[Federal Register Volume 71, Number 161 (Monday, August 21, 2006)]
[Proposed Rules]
[Pages 48626-48645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6852]
[[Page 48625]]
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Part III
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; Proposed Rule
Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 /
Proposed Rules
[[Page 48626]]
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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: Proposed rule.
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SUMMARY: The Department of the Interior, Bureau of Indian Affairs,
proposes to amend its regulations by adding a new part to provide for
Tribal Energy Resource Agreements (TERAs) between the Secretary of the
Interior (Secretary) and Indian tribes under Section 2604 of the Indian
Energy Resource Development and Self-Determination Act. The proposed
regulations provide the process under which the Secretary will grant
authority to an Indian tribe to review and approve leases business
agreements and rights-of-way for specific energy development activities
on tribal lands through an approved TERA. The Department invites your
comments on the proposed rule.
DATES: Submit comments by September 20, 2006. We may not fully consider
comments received after this date.
ADDRESSES: You may submit comments on the rulemaking by any of the
following methods. Please use the Regulation Identifier Number (RIN)
1076-AE80 as an identifier in your message. See also Public Comment
Procedures under Procedural Matters.
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail IEED at [email protected] and use the RIN 1076-AE80 in
the subject line.
Fax: 202-208-4564. Identify with the RIN 1076-AE80.
Mail or hand-carry comments to the Department of the
Interior, Office of Indian Energy and Economic Development, Room 20--
South Interior Building, 1951 Constitution Avenue, NW., Washington, DC
20245. Please reference RIN 1076-AE80 in your comments and also include
your name and return address.
Comments on information collection are separate from
comments on the rule and must be addressed separately. Send comments on
the information collection in this rule (1076-AE80) to: Desk Officer
for the Department of the Interior, Office of Management and Budget, by
facsimile at (202) 395-6566 or e-mail: [email protected]. Please
also send a copy of your comments on the information collection to
Office of Indian Energy and Economic Development, Room 20--South
Interior Building, 1951 Constitution Avenue, NW., Washington, DC 20245.
Please reference RIN 1076-AE80.
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: The Secretary of the Interior 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) amends Title XXVI (Indian Energy) of the Energy Policy Act of 1992
to require the Secretary of the Interior (Secretary) to promulgate
regulations that implement new provisions concerning energy resource
development on tribal lands. Specifically, the Indian Energy
Development and Self-Determination Act, Title XXVI, Section 2604 of the
Energy Policy Act, as amended, authorizes the Secretary to enter into
TERAs with Indian tribes. The intent of these agreements is to promote
tribal oversight and management of energy and mineral resource
development on tribal lands and further the goal of Indian self-
determination. A TERA offers a tribe an entirely new alternative for
entering into energy-related business agreements and leases and for
granting rights-of-way for pipelines, electric transmission and
distribution lines without the Secretary's review and approval.
The proposed regulations provide that entering into a TERA requires
a tribal application and Secretarial determination of 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. In addition, the Act requires that a TERA include
provisions that cover 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. The TERA
regulations must also provide a process for interested parties to
challenge a tribe's non-compliance with terms of an approved TERA and
for the Secretary to take necessary actions to protect trust resources
if activities undertaken under an approved TERA cause or will cause
imminent jeopardy to a trust resource.
The Act became law on August 8, 2005 and requires the Secretary to
establish and implement regulations governing the TERA approval process
within 365 days of its passage. In addition, the implementation of
these regulations will further the Federal Government's policy of
providing enhanced self-determination and economic development
opportunities for American Indian tribes and support the national
energy policy of increasing utilization of domestic energy resources.
Under the Act, the Department held a series of public meetings and
tribal consultations in January 2006 to solicit stakeholder and tribal
comment on the implementation of the Act. In addition, the Department
in two letters to tribal leaders solicited direct involvement of tribes
in drafting a framework for development of these proposed regulations.
Written and oral comments in public meetings with stakeholders
identified several concerns that the Department considered in drafting
the proposed regulations. Three issues raised the most concern: tribal
capacity determination by the Department, TERA-authorized activity on
fee land held by tribes; and environmental review of proposed and
ongoing activities authorized by a TERA.
The Act requires that the implementing regulations include criteria
the Secretary will use to determine the capacity of a tribe. These
include the tribe's experience managing natural resources and
administrative and financial resources that will be available to it
when implementing an approved TERA; a process and requirements under
which a tribe may voluntarily rescind a TERA and return to the
Secretary the review and approval authority for future leases, business
agreements and rights-of-way for energy resource development; a scope
of and provisions for periodic review and evaluation of a TERA,
including provision for review of transactions, reports and site
inspections and any other review processes the Secretary deems
appropriate; and provisions for final agency actions after exhaustion
of administrative appeals of Secretarial decisions.
In drafting the proposed regulations the Department has diligently
attempted to conform to the provisions of the Act to include provisions
for the items the Act states must be included in the
[[Page 48627]]
regulations and to address concerns that arose during the consultation
process.
With respect to a capacity determination, the proposed regulations
include a provision for tribes considering entering into a TERA
agreement to go through a pre-application process designed to provide a
preliminary analysis of the type of expertise necessary to manage
particular types of energy resource development projects. In addition,
tribes as part of the TERA application process must outline the level
of expertise they possess to manage the energy resource development
projects within the scope of the proposed TERA or how they would
acquire the needed expertise. The Department welcomes comment on
whether these provisions are sufficient to allow the Secretary to
determine tribal capacity to develop energy resources.
The proposed regulations adopt the definition of tribal lands
contained in the Act. However, some tribes suggest that a more
expansive definition that includes real property held in fee by a tribe
regardless of location would potentially create more economically
robust development projects. The Department welcomes comment on whether
to include this definition of Tribal land in the proposed regulations.
The suggested language for a definition of tribal land is as follows:
Tribal land means 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. 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.
The proposed regulations also include provisions that require
tribes seeking approval for a TERA to demonstrate their capacity to
identify and evaluate all significant environmental effects and
reasonable mitigation measures, including those related to cultural
resources. The Department welcomes comment on whether these provisions
are sufficient to allow the Secretary to determine tribal capacity to
develop energy resources.
Procedural Matters
Regulatory Planning and Review (Executive Order 12866)
This document is not a significant rule and does not require review
by the Office of Management and Budget under Executive Order 12866.
These regulations create a process that will allow tribes to enter into
an agreement with the Department intended to promote tribal oversight
and management of energy and mineral resource development on tribal
lands. 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, this proposed rule will not
have an effect of $100 million or more on the economy and 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.
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 and so will not
create serious inconsistency or otherwise interfere with any action
taken or planned by another agency or raise novel legal or policy
issues. This proposed rule does not interact with entitlements, grants,
user fees, or loan programs so it will not affect any such programs or
the rights or obligations of their recipients.
Regulatory Flexibility Act (RFA)
The Department certifies that this proposed 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 proposed rule would be information collection
costs. The total estimated annual burden hours for responding to the
information collection requirements in this proposed 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 proposed 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 proposed 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 proposed rule with these
relatively low projected costs, a Regulatory Flexibility Analysis is
not required. Accordingly, a Small Entity Compliance Guide is not
required.
Your comments are important. The Small Business and Agriculture
Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards will
consider comments from small businesses about Federal agency
enforcement actions. The Ombudsman annually evaluates each agency's
responsiveness to small business. If you wish to comment, call toll-
free 1-(888)-734-3247.
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This proposed rule is not a major rule under SBREFA (5 U.S.C.
804(2)). This proposed rule:
(a) Most of the costs for complying with this proposed rule would
be information collection costs. The total estimated industry-wide cost
for the information collection burden in this proposed rule would be
about $375,000. Therefore, the proposed 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 proposed 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 proposed 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 proposed 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 proposed regulations will not result
in the expenditure by the state, local or tribal governments or private
sector of
[[Page 48628]]
$100 million or more in any one year. Therefore, these proposed
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 proposed 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 proposed 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 proposed 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 proposed 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)
This proposed rule contains a collection of information that has
been submitted to the Office of Management and Budget (OMB) for review
and approval under section 3507(d) of the PRA. As part of our
continuing effort to reduce paperwork and respondent burdens, the
Department invites the public and other federal agencies to comment on
any aspect of the reporting and recordkeeping burden. If you wish to
comment on the information collection aspects of this proposed rule,
you may send your comments directly to OMB (see the ADDRESSES section
of this document). Please identify your comments with RIN 1076-AE80/
Tribal Energy Resource Agreements, 25 CFR 224. Send a copy of your
comments to the Office of Indian Energy and Economic Development, Room
20--South Interior Building, 1951 Constitution Avenue, NW., Washington,
DC 20245. Please reference ``Proposed Rule--Tribal Energy Resource
Agreements'' in your comments. 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.
The PRA provides that an agency may not conduct or sponsor, and a
person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number. OMB is
required to make a decision concerning the collection of information
contained in these proposed regulations between 30 to 60 days after
publication of this document in the Federal Register. Therefore, a
comment to OMB is best assured of having its full effect if OMB
receives it early during the comment period. This does not affect the
deadline for the public to comment to the Department of the Interior
about the proposed regulations.
The title of the collection of information for the rule is ``Tribal
Energy Resource Agreements, 25 CFR Part 224.'' Respondents to the
information collections in these regulations derive economic benefit
from an enhanced ability to manage energy resources that exist on
tribal lands within their jurisdiction. 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 IEED 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.
The following table details the IC burden for the proposed
requirements in subparts B, C, D, E, F, G, and H:
Table 1.--Tribal Energy Resource Agreements Under the Indian Tribal Energy Development and Self Determination Act
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Average Annual
Information collection Hour burden number of burden Total annual
Citation 25 CFR 224 Section title requirement for annual hours for cost (salary
respondent responses respondent & benefits)
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Subpart B--Procedures for Obtaining Tribal Energy Resource Agreements
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224.53 and 224.63.................... What must an Application for 224.53 Provisions (a) through 1080 4 4,320 $151,328
an Agreement contain and (p) outline Application ($131,328)
What provisions must an information requirements and
Agreement contain? 225.63 Provisions (a)
through (c) outline
Agreement requirements.
224.57(d)............................ What must the Director do Director issues written 480 2 960 $33,468
upon receipt of an notice to tribe listing ($29,468)
Application? additional information
requirements.
224.61............................... What will the tribe provide Tribe must submit final 32 4 128 $4,352
to the Director after proposed Agreement. ($3,952)
receipt of the Director's
report on the Application
consultation meeting?
224.64............................... How may a tribe assume A tribe may assume management 720 1 720 $24,888
management of development of of other types of energy ($21,888)
different types of energy resources by applying for a
resources? new Agreement under the same
requirements as Sec.
224.53 and Sec. 224.54 for
that additional type of
energy resource.
[[Page 48629]]
224.65............................... How may a tribe assume Outlines an amendment process 520 1 520 $17,838
additional activities under for making changes to an ($15,838)
an Agreement? already approved Agreement.
224.68(d)............................ How will the Secretary use If the Secretary makes 480 4 1920 $66,936
public comment?. changes to final proposed ($58,936)
Agreement based on public
comment the tribe must
approve final changes in
writing.
