This proposed rule would exempt Federal, State, Tribal, and local governments from the requirement to obtain a bond, insurance, or alternative form of security for a right-of-way across Indian land and BIA land where such governments are prohibited by law from obtaining security.

On November 19, 2015, the Bureau of Indian Affairs (BIA) finalized revisions to the regulations governing rights-of-way on Indian land and BIA land at 25 CFR part 169. See 80 FR 72492. The regulations became effective on April 21, 2016. 81 FR 14976. The final regulations established new requirements for bonding, insurance, or alternative form of security to cover the annual rental, estimated damages, operation and maintenance charges, and restoration. See 25 CFR 169.103(a). The regulations allow for waiver of this requirement on a case-by-case basis. See 25 CFR 169.103(f).

Currently, a governmental entity applying for a right-of-way across Indian land or BIA land must seek a waiver (and landowner consent for the waiver) from the requirement to provide bonding, insurance, or alternate security in those cases in which the entity is prohibited by law from obtaining such bonding, insurance, or alternate security. This rule would eliminate the need for governmental entities to seek a waiver for each instance by exempting governmental entities from the requirement to obtain bonding, insurance, or alternative form of security if they are prohibited by law from doing so. It also requires governmental entities to provide a certification with their application, with citation to applicable law, that they are prohibited by law from providing security. In addition, this rule requires governmental entities to notify landowners that they are prohibited by law from providing security when they notify the Indian landowners of their application under 25 CFR 169.107.