Tribal Energy Resource Agreements, 31529-31538 [2019-13265]

Download as PDF Federal Register / Vol. 84, No. 127 / Tuesday, July 2, 2019 / Proposed Rules Service Bulletin B787–81205–SB270030–00, Issue 002, dated April 7, 2017. (j) Parts Installation Prohibition As of the effective date of this AD, do not install on any airplane an EMA having part number (P/N) C99144–004 or C99144–005. khammond on DSKBBV9HB2PROD with PROPOSALS (k) Credit for Previous Actions This paragraph provides credit for the action specified in paragraph (i)(2) of this AD, if those actions were performed before the effective date of this AD using Boeing Service Bulletin B787–81205–SB270030–00, Issue 001, dated October 22, 2015. (l) Alternative Methods of Compliance (AMOCs) (1) The Manager, Seattle ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (m)(1) of this AD. Information may be emailed to: 9– ANM-Seattle-ACO-AMOC-Requests@faa.gov. (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/ certificate holding district office. (3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by The Boeing Company Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO Branch, FAA, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD. (4) AMOCs approved previously for AD 2017–15–04 are approved as AMOCs for the corresponding provisions of paragraph (g) of this AD. (5) For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (l)(5)(i) and (l)(5)(ii) of this AD apply. (i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or substep is labeled ‘‘RC Exempt,’’ then the RC requirement is removed from that step or substep. An AMOC is required for any deviations to RC steps, including substeps and identified figures. (ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator’s maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition. (m) Related Information (1) For more information about this AD, contact Douglas Tsuji, Aerospace Engineer, VerDate Sep<11>2014 16:06 Jul 01, 2019 Jkt 247001 31529 Systems and Equipment Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206– 231–3548; email: douglas.tsuji@faa.gov. (2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110–SK57, Seal Beach, CA 90740–5600; telephone 562–797–1717; internet https:// www.myboeingfleet.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. You may view this referenced service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206–231–3195. ADDRESSES: Issued in Des Moines, Washington, on June 14, 2019. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service. Instructions: All submissions received must include ‘‘Bureau of Indian Affairs’’ and ‘‘1076–AF47.’’ All comments received will be posted without change to http://www.regulations.gov, including any personal information provided. Docket: For access to the docket to read background documents or comments received, go to http:// www.regulations.gov. We cannot ensure that comments received after the close of the comment period (see DATES) will be included in the docket for this rulemaking and considered. Comments on the information collections contained in this proposed regulation (see ‘‘Paperwork Reduction Act’’ section, below) are separate from those on the substance of the rule. Send comments on the information collection burden to OMB by facsimile to (202) 395–5806 or email to the OMB Desk Officer for the Department of the Interior at OIRA_DOCKET@ omb.eop.gov. Please send a copy of your comments to the person listed in the [FR Doc. 2019–13673 Filed 7–1–19; 8:45 am] BILLING CODE 4910–13–P DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Part 224 RIN 1076–AF47 [192D0102DR/DS5A300000/ DR.5A311.IA000118] Tribal Energy Resource Agreements Bureau of Indian Affairs, Interior. ACTION: Proposed rule. AGENCY: The Bureau of Indian Affairs (BIA) proposes to amend its regulations governing Tribal Energy Resource Agreements (TERAs) between the Secretary of the Interior (Secretary) and Indian Tribes. Tribes, at their discretion, may apply for TERAs. TERAs allow Tribes to enter into leases, business agreements, and rights-of-way for energy resource development on Tribal land without the Secretary’s review and approval. This proposed rule would update the regulations to incorporate changes recently made by Congress to the Act authorizing TERAs. This proposed rule would also establish how Tribal Energy Development Organizations (TEDOs) may obtain certification, as an alternative to a TERA. SUMMARY: Please submit comments by September 3, 2019. Please see ‘‘III. Tribal Consultation’’ of this preamble for dates of Tribal consultation sessions on this proposed rule. DATES: PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 You may send comments, identified by number 1076–AF47, by any of the following methods: —Federal rulemaking portal: http:// www.regulations.gov. Follow the instructions for sending comments. —Email: consultation@bia.gov. Include the number 1076–AF47 in the subject line of the message. —Mail or hand-delivery: Elizabeth Appel, Office of Regulatory Affairs & Collaborative Action, U.S. Department of the Interior, 1849 C Street NW, MIB–4660–MS, Washington, DC 20240. Include the number 1076– AF47 in the subject line of the message. FOR FURTHER INFORMATION CONTACT section of this notice. Please see ‘‘III. Tribal Consultation’’ of this preamble for addresses of Tribal consultation sessions on this proposed rule. FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Director, Office of Regulatory Affairs & Collaborative Action, (202) 273–4680; elizabeth.appel@bia.gov. SUPPLEMENTARY INFORMATION: I. Background II. Summary of This Proposed Rule III. Tribal Consultation IV. Procedural Requirements A. Regulatory Planning and Review (E.O. 12866, 13563, and 13771) B. Regulatory Flexibility Act C. Small Business Regulatory Enforcement Fairness Act D. Unfunded Mandates Reform Act E. Takings (E.O. 12630) F. Federalism (E.O. 13132) G. Civil Justice Reform (E.O. 12988) E:\FR\FM\02JYP1.SGM 02JYP1 31530 Federal Register / Vol. 84, No. 127 / Tuesday, July 2, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS H. Consultation With Indian Tribes (E.O. 13175) I. Paperwork Reduction Act J. National Environmental Policy Act K. Effects on the Energy Supply (E.O. 13211) L. Clarity of This Regulation M. Public Availability of Comments I. Background The Secretary is issuing these regulations under the authority of the Indian Tribal Energy Development and Self-Determination Act of 2005 as amended by the Indian Tribal Energy Development and Self-Determination Act Amendments of 2017, 25 U.S.C. 3501–3504, Public Law 115–325, and 25 U.S.C. 2 and 9. In 2005, Congress passed a law authorizing Tribes, at their discretion, to apply for and enter into TERAs with the Secretary. See the Indian Tribal Energy Development and Self-Determination Act of 2005, Title XXVI, Section 2604 of the Energy Policy Act (Pub. L. 109–58). Upon Secretarial approval of a TERA, the Tribe may enter into energy-related leases, business agreements, and rightsof-way on Tribal lands without the Secretary’s review and approval. The BIA finalized regulations to implement this authority in 2008. See 73 FR 12807 (March 10, 2008). TERAs further the Federal Government’s policy of providing enhanced self-determination and economic development opportunities for Indian Tribes by promoting Tribal oversight and management of energy resource development on tribal lands. TERAs provide another avenue, in addition to the Indian Minerals Development Act and the Indian Mineral Leasing Act, under which Tribes may develop their mineral resources. TERAs also support the national energy policy of increasing utilization of domestic energy resources. Congress updated provisions authorizing TERAs in the Indian Tribal Energy Development and SelfDetermination Act Amendments of 2017. The Act’s amendments update the procedures and conditions for the Secretary’s approval of TERAs, authorize Tribes to enter into leases and business agreements that pool a tribe’s energy resources with other energy resources and, among other things, establishes that energy-related leases, business agreements, and rights-of-way between a Tribe and certified TEDO do not require the Secretary’s approval. II. Summary of This Proposed Rule This proposed rule would address the requirements of the Indian Tribal Energy Development and SelfDetermination Act Amendments of 2017 VerDate Sep<11>2014 16:06 Jul 01, 2019 Jkt 247001 (2017 Amendments). Wherever possible, BIA has attempted to interpret these statutory changes in a manner that will impose the least burden on Tribes. As described in more detail, below, the proposed rule would: (1) Reduce the information Tribes must provide in TERA applications; (2) impose timelines on the Secretary for review and approval of TERAs; (3) limit the grounds on which the Secretary may disapprove a TERA and require an explanation of each of the grounds; (4) establish a process for amending a TERA; (5) narrow who may be considered an interested party and procedures for petitioning and for the Secretary’s handling of interested party petitions; (6) address how BIA will provide unexpended funds to Tribes; (7) establish a process and criteria for certifying TEDOs ; and (8) make various technical nomenclature and other technical edits. A. Information Required in Applications for TERAs The 2017 Amendments deleted a requirement for the Secretary to consider the capacity (experience in managing natural, financial and administrative resources) of a Tribal applicant to carry out a TERA. See Section 103(a) of the 2017 Amendments. To reflect this deletion, the proposed rule would delete several TERA application items and several required TERA provisions. B. Timelines The proposed rule would incorporate timelines established by the 2017 Amendments to ensure that the TERA application process moves forward in a timely manner. Specifically, the proposed rule would: • Require the Secretary to do the following within 30 days of a Tribe submitting a TERA: o Notify the Indian tribe as to whether the agreement is complete or incomplete; o If the agreement is incomplete, notify the Indian tribe of what information or documentation is needed to complete the submission; and o Identify and notify the Indian tribe of the financial assistance, if any, to be provided by the Secretary to the Indian tribe to assist in the implementation of the tribal energy resource agreement, including the environmental review of individual projects. • Establish that a TERA takes effect 271 days after the Secretary receives the TERA, unless the Secretary disapproves it. • Establish that a revised TERA takes effect 91 days after the Secretary PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 receives the TERA, unless the Secretary disapproves it. The proposed rule would also incorporate statutory requirements that the TERA remains in effect to the extent any provision is consistent with applicable Federal law (including regulations), unless the Secretary reassumes the authority by necessity to protect the physical trust asset or the Tribe voluntarily rescinds the TERA pursuant to the regulations. C. Grounds for Disapproval of a TERA The proposed rule would promote certainty in the TERA application process by limiting the grounds upon which the Secretary may disapprove a TERA. Specifically, the proposed rule would establish that the Secretary may disapprove a TERA only if: • The Tribe does not meet the definition of a ‘‘qualified Tribe;’’ • A provision of the TERA violates applicable Federal law, regulations, or a treaty; or • The TERA fails to include certain provisions. In addition, the proposed rule would provide that, where the Secretary does disapprove a TERA application, the Secretary must provide the Tribe with a detailed, written explanation of each reason for a disapproval, specify the revisions or changes to the TERA necessary to address each reason, and offer the Tribe an opportunity to revise and resubmit the TERA. D. Amendments to TERAs The proposed rule provides more flexibility to the Tribe, in that it would establish a process to amend an approved TERA to assume authority for approving leases, business agreements, or rights-of-way for development of another energy resource that is not already covered, without requiring the Tribe to apply for a new TERA. E. Petitions by Interested Parties The proposed rule would update the existing current regulatory process for ensuring that the public is informed of, and has reasonable opportunity to comment on, environmental impacts by: • Limiting who is considered an interested party to those able to demonstrate their interest with substantial evidence; • Requiring exhaustion of any remedies provided under Tribal law before an interested party may submit to the Secretary a petition to review Tribal compliance with the TERA; • Requiring the Secretary to determine whether the petitioner is an interested party and whether the Tribe E:\FR\FM\02JYP1.SGM 02JYP1 Federal Register / Vol. 84, No. 127 / Tuesday, July 2, 2019 / Proposed Rules is not in compliance with the TERA as alleged in the petition; • Limiting the Secretary to taking only such action as the Secretary determines is necessary to address the noncompliance claims; and • Requiring the Secretary to dismiss a petition if the Tribe and interested party who filed the petition reach a resolution of the petition’s claims. G. Certification of TEDOs The proposed rule would establish a process for the Tribal Energy Development Organizations (TEDOs) to obtain certification from the Secretary so that they may enter into leases, business agreements, and rights-of-way with Tribes on Tribal land without Secretarial approval. See Section 103(b) of the 2017 Amendments. (IEED) with ‘‘Secretary’’ to indicate the Secretary of the Interior and maintain delegation flexibility, except where necessary to provide for administrative appeal options; • Add an address for receipt of TERA applications and requests for TEDO certifications. F. Unexpended Amounts H. Nomenclature and Technical Changes The proposed rule would also make changes to: • Capitalize ‘‘Tribe’’ consistent with the Government Printing Office Manual; • Add reference to the annual list of federally recognized Tribes in the definition of ‘‘Tribe;’’ • Replace ‘‘Director’’ of the Office of Indian Energy & Economic Development The following table summarizes revisions to part 224, by showing where the substance of each section of the current rule is in the proposed rule and describing the changes. The table does include sections for which there was no substantive change, including those sections where the only changes were to capitalize ‘‘Tribe’’ or replace ‘‘Director’’ with ‘‘Secretary.’’ The proposed rule would broadly set out the manner in which the Secretary will provide to a requesting Tribe the amounts that the Secretary would have spent carrying out activities the Tribe carries out in the TERA (unexpended amounts), and will provide the Tribe with an accounting of those unexpended amounts. Current provision 224.30 ............................ What definitions apply to this part? ....................... 224.30 224.53 ............................ What must an application for a TERA contain? .... 224.53 224.54 ............................ How must a tribe submit an application? .............. 224.54 224.56 ............................ What is the effect of the Director’s receipt of a tribe’s complete application? 224.56 224.57 ............................ What must the Director do upon receipt of an application? 224.57 224.63 ............................ What provisions must a TERA contain? ................ 224.63 224.64 ............................ How may a tribe assume management of development of different types of energy resources? 224.64 224.65 ............................ How may a tribe assume additional activities under a TERA? What standards will the Secretary use to decide to approve a final proposed TERA? 224.65 224.72 ............................ 224.73 ............................ 224.74 ............................ VerDate Sep<11>2014 How will the Secretary determine whether a tribe has demonstrated sufficient capacity? How will the scope of energy resource development affect the Secretary’s determination of the tribe’s capacity? When must the Secretary approve or disapprove a final proposed TERA? 16:06 Jul 01, 2019 Jkt 247001 PO 00000 Frm 00014 I. Table of Proposed Changes Proposed 25 CFR § Current 25 CFR § 224.71 ............................ khammond on DSKBBV9HB2PROD with PROPOSALS 31531 Fmt 4702 Sfmt 4702 224.71 224.72 224.73 224.74 Description of proposed change In definition of ‘‘Act,’’ adds reference to the 2017 Amendments; adds new definitions for ‘‘qualified Tribe’’ and ‘‘Tribal energy development organization’’ and updates the definition of ‘‘Tribe’’ to refer to the list of federally recognized Tribes. Deletes provisions require descriptions of the Tribe’s expertise and capabilities and adds a provision requiring documentation that the tribe is a ‘‘qualified Tribe’’ Adds an email and physical address for submitting a TERA application. Adds that the TERA takes effect on the 271st day after the Secretary receives a complete application, unless the Tribe consents to an extension. Adds that the Secretary must identify in the written notice any financial assistance available from the Secretary to assist in implementing the TERA. Deletes provisions requiring that the environmental review process identifies and evaluates all significant environmental effects and proposed mitigation measures and provisions requiring mechanisms for obtaining qualifications of third parties and for securing technical information. Adds provision for the Tribe to identify functions the Tribe intends to conduct to authorize operational or development activities. Adds provisions allowing amendments to TERAs. Deletes provision requiring application for a new TERA and determination of the Tribe’s capacity. Deletes provision that the Secretary will determine whether the Tribe has sufficient capacity. Revises to provide that the Secretary must approve the TERA unless the Tribe is not a qualified Tribe, a TERA provision violates law or a treaty applicable to the Tribe, or the TERA fails to include required provisions. Deletes the text of this section and reserves the section number to maintain numbering. Deletes the text of this section and reserves the section number to maintain numbering. Adds that if the Secretary fails to approve or disapprove a final proposed TERA, the TERA takes effect on the 271st day after receipt. E:\FR\FM\02JYP1.SGM 02JYP1 31532 Federal Register / Vol. 84, No. 127 / Tuesday, July 2, 2019 / Proposed Rules Proposed 25 CFR § Current 25 CFR § Current provision 224.75 ............................ What must the Secretary do upon approval or disapproval of a final proposed TERA? 224.75 224.76 ............................ Upon notification of disapproval, may a tribe resubmit a revised final proposed TERA? 224.76 224.78 224.79 224.80 ............................ Under what authority will a tribe perform activities for energy resource development? 224.80 224.84 ............................ When may a tribe grant a right-of-way? ................ 224.84 224.85 ............................ When may a tribe enter into a lease or business agreement? 224.85 224.101 .......................... Who is an interested party? ................................... 224.101 224.107 .......................... What must a petitioner do before filing a petition with the Secretary? 224.107 224.115 .......................... When in the petition process must the Director investigate a tribe’s compliance with a TERA? 224.115 224.116 .......................... What is the time period in which the Director must investigate a tribe’s compliance with a TERA? 224.116 224.119 .......................... What must the Director do when making a decision on a petition? 224.119 224.120 .......................... What action may the Director take to ensure compliance with a TERA? 224.120 224.200 224.201 224.202 224.203 224.204 khammond on DSKBBV9HB2PROD with PROPOSALS 224.205 224.206 VerDate Sep<11>2014 16:06 Jul 01, 2019 Jkt 247001 PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 Description of proposed change Adds that the Secretary must provide a detailed, written explanation of each reason for the disapproval, the changes required to address each reason, and the opportunity to revise and resubmit the TERA. Adds that if the Secretary fails to approve or disapprove a revised final proposed TERA, it takes effect on the 91st day after receipt. New section to address how long a TERA remains in effect. Adds that a TERA remains in effect until the Secretary reassumes activities under Subpart G or the Tribe rescinds the TERA under Subpart H. New section to address how the Secretary will make non-expended amounts available to the Tribe. Clarifies that the Tribe will perform activities under ‘‘Federal’’ authorities provided in the approved TERA. Revises this section to clarify that the right-of-way may serve any of the listed purposes. Adds additional purposes, listed in the 2017 Amendments, for which the Tribe may enter into a lease or business agreement. Clarifies that the Secretary must determine that the person or entity has demonstrated their interest with substantial evidence. Clarifies that the petitioner must have exhausted all tribal remedies available under laws, regulations, or procedures of the Tribe. Adds that the Secretary must make a threshold determination that the petitioner is an interested party. Adds that the Secretary must determine whether the petitioner is an interested party and, if so, that the Secretary must determine whether the Tribe is out of compliance with the TERA for the reason alleged in the petition. Adds that the Secretary must limit findings and conclusions to the claims made in the petition, and that the Secretary will dismiss a petition if the interested party and Tribe have reached a resolution. Limits the Secretary to taking such action as necessary to address the noncompliance identified in petition. New section to address the purpose of Tribal energy development organization (TEDOs) as an alternative to a TERA. New section to address what an application for certification as a TEDO must include. New section to establish an email and physical address for submission of an application for certification. New section to address that the Secretary will approve or disapprove an application for certification within 90 days. New section to establish the criteria by which a Secretary will determine whether to certify a TEDO. New section to establish what the Secretary will do upon approving a certification. New section to establish the effect of certification to allow a Tribe and the TEDO to enter into leases, business agreements, and rights-of-way without Secretarial approval and without a TERA. E:\FR\FM\02JYP1.SGM 02JYP1 Federal Register / Vol. 84, No. 127 / Tuesday, July 2, 2019 / Proposed Rules III. Tribal Consultation locations throughout the country to discuss this proposed rule. The dates We will be hosting several Tribal consultation sessions at targeted Date Time (In association with National Congress of American Indians Mid-Year Conference) Nugget Casino & Resort, 1100 Nugget Ave., Sparks, NV 89431, Room: Southern Pacific B. Hard Rock Hotel & Casino, 777 W. Cherokee Street, Catoosa, OK 74015. Sky Ute Casino Resort, 14324 Highway 172 North, Ignacio, CO 81137. MHA Nation TERO/Energy Building, 305 4th Avenue, New Town, ND 58763. Call-in number: 888–810–4791, Passcode: 8466506. Sparks, NV ........................ Thursday, July 11, 2019 ...... 9 a.m.–12 p.m. (Local time). 9 a.m.–12 p.m. (Local time). 9 a.m.–12 p.m. (Local time). 1 p.m.–4 p.m. Eastern Time. Tulsa, Oklahoma ............... Tuesday, July 23, 2019 ....... Ignacio, Colorado .............. New Town, North Dakota .. Teleconference .................. substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). IV. Procedural Requirements A. Regulatory Planning and Review (E.O. 12866, 13563, and 13771) khammond on DSKBBV9HB2PROD with PROPOSALS Venue 1 p.m.–4 p.m., (Local Time). Thursday, July 18, 2019 ...... Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is not significant. E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation’s regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The E.O. directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements. This rule is also part of the Department’s commitment under the Executive Order to reduce the number and burden of regulations. E.O. 13771 of January 30, 2017, directs Federal agencies to reduce the regulatory burden on regulated entities and control regulatory costs. OIRA has determined that this rule is deregulatory because the updates will reduce the requirements and annual burden hours imposed on Tribes seeking to enter into a TERA. C. Small Business Regulatory Enforcement Fairness Act This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million or more because it merely codifies eligibility requirements that were already established by past practice and a Federal District Court ruling. (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions because this rule affects only individuals’ eligibility for certain education contracts. (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises because this rule affects agreements between Tribes and the Department to allow Tribes to authorize individual leases, business agreements, and rightsof-way on Tribal land B. Regulatory Flexibility Act D. Unfunded Mandates Reform Act This rule does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The rule does not have a monetarily significant or unique effect on State, local, or Tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required. The Department of the Interior certifies that this rule will not have a significant economic effect on a E. Takings (E.O. 12630) This rule does not affect a taking of private property or otherwise have VerDate Sep<11>2014 16:06 Jul 01, 2019 Jkt 247001 PO 00000 Frm 00016 and locations for the consultation sessions are as follows: Location Monday, June 24, 2019, (Listening session). Tuesday, July 16, 2019 ....... 31533 Fmt 4702 Sfmt 4702 taking implications under Executive Order 12630 because this rule does not affect individual property rights protected by the Fifth Amendment or involve a compensable ‘‘taking.’’ A takings implication assessment is not required. F. Federalism (E.O. 13132) Under the criteria in section 1 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement because the rule affects only agreements entered into by Tribes and the Department. A federalism summary impact statement is not required. G. Civil Justice Reform (E.O. 12988) This rule complies with the requirements of Executive Order 12988. Specifically, this rule: (a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and (b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards. H. Consultation With Indian Tribes (E.O. 13175) The Department of the Interior strives to strengthen its government-togovernment relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to selfgovernance and Tribal sovereignty. We have evaluated this rule under the Department’s consultation policy and under the criteria in Executive Order 13175 and have determined that it has substantial direct effects on federally recognized Indian Tribes because the rule affects the criteria, process, and effectiveness of agreements Tribes may E:\FR\FM\02JYP1.SGM 02JYP1 31534 Federal Register / Vol. 84, No. 127 / Tuesday, July 2, 2019 / Proposed Rules enter into with the Department of the Interior to develop energy resources. The Department is hosting consultation sessions with Tribes (see ‘‘III. Tribal Consultation’’ above) and will be individually notifying each federally recognized Tribe of these opportunities to consult. khammond on DSKBBV9HB2PROD with PROPOSALS I. Paperwork Reduction Act OMB Control No. 1076–0167 currently authorizes the collections of information contained in 25 CFR part 224, with an expiration of January 31, 2020. With this rulemaking, we are seeking to renew this information collection. The current authorization totaling an estimated 3,968 annual burden hours. If this proposed rule is finalized, the annual burden hours will decrease by an estimated 900 hours. This decrease is due to: (1) A decrease in the information requested as part of the TERA application process in §§ 224.53 and 224.63; and (2) the streamlined process for seeking an expansion of the scope of an existing TERA to cover additional Tribal land, energy resources, or categories of energy-related leases, business agreements, or rights-of-way in § 224.64. This change would require a revision to an approved information collection under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. for which the Department is requesting OMB approval. OMB Control Number: 1076–0167. Title: Tribal Energy Resource Agreements, 25 CFR 224. Brief Description of Collection: Submission of this information is required for Federally Recognized Indian Tribes to apply for, implement, reassume, or rescind a TERA that has been entered into in accordance with 25 U.S.C. 3501 et. seq., and 25 CFR 224. This collection also requires the Tribe to notify the public of certain