48626 Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 / Proposed Rules 

DEPARTMENT OF THE INTERIOR 

Bureau of Indian Affairs 

25 CFR Part 224 

RIN 1076–AE80 

Tribal Energy Resource Agreements 

Under the Indian Tribal Energy 

Development and Self-Determination 

Act 

AGENCY: Bureau of Indian Affairs, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: The Department of the 

Interior, Bureau of Indian Affairs, 

proposes to amend its regulations by 

adding a new part to provide for Tribal 

Energy Resource Agreements (TERAs) 

between the Secretary of the Interior 

(Secretary) and Indian tribes under 

Section 2604 of the Indian Energy 

Resource Development and SelfDetermination Act. The proposed 

regulations provide the process under 

which the Secretary will grant authority 

to an Indian tribe to review and approve 

leases business agreements and rightsof-way for specific energy development 

activities on tribal lands through an 

approved TERA. The Department 

invites your comments on the proposed 

rule. 

DATES: Submit comments by September 

20, 2006. We may not fully consider 

comments received after this date. 

ADDRESSES: You may submit comments 

on the rulemaking by any of the 

following methods. Please use the 

Regulation Identifier Number (RIN) 

1076–AE80 as an identifier in your 

message. See also Public Comment 

Procedures under Procedural Matters. 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail IEED at IEED@bia.edu and 

use the RIN 1076–AE80 in the subject 

line. 

• Fax: 202–208–4564. Identify with 

the RIN 1076–AE80. 

• Mail or hand-carry comments to the 

Department of the Interior, Office of 

Indian Energy and Economic 

Development, Room 20—South Interior 

Building, 1951 Constitution Avenue, 

NW., Washington, DC 20245. Please 

reference RIN 1076–AE80 in your 

comments and also include your name 

and return address. 

• Comments on information 

collection are separate from comments 

on the rule and must be addressed 

separately. Send comments on the 

information collection in this rule 

(1076–AE80) to: Desk Officer for the 

Department of the Interior, Office of 

Management and Budget, by facsimile at 

(202) 395–6566 or e-mail: 

oira_docket@omb.eop.gov. Please also 

send a copy of your comments on the 

information collection to Office of 

Indian Energy and Economic 

Development, Room 20—South Interior 

Building, 1951 Constitution Avenue, 

NW., Washington, DC 20245. Please 

reference RIN 1076–AE80. 

FOR FURTHER INFORMATION CONTACT: 

Darryl Francois, Program Analyst, Office 

of Indian Energy and Economic 

Development, Room 20—South Interior 

Building, 1951 Constitution Avenue, 

NW., Washington, DC 20245, Telephone 

(202) 219–0740 or fax (202) 208–4564. 

SUPPLEMENTARY INFORMATION: The 

Secretary of the Interior is issuing this 

part under authority of the Indian Tribal 

Energy Development and SelfDetermination Act of 2005, Pub. L. 109– 

58, 119 Stat. 763, 25 U.S.C. 3501–3504, 

and 25 U.S.C. 2 and 9. 

Title V, Section 503 of the Energy 

Policy Act of 2005 (Pub. L. 109–58) 

amends Title XXVI (Indian Energy) of 

the Energy Policy Act of 1992 to require 

the Secretary of the Interior (Secretary) 

to promulgate regulations that 

implement new provisions concerning 

energy resource development on tribal 

lands. Specifically, the Indian Energy 

Development and Self-Determination 

Act, Title XXVI, Section 2604 of the 

Energy Policy Act, as amended, 

authorizes the Secretary to enter into 

TERAs with Indian tribes. The intent of 

these agreements is to promote tribal 

oversight and management of energy 

and mineral resource development on 

tribal lands and further the goal of 

Indian self-determination. A TERA 

offers a tribe an entirely new alternative 

for entering into energy-related business 

agreements and leases and for granting 

rights-of-way for pipelines, electric 

transmission and distribution lines 

without the Secretary’s review and 

approval. 

The proposed regulations provide that 

entering into a TERA requires a tribal 

application and Secretarial 

determination of a tribe’s capacity to 

manage the full scope of administrative, 

regulatory, and energy resource 

development a tribe proposes to assume 

under an approved TERA. In addition, 

the Act requires that a TERA include 

provisions that cover environmental 

compliance measures and a process for 

review of any potential environmental 

impacts to areas affected by activities 

that the tribe could approve under the 

TERA. The TERA regulations must also 

provide a process for interested parties 

to challenge a tribe’s non-compliance 

with terms of an approved TERA and for 

the Secretary to take necessary actions 

to protect trust resources if activities 

undertaken under an approved TERA 

cause or will cause imminent jeopardy 

to a trust resource. 

The Act became law on August 8, 

2005 and requires the Secretary to 

establish and implement regulations 

governing the TERA approval process 

within 365 days of its passage. In 

addition, the implementation of these 

regulations will further the Federal 

Government’s policy of providing 

enhanced self-determination and 

economic development opportunities 

for American Indian tribes and support 

the national energy policy of increasing 

utilization of domestic energy resources. 

Under the Act, the Department held a 

series of public meetings and tribal 

consultations in January 2006 to solicit 

stakeholder and tribal comment on the 

implementation of the Act. In addition, 

the Department in two letters to tribal 

leaders solicited direct involvement of 

tribes in drafting a framework for 

development of these proposed 

regulations. 

Written and oral comments in public 

meetings with stakeholders identified 

several concerns that the Department 

considered in drafting the proposed 

regulations. Three issues raised the most 

concern: tribal capacity determination 

by the Department, TERA-authorized 

activity on fee land held by tribes; and 

environmental review of proposed and 

ongoing activities authorized by a 

TERA. 

The Act requires that the 

implementing regulations include 

criteria the Secretary will use to 

determine the capacity of a tribe. These 

include the tribe’s experience managing 

natural resources and administrative 

and financial resources that will be 

available to it when implementing an 

approved TERA; a process and 

requirements under which a tribe may 

voluntarily rescind a TERA and return 

to the Secretary the review and approval 

authority for future leases, business 

agreements and rights-of-way for energy 

resource development; a scope of and 

provisions for periodic review and 

evaluation of a TERA, including 

provision for review of transactions, 

reports and site inspections and any 

other review processes the Secretary 

deems appropriate; and provisions for 

final agency actions after exhaustion of 

administrative appeals of Secretarial 

decisions. 

In drafting the proposed regulations 

the Department has diligently attempted 

to conform to the provisions of the Act 

to include provisions for the items the 

Act states must be included in the 


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Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 / Proposed Rules 48627 

regulations and to address concerns that 

arose during the consultation process. 

With respect to a capacity 

determination, the proposed regulations 

include a provision for tribes 

considering entering into a TERA 

agreement to go through a preapplication process designed to provide 

a preliminary analysis of the type of 

expertise necessary to manage particular 

types of energy resource development 

projects. In addition, tribes as part of the 

TERA application process must outline 

the level of expertise they possess to 

manage the energy resource 

development projects within the scope 

of the proposed TERA or how they 

would acquire the needed expertise. 

The Department welcomes comment on 

whether these provisions are sufficient 

to allow the Secretary to determine 

tribal capacity to develop energy 

resources. 

The proposed regulations adopt the 

definition of tribal lands contained in 

the Act. However, some tribes suggest 

that a more expansive definition that 

includes real property held in fee by a 

tribe regardless of location would 

potentially create more economically 

robust development projects. The 

Department welcomes comment on 

whether to include this definition of 

Tribal land in the proposed regulations. 

The suggested language for a definition 

of tribal land is as follows: 

Tribal land means those lands for 

which the Secretary has determined that 

interests in real property held in fee by 

a tribe and located outside of Indian 

Country, as defined in 18 U.S.C 1151, 

are not subject to a restriction on 

alienation, unless otherwise specifically 

imposed by Congress. Should a final, 

non-appealable decision of a court of 

competent jurisdiction invalidate the 

Secretary’s determination that such land 

is not subject to a restriction on 

alienation and conclude such land is 

subject to a restriction on alienation, 

this definition of Tribal land will 

include real property held in fee by a 

tribe, regardless of location, except in 

those instances in which Congress has 

removed the restriction on alienation. 

The proposed regulations also include 

provisions that require tribes seeking 

approval for a TERA to demonstrate 

their capacity to identify and evaluate 

all significant environmental effects and 

reasonable mitigation measures, 

including those related to cultural 

resources. The Department welcomes 

comment on whether these provisions 

are sufficient to allow the Secretary to 

determine tribal capacity to develop 

energy resources. 

Procedural Matters 

Regulatory Planning and Review 

(Executive Order 12866) 

This document is not a significant 

rule and does not require review by the 

Office of Management and Budget under 

Executive Order 12866. These 

regulations create a process that will 

allow tribes to enter into an agreement 

with the Department intended to 

promote tribal oversight and 

management of energy and mineral 

resource development on tribal lands. 

The approval of a Tribal Energy 

Resource Agreement will, not, by itself, 

result in energy development related 

leases, business agreements, or rights-ofway. Therefore, this proposed rule will 

not have an effect of $100 million or 

more on the economy and will not 

adversely affect in a material way the 

economy, productivity, competition, 

jobs, the environment, public health or 

safety, or state, local, or tribal 

governments or communities. 

By implementing the provisions of the 

Act, these regulations will further the 

goal of Indian self-determination that is 

a longstanding goal of the Federal 

Government and the Department and so 

will not create serious inconsistency or 

otherwise interfere with any action 

taken or planned by another agency or 

raise novel legal or policy issues. This 

proposed rule does not interact with 

entitlements, grants, user fees, or loan 

programs so it will not affect any such 

programs or the rights or obligations of 

their recipients. 