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Subpart C--Approval of Tribal Energy Resource Agreements
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224.76............................... Upon notification of Yes--Tribe may submit a 520 1 520 $17,838
disapproval, may a tribe re- revised final proposed ($15,838)
submit a revised final Agreement.
proposed Agreement?
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Subpart D--Implementation of Tribal Energy Resource Agreements
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224.83............................... What are the responsibilities Inform public, send copy of 32 10 320 $10,920
of a tribe following any agreements to the ($8,920)
execution of leases, Director, and provide
business agreements, and documentation to Director of
rights-of-way under an information that would allow
Agreement? Secretary to discharge trust
responsibilities.
224.87............................... What are the responsibilities Tribe must provide written 120 1 120 $4,291
of a tribe if it discovers a notice to Director for ($3,791)
Violation or Breach? provisions (a) through (c).
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Subpart E--Interested Party Petitions
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224.108.............................. What must a petition contain? Provisions (a) through (j) 464 1 464 $16,024
outline petition information ($14,024)
requirements.
224.112.............................. What may the tribe do after After completion of petition 408 1 408 $15,546
it completes petition consultation tribe may ($12,546)
consultation with the submit a written response.
Director?
224.120(a)........................... How must the Director proceed The tribe must provide a 120 1 120 $4,291
with a petition if it meets written response to the ($3,791)
the threshold Director's determination.
determinations?
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Subpart F--Periodic Reviews
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224.139(b)........................... What must a tribe do after Submit a written response to 120 1 120 $4,291
receiving a notice of the Director. ($3,791)
imminent jeopardy to a
physical trust asset.
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Subpart G--Reassumption
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224.156.............................. What information must the Information requirements for 80 1 80 $2,696
tribe's response to the tribes response to notice of ($2,496)
notice of intent to reassume intent to reassume.
include?
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Subpart H--Rescission
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224.173.............................. How does a tribe rescind an Tribe must submit a written 32 1 32 $1,088
Agreement? tribal resolution to ($988)
initiate a rescission.
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Total Burden..................... ............................. ............................. ........... ........... 10,752 $375,795
($327,595)
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IEED specifically solicits comments on the following questions:
(a) Is the proposed collection of information necessary for IEED to
properly perform its functions, and will it be useful?
[[Page 48630]]
(b) Are the estimates of the burden hours of the proposed
collection reasonable?
(c) Do you have any suggestions that would enhance the quality,
clarity, 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?
National Environmental Policy Act (NEPA)
Under NEPA and 516 Departmental Manual 6, Appendix 10.4C,
``Issuance and/or modification of regulations.'' these proposed
regulations do not constitute a major Federal action significantly
affecting the quality of the human environment. The proposed
regulations fall within the categorical exclusion of Appendix 10.4C(1)
because the impact of the proposed rule would be limited to
administrative and economic effects. There are no extraordinary
circumstances that would require preparation of an environmental
assessment or an 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 proposed rule is not a significant rule and is not subject to
review by the Office of Management and Budget under Executive Order
13211. The proposed 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 has
determined that because the proposed rulemaking will uniquely affect
tribal governments it will follow Department and Administrative
protocols in consulting with tribal governments on the rulemaking.
Consequently, tribal governments will be notified through this Federal
Register notice and through the BIA field offices, of the ramifications
of this rulemaking. This will enable tribal officials and the affected
tribal constituency throughout Indian country to have meaningful and
timely input in the development of the final rule. This will reinforce
good intergovernmental relations with tribal governments and better
inform, educate and advise such tribal governments on compliance
requirements of the rule making. We consulted with tribal
representatives during the formulation of this proposed regulation.
The Department sent letters to tribal leaders on October 31, 2005
with information about the TERA provisions of Title V, Section 503 and
soliciting 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 was
distributed through the BIA regional offices 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
following proposed regulations. We have committed to consulting with
tribal representatives in the formulation of a final rule for Tribal
Energy Resource Agreements regulations.
Public Comment Procedures
The Department's practice is to make comments, including the names
and addresses of respondents, available for public review. Individual
respondents may request that we withhold their addresses from the
rulemaking record, which we will honor to the extent allowable by law.
There may be circumstances in which we would withhold from the
rulemaking record a respondent's identity, as allowable by law. If you
wish us to withhold your name and/or address, you must state this
prominently at the beginning of your comment. However, the Department
will not consider anonymous comments. We will make all submissions from
tribes, organizations, or businesses, and from individuals identifying
themselves as representatives or officials of tribes, organizations, or
businesses, available for public inspection in their entirety.
Clarity of This Regulation
Executive Order 12866 requires each agency to write regulations
that are easy to understand. We invite your comments on how to make
this proposed rule easier to understand, including answers to the
following questions:
(1) Are the requirements in the proposed rule clearly stated?
(2) Does the proposed rule contain technical language or jargon
that interferes with its clarity?
(3) Does the format of the proposed rule (grouping and order of
sections, use of headings, paragraphing, etc.) aid or reduce its
clarity?
(4) Is the description of the proposed rule in the Supplementary
Information; section of this preamble helpful in understanding the
rule?
(5) What else can we do to make the rule easier to understand?
Send a copy of any comments that concern how we could make this
rule easier to understand to the Office of Regulatory Affairs,
Department of the Interior, Room 7229, 1849 C Street, NW., Washington,
DC 20240. You may also e-mail the comments to this address:
[email protected].
List of Subjects in 25 CFR Part 224
Agreement, Appeals, Application, Business agreements, Energy
development, Interested party, Lease, Recordkeeping requirements,
Reporting requirements, Right-of-Way, Tribal Energy Resource
Agreements, Tribal capacity, Tribal lands, Trust, Trust asset.
Dated: August 1, 2006.
Michael D. Olsen,
Principal Deputy Assistant Secretary--Indian Affairs.
For the reasons stated in the preamble, the Department proposes to
add a new Part 224 in Chapter I of Title 25 of the Code of Federal
Regulations 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 an agreement affect the Secretary's trust
responsibility?
224.41 When does the Secretary require agreement of more than one
tribe to approve a TERA?
[[Page 48631]]
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 and the Secretary include in an agreement?
224.53 What must an application for an agreement contain?
Processing Applications
224.54 How must a tribe submit an application?
224.55 Will information a tribe submits during the application
process be 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
224.58 What is an application consultation meeting?
224.59 How may 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 agreement differ from the original
proposed agreement?
Agreement Requirements
224.63 What provisions must an agreement 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 an
agreement?
Public Notification and Comment
224.67 What must the Secretary do upon the Director's receipt of a
final proposed agreement?
224.68 How will the Secretary use public comments?
Subpart C--Approval of Tribal Energy Resource Agreements
224.70 Will the Secretary conduct a review of a final proposed
agreement under the National Environmental Policy Act (NEPA)?
224.71 What standards will the Secretary use to decide to approve a
final proposed agreement?
224.72 How will the Secretary determine whether a tribe has
demonstrated sufficient capacity?
224.73 How will the scope of energy resource development proposed in
a tribe's agreement affect the Secretary's determination of the
tribe's capacity?
224.74 When must the Secretary approve or disapprove a final
proposed agreement?
224.75 What must the Secretary do upon approval or disapproval of a
final proposed agreement?
224.76 Upon notification of disapproval, may a tribe re-submit a
revised final proposed agreement?
224.77 Who may appeal the Secretary's decision on a final proposed
agreement or a revised final proposed agreement?
Subpart D--Implementation of Tribal Energy Resource Agreements
Applicable Authorities and Responsibilities
224.80 Under what authority will a tribe perform activities
undertaken under an agreement?
224.81 What laws are applicable to activities under an agreement?
224.82 What services will the Department provide to a tribe after
approval of an agreement?
224.83 What are the responsibilities of a tribe following execution
of leases, business agreements, and rights-of-way under an
agreement?
Leases, Business Agreements, and Right-of-Way Under an Agreement
224.84 When may a tribe grant a right-of-way under an agreement?
224.85 When may a tribe enter into a lease or business agreement
under an agreement?
224.86 Are there limits for terms of leases, business agreements,
and rights-of-way entered into under an agreement?
Violation or Breach
224.87 What are the responsibilities of a tribe if it discovers a
violation or breach?
224.88 What are the responsibilities of the Director 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 entered into under an
agreement?
Subpart E--Interested Party Petitions
224.100 May a person or entity ask the Secretary to review a tribe's
compliance with an agreement?
224.101 Who is an interested party?
224.102 Must a tribe establish a comment or hearing process under an
agreement for addressing environmental concerns?
224.103 Must a tribe establish a process for public participation
regarding an agreement or activities undertaken under an agreement?
224.104 Must a tribe enact tribal laws, regulations, or procedures
permitting persons or entities to allege a tribe's noncompliance
with an agreement?
224.105 How may a person or entity obtain copies of tribal laws,
regulations, or procedures that establish hearing or comment
processes or that permit allegations of a tribe's noncompliance with
its agreement?
Sec. 224.106 If a tribe has enacted tribal laws, regulations, or
procedures for challenging tribal action under an agreement, how
must the tribe respond to a petitioner's challenge?
224.107 What must a petitioner claim or request in a petition filed
with the Secretary?
224.108 What must a petition contain?
224.109 What must a petitioner do before filing a petition with the
Secretary?
224.110 When may a petitioner file a petition with the Secretary?
224.111 What must the Director do upon receipt of a petition?
224.112 What may the tribe do after it completes petition
consultation with the Director?
224.113 How may the tribe address a petition in its written
response?
224.114 What will the Director do if the tribe offers a resolution
of a petitioner's claim in which the petitioner concurs?
224.115 When must the Director make threshold determinations about a
petition?
224.116 What must the Director consider in making threshold
determinations about a petition?
224.117 When must the Director dismiss a petition after making the
threshold determinations about a petition?
224.118 How must the Director proceed if the Director dismisses a
petition based on consideration of threshold determinations?
224.119 How must the Director proceed if the Director does not
dismiss the petition based on threshold determinations?
224.120 How must the Director proceed with a petition if it meets
the threshold determinations?
224.121 What action must the Director take to bring a tribe into
compliance with an agreement?
224.122 When must the Director act on a petition?
224.123 How may a tribe or a petitioner appeal the Director's
disposition of a petition?
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 written report address a tribe's
noncompliance with Federal law or the terms of an agreement?
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?
[[Page 48632]]
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 under an
agreement?
224.152 Must the Secretary always reassume the activities under an
agreement 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
activities under an agreement?
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 that
vested or lawful actions taken by the tribe or the Secretary before
the effective date of the reassumption?
224.160 How will reassumption affect an agreement?
224.161 How may reassumption affect the tribe's ability to modify an
agreement, administer additional activities or to 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 an agreement?
224.172 May a tribe rescind its authority to approve or disapprove a
specific future lease, business agreement, or right-of-way or the
development of a specific energy resource or geographic area?
224.173 How does a tribe rescind an agreement?
224.174 When does a voluntary rescission become effective?
224.175 How will rescission affect rights that vested before the
effective date of the rescission or lawful actions taken by the
tribe or the Secretary before the effective date of the rescission?