actions and allows a petition from the public to be submitted to the Secretary of the Interior to inform of possible noncompliance with a TERA. Type of Review: Revision of a currently approved collection. Respondents: Federally recognized Indian Tribes and the public. Number of Respondents: 1 on average (each year). Number of Responses: 11 on average (each year). Frequency of Response: On occasion. Estimated Time per Response: Varies from 32 hours to 540 hours. Estimated Total Annual Hour Burden: 3,068 hours. Estimated Total Non-Hour Cost: $18,100 VerDate Sep<11>2014 16:06 Jul 01, 2019 Jkt 247001 J. National Environmental Policy Act This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because this is an administrative and procedural regulation. (For further information see 43 CFR 46.210(i)). We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA. K. Effects on the Energy Supply (E.O. 13211) This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required. L. Clarity of This Regulation We are required by Executive Orders 12866 (section 1(b)(12)), and 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must: (a) Be logically organized; (b) Use the active voice to address readers directly; (c) Use clear language rather than jargon; (d) Be divided into short sections and sentences; and, (e) Use lists and tables wherever possible. If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you believe lists or tables would be useful, etc. M. Public Availability of Comments Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. List of Subjects in 25 CFR Part 224 Agreement, Appeals, Application, Business Agreements, Energy PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 Development, Interested Party, Lease, Record keeping requirements, Reporting requirements, Right-of-Way, Tribal Energy Resource Agreements, Tribal capacity, Tribal lands, Trust, Trust asset. For the reasons stated in the preamble, the Department of the Interior, Bureau of Indian Affairs, proposes to amend part 224 in Title 25 of the Code of Federal Regulations as follows: PART 224—TRIBAL ENERGY RESOURCE AGREEMENTS UNDER THE INDIAN TRIBAL ENERGY DEVELOPMENT AND SELF DETERMINATION ACT 1. Revise the authority citation for part 224 to read as follows: ■ Authority: 25 U.S.C. 2 and 9; 25 U.S.C. 3501–3504; Pub. L. 109–58; Pub. L. 115–325 2. In part 224: a. Throughout the part, remove the words ‘‘tribe’’, ‘‘tribe’s’’, ‘‘tribes’’, and ‘‘tribal’’, wherever they appear, and add in their place the words ‘‘Tribe’’, ‘‘Tribe’s’’, ‘‘Tribes’’, and ‘‘Tribal’’. ■ b. In subparts B through H, remove the words ‘‘Director’’ and ‘‘Director’s’’ and add in their place the words ‘‘Secretary’’ and ‘‘Secretary’s’’, respectively, wherever they appear. ■ 4. Amend § 224.30 by: ■ a. Revising the definitions of ‘‘Act’’, ‘‘Decision Deadline’’, and ‘‘Designated Tribal Official’’; ■ b. Adding in alphabetical order definitions for ‘‘Qualified Tribe’’ and ‘‘Tribal energy development organization’’; and ■ c. Revising the definition of ‘‘Tribe’’. The revisions and additions read as follows: ■ ■ § 224.30 part? What definitions apply to this Act means the Indian Tribal Energy Development and Self-Determination Act of 2005, as promulgated in Title V of the Energy Policy Act of 2005, Public Law 109–58, 25 U.S.C. 3501–3504, and as amended by the Indian Tribal Energy Development and Self-Determination Act Amendments of 2017, Public Law 115–325. * * * * * Decision Deadline means the 120-day period within which the Secretary will make a decision about a petition submitted by an interested party under subpart E. The Secretary may extend this period for up to 120 days. * * * * * Designated Tribal Official means the official designated in a Tribe’s preapplication consultation request, E:\FR\FM\02JYP1.SGM 02JYP1 khammond on DSKBBV9HB2PROD with PROPOSALS Federal Register / Vol. 84, No. 127 / Tuesday, July 2, 2019 / Proposed Rules application, or agreement to assist in scheduling consultations or to receive communications from the Secretary to the Tribe regarding the status of a TERA or activities under a TERA. * * * * * Qualified Tribe means a Tribe with Tribal land that has— (1) For a period of not less than 3 consecutive years ending on the date on which the Tribe submits the application, carried out a contract or compact relating to the management of tribal land or natural resources under title I or IV of the Indian SelfDetermination and Education Assistance Act (25 U.S.C. 5301 et seq.) without material audit exception (or without any material audit exceptions that were not corrected within the 3year period); or (2) Substantial experience in the administration, review, or evaluation of energy resource leases or agreements or has otherwise substantially participated in the administration, management, or development of energy resources located on the tribal land of the Indian Tribe. * * * * * Tribal energy development organization or TEDO means: (1) Any enterprise, partnership, consortium, corporation, or other type of business organization that is engaged in the development of energy resources and is wholly owned by a Tribe, including but not limited to an organization incorporated under section 17 of the Indian Reorganization Act, 25 U.S.C. 5124 or section 3 of the Oklahoma Indian Welfare Act, 49 Stat, 1967, chapter 831; and (2) Any organization of two or more entities, at least one of which is a Tribe, that has the written consent of the governing bodies of all Tribes participating in the organization, to apply for a grant, loan, or other assistance under 25 U.S.C. 2602 or to enter into a lease or business agreement with, or acquire a right-of-way from, a Tribe under 25 U.S.C. 2604(a)(2)(A)(ii) or (b)(2)(b). * * * * * Tribe means any Indian Tribe, band, nation, or other organized group or community that is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians, except a Native Corporation as defined in the Alaska Native Claims Settlement Act, 43 U.S.C. 1602, as evidenced by inclusion of the tribe on the list of recognized tribes published by the Secretary under 25 U.S.C. 5131. VerDate Sep<11>2014 16:06 Jul 01, 2019 Jkt 247001 § 224.51 [Amended] 5. In § 224.51, in paragraph (a), remove the words ‘‘Office of Indian Energy and Economic Development’’. ■ 6. Amend § 224.53 by: ■ a. Removing paragraphs (a)(7), (8), (10); ■ b. Adding a new paragraph (a)(7); ■ c. Redesignating paragraph (a)(9) as (a)(8) and removing the words ‘‘paragraph (e)’’ and adding the words ‘‘paragraph (d)’’ in their place; ■ d. Redesignating paragraphs (a)(11) and (12) as paragraphs (a)(9) and (10), respectively. ■ e. Removing paragraphs (d) and (f); ■ f. Redesignating paragraph (e) as paragraph (d) and removing the words ‘‘paragraph (a)(9)’’ and adding the words ‘‘paragraph (a)(8)’’ in their place; ■ g. Removing the phrase ‘‘in sufficient detail for the Secretary to determine the Tribe’s capacity to administer and manage the regulatory activity(ies)’’ in newly redesignated paragraph (d)(1). The revision reads as follows: ■ § 224.53 What must an application for a TERA contain? (a) * * * (7) Documentation that the Tribe meets the definition of ‘‘qualified Tribe’’ in § 224.30; * * * * * ■ 7. Revise § 224.54 to read as follows: § 224.54 How must a Tribe submit an application? A Tribe must submit an application and all supporting documents in written and electronic forms to the Secretary at 1849 C Street NW, Washington, DC 20240, and TERA@bia.gov. ■ 8. Revise § 224.56 to read as follows: § 224.56 What is the effect of the Secretary’s receipt of a qualified Tribe’s complete application? The Secretary’s receipt of a qualified Tribe’s complete application begins a 270-day statutorily mandated period during which the Secretary must approve or disapprove a proposed TERA. With the consent of the Tribe, the Secretary may extend the 270-day period for making a decision. The TERA takes effect upon the 271st day after the Secretary’s receipt of a complete application from a qualified Tribe, unless the Secretary approves the TERA to take effect on an earlier date, the Tribe consents to extending the 270-day period, or the Secretary disapproves the application before that date. ■ 9. Amend § 224.57 by: ■ a. Redesignating paragraph (a)(3)(i)(B) as paragraph (a)(3)(i)(C); and ■ b. Adding a new paragraph (a)(3)(i)(B). The additions read as follows: PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 31535 § 224.57 What must the Secretary do upon receipt of an application? (a) * * * (3) * * * (i) * * * (B) Identify in the written notice any financial assistance available from the Secretary to assist in implementing the TERA, including environmental review of individual projects; and * * * * * ■ 10. Amend § 224.63 by: ■ a. Removing paragraphs (c)(1) and (2); ■ b. Redesignating paragraphs (c)(3) through (6) as (c)(1) through (4); ■ c. Removing paragraphs (d)(1) and (5); ■ d. Redesignating paragraphs (d)(2) through (4) as paragraphs (d)(1) through (3); ■ e. Redesignating paragraphs (d)(6) through (14) as paragraphs (d)(4) through (12); and ■ f. Adding paragraph (m). The addition reads as follows: § 224.63 What provisions must a TERA contain? * * * * * (m) At the option of the Tribe, identify which functions, if any, the Tribe intends to conduct to authorize any operational or development activities pursuant to a lease, business agreement, or right-of-way approved by the Tribe. ■ 11. Revise § 224.64 to read as follows: § 224.64 How may a Tribe assume management of development of different types of energy resources? (a) In order for a Tribe to assume authority for approving leases, business agreements, and rights-of-way for the development of another energy resource that is not included in the TERA, a Tribe must submit to the Secretary: (1) An amendment to the TERA that specifies and describes the additional Tribal land, energy resources, or categories of energy-related leases, business agreements, or rights-of-way that the Tribe intends to include in the TERA; and (2) A copy of the resolution or formal action of the Tribal governing body, or Tribal governing bodies if the land is held for the benefit of more than one Tribe, that approves submission of the TERA amendment. (b) Submission of the documents in paragraph (a) of this section will trigger the public notice and opportunity for comment consistent with § 224.67. (c) The Secretary will process the amendment in accordance with §§ 224.67 through 224.78. (d) Each Tribal governing body that is party to the TERA must sign the TERA amendment upon approval. E:\FR\FM\02JYP1.SGM 02JYP1 31536 § 224.65 Federal Register / Vol. 84, No. 127 / Tuesday, July 2, 2019 / Proposed Rules [Amended] 12. In § 224.65, remove the last sentence. ■ 13. Revise § 224.71 to read as follows: ■ If the Secretary’s decision is . . . (4) A statement that the decision is a final agency action and is subject to judicial review. § 224.71 What standards will the Secretary use to decide to approve a final proposed TERA? The Secretary must approve a final proposed TERA unless: (a) The Tribe does not meet the definition of a ‘‘qualified Tribe’’ in § 224.30; (b) A provision of the TERA violates applicable Federal law (including regulations) or a treaty applicable to the Tribe; or (c) The TERA fails to include the provisions required by § 224.63. § § 224.72 and 224.73 Reserved] [Removed and 14. Remove and reserve §§ 224.72 and 224.73. ■ 15. Revise § 224.74 to read as follows: ■ § 224.74 When must the Secretary approve or disapprove a final proposed TERA? The Secretary must approve or disapprove a final proposed TERA within 270 days of the Secretary’s receipt of a complete application for a TERA. With the consent of the Tribe, or as provided in § 224.62(b), the Secretary may extend the period for a decision. If the Secretary fails to approve or disapprove a final proposed TERA within 270 days and the Tribe does not consent to extend the 270-day period, the TERA takes effect on the 271st day after the Secretary’s receipt of a complete application from a qualified Tribe. ■ 16. In § 224.75, revise paragraphs (b)(1) through (3) and add paragraph (b)(4) to read as follows: § 224.75 What must the Secretary do upon approval or disapproval of a final proposed TERA? khammond on DSKBBV9HB2PROD with PROPOSALS * * * * * If the Secretary’s decision is . . . Then the Secretary will . . . * * (b) * * * .............. * * * * * ** (1) A detailed written explanation of each reason for the disapproval; (2) The changes or other actions required to address each reason for the Secretary’s disapproval; (3) An opportunity to revise and resubmit the TERA: and VerDate Sep<11>2014 17:01 Jul 01, 2019 Jkt 247001 Then the Secretary will . . . 