Regulatory Flexibility Act (RFA) 

The Department certifies that this 

proposed rule will not have a significant 

economic effect on a substantial number 

of small entities as defined under the 

RFA (5 U.S.C. 601 et seq.). Most of the 

costs for complying with this proposed 

rule would be information collection 

costs. The total estimated annual burden 

hours for responding to the information 

collection requirements in this proposed 

rule are 10,752. Respondents to the 

information collection required by these 

regulations would need to acquire the 

services of individuals in the project 

management and energy, 

environmental, financial and legal 

analyses fields as well as administrative 

service staff. The annual non-hour 

burden associated with the proposed 

regulations is $48,200 for office and 

maintenance expenses associated with 

preparation of reports and a variety of 

correspondence. When added to the 

salary and benefits for personnel, the 

annual industry-wide cost for the 

information collection burden in this 

proposed rule would be about $375,795. 

Therefore, complying with ‘‘Part 224—

Tribal Energy Resource Agreements 

Under the Indian Tribal Energy 

Development and Self-Determination 

Act’’ should not be a significant 

financial burden. For a proposed rule 

with these relatively low projected 

costs, a Regulatory Flexibility Analysis 

is not required. Accordingly, a Small 

Entity Compliance Guide is not 

required. 

Your comments are important. The 

Small Business and Agriculture 

Regulatory Enforcement Ombudsman 

and 10 Regional Fairness Boards will 

consider comments from small 

businesses about Federal agency 

enforcement actions. The Ombudsman 

annually evaluates each agency’s 

responsiveness to small business. If you 

wish to comment, call toll-free 1–(888)–

734–3247. 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) 

This proposed rule is not a major rule 

under SBREFA (5 U.S.C. 804(2)). This 

proposed rule: 

(a) Most of the costs for complying 

with this proposed rule would be 

information collection costs. The total 

estimated industry-wide cost for the 

information collection burden in this 

proposed rule would be about $375,000. 

Therefore, the proposed rule will not 

have an annual effect on the economy 

of $100 million or more. 

(b) The approval of a Tribal Energy 

Resource Agreement will not, by itself, 

result in energy development related 

leases, business agreements, or rights-ofway. Therefore, the proposed 

regulations will not cause a major 

increase in costs or prices for 

consumers, individual industries, 

federal, state, or local government 

agencies, or geographic areas. 

(c) Because the proposed regulations 

do not directly result in energy resource 

development projects, they will not 

have significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. 

Unfunded Mandates Reform Act 

(UMRA) 

Participation in the development of 

Tribal Energy Resource Agreements as 

outlined in these proposed regulations 

is voluntary. In addition, there are 

regulatory alternatives for tribes that 

want to develop energy resources on 

tribal lands, but they may not want to 

develop a TERA. Furthermore, the 

proposed regulations will not result in 

the expenditure by the state, local or 

tribal governments or private sector of 


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48628 Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 / Proposed Rules 

$100 million or more in any one year. 

Therefore, these proposed regulations 

do not impose an unfunded mandate on 

state, local, or tribal governments, or the 

private sector, of more than $100 

million per year, and the proposed 

regulations do not have a significant or 

unique effect on state, local, or tribal 

governments, or the private sector. A 

statement containing the information 

required by the UMRA (2 U.S.C. 1531 et 

seq.) is not required. 

Federalism (Executive Order 13132) 

According to Executive Order 13132, 

these proposed regulations do not have 

Federalism implications. While these 

regulations are of interest to tribes, there 

is no federalism impact on the trust 

relationship or balance of power 

between the United States government 

and the various tribal governments 

affected by this rulemaking. Therefore, 

the proposed regulations do not 

substantially and directly affect the 

relationship between the Federal and 

State governments, and would not 

impose costs on states or localities and 

so do not require a federalism 

assessment. 

Civil Justice Reform (Executive Order 

12988) 

With respect to Executive Order 

12988, the Office of the Solicitor has 

determined that this proposed rule 

would not unduly burden the judicial 

system, and meets the requirements of 

sections 3(a) and 3(b)(2) of the Executive 

Order. 

Paperwork Reduction Act (PRA) 

This proposed rule contains a 

collection of information that has been 

submitted to the Office of Management 

and Budget (OMB) for review and 

approval under section 3507(d) of the 

PRA. As part of our continuing effort to 

reduce paperwork and respondent 

burdens, the Department invites the 

public and other federal agencies to 

comment on any aspect of the reporting 

and recordkeeping burden. If you wish 

to comment on the information 

collection aspects of this proposed rule, 

you may send your comments directly 

to OMB (see the ADDRESSES section of 

this document). Please identify your 

comments with RIN 1076–AE80/Tribal 

Energy Resource Agreements, 25 CFR 

224. Send a copy of your comments to 

the Office of Indian Energy and 

Economic Development, Room 20—

South Interior Building, 1951 

Constitution Avenue, NW., Washington, 

DC 20245. Please reference ‘‘Proposed 

Rule—Tribal Energy Resource 

Agreements’’ in your comments. You 

may obtain a copy of the supporting 

statement for the new collection of 

information by contacting the Bureau of 

Indian Affairs’ Information Collection 

Clearance Officer at (703) 735–4414. 

The PRA provides that an agency may 

not conduct or sponsor, and a person is 

not required to respond to, a collection 

of information unless it displays a 

currently valid OMB control number. 

OMB is required to make a decision 

concerning the collection of information 

contained in these proposed regulations 

between 30 to 60 days after publication 

of this document in the Federal 

Register. Therefore, a comment to OMB 

is best assured of having its full effect 

if OMB receives it early during the 

comment period. This does not affect 

the deadline for the public to comment 

to the Department of the Interior about 

the proposed regulations. 

The title of the collection of 

information for the rule is ‘‘Tribal 

Energy Resource Agreements, 25 CFR 

Part 224.’’ Respondents to the 

information collections in these 

regulations derive economic benefit 

from an enhanced ability to manage 

energy resources that exist on tribal 

lands within their jurisdiction. 

Therefore, the frequency of response 

will vary and depends on the 

respondents needs. The information 

collection (IC) does not include 

questions of a sensitive nature. The 

IEED will protect proprietary 

information according to the Freedom of 

Information Act (5 U.S.C. 522) and its 

implementing regulations (43 CFR part 

2) or other applicable laws. 

The following table details the IC 

burden for the proposed requirements in 

subparts B, C, D, E, F, G, and H: 

TABLE 1.—TRIBAL ENERGY RESOURCE AGREEMENTS UNDER THE INDIAN TRIBAL ENERGY DEVELOPMENT AND SELF

DETERMINATION ACT

Citation 25 CFR 

224 Section title Information collection requirement 

Hour burden 

for respondent 

Average 

number of 

annual responses 

Annual 

burden 

hours for respondent 

Total annual 

cost (salary & 

benefits) 

Subpart B—Procedures for Obtaining Tribal Energy Resource Agreements 

224.53 and 

224.63.

What must an Application for 

an Agreement contain and 

What provisions must an 

Agreement contain? 

224.53 Provisions (a) through 

(p) outline Application information requirements and 

225.63 Provisions (a) through 

(c) outline Agreement requirements.

1080 4 4,320 $151,328 

($131,328 ) 

224.57(d) ......... What must the Director do 

upon receipt of an Application? 

Director issues written notice to 

tribe listing additional information requirements.

480 2 960 $33,468 

($29,468 ) 

224.61 .............. What will the tribe provide to 

the Director after receipt of 

the Director’s report on the 

Application consultation 

meeting? 

Tribe must submit final proposed Agreement.32 4 128 $4,352 

($3,952 ) 

224.64 .............. How may a tribe assume management of development of 

different types of energy resources? 

A tribe may assume management of other types of energy 

resources by applying for a 

new Agreement under the 

same requirements as 

§ 224.53 and § 224.54 for 

that additional type of energy 

resource. 

720 1 720 $24,888 

($21,888 ) 


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TABLE 1.—TRIBAL ENERGY RESOURCE AGREEMENTS UNDER THE INDIAN TRIBAL ENERGY DEVELOPMENT AND SELF

DETERMINATION ACT—Continued 

Citation 25 CFR 

224 Section title Information collection requirement 

Hour burden 

for respondent 

Average 

number of 

annual responses 

Annual 

burden 

hours for respondent 

Total annual 

cost (salary & 

benefits) 

224.65 .............. How may a tribe assume additional activities under an 

Agreement? 

Outlines an amendment process for making changes to 

an already approved Agreement. 

520 1 520 $17,838 

($15,838 ) 

224.68(d) ......... How will the Secretary use 

public comment?.

If the Secretary makes changes 

to final proposed Agreement 

based on public comment the 

tribe must approve final 

changes in writing.

480 4 1920 $66,936 

($58,936 ) 

Subpart C—Approval of Tribal Energy Resource Agreements 

224.76 .............. Upon notification of disapproval, may a tribe re-submit a revised final proposed 

Agreement? 

Yes—Tribe may submit a revised final proposed Agreement.520 1 520 $17,838 

($15,838 ) 

Subpart D—Implementation of Tribal Energy Resource Agreements 

224.83 .............. What are the responsibilities of 

a tribe following execution of 

leases, business agreements, and rights-of-way 

under an Agreement? 

Inform public, send copy of any 

agreements to the Director, 

and provide documentation 

to Director of information that 

would allow Secretary to discharge trust responsibilities.

32 10 320 $10,920 

($8,920 ) 

224.87 .............. What are the responsibilities of 

a tribe if it discovers a Violation or Breach? 

Tribe must provide written notice to Director for provisions 

(a) through (c).

120 1 120 $4,291 

($3,791 ) 

Subpart E—Interested Party Petitions 

224.108 ............ What must a petition contain? Provisions (a) through (j) outline petition information requirements.464 1 464 $16,024 

($14,024 ) 

224.112 ............ What may the tribe do after it 

completes petition consultation with the Director? 

After completion of petition consultation tribe may submit a 

written response.

408 1 408 $15,546 

($12,546 ) 

224.120(a) ....... How must the Director proceed 

with a petition if it meets the 

threshold determinations? 

The tribe must provide a written 

response to the Director’s 

determination.

120 1 120 $4,291 

($3,791 ) 

Subpart F—Periodic Reviews 

224.139(b) ....... What must a tribe do after receiving a notice of imminent 

jeopardy to a physical trust 

asset.

Submit a written response to 

the Director.

120 1 120 $4,291 

($3,791 ) 

Subpart G—Reassumption 

224.156 ............ What information must the 

tribe’s response to the notice 

of intent to reassume include? 