Subpart I--General Appeal Procedures
224.180 What is the purpose of this subpart?
224.181 Who may appeal Department 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 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 an agreement 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 keeping 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 Tribal Energy Resource
Agreements 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, Pub. L. 109-58, 25 U.S.C. 3501-3504.
Agreement means a tribal energy resource agreement (TERA) provided
for by the Act and this part.
Application means the application submitted for an agreement 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 or across 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.
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 with an agreement or applicable Federal law.
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 an agreement and who meets the criteria in Sec.
224.51.
Lease means a written agreement, or modification to an 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 resources for
purposes of energy resource development, including:
(1) Exploration, extraction, processing, refining, marketing or
other activities that further the development of energy resources; and
(2) Construction or operation of facilities on tribal lands used to
generate, transmit, or distribute electricity or to process, transport,
or refine energy resources.
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 an agreement. A petitioner is not considered to be an
interested party unless the petitioner meets the criteria in Sec.
224.51.
[[Page 48633]]
Physical trust asset means a physical asset held in trust by the
United States in trust 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 an agreement,
for a pipeline or electric transmission or distribution line that
serves a facility located on tribal land that is related to energy
resources or an agreement to grant a right-of-way.
Secretary means the Secretary of the Interior or the Secretary's
designee.
Tribal Designated 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 an
agreement or activities under an 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,
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, which 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.
Violation or breach means any breach or violation of a lease,
business agreement, or right-of-way or a Federal or tribal
environmental law resulting from an activity undertaken under a lease,
business agreement, or right-of-way under an agreement.
Sec. 224.40 How does the Act or an agreement affect the Secretary's
trust responsibility?
(a) The Act (25 U.S.C. 3504(e)(6)) preserves the Secretary's trust
responsibilities relating to trust resources and requires the Secretary
to act in good faith and in the best interest of Indian tribes at all
times.
(b) Neither the Act nor this part absolve 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
violates any term thereof; or any applicable Federal law; or
(2) Any provision of a lease, business agreement, or right-of-way
violates an agreement under which it was executed.
(d) The United States is not liable for losses that may result to a
tribe or to third parties from terms or provisions contained in a
lease, business agreement, or right-of-way negotiated by an Indian
tribe and executed under an agreement.
Sec. 224.41 When does the Secretary require agreement of more than
one tribe to approve a TERA?
When a TERA includes leases, business agreements and rights-of-way
on tribal land held for the benefit of more that one tribe, as part of
the pre-application process each tribal governing body must submit a
resolution or enactment approving the submission of an application.
Each tribal governing body must also sign the agreement, if approved.
224.42 How does the Paperwork Reduction Act affect these regulations?
The information collected from the public is cleared and covered by
OMB Control Number 1076-XXXX. The sections of this rule which have
information collections are Sec. Sec. 224.53, 224.57(d), 224.61,
224.63, 224.64, 224.65, 224.68(d), 224.76, 224.83, 224.87, 224.108,
224.112, 224.120(a), 224.139(b), 224.156, and 224.173. Please note that
a Federal Agency may not conduct or sponsor, and you are not required
to respond to, a collection of information unless it displays a
currently valid OMB control number.
Subpart B--Procedures for Obtaining Tribal Energy Resource
Agreements
Sec. 224.50 What is the purpose of this subpart?
This subpart establishes procedures governing:
(a) The pre-application process;
(b) The required content of applications;
(c) Submitting applications; and
(d) Secretarial review and processing of applications.
Pre-application Consultation and the Form of Application
Sec. 224.51 What is a pre-application consultation between a tribe
and the Director?
(a) A tribe interested in entering into an agreement should request
a pre-application consultation by writing to the Director, Office of
Indian Energy and Economic Development, Department of the Interior,
Room 20--South Interior Building, 1951 Constitution Avenue, NW.,
Washington, DC 20245. The request should include the name and contact
information of the tribal Designated Official who will coordinate
scheduling with the Director.
(b) Upon receiving a pre-application consultation request, the
Director will contact the tribal Designated Official to set up a
consultation meeting. The Director may also initiate pre-application
discussions with tribal governing bodies.
(c) At the pre-application consultation meeting, the tribe and the
Director may discuss any of the matters related to a future application
including, but not limited to:
(1) The application process;
(2) The potential scope of the tribe's future application,
including any regulatory or administrative activities that the tribe
anticipates exercising;
(3) The required content of an application for an agreement;
(4) The tribe's capacity to manage and regulate energy resource
development identified in the scope of its application;
(5) Potential opportunities for funding capacity-building and other
activities of the tribe under an agreement; and
(6) Any other matters applicable to this part, the Act, and the
tribe.
Sec. 224.52 What may a tribe and the Secretary include in an
agreement?
An agreement under this part:
(a) May include development of all or part of a tribe's energy
resources;
(b) Must be explicit as to the type of energy resource included;
(c) May include assumption by the tribe of certain activities
normally carried out by the Secretary, except for inherently Federal
functions; and
[[Page 48634]]
(d) Must be explicit as to what activities related to specific
energy resource developments the tribe proposes to assume.
Sec. 224.53 What must an application for an agreement contain?
(a) An application for an agreement must contain all of the
following:
(1) A proposed agreement between the tribe and the Secretary that
contains the provisions required in Sec. 224.63;
(2) A statement that the Secretary recognizes the tribe as an
Indian tribe and that the tribe has tribal land;
(3) A brief description of the tribe's form of government;
(4) Copies of relevant portions of tribal documents (see paragraph
(b) of this section);
(5) A map, legal description, and general description of the tribal
land that the tribe intends to be covered by an agreement;
(6) A coverage statement meeting the requirements in paragraph (c)
of this section;
(7) A statement describing the tribe's experience in negotiating
and administering energy-related leases, business agreements, and
rights-of-way issued under Federal laws other than the Act, including
descriptions of significant leases, business agreements, and rights-of-
way it has entered into with third parties or to which it has
consented;
(8) A description of the expertise that the tribe will use to
administer the agreement that meets the requirements of paragraph (d)
of this section;
(9) A statement of the scope of administrative responsibility that
the tribe intends to exercise that meets the requirements of paragraph
(e) of this section;
(10) A statement that meets the requirements of paragraph (f) of
this section describing the capability of the tribe assume any of the
activities the tribe has identified in the application;
(11) A copy of the resolution or enactment of the tribal governing
body or tribal governing bodies under Sec. 224.41 approving the
submission of an application for an agreement; and
(12) A designation of, and contact information for, the tribal
Designated Official who will receive notifications from the Secretary
or the Director regarding the status of the application.
(b) The documents required by paragraph (a)(4) of this section
include documents such as a constitution, code, ordinance, or
resolution, that designates the tribal governing body or officials
within the tribe that have the authority to enter into leases, business
agreements, or rights-of-way on behalf of the tribe.
(c) The coverage statement required by paragraph (a)(7) of this
section must:
(1) If applicable, state that the tribe retains the option of
entering into energy-related leases or agreements under laws other than
the Act for any tribal land covered by the agreement; and
(2) State one of the following:
(i) The tribe intends the agreement to cover all tribal land,
energy resources, and categories of energy-related leases, business
agreements and rights-of-way; or
(ii) The tribe intends to exclude certain tribal land, energy
resources, or categories of energy-related leases, business agreements,
or rights-of-way from the agreement. In this case, the statement must
include a description of the tribal land, energy resources, or energy-
related leases, business agreements, or rights-of-way intended to be
excluded from the agreement.
(d) The statement required by paragraph (a)(8) of this section must
describe the expertise that the tribe will use in the three areas
specified in paragraph (d)(1) of this section. It must address at a
minimum the resources specified in paragraph (d)(2) of this section.
(1) The statement must describe the expertise that the tribe will
use to:
(i) Negotiate or review leases, business agreements, or rights-of-
way under the agreement;
(ii) Evaluate the environmental effects, including those related to
cultural resources, of the agreement;
(iii) Review proposals or monitor compliance with financial terms
and conditions of leases, business agreements, or rights-of-way under
the agreement; and
(iv) Monitor the compliance of a third party with the terms of any
arrangement covered by the agreement
(2) The statement must address the following areas of the tribe's
expertise:
(i) Existing departments or administrative divisions within the
tribe;
(ii) Proposed departments or administrative divisions within the
tribe;
(iii) Existing internal and external expertise possessed by the
tribe, including a description of applicable tribal employees and
consultants or advisors; and
(iv) Proposed internal and external expertise that the tribe may
acquire, including a description of anticipated tribal employees and
consultants or advisors.
(e) The statement required by paragraph (a)(9) of this section must
address the amount of administrative responsibility related to the
permitting, approval, or monitoring of activities to be undertaken
under a lease, business agreement, or right-of-way.
(1) If a tribe desires to exercise regulatory responsibilities, the
tribe must indicate that intent and describe the tribe's plan for such
administration and management.
(2) Examples of regulatory authority that a tribe may wish to
exercise include, but are not limited to review and approval of
applications for permits to drill; review of archaeological resources
or historical or cultural resources; royalty accounting, collection,
and auditing; production accounting; or other review and enforcement
activities associated with compliance.
(3) The tribe's intended scope of administrative responsibilities
may not include the responsibilities of the Federal Government under
the Endangered Species Act or any other inherently Federal function.
(f) The statement required by paragraph (a)(10) of this section
must:
(1) Describe the tribe's ability to negotiate and consummate
leases, business agreements, and rights-of-way;
(2) Include a discussion of the estimated annual costs to the tribe
to assume those responsibilities and the availability and source of
revenue needed by the tribe to carry out those responsibilities; and
(3) If the intended source of tribal funds includes grants or
contract awards from the Department, the Department of Energy, or other
Federal agencies, describe the estimated annual amounts needed and the
Federal program under which such funds are to be requested.
(4) Include a description of contracts entered into between the
tribe and the Secretary under the Indian Self-Determination and
Education Assistance Act, as amended; or environmental programs a tribe
assumes under the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean
Air Act (42 U.S.C.A. 7401); or cooperative agreements under the Federal
Oil and Gas Royalty Management Act (30 U.S.C. 1701 et seq.).
Processing Applications
Sec. 224.54 How must a tribe submit an application?
A tribe must submit an application and all supporting documents in
both written and electronic formats to the Director, Office of Indian
Energy and Economic Development, Room 20--South Interior Building, 1951
Constitution Avenue, NW., Washington, DC 20245.
[[Page 48635]]
Sec. 224.55 Will information a tribe submits during the application
process be subject to disclosure to third parties?
(a) Information the tribe submits during the application process,
including information provided during pre-application consultation, may
be subject to disclosure to third parties under the Freedom of
Information Act (5 U.S.C. 552);
(b) If information a tribe submits contains commercial or financial
information that is confidential and proprietary, exceptions to
disclosure under the Freedom of Information Act may apply to those
portions of the information;
(c) During the application process, a tribe may identify
information in the documents it submits that it considers commercial or
financial and also confidential and proprietary;
(d) The terms of existing mineral agreements previously entered
into under the Indian Mineral Development Act are statutorily protected
under the Act against disclosure; and
(e) A tribe is under no Federal obligation to disclose to any
person or party the fact that it has submitted an application to the
Secretary.