17. In § 224.76, revise the introductory text to read as follows: ■ § 224.76 Upon notification of disapproval, may a Tribe re-submit a revised final proposed TERA? Yes, within 45 days of receiving the notice of disapproval, or a later date as the Secretary and the Tribe agree to in writing, the Tribe may re-submit a revised final proposed TERA, approved by the tribal governing body and signed by the Tribe’s authorized representative, to the Secretary that addresses the Secretary’s concerns. Unless the Secretary and the Tribe otherwise agree, the Secretary must approve or disapprove the revised final proposed TERA within 90 days of the Secretary’s receipt of the revised final proposed TERA. If the Secretary does not approve or disapprove the revised proposed TERA within that time, it will take effect on the 91st day. Within 10 days of the Secretary’s approval or disapproval of a revised final proposed TERA, the Secretary must notify the tribal governing body in writing and take the following actions: * * * * * ■ 18. Add § 224.78 to subpart C to read as follows: § 224.78 effect? How long will a TERA remain in A TERA that takes effect under this part remains in effect to the extent any provision of the TERA is consistent with applicable Federal law (including regulations), unless and until either: (a) The Secretary reassumes all activities included within a TERA without the consent of the Tribe under Subpart G; or (b) The Tribe rescinds a TERA under Subpart H. ■ 19. Add § 224.79 to subpart C to read as follows: § 224.79 Will the Secretary make nonexpended amounts available to the Tribe? Upon written request of a Tribe for whom an approved TERA is in effect, the Secretary will provide to the Tribe those amounts that the Secretary would otherwise have expended to carry out any program, function, service, or activity (or portion thereof) that the Secretary does not expend as a result of the Tribe carrying out the activities under a TERA. The Secretary will PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 provide the Tribe with a full accounting of the amounts as calculated based on the specific terms of the TERA, the scope of the contracted functions, and applicable circumstances. § 224.80 [Amended] 20. In § 224.80, add the word ‘‘Federal’’ before the word ‘‘authorities’’. ■ 21. Revise § 224.84 to read as follows: ■ § 224.84 of-way? When may a Tribe grant a right- A Tribe may grant a right-of-way under a TERA if the grant of right-ofway is over tribal land and the right-ofway serves: (a) An electric production, generation, transmission, or distribution facility (including a facility that produces electricity from renewable energy resources) located on tribal land; (b) A facility located on tribal land that processes or refines energy resources; or (c) The purposes, or facilitates in carrying out the purposes, of any lease or agreement entered into for energy resources development on tribal land. ■ 22. Revise § 224.85 to read as follows: § 224.85 When may a Tribe enter into a lease or business agreement? A Tribe may enter into a lease or business agreement for the purpose of energy resource development for: (a) Exploration for, extraction of, or other development of the Tribe’s energy mineral resources on tribal land including, but not limited to, marketing or distribution; (b) Construction or operation of an electric production, generation, transmission, or distribution facility (including a facility that produces electricity from renewable energy resources) located on tribal land; (c) Construction or operation of a facility to process or refine energy resources, at least a portion of which have been developed on tribal land; or (d) Pooling, unitization, or communitization of the energy mineral resources of the Indian tribe located on tribal land with any other energy mineral resource (including energy mineral resources owned by the Indian tribe or an individual Indian in fee, trust, or restricted status or by any other persons or entities) if the owner, or, if appropriate, lessee, of the resources has consented or consents to the pooling, unitization, or communitization of the other resources under any lease or agreement. ■ 23. Revise § 224.101 to read as follows: E:\FR\FM\02JYP1.SGM 02JYP1 Federal Register / Vol. 84, No. 127 / Tuesday, July 2, 2019 / Proposed Rules § 224.101 Who is an interested party? For the purposes of this part, an interested party is a person or entity that the Secretary determines has demonstrated with substantial evidence that an interest of the person or entity has sustained, or will sustain, an adverse environmental impact as a result of a Tribe’s failure to comply with a TERA. ■ 24. Revise § 224.107 to read as follows: § 224.119 What must the Secretary do when making a decision on a petition? Before a petitioner may file a petition with the Secretary under this subpart, the petitioner must have exhausted all tribal remedies by participating in any tribal process under § 224.106, and available under the laws, regulations, or procedures of the Tribe, including any tribal appeal process. ■ 25. In § 224.110 revise paragraph (b) to read as follows: * * * * (b) * * * (1) Include findings of fact and conclusions of law with respect to each claim made in the petition in the written decision to the Tribe; and * * * * * (c) The Secretary will dismiss any petition if the interested party who filed the petition has agreed with the Tribe to a resolution of the claims presented in the petition. ■ 29. In § 224.120, revise the introductory text to read as follows: § 224.110 What must a petition to the Secretary contain? § 224.120 What action may the Secretary take to ensure compliance with a TERA? * If the Secretary decides that a Tribe is not in compliance with a TERA, the Secretary may take only such action as the Secretary determines to be necessary to address the claims of noncompliance made the petition including: * * * * * ■ 31. In § 224.181 revise paragraph (c) to read as follows: § 224.107 What must a petitioner do before filing a petition with the Secretary? * * * * (b) Specific facts demonstrating that the petitioner is an interested party under § 224.101, including identification of the affected interest; * * * * * ■ 26. In § 224.115, revise the introductory text to read as follows: § 224.115 When in the petition process must the Secretary investigate a Tribe’s compliance with a TERA? The Secretary must investigate the petitioner’s claims of the Tribe’s noncompliance with a TERA only after making a threshold determination that the petitioner is an interested party and: * * * * * ■ 27. Revise § 224.116 to read as follows: § 224.116 What is the time period in which the Secretary must investigate a Tribe’s compliance with a TERA? khammond on DSKBBV9HB2PROD with PROPOSALS in the petition and the Tribe’s written response, if any. If the Secretary decides to extend the time, the Secretary must notify the petitioner and the Tribe in writing of the extension. ■ 28. In § 224.119, revise paragraph (b)(1) and add paragraph (c) to read as follows: (a) If the Secretary determines under § 224.115 that one of the threshold determinations in § 224.114 has been met, then within 120 days of the Secretary’s receipt of a petition, the Secretary must determine: (1) Whether the petitioner is an interested party; and (2) If the petitioner is an interested party, whether or not a Tribe is in compliance with the TERA as alleged in the petition; (b) The Secretary may extend the time for Tribe making the determinations in paragraph (a) of this section for up to 120 days in any case in which the Secretary determines that additional time is necessary to evaluate the claims VerDate Sep<11>2014 16:06 Jul 01, 2019 Jkt 247001 * § 224.181 Who may appeal Departmental decisions or inaction under this part? * * * * * (c) An interested party who is adversely affected by a decision or inaction by the Secretary under subpart E of this part, provided that the interested party may appeal only those issues raised in its prior participation under subpart E of this part and may not appeal any other decision rendered or inaction under this part. ■ 32. In § 224.182, revise paragraph (a) to read as follows: § 224.182 What is the Initial Appeal Process? * * * * * (a) Within 30 days of receiving an adverse decision by the Director or similar level official within 30 days after the time period within which the Secretary is required to act under subpart E, a party that may appeal under this subpart may file an appeal to the Principal Deputy Assistant Secretary— Indian Affairs; * * * * * ■ 33. Add subpart J, consisting of §§ 224.200 through 224.206, to read as follows: PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 31537 Subpart J—Alternative to TERAs: Tribal Energy Development Organization (TEDO) Certification Sec. 224.200 What is the purpose of this subpart? 224.201 What must an application for certification as a Tribal energy development organization (TEDO) include? 224.202 How must a TEDO submit an application for certification? 224.203 What must the Secretary do upon receipt of an application for certification as a Tribal energy development organization? 224.204 What criteria will the Secretary use to determine whether to approve an application for certification of a TEDO? 224.205 What must the Secretary do upon approval of an application for certification? What is the effect of a TEDO receiving certification? § 224.200 subpart? What is the purpose of this The purpose of this part is to establish a process by which an entity may be certified as an Tribal energy development organization (TEDO) that may enter into a lease or business agreement with an Indian Tribe without Secretarial review under 25 U.S.C. 3504(a)(2) or right-of-way with an Indian Tribe without Secretarial review under 25 U.S.C. 3504(b)(2)(B) and without a TERA. § 224.201 What must an application for certification as a Tribal energy development organization (TEDO) include? An application for certification as a TEDO must include documentation of the items listed in paragraphs (a) through (d) of this section. (a) The Tribe has carried out a contract or compact under title I or IV of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5301 et seq.) for a period of not less than 3 consecutive years ending on the date on which the Tribe submits the application, and the contract or compact: (1) Has been carried out by the Tribe without material audit exceptions (or without any material audit exceptions that were not corrected within the 3year period); and (2) Has included programs or activities relating to the management of Tribal land; and (b) The TEDO is organized under the Tribe’s laws; (c) The majority of the interest in the TEDO is owned and controlled by the Tribe (or the Tribe and one or more other Tribes) the Tribal land of which is being developed; and (d) The TEDO’s organizing document: E:\FR\FM\02JYP1.SGM 02JYP1 31538 Federal Register / Vol. 84, No. 127 / Tuesday, July 2, 2019 / Proposed Rules (1) Requires the Tribe with jurisdiction over the land to maintain, at all times, the controlling interest in the TEDO; (2) Requires the Tribe (or the Tribe and one or more other Tribes the Tribal land of which is being developed) to own and control, at all times, a majority of the interest in the TEDO; and (3) Includes a statement that the TEDO is subject to the jurisdiction, laws, and authority of the Tribe. § 224.202 How must a TEDO submit an application for certification? A TEDO must submit an application and all supporting documents in written and electronic form to the Secretary at 1849 C Street NW, Washington, DC 20240, and TERA@bia.gov. § 224.203 What must the Secretary do upon receipt of an application for certification as a Tribal energy development organization? Within 90 days of receiving an application for certification as a TEDO, the Secretary must approve or disapprove the application. (b) Deliver a copy of the Certification to the applicant Tribe (or Tribes, as applicable); and (c) Publish the certification in the Federal Register. § 224.206 What is the effect of a TEDO receiving certification? Upon receiving certification under this subpart, a TEDO may enter into a lease, business agreement, or right-ofway with an Indian Tribe without Secretarial approval as long as: (a) The scope of the lease or business agreement does not exceed that of a TERA as established in § 224.85 of this part. (b) The scope of a right-of-way does not exceed that of a TERA as established in § 224.84 of this part. (c) The term of a lease, business agreement, or right-of-way does not exceed that of a TERA as established in § 224.86 of this part. Dated: May 30, 2019. Tara Sweeney, Assistant Secretary—Indian Affairs. [FR Doc. 2019–13265 Filed 7–1–19; 8:45 am] BILLING CODE 4337–15–P § 224.204 What criteria will the Secretary use to determine whether to approve an application for certification of a TEDO? The Secretary will approve the application for certification upon determining that the application contains the documentation required in § 224.201. khammond on DSKBBV9HB2PROD with PROPOSALS § 224.205 What must the Secretary do upon approval of an application for certification? If the Secretary approves an application for certification, the Secretary must do the following within 10 days of making the determination under § 224.203: (a) Issue a certification stating that: (1) The TEDO is organized under the laws of the Tribe and subject to the Tribe’s jurisdiction, laws, and authority; (2) The majority of the interest in the TEDO is owned and controlled by the Tribe (or the Tribe and one or more other Tribes) and the Tribal land of which is being developed; (3) The TEDO’s organizing document requires the Tribe with jurisdiction over the land to maintain, at all times, the controlling interest in the TEDO; (4) The TEDO’s organizing document requires the Tribe (or the Tribe and one or more other Tribes the Tribal land of which is being developed) to own and control, at all times, a majority of the interest in the TEDO; (5) The certification is issued under 25 U.S.C. 3504(h); and (6) Nothing in the certification waives the sovereign immunity of the Tribe. VerDate Sep<11>2014 16:06 Jul 01, 2019 Jkt 247001 rulemaking. Comments received will be posted without change to https:// www.regulations.gov/, including any personal information provided. For detailed instructions on sending comments and additional information on the rulemaking process, see the ‘‘Written Comments’’ heading of the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: Tracey Casburn, Environmental Protection Agency, Region 7 Office, Air Quality Planning Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219; telephone number (913) 551–7016; email address casburn.tracey@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document ‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to the EPA. Table of Contents I. Written Comments II. What is being addressed in this document? III. Have the requirements for approval of a SIP revision been met? IV. What action is the EPA taking? V. Incorporation by Reference VI. Statutory and Executive Order Reviews I. Written Comments ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R07–OAR–2019–0336; FRL–9995–34– Region 7] Air Plan Approval; Missouri; Removal of Control of VOC Emissions From Traffic Coatings Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: The Environmental Protection Agency (EPA) is proposing approval of a State Implementation Plan (SIP) revision submitted by Missouri on December 3, 2018. Missouri requests that the EPA remove from its SIP a rule related to control of volatile organic compounds (VOCs) from traffic coatings. This rescission does not have an adverse effect on air quality. The EPA’s proposed approval of this rule revision is being done in accordance with the requirements of the Clean Air Act (CAA). DATES: Comments must be received on or before August 1, 2019. ADDRESSES: You may send comments, identified by Docket ID No. EPA–R07– OAR–2019–0336 to https:// www.regulations.gov. Follow the online instructions for submitting comments. Instructions: All submissions received must include the Docket ID No. for this SUMMARY: PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 Submit your comments, identified by Docket ID No. EPA–R07–OAR–2019– 0336, at https://www.regulations.gov. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/ commenting-epa-dockets. II. What is being addressed in this document? The EPA is proposing to approve the removal of 10 Code of State Regulation (CSR) 10–5.450, Control of VOC Emissions from Traffic Coatings, from the Missouri SIP. E:\FR\FM\02JYP1.SGM 02JYP1

