Residential, Business, and Wind and Solar Resource Leases on Indian Land, 73784-73827 [2011-29991]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Indian Affairs

[Federal Register Volume 76, Number 229 (Tuesday, November 29, 2011)]
[Proposed Rules]
[Pages 73784-73827]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-29991]



[[Page 73783]]

Vol. 76

Tuesday,

No. 229

November 29, 2011

Part II





Department of the Interior





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Bureau of Indian Affairs





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25 CFR Part 162





Residential, Business, and Wind and Solar Resource Leases on Indian 
Land; Proposed Rule

Federal Register / Vol. 76 , No. 229 / Tuesday, November 29, 2011 / 
Proposed Rules

[[Page 73784]]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 162

[Docket ID BIA-2011-0001]
RIN 1076-AE73


Residential, Business, and Wind and Solar Resource Leases on 
Indian Land

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule.

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SUMMARY: The Bureau of Indian Affairs (BIA) is proposing to revise the 
regulations addressing non-agricultural leasing of Indian land. This 
rule would add new subparts to address residential leases, business 
leases, wind resource evaluation and development leases, and solar 
resource development leases on Indian land, and would therefore remove 
the existing subpart for non-agricultural leases.

DATES: Comments on this proposed rule must be received by January 30, 
2012. Comments on the information collections contained in this 
proposed regulation are separate from those on the substance of the 
rule. Comments on the information collection burden should be received 
by December 29, 2011 to ensure consideration, but must be received no 
later than January 30, 2012.

ADDRESSES: You may submit comments by any of the following methods:
    Federal rulemaking portal: https://www.regulations.gov. The rule is 
listed under the agency name ``Bureau of Indian Affairs.'' The rule has 
been assigned Docket ID: BIA-2011-0001. If you would like to submit 
comments through the Federal e-Rulemaking Portal, go to https://www.regulations.gov and do the following. Go to the box entitled 
``Enter Keyword or ID,'' type in ``BIA-2011-0001,'' and click the 
``Search'' button. The next screen will display the Docket Search 
Results for the rulemaking. If you click on BIA-2011-0001, you can view 
this rule and submit a comment. You can also view any supporting 
material and any comments submitted by others.

--Email: consultation@bia.gov. Include the number 1076-AE73 in the 
subject line of the message.
--Mail: Del Laverdure, Principal Deputy Assistant Secretary--Indian 
Affairs, U.S. Department of the Interior, Mail Stop 4141, 1849 C Street 
NW., Washington, DC 20240. Include the number 1076-AE73 on the outer 
envelope.
--Hand delivery: Del Laverdure, Principal Deputy Assistant Secretary--
Indian Affairs, U.S. Department of the Interior, Room 4141, 1849 C 
Street NW., Washington, DC 20240. Include the number 1076-AE73 on the 
outer envelope.

    We cannot ensure that comments received after the close of the 
comment period (see DATES) will be included in the docket for this 
rulemaking and considered. Comments sent to an address other than those 
listed above will not be included in the docket for this rulemaking.
    Comments on the information collections contained in this proposed 
regulation are separate from those on the substance of the rule. Send 
comments on the information collection burden to OMB by facsimile to 
(202) 395-5806 or email to the OMB Desk Officer for the Department of 
the Interior at omb.eop.gov">OIRA_DOCKET@omb.eop.gov. Please send a copy of your 
comments to the person listed in the FOR FURTHER INFORMATION CONTACT 
section of this notice.

FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Office of Regulatory 
Affairs & Collaborative Action, (202) 273-4680; 
Elizabeth.appel@bia.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    This proposed rule would revise the current 25 CFR part 162, Leases 
and Permits, to establish subparts specifically addressing the 
following categories of leasing on Indian land: residential; business; 
wind resource evaluation and development; and solar resource 
development. Specifically, this rule would:
     Revise Subpart A, General Provisions
     Create a new Subpart C, Residential Leases
     Create a new Subpart D, Business Leases
     Create a new Subpart E, Wind Energy Evaluation Leases 
(WEELs) and Wind and Solar Resource (WSR) Leases
     Delete Subpart F, Non-agricultural Leases (because that 
subpart was intended to address residential and business leasing, which 
this proposed rule addresses specifically in subparts C and D, 
respectively)
     Move the current Subpart E, Special Requirements for 
Certain Indian Reservations, to Subpart F
     Create a new Subpart G, Records.
    The proposed rule does not affect Subpart B, Agricultural Leases. 
Subpart B may be revised at a later time. In addition, to ensure that 
changes to the General Provisions do not affect agricultural lease 
regulations, the current General Provisions sections are being moved to 
Subpart B, where they apply only to agricultural leases. Minor edits 
were made to these General Provisions to delete redundancies and 
clarify that they now apply only to agricultural leases.

II. Summary of Substantive Revisions

    This rule makes the procedures for leasing as explicit and 
transparent as possible. The consent requirements in the proposed 
regulations are consistent with the Indian Land Consolidation Act of 
2000 (ILCA), as amended by the American Indian Probate Reform Act 
(AIPRA). Because this statute does not apply to tribes in Alaska, the 
consent requirements for Alaska remain the same as the previous 
regulations governing leasing. The proposed regulations provide 
procedures for approval of lease amendments, assignments, subleases and 
leasehold mortgages. The current regulations provide for the approval 
of such instruments, but do not specify the procedure for such 
approval, leading to the possibility of inconsistencies nationwide, to 
the detriment of lessees and lenders.
    This rule provides that leases on tribal land may be approved for 
the compensation established in the lease. Leases for less than fair 
market rental may be approved on individually owned Indian land under 
certain circumstances.
    Subpart C, Residential Leases, addresses leasing for single-family 
homes and housing for public purposes on Indian land. The proposed 
regulations provide for a 30-day time frame within which BIA must issue 
a decision on a complete residential lease application. Bonds are not 
required for leases for housing for public purposes and otherwise may 
be waived by BIA upon a determination that it is in the best interest 
of the landowner(s). Subpart C also includes provisions for enforcement 
of lease violations.
    Subpart D, Business Leases, addresses leasing for business 
purposes, including: (1) Leases for residential purposes that are not 
covered in Subpart C; (2) leases for business purposes not covered by 
Subpart E (wind energy evaluation and wind and solar resource 
development); (3) leases for religious, educational, recreational, 
cultural, and other public purposes; and (4) commercial or industrial 
leases for retail, office, manufacturing, storage, biomass, waste-to-
energy, and/or other business purposes. The proposed regulations 
provide for a 60-day time frame within which BIA must issue a