Sec. 224.56 What is the effect of the Director's receipt of a tribe's
complete application?
The Director's receipt of a tribe's complete application begins a
270-day period during which the Secretary must approve or disapprove a
proposed agreement. With the consent of the tribe, the Secretary may
extend the period for a decision.
Sec. 224.57 What must the Director do upon receipt of an application?
(a) Upon receipt of an application, the Director must:
(1) Promptly notify the tribal Designated Official in writing that
the Director has received the application and the date of such receipt;
(2) Within 30 days from the date of receipt of the application,
determine whether the application is complete;
(3) If the Director determines that the application is complete,
issue a written notice together with a request for an application
consultation meeting to the tribal Designated Official. As appropriate,
the Director will also notify other Department bureaus and offices that
the Director has received a complete application and provide copies; or
(4) Issue a written notice to the tribal Designated Official that
the application is not complete and specify the additional information
the tribe is required to submit to make the application complete. If
the Director determines that an application is not complete, the 270-
day review period does not begin until the Director receives a complete
application.
(b) Unless, within the 30-day period, the Director notifies the
tribal Designated Official that the application is not complete, the
application is presumed complete and the 270-day review period under
Section 2604(e)(2)(A) of the Act will begin as of the date that the
application was received.
Application Consultation Meeting
Sec. 224.58 What is an application consultation meeting?
(a) An application consultation meeting is a meeting held at the
tribe's headquarters between the Director and the tribal governing body
and any other representatives that the tribe may designate to discuss
the scope of the application. The Secretary will designate
representatives of appropriate Department offices or bureaus to attend
the application consultation meeting, as necessary. The meeting will:
(1) Be held at the earliest practicable time after the Director
receives the application;
(2) Be a thorough review of the tribe's application;
(3) Identify specific services that the Department would provide,
consistent with the Secretary's ongoing trust responsibilities, in the
event that the agreement is approved;
(4) Include a discussion of the relationship of the tribe to other
Federal agencies with responsibilities for implementing or ensuring
compliance with the terms and conditions of leases, business
agreements, or rights-of-way and applicable Federal laws;
(5) Include a discussion of the relationship of the tribe to its
members, to State and local governments, and to non-Indians who may be
affected by approval of an agreement or by leases, business agreements,
or rights-of-way that may be granted or entered into by the tribe;
(6) Include a discussion of the tribal administrative structure and
financial and management capacities needed to carry out the tribe's
obligations under an agreement; and
(7) Include a discussion of the form of the agreement and the
timing and relative responsibilities for its preparation.
(b) The tribe may record the meeting.
Sec. 224.59 How may the Director use the results of the application
consultation meeting?
The Director may use the results of the application consultation
meeting to assist the Secretary in evaluating the capacity of the tribe
to:
(a) Analyze the business and legal terms and the potential effect
of proposals for leases, business agreements, and rights-of-way;
(b) Monitor and enforce third party compliance with the terms of
leases, business agreements, and rights-of-way; and
(c) Carry out the tribe's responsibilities under an agreement if
the agreement is approved.
Sec. 224.60 What will the Director provide to the tribe after the
application consultation meeting?
Within 30 days following the meeting with the tribe, the Director
will provide to the tribal Designated Official a written report
summarizing the content of the meeting. The report must include the
Director's recommendations, if any, for revising the proposed agreement
submitted with the tribe's application.
Sec. 224.61 What will the tribe provide to the Director after receipt
of the Director's report on the application consultation meeting?
If the tribe wishes to proceed with the application process, the
tribe must submit a final proposed agreement to the Director within 45
days following the issuance of the Director's report on the application
consultation meeting.
Sec. 224.62 May a final proposed agreement differ from the original
proposed agreement?
The final proposed agreement may or may not contain provisions that
differ from the original proposed agreement submitted with the
application.
(a) If a final proposed agreement does not differ significantly or
materially from the original complete application, the running of the
270-day period commenced by either the receipt of the original complete
application or by operation of Sec. 224.16(d) is not changed.
(b) If a final proposed agreement differs significantly or
materially from the original complete application, the Secretary may
extend the 270-day period for a reasonable time. The Secretary will
notify the tribe in writing if an extension of time is necessary.
Agreement Requirements
Sec. 224.63 What provisions must an agreement contain?
An agreement must contain the following:
(a) Provisions for periodic review and evaluation of the tribe's
performance under the agreement and recognizing the authority of the
Secretary, upon a finding of imminent jeopardy to a physical trust
asset, to take actions the Secretary determines to be necessary to
[[Page 48636]]
protect the asset, including reassumption under subparts F and G.
(b) Provisions ensuring:
(1) Appropriate evaluation of all significant environmental effects
(as compared to a no-action alternative), including effects on cultural
resources, arising from leases, business agreements, or rights-of-way,
and measures ensuring that appropriate mitigation measures will be
identified and implemented in performance of activities under leases,
business agreements, or rights-of-way;
(2) A process for informing the public and providing opportunity
for public comment on the environmental impacts of the proposed action;
(3) A process for providing tribal responses to relevant and
substantive public comments before tribal approval of the lease,
business agreement or right-of-way;
(4) Sufficient tribal administrative support and technical
capability to carry out the environmental review process; and
(5) The tribe's oversight of energy resource development activities
any other party conducts to determine whether the activities comply
with the agreement and applicable Federal environmental laws.
(c) Provisions that require, with respect to any lease, business
agreement, or right-of-way approved under an agreement, the following:
(1) Mechanisms for obtaining corporate, technical, and financial
qualifications of a third party that has applied to enter into a lease,
business agreement, or right-of-way;
(2) Express limitations on duration that meet the restrictions of
the Act;
(3) Mechanisms for amendment, transfer, and renewal;
(4) Mechanisms for obtaining, reporting and evaluating economic
return to the tribe;
(5) Mechanisms for securing technical information about activities
and ensuring that technical activities are performed in compliance with
terms and conditions;
(6) Assurances of compliance with all applicable environmental
laws;
(7) Requirements that the lessee, operator or right-of-way grantee
will comply with all applicable environmental laws;
(8) Identification of tribal offices or entities with authority to
approve a lease, business agreement, or right-of-way and the activities
to be undertaken under a lease, business agreement, or right-of-way;
(9) Public notification that a lease, business agreement, or right-
of-way has received final tribal approval;
(10) A process for consultation with affected States regarding off-
reservation impacts, if any, identified under (b) of this section;
(11) A description of remedies for breach;
(12) A statement that any provision that violates an express term
or requirement of the agreement is null and void;
(13) A statement that if the Secretary determines that any
provision that violates an express term or requirement of the agreement
is material, the Secretary may reassume or rescind the lease, business
agreement, or right-of-way, or take any action the Secretary determines
to be in the best interest of the tribe;
(14) A statement that the lease, business agreement, or right-of-
way goes into effect when the tribe delivers executed copies to the
Director by first class mail return receipt requested or express
delivery;
(15) Citations to any applicable tribal laws, regulations, or
procedures that permit persons or entities to submit comments on or
participate in hearings regarding activities to be undertaken by a
tribe under an agreement;
(16) Citations to any applicable tribal laws, regulations, or
procedures establishing remedies that petitioning parties must exhaust
before filing a petition with the Secretary under subpart E;
(17) Provisions that require a tribe to provide the Secretary with
citations to any tribal laws, regulations, or procedures tribes adopt
after the effective date of an agreement that establish, amend, or
supplement tribal comment or hearing provisions or tribal remedies that
petitioning parties must exhaust prior to filing a petition with the
Secretary under subpart E;
(18) Provisions that designate a person or entity authorized by the
tribe to maintain and to disseminate to requesting members of the
public current copies of tribal laws, regulations, or procedures that
establish or describe tribal comment or hearing processes that
petitioning parties must participate in or tribal remedies that
petitioning parties must exhaust before instituting appeals under
subpart E, together with contact information;
(19) Identification of financial assistance, if any that the
Secretary will provide to assist in implementation of the agreement,
including the tribe's environmental review of individual energy
development activities;
(20) Provisions that require a tribe to notify the Secretary and
the Director in writing of violations or breaches; and
(21) Provisions that require the tribe and the tribe's financial
experts to adhere to Government auditing standards and continuing
professional education requirements when performing audits and periodic
reviews of the audits.
Sec. 224.64 How may a tribe assume management of development of
different types of energy resources?
In order for a tribe to assume responsibility for development of
energy resources that are not included in the Agreement, a tribe must
apply for a new agreement covering the responsibilities for the
development of the other energy resources it wishes to assume. The
Secretary's approval of a new agreement will include a determination of
the tribe's capacity to develop that type of energy resource.
Sec. 224.65 How may a tribe assume additional activities under an
agreement?
A tribe may assume additional activities related to the development
of the same type of energy resource included in an agreement by
negotiating an amendment to the existing agreement with the Secretary
to include the additional activities.
Public Notification and Comment
Sec. 224.67 What must the Secretary do upon the Director's receipt of
a final proposed agreement?
Within 10 days of the Director's receipt of a final proposed
agreement, the Secretary must submit a notice for publication in the
Federal Register advising the public that the Secretary is considering
a final proposed agreement for approval or disapproval. The notice
will:
(a) Contain information advising the public how to request and
receive copies of the final proposed agreement from the Secretary;
(b) Contain information advising the public how to request and
receive copies of or participate in any National Environmental Policy
Act (NEPA) reviews, as prescribed in subpart C, related to approval of
the final proposed agreement; and
(c) Invite written public comments, state the due date for
comments, and state the address to which to send comments.
Sec. 224.68 How will the Secretary use public comments?
(a) The Secretary will review public comments and provide copies of
the comments to the tribal Designated Official;
(b) The Secretary will consider public comments in deciding to
approve or
[[Page 48637]]
disapprove the final proposed agreement;
(c) Upon mutual agreement between the tribe and the Secretary, the
tribe may make changes in the final proposed agreement based on the
comments received; and
(d) If the tribe revises the final proposed agreement based on
public comments, the tribal governing body must approve the changes,
the authorized representative of the tribe must sign the final proposed
agreement as changed, and the tribe must send the revised final
proposed agreement to the Director.
Subpart C--Approval of Tribal Energy Resource Agreements
Sec. 224.70 Will the Secretary conduct a review of a final proposed
agreement under the National Environmental Policy Act (NEPA)?
Yes, the Secretary will conduct a review under NEPA of the
potential impacts on the quality of the human environment that might
arise from approving a final proposed agreement. The scope of the
Secretary's evaluation will be limited to the scope of the activities
and the energy resource developments the tribe is proposing to
undertake as specified by the provisions of the agreement. The public
comment period, if any, under the NEPA review will occur concurrently
with the public comment period for an agreement under Sec. 224.67.
Sec. 224.71 What standards will the Secretary use to decide to
approve a final proposed agreement?