Agencies

[Federal Register Volume 84, Number 127 (Tuesday, July 2, 2019)]
[Proposed Rules]
[Pages 31529-31538]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13265]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 224

RIN 1076-AF47
[192D0102DR/DS5A300000/DR.5A311.IA000118]


Tribal Energy Resource Agreements

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule.

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

DATES: Please submit comments by September 3, 2019. Please see ``III. 
Tribal Consultation'' of this preamble for dates of Tribal consultation 
sessions on this proposed rule.

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

--Federal rulemaking portal: http://www.regulations.gov. Follow the 
instructions for sending comments.
--Email: [email protected]. Include the number 1076-AF47 in the 
subject line of the message.
--Mail or hand-delivery: Elizabeth Appel, Office of Regulatory Affairs 
& Collaborative Action, U.S. Department of the Interior, 1849 C Street 
NW, MIB-4660-MS, Washington, DC 20240. Include the number 1076-AF47 in 
the subject line of the message.

    Instructions: All submissions received must include ``Bureau of 
Indian Affairs'' and ``1076-AF47.'' All comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov. We cannot ensure 
that comments received after the close of the comment period (see 
DATES) will be included in the docket for this rulemaking and 
considered.
    Comments on the information collections contained in this proposed 
regulation (see ``Paperwork Reduction Act'' section, below) are 
separate from those on the substance of the rule. Send comments on the 
information collection burden to OMB by facsimile to (202) 395-5806 or 
email to the OMB Desk Officer for the Department of the Interior at 
[email protected]. Please send a copy of your comments to the 
person listed in the FOR FURTHER INFORMATION CONTACT section of this 
notice.
    Please see ``III. Tribal Consultation'' of this preamble for 
addresses of Tribal consultation sessions on this proposed rule.

FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Director, Office of 
Regulatory Affairs & Collaborative Action, (202) 273-4680; 
[email protected].

SUPPLEMENTARY INFORMATION:
I. Background
II. Summary of This Proposed Rule
III. Tribal Consultation
IV. Procedural Requirements
    A. Regulatory Planning and Review (E.O. 12866, 13563, and 13771)
    B. Regulatory Flexibility Act
    C. Small Business Regulatory Enforcement Fairness Act
    D. Unfunded Mandates Reform Act
    E. Takings (E.O. 12630)
    F. Federalism (E.O. 13132)
    G. Civil Justice Reform (E.O. 12988)

[[Page 31530]]

    H. Consultation With Indian Tribes (E.O. 13175)
    I. Paperwork Reduction Act
    J. National Environmental Policy Act
    K. Effects on the Energy Supply (E.O. 13211)
    L. Clarity of This Regulation
    M. Public Availability of Comments

I. Background

    The Secretary is issuing these regulations under the authority of 
the Indian Tribal Energy Development and Self-Determination Act of 2005 
as amended by the Indian Tribal Energy Development and Self-
Determination Act Amendments of 2017, 25 U.S.C. 3501-3504, Public Law 
115-325, and 25 U.S.C. 2 and 9.
    In 2005, Congress passed a law authorizing Tribes, at their 
discretion, to apply for and enter into TERAs with the Secretary. See 
the Indian Tribal Energy Development and Self-Determination Act of 
2005, Title XXVI, Section 2604 of the Energy Policy Act (Pub. L. 109-
58). Upon Secretarial approval of a TERA, the Tribe may enter into 
energy-related leases, business agreements, and rights-of-way on Tribal 
lands without the Secretary's review and approval. The BIA finalized 
regulations to implement this authority in 2008. See 73 FR 12807 (March 
10, 2008).
    TERAs further the Federal Government's policy of providing enhanced 
self-determination and economic development opportunities for Indian 
Tribes by promoting Tribal oversight and management of energy resource 
development on tribal lands. TERAs provide another avenue, in addition 
to the Indian Minerals Development Act and the Indian Mineral Leasing 
Act, under which Tribes may develop their mineral resources. TERAs also 
support the national energy policy of increasing utilization of 
domestic energy resources.
    Congress updated provisions authorizing TERAs in the Indian Tribal 
Energy Development and Self-Determination Act Amendments of 2017. The 
Act's amendments update the procedures and conditions for the 
Secretary's approval of TERAs, authorize Tribes to enter into leases 
and business agreements that pool a tribe's energy resources with other 
energy resources and, among other things, establishes that energy-
related leases, business agreements, and rights-of-way between a Tribe 
and certified TEDO do not require the Secretary's approval.

II. Summary of This Proposed Rule

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

A. Information Required in Applications for TERAs

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

B. Timelines

    The proposed rule would incorporate timelines established by the 
2017 Amendments to ensure that the TERA application process moves 
forward in a timely manner. Specifically, the proposed rule would:
     Require the Secretary to do the following within 30 days 
of a Tribe submitting a TERA:
    o Notify the Indian tribe as to whether the agreement is complete 
or incomplete;
    o If the agreement is incomplete, notify the Indian tribe of what 
information or documentation is needed to complete the submission; and
    o Identify and notify the Indian tribe of the financial assistance, 
if any, to be provided by the Secretary to the Indian tribe to assist 
in the implementation of the tribal energy resource agreement, 
including the environmental review of individual projects.
     Establish that a TERA takes effect 271 days after the 
Secretary receives the TERA, unless the Secretary disapproves it.
     Establish that a revised TERA takes effect 91 days after 
the Secretary receives the TERA, unless the Secretary disapproves it.

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

C. Grounds for Disapproval of a TERA

    The proposed rule would promote certainty in the TERA application 
process by limiting the grounds upon which the Secretary may disapprove 
a TERA. Specifically, the proposed rule would establish that the 
Secretary may disapprove a TERA only if:
     The Tribe does not meet the definition of a ``qualified 
Tribe;''
     A provision of the TERA violates applicable Federal law, 
regulations, or a treaty; or
     The TERA fails to include certain provisions.

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

D. Amendments to TERAs

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

E. Petitions by Interested Parties

    The proposed rule would update the existing current regulatory 
process for ensuring that the public is informed of, and has reasonable 
opportunity to comment on, environmental impacts by:
     Limiting who is considered an interested party to those 
able to demonstrate their interest with substantial evidence;
     Requiring exhaustion of any remedies provided under Tribal 
law before an interested party may submit to the Secretary a petition 
to review Tribal compliance with the TERA;
     Requiring the Secretary to determine whether the 
petitioner is an interested party and whether the Tribe

[[Page 31531]]

is not in compliance with the TERA as alleged in the petition;
     Limiting the Secretary to taking only such action as the 
Secretary determines is necessary to address the noncompliance claims; 
and
     Requiring the Secretary to dismiss a petition if the Tribe 
and interested party who filed the petition reach a resolution of the 
petition's claims.