[[Page 73785]]

decision on a complete business lease application.
    Subpart E, WEELs and WSR Leases, establishes procedures for 
obtaining BIA review and approval of wind energy evaluation leases 
(WEELs) and wind and solar resource (WSR) development leases. For wind 
energy, this proposed rule establishes a two-part process whereby 
developers obtain BIA approval of a short-term lease for possession of 
Indian land for the purposes of installation and maintenance of wind 
evaluation equipment, such as meteorological towers. The WEEL may 
provide the developer with an option to lease the Indian land for wind 
energy development purposes. The environmental reviews conducted for 
the short-term lease, which would only evaluate the impacts of the 
evaluation equipment, not the full development of the wind project, may 
be rolled into environmental reviews conducted for a lease for full 
development of the wind project. This two-part process is not necessary 
for solar resource development because solar evaluation does not 
require possession of the land.
    Some of the more notable cross-cutting substantive changes include:

BIA Approval Process

     Eliminating the requirement for BIA approval of permits of 
Indian land;
     Eliminating the requirement for BIA approval of subleases 
and assignments where certain conditions are met;
     Imposing time limits on BIA to act on requests to approve 
lease amendments, lease assignments, subleases, and leasehold 
mortgages;
     Establishing that BIA has 30 days to act on a request to 
approve a lease amendment or sublease, or the document will be deemed 
approved;
     Establishing that BIA must approve amendments, 
assignments, leasehold mortgages, and subleases unless it finds a 
compelling reason not to, based on certain specified findings.

Compensation and Valuations

     Providing that BIA will defer to the tribe's negotiated 
value for a lease of tribal land and will not require valuation of 
tribal land;
     Allowing for waivers of valuation for residential leases 
of individually owned land if the individual landowners provide 100 
percent consent and a waiver and BIA determines it is in the best 
interest of the landowners (100 percent consent is necessary because 
non-consenting owners receive fair market value, so a valuation will be 
necessary if any individual does not consent);
     Allowing short-term leases for wind resource evaluation 
purposes at the value negotiated by the Indian landowners (whether 
tribal or individual Indians);
     Allowing alternative forms of rental (other than monetary 
compensation) if BIA determines it is in the best interest of the 
Indian landowners;
     Allowing other types of valuation (other than appraisals) 
under certain circumstances;
     Allowing for automatic rental adjustments and restricting 
the need for reviews of the lease compensation (to determine if an 
adjustment is needed) to certain circumstances.

Improvements

     Requiring plans of development and schedules for 
construction of improvements to assist the BIA and Indian landowners in 
enforcement of diligent development of the leased premises.
     Clarifying that improvements on trust or restricted land 
are not taxable by States or localities, without regard to ownership. 
The purposes of residential, business, and WSR leasing on Indian land 
are to promote Indian housing and to allow Indian landowners to use 
their land profitably for economic development. These regulations are 
intended to preempt the field of leasing of Indian lands. The Federal 
statutory and regulatory scheme for leasing, including the regulation 
of improvements, is so pervasive as to preclude the additional burden 
of State taxation. The assessment of State taxes would obstruct Federal 
policies supporting tribal economic development and self-determination, 
and tribal interests in effective tribal government and economic self-
sufficiency.

Direct Pay

     Allowing for direct pay only where there are 10 or fewer 
landowners, and all landowners consent to direct pay;
     Continuing direct pay unless and until 100 percent of the 
owners agree to discontinue direct pay, but suspending direct pay for 
any one Indian landowner who dies, is declared non compos mentis, or 
whose whereabouts become unknown.
    These changes are intended to increase the efficiency and 
transparency of the BIA approval process for leasing of Indian land, 
support tribal decisions regarding the use of their land, increase 
flexibility in compensation and valuations, and facilitate management 
of direct pay.

III. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866)
B. Regulatory Flexibility Act
C. Small Business Regulatory Enforcement Fairness Act
D. Unfunded Mandates Reform Act
E. Takings (E.O. 12630)
F. Federalism (E.O. 13132)
G. Civil Justice Reform (E.O. 12988)
H. Consultation With Indian Tribes (E.O. 13175)
I. Paperwork Reduction Act
J. National Environmental Policy Act
K. Effects on the Energy Supply (E.O. 13211)
L. Clarity of This Regulation
M. Public Availability of Comments

III. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866)

    The Office of Management and Budget (OMB) has determined that this 
rule is significant under Executive Order 12866. This rule replaces 
provisions that apply to non-agricultural leasing of Indian land, 
generally, with provisions that apply specifically to the different 
types of non-agricultural leasing: Residential, business, and wind and 
solar resource leasing of Indian land. This rule describes how the BIA 
will administer residential, business, and wind and solar resource 
leases on trust and restricted land. Thus, the impact of the rule is 
confined to the Federal Government and individual Indian and tribal 
landowners and does not impose a compliance burden on the economy 
generally or create any inconsistencies or budgetary impacts to any 
other agency or Federal program.
    (1) This rule will not have an annual effect of $100 million or 
more on the economy or 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. This 
rule makes changes to promote economic development on Indian land 
through, for example, providing greater transparency to procedures for 
obtaining BIA approval, imposing timelines on BIA to act on certain 
lease requests, and establishing that BIA will defer to tribes' 
negotiated values. The rule's changes will not have direct effects on 
the economy as a whole; however, the changes should result in increased 
leasing of Indian land, which will have a beneficial effect on tribal 
economies and communities.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency because the 
Department is the only agency with authority for approving leases on 
Indian land. We

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have coordinated with the Department of Housing and Urban Development 
(HUD) to ensure that the leasing procedures will not impede Indian 
landowners' ability to obtain HUD-funding for residences.
    (3) This rule does involve entitlements, grants, user fees, or loan 
programs or the rights or obligations of their recipients. The 
revisions have no budgetary effects and do not affect the rights or 
obligations of any recipients.
    (4) This rule may raise novel legal or policy issues because it 
alters established procedures for reviewing and approving leases of 
Indian land.