The Secretary will consider the best interests of the tribe and the
Federal policy of promoting tribal self-determination in deciding to
approve a final proposed agreement. The Secretary must approve a final
proposed agreement if it contains the provisions required by the Act
and this part and the Secretary determines that the tribe has
demonstrated sufficient capacity to:
(a) Make prudent decisions in negotiating, approving or
disapproving proposals for leases, business agreements, or rights-of-
way affecting tribal land; and
(b) Monitor and regulate activities undertaken by third parties
under approved leases, business agreement, or rights-of-way in
accordance with the final proposed agreement.
Sec. 224.72 How will the Secretary determine whether a tribe has
demonstrated sufficient capacity?
The Secretary will determine whether a tribe has demonstrated
sufficient capacity under Sec. 224.71 based on the information
obtained through the application process. The Secretary will consider:
(a) The specific energy resource development the tribe proposes;
(b) The scope of the administrative or regulatory authority the
tribe seeks to assume;
(c) Materials and information submitted with the application for an
agreement, the results of meetings between the tribe and
representatives of the Department, and the Director's written report;
(d) The history of the tribe's role in energy resource development,
including pre-existing energy-related leases, business agreements, and
rights-of-way;
(e) The administrative expertise of the tribe available to regulate
energy resource development within the scope of the final proposed
agreement or the tribe's plans for establishing that expertise;
(f) The financial capacity of the tribe to maintain or procure the
technical expertise needed to evaluate proposals and to monitor
anticipated activities in a prudent manner;
(g) The tribe's past performance administering contracts and grants
associated with self-determination programs, cooperative agreements
with Federal and State agencies, and environmental programs
administered by the Environmental Protection Agency; and
(h) Any other factors the Secretary finds to be relevant in light
of the scope of the proposed agreement.
Sec. 224.73 How will the scope of energy resource development
proposed in a tribe's agreement affect the Secretary's determination of
the tribe's capacity?
The Secretary's review under Sec. 224.72 of the tribe's capacity
to manage and regulate energy resource development under the agreement
will include a determination as to each energy resource development
subject to the agreement, and each activity the tribe proposes to
assume. The Secretary's review of an agreement must be limited to
activities specified by the provisions of the agreement.
Sec. 224.74 When must the Secretary approve or disapprove a final
proposed agreement?
The Secretary must approve or disapprove a final proposed agreement
or a revised final proposed agreement within 270 days of the Director's
receipt of a complete application for an agreement. With the consent of
the tribe, or as provided in Sec. 224.16, the Secretary may extend the
period for a decision.
Sec. 224.75 What must the Secretary do upon approval or disapproval
of a final proposed agreement?
Within 10 days of the Secretary's approval or disapproval of a
final proposed agreement, the Secretary must notify the tribal
governing body in writing;
(a) If the Secretary's decision is to approve the final proposed
agreement, the Secretary will sign the agreement, which will be
effective on the date of the Secretary's signature, and return the
signed agreement to the tribal governing body.
(b) If the Secretary's decision is to disapprove the final proposed
agreement, the Secretary's notice of disapproval must include:
(1) The basis of the disapproval;
(2) The revisions needed, if any, to meet the Secretary's concerns;
and
(3) A statement that the decision is a final agency action and is
subject to judicial review.
(c) If the Secretary approves the final proposed agreement, the
Secretary will maintain a copy of the agreement and any subsequent
amendments or supplements to the agreement, and provide copies to
persons or entities upon request under the Freedom of Information Act
(5 U.S.C. 552).
Sec. 224.76 Upon notification of disapproval, may a tribe re-submit a
revised final proposed agreement?
Yes, within 45 days of receipt of the notice of disapproval, or a
later date as the Secretary and the tribe agree to in writing, the
tribe may re-submit a revised final proposed agreement, approved by the
tribal governing body and signed by the tribe's authorized
representative, to the Director that addresses the Secretary's
concerns. Unless the Secretary and the tribe otherwise agree, the
Secretary must approve or disapprove the revised final proposed
agreement within 60 days of the Director's receipt of the revised final
proposed agreement. Within 10 days of the Secretary's approval or
disapproval of a revised final proposed agreement, the Secretary must
notify the tribal governing body in writing;
(a) If the Secretary's decision is to approve the revised final
proposed agreement, the Secretary will sign the agreement, which will
be effective on the date of the Secretary's signature, and return the
signed agreement to the tribal governing body.
(b) If the Secretary's decision is to disapprove the revised final
proposed agreement, the Secretary's notice of disapproval must include:
(1) The reasons for the disapproval; and
[[Page 48638]]
(2) A statement that the decision is a final agency action and is
subject to judicial review.
Sec. 224.77 Who may appeal the Secretary's decision on a final
proposed agreement or a revised final proposed agreement?
Only a tribe applying for an agreement may appeal the Secretary's
decision to disapprove a final proposed agreement or a revised final
proposed agreement in accordance with the appeal procedures contained
in subpart I of this part. No other person or entity may appeal the
Secretary's decision. The Secretary's decision to approve a final
proposed agreement or a revised final proposed agreement is a final
agency action.
Subpart D--Implementation of Tribal Energy Resource Agreements
Applicable Authorities and Responsibilities
Sec. 224.80 Under what authority will a tribe perform activities for
energy resource development undertaken under an agreement?
A tribe will perform activities for energy resource development
activities undertaken under an agreement under the authorities provided
in the approved agreement. Notwithstanding anything in this part or an
approved agreement to the contrary, a tribe will retain all sovereign
and other powers it otherwise possesses.
Sec. 224.81 What laws are applicable to activities under an
agreement?
Federal and tribal laws apply to activities under an agreement,
unless otherwise specified in the agreement.
Sec. 224.82 What services will the Department provide to a tribe
after approval of an agreement?
After approval of an agreement, the services the Department will
provide to a tribe include:
(a) Access to title status information and support services needed
by a tribe in the course of evaluating proposals for leases, business
agreements, or Rights-of Way;
(b) Coordination between the tribe and the Department for ongoing
maintenance of accurate real property records;
(c) Access to technical support services within the Department to
assist the tribe in evaluating the physical, economic, financial,
cultural, social, environmental, and legal consequences of approving
proposals for leases, business agreements, or rights-of-way under an
agreement;
(d) Assistance to ensure that violations of the terms of leases,
business agreements, or rights-of-way and applicable provisions of
Federal law by third parties are handled appropriately; and
(e) Any other Department activities that the agreement does not
affect.
Sec. 224.83 What are the responsibilities of a tribe following
execution of leases, business agreements, and rights-of-way under an
agreement?
Following execution of leases, business agreements, and rights-of-
way under an agreement, a tribe must:
(a) Inform the public of approval of a lease, business agreement,
or right-of-way under the agreement;
(b) Send a copy of the executed lease, business agreement, or
right-of-way, or amendments, to the Director within one business day of
execution. The copy must be sent by certified mail return receipt
requested or by overnight delivery; and
(c) Provide, to the Director, sufficient information and
documentation of payments made directly to the tribe to enable the
Secretary to discharge the trust responsibility of the United States to
enforce the terms of, and the rights of the tribe, under a lease,
business agreement, or right-of-way.
Leases, Business Agreements, and Rights-of-Way Under an Agreement
Sec. 224.84 When may a tribe grant a right-of-way under an agreement?
A tribe may grant a right-of-way under an agreement if the grant of
right-of-way is over tribal land for a pipeline or an electric
transmission or distribution line if the pipeline or electric
transmission or distribution line serves.
(a) An electric generation, transmission, or distribution facility
located on tribal land; or
(b) A facility located on tribal land that processes or refines
energy resources developed on tribal land.
Sec. 224.85 When may a tribe enter into a lease or business agreement
under an agreement?
A tribe may enter into a lease or business agreement for the
purpose of energy resource development on tribal land for:
(a) Exploration for, extraction of, processing of, or other
development of the tribe's energy resources;
(b) Construction or operation of an electric generation,
transmission, or distribution facility located on tribal; and
(c) A facility to process or refine energy resources developed on
tribal land.
Sec. 224.86 Are there limits for terms of leases, business
agreements, and rights-of-way entered into under an agreement?
Yes. There are limits for terms of leases, business agreements, and
rights-of-way as follows:
(a) For leases and business agreements, except as provided in
paragraph (b) of this section, terms are limited to 30 years;
(b) For leases for production of oil resources and gas resources,
or both, terms are limited to 10 years and as long after as oil or gas
production continues in paying quantities; and
(c) For rights-of-way, terms are limited to 30 years.
Violation or Breach
Sec. 224.87 What are the responsibilities of a tribe if it discovers
a violation or breach?
As soon as practicable after discovering or receiving notice of a
Violation or Breach of a lease, business agreement, or right-of-way or
a Federal or tribal environmental law resulting from an activity
undertaken under a lease, business agreement, or right-of-way, the
tribe must provide written notice to the Director describing:
(a) The nature of the Violation or Breach in reasonable detail;
(b) The corrective action taken or planned by the tribe; and
(c) The proposed period for the corrective action to be completed.
Sec. 224.88 What are the responsibilities of the Director after
receiving notice of a violation or breach from the tribe?
After receiving notice of a violation or breach from the tribe, the
Director will review the notice and:
(a) If the Director determines that a violation or breach does not
cause imminent jeopardy to a physical trust asset, the Director will
review, for concurrence or disapproval, the corrective action to be
taken by the tribe and the proposed period for completion of the
corrective action.
(b) If the Director determines that a violation or breach causes
imminent jeopardy to a physical trust asset, the Director will proceed
under the imminent jeopardy provisions of subpart F.
(c) Before making a determination whether a violation or breach
will or will not cause imminent jeopardy to a physical trust asset, the
Director may, as appropriate:
(1) Conduct an on-site inspection; and
(2) Review relevant transactions and reports.
[[Page 48639]]
Sec. 224.89 What procedures will the Secretary use to enforce leases,
business agreements, or rights-of-way entered into under an agreement?
When appropriate, the Secretary will use the notification and
enforcement procedures established in 25 CFR parts 162, 211 and 225 to
ensure compliance with leases and business agreements. When
appropriate, the Secretary will use the notification and enforcement
procedures of 25 CFR part 169 to ensure compliance with rights-of-way.
All enforcement remedies established in 25 CFR parts 162, 211, 225, and
169 are available to the Secretary. The Secretary and a tribe will
consult with each other regarding enforcement of and Secretarial
assistance needed to enforce leases, business agreements, or rights-of-
way.
Subpart E--Interested Party Petitions
Sec. 224.100 May a person or entity ask the Secretary to review a
tribe's compliance with an agreement?
In accordance with this subpart, a person or entity that is an
interested party may submit a petition to review a tribe's compliance
with an agreement to the Secretary. However, before filing a petition
with the Secretary, a person or entity that is an interested party must
first exhaust tribal remedies, if a tribe has provided for tribal
remedies. If a tribe has not provided for tribal remedies, the person
or entity that is an interested party may file a petition directly with
the Secretary.
Sec. 224.101 Who is an interested party?
An interested party is a person or an entity that has demonstrated
that an interest of the person or entity has sustained, or will
sustain, an adverse environmental impact because of a tribe's failure
to comply with an agreement.