F. Unexpended Amounts

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

G. Certification of TEDOs

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

H. Nomenclature and Technical Changes

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

I. Table of Proposed Changes

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

----------------------------------------------------------------------------------------------------------------
                                                                      Proposed 25     Description of proposed
        Current 25 CFR Sec.                  Current provision         CFR Sec.                change
----------------------------------------------------------------------------------------------------------------
224.30...............................  What definitions apply to           224.30  In definition of ``Act,''
                                        this part?.                                 adds reference to the 2017
                                                                                    Amendments; adds new
                                                                                    definitions for ``qualified
                                                                                    Tribe'' and ``Tribal energy
                                                                                    development organization''
                                                                                    and updates the definition
                                                                                    of ``Tribe'' to refer to the
                                                                                    list of federally recognized
                                                                                    Tribes.
224.53...............................  What must an application for        224.53  Deletes provisions require
                                        a TERA contain?.                            descriptions of the Tribe's
                                                                                    expertise and capabilities
                                                                                    and adds a provision
                                                                                    requiring documentation that
                                                                                    the tribe is a ``qualified
                                                                                    Tribe''
224.54...............................  How must a tribe submit an          224.54  Adds an email and physical
                                        application?.                               address for submitting a
                                                                                    TERA application.
224.56...............................  What is the effect of the           224.56  Adds that the TERA takes
                                        Director's receipt of a                     effect on the 271st day
                                        tribe's complete                            after the Secretary receives
                                        application?                                a complete application,
                                                                                    unless the Tribe consents to
                                                                                    an extension.
224.57...............................  What must the Director do           224.57  Adds that the Secretary must
                                        upon receipt of an                          identify in the written
                                        application?                                notice any financial
                                                                                    assistance available from
                                                                                    the Secretary to assist in
                                                                                    implementing the TERA.
224.63...............................  What provisions must a TERA         224.63  Deletes provisions requiring
                                        contain?.                                   that the environmental
                                                                                    review process identifies
                                                                                    and evaluates all
                                                                                    significant environmental
                                                                                    effects and proposed
                                                                                    mitigation measures and
                                                                                    provisions requiring
                                                                                    mechanisms for obtaining
                                                                                    qualifications of third
                                                                                    parties and for securing
                                                                                    technical information. Adds
                                                                                    provision for the Tribe to
                                                                                    identify functions the Tribe
                                                                                    intends to conduct to
                                                                                    authorize operational or
                                                                                    development activities.
224.64...............................  How may a tribe assume              224.64  Adds provisions allowing
                                        management of development of                amendments to TERAs. Deletes
                                        different types of energy                   provision requiring
                                        resources?                                  application for a new TERA
                                                                                    and determination of the
                                                                                    Tribe's capacity.
224.65...............................  How may a tribe assume              224.65  Deletes provision that the
                                        additional activities under                 Secretary will determine
                                        a TERA?                                     whether the Tribe has
                                                                                    sufficient capacity.
224.71...............................  What standards will the             224.71  Revises to provide that the
                                        Secretary use to decide to                  Secretary must approve the
                                        approve a final proposed                    TERA unless the Tribe is not
                                        TERA?                                       a qualified Tribe, a TERA
                                                                                    provision violates law or a
                                                                                    treaty applicable to the
                                                                                    Tribe, or the TERA fails to
                                                                                    include required provisions.
224.72...............................  How will the Secretary              224.72  Deletes the text of this
                                        determine whether a tribe                   section and reserves the
                                        has demonstrated sufficient                 section number to maintain
                                        capacity?                                   numbering.
224.73...............................  How will the scope of energy        224.73  Deletes the text of this
                                        resource development affect                 section and reserves the
                                        the Secretary's                             section number to maintain
                                        determination of the tribe's                numbering.
                                        capacity?
224.74...............................  When must the Secretary             224.74  Adds that if the Secretary
                                        approve or disapprove a                     fails to approve or
                                        final proposed TERA?                        disapprove a final proposed
                                                                                    TERA, the TERA takes effect
                                                                                    on the 271st day after
                                                                                    receipt.

[[Page 31532]]

 
224.75...............................  What must the Secretary do          224.75  Adds that the Secretary must
                                        upon approval or disapproval                provide a detailed, written
                                        of a final proposed TERA?                   explanation of each reason
                                                                                    for the disapproval, the
                                                                                    changes required to address
                                                                                    each reason, and the
                                                                                    opportunity to revise and
                                                                                    resubmit the TERA.
224.76...............................  Upon notification of                224.76  Adds that if the Secretary
                                        disapproval, may a tribe re-                fails to approve or
                                        submit a revised final                      disapprove a revised final
                                        proposed TERA?                              proposed TERA, it takes
                                                                                    effect on the 91st day after
                                                                                    receipt.
                                                                           224.78  New section to address how
                                                                                    long a TERA remains in
                                                                                    effect. Adds that a TERA
                                                                                    remains in effect until the
                                                                                    Secretary reassumes
                                                                                    activities under Subpart G
                                                                                    or the Tribe rescinds the
                                                                                    TERA under Subpart H.
                                                                           224.79  New section to address how
                                                                                    the Secretary will make non-
                                                                                    expended amounts available
                                                                                    to the Tribe.
224.80...............................  Under what authority will a         224.80  Clarifies that the Tribe will
                                        tribe perform activities for                perform activities under
                                        energy resource development?                ``Federal'' authorities
                                                                                    provided in the approved
                                                                                    TERA.
224.84...............................  When may a tribe grant a            224.84  Revises this section to
                                        right-of-way?.                              clarify that the right-of-
                                                                                    way may serve any of the
                                                                                    listed purposes.
224.85...............................  When may a tribe enter into a       224.85  Adds additional purposes,
                                        lease or business agreement?                listed in the 2017
                                                                                    Amendments, for which the
                                                                                    Tribe may enter into a lease
                                                                                    or business agreement.
224.101..............................  Who is an interested party?..      224.101  Clarifies that the Secretary
                                                                                    must determine that the
                                                                                    person or entity has
                                                                                    demonstrated their interest
                                                                                    with substantial evidence.
224.107..............................  What must a petitioner do          224.107  Clarifies that the petitioner
                                        before filing a petition                    must have exhausted all
                                        with the Secretary?                         tribal remedies available
                                                                                    under laws, regulations, or
                                                                                    procedures of the Tribe.
224.115..............................  When in the petition process       224.115  Adds that the Secretary must
                                        must the Director                           make a threshold
                                        investigate a tribe's                       determination that the
                                        compliance with a TERA?                     petitioner is an interested
                                                                                    party.
224.116..............................  What is the time period in         224.116  Adds that the Secretary must
                                        which the Director must                     determine whether the
                                        investigate a tribe's                       petitioner is an interested
                                        compliance with a TERA?                     party and, if so, that the
                                                                                    Secretary must determine
                                                                                    whether the Tribe is out of
                                                                                    compliance with the TERA for
                                                                                    the reason alleged in the
                                                                                    petition.
224.119..............................  What must the Director do          224.119  Adds that the Secretary must
                                        when making a decision on a                 limit findings and
                                        petition?                                   conclusions to the claims
                                                                                    made in the petition, and
                                                                                    that the Secretary will
                                                                                    dismiss a petition if the
                                                                                    interested party and Tribe
                                                                                    have reached a resolution.
224.120..............................  What action may the Director       224.120  Limits the Secretary to
                                        take to ensure compliance                   taking such action as
                                        with a TERA?                                necessary to address the
                                                                                    noncompliance identified in
                                                                                    petition.
                                                                          224.200  New section to address the
                                                                                    purpose of Tribal energy
                                                                                    development organization
                                                                                    (TEDOs) as an alternative to
                                                                                    a TERA.
                                                                          224.201  New section to address what
                                                                                    an application for
                                                                                    certification as a TEDO must
                                                                                    include.
                                                                          224.202  New section to establish an
                                                                                    email and physical address
                                                                                    for submission of an
                                                                                    application for
                                                                                    certification.
                                                                          224.203  New section to address that
                                                                                    the Secretary will approve
                                                                                    or disapprove an application
                                                                                    for certification within 90
                                                                                    days.
                                                                          224.204  New section to establish the
                                                                                    criteria by which a
                                                                                    Secretary will determine
                                                                                    whether to certify a TEDO.
                                                                          224.205  New section to establish what
                                                                                    the Secretary will do upon
                                                                                    approving a certification.
                                                                          224.206  New section to establish the
                                                                                    effect of certification to
                                                                                    allow a Tribe and the TEDO
                                                                                    to enter into leases,
                                                                                    business agreements, and
                                                                                    rights-of-way without
                                                                                    Secretarial approval and
                                                                                    without a TERA.
----------------------------------------------------------------------------------------------------------------


[[Page 31533]]

III. Tribal Consultation

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

----------------------------------------------------------------------------------------------------------------
                Date                          Time                  Location                    Venue
----------------------------------------------------------------------------------------------------------------
Monday, June 24, 2019, (Listening    1 p.m.-4 p.m., (Local   Sparks, NV............  (In association with
 session).                            Time).                                          National Congress of
                                                                                      American Indians Mid-Year
                                                                                      Conference) Nugget Casino
                                                                                      & Resort, 1100 Nugget
                                                                                      Ave., Sparks, NV 89431,
                                                                                      Room: Southern Pacific B.
Thursday, July 11, 2019............  9 a.m.-12 p.m. (Local   Tulsa, Oklahoma.......  Hard Rock Hotel & Casino,
                                      time).                                          777 W. Cherokee Street,
                                                                                      Catoosa, OK 74015.
Tuesday, July 16, 2019.............  9 a.m.-12 p.m. (Local   Ignacio, Colorado.....  Sky Ute Casino Resort,
                                      time).                                          14324 Highway 172 North,
                                                                                      Ignacio, CO 81137.
Thursday, July 18, 2019............  9 a.m.-12 p.m. (Local   New Town, North Dakota  MHA Nation TERO/Energy
                                      time).                                          Building, 305 4th Avenue,
                                                                                      New Town, ND 58763.
Tuesday, July 23, 2019.............  1 p.m.-4 p.m. Eastern   Teleconference........  Call-in number: 888-810-
                                      Time.                                           4791, Passcode: 8466506.
----------------------------------------------------------------------------------------------------------------

IV. Procedural Requirements

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

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) at the Office of Management 
and Budget (OMB) will review all significant rules. OIRA has determined 
that this rule is not significant.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the Nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The E.O. directs agencies to consider regulatory approaches that reduce 
burdens and maintain flexibility and freedom of choice for the public 
where these approaches are relevant, feasible, and consistent with 
regulatory objectives. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. We have developed this rule in a manner consistent with these 
requirements. This rule is also part of the Department's commitment 
under the Executive Order to reduce the number and burden of 
regulations.
    E.O. 13771 of January 30, 2017, directs Federal agencies to reduce 
the regulatory burden on regulated entities and control regulatory 
costs. OIRA has determined that this rule is deregulatory because the 
updates will reduce the requirements and annual burden hours imposed on 
Tribes seeking to enter into a TERA.

B. Regulatory Flexibility Act

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

C. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more because it merely codifies eligibility requirements that were 
already established by past practice and a Federal District Court 
ruling.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions because this rule affects only 
individuals' eligibility for certain education contracts.
    (c) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises 
because this rule affects agreements between Tribes and the Department 
to allow Tribes to authorize individual leases, business agreements, 
and rights-of-way on Tribal land

D. Unfunded Mandates Reform Act

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

E. Takings (E.O. 12630)

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

F. Federalism (E.O. 13132)

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

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

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

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

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Indian Tribes through a 
commitment to consultation with Indian Tribes and recognition of their 
right to self-governance and Tribal sovereignty. We have evaluated this 
rule under the Department's consultation policy and under the criteria 
in Executive Order 13175 and have determined that it has substantial 
direct effects on federally recognized Indian Tribes because the rule 
affects the criteria, process, and effectiveness of agreements Tribes 
may

[[Page 31534]]

enter into with the Department of the Interior to develop energy 
resources. The Department is hosting consultation sessions with Tribes 
(see ``III. Tribal Consultation'' above) and will be individually 
notifying each federally recognized Tribe of these opportunities to 
consult.