Information requirements for 

tribes response to notice of 

intent to reassume.

80 1 80 $2,696 

($2,496 ) 

Subpart H—Rescission 

224.173 ............ How does a tribe rescind an 

Agreement? 

Tribe must submit a written tribal resolution to initiate a rescission.32 1 32 $1,088 

($988 ) 

Total Burden.................................................... ................................................... .................... .................... 10,752 $375,795 

($327,595 ) 

IEED specifically solicits comments 

on the following questions: 

(a) Is the proposed collection of 

information necessary for IEED to 

properly perform its functions, and will 

it be useful? 


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48630 Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 / Proposed Rules 

(b) Are the estimates of the burden 

hours of the proposed collection 

reasonable? 

(c) Do you have any suggestions that 

would enhance the quality, clarity, or 

usefulness of the information to be 

collected? 

(d) Is there a way to minimize the 

information collection burden on those 

who are to respond, including the use 

of appropriate automated electronic, 

mechanical, or other forms of 

information technology? 

National Environmental Policy Act 

(NEPA) 

Under NEPA and 516 Departmental 

Manual 6, Appendix 10.4C, ‘‘Issuance 

and/or modification of regulations.’’

these proposed regulations do not 

constitute a major Federal action 

significantly affecting the quality of the 

human environment. The proposed 

regulations fall within the categorical 

exclusion of Appendix 10.4C(1) because 

the impact of the proposed rule would 

be limited to administrative and 

economic effects. There are no 

extraordinary circumstances that would 

require preparation of an environmental 

assessment or an environmental impact 

statement. 

Data Quality Act 

In developing these regulations, we 

did not conduct or use a study, 

experiment, or survey requiring peer 

review under the Data Quality Act (Pub. 

L. 106–554). 

Energy Supply, Distribution, or Use 

(Executive Order 13211) 

This proposed rule is not a significant 

rule and is not subject to review by the 

Office of Management and Budget under 

Executive Order 13211. The proposed 

regulations are administrative in nature 

and will not directly lead to energy 

development projects. Therefore, they 

will not have a significant effect on 

energy supply, or distribution. Thus, a 

Statement of Energy Effects is not 

required. 

Consultation and Coordination With 

Indian Tribal Governments (Executive 

Order 13175) 

Pursuant to Executive Order 13175 of 

November 6, 2000, Consultation and 

Coordination with Indian Tribal 

Governments, the Department has 

determined that because the proposed 

rulemaking will uniquely affect tribal 

governments it will follow Department 

and Administrative protocols in 

consulting with tribal governments on 

the rulemaking. Consequently, tribal 

governments will be notified through 

this Federal Register notice and through 

the BIA field offices, of the ramifications 

of this rulemaking. This will enable 

tribal officials and the affected tribal 

constituency throughout Indian country 

to have meaningful and timely input in 

the development of the final rule. This 

will reinforce good intergovernmental 

relations with tribal governments and 

better inform, educate and advise such 

tribal governments on compliance 

requirements of the rule making. We 

consulted with tribal representatives 

during the formulation of this proposed 

regulation. 

The Department sent letters to tribal 

leaders on October 31, 2005 with 

information about the TERA provisions 

of Title V, Section 503 and soliciting 

participation in a process to develop a 

framework for the implementing 

regulations. On December 9, 2005, the 

Department published a Federal 

Register notice (70 FR 73257) 

announcing public meetings and tribal 

consultations in 10 cities between 

January 9 and 20, 2006. The Federal 

Register notice also solicited written 

comments and was distributed through 

the BIA regional offices to all tribes. We 

held the meetings in the following 

cities: Tulsa, OK; Denver, CO; Houston, 

TX; Albuquerque, NM; Las Vegas, NV; 

Sacramento, CA; Minneapolis, MN; 

Billings, MT; Portland, OR; and 

Washington, DC. The comments 

received from these public meetings and 

consultations and the written comments 

submitted were taken into consideration 

in the formulation of the following 

proposed regulations. We have 

committed to consulting with tribal 

representatives in the formulation of a 

final rule for Tribal Energy Resource 

Agreements regulations. 

Public Comment Procedures 

The Department’s practice is to make 

comments, including the names and 

addresses of respondents, available for 

public review. Individual respondents 

may request that we withhold their 

addresses from the rulemaking record, 

which we will honor to the extent 

allowable by law. There may be 

circumstances in which we would 

withhold from the rulemaking record a 

respondent’s identity, as allowable by 

law. If you wish us to withhold your 

name and/or address, you must state 

this prominently at the beginning of 

your comment. However, the 

Department will not consider 

anonymous comments. We will make all 

submissions from tribes, organizations, 

or businesses, and from individuals 

identifying themselves as 

representatives or officials of tribes, 

organizations, or businesses, available 

for public inspection in their entirety. 

Clarity of This Regulation 

Executive Order 12866 requires each 

agency to write regulations that are easy 

to understand. We invite your 

comments on how to make this 

proposed rule easier to understand, 

including answers to the following 

questions: 

(1) Are the requirements in the 

proposed rule clearly stated? 

(2) Does the proposed rule contain 

technical language or jargon that 

interferes with its clarity? 

(3) Does the format of the proposed 

rule (grouping and order of sections, use 

of headings, paragraphing, etc.) aid or 

reduce its clarity? 

(4) Is the description of the proposed 

rule in the SUPPLEMENTARY INFORMATION; 

section of this preamble helpful in 

understanding the rule? 

(5) What else can we do to make the 

rule easier to understand? 

Send a copy of any comments that 

concern how we could make this rule 

easier to understand to the Office of 

Regulatory Affairs, Department of the 

Interior, Room 7229, 1849 C Street, 

NW., Washington, DC 20240. You may 

also e-mail the comments to this 

address: Exsec@ios.doi.gov. 

List of Subjects in 25 CFR Part 224 

Agreement, Appeals, Application, 

Business agreements, Energy 

development, Interested party, Lease, 

Recordkeeping requirements, Reporting 

requirements, Right-of-Way, Tribal 

Energy Resource Agreements, Tribal 

capacity, Tribal lands, Trust, Trust 

asset. 

Dated: August 1, 2006. 

Michael D. Olsen, 

Principal Deputy Assistant Secretary—Indian 

Affairs. 

For the reasons stated in the 

preamble, the Department proposes to 

add a new Part 224 in Chapter I of Title 

25 of the Code of Federal Regulations as 

follows: 

PART 224—TRIBAL ENERGY 

RESOURCE AGREEMENTS UNDER 

THE INDIAN TRIBAL ENERGY 

DEVELOPMENT AND SELF 

DETERMINATION ACT 

Subpart A—General Provisions 

Sec. 

224.10 What is the purpose of this part? 

224.20 How will the Secretary interpret and 

implement this part and the Act? 

224.30 What definitions apply to this part? 

224.40 How does the Act or an agreement 

affect the Secretary’s trust responsibility? 

224.41 When does the Secretary require 

agreement of more than one tribe to 

approve a TERA? 


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224.42 How does the Paperwork Reduction 

Act affect these regulations? 

Subpart B—Procedures for Obtaining Tribal 

Energy Resource Agreements 

224.50 What is the purpose of this subpart? 

Pre-Application Consultation and the Form 

of Application 

224.51 What is a pre-application 

consultation between a tribe and the 

Director? 

224.52 What may a tribe and the Secretary 

include in an agreement? 

224.53 What must an application for an 

agreement contain? 

Processing Applications 

224.54 How must a tribe submit an 

application? 

224.55 Will information a tribe submits 

during the application process be subject 

to disclosure to third parties? 

224.56 What is the effect of the Director’s 

receipt of a tribe’s complete application? 

224.57 What must the Director do upon 

receipt of an application? 

Application Consultation Meeting 

224.58 What is an application consultation 

meeting? 

224.59 How may the Director use the 

results of the application consultation 

meeting? 

224.60 What will the Director provide to 

the tribe after the application 

consultation meeting? 

224.61 What will the tribe provide to the 

Director after receipt of the Director’s 

report on the application consultation 

meeting? 

224.62 May a final proposed agreement 

differ from the original proposed 

agreement? 

Agreement Requirements 

224.63 What provisions must an agreement 

contain? 

224.64 How may a tribe assume 

management of development of different 

types of energy resources? 

224.65 How may a tribe assume additional 

activities under an agreement? 

Public Notification and Comment 

224.67 What must the Secretary do upon 

the Director’s receipt of a final proposed 

agreement? 

224.68 How will the Secretary use public 

comments? 

Subpart C—Approval of Tribal Energy 

Resource Agreements 

224.70 Will the Secretary conduct a review 

of a final proposed agreement under the 

National Environmental Policy Act 

(NEPA)? 

224.71 What standards will the Secretary 

use to decide to approve a final proposed 

agreement? 

224.72 How will the Secretary determine 

whether a tribe has demonstrated 

sufficient capacity? 

224.73 How will the scope of energy 

resource development proposed in a 

tribe’s agreement affect the Secretary’s 

determination of the tribe’s capacity? 

224.74 When must the Secretary approve or 

disapprove a final proposed agreement? 

224.75 What must the Secretary do upon 

approval or disapproval of a final 

proposed agreement? 

224.76 Upon notification of disapproval, 

may a tribe re-submit a revised final 

proposed agreement? 

224.77 Who may appeal the Secretary’s 

decision on a final proposed agreement 

or a revised final proposed agreement? 

Subpart D—Implementation of Tribal 

Energy Resource Agreements 

Applicable Authorities and Responsibilities 

224.80 Under what authority will a tribe 

perform activities undertaken under an 

agreement? 

224.81 What laws are applicable to 

activities under an agreement? 

224.82 What services will the Department 

provide to a tribe after approval of an 

agreement? 

224.83 What are the responsibilities of a 

tribe following execution of leases, 

business agreements, and rights-of-way 

under an agreement? 

Leases, Business Agreements, and Right-ofWay Under an Agreement 

224.84 When may a tribe grant a right-ofway under an agreement? 

224.85 When may a tribe enter into a lease 

or business agreement under an 

agreement? 