Sec. 224.102 Must a tribe establish a comment or hearing process
under an agreement for addressing environmental concerns?
Yes. The Act (25 U.S.C. 3504(e)(2)(C)(iii)(I), (II) and 25 U.S.C.
3504(e)(2)(B)(iii)(X)) and this subpart require that a tribe must
establish an environmental review process under an agreement that:
(a) Ensures that the public is notified about and has an
opportunity to comment on the environmental impacts of proposed tribal
action to be taken under an agreement;
(b) Requires that a tribe respond to relevant and substantive
comments about the environmental impacts of a proposed tribal action
before a tribe approves a lease, business agreement, or right-of-way;
and
(c) Establishes a process for consultation with any affected States
regarding off-reservation environmental impacts, if any, resulting from
approval of a lease, business agreement, or right-of-way.
Sec. 224.103 Must a tribe establish a process for public
participation regarding an agreement or activities undertaken under an
agreement?
No. Except for the environmental review process required by the Act
and Sec. 224.63(b)(i), a tribe is not required to establish a process
for public participation, including taking comments or holding
hearings, regarding an agreement or activities undertaken under an
agreement. However, a tribe may elect to establish procedures that
permit persons or entities to participate in public hearings or that
expand the scope of matters about which the public may comment.
Sec. 224.104 Must a tribe enact tribal laws, regulations, or
procedures permitting persons or entities to allege a tribe's
noncompliance with an agreement?
No. A tribe is not required to enact tribal laws, regulations, or
procedures permitting persons or entities to allege that a tribe does
not comply with its agreement. However, a tribe may elect to enact
laws, regulations, or procedures permitting persons or entities to
allege that a tribe does not comply with its agreement.
Sec. 224.105 How may a person or entity obtain copies of tribal laws,
regulations, or procedures that establish hearing or comment processes
or that permit allegations of a tribe's noncompliance with its
agreement?
A person or entity may obtain copies of tribal laws, regulations,
or procedures that establish a hearing or comment process or that
permit allegations of a tribe's noncompliance under its agreement by
requesting such information from the tribe under procedures established
in the agreement. Under Sec. 224.63 the agreement must:
(a) Cite applicable tribal laws, regulations, or procedures in
place at the time the agreement is approved that establish tribal
hearing or comment procedures regarding an agreement or activities
undertaken under an agreement;
(b) Cite applicable tribal laws, regulations, or procedures in
place at the time the agreement is approved permitting allegations of a
tribe's noncompliance with its agreement;
(c) Describe how, when, and under what conditions copies of current
applicable tribal laws, regulations, or procedures or amendments may be
obtained from the tribe; and
(d) Require a tribe to supply the Secretary with citations to
amendments and supplements to applicable laws, regulations, or
procedures that the tribe adopts after the effective date of an
agreement related to tribal hearing or comment processes or to
establishment of tribal remedies for challenging tribal action or
inaction under an agreement, which citations the Secretary will append
to the agreement.
Sec. 224.106 If a tribe has enacted tribal laws, regulations, or
procedures for challenging tribal action under an agreement, how must
the tribe respond to a petitioner's challenge?
If a tribe has enacted tribal laws, regulations, or procedures
under which a petitioner may file a petition alleging noncompliance
with an agreement, the tribe must:
(a) Within a reasonable time issue a written decision under the
tribal laws, regulations, or procedures that addresses the allegation ,
which decision may include a determination of whether the petitioner is
an interested party; and
(b) Provide a copy of its written decision to the petitioner.
Sec. 224.107 What must a petitioner claim or request in a petition
filed with the Secretary?
In a petition filed with the Secretary, a petitioner must:
(a) Claim that the tribe, through its action or inaction:
(1) Has failed to comply with terms or provisions of an agreement;
and
(2) That, because of the tribe's noncompliance, the petitioner's
interest has sustained or will sustain an adverse environmental impact;
(b) Request that the Secretary review the matters described in the
petition; and
(c) Request that the Secretary take action necessary to bring a
tribe into compliance with the agreement.
Sec. 224.108 What must a petition contain?
A petition must contain:
(a) The name and contact information of the petitioner;
(b) Specific facts demonstrating that the petitioner is an
interested party under Sec. 224.101;
(c) Specific facts demonstrating that the petitioner participated
in a tribal hearing or comment process regarding the tribal action to
which the petitioner objects, if a hearing or comment process was
available;
(d) Specific facts demonstrating that the petitioner exhausted
tribal remedies, if tribal laws, regulations, or procedures
[[Page 48640]]
permitted the petitioner to allege tribal noncompliance with an
agreement to which the petitioner objects and that the petitioner
followed to completion the procedures accorded by those tribal laws,
regulations, or procedures;
(e) A description of the petitioner's allegation of noncompliance
with an agreement;
(f) A description of the adverse environmental impact that the
petitioner's interest has sustained or will sustain because of the
tribe's noncompliance with the agreement;
(g) A copy of any written decisions the tribe issued responding to
the petitioner's allegation;
(h) If applicable, a statement that the tribe has issued no written
decision within a reasonable time related to an allegation a petitioner
has filed with the tribe under applicable tribal laws, regulations, or
procedures;
(i) A description of the action the Secretary may take under Sec.
224.120 to bring the tribe into compliance with the agreement; and
(j) Any other information relevant to the petition.
Sec. 224.109 What must a petitioner do before filing a petition with
the Secretary?
Before a petitioner may file a petition with the Secretary under
this subpart, the petitioner must have:
(a) Participated in the tribal process, if the tribe has laws,
regulations, or procedures that provided the petitioner an opportunity
to participate in a tribal hearing or comment process regarding
allegations of tribal noncompliance; and
(b) Pursued to completion procedures accorded by those tribal laws,
regulations, or procedures.
Sec. 224.110 When may a petitioner file a petition with the
Secretary?
A petitioner may file a petition with the Secretary by delivering
the petition to the Director:
(a) Within 45 days of receipt of the tribe's written decision
addressing the allegation of noncompliance under applicable tribal
laws, regulations, or procedures.
(b) If the tribe fails within a reasonable period to issue a
written decision to an allegation of noncompliance with an agreement a
petitioner brings under applicable tribal laws, regulations, or
procedures, the Secretary will deem the allegation as having been
denied. The Secretary will determine if the petitioner has filed the
petition within a reasonable period following the constructive denial
in light of the applicable facts and circumstances.
(c) A petitioner may file a petition directly with the Secretary,
if the tribe has no tribal laws, regulations or procedures that
provided the petitioner an opportunity to allege tribal noncompliance
with an Agreement.
Sec. 224.111 What must the Director do upon receipt of a petition?
Within 20 days after receipt of a petition, the Director must:
(a) Notify the tribe in writing that the Director has received a
petition;
(b) Provide a copy of the complete petition to the tribe;
(c) Initiate a petition consultation with the tribe that will
address the petitioner's allegation of a tribe's noncompliance with an
agreement and alternatives to resolve the noncompliance; and
(d) Notify the tribe in writing when the petition consultation is
complete.
Sec. 224.112 What may a tribe do after it completes petition
consultation with the Director?
Within 45 days of the date of the Director's notice that the tribal
petition consultation is complete, the tribe may respond to the
petition by submitting a written response to the Director and the
petitioner. If the tribe fails to submit a written response to the
petition within those 45 days, the tribe will not be permitted to
submit any additional information to the Director addressing the
petition.
Sec. 224.113 How may the tribe address a petition in its written
response?
In its written response, the tribe may or may not dispute the
petitioner's claims.
(a) If the tribe disputes the petitioner's claims of tribal
noncompliance with an agreement, in its written response, the tribe
must describe why it disputes the petitioner's claims of noncompliance,
including the tribe's interpretation of relevant provisions of the
agreement and other legal requirements;
(b) Whether or not the tribe disputes the petitioner's claims of
tribal noncompliance with an agreement, in its written response, the
tribe may:
(1) Discuss whether the petitioner is an interested party;
(2) State whether the petitioner participated in a hearing or
comment process that was available with respect to the allegation of
the tribe's noncompliance with an agreement that is the subject of the
petition;
(3) State whether the petitioner has exhausted tribal remedies;
(4) Identify the steps, if any, the tribe will take to comply with
the agreement and state when the steps will be taken; or
(5) Offer a resolution of the petitioner's claim of the adverse
environmental impact the petitioner's interest has sustained or will
sustain because of the tribe's noncompliance with an agreement.
Sec. 224.114 What will the Director do if the tribe offers a
resolution of a petitioner's claim in which the petitioner concurs?
If the tribe submits a proposed resolution and a written statement
signed by the petitioner that shows the petitioner concurs with the
tribe's proposed resolution of the claim of adverse environmental
impact to the petitioner's interest, the Director may accept the
resolution, dismiss the petition, and notify the parties of the
petition's dismissal.
Sec. 224.115 When must the Director make threshold determinations
about a petition?
The Director must make threshold determinations about a petition
if:
(a) The tribe does not submit a timely written response to a
petition to the Director and the petitioner;
(b) The tribe's written response does not include a proposed
resolution in which the petitioner concurs; or
(c) The Director did not accept the tribe's proposed resolution in
which the petitioner agreed.
Sec. 224.116 What must the Director consider in making threshold
determinations about a petition?
The Director must consider the information contained in the
petition and the information submitted in the tribe's written response,
if applicable, and determine as threshold matters whether:
(a) The petitioner is an interested party because;
(1) An interest of the petitioner has sustained or will sustain an
adverse environmental impact; and
(2) The adverse environmental impact was the result of the failure
of the tribe to comply with an agreement.
(b) The petitioner participated in a tribal hearing or comment
process under tribal laws, regulations, or procedures that were
available with respect to the allegation of the tribe's noncompliance
with an agreement that is the subject of the petition.
(c) The petitioner exhausted tribal remedies under Sec. 224.109.
Sec. 224.117 When must the Director dismiss a petition after making
the threshold determinations about a petition?
After considering threshold determinations under Sec. 224.116, the
Director must dismiss the petition if the Director determines that:
(a) The petitioner is not an interested party;
(b) The petitioner failed to participate under tribal laws,
regulations, or
[[Page 48641]]
procedures in a tribal hearing or comment process that was available
with respect to the allegation of the tribe's noncompliance with an
agreement that is the subject of the petition, unless failure to
participate was a result of the tribe's failure to provide the
petitioner with notice of the tribal hearing or comment process
following the petitioner's timely request for information; or
(c) The petitioner failed to exhaust tribal remedies before
submitting the petition, unless the failure to exhaust tribal remedies
was because the tribe did not:
(1) Issue a written decision within a reasonable time under tribal
laws, regulations, or procedures that permitted an allegation of a
tribe's noncompliance with an agreement that is the subject of the
petition; or
(2) Appropriately respond to the petitioner's timely request for
copies of current applicable tribal laws, regulations, or procedures;
permitting an allegation of a tribe's noncompliance with an agreement.
Sec. 224.118 How must the Director proceed if the Director dismisses
a petition based on consideration of threshold determinations?
