revised final proposed TERA?
Subpart D--Implementation of Tribal Energy Resource Agreements
Applicable Authorities and Responsibilities
224.80 Under what authority will a tribe perform activities for
energy resource development?
224.81 What laws are applicable to activities?
224.82 What activities will the Department continue to perform after
approval of a TERA?
Leases, Business Agreements, and Rights-of-Way under a TERA
224.83 What must a tribe do after executing a lease or business
agreement, or granting a right-of-way?
224.84 When may a tribe grant a right-of-way?
224.85 When may a tribe enter into a lease or business agreement?
224.86 Are there limits on the duration of leases, business
agreements, and rights-of-way?
Violation or Breach
224.87 What are the obligations of a tribe if it discovers a
violation or breach?
224.88 What must the Director do after receiving notice of a
violation or breach from the tribe?
224.89 What procedures will the Secretary use to enforce leases,
business agreements, or rights-of-way?
Subpart E--Interested Party Petitions
224.100 May a person or entity ask the Secretary to review a tribe's
compliance with a TERA?
224.101 Who is an interested party?
224.102 Must a tribe establish a comment or hearing process for
addressing environmental concerns?
224.103 Must a tribe establish other public participation processes?
224.104 Must a tribe enact tribal laws, regulations, or procedures
permitting persons or entities to allege a tribe is not complying
with a TERA?
224.105 How may a person or entity obtain copies of tribal laws,
regulations, or procedures that permit an allegation of
noncompliance with a TERA?
224.106 If a tribe has enacted tribal laws, regulations, or
procedures for challenging tribal action, how must the tribe respond
to a petition?
224.107 What must a petitioner do before filing a petition with the
Secretary?
224.108 May tribes offer a resolution of a petitioner's claim?
224.109 What must a petitioner claim or request in a petition filed
with the Secretary?
224.110 What must a petition to the Secretary contain?
224.111 When may a petitioner file a petition with the Secretary?
224.112 What must the Director do upon receipt of a petition?
224.113 What must the tribe do after it completes petition
consultation with the Director?
224.114 How may the tribe address a petition in its written
response?
224.115 When in the petition process must the Director investigate a
tribe's compliance with a TERA?
224.116 What is the time period in which the Director must
investigate a tribe's compliance with a TERA?
224.117 Must the Director make a determination of the tribe's
compliance with a TERA?
224.118 How must the tribe respond to the Director's notice of the
opportunity for a hearing?
224.119 What must the Director do when making a decision on a
petition?
224.120 What action may the Director take to ensure compliance with
a TERA?
224.121 How may a tribe or a petitioner appeal the Director's
decision about the tribe's compliance with the TERA?
Subpart F--Periodic Reviews
224.130 What is the purpose of this subpart?
224.131 What is a periodic review and evaluation?
224.132 How does the Director conduct a periodic review and
evaluation?
224.133 What must the Director do after a periodic review and
evaluation?
224.134 How often must the Director conduct a periodic review and
evaluation?
224.135 Under what circumstances may the Director conduct additional
reviews and evaluations?
Noncompliance
224.136 How will the Director's report address a tribe's
noncompliance?
224.137 What must the Director do if a tribe's noncompliance has
resulted in harm or the potential for harm to a physical trust
asset?
224.138 What must the Director do if a tribe's noncompliance has
caused imminent jeopardy to a physical trust asset?
224.139 What must a tribe do after receiving a notice of imminent
jeopardy to a physical trust asset?
224.140 What must the Secretary do if the tribe fails to respond to
or does not comply with the Director's order?
224.141 What must the Secretary do if the tribe responds to the
Director's order?
Subpart G--Reassumption
224.150 What is the purpose of this subpart?
224.151 When may the Secretary reassume activities?
224.152 Must the Secretary always reassume the activities upon a
finding of imminent jeopardy to a physical trust asset?
Notice of Intent to Reassume
224.153 Must the Secretary notify the tribe of an intent to reassume
the authority granted under a TERA?
224.154 What must a notice of intent to reassume include?
224.155 When must a tribe respond to a notice of intent to reassume?
224.156 What information must the tribe's response to the notice of
intent to reassume include?
224.157 How must the Secretary proceed after receiving the tribe's
response?
224.158 What must the Secretary include in a written notice of
reassumption?
224.159 How will reassumption affect valid existing rights or lawful
actions taken before the effective date of the reassumption?
224.160 How will reassumption affect a TERA?
224.161 How may reassumption affect the tribe's ability to enter
into a new TERA or to modify another TERA to administer additional
activities or assume administration of activities that the Secretary
previously reassumed?
Subpart H--Rescission
224.170 What is the purpose of this subpart?
224.171 Who may rescind a TERA?
[[Page 12823]]
224.172 May a tribe rescind only some of the activities subject to a
TERA while retaining a portion of those activities?
224.173 How does a tribe rescind a TERA?
224.174 When does a voluntary rescission become effective?
224.175 How will rescission affect valid existing rights or lawful
actions taken before the rescission?
Subpart I--General Appeal Procedures
224.180 What is the purpose of this subpart?
224.181 Who may appeal Departmental decisions or inaction under this
part?
224.182 What is the Initial Appeal Process?
224.183 What other administrative appeals processes also apply?
224.184 How do other administrative appeals processes apply?
224.185 When are decisions under this part effective?
Authority: 25 U.S.C. 2 and 9; 25 U.S.C. 3501-3504; Pub. L. 109-
58
Subpart A--General Provisions
Sec. 224.10 What is the purpose of this part?