224.86 Are there limits for terms of leases, 

business agreements, and rights-of-way 

entered into under an agreement? 

Violation or Breach 

224.87 What are the responsibilities of a 

tribe if it discovers a violation or breach? 

224.88 What are the responsibilities of the 

Director after receiving notice of a 

violation or breach from the tribe? 

224.89 What procedures will the Secretary 

use to enforce leases, business 

agreements, or rights-of-way entered into 

under an agreement? 

Subpart E—Interested Party Petitions 

224.100 May a person or entity ask the 

Secretary to review a tribe’s compliance 

with an agreement? 

224.101 Who is an interested party? 

224.102 Must a tribe establish a comment or 

hearing process under an agreement for 

addressing environmental concerns? 

224.103 Must a tribe establish a process for 

public participation regarding an 

agreement or activities undertaken under 

an agreement? 

224.104 Must a tribe enact tribal laws, 

regulations, or procedures permitting 

persons or entities to allege a tribe’s 

noncompliance with an agreement? 

224.105 How may a person or entity obtain 

copies of tribal laws, regulations, or 

procedures that establish hearing or 

comment processes or that permit 

allegations of a tribe’s noncompliance 

with its agreement? 

§ 224.106 If a tribe has enacted tribal laws, 

regulations, or procedures for 

challenging tribal action under an 

agreement, how must the tribe respond 

to a petitioner’s challenge? 

224.107 What must a petitioner claim or 

request in a petition filed with the 

Secretary? 

224.108 What must a petition contain? 

224.109 What must a petitioner do before 

filing a petition with the Secretary? 

224.110 When may a petitioner file a 

petition with the Secretary? 

224.111 What must the Director do upon 

receipt of a petition? 

224.112 What may the tribe do after it 

completes petition consultation with the 

Director? 

224.113 How may the tribe address a 

petition in its written response? 

224.114 What will the Director do if the 

tribe offers a resolution of a petitioner’s 

claim in which the petitioner concurs? 

224.115 When must the Director make 

threshold determinations about a 

petition? 

224.116 What must the Director consider in 

making threshold determinations about a 

petition? 

224.117 When must the Director dismiss a 

petition after making the threshold 

determinations about a petition? 

224.118 How must the Director proceed if 

the Director dismisses a petition based 

on consideration of threshold 

determinations? 

224.119 How must the Director proceed if 

the Director does not dismiss the petition 

based on threshold determinations? 

224.120 How must the Director proceed 

with a petition if it meets the threshold 

determinations? 

224.121 What action must the Director take 

to bring a tribe into compliance with an 

agreement? 

224.122 When must the Director act on a 

petition? 

224.123 How may a tribe or a petitioner 

appeal the Director’s disposition of a 

petition? 

Subpart F—Periodic Reviews 

224.130 What is the purpose of this 

subpart? 

224.131 What is a periodic review and 

evaluation? 

224.132 How does the Director conduct a 

periodic review and evaluation? 

224.133 What must the Director do after a 

periodic review and evaluation? 

224.134 How often must the Director 

conduct a periodic review and 

evaluation? 

224.135 Under what circumstances may the 

Director conduct additional reviews and 

evaluations? 

Noncompliance 

224.136 How will the Director’s written 

report address a tribe’s noncompliance 

with Federal law or the terms of an 

agreement? 

224.137 What must the Director do if a 

tribe’s noncompliance has resulted in 

harm or the potential for harm to a 

physical trust asset? 

224.138 What must the Director do if a 

tribe’s noncompliance has caused 

imminent jeopardy to a physical trust 

asset? 


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224.139 What must a tribe do after 

receiving a notice of imminent jeopardy 

to a physical trust asset? 

224.140 What must the Secretary do if the 

tribe fails to respond to or does not 

comply with the Director’s order? 

224.141 What must the Secretary do if the 

tribe responds to the Director’s order? 

Subpart G—Reassumption 

224.150 What is the purpose of this 

subpart? 

224.151 When may the Secretary reassume 

activities under an agreement? 

224.152 Must the Secretary always 

reassume the activities under an 

agreement upon a finding of imminent 

jeopardy to a physical trust asset? 

Notice of Intent To Reassume 

224.153 Must the Secretary notify the tribe 

of an intent to reassume activities under 

an agreement? 

224.154 What must a notice of intent to 

reassume include? 

224.155 When must a tribe respond to a 

notice of intent to reassume? 

224.156 What information must the tribe’s 

response to the notice of intent to 

reassume include? 

224.157 How must the Secretary proceed 

after receiving the tribe’s response? 

224.158 What must the Secretary include in 

a written notice of reassumption? 

224.159 How will reassumption affect valid 

existing rights that vested or lawful 

actions taken by the tribe or the 

Secretary before the effective date of the 

reassumption? 

224.160 How will reassumption affect an 

agreement? 

224.161 How may reassumption affect the 

tribe’s ability to modify an agreement, 

administer additional activities or to 

assume administration of activities that 

the Secretary previously reassumed? 

Subpart H—Rescission 

224.170 What is the purpose of this 

subpart? 

224.171 Who may rescind an agreement? 

224.172 May a tribe rescind its authority to 

approve or disapprove a specific future 

lease, business agreement, or right-ofway or the development of a specific 

energy resource or geographic area? 

224.173 How does a tribe rescind an 

agreement? 

224.174 When does a voluntary rescission 

become effective? 

224.175 How will rescission affect rights 

that vested before the effective date of 

the rescission or lawful actions taken by 

the tribe or the Secretary before the 

effective date of the rescission? 

Subpart I—General Appeal Procedures 

224.180 What is the purpose of this 

subpart? 

224.181 Who may appeal Department 

decisions or inaction under this part? 

224.182 What is the Initial Appeal Process? 

224.183 What other administrative appeals 

processes also apply? 

224.184 How do other administrative 

appeals processes apply? 

224.185 When are decisions under this part 

effective? 

Authority: 25 U.S.C. 2 and 9; 25 U.S.C. 

3501–3504; Pub. L. 109–58. 

Subpart A—General Provisions 

§ 224.10 What is the purpose of this part? 

This part: 

(a) Establishes procedures by which a 

tribe may enter into and manage leases, 

business agreements, and rights-of-way 

for purposes of energy resource 

development on tribal land; and 

(b) Describes the process for 

obtaining, implementing, and enforcing 

an agreement that will allow a tribe to 

enter into individual leases, business 

agreements, and rights-of-way without 

obtaining Secretarial approval. 

§ 224.20 How will the Secretary interpret 

and implement this part and the Act? 

(a) The Secretary will interpret and 

implement this part and the Indian 

Tribal Energy Development and SelfDetermination Act (the Act) in keeping 

with the self-determination and energy 

development provisions and policies in 

the Act. 

(b) The Secretary will liberally 

construe this part and the Act for the 

benefit of tribes to implement the 

Federal policy of self-determination. 

The Secretary will construe any 

ambiguities in this part or the Act in 

favor of the tribe to implement Tribal 

Energy Resource Agreements as 

authorized by this part and the Act. 

§ 224.30 What definitions apply to this 

part? 

Act means the Indian Tribal Energy 

Development and Self-Determination 

Act of 2005, as promulgated in Title V 

of the Energy Policy Act of 2005, Pub. 

L. 109–58, 25 U.S.C. 3501–3504. 

Agreement means a tribal energy 

resource agreement (TERA) provided for 

by the Act and this part. 

Application means the application 

submitted for an agreement under 

subpart B. 

Business agreement means: 

(1) Any permit, contract, joint 

venture, option, or other agreement that 

furthers any activity related to locating, 

producing, transporting, or marketing 

energy resources on or across tribal 

land; 

(2) Any amendment, supplement, or 

other modification to such an 

agreement; or 

(3) Any other business agreement 

entered into or subject to administration 

under a TERA. 

Days mean calendar days. In 

computing any period prescribed or 

allowed by the Act and this part: 

(1) Do not include the day of the event 

from which the period begins to run; 

(2) Include the last day of the period, 

unless it is a Saturday, Sunday, or 

Federal holiday, in which event the 

period runs until the end of the next day 

which is not a Saturday, Sunday, or 

Federal holiday; and 

(3) When the period prescribed or 

allowed is less than 11 days, exclude 

intermediate Saturdays, Sundays, and 

Federal holidays from the computation. 

Decision Deadline means the 120-day 

period within which the Director will 

make a decision about a petition 

submitted by an interested party under 

subpart E. The Director may extend this 

period for up to 120 days. 

Department means the Department of 

the Interior. 

Director means the Director of the 

Office of Indian Energy and Economic 

Development or the Secretary’s designee 

authorized to act on behalf of the 

Secretary. 

Energy Resources means both 

renewable and nonrenewable energy 

sources, including, but not limited to, 

natural gas, oil, uranium, coal, nuclear, 

wind, solar, geothermal, biomass, and 

hydrologic resources. 

Imminent jeopardy to a physical trust 

asset means an immediate threat of 

devaluation, degradation, damage, or 

loss of a physical trust asset, as 

determined by the Secretary, caused by 

the noncompliance of a tribe with an 

agreement or applicable Federal law. 

Interested party means a person or 

entity who has filed a petition with the 

Secretary under subpart E seeking 

review of a tribe’s compliance with an 

agreement and who meets the criteria in 

§ 224.51. 

Lease means a written agreement, or 

modification to an agreement, between 

a tribe and a tenant or lessee, whereby 

the tenant or lessee is granted a right to 

possession of tribal land or energy 

resources for purposes of energy 

resource development, including: 

(1) Exploration, extraction, 

processing, refining, marketing or other 

activities that further the development 

of energy resources; and 

(2) Construction or operation of 

facilities on tribal lands used to 

generate, transmit, or distribute 

electricity or to process, transport, or 

refine energy resources. 

Petitioner means a person or entity 

who has filed a petition under subpart 

E with a tribe or the Secretary seeking 

review of a tribe’s compliance under an 

agreement. A petitioner is not 

considered to be an interested party 

unless the petitioner meets the criteria 

in § 224.51. 