If the Director dismisses a petition based on consideration of
threshold determinations, the Director must:
(a) Issue a written decision of dismissal that states the basis for
the decision and includes finding of fact and conclusions of law; and
(b) Provide a copy of the written decision of dismissal to the
petitioner and the tribe, including a notification of the petitioner's
right to appeal the dismissal to the Deputy Assistant Secretary--Policy
and Economic Development under subpart I.
Sec. 224.119 How must the Director proceed if the Director does not
dismiss the petition based on threshold determinations?
If the Director does not dismiss the petition under Sec. 224.117,
the Director must:
(a) Evaluate the petition and determine whether the petition states
a claim that:
(1) The tribe failed to comply with one or more terms or provisions
of an agreement; and
(2) The Secretary's action is necessary to cure or otherwise
resolve each claim of adverse environmental impact.
(b) If the Director determines that the petition fails to state a
claim, the Director must:
(1) Issue a written decision of dismissal setting forth the basis
for the decision;
(2) Provide a copy of the written decision of dismissal to the
petitioner and the tribe; and
(3) Notify the tribe and the petitioner of the petitioner's right
to appeal the dismissal to the Deputy Assistant Secretary--Policy and
Economic Development under subpart I.
Sec. 224.120 How must the Director proceed with a petition if it
meets the threshold determinations?
If the Director determines a petition meets the threshold
determinations of Sec. 224.116, the Director must:
(a) Issue a written notice to the tribe which states that the
Director has accepted the petition and that the tribe must provide a
written response within 30 days of receipt of the written notice or
provide a written statement that the tribe is declining to provide a
written response;
(b) Review and analyze the claims alleged in the petition and the
tribe's response, if any, to determine what action the tribe or the
Secretary must take to prevent, diminish, eliminate, or reverse the
adverse environmental impact alleged in the petition;
(c) Review and analyze the claims alleged in the petition and the
tribe's response to determine what action the tribe or the Secretary
must take to cure the alleged violation of the agreement;
(d) Review and analyze the tribe's proposed resolution, if any, to
determine whether that proposal will resolve the alleged adverse
environmental impact;
(e) Accept or reject the tribe's proposed resolution;
(f) Issue a written decision to the petitioner and the tribe that
states the basis for the Director's decision including:
(1) Findings of fact and conclusions of law; and
(2) A statement that either party, the petitioner or the tribe, has
the right to appeal the Director's decision to the Deputy Assistant
Secretary--Policy and Economic Development under subpart I; and
(g) Issue a notice informing the tribe as to what action the
Director has determined the tribe must take to cure the violation of
the agreement, if any, or whether the Director has determined that the
Secretary must take specified actions to cure the violation of the
agreement, which may include reassumption under subpart G.
Sec. 224.121 What action must the Director take to bring a tribe into
compliance with an agreement?
Upon review of a petition, if the Director determines, that a tribe
does not comply with an agreement, the Director must take action that
the Director determines to be necessary to ensure compliance with the
agreement, including:
(a) Temporarily suspending any activity under a lease, business
agreement, or right-of-way until the tribe complies with the agreement;
(b) Rescinding approval of all or part of the agreement, or
(c) Recommending that the Secretary reassume activities under
subpart G.
Sec. 224.122 When must the Director act on a petition?
(a) Within 120 days of the Director's receipt of a petition, the
Director must act on the petition. The Director may:
(1) Dismiss the petition;
(2) Grant the petition; or
(3) Take other action on the petition under this subpart.
(b) The Director may extend the time for acting on a petition up to
120 days in any case in which the Director determines that additional
time is necessary to evaluate the allegations of the petition and the
tribe's written response, if any. If the Director decides to extend the
time, the Director must notify the petitioner and the tribe in writing
of a determination and extension before expiration of the initial 120-
day period.
Sec. 224.123 How may a tribe or a petitioner appeal the Director's
disposition of a petition?
Either a tribe or a petitioner may appeal the Director's decision
dismissing, granting, or otherwise disposing of the petition under this
subpart to the Deputy Assistant Secretary--Policy and Economic
Development.
Subpart F--Periodic Reviews
Sec. 224.130 What is the purpose of this subpart?
This subpart describes how the Secretary and a tribe will develop
and perform the periodic review and evaluation process required by the
Act and by an agreement, when the Secretary may conduct other reviews
and evaluations, and how the Secretary will determine and remedy
noncompliance with an agreement and imminent jeopardy to a physical
trust asset.
Sec. 224.131 What is a periodic review and evaluation?
A periodic review and evaluation is an examination the Director
performs to monitor a tribe's performance of activities associated with
the development of energy resources and to
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review compliance with an agreement. During the agreement consultation,
a tribe and the Director will develop a periodic review and evaluation
process that addresses the tribe's specific circumstances and the terms
and conditions of the tribe's agreement. The tribe will include the
agreed upon review and evaluation process in its final proposed
agreement.
Sec. 224.132 How does the Director conduct a periodic review and
evaluation?
(a) The Director will conduct a periodic review and evaluation
under the agreement, in consultation with the tribe, and in cooperation
with other Department bureaus and offices whose activities were assumed
by the tribe.
(b) The Director will communicate with the tribal Designated
Official throughout the process established by this section.
(c) During the periodic review and evaluation, the Director will:
(1) Review transactions and reports prepared under the agreement;
(2) Conduct on-site inspections as appropriate; and
(3) Review compliance with statutes and regulations applicable to
activities undertaken under the agreement.
(d) Review the effect on physical trust assets resulting from
activities undertaken under an agreement.
(e) Upon written request, the tribe must provide the Director with
records and documents relevant to the provisions of an agreement.
Sec. 224.133 What must the Director do after a periodic review and
evaluation?
After a periodic review and evaluation, the Director must prepare a
written report of the results of the periodic review and evaluation and
send the report to the tribe.
Sec. 224.134 How often must the Director conduct a periodic review
and evaluation?
The Director must conduct a periodic review and evaluation annually
during the first 3 years of an agreement. After the third annual review
and evaluation, the Secretary and the tribe may mutually agree that
periodic reviews and evaluations will be conducted once every 2 years.
Sec. 224.135 Under what circumstances may the Director conduct
additional reviews and evaluations?
The Director may conduct additional reviews and evaluations:
(a) At a tribe's request;
(b) As part of an investigation undertaken under a notice of
Violation or Breach a tribe submits to the Director;
(c) As part of an investigation undertaken under a petition
submitted under subpart E; or
(d) As follow-up to a determination of harm or the potential for
harm to a physical trust asset previously identified in a periodic
review and evaluation.
Noncompliance
Sec. 224.136 How will the Director's written report address a tribe's
noncompliance with Federal law or the terms of an agreement?
If the Director concludes, as a part of any review and evaluation
or investigation of a notice of violation or breach, that the tribe has
not complied with Federal law or the terms of an agreement, the
Director's report must include a determination of whether the tribe's
noncompliance has resulted in harm or the potential for harm to a
physical trust asset. If the Director determines that the tribe's
noncompliance has harmed or may harm a physical trust asset, the
Director must also determine whether the noncompliance poses imminent
jeopardy to a physical trust asset.
Sec. 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?
If, because of the tribe's noncompliance with Federal law or the
terms of an agreement, the Director determines that there is harm or
the potential for harm to a physical trust asset that does not rise to
the level of imminent jeopardy to a physical trust asset, the Director
must:
(a) Document the issue in the written report of the review and
evaluation;
(b) Report the issue in writing to the tribal governing body;
(c) Report the issue in writing to the Assistant Secretary--Indian
Affairs; and
(d) Determine what action, if any, the Secretary must take to
protect the physical trust asset.
Sec. 224.138 What must the Director do if a tribe's noncompliance has
caused imminent jeopardy to a physical trust asset?
If the Director determines that a tribe's noncompliance with
Federal law or the terms of an agreement has caused imminent jeopardy
to a physical trust asset, the Director must:
(a) Document the issue in the written report of the review and
evaluation; and
(b) Immediately notify the tribe by a telephone call to the tribal
Designated official followed by a written notice by facsimile to the
tribal Designated official and the tribal governing body of the
imminent jeopardy to a physical trust asset which notice must contain:
(1) A description of the tribe's noncompliance with Federal law or
the terms of the agreement;
(2) A description of the physical trust asset and the nature of the
imminent jeopardy to a physical trust asset resulting from the tribe's
noncompliance; and
(3) An order to the tribe to cease specific conduct or take
specific action deemed necessary by the Director to correct any
condition that caused the imminent jeopardy to a physical trust asset.
Sec. 224.139 What must a tribe do after receiving a notice of
imminent jeopardy to a physical trust asset?
(a) Upon receipt of the notice of imminent jeopardy to a physical
trust asset, the tribe must cease specific conduct or take specific
action ordered by the Director as necessary to correct any condition
causing imminent jeopardy to a physical trust asset; and
(b) Within 5 days of receipt of a notice of imminent jeopardy to a
physical trust asset the tribe must submit a written response to the
Director that:
(1) Responds to the Secretary's finding that the tribe has failed
to comply with applicable Federal law or the terms of the agreement;
(2) Responds to the Secretary's finding of imminent jeopardy to a
physical trust asset;
(3) Describes the status of the tribe's cessation of specific
conduct or specific action the tribe has taken to correct any condition
causing imminent jeopardy to a physical trust asset; and
(4) Describes what further actions, if any, the tribe proposes to
take to correct any condition causing imminent jeopardy to a physical
trust asset.
Sec. 224.140 What must the Secretary do if the tribe fails to respond
to or does not comply with the Director's order?
If the tribe does not respond to or does not comply with the
Director's order under Sec. 224.138(b)(iii), the Secretary may take
any actions the Secretary deems appropriate to protect the physical
trust asset and will immediately reassume all activities the tribe
assumed under the agreement. The procedures in subpart G do not apply
to reassumption under this section.
Sec. 224.141 What must the Secretary do if the tribe responds to the
Director's order?
(a) If the tribe responds in a timely manner to the Director's
order under Sec. 224.138, the Secretary must:
(1) Consider the tribe's response;
(2) Determine whether or not the tribe has complied with the
agreement and Federal law; and
(3) If the Secretary determines, after reviewing the tribe's
response, that the tribe has not complied with the agreement or with
Federal law, the
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Secretary will determine whether the noncompliance caused imminent
jeopardy to a physical trust asset.
(b) If the Secretary determines that the tribe's noncompliance has
caused imminent jeopardy to a physical trust asset, the Secretary may:
(1) Order the tribe to take further action deemed necessary by the
Secretary to protect the physical trust asset; or
(2) Take action deemed necessary to protect the physical trust
asset, including reassumption under subpart G.
(c) If the Secretary determines, after reviewing the tribe's
response, that the tribe has complied with the agreement and with
Federal law, the Secretary will withdraw the Director's order.
(d) The Secretary must base a finding of imminent jeopardy to a
physical trust asset on the tribe's violation of an agreement or
applicable Federal law.
Subpart G--Reassumption
Sec. 224.150 What is the purpose of this subpart?
This subpart explains when and how the Secretary may reassume all
or certain activities included within an agreement without the consent
of a tribe.