I. Paperwork Reduction Act

    OMB Control No. 1076-0167 currently authorizes the collections of 
information contained in 25 CFR part 224, with an expiration of January 
31, 2020. With this rulemaking, we are seeking to renew this 
information collection. The current authorization totaling an estimated 
3,968 annual burden hours. If this proposed rule is finalized, the 
annual burden hours will decrease by an estimated 900 hours. This 
decrease is due to: (1) A decrease in the information requested as part 
of the TERA application process in Sec. Sec.  224.53 and 224.63; and 
(2) the streamlined process for seeking an expansion of the scope of an 
existing TERA to cover additional Tribal land, energy resources, or 
categories of energy-related leases, business agreements, or rights-of-
way in Sec.  224.64. This change would require a revision to an 
approved information collection under the Paperwork Reduction Act 
(PRA), 44 U.S.C. 3501 et seq. for which the Department is requesting 
OMB approval.
    OMB Control Number: 1076-0167.
    Title: Tribal Energy Resource Agreements, 25 CFR 224.
    Brief Description of Collection: Submission of this information is 
required for Federally Recognized Indian Tribes to apply for, 
implement, reassume, or rescind a TERA that has been entered into in 
accordance with 25 U.S.C. 3501 et. seq., and 25 CFR 224. This 
collection also requires the Tribe to notify the public of certain 
actions and allows a petition from the public to be submitted to the 
Secretary of the Interior to inform of possible noncompliance with a 
TERA.
    Type of Review: Revision of a currently approved collection.
    Respondents: Federally recognized Indian Tribes and the public.
    Number of Respondents: 1 on average (each year).
    Number of Responses: 11 on average (each year).
    Frequency of Response: On occasion.
    Estimated Time per Response: Varies from 32 hours to 540 hours.
    Estimated Total Annual Hour Burden: 3,068 hours.
    Estimated Total Non-Hour Cost: $18,100

J. National Environmental Policy Act

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

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

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

L. Clarity of This Regulation

    We are required by Executive Orders 12866 (section 1(b)(12)), and 
12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and,
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you believe lists or tables would be 
useful, etc.

M. Public Availability of Comments

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

List of Subjects in 25 CFR Part 224

    Agreement, Appeals, Application, Business Agreements, Energy 
Development, Interested Party, Lease, Record keeping requirements, 
Reporting requirements, Right-of-Way, Tribal Energy Resource 
Agreements, Tribal capacity, Tribal lands, Trust, Trust asset.

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

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

0
1. Revise the authority citation for part 224 to read as follows:

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

0
2. In part 224:
0
a. Throughout the part, remove the words ``tribe'', ``tribe's'', 
``tribes'', and ``tribal'', wherever they appear, and add in their 
place the words ``Tribe'', ``Tribe's'', ``Tribes'', and ``Tribal''.
0
b. In subparts B through H, remove the words ``Director'' and 
``Director's'' and add in their place the words ``Secretary'' and 
``Secretary's'', respectively, wherever they appear.
0
4. Amend Sec.  224.30 by:
0
 a. Revising the definitions of ``Act'', ``Decision Deadline'', and 
``Designated Tribal Official'';
0
 b. Adding in alphabetical order definitions for ``Qualified Tribe'' 
and ``Tribal energy development organization''; and
0
 c. Revising the definition of ``Tribe''.
    The revisions and additions read as follows:


Sec.  224.30  What definitions apply to this part?

    Act means the Indian Tribal Energy Development and Self-
Determination Act of 2005, as promulgated in Title V of the Energy 
Policy Act of 2005, Public Law 109-58, 25 U.S.C. 3501-3504, and as 
amended by the Indian Tribal Energy Development and Self-Determination 
Act Amendments of 2017, Public Law 115-325.
* * * * *
    Decision Deadline means the 120-day period within which the 
Secretary will make a decision about a petition submitted by an 
interested party under subpart E. The Secretary may extend this period 
for up to 120 days.
* * * * *
    Designated Tribal Official means the official designated in a 
Tribe's pre-application consultation request,

[[Page 31535]]

application, or agreement to assist in scheduling consultations or to 
receive communications from the Secretary to the Tribe regarding the 
status of a TERA or activities under a TERA.
* * * * *
    Qualified Tribe means a Tribe with Tribal land that has--
    (1) For a period of not less than 3 consecutive years ending on the 
date on which the Tribe submits the application, carried out a contract 
or compact relating to the management of tribal land or natural 
resources under title I or IV of the Indian Self-Determination and 
Education Assistance Act (25 U.S.C. 5301 et seq.) without material 
audit exception (or without any material audit exceptions that were not 
corrected within the 3-year period); or
    (2) Substantial experience in the administration, review, or 
evaluation of energy resource leases or agreements or has otherwise 
substantially participated in the administration, management, or 
development of energy resources located on the tribal land of the 
Indian Tribe.
* * * * *
    Tribal energy development organization or TEDO means:
    (1) Any enterprise, partnership, consortium, corporation, or other 
type of business organization that is engaged in the development of 
energy resources and is wholly owned by a Tribe, including but not 
limited to an organization incorporated under section 17 of the Indian 
Reorganization Act, 25 U.S.C. 5124 or section 3 of the Oklahoma Indian 
Welfare Act, 49 Stat, 1967, chapter 831; and
    (2) Any organization of two or more entities, at least one of which 
is a Tribe, that has the written consent of the governing bodies of all 
Tribes participating in the organization, to apply for a grant, loan, 
or other assistance under 25 U.S.C. 2602 or to enter into a lease or 
business agreement with, or acquire a right-of-way from, a Tribe under 
25 U.S.C. 2604(a)(2)(A)(ii) or (b)(2)(b).
* * * * *
    Tribe means any Indian Tribe, band, nation, or other organized 
group or community that is recognized as eligible for the special 
programs and services provided by the United States to Indians because 
of their status as Indians, except a Native Corporation as defined in 
the Alaska Native Claims Settlement Act, 43 U.S.C. 1602, as evidenced 
by inclusion of the tribe on the list of recognized tribes published by 
the Secretary under 25 U.S.C. 5131.


Sec.  224.51  [Amended]

0
5. In Sec.  224.51, in paragraph (a), remove the words ``Office of 
Indian Energy and Economic Development''.
0
6. Amend Sec.  224.53 by:
0
 a. Removing paragraphs (a)(7), (8), (10);
0
 b. Adding a new paragraph (a)(7);
0
c. Redesignating paragraph (a)(9) as (a)(8) and removing the words 
``paragraph (e)'' and adding the words ``paragraph (d)'' in their 
place;
0
d. Redesignating paragraphs (a)(11) and (12) as paragraphs (a)(9) and 
(10), respectively.
0
e. Removing paragraphs (d) and (f);
0
f. Redesignating paragraph (e) as paragraph (d) and removing the words 
``paragraph (a)(9)'' and adding the words ``paragraph (a)(8)'' in their 
place;
0
g. Removing the phrase ``in sufficient detail for the Secretary to 
determine the Tribe's capacity to administer and manage the regulatory 
activity(ies)'' in newly redesignated paragraph (d)(1).
    The revision reads as follows:


Sec.  224.53  What must an application for a TERA contain?

    (a) * * *
    (7) Documentation that the Tribe meets the definition of 
``qualified Tribe'' in Sec.  224.30;
* * * * *
0
7. Revise Sec.  224.54 to read as follows:


Sec.  224.54  How must a Tribe submit an application?

    A Tribe must submit an application and all supporting documents in 
written and electronic forms to the Secretary at 1849 C Street NW, 
Washington, DC 20240, and [email protected].
0
8. Revise Sec.  224.56 to read as follows:


Sec.  224.56  What is the effect of the Secretary's receipt of a 
qualified Tribe's complete application?

    The Secretary's receipt of a qualified Tribe's complete application 
begins a 270-day statutorily mandated period during which the Secretary 
must approve or disapprove a proposed TERA. With the consent of the 
Tribe, the Secretary may extend the 270-day period for making a 
decision. The TERA takes effect upon the 271st day after the 
Secretary's receipt of a complete application from a qualified Tribe, 
unless the Secretary approves the TERA to take effect on an earlier 
date, the Tribe consents to extending the 270-day period, or the 
Secretary disapproves the application before that date.
0
9. Amend Sec.  224.57 by:
0
 a. Redesignating paragraph (a)(3)(i)(B) as paragraph (a)(3)(i)(C); and
0
 b. Adding a new paragraph (a)(3)(i)(B).
    The additions read as follows:


Sec.  224.57  What must the Secretary do upon receipt of an 
application?

    (a) * * *
    (3) * * *
    (i) * * *
    (B) Identify in the written notice any financial assistance 
available from the Secretary to assist in implementing the TERA, 
including environmental review of individual projects; and
* * * * *
0
10. Amend Sec.  224.63 by:
0
a. Removing paragraphs (c)(1) and (2);
0
 b. Redesignating paragraphs (c)(3) through (6) as (c)(1) through (4);
0
 c. Removing paragraphs (d)(1) and (5);
0
 d. Redesignating paragraphs (d)(2) through (4) as paragraphs (d)(1) 
through (3);
0
e. Redesignating paragraphs (d)(6) through (14) as paragraphs (d)(4) 
through (12); and
0
f. Adding paragraph (m).
    The addition reads as follows:


Sec.  224.63  What provisions must a TERA contain?

* * * * *
    (m) At the option of the Tribe, identify which functions, if any, 
the Tribe intends to conduct to authorize any operational or 
development activities pursuant to a lease, business agreement, or 
right-of-way approved by the Tribe.
0
11. Revise Sec.  224.64 to read as follows:


Sec.  224.64  How may a Tribe assume management of development of 
different types of energy resources?

    (a) In order for a Tribe to assume authority for approving leases, 
business agreements, and rights-of-way for the development of another 
energy resource that is not included in the TERA, a Tribe must submit 
to the Secretary:
    (1) An amendment to the TERA that specifies and describes the 
additional Tribal land, energy resources, or categories of energy-
related leases, business agreements, or rights-of-way that the Tribe 
intends to include in the TERA; and
    (2) A copy of the resolution or formal action of the Tribal 
governing body, or Tribal governing bodies if the land is held for the 
benefit of more than one Tribe, that approves submission of the TERA 
amendment.
    (b) Submission of the documents in paragraph (a) of this section 
will trigger the public notice and opportunity for comment consistent 
with Sec.  224.67.
    (c) The Secretary will process the amendment in accordance with 
Sec. Sec.  224.67 through 224.78.
    (d) Each Tribal governing body that is party to the TERA must sign 
the TERA amendment upon approval.

[[Page 31536]]

Sec.  224.65  [Amended]

0
12. In Sec.  224.65, remove the last sentence.
0
13. Revise Sec.  224.71 to read as follows:


Sec.  224.71  What standards will the Secretary use to decide to 
approve a final proposed TERA?

    The Secretary must approve a final proposed TERA unless:
    (a) The Tribe does not meet the definition of a ``qualified Tribe'' 
in Sec.  224.30;
    (b) A provision of the TERA violates applicable Federal law 
(including regulations) or a treaty applicable to the Tribe; or
    (c) The TERA fails to include the provisions required by Sec.  
224.63.


Sec.  Sec.  224.72 and 224.73  [Removed and Reserved]

0
14. Remove and reserve Sec. Sec.  224.72 and 224.73.
0
15. Revise Sec.  224.74 to read as follows:


Sec.  224.74  When must the Secretary approve or disapprove a final 
proposed TERA?

    The Secretary must approve or disapprove a final proposed TERA 
within 270 days of the Secretary's receipt of a complete application 
for a TERA. With the consent of the Tribe, or as provided in Sec.  
224.62(b), the Secretary may extend the period for a decision. If the 
Secretary fails to approve or disapprove a final proposed TERA within 
270 days and the Tribe does not consent to extend the 270-day period, 
the TERA takes effect on the 271st day after the Secretary's receipt of 
a complete application from a qualified Tribe.
0
16. In Sec.  224.75, revise paragraphs (b)(1) through (3) and add 
paragraph (b)(4) to read as follows:


Sec.  224.75  What must the Secretary do upon approval or disapproval 
of a final proposed TERA?

* * * * *

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

0
17. In Sec.  224.76, revise the introductory text to read as follows:


Sec.  224.76  Upon notification of disapproval, may a Tribe re-submit a 
revised final proposed TERA?