B. Regulatory Flexibility Act

    The Department of the Interior certifies that this proposed rule 
will not have a significant economic effect on a substantial number of 
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.). Small entities are not likely to enter into residential leases 
on Indian land because tribal housing authorities and tribal members 
usually enter into such leases. It is possible that small entities may 
enter into business leases or wind or solar resources leases but this 
rule does not impose any new requirements in obtaining or complying 
with a lease that would have a significant economic effect on those 
entities.

C. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. It will not result in the 
expenditure by State, local, or tribal governments, in the aggregate, 
or by the private sector of $100 million or more in any one year. The 
rule's requirements will not result in a major increase in costs or 
prices for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions. The rule continues to 
require lessees to pay at least fair market rental, with certain 
exceptions, and adds that lessees agree to some other amount negotiated 
by the Indian tribe under certain circumstances. Nor will this rule 
have significant adverse effects on competition, employment, 
investment, productivity, innovation, or the ability of the U.S.-based 
enterprises to compete with foreign-based enterprises because the rule 
is limited to Indian land and is intended to promote economic 
development.

D. Unfunded Mandates Reform Act

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

E. Takings (E.O. 12630)

    Under the criteria in Executive Order 12630, this rule does not 
affect individual property rights protected by the Fifth Amendment nor 
does it involve a compensable ``taking.'' A takings implication 
assessment is not required.

F. Federalism (E.O. 13132)

    Under the criteria in Executive Order 13132, this rule has no 
substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government. This rule 
governs leasing on Indian land, which is land held by the Federal 
Government in trust or restricted status for individual Indians or 
Indian tribes. Such land is subject to tribal law and Federal law, 
only, except in limited circumstances and areas where Congress or a 
Federal court has made State law applicable. This rule therefore does 
not affect the relationship between the Federal Government and States 
or among the various levels of government.

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

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule has been reviewed to eliminate errors and 
ambiguity and written to minimize litigation; and is written in clear 
language and contains clear legal standards.

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

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments,'' Executive Order 13175 (59 FR 22951, November 6, 2000), 
and 512 DM 2, we have evaluated the potential effects on federally 
recognized Indian tribes and Indian trust assets. During the 
development of this proposed rule, the Department discussed the rule 
with tribal representatives at several consultation sessions. We 
distributed a preliminary draft of the rule to tribes in February 2011 
and held three consultation sessions: Thursday, March 17, 2011 at the 
Reservation Economic Summit (RES) 2011 in Las Vegas; March 31, 2011 in 
Minnesota; and April 6, 2011, in Albuquerque, New Mexico. We requested 
that tribes submit written comments by April 18, 2011. We received 
written and oral comments from over 70 Indian tribes during tribal 
consultation. We reviewed each comment in depth and revised the rule 
accordingly. This proposed rule incorporates those revisions. We also 
compiled a summary of tribal comments received and our responses to 
those comments and are making that document available to tribes at: 
https://www.bia.gov/WhoWeAre/AS-IA/Consultation/index.htm. We plan to 
hold additional tribal consultation sessions, particularly in the 
geographic areas we were not able to reach prior to this proposed rule. 
We will announce the dates and locations of the additional tribal 
consultation sessions by letter to tribal leaders.

I. Paperwork Reduction Act

    OMB Control No. 1076-0155 currently authorizes the collections of 
information contained in 25 CFR part 162, totaling an estimated 106,065 
annual burden hours. If this proposed rule is finalized, the annual 
burden hours will increase by an estimated 2,910 hours. Because the 
sections where the information collections occur changes, we are 
including a table showing the section changes and whether a change to 
the information collection requirement associated with those sections 
has changed.

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                                                                 Information collection
           Current CFR cite                  New CFR cite             requirement         Explanation of change
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162.109, 162.204, 162.205............  162.109, 162.204,        Provide notice of        No change. Previously
                                        162.205, 162.338(e),     tribal leasing laws,     required, but now
                                        162.438(e),              regulations,             listed in specific
                                        162.528(d), 162.568(e).  exemptions.              subparts.
                                       162.320(a), 321(a),      Request for fair market  New.
                                        162.420(a), 421(a),      rental/valuation on
                                        162,546(a), 162.547(a).  tribal land.
                                       162.320(b), 321(b),      Request for waiver of    New.
                                        162.420(b), 421(b),      fair market rental/
                                        162,546(b), 162.547(b).  valuation for
                                                                 individually owned
                                                                 land.
                                       162.324, 162.424,        Agreement to suspend     New.
                                        162.550.                 direct pay.
                                       162.368, 162.468,        Notification of good     New.
                                        162.593.                 faith negotiations
                                                                 with holdover.
162.207, 162.242-244, 162.604(a),      162.009, 162.207,        Submit lease,            No change. Previously
 162.610.                               162.242-244, 162. 345,   assignment, amendment,   required, but now
                                        350, 353, 357, 162.      leasehold mortgage for   listed in separate
                                        445, 450, 453, 457,      approval.                subparts.
                                        162. 530, 162.570,
                                        574, 578, 582.
162.213, 162.604(a)..................  162.024, 162.213,        Provide supporting       No change. Previously
                                        162.338, 162.438,        documentation.           required, but now
                                        162.528, 162.563.                                 listed in separate
                                                                                          subparts.
                                       162.004................  Submit permits to BIA    Permits must now be
                                                                 for file.                submitted to BIA for
                                                                                          file.
162.217, 162.246.....................  162.217, 162.246,        Submit lease for         No change. Previously
                                        162.341, 162.441,        recording.               required, but now
                                        162.566.                                          listed in separate
                                                                                          subparts.
162.234, 162.604(c)..................  162.234, 162.334,        Provide a bond.........  No change. Previously
                                        162.434, 162.525,                                 required, but now
                                        162.559.                                          listed in separate
                                                                                          subparts.
162.237, 162.604(d)..................  162.237, 162.337,        Provide information for  No change. Previously
                                        162.437, 162.527,        acceptable insurance.    required, but now
                                        162.562.                                          listed in separate
                                                                                          subparts.
162.241..............................  162.241................  Administrative fees....  No change.
162.247, 162.613.....................  162.247, 162.325, 329,   Pay rent...............  No change. Previously
                                        162.425, 429, 162.523,                            required, but now
                                        551, 555.                                         listed in separate
                                                                                          subparts.
162.248, 162.616.....................  162.248, 162.365,        Pay penalties for late   No change. Previously
                                        162.465, 162.590.        payment.                 required, but now
                                                                                          listed in separate
                                                                                          subparts.
162.212, 162.606.....................  162.009, 162.212.......  Bidding on advertised    No change. Previously
                                                                 lease.                   required, but now
                                                                                          listed in separate
                                                                                          subparts.
162.603..............................  162.008(b)(2)..........  Use of minor's land....  No change. Previously
                                                                                          required, but now
                                                                                          listed in separate
                                                                                          subparts.
162.251, 162.618.....................  162.251, 162.363,        Provide notice of        No change. Previously
                                        162.463, 162.588.        curing violation.        required, but now
                                                                                          listed in separate
                                                                                          subparts.
162.256, 162.623.....................  162.256, 162.368,        Respond to notice of     No change. Previously
                                        162.468, 162.593.        trespass.                required, but now
                                                                                          listed in separate
                                                                                          subparts.
162.113..............................  162.022, 162.113.......  Appealing decisions....  No change. Previously
                                                                                          required, but now
                                                                                          listed in separate
                                                                                          subparts.
----------------------------------------------------------------------------------------------------------------