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Physical trust asset means a physical 

asset held in trust by the United States 

in trust for a tribe or individual Indian 

or by a tribe or individual Indian subject 

to a restriction against alienation under 

the laws of the United States. ‘‘Physical 

trust asset’’ does not include: 

(1) Any improvements (for example, 

wells or structures) to the assets held in 

trust or restricted status; or 

(2) Monetary assets. 

Public means one or more natural or 

legal persons, and their associations, 

organizations, or groups; or Federal, 

State, tribal and local government 

agencies; or private industry and their 

associations, organizations, or groups. 

Right-of-way means an easement, 

right, or other authorization over tribal 

lands, granted or subject to 

administration under an agreement, for 

a pipeline or electric transmission or 

distribution line that serves a facility 

located on tribal land that is related to 

energy resources or an agreement to 

grant a right-of-way. 

Secretary means the Secretary of the 

Interior or the Secretary’s designee. 

Tribal Designated Official means the 

official designated in a tribe’s preapplication consultation request, 

application, or agreement to assist in 

scheduling consultations or to receive 

communications from the Secretary or 

the Director to the tribe regarding the 

status of an agreement or activities 

under an agreement. 

Tribal governing body means a tribe’s 

governing entity, such as tribal council 

or tribal business committee, as 

established under tribal or Federal law 

and recognized by the Secretary. 

Tribal land means any land or 

interests in land owned by a tribe, title 

to which is held in trust by the United 

States, or is subject to a restriction 

against alienation under the laws of the 

United States. For the purposes of this 

part, tribal land includes land taken into 

trust or subject to restrictions on 

alienation under the laws of the United 

States after the effective date of the 

agreement. 

Tribe means any Indian tribe, band, 

nation, or other organized group or 

community, which is recognized as 

eligible for the special programs and 

services provided by the United States 

to Indians because of their status as 

Indians, except a Native Corporation as 

defined in the Alaska Native Claims 

Settlement Act, 43 U.S.C. 1602. 

Violation or breach means any breach 

or violation of a lease, business 

agreement, or right-of-way or a Federal 

or tribal environmental law resulting 

from an activity undertaken under a 

lease, business agreement, or right-ofway under an agreement. 

§ 224.40 How does the Act or an 

agreement affect the Secretary’s trust 

responsibility? 

(a) The Act (25 U.S.C. 3504(e)(6)) 

preserves the Secretary’s trust 

responsibilities relating to trust 

resources and requires the Secretary to 

act in good faith and in the best interest 

of Indian tribes at all times. 

(b) Neither the Act nor this part 

absolve the Secretary of responsibilities 

to Indian tribes under the trust 

relationship, treaties, statutes, 

regulations, Executive Orders, 

agreements or other Federal law. 

(c) The Act and this part preserve the 

Secretary’s trust responsibility to ensure 

that the rights and interests of an Indian 

tribe are protected if: 

(1) Another party to a lease, business 

agreement, or right-of-way violates any 

term thereof; or any applicable Federal 

law; or 

(2) Any provision of a lease, business 

agreement, or right-of-way violates an 

agreement under which it was executed. 

(d) The United States is not liable for 

losses that may result to a tribe or to 

third parties from terms or provisions 

contained in a lease, business 

agreement, or right-of-way negotiated by 

an Indian tribe and executed under an 

agreement. 

§ 224.41 When does the Secretary require 

agreement of more than one tribe to 

approve a TERA? 

When a TERA includes leases, 

business agreements and rights-of-way 

on tribal land held for the benefit of 

more that one tribe, as part of the preapplication process each tribal 

governing body must submit a 

resolution or enactment approving the 

submission of an application. Each 

tribal governing body must also sign the 

agreement, if approved. 

224.42 How does the Paperwork 

Reduction Act affect these regulations? 

The information collected from the 

public is cleared and covered by OMB 

Control Number 1076–XXXX. The 

sections of this rule which have 

information collections are §§ 224.53, 

224.57(d), 224.61, 224.63, 224.64, 

224.65, 224.68(d), 224.76, 224.83, 

224.87, 224.108, 224.112, 224.120(a), 

224.139(b), 224.156, and 224.173. Please 

note that a Federal Agency may not 

conduct or sponsor, and you are not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

Subpart B—Procedures for Obtaining 

Tribal Energy Resource Agreements 

§ 224.50 What is the purpose of this 

subpart? 

This subpart establishes procedures 

governing: 

(a) The pre-application process; 

(b) The required content of 

applications; 

(c) Submitting applications; and 

(d) Secretarial review and processing 

of applications. 

Pre-application Consultation and the 

Form of Application 

§ 224.51 What is a pre-application 

consultation between a tribe and the 

Director? 

(a) A tribe interested in entering into 

an agreement should request a preapplication consultation by writing to 

the Director, Office of Indian Energy and 

Economic Development, Department of 

the Interior, Room 20—South Interior 

Building, 1951 Constitution Avenue, 

NW., Washington, DC 20245. The 

request should include the name and 

contact information of the tribal 

Designated Official who will coordinate 

scheduling with the Director. 

(b) Upon receiving a pre-application 

consultation request, the Director will 

contact the tribal Designated Official to 

set up a consultation meeting. The 

Director may also initiate preapplication discussions with tribal 

governing bodies. 

(c) At the pre-application consultation 

meeting, the tribe and the Director may 

discuss any of the matters related to a 

future application including, but not 

limited to: 

(1) The application process; 

(2) The potential scope of the tribe’s 

future application, including any 

regulatory or administrative activities 

that the tribe anticipates exercising; 

(3) The required content of an 

application for an agreement; 

(4) The tribe’s capacity to manage and 

regulate energy resource development 

identified in the scope of its application; 

(5) Potential opportunities for funding 

capacity-building and other activities of 

the tribe under an agreement; and 

(6) Any other matters applicable to 

this part, the Act, and the tribe. 

§ 224.52 What may a tribe and the 

Secretary include in an agreement? 

An agreement under this part: 

(a) May include development of all or 

part of a tribe’s energy resources; 

(b) Must be explicit as to the type of 

energy resource included; 

(c) May include assumption by the 

tribe of certain activities normally 

carried out by the Secretary, except for 

inherently Federal functions; and 


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(d) Must be explicit as to what 

activities related to specific energy 

resource developments the tribe 

proposes to assume. 

§ 224.53 What must an application for an 

agreement contain? 

(a) An application for an agreement 

must contain all of the following: 

(1) A proposed agreement between the 

tribe and the Secretary that contains the 

provisions required in § 224.63; 

(2) A statement that the Secretary 

recognizes the tribe as an Indian tribe 

and that the tribe has tribal land; 

(3) A brief description of the tribe’s 

form of government; 

(4) Copies of relevant portions of 

tribal documents (see paragraph (b) of 

this section); 

(5) A map, legal description, and 

general description of the tribal land 

that the tribe intends to be covered by 

an agreement; 

(6) A coverage statement meeting the 

requirements in paragraph (c) of this 

section; 

(7) A statement describing the tribe’s 

experience in negotiating and 

administering energy-related leases, 

business agreements, and rights-of-way 

issued under Federal laws other than 

the Act, including descriptions of 

significant leases, business agreements, 

and rights-of-way it has entered into 

with third parties or to which it has 

consented; 

(8) A description of the expertise that 

the tribe will use to administer the 

agreement that meets the requirements 

of paragraph (d) of this section; 

(9) A statement of the scope of 

administrative responsibility that the 

tribe intends to exercise that meets the 

requirements of paragraph (e) of this 

section; 

(10) A statement that meets the 

requirements of paragraph (f) of this 

section describing the capability of the 

tribe assume any of the activities the 

tribe has identified in the application; 

(11) A copy of the resolution or 

enactment of the tribal governing body 

or tribal governing bodies under 

§ 224.41 approving the submission of an 

application for an agreement; and 

(12) A designation of, and contact 

information for, the tribal Designated 

Official who will receive notifications 

from the Secretary or the Director 

regarding the status of the application. 

(b) The documents required by 

paragraph (a)(4) of this section include 

documents such as a constitution, code, 

ordinance, or resolution, that designates 

the tribal governing body or officials 

within the tribe that have the authority 

to enter into leases, business 

agreements, or rights-of-way on behalf 

of the tribe. 

(c) The coverage statement required 

by paragraph (a)(7) of this section must: 

(1) If applicable, state that the tribe 

retains the option of entering into 

energy-related leases or agreements 

under laws other than the Act for any 

tribal land covered by the agreement; 

and 

(2) State one of the following: 

(i) The tribe intends the agreement to 

cover all tribal land, energy resources, 

and categories of energy-related leases, 

business agreements and rights-of-way; 

or 

(ii) The tribe intends to exclude 

certain tribal land, energy resources, or 

categories of energy-related leases, 

business agreements, or rights-of-way 

from the agreement. In this case, the 

statement must include a description of 

the tribal land, energy resources, or 

energy-related leases, business 

agreements, or rights-of-way intended to 

be excluded from the agreement. 

(d) The statement required by 

paragraph (a)(8) of this section must 

describe the expertise that the tribe will 

use in the three areas specified in 

paragraph (d)(1) of this section. It must 

address at a minimum the resources 

specified in paragraph (d)(2) of this 

section. 

(1) The statement must describe the 

expertise that the tribe will use to: 

(i) Negotiate or review leases, 

business agreements, or rights-of-way 

under the agreement; 

(ii) Evaluate the environmental 

effects, including those related to 

cultural resources, of the agreement; 

(iii) Review proposals or monitor 

compliance with financial terms and 

conditions of leases, business 

agreements, or rights-of-way under the 

agreement; and 

(iv) Monitor the compliance of a third 

party with the terms of any arrangement 

covered by the agreement 

(2) The statement must address the 

following areas of the tribe’s expertise: 

(i) Existing departments or 

administrative divisions within the 

tribe; 

(ii) Proposed departments or 

administrative divisions within the 

tribe; 

(iii) Existing internal and external 

expertise possessed by the tribe, 

including a description of applicable 

tribal employees and consultants or 

advisors; and 

(iv) Proposed internal and external 

expertise that the tribe may acquire, 

including a description of anticipated 

tribal employees and consultants or 

advisors. 