    Yes, within 45 days of receiving the notice of disapproval, or a 
later date as the Secretary and the Tribe agree to in writing, the 
Tribe may re-submit a revised final proposed TERA, approved by the 
tribal governing body and signed by the Tribe's authorized 
representative, to the Secretary that addresses the Secretary's 
concerns. Unless the Secretary and the Tribe otherwise agree, the 
Secretary must approve or disapprove the revised final proposed TERA 
within 90 days of the Secretary's receipt of the revised final proposed 
TERA. If the Secretary does not approve or disapprove the revised 
proposed TERA within that time, it will take effect on the 91st day. 
Within 10 days of the Secretary's approval or disapproval of a revised 
final proposed TERA, the Secretary must notify the tribal governing 
body in writing and take the following actions:
* * * * *
0
18. Add Sec.  224.78 to subpart C to read as follows:


Sec.  224.78  How long will a TERA remain in effect?

    A TERA that takes effect under this part remains in effect to the 
extent any provision of the TERA is consistent with applicable Federal 
law (including regulations), unless and until either:
    (a) The Secretary reassumes all activities included within a TERA 
without the consent of the Tribe under Subpart G; or
    (b) The Tribe rescinds a TERA under Subpart H.
0
19. Add Sec.  224.79 to subpart C to read as follows:


Sec.  224.79  Will the Secretary make non-expended amounts available to 
the Tribe?

    Upon written request of a Tribe for whom an approved TERA is in 
effect, the Secretary will provide to the Tribe those amounts that the 
Secretary would otherwise have expended to carry out any program, 
function, service, or activity (or portion thereof) that the Secretary 
does not expend as a result of the Tribe carrying out the activities 
under a TERA. The Secretary will provide the Tribe with a full 
accounting of the amounts as calculated based on the specific terms of 
the TERA, the scope of the contracted functions, and applicable 
circumstances.


Sec.  224.80  [Amended]

0
20. In Sec.  224.80, add the word ``Federal'' before the word 
``authorities''.
0
21. Revise Sec.  224.84 to read as follows:


Sec.  224.84  When may a Tribe grant a right-of-way?

    A Tribe may grant a right-of-way under a TERA if the grant of 
right-of-way is over tribal land and the right-of-way serves:
    (a) An electric production, generation, transmission, or 
distribution facility (including a facility that produces electricity 
from renewable energy resources) located on tribal land;
    (b) A facility located on tribal land that processes or refines 
energy resources; or
    (c) The purposes, or facilitates in carrying out the purposes, of 
any lease or agreement entered into for energy resources development on 
tribal land.
0
22. Revise Sec.  224.85 to read as follows:


Sec.  224.85   When may a Tribe enter into a lease or business 
agreement?

    A Tribe may enter into a lease or business agreement for the 
purpose of energy resource development for:
    (a) Exploration for, extraction of, or other development of the 
Tribe's energy mineral resources on tribal land including, but not 
limited to, marketing or distribution;
    (b) Construction or operation of an electric production, 
generation, transmission, or distribution facility (including a 
facility that produces electricity from renewable energy resources) 
located on tribal land;
    (c) Construction or operation of a facility to process or refine 
energy resources, at least a portion of which have been developed on 
tribal land; or
    (d) Pooling, unitization, or communitization of the energy mineral 
resources of the Indian tribe located on tribal land with any other 
energy mineral resource (including energy mineral resources owned by 
the Indian tribe or an individual Indian in fee, trust, or restricted 
status or by any other persons or entities) if the owner, or, if 
appropriate, lessee, of the resources has consented or consents to the 
pooling, unitization, or communitization of the other resources under 
any lease or agreement.
0
23. Revise Sec.  224.101 to read as follows:

[[Page 31537]]

Sec.  224.101  Who is an interested party?

    For the purposes of this part, an interested party is a person or 
entity that the Secretary determines has demonstrated with substantial 
evidence that an interest of the person or entity has sustained, or 
will sustain, an adverse environmental impact as a result of a Tribe's 
failure to comply with a TERA.
0
24. Revise Sec.  224.107 to read as follows:


Sec.  224.107  What must a petitioner do before filing a petition with 
the Secretary?

    Before a petitioner may file a petition with the Secretary under 
this subpart, the petitioner must have exhausted all tribal remedies by 
participating in any tribal process under Sec.  224.106, and available 
under the laws, regulations, or procedures of the Tribe, including any 
tribal appeal process.
0
25. In Sec.  224.110 revise paragraph (b) to read as follows:


Sec.  224.110  What must a petition to the Secretary contain?

* * * * *
    (b) Specific facts demonstrating that the petitioner is an 
interested party under Sec.  224.101, including identification of the 
affected interest;
* * * * *
0
26. In Sec.  224.115, revise the introductory text to read as follows:


Sec.  224.115  When in the petition process must the Secretary 
investigate a Tribe's compliance with a TERA?

    The Secretary must investigate the petitioner's claims of the 
Tribe's noncompliance with a TERA only after making a threshold 
determination that the petitioner is an interested party and:
* * * * *
0
27. Revise Sec.  224.116 to read as follows:


Sec.  224.116  What is the time period in which the Secretary must 
investigate a Tribe's compliance with a TERA?

    (a) If the Secretary determines under Sec.  224.115 that one of the 
threshold determinations in Sec.  224.114 has been met, then within 120 
days of the Secretary's receipt of a petition, the Secretary must 
determine:
    (1) Whether the petitioner is an interested party; and
    (2) If the petitioner is an interested party, whether or not a 
Tribe is in compliance with the TERA as alleged in the petition;
    (b) The Secretary may extend the time for Tribe making the 
determinations in paragraph (a) of this section for up to 120 days in 
any case in which the Secretary determines that additional time is 
necessary to evaluate the claims in the petition and the Tribe's 
written response, if any. If the Secretary decides to extend the time, 
the Secretary must notify the petitioner and the Tribe in writing of 
the extension.
0
28. In Sec.  224.119, revise paragraph (b)(1) and add paragraph (c) to 
read as follows:


Sec.  224.119  What must the Secretary do when making a decision on a 
petition?

* * * * *
    (b) * * *
    (1) Include findings of fact and conclusions of law with respect to 
each claim made in the petition in the written decision to the Tribe; 
and
* * * * *
    (c) The Secretary will dismiss any petition if the interested party 
who filed the petition has agreed with the Tribe to a resolution of the 
claims presented in the petition.
0
29. In Sec.  224.120, revise the introductory text to read as follows:


Sec.  224.120  What action may the Secretary take to ensure compliance 
with a TERA?

    If the Secretary decides that a Tribe is not in compliance with a 
TERA, the Secretary may take only such action as the Secretary 
determines to be necessary to address the claims of noncompliance made 
the petition including:
* * * * *
0
31. In Sec.  224.181 revise paragraph (c) to read as follows:


Sec.  224.181  Who may appeal Departmental decisions or inaction under 
this part?

* * * * *
    (c) An interested party who is adversely affected by a decision or 
inaction by the Secretary under subpart E of this part, provided that 
the interested party may appeal only those issues raised in its prior 
participation under subpart E of this part and may not appeal any other 
decision rendered or inaction under this part.
0
32. In Sec.  224.182, revise paragraph (a) to read as follows:


Sec.  224.182  What is the Initial Appeal Process?

* * * * *
    (a) Within 30 days of receiving an adverse decision by the Director 
or similar level official within 30 days after the time period within 
which the Secretary is required to act under subpart E, a party that 
may appeal under this subpart may file an appeal to the Principal 
Deputy Assistant Secretary--Indian Affairs;
* * * * *
0
33. Add subpart J, consisting of Sec. Sec.  224.200 through 224.206, to 
read as follows:

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

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


Sec.  224.200  What is the purpose of this subpart?

    The purpose of this part is to establish a process by which an 
entity may be certified as an Tribal energy development organization 
(TEDO) that may enter into a lease or business agreement with an Indian 
Tribe without Secretarial review under 25 U.S.C. 3504(a)(2) or right-
of-way with an Indian Tribe without Secretarial review under 25 U.S.C. 
3504(b)(2)(B) and without a TERA.


Sec.  224.201  What must an application for certification as a Tribal 
energy development organization (TEDO) include?

    An application for certification as a TEDO must include 
documentation of the items listed in paragraphs (a) through (d) of this 
section.
    (a) The Tribe has carried out a contract or compact under title I 
or IV of the Indian Self-Determination and Education Assistance Act (25 
U.S.C. 5301 et seq.) for a period of not less than 3 consecutive years 
ending on the date on which the Tribe submits the application, and the 
contract or compact:
    (1) Has been carried out by the Tribe without material audit 
exceptions (or without any material audit exceptions that were not 
corrected within the 3-year period); and
    (2) Has included programs or activities relating to the management 
of Tribal land; and
    (b) The TEDO is organized under the Tribe's laws;
    (c) The majority of the interest in the TEDO is owned and 
controlled by the Tribe (or the Tribe and one or more other Tribes) the 
Tribal land of which is being developed; and
    (d) The TEDO's organizing document:

[[Page 31538]]

    (1) Requires the Tribe with jurisdiction over the land to maintain, 
at all times, the controlling interest in the TEDO;
    (2) Requires the Tribe (or the Tribe and one or more other Tribes 
the Tribal land of which is being developed) to own and control, at all 
times, a majority of the interest in the TEDO; and
    (3) Includes a statement that the TEDO is subject to the 
jurisdiction, laws, and authority of the Tribe.


Sec.  224.202  How must a TEDO submit an application for certification?

    A TEDO must submit an application and all supporting documents in 
written and electronic form to the Secretary at 1849 C Street NW, 
Washington, DC 20240, and [email protected].


Sec.  224.203  What must the Secretary do upon receipt of an 
application for certification as a Tribal energy development 
organization?

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


Sec.  224.204  What criteria will the Secretary use to determine 
whether to approve an application for certification of a TEDO?

    The Secretary will approve the application for certification upon 
determining that the application contains the documentation required in 
Sec.  224.201.


Sec.  224.205  What must the Secretary do upon approval of an 
application for certification?

    If the Secretary approves an application for certification, the 
Secretary must do the following within 10 days of making the 
determination under Sec.  224.203:
    (a) Issue a certification stating that:
    (1) The TEDO is organized under the laws of the Tribe and subject 
to the Tribe's jurisdiction, laws, and authority;
    (2) The majority of the interest in the TEDO is owned and 
controlled by the Tribe (or the Tribe and one or more other Tribes) and 
the Tribal land of which is being developed;
    (3) The TEDO's organizing document requires the Tribe with 
jurisdiction over the land to maintain, at all times, the controlling 
interest in the TEDO;
    (4) The TEDO's organizing document requires the Tribe (or the Tribe 
and one or more other Tribes the Tribal land of which is being 
developed) to own and control, at all times, a majority of the interest 
in the TEDO;
    (5) The certification is issued under 25 U.S.C. 3504(h); and
    (6) Nothing in the certification waives the sovereign immunity of 
the Tribe.
    (b) Deliver a copy of the Certification to the applicant Tribe (or 
Tribes, as applicable); and
    (c) Publish the certification in the Federal Register.


Sec.  224.206  What is the effect of a TEDO receiving certification?

    Upon receiving certification under this subpart, a TEDO may enter 
into a lease, business agreement, or right-of-way with an Indian Tribe 
without Secretarial approval as long as:
    (a) The scope of the lease or business agreement does not exceed 
that of a TERA as established in Sec.  224.85 of this part.
    (b) The scope of a right-of-way does not exceed that of a TERA as 
established in Sec.  224.84 of this part.
    (c) The term of a lease, business agreement, or right-of-way does 
not exceed that of a TERA as established in Sec.  224.86 of this part.

    Dated: May 30, 2019.
Tara Sweeney,
Assistant Secretary--Indian Affairs.
[FR Doc. 2019-13265 Filed 7-1-19; 8:45 am]
BILLING CODE 4337-15-P