This part:
(a) Establishes procedures by which a tribe, at its discretion, may
enter into and manage leases, business agreements, and rights-of-way
for purposes of energy resource development on tribal land; and
(b) Describes the process for obtaining, implementing, and
enforcing a tribal energy resource agreement (TERA) that will allow a
tribe to enter into individual leases, business agreements, and rights-
of-way without obtaining Secretarial approval.
Sec. 224.20 How will the Secretary interpret and implement this part
and the Act?
(a) The Secretary will interpret and implement this part and the
Indian Tribal Energy Development and Self-Determination Act (the Act)
in accordance with the self-determination and energy development
provisions and policies in the Act.
(b) The Secretary will liberally construe this part and the Act for
the benefit of tribes to implement the Federal policy of self-
determination. The Secretary will construe any ambiguities in this part
or the Act in favor of the tribe to implement a TERA as authorized by
this part and the Act.
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.
Application means the application submitted for a TERA under
subpart B.
Business agreement means:
(1) Any permit, contract, joint venture, option, or other agreement
that furthers any activity related to locating, producing,
transporting, or marketing energy resources on tribal land;
(2) Any amendment, supplement, or other modification to such an
agreement; or
(3) Any other business agreement entered into or subject to
administration under a TERA.
Days mean calendar days in computing any period prescribed or
allowed by the Act and this part:
(1) Do not include the day of the event from which the period
begins to run;
(2) Include the last day of the period, unless it is a Saturday,
Sunday, or Federal holiday, in which event the period runs until the
end of the next day which is not a Saturday, Sunday, or Federal
holiday; and
(3) When the period prescribed or allowed is less than 11 days,
exclude intermediate Saturdays, Sundays, and Federal holidays from the
computation.
Decision Deadline means the 120-day period within which the
Director will make a decision about a petition submitted by an
interested party under subpart E. The Director may extend this period
for up to 120 days.
Department means the Department of the Interior.
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 or the Director to the tribe regarding the status of a
TERA or activities under a TERA.
Director means the Director of the Office of Indian Energy and
Economic Development or the Secretary's designee, authorized to act on
behalf of the Secretary.
Energy Resources means both renewable and nonrenewable energy
sources, including, but not limited to, natural gas, oil, uranium,
coal, nuclear, wind, solar, geothermal, biomass, and hydrologic
resources.
Imminent jeopardy to a physical trust asset means an immediate
threat of devaluation, degradation, damage, or loss of a physical trust
asset, as determined by the Secretary, caused by the noncompliance of a
tribe or third party with a TERA or applicable Federal laws.
Interested party means a person or entity who has filed a petition
with the Secretary under subpart E seeking review of a tribe's
compliance with a TERA and who meets the criteria in Sec. 224.101.
Lease means a written agreement, or modification of a written
agreement, between a tribe and a tenant or lessee, whereby the tenant
or lessee is granted a right to possession of tribal land or energy
mineral resources for purposes of energy resource development.
Petitioner means a person or entity who has filed a petition under
subpart E with a tribe or the Secretary seeking review of a tribe's
compliance under a TERA. A petitioner is not considered to be an
interested party unless the petitioner meets the criteria in Sec.
224.101.
Physical trust asset means a physical asset held in trust by the
United States for a tribe or individual Indian or by a tribe or
individual Indian subject to a restriction against alienation under the
laws of the United States. ``Physical trust asset'' does not include:
(1) Any improvements (for example, wells or structures) to the
assets held in trust or restricted status; or
(2) Monetary assets.
Public means one or more natural or legal persons, and their
associations, organizations, or groups; or Federal, State, tribal and
local government agencies; or private industry and their associations,
organizations, or groups.
Right-of-way means an easement, right, or other authorization over
tribal lands, granted or subject to administration under a TERA, for a
pipeline or electric transmission or distribution line that serves a
facility located on tribal land that is related to energy resource
development.
Secretary means the Secretary of the Interior or the Secretary's
designee.
TERA means tribal energy resource agreement.
Tribal governing body means 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.
Tribal land means any land or interests in land owned by a tribe or
tribes, title to which is held in trust by the United States, or is
subject to a restriction against alienation under the laws of the
United States. For the purposes of this part, tribal land includes land
taken into trust or subject to restrictions on alienation under the
laws of the United States after the effective date of the agreement.
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.
[[Page 12824]]
Violation or breach means any breach or other violation by another
party of any provision in a lease, business agreement, or right-of-way
under a TERA or any activity or occurrence under a lease business
agreement or right-of-way that constitutes a violation of Federal or
tribal environmental law.
Sec. 224.40 How does the Act or a TERA affect the Secretary's trust
responsibility?
(a) The Act (25 U.S.C. 3504(e)(6)) preserves the Secretary's trust
responsibilities relating to mineral and other trust resources and
requires the Secretary to act in good faith and in the best interest of
Indian tribes.
(b) Neither the Act nor this part absolves the Secretary of
responsibilities to Indian tribes under the trust relationship,
treaties, statutes, regulations, Executive Orders, agreements or other
Federal law.
(c) The Act and this part preserve the Secretary's trust
responsibility to ensure that the rights and interests of an Indian
tribe are protected if:
(1) Another party to a lease, business agreement, or right-of-way
executed under an approved TERA violates any term of the lease,
business agreement, or right-of-way, or any applicable Federal law; or
(2) Any provision of a lease, business agreement, or right-of-way
violates the TERA under which it was executed.
(d) The United States is not liable for losses to any party
(including any tribe) for any negotiated term of, or any loss resulting
from, the negotiated terms of a lease, business agreement, or right-of-
way the tribe executes under a TERA.
Sec. 224.41 When does the Secretary require agreement of more than
one tribe to approve a TERA?
When tribal land held for the benefit of more than one tribe is
contemplated for inclusion in a TERA, each appropriate tribal governing
body must request a pre-application co 