(e) The statement required by 

paragraph (a)(9) of this section must 

address the amount of administrative 

responsibility related to the permitting, 

approval, or monitoring of activities to 

be undertaken under a lease, business 

agreement, or right-of-way. 

(1) If a tribe desires to exercise 

regulatory responsibilities, the tribe 

must indicate that intent and describe 

the tribe’s plan for such administration 

and management. 

(2) Examples of regulatory authority 

that a tribe may wish to exercise 

include, but are not limited to review 

and approval of applications for permits 

to drill; review of archaeological 

resources or historical or cultural 

resources; royalty accounting, 

collection, and auditing; production 

accounting; or other review and 

enforcement activities associated with 

compliance. 

(3) The tribe’s intended scope of 

administrative responsibilities may not 

include the responsibilities of the 

Federal Government under the 

Endangered Species Act or any other 

inherently Federal function. 

(f) The statement required by 

paragraph (a)(10) of this section must: 

(1) Describe the tribe’s ability to 

negotiate and consummate leases, 

business agreements, and rights-of-way; 

(2) Include a discussion of the 

estimated annual costs to the tribe to 

assume those responsibilities and the 

availability and source of revenue 

needed by the tribe to carry out those 

responsibilities; and 

(3) If the intended source of tribal 

funds includes grants or contract awards 

from the Department, the Department of 

Energy, or other Federal agencies, 

describe the estimated annual amounts 

needed and the Federal program under 

which such funds are to be requested. 

(4) Include a description of contracts 

entered into between the tribe and the 

Secretary under the Indian SelfDetermination and Education 

Assistance Act, as amended; or 

environmental programs a tribe assumes 

under the Clean Water Act (33 U.S.C. 

1251 et seq.) or the Clean Air Act (42 

U.S.C.A. 7401); or cooperative 

agreements under the Federal Oil and 

Gas Royalty Management Act (30 U.S.C. 

1701 et seq.). 

Processing Applications 

§ 224.54 How must a tribe submit an 

application? 

A tribe must submit an application 

and all supporting documents in both 

written and electronic formats to the 

Director, Office of Indian Energy and 

Economic Development, Room 20—

South Interior Building, 1951 

Constitution Avenue, NW., Washington, 

DC 20245. 


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§ 224.55 Will information a tribe submits 

during the application process be subject to 

disclosure to third parties? 

(a) Information the tribe submits 

during the application process, 

including information provided during 

pre-application consultation, may be 

subject to disclosure to third parties 

under the Freedom of Information Act 

(5 U.S.C. 552); 

(b) If information a tribe submits 

contains commercial or financial 

information that is confidential and 

proprietary, exceptions to disclosure 

under the Freedom of Information Act 

may apply to those portions of the 

information; 

(c) During the application process, a 

tribe may identify information in the 

documents it submits that it considers 

commercial or financial and also 

confidential and proprietary; 

(d) The terms of existing mineral 

agreements previously entered into 

under the Indian Mineral Development 

Act are statutorily protected under the 

Act against disclosure; and 

(e) A tribe is under no Federal 

obligation to disclose to any person or 

party the fact that it has submitted an 

application to the Secretary. 

§ 224.56 What is the effect of the Director’s 

receipt of a tribe’s complete application? 

The Director’s receipt of a tribe’s 

complete application begins a 270-day 

period during which the Secretary must 

approve or disapprove a proposed 

agreement. With the consent of the tribe, 

the Secretary may extend the period for 

a decision. 

§ 224.57 What must the Director do upon 

receipt of an application? 

(a) Upon receipt of an application, the 

Director must: 

(1) Promptly notify the tribal 

Designated Official in writing that the 

Director has received the application 

and the date of such receipt; 

(2) Within 30 days from the date of 

receipt of the application, determine 

whether the application is complete; 

(3) If the Director determines that the 

application is complete, issue a written 

notice together with a request for an 

application consultation meeting to the 

tribal Designated Official. As 

appropriate, the Director will also notify 

other Department bureaus and offices 

that the Director has received a 

complete application and provide 

copies; or 

(4) Issue a written notice to the tribal 

Designated Official that the application 

is not complete and specify the 

additional information the tribe is 

required to submit to make the 

application complete. If the Director 

determines that an application is not 

complete, the 270-day review period 

does not begin until the Director 

receives a complete application. 

(b) Unless, within the 30-day period, 

the Director notifies the tribal 

Designated Official that the application 

is not complete, the application is 

presumed complete and the 270-day 

review period under Section 

2604(e)(2)(A) of the Act will begin as of 

the date that the application was 

received. 

Application Consultation Meeting 

§ 224.58 What is an application 

consultation meeting? 

(a) An application consultation 

meeting is a meeting held at the tribe’s 

headquarters between the Director and 

the tribal governing body and any other 

representatives that the tribe may 

designate to discuss the scope of the 

application. The Secretary will 

designate representatives of appropriate 

Department offices or bureaus to attend 

the application consultation meeting, as 

necessary. The meeting will: 

(1) Be held at the earliest practicable 

time after the Director receives the 

application; 

(2) Be a thorough review of the tribe’s 

application; 

(3) Identify specific services that the 

Department would provide, consistent 

with the Secretary’s ongoing trust 

responsibilities, in the event that the 

agreement is approved; 

(4) Include a discussion of the 

relationship of the tribe to other Federal 

agencies with responsibilities for 

implementing or ensuring compliance 

with the terms and conditions of leases, 

business agreements, or rights-of-way 

and applicable Federal laws; 

(5) Include a discussion of the 

relationship of the tribe to its members, 

to State and local governments, and to 

non-Indians who may be affected by 

approval of an agreement or by leases, 

business agreements, or rights-of-way 

that may be granted or entered into by 

the tribe; 

(6) Include a discussion of the tribal 

administrative structure and financial 

and management capacities needed to 

carry out the tribe’s obligations under an 

agreement; and 

(7) Include a discussion of the form of 

the agreement and the timing and 

relative responsibilities for its 

preparation. 

(b) The tribe may record the meeting. 

§ 224.59 How may the Director use the 

results of the application consultation 

meeting? 

The Director may use the results of 

the application consultation meeting to 

assist the Secretary in evaluating the 

capacity of the tribe to: 

(a) Analyze the business and legal 

terms and the potential effect of 

proposals for leases, business 

agreements, and rights-of-way; 

(b) Monitor and enforce third party 

compliance with the terms of leases, 

business agreements, and rights-of-way; 

and 

(c) Carry out the tribe’s 

responsibilities under an agreement if 

the agreement is approved. 

§ 224.60 What will the Director provide to 

the tribe after the application consultation 

meeting? 

Within 30 days following the meeting 

with the tribe, the Director will provide 

to the tribal Designated Official a 

written report summarizing the content 

of the meeting. The report must include 

the Director’s recommendations, if any, 

for revising the proposed agreement 

submitted with the tribe’s application. 

§ 224.61 What will the tribe provide to the 

Director after receipt of the Director’s report 

on the application consultation meeting? 

If the tribe wishes to proceed with the 

application process, the tribe must 

submit a final proposed agreement to 

the Director within 45 days following 

the issuance of the Director’s report on 

the application consultation meeting. 

§ 224.62 May a final proposed agreement 

differ from the original proposed 

agreement? 

The final proposed agreement may or 

may not contain provisions that differ 

from the original proposed agreement 

submitted with the application. 

(a) If a final proposed agreement does 

not differ significantly or materially 

from the original complete application, 

the running of the 270-day period 

commenced by either the receipt of the 

original complete application or by 

operation of § 224.16(d) is not changed. 

(b) If a final proposed agreement 

differs significantly or materially from 

the original complete application, the 

Secretary may extend the 270-day 

period for a reasonable time. The 

Secretary will notify the tribe in writing 

if an extension of time is necessary. 

Agreement Requirements 

§ 224.63 What provisions must an 

agreement contain? 

An agreement must contain the 

following: 

(a) Provisions for periodic review and 

evaluation of the tribe’s performance 

under the agreement and recognizing 

the authority of the Secretary, upon a 

finding of imminent jeopardy to a 

physical trust asset, to take actions the 

Secretary determines to be necessary to 


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protect the asset, including 

reassumption under subparts F and G. 

(b) Provisions ensuring: 

(1) Appropriate evaluation of all 

significant environmental effects (as 

compared to a no-action alternative), 

including effects on cultural resources, 

arising from leases, business 

agreements, or rights-of-way, and 

measures ensuring that appropriate 

mitigation measures will be identified 

and implemented in performance of 

activities under leases, business 

agreements, or rights-of-way; 

(2) A process for informing the public 

and providing opportunity for public 

comment on the environmental impacts 

of the proposed action; 

(3) A process for providing tribal 

responses to relevant and substantive 

public comments before tribal approval 

of the lease, business agreement or rightof-way; 

(4) Sufficient tribal administrative 

support and technical capability to carry 

out the environmental review process; 

and 

(5) The tribe’s oversight of energy 

resource development activities any 

other party conducts to determine 

whether the activities comply with the 

agreement and applicable Federal 

environmental laws. 