    The table showing the burden of the information collection is 
included below for your information.
BILLING CODE 4310-6W-P

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[GRAPHIC] [TIFF OMITTED] TP29NO11.010


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[GRAPHIC] [TIFF OMITTED] TP29NO11.011

BILLING CODE 4310-6W-C
    BIA invites comments on the information collection requirements in 
the proposed regulation. You may submit comments to OMB by facsimile to 
(202) 395-5806 or you may send an email to the attention of the OMB 
Desk Officer for the Department of the Interior: omb.eop.gov">OIRA_DOCKET@omb.eop.gov. Please send a copy of your comments to the person 
listed in the FOR FURTHER INFORMATION CONTACT section of this notice. 
Note that the request for comments on the rule and the request for 
comments on the information collection are separate. To best ensure 
consideration of your comments on the information collection, we 
encourage you to submit them by December 29, 2011; while OMB has 60 
days from the date of publication to act on the information collection 
request, OMB may choose to act on or after 30 days. Comments on the 
information collection should address: (a) The necessity of this 
information collection for the proper performance of the functions of 
the agency, including whether the information will have practical 
utility; (b) the accuracy of the agency's estimate of the burden (hours 
and cost) of the collection of information, including the validity of 
the methodology and assumptions used; (c) ways we could enhance the 
quality, utility and clarity of the information to be collected; and 
(d) ways we could minimize the burden of the collection of the 
information on the respondents, such as through the use of automated 
collection techniques or other forms of information technology. Please 
note that an agency may not sponsor or request, and an individual need 
not respond to, a collection of information unless it has a valid OMB 
Control Number.

J. National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment because these are 
``regulations * * * whose environmental effects are too broad, 
speculative, or conjectural to lend themselves to meaningful analysis 
and will later be subject to the NEPA process, either collectively or 
case-by-case.'' 43 CFR 46.210(j). No extraordinary circumstances exist 
that would require greater NEPA review.

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

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

L. Clarity of This Regulation

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ``COMMENTS'' section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you believe lists or tables would be 
useful, etc.

M. Public Availability of Comments

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

List of Subjects in 25 CFR Part 162

    Indians--lands.
    For the reasons stated in the preamble, the Department of the 
Interior, Bureau of Indian Affairs, proposes to amend part 162 in Title 
25 of the Code of Federal Regulations as follows:

PART 162--LEASES AND PERMITS

    1. Revise the authority citation for part 162 to read as follows:

    Authority:  5 U.S.C. 301, R.S. 463 and 465; 25 U.S.C. 2 and 9. 
Interpret or apply sec. 3, 26 Stat. 795, sec. 1, 28 Stat. 305, secs. 
1, 2, 31 Stat. 229, 246, secs. 7, 12, 34 Stat. 545, 34 Stat. 1015, 
1034, 35 Stat. 70, 95, 97, sec. 4, 36 Stat. 856, sec. 1, 39 Stat. 
128, 41 Stat. 415, as amended, 751, 1232, sec. 17, 43 Stat. 636, 
641, 44 Stat. 658, as amended, 894, 1365, as amended, 47 Stat. 1417, 
sec. 17, 48

[[Page 73790]]

Stat. 984, 988, 49 Stat. 115, 1135, sec. 55, 49 Stat. 781, sec. 3, 
49 Stat. 1967, 54 Stat. 745, 1057, 60 Stat. 308, secs. 1, 2, 60 
Stat. 962, sec. 5, 64 Stat. 46, secs. 1, 2, 4, 5, 6, 64 Stat. 470, 
69 Stat. 539, 540, 72 Stat. 968, 107 Stat. 2011, 108 Stat. 4572, 
March 20, 1996, 110 Stat. 4016; 25 U.S.C. 380, 393, 393a, 394, 395, 
397, 402, 402a, 403, 403a, 403b, 403c, 409a, 413, 415, 415a, 415b, 
415c, 415d, 477, 635, 2201 et seq., 3701, 3702, 3703, 3712, 3713, 
3714, 3715, 3731, 3733, 4211; 44 U.S.C. 3101 et seq.


Sec.  162.100  [Removed]

    2. Remove Sec.  162.100.


Sec. Sec.  162.101.162.113   [Redesignated]

    3. Redesignate Sec.  162.101-Sec.  162.113 in subpart A as Sec.  
162.101-Sec.  162.113 in subpart B.
    4. Revise subpart A to read as follows:

PART 162--LEASES AND PERMITS

Subpart A--General Provisions

Purpose, Definitions, and Scope

Sec.
162.001 What is the purpose of this part?
162.002 How is this part subdivided?
162.003 What key terms do I need to know?
162.004 May BIA approve or grant permits under this part?