Sec. 224.151 When may the Secretary reassume activities under an
agreement?
Upon issuing a written finding of imminent jeopardy to a physical
trust asset, the Secretary may reassume activities under an agreement
in accordance with this subpart. The Secretary may issue a finding of
imminent jeopardy to a physical trust asset following any review and
evaluation of a tribe's compliance with an agreement. The Secretary may
also reassume activities approved under an agreement in response to a
petition from an interested party under subpart E. Only the Secretary
or the Assistant Secretary--Indian Affairs may reassume activities
under an agreement.
Sec. 224.152 Must the Secretary always reassume the activities under
an agreement upon a finding of imminent jeopardy to a physical trust
asset?
(a) The Secretary may take whatever actions the Secretary deems
appropriate to protect the physical trust asset. These actions may, at
the discretion of the Secretary, include reassumption of the activities
under an agreement.
(b) If the tribe does not respond to or does not comply with the
Director's order under Sec. 224.138(b)(iii), the Secretary will
immediately reassume all activities the tribe assumed under the
agreement. The procedures in this subpart will not apply to that
immediate reassumption.
Notice of Intent To Reassume
Sec. 224.153 Must the Secretary notify the tribe of an intent to
reassume activities under an agreement?
If the Secretary determines under Sec. 224.152 that reassumption
is appropriate to protect the physical trust asset, the Secretary will
issue a written notice to the tribal governing body of the Secretary's
intent to reassume.
Sec. 224.154 What must a notice of intent to reassume include?
A notice of intent to reassume must include:
(a) A statement of the reasons for the intended reassumption,
including, as applicable, a copy of the Secretary's written finding of
imminent jeopardy to a physical trust asset;
(b) A description of specific measures that the tribe must take to
correct the violation and any condition that caused the imminent
jeopardy;
(c) The time period within which the tribe must take the measures
to correct the violation and any condition that caused the imminent
jeopardy to a physical trust asset; and
(d) The effective date of the reassumption if the tribe does not
meet the requirements in paragraphs (b) and (c) of this section.
Sec. 224.155 When must a tribe respond to a notice of intent to
reassume?
The tribe must respond to the Director in writing by mail,
facsimile, or overnight express within 5 days of receipt of the
Secretary's notice of intent to reassume. If sent by mail, the tribe
must send the response by certified mail, return receipt requested, and
the postmark date will be considered the date of response.
Sec. 224.156 What information must the tribe's response to the notice
of intent to reassume include?
The tribe's response to the notice of intent to reassume must
state:
(a) That the tribe has complied with the Secretary's requirements
in the notice of intent to reassume;
(b) The measures that the tribe is taking to comply with the
Secretary's requirements, and when the tribe will complete such
measures, if the time required under Sec. 224.154(c) to complete the
required measures is greater than 5 days; or
(c) A declaration that the tribe will not comply with the
Secretary's required measures.
Sec. 224.157 How must the Secretary proceed after receiving the
tribe's response?
(a) If the Secretary determines that the tribe's measures to comply
with the Secretary's requirements are adequate or will be adequate to
correct the violation and any condition that caused the imminent
jeopardy or the adverse environmental impact alleged in a petition from
an interested party, the Secretary will:
(1) Notify the tribe of the acceptance in writing; and
(2) Terminate the reassumption proceedings in writing.
(b) If the Secretary determines that the tribe's measures to comply
with the Secretary's requirements are not adequate, then the Secretary
will issue a written notice of reassumption.
Sec. 224.158 What must the Secretary include in a written notice of
reassumption?
The notice of reassumption must include:
(a) A description of the activities the Secretary is reassuming;
(b) The reasons for the determination under Sec. 224.157(a);
(c) The effective date of the reassumption; and
(d) A statement that the decision is a final agency action and is
subject to judicial review.
Sec. 224.159 How will reassumption affect valid existing rights that
vested or lawful actions taken by the tribe or the Secretary before the
effective date of the reassumption?
Reassumption will not affect valid existing rights that vested
before the effective date of the reassumption or lawful actions the
tribe and the Secretary took before the effective date of the
reassumption.
Sec. 224.160 How will reassumption affect an agreement?
Reassumption of an agreement applies to all activities undertaken
under an agreement.
Sec. 224.161 How may reassumption affect the tribe's ability to
modify an agreement, administer additional activities or to assume
administration of activities that the Secretary previously reassumed?
Following reassumption, the tribe may request to modify an
agreement, administer additional activities, or assume administration
of activities the Secretary previously reassumed. In reviewing a
subsequent tribal request, however, the Director may consider the fact
that activities were reassumed and any changes in circumstances
supporting the tribe's request.
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Subpart H--Rescission
Sec. 224.170 What is the purpose of this subpart?
This subpart explains the process and requirements under which a
tribe may rescind an agreement and return to the Secretary the
responsibility to approve any future leases, business agreements, or
rights-of-way related to energy resource development previously covered
under the agreement.
Sec. 224.171 Who may rescind an agreement?
A tribe, acting through a resolution passed by the tribal governing
body, may rescind an agreement and return to the Secretary the
responsibility to approve any future leases, business agreements, or
rights-of-way related to energy resource development.
Sec. 224.172 May a tribe rescind its authority to approve or
disapprove a specific future lease, business agreement, or right-of-way
or the development of a specific energy resource or geographic area?
No. A tribe may only rescind an agreement, not its authority to
approve a specific future lease, business agreement, or right-of-way
under an agreement or the development of a specific energy resource or
geographic area.
Sec. 224.173 How does a tribe rescind an agreement?
To rescind an agreement, a tribe must submit to the Secretary a
written tribal resolution or other official action of the tribe's
governing body voluntarily rescinding the agreement.
Sec. 224.174 When does a voluntary rescission become effective?
A voluntary rescission becomes effective on the date specified by
the Secretary, provided that the date is no more than 90 days after the
Secretary receives the tribal resolution or other official action the
tribe submits under Sec. 224.173.
Sec. 224.175 How will rescission affect rights that vested before the
effective date of the rescission or lawful actions taken by the tribe
or the Secretary before the effective date of the rescission?
Rescission does not affect rights that vested before the effective
date of the rescission or lawful actions taken by the tribe and the
Secretary before the effective date of the rescission.
Subpart I--General Appeal Procedures
Sec. 224.180 What is the purpose of this subpart?
The purpose of this subpart is to explain who may appeal
Departmental decisions or inaction under this part and the initial
administrative appeal processes, and general administrative appeal
processes, including how 25 CFR part 2 and 43 CFR part 4 apply, and the
effective dates for appeal decisions.
Sec. 224.181 Who may appeal Department decisions or inaction under
this part?
The following persons or entities may appeal Department decisions
or inaction under this part:
(a) A tribe that is unfavorably affected by a decision of or
inaction by an official of the Department of the Interior under this
part;
(b) A person or entity who has entered into a lease, right-of-way,
or business agreement and is unfavorably affected by a decision of or
inaction by a Department official under this part; or
(c) An interested party who is unfavorably affected by a decision
of or inaction by the Director under subpart E, provided that the
interested party may appeal only those issues raised in its prior
participation under subpart E and may not appeal any other decision
rendered or inaction under this part.
Sec. 224.182 What is the Initial Appeal Process?
The initial appeal process is as follows:
(a) Within 30 days of receipt of an adverse decision by the
Director or within 30 days after the time periods within which the
Director was required to act under subpart E, a party that may appeal
under this subpart may file an appeal to the Deputy Assistant
Secretary--Policy and Economic Development.
(b) Within 60 days of receipt of an appeal, the Deputy Assistant
Secretary--Policy and Economic Development will review the record and
issue a written decision on the appeal.
(c) Within 7 days of a decision by the Deputy Assistant Secretary--
Policy and Economic Development, the Secretary will provide a written
copy of the decision to the tribe and other participating parties.
Sec. 224.183 What other administrative appeals processes also apply?
The administrative appeal processes in 25 CFR part 2 and 43 CFR
part 4, subject to the limitations in Sec. 224.184, apply to:
(a) An interested party's appeal from an adverse decision or
inaction by the Deputy Assistant Secretary--Policy and Economic
Development under Sec. 224.182; and
(b) An appeal by a tribe or a person or entity that has entered
into a lease, business agreement, or right-of-way from an adverse
decision by or the inaction of a Department official taken under this
part.
Sec. 224.184 How do other administrative appeals processes apply?
The administrative appeals process in 25 CFR part 2 and 43 CFR part
4 are modified, only as they apply to appeals under this part, as
follows:
(a) The definition of interested party in 25 CFR part 2 and as
incorporated in 43 CFR part 4 does not apply to this part.
(b) The right of persons or entities other than an appealing party
to participate in appeals under 25 CFR part 2 and 43 CFR part 4 does
not apply to this part, except as permitted under paragraph (c) of this
section.
(c) The only persons or entities, other than appealing parties
under Sec. 224.181(a) to (c), who may participate in an appeal under
this part are:
(1) The Secretary, if an appeal is taken from a decision of the
Director or Deputy Assistant Secretary--Policy and Economic
Development;
(2) A tribe, which may intervene, appear as an amicus curiae, or
otherwise appear in any appeal taken under this part by a person or
entity who has entered into a lease, business agreement, or right-of-
way with the tribe or by an interested party under this part; or
(3) A person or entity that has entered into a lease, business
agreement, or right-of-way with a tribe, which may intervene, appear as
an amicus curiae, or otherwise appear in any appeal taken under this
part by the tribe or by an interested party under this part.
(d) Any obligation to provide notice and service upon non-appealing
persons provided in 25 CFR part 2 and 43 CFR part 4 does not apply to
this part, except that notice and service of all documents must be
served consistent with the requirements of 25 CFR part 2 and 43 CFR
part 4 on those persons or entities identified in paragraph (c) of this
section.
Sec. 224.185 When are decisions under this part effective?
Decisions under subpart I are effective as follows:
(a) Decisions of the Secretary disapproving a final proposed
agreement or revised final proposed agreement under subpart C, finding
imminent jeopardy to a physical trust asset under subpart F, and
decisions by the Secretary or the Assistant Secretary--Indian Affairs
to reassume a program under subpart G are final for the Department and
effective upon issuance.
(b) Decisions under this part, other than those in paragraph (a) of
this
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section that are unfavorable to a tribe and in which an appeal is
pending are not final for the Department and are not effective pending
appeal, unless:
(1) Before the decision, the tribe had an opportunity for a
hearing;
(2) After the decision was rendered, the tribe had a reasonable
amount of time to attain compliance with the agreement; and
(3) The Interior Board of Indian Appeals (Board), the Secretary, or
Assistant Secretary--Indian Affairs issued a written decision that,
notwithstanding a reasonable period to attain compliance with the
agreement, the tribe has not attained compliance.
(c) All other decisions rendered by the Board or the Assistant
Secretary of Indian Affairs in an appeal from a Director's decision
under subparts E, F, or G are effective when rendered by the Board, the
Secretary, or the Assistant Secretary--Indian Affairs.
[FR Doc. 06-6852 Filed 8-18-06; 8:45 am]
BILLING CODE 4310-96-P