(c) Provisions that require, with 

respect to any lease, business 

agreement, or right-of-way approved 

under an agreement, the following: 

(1) Mechanisms for obtaining 

corporate, technical, and financial 

qualifications of a third party that has 

applied to enter into a lease, business 

agreement, or right-of-way; 

(2) Express limitations on duration 

that meet the restrictions of the Act; 

(3) Mechanisms for amendment, 

transfer, and renewal; 

(4) Mechanisms for obtaining, 

reporting and evaluating economic 

return to the tribe; 

(5) Mechanisms for securing technical 

information about activities and 

ensuring that technical activities are 

performed in compliance with terms 

and conditions; 

(6) Assurances of compliance with all 

applicable environmental laws; 

(7) Requirements that the lessee, 

operator or right-of-way grantee will 

comply with all applicable 

environmental laws; 

(8) Identification of tribal offices or 

entities with authority to approve a 

lease, business agreement, or right-ofway and the activities to be undertaken 

under a lease, business agreement, or 

right-of-way; 

(9) Public notification that a lease, 

business agreement, or right-of-way has 

received final tribal approval; 

(10) A process for consultation with 

affected States regarding off-reservation 

impacts, if any, identified under (b) of 

this section; 

(11) A description of remedies for 

breach; 

(12) A statement that any provision 

that violates an express term or 

requirement of the agreement is null 

and void; 

(13) A statement that if the Secretary 

determines that any provision that 

violates an express term or requirement 

of the agreement is material, the 

Secretary may reassume or rescind the 

lease, business agreement, or right-ofway, or take any action the Secretary 

determines to be in the best interest of 

the tribe; 

(14) A statement that the lease, 

business agreement, or right-of-way goes 

into effect when the tribe delivers 

executed copies to the Director by first 

class mail return receipt requested or 

express delivery; 

(15) Citations to any applicable tribal 

laws, regulations, or procedures that 

permit persons or entities to submit 

comments on or participate in hearings 

regarding activities to be undertaken by 

a tribe under an agreement; 

(16) Citations to any applicable tribal 

laws, regulations, or procedures 

establishing remedies that petitioning 

parties must exhaust before filing a 

petition with the Secretary under 

subpart E; 

(17) Provisions that require a tribe to 

provide the Secretary with citations to 

any tribal laws, regulations, or 

procedures tribes adopt after the 

effective date of an agreement that 

establish, amend, or supplement tribal 

comment or hearing provisions or tribal 

remedies that petitioning parties must 

exhaust prior to filing a petition with 

the Secretary under subpart E; 

(18) Provisions that designate a 

person or entity authorized by the tribe 

to maintain and to disseminate to 

requesting members of the public 

current copies of tribal laws, 

regulations, or procedures that establish 

or describe tribal comment or hearing 

processes that petitioning parties must 

participate in or tribal remedies that 

petitioning parties must exhaust before 

instituting appeals under subpart E, 

together with contact information; 

(19) Identification of financial 

assistance, if any that the Secretary will 

provide to assist in implementation of 

the agreement, including the tribe’s 

environmental review of individual 

energy development activities; 

(20) Provisions that require a tribe to 

notify the Secretary and the Director in 

writing of violations or breaches; and 

(21) Provisions that require the tribe 

and the tribe’s financial experts to 

adhere to Government auditing 

standards and continuing professional 

education requirements when 

performing audits and periodic reviews 

of the audits. 

§ 224.64 How may a tribe assume 

management of development of different 

types of energy resources? 

In order for a tribe to assume 

responsibility for development of energy 

resources that are not included in the 

Agreement, a tribe must apply for a new 

agreement covering the responsibilities 

for the development of the other energy 

resources it wishes to assume. The 

Secretary’s approval of a new agreement 

will include a determination of the 

tribe’s capacity to develop that type of 

energy resource. 

§ 224.65 How may a tribe assume 

additional activities under an agreement? 

A tribe may assume additional 

activities related to the development of 

the same type of energy resource 

included in an agreement by negotiating 

an amendment to the existing agreement 

with the Secretary to include the 

additional activities. 

Public Notification and Comment 

§ 224.67 What must the Secretary do upon 

the Director’s receipt of a final proposed 

agreement? 

Within 10 days of the Director’s 

receipt of a final proposed agreement, 

the Secretary must submit a notice for 

publication in the Federal Register 

advising the public that the Secretary is 

considering a final proposed agreement 

for approval or disapproval. The notice 

will: 

(a) Contain information advising the 

public how to request and receive 

copies of the final proposed agreement 

from the Secretary; 

(b) Contain information advising the 

public how to request and receive 

copies of or participate in any National 

Environmental Policy Act (NEPA) 

reviews, as prescribed in subpart C, 

related to approval of the final proposed 

agreement; and 

(c) Invite written public comments, 

state the due date for comments, and 

state the address to which to send 

comments. 

§ 224.68 How will the Secretary use public 

comments? 

(a) The Secretary will review public 

comments and provide copies of the 

comments to the tribal Designated 

Official; 

(b) The Secretary will consider public 

comments in deciding to approve or 


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disapprove the final proposed 

agreement; 

(c) Upon mutual agreement between 

the tribe and the Secretary, the tribe 

may make changes in the final proposed 

agreement based on the comments 

received; and 

(d) If the tribe revises the final 

proposed agreement based on public 

comments, the tribal governing body 

must approve the changes, the 

authorized representative of the tribe 

must sign the final proposed agreement 

as changed, and the tribe must send the 

revised final proposed agreement to the 

Director. 

Subpart C—Approval of Tribal Energy 

Resource Agreements 

§ 224.70 Will the Secretary conduct a 

review of a final proposed agreement under 

the National Environmental Policy Act 

(NEPA)? 

Yes, the Secretary will conduct a 

review under NEPA of the potential 

impacts on the quality of the human 

environment that might arise from 

approving a final proposed agreement. 

The scope of the Secretary’s evaluation 

will be limited to the scope of the 

activities and the energy resource 

developments the tribe is proposing to 

undertake as specified by the provisions 

of the agreement. The public comment 

period, if any, under the NEPA review 

will occur concurrently with the public 

comment period for an agreement under 

§ 224.67. 

§ 224.71 What standards will the Secretary 

use to decide to approve a final proposed 

agreement? 

The Secretary will consider the best 

interests of the tribe and the Federal 

policy of promoting tribal selfdetermination in deciding to approve a 

final proposed agreement. The Secretary 

must approve a final proposed 

agreement if it contains the provisions 

required by the Act and this part and 

the Secretary determines that the tribe 

has demonstrated sufficient capacity to: 

(a) Make prudent decisions in 

negotiating, approving or disapproving 

proposals for leases, business 

agreements, or rights-of-way affecting 

tribal land; and 

(b) Monitor and regulate activities 

undertaken by third parties under 

approved leases, business agreement, or 

rights-of-way in accordance with the 

final proposed agreement. 

§ 224.72 How will the Secretary determine 

whether a tribe has demonstrated sufficient 

capacity? 

The Secretary will determine whether 

a tribe has demonstrated sufficient 

capacity under § 224.71 based on the 

information obtained through the 

application process. The Secretary will 

consider: 

(a) The specific energy resource 

development the tribe proposes; 

(b) The scope of the administrative or 

regulatory authority the tribe seeks to 

assume; 

(c) Materials and information 

submitted with the application for an 

agreement, the results of meetings 

between the tribe and representatives of 

the Department, and the Director’s 

written report; 

(d) The history of the tribe’s role in 

energy resource development, including 

pre-existing energy-related leases, 

business agreements, and rights-of-way; 

(e) The administrative expertise of the 

tribe available to regulate energy 

resource development within the scope 

of the final proposed agreement or the 

tribe’s plans for establishing that 

expertise; 

(f) The financial capacity of the tribe 

to maintain or procure the technical 

expertise needed to evaluate proposals 

and to monitor anticipated activities in 

a prudent manner; 

(g) The tribe’s past performance 

administering contracts and grants 

associated with self-determination 

programs, cooperative agreements with 

Federal and State agencies, and 

environmental programs administered 

by the Environmental Protection 

Agency; and 

(h) Any other factors the Secretary 

finds to be relevant in light of the scope 

of the proposed agreement. 

§ 224.73 How will the scope of energy 

resource development proposed in a tribe’s 

agreement affect the Secretary’s 

determination of the tribe’s capacity? 

The Secretary’s review under § 224.72 

of the tribe’s capacity to manage and 

regulate energy resource development 

under the agreement will include a 

determination as to each energy 

resource development subject to the 

agreement, and each activity the tribe 

proposes to assume. The Secretary’s 

review of an agreement must be limited 

to activities specified by the provisions 

of the agreement. 

§ 224.74 When must the Secretary approve 

or disapprove a final proposed agreement? 

The Secretary must approve or 

disapprove a final proposed agreement 

or a revised final proposed agreement 

within 270 days of the Director’s receipt 

of a complete application for an 

agreement. With the consent of the tribe, 

or as provided in § 224.16, the Secretary 

may extend the period for a decision. 

§ 224.75 What must the Secretary do upon 

approval or disapproval of a final proposed 

agreement? 

Within 10 days of the Secretary’s 

approval or disapproval of a final 

proposed agreement, the Secretary must 

notify the tribal governing body in 

writing; 

(a) If the Secretary’s decision is to 

approve the final proposed agreement, 

the Secretary will sign the agreement, 

which will be effective on the date of 

the Secretary’s signature, and return the 

signed agreement to the tribal governing 

body. 

(b) If the Secretary’s decision is to 

disapprove the final proposed 

agreement, the Secretary’s notice of 

disapproval must include: 

(1) The basis of the disapproval; 

(2) The revisions needed, if any, to 

meet the Secretary’s concerns; and 

(3) A statement that the decision is a 

final agency action and is subject to 

judicial review. 

(c) If the Secretary approves the final 

proposed agreement, the Secretary will 

maintain a copy of the agreement and 

any subsequent amendments or 

supplements to the agreement, and 

provide copies to persons or entities 

upon request under the Freedom of 

Information Act (5 U.S.C. 552). 

§ 224.76 Upon notification of disapproval, 

may a tribe re-submit a revised final 

proposed agreement? 

Yes, within 45 days of receipt of the 

notice of disapproval, or a later date as 

the Secretary and the tribe agree to in 

writing, the tribe may re-submit a 

revised final proposed agreement, 

approved by the tribal governing body 

and signed by the tribe’s authorized 

representative, to the Director that 

addresses the Secretary’s concerns. 

Unless the Secretary and the tribe 

otherwise agree, the Secretary must 

approve or disapprove the revised final 

proposed agreement within 60 days of 

the Director’s receipt of the revised final 

proposed agreement. Within 10 days of 

the Secretary’s approval or disapproval 

of a revised final proposed agreement, 

the Secretary must notify the tribal 

governing body in writing; 

(a) If the Secretary’s decision is to 

approve the revised final proposed 

agreement, the Secretary will sign the 

agreement, which will be effective on 

the date of the Secretary’s signature, and 

return the signed agreement to the tribal 

governing body. 