When to Get a Lease

162.005 When does this part apply?
162.006 To what land does this part apply?
162.007 To what types of land use agreements does this part not 
apply?
162.008 When do I need a lease to authorize possession of Indian 
land?

How to Get a Lease

162.009 How do I obtain a lease?
162.010 How does a prospective lessee identify and contact Indian 
landowners to negotiate a lease?
162.011 What are the consent requirements for a lease?
162.012 Who is authorized to consent to a lease?

Lease Administration

162.013 What laws apply to leases approved under this part?
162.014 Will BIA comply with tribal laws in making decisions 
regarding leases?
162.015 May tribes administer this part on BIA's behalf?
162.016 May a lease address access to the leased premises by roads 
or other infrastructure?
162.017 May a lease combine tracts with different Indian landowners?
162.018 What are BIA's responsibilities in approving leases?
162.019 What are BIA's responsibilities in administering and 
enforcing leases?
162.020 What may BIA do if an individual or entity takes possession 
of or uses Indian land without an approved lease or other proper 
authorization?
162.021 May BIA take emergency action if Indian land is threatened?
162.022 May decisions under this part be appealed?
162.023 Who may I contact with questions concerning the leasing 
process?
162.024 What documentation may BIA require in approving, 
administering, and enforcing leases?

Subpart A--General Provisions

Purpose, Definitions, and Scope


Sec.  162.001  What is the purpose of this part?

    This part identifies:
    (a) Conditions and authorities under which we will approve leases 
of Indian land and may issue permits on Government land;
    (b) How to obtain leases;
    (c) Terms and conditions required in leases;
    (d) How we administer and enforce leases; and
    (e) Special requirements for leases made under special acts of 
Congress that apply only to certain Indian reservations.


Sec.  162.002  How is this part subdivided?

    (a) This part includes multiple subparts relating to:
    (1) General Provisions (Subpart A);
    (2) Agricultural Leases (Subpart B);
    (3) Residential Leases (Subpart C);
    (4) Business Leases (Subpart D);
    (5) Wind Energy Evaluation, Wind Resource, and Solar Resource 
Leases (Subpart E);
    (6) Special Requirements for Certain Reservations (Subpart F);
    (7) Records (Subpart G).
    (b) Subpart F identifies special provisions applicable only to 
leases made under special acts of Congress that apply only to certain 
Indian reservations. Leases covered by Subpart F are also subject to 
the provisions in subparts A through G, except to the extent that 
subparts A through G are inconsistent with the provisions in subpart F 
or any act of Congress under which the lease is made.
    (c) Leases covered by Subpart B are not subject to the provisions 
in subpart A. Leases covered by subpart B are subject to the provisions 
in subpart G, except that if a provision in subpart B conflicts with a 
provision of subpart G, then the provision in subpart B will govern.


Sec.  162.003  What key terms do I need to know?

    Adult means a person who is 18 years of age or older.
    Appeal bond means a bond posted upon filing of an appeal that 
provides a security or guaranty if an appeal creates a delay in 
implementing a BIA decision that could cause a significant and 
measurable financial loss to another party.
    Approval means written authorization by the Secretary or a 
delegated official or, where applicable, the ``deemed approved'' 
authorization of an amendment or sublease.
    Assignment means an agreement between a lessee and an assignee, 
whereby the assignee acquires all or some of the lessee's rights, and 
assumes all or some of the lessee's obligations, under a lease.
    BIA means the Secretary of the Interior or the Bureau of Indian 
Affairs within the Department of the Interior and any tribe acting on 
behalf of the Secretary or Bureau of Indian Affairs under Sec.  
162.015, except that this term means only the Secretary of the Interior 
or Bureau of Indian Affairs if the function is an inherently Federal 
function.
    Business day means Monday through Friday, excluding federally 
recognized holidays and other days that the applicable office of the 
Federal Government is closed to the public.
    Consent or consenting means written authorization by an Indian 
landowner to a specified action.
    Constructive notice means:
    (1) Public notice posted at the tribal government office, tribal 
community building, and/or the United States Post Office; and
    (2) Notice published in the local newspaper(s) nearest to the 
affected land and/or announced on a local radio station(s).
    Court of competent jurisdiction means a Federal, tribal, or State 
court with jurisdiction.
    Day means a calendar day, unless otherwise specified.
    Emancipated minor means a person less than 18 years of age who is 
married or who is determined by a court of competent jurisdiction to be 
legally able to care for himself or herself.
    Equipment installation plan means a plan that describes the type 
and location of any improvements to be installed by the lessee to 
evaluate the resources and a schedule showing the tentative 
commencement and completion dates for installation of those 
improvements.
    Fair market rental means the amount of rental income that a leased 
tract of Indian land would most probably command in an open and 
competitive market, or as determined by competitive bidding.
    Fee interest means an interest in land that is owned in 
unrestricted fee status, and is thus freely alienable by the fee owner.
    Fractionated tract means a tract of Indian land owned in common by 
Indian landowners and/or fee owners holding undivided interests 
therein.

[[Page 73791]]

    Government land means any tract, or interest therein, in which the 
surface estate is owned and administered by the United States, not 
including tribal land that has been reserved for administrative 
purposes.
    Holdover means circumstances in which a lessee remains in 
possession of the leased premises after the lease term expires.
    Housing for public purposes means multi-family developments and 
single-family residential developments (i) administered by a tribe, 
Tribally-Designated Housing Entity, or a tribally-sponsored or tribally 
sanctioned not-for-profit entity; or (ii) substantially financed using 
a tribal, Federal, or State housing assistance program or not-for 
profit entity.
    Immediate family means a spouse, brother, sister, aunt, uncle, 
niece, nephew, first cousin, lineal ancestor, lineal descendant, or 
member of the household.
    Improvements means buildings, other structures, and associated 
infrastructure constructed or installed under a lease to serve the 
purposes of the lease.
    Indian means:
    (1) Any person who is a member of any Indian tribe, is eligible to 
become a member of any Indian tribe, or is an owner as of October 27, 
2004, of a trust or restricted interest in land;
    (2) Any person meeting the definition of Indian under the Indian 
Reorganization Act (25 U.S.C. 479) and the regulations promulgated 
thereunder; and
    (3) With respect to the inheritance and ownership of trust or 
restricted land in the State of California pursuant to 25 U.S.C. 2206, 
any person described in paragraph (1) or (2) or any person who owns a 
trust or restricted interest in a parcel of such land in that State.
    Indian land means any tract in which any interest in the surface 
estate is owned by a tribe or individual Indian in trust or restricted 
status and includes both individually owned Indian land and tribal 
land.
    Indian landowner means a tribe or individual Indian who owns an 
interest in Indian land.
    Individually owned Indian land means any tract, or interest 
therein, in which the surface estate is owned by an individual Indian 
in trust or restricted status.
    Indian tribe means an Indian tribe under section 102 of the 
Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a).
    Interest, when used with respect to Indian land, means an ownership 
right to the surface estate of Indian land.
    Lease means a written contract between Indian landowners and a 
lessee, whereby the lessee is granted a right to possession of Indian 
land, for a specified purpose and duration.
    Leasehold mortgage means a mortgage, deed of trust, or other 
instrument that pledges a lessee's leasehold interest as security for a 
debt or other obligation owed by the lessee to a lender or other 
mortgagee.
    Lessee means person or entity who has acquired a legal right of 
possession to Indian land by a lease under this part.
    Life estate means an interest in property held only for the 
duration of a designated person's life. A life estate may be created by 
a conveyance document or by operation of law.
    LTRO means the Land Titles and Records Office of the BIA.
    Mail means mailing by U.S. Postal Service or commercial delivery 
service.
    Minor means an individual who is less than 18 years of age.
    Nominal rental or nominal compensation means a rental amount that 
is so insignificant that it bears no relationship to the value of the 
property that is being leased.
    Non compos mentis means a person who has been legally determined by 
a court of competent jurisdiction to be of unsound mind or incapable of 
managing his or her own affairs.
    Notice of violation means a letter notifying the lessee of a 
violation of the lease and providing the lessee with a specified period 
of time to show cause why the lease should not be cancelled for the 
violation. A 10-day show cause letter is one type of notice of 
violation.
    Orphaned minor means a minor who does not have one or more 
guardians duly appointed by a court of competent jurisdiction.
    Performance bond means security for the performance of certain 
lease obligations, as furnished by the lessee, or a guaranty of such 
performance as furnished by a third-party surety.
    Permit means a written, non-assignable agreement between Indian 
landowners or BIA and the permittee, whereby the permittee is granted a 
temporary, revocable privilege to use Indian land or Government land, 
for a specified purpose.
    Permittee means a person or entity who has acquired a legal right 
of use to Indian land or Government land by a permit.
    Power of attorney means an authority by which one person enables 
another to act for him/her as attorney in fact.
    Remainder interest means an interest in Indian land that is created 
at the same time as a life estate, for the use and enjoyment of its 
owner after the life estate terminates.
    Restoration and reclamation plan means a plan that defines the 
reclamation, revegetation, restoration, and soil stabilization 
requirements for the project area, and requires the expeditious 
reclamation of construction areas and revegetation of disturbed areas 
to reduce invasive plant infestation and erosion.
    Secretary means the Secretary of the Interior.
    Single-family residence means a building with one to four dwelling 
units on a tract of land under a single residential lease, or as 
defined by tribal zoning law or other tribal authorization.
    Single-family residential development means one or more single-
family residences owned, managed, or developed by a single entity.
    Sublease means a written agreement by which the lessee grants to an 
individual or entity a right to possession less than that held by the 
lessee under the lease.
    Surety means one who guarantees the performance of another.
    Trespass means any unauthorized occupancy, use of, or action on any 
Indian land or Government land.
    Tribal authorization means a duly adopted tribal resolution, tribal 
ordinance, or other appropriate tribal document authorizing the 
specified action.
    Tribally Designated Housing Entity means a tribally designated 
housing entity under 25 U.S.C. 4103(21).
    Tribal land means the surface estate of lands or any interest 
therein, title to which is held by the United States in trust for one 
or more tribes, or title to which is held by one or more tribes subject 
to Federal restrictions against alienation or encumbrance, and includes 
such lands reserved for BIA administrative purposes. The term also 
includes the surface estate of lands held by the United States in trust 
for an Indian corporation chartered under section 17 of the Act of June 
18, 1934 (48 Stat. 988; 25 U.S.C. 477).
    Tribal law means the body of non-Federal law that governs lands and 
activities under the jurisdiction of a tribe, including ordinances or 
other enactments by the tribe, and tribal court rulings.
    Tribal land assignment means a contract or agreement that conveys 
to tribal members any rights for the temporary use of tribal lands, 
assigned by an Indian tribe in accordance with tribal laws or customs.
    Trust or restricted land or trust or restricted status means any 
tract, or interest therein, that the United States

[[Page 73792]]

holds in trust for the benefit of one or more tribes or individual 
Indians, or any tract, or interest therein, that one or more tribes or 
individual Indians holds title to, but can only alienate or encumber 
with the approval of the United States because of limitations contained 
in the conveyance instrument pursuant to Federal law or limitations 
contained in Federal law.
    Undivided interest means a fractional share in the surface estate 
of Indian land, where the surface estate is owned in common with other 
Indian landowners or fee owners.
    Us/we/our means the Secretary or the Bureau of Indian Affairs (BIA) 
and any tribe acting on behalf of the Secretary or BIA under Sec.  
162.015, except that this term means only the Secretary or BIA if the 
function is an inherently Federal function.
    Uniform Standards of Professional Appraisal Practice (USPAP) means 
the standards promulgated by the Appraisal Standards Board of the 
Appraisal Foundation to establish requirements and procedures for 
professional real property appraisal practice.
    Violation means a failure to take an action, including payment of 
compensation, when required by the lease, or to otherwise not comply 
with a term of the lease. This definition applies for purposes of this 
part no matter how ``violation'' or ``default'' is defined in the 
lease.


Sec.  162.004  May BIA approve or grant permits under this part?

    (a) Permits for the use of Indian land do not require our approval; 
however, you must fulfill the following requirements:
    (1) Ensure that permitted activities comply with all applicable 
environmental and cultural resource laws; and
    (2) Submit all permits to the appropriate BIA office for us to 
confirm that the document meets the definition of ``permit'' and does 
not grant an interest in Indian land and allow us to maintain a copy of 
the permit in our records.
    (b) The following table provides characteristics of permits versus 
leases.

 
------------------------------------------------------------------------
                  Permit                                Lease
------------------------------------------------------------------------
Does not grant a legal interest in Indian   Grants a legal interest in
 land.                                       Indian land.
Shorter term..............................  Longer term.
Limited use...............................  Broader use with associated
                                             infrastructure.
Subject to unlimited access by others.....  Lessee has right of
                                             possession, ability to
                                             limit or prohibit access by
                                             others.
Indian landowner may terminate at any time  Indian landowner may
                                             terminate under limited
                                             circumstances.
------------------------------------------------------------------------

     (c) We may grant permits for the use of Government land. The 
leasing regulations in this part will apply to such permits, as 
appropriate.

When to Get a Lease


Sec.  162.005  When does this part apply?

    (a) This part applies to all leases, amendments, assignments, 
subleases, and leasehold mortgages submitted to BIA for approval after 
[INSERT FINAL RULE EFFECTIVE DATE].
    (b) If the terms of a lease document approved by BIA prior to 
[INSERT FINAL RULE EFFECTIVE DATE] conflict with this part, the terms 
of the lease document govern.
    (c) We may amend this part at any time.


Sec.  162.006  To what land does this part apply?

    (a) This part applies to Indian land and Government land, including 
any tract in which an individual Indian or tribe owns an interest in 
trust or restricted status.
    (1) We will not lease fee interests or collect rent on behalf of 
fee interest owners. We will not condition our approval of a lease of 
the trust and restricted interests on a lease having been obtained from 
the owners of any fee interests.
    (2) We will not include the fee interests in a tract in calculating 
the applicable percentage of interests required for consent to a lease 
document.
    (b) This paragraph applies if there is a life estate on the land to 
be leased.
    (1) When all of the trust or restricted interests in a tract are 
subject to a life estate, the life tenant may lease the land without 
our approval, for the duration of the life estate. The following 
conditions apply:
    (i) Such a lease must be recorded;
    (ii) The lessee must pay rent directly to the life tenant under the 
terms of the lease;
    (iii) We may monitor the use of the land on behalf of the owners of 
the remainder interests, as appropriate, but will not be responsible 
for enforcing the lease on behalf of the life tenant.
    (iv) We will not lease the remainder interests or join in a lease 
by the life tenant on behalf of the owners of the remainder interests 
except as needed to preserve the value of the land;
    (v) We will not lease on the life tenant's behalf, but we may 
collect rents on behalf of the life tenant; and
    (vi) We will be responsible for enforcing the terms of the lease on 
behalf of the owners of the remainder interests.
    (2) When less than all of the trust or restricted interests in a 
tract are subject to a life estate, the life tenant may not lease the 
land unless the remainder interests are also leased. The following 
conditions apply:
    (i) We will not lease on the life tenant's behalf, but we may 
collect rents on behalf of the life tenant; and
    (ii) We will be responsible for enforcing the terms of the lease on 
behalf of the owners of the remainder interests.
    (3) Rent payable under the lease will be paid to the life tenant in 
accordance with Part 179 of this chapter, unless the document creating 
the life estate provides otherwise.
    (4) All leases entered into by life tenants must be recorded in our 
Land Titles and Records Office, even where our approval is not 
required.


Sec.  162.007  To what types of land use agreements does this part not 
apply?

    (a) This part does not apply to the following types of land use 
agreements:

------------------------------------------------------------------------
     This part does not apply to . . .       which are covered by . . .
------------------------------------------------------------------------
Mineral leases, prospecting permits, or     25 CFR parts 211, 212 and
 mineral development agreements.             225.
Grazing permits...........................  25 CFR part 166.
Timber contracts..........................  25 CFR part 163.
Contracts or agreements that encumber       25 U.S.C. 81.
 tribal land.
Rights-of-way.............................  25 CFR part 169.
Tribal land assignments and similar         tribal laws.
 instruments authorizing temporary uses.
Traders' licenses.........................  25 CFR part 140.
------------------------------------------------------------------------

     (b) This part does not apply to leases of water rights associated 
with Indian land, except to the extent the use of such water rights is 
incorporated in a lease of the land itself.


Sec.  162.008  When do I need a lease to authorize possession of Indian 
land?

    (a) You need a lease under this part to possess Indian land if you 
meet one of the criteria in the following table.

[[Page 73793]]



------------------------------------------------------------------------
                                           then you must obtain a lease
            If you are . . .                  under this part . . .
------------------------------------------------------------------------
(1) A person or legal entity (including  from the owners of the land
 an independent legal entity owned and    before taking possession of
 operated by a tribe) who is not an       the land or any portion
 owner of the Indian land.                thereof.
(2) An Indian landowner of a fractional  from the owners of other trust
 interest in the land.                    and restricted interests in
                                          the land, unless those owners
                                          have given you permission to
                                          take or continue in possession
                                          without a lease.
------------------------------------------------------------------------

     (b) You do not need a lease to possess Indian land if you meet any 
of the criteria in the following table.

------------------------------------------------------------------------
 You do not need a lease if you are . .    but the following conditions
                   .                               apply . . .
------------------------------------------------------------------------
(1) An Indian landowner who owns 100     (1) We may require you to
 percent of the trust or restricted       provide evidence of a direct
 interests in a tract.                    benefit to the minor child;
                                          and
(2) A parent or guardian of a minor      (2) When the child is no longer
 child who owns 100 percent of the        a minor, you must obtain a
 trust interests in the land.             lease to authorize continued
                                          possession.
(3) A 25 U.S.C. 477 corporate entity     You must record documents in
 that holds the Indian land directly      accordance with Sec.
 under its Federal charter (not           162.341, Sec.   162.441, and
 pursuant to a lease from the Indian      Sec.   162.566.
 tribe).
(4) A person or legal entity that is     You must record documents in
 leasing Indian land under a special      accordance with Sec.
 act of Congress authorizing leases       162.341, Sec.   162.441, and
 without our approval.                    Sec.   162.566.
------------------------------------------------------------------------

     (c) Landowners who enter into an agreement under paragraph (a)(2) 
may wish to consider documenting such an agreement and recording it in 
the LTRO.

How to Get a Lease


Sec.  162.009  How do I obtain a lease?

    (a) This section establishes the basic steps to obtain a lease.
    (1) Prospective lessees must:
    (i) Directly negotiate with Indian landowners for a lease; and
    (ii) Notify all Indian landowners and obtain the consent of the 
Indian landowners of the applicable percentage of interests, for 
fractionated tracts; and
    (2) Prospective lessees and Indian landowners must:
    (i) Prepare the required information and analyses, including 
information to facilitate BIA's analysis under applicable environmental 
and cultural resource requirements; and
    (ii) Ensure the lease complies with the requirements in subpart B 
for agricultural leases, subpart C for residential leases, subpart D 
for business leases, and subpart E for wind energy evaluation, wind 
resource, or solar resource leases; and
    (3) Prospective lessees and/or Indian landowners must submit the 
lease, and required information and analyses, to the BIA office with 
jurisdiction over the lands covered by the lease for our review and 
approval.
    (b) Generally, residential, business, wind energy evaluation, wind 
resource, and solar resource leases will not be advertised for 
competitive bid.


Sec.  162.010  How does a prospective lessee identify and contact 
Indian landowners to negotiate a lease?

    (a) Prospective lessees may submit a written request to us to 
obtain the following information for the purpose of negotiating a 
lease:
    (1) Names and addresses of the Indian landowners or their 
representatives;
    (2) Information on the location of the parcel; and
    (3) The percentage of undivided interest owned by each Indian 
landowner.
    (b) We may assist prospective lessees in contacting the Indian 
landowners or their representatives for the purpose of negotiating a 
lease, upon request.
    (c) We will assist the Indian landowners in those negotiations, 
upon their request.


Sec.  162.011  What are the consent requirements for a lease?

    (a) For fractionated tracts:
    (1) Except in Alaska, the owners of the following percentage of 
undivided trust or restricted interests in a fractionated tract of 
Indian land must consent to a lease of that tract:

------------------------------------------------------------------------
 If the number of owners of the undivided   Then the required percentage
 trust or restricted interest in the tract    of the undivided trust or
                    is                         restricted interest is
------------------------------------------------------------------------
(i) One to five...........................  90 percent;
(ii) Six to 10............................  80 percent;
(iii) 11 to 19............................  60 percent;
(iv) 20 or more...........................  Over 50 percent.
------------------------------------------------------------------------

     (2) Leases in Alaska require consent of all of the Indian 
landowners in the tract.
    (3) If the prospective lessee is also an Indian landowner, their 
consent will be included in the percentages in paragraphs (a)(1) and 
(a)(2).
    (4) Where owners of the applicable percentages in paragraph (a)(1) 
consent to a lease document:
    (i) That lease document binds all non-consenting owners to the same 
extent as if those owners also consented to the lease document.
    (ii) That lease document will not bind a non-consenting Indian 
tribe, except with respect to the tribally owned fractional interest, 
and the non-consenting Indian tribe will not be treated as a party to 
the lease. Nothing in this paragraph shall be construed to affect the 
sovereignty or sovereign immunity of the Indian tribe.
    (5) We will determine the number of owners of, and undivided 
interests in, a fractionated tract of Indian land, for the purposes of 
calculating the percentages in paragraph (a)(1) based on our records on 
the date on which the lease is submitted to us for approval.
    (b) Tribal land subject to a tribal land assignment may only be 
leased with the consent of the tribe.


Sec.  162.012  Who is authorized to consent to a lease?

    (a) Indian tribes, adult Indian landowners, or emancipated minors, 
may consent to a lease of their land, including undivided interests in 
fractionated tracts.
    (b) The following individuals or entities may consent on behalf of 
an individual Indian landowner:
    (1) An adult with legal custody acting on behalf of his or her 
minor children;
    (2) A guardian, conservator, or other fiduciary appointed by a 
court of

[[Page 73794]]

competent jurisdiction recognized to act on behalf of an individual 
Indian landowner;
    (3) Any person who is authorized to practice before the Department 
of the Interior under 43 CFR part 1 and has been retained by the Indian 
landowner;
    (4) BIA, under the circumstances in paragraph (c) of this section; 
or
    (5) An adult or legal entity who has been given a written power of 
attorney that:
    (i) Meets all of the formal requirements of any applicable law 
under Sec.  162.013; and
    (ii) Identifies the attorney-in-fact; and
    (iii) Describes the scope of the powers granted, to include leasing 
land, and any limits on those powers.
    (c) BIA may give written consent to a lease, and that consent must 
be counted in the percentage ownership described in Sec.  162.011, on 
behalf of:
    (1) The individual owner if the owner is deceased and the heirs to, 
or devisees of, the interest of the deceased owner have not been 
determined;
    (2) Individuals whose whereabouts are unknown to us, after we make 
a reasonable attempt to locate such individuals;
    (3) Individuals who are found to be non compos mentis, or 
determined to be an adult in need of assistance or under legal 
disability as defined in part 115 of this chapter;
    (4) Orphaned minors who do not have guardians duly appointed by a 
court of competent jurisdiction;
    (5) Individuals who have given us a written power of attorney to 
lease their land; or
    (6) The individual Indian landowners of a fractionated tract where:
    (i) We have given the Indian landowners written notice of our 
intent to consent to a lease on their behalf;
    (ii) The Indian landowners are unable to agree upon a lease during 
a three month negotiation period following the notice; and
    (iii) The land is not being used by an Indian landowner under Sec.  
162.008(b)(1).

Lease Administration


Sec.  162.013  What laws will apply to leases approved under this part?

    (a) In addition to the regulations in this part, leases approved 
under this part are subject to:
    (1) Applicable Federal laws and any specific Federal statutory 
requirements that are not incorporated in this part;
    (2) Tribal law, subject to paragraph (b) of this section; and
    (3) State law, in the specific areas and circumstances in