(b) If the Secretary’s decision is to 

disapprove the revised final proposed 

agreement, the Secretary’s notice of 

disapproval must include: 

(1) The reasons for the disapproval; 

and 


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(2) A statement that the decision is a 

final agency action and is subject to 

judicial review. 

§ 224.77 Who may appeal the Secretary’s 

decision on a final proposed agreement or 

a revised final proposed agreement? 

Only a tribe applying for an 

agreement may appeal the Secretary’s 

decision to disapprove a final proposed 

agreement or a revised final proposed 

agreement in accordance with the 

appeal procedures contained in subpart 

I of this part. No other person or entity 

may appeal the Secretary’s decision. 

The Secretary’s decision to approve a 

final proposed agreement or a revised 

final proposed agreement is a final 

agency action. 

Subpart D—Implementation of Tribal 

Energy Resource Agreements 

Applicable Authorities and 

Responsibilities 

§ 224.80 Under what authority will a tribe 

perform activities for energy resource 

development undertaken under an 

agreement? 

A tribe will perform activities for 

energy resource development activities 

undertaken under an agreement under 

the authorities provided in the approved 

agreement. Notwithstanding anything in 

this part or an approved agreement to 

the contrary, a tribe will retain all 

sovereign and other powers it otherwise 

possesses. 

§ 224.81 What laws are applicable to 

activities under an agreement? 

Federal and tribal laws apply to 

activities under an agreement, unless 

otherwise specified in the agreement. 

§ 224.82 What services will the Department 

provide to a tribe after approval of an 

agreement? 

After approval of an agreement, the 

services the Department will provide to 

a tribe include: 

(a) Access to title status information 

and support services needed by a tribe 

in the course of evaluating proposals for 

leases, business agreements, or Rights-of 

Way; 

(b) Coordination between the tribe 

and the Department for ongoing 

maintenance of accurate real property 

records; 

(c) Access to technical support 

services within the Department to assist 

the tribe in evaluating the physical, 

economic, financial, cultural, social, 

environmental, and legal consequences 

of approving proposals for leases, 

business agreements, or rights-of-way 

under an agreement; 

(d) Assistance to ensure that 

violations of the terms of leases, 

business agreements, or rights-of-way 

and applicable provisions of Federal 

law by third parties are handled 

appropriately; and 

(e) Any other Department activities 

that the agreement does not affect. 

§ 224.83 What are the responsibilities of a 

tribe following execution of leases, 

business agreements, and rights-of-way 

under an agreement? 

Following execution of leases, 

business agreements, and rights-of-way 

under an agreement, a tribe must: 

(a) Inform the public of approval of a 

lease, business agreement, or right-ofway under the agreement; 

(b) Send a copy of the executed lease, 

business agreement, or right-of-way, or 

amendments, to the Director within one 

business day of execution. The copy 

must be sent by certified mail return 

receipt requested or by overnight 

delivery; and 

(c) Provide, to the Director, sufficient 

information and documentation of 

payments made directly to the tribe to 

enable the Secretary to discharge the 

trust responsibility of the United States 

to enforce the terms of, and the rights of 

the tribe, under a lease, business 

agreement, or right-of-way. 

Leases, Business Agreements, and 

Rights-of-Way Under an Agreement 

§ 224.84 When may a tribe grant a right-ofway under an agreement? 

A tribe may grant a right-of-way under 

an agreement if the grant of right-of-way 

is over tribal land for a pipeline or an 

electric transmission or distribution line 

if the pipeline or electric transmission 

or distribution line serves. 

(a) An electric generation, 

transmission, or distribution facility 

located on tribal land; or 

(b) A facility located on tribal land 

that processes or refines energy 

resources developed on tribal land. 

§ 224.85 When may a tribe enter into a 

lease or business agreement under an 

agreement? 

A tribe may enter into a lease or 

business agreement for the purpose of 

energy resource development on tribal 

land for: 

(a) Exploration for, extraction of, 

processing of, or other development of 

the tribe’s energy resources; 

(b) Construction or operation of an 

electric generation, transmission, or 

distribution facility located on tribal; 

and 

(c) A facility to process or refine 

energy resources developed on tribal 

land. 

§ 224.86 Are there limits for terms of 

leases, business agreements, and rights-ofway entered into under an agreement? 

Yes. There are limits for terms of 

leases, business agreements, and rightsof-way as follows: 

(a) For leases and business 

agreements, except as provided in 

paragraph (b) of this section, terms are 

limited to 30 years; 

(b) For leases for production of oil 

resources and gas resources, or both, 

terms are limited to 10 years and as long 

after as oil or gas production continues 

in paying quantities; and 

(c) For rights-of-way, terms are 

limited to 30 years. 

Violation or Breach 

§ 224.87 What are the responsibilities of a 

tribe if it discovers a violation or breach? 

As soon as practicable after 

discovering or receiving notice of a 

Violation or Breach of a lease, business 

agreement, or right-of-way or a Federal 

or tribal environmental law resulting 

from an activity undertaken under a 

lease, business agreement, or right-ofway, the tribe must provide written 

notice to the Director describing: 

(a) The nature of the Violation or 

Breach in reasonable detail; 

(b) The corrective action taken or 

planned by the tribe; and 

(c) The proposed period for the 

corrective action to be completed. 

§ 224.88 What are the responsibilities of 

the Director after receiving notice of a 

violation or breach from the tribe? 

After receiving notice of a violation or 

breach from the tribe, the Director will 

review the notice and: 

(a) If the Director determines that a 

violation or breach does not cause 

imminent jeopardy to a physical trust 

asset, the Director will review, for 

concurrence or disapproval, the 

corrective action to be taken by the tribe 

and the proposed period for completion 

of the corrective action. 

(b) If the Director determines that a 

violation or breach causes imminent 

jeopardy to a physical trust asset, the 

Director will proceed under the 

imminent jeopardy provisions of 

subpart F. 

(c) Before making a determination 

whether a violation or breach will or 

will not cause imminent jeopardy to a 

physical trust asset, the Director may, as 

appropriate: 

(1) Conduct an on-site inspection; and 

(2) Review relevant transactions and 

reports. 


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§ 224.89 What procedures will the 

Secretary use to enforce leases, business 

agreements, or rights-of-way entered into 

under an agreement? 

When appropriate, the Secretary will 

use the notification and enforcement 

procedures established in 25 CFR parts 

162, 211 and 225 to ensure compliance 

with leases and business agreements. 

When appropriate, the Secretary will 

use the notification and enforcement 

procedures of 25 CFR part 169 to ensure 

compliance with rights-of-way. All 

enforcement remedies established in 25 

CFR parts 162, 211, 225, and 169 are 

available to the Secretary. The Secretary 

and a tribe will consult with each other 

regarding enforcement of and Secretarial 

assistance needed to enforce leases, 

business agreements, or rights-of-way. 

Subpart E—Interested Party Petitions 

§ 224.100 May a person or entity ask the 

Secretary to review a tribe’s compliance 

with an agreement? 

In accordance with this subpart, a 

person or entity that is an interested 

party may submit a petition to review a 

tribe’s compliance with an agreement to 

the Secretary. However, before filing a 

petition with the Secretary, a person or 

entity that is an interested party must 

first exhaust tribal remedies, if a tribe 

has provided for tribal remedies. If a 

tribe has not provided for tribal 

remedies, the person or entity that is an 

interested party may file a petition 

directly with the Secretary. 

§ 224.101 Who is an interested party? 

An interested party is a person or an 

entity that has demonstrated that an 

interest of the person or entity has 

sustained, or will sustain, an adverse 

environmental impact because of a 

tribe’s failure to comply with an 

agreement. 

§ 224.102 Must a tribe establish a 

comment or hearing process under an 

agreement for addressing environmental 

concerns? 

Yes. The Act (25 U.S.C. 

3504(e)(2)(C)(iii)(I), (II) and 25 U.S.C. 

3504(e)(2)(B)(iii)(X)) and this subpart 

require that a tribe must establish an 

environmental review process under an 

agreement that: 

(a) Ensures that the public is notified 

about and has an opportunity to 

comment on the environmental impacts 

of proposed tribal action to be taken 

under an agreement; 

(b) Requires that a tribe respond to 

relevant and substantive comments 

about the environmental impacts of a 

proposed tribal action before a tribe 

approves a lease, business agreement, or 

right-of-way; and 

(c) Establishes a process for 

consultation with any affected States 

regarding off-reservation environmental 

impacts, if any, resulting from approval 

of a lease, business agreement, or rightof-way. 

§ 224.103 Must a tribe establish a process 

for public participation regarding an 

agreement or activities undertaken under 

an agreement? 

No. Except for the environmental 

review process required by the Act and 

§ 224.63(b)(i), a tribe is not required to 

establish a process for public 

participation, including taking 

comments or holding hearings, 

regarding an agreement or activities 

undertaken under an agreement. 

However, a tribe may elect to establish 

procedures that permit persons or 

entities to participate in public hearings 

or that expand the scope of matters 

about which the public may comment. 

§ 224.104 Must a tribe enact tribal laws, 

regulations, or procedures permitting 

persons or entities to allege a tribe’s 

noncompliance with an agreement? 

No. A tribe is not required to enact 

tribal laws, regulations, or procedures 

permitting persons or entities to allege 

that a tribe does not comply with its 

agreement. However, a tribe may elect to 

enact laws, regulations, or procedures 

permitting persons or entities to allege 

that a tribe does not comply with its 

agreement. 

§ 224.105 How may a person or entity 

obtain copies of tribal laws, regulations, or 

procedures that establish hearing or 

comment processes or that permit 

allegations of a tribe’s noncompliance with 

its agreement? 

A person or entity may obtain copies 

of tribal laws, regulations, or procedures 

that establish a hearing or comment 

process or that permit allegations of a 

tribe’s noncompliance under its 

agreement by requesting such 

information from the tribe under 

procedures established in the 

agreement. Under § 224.63 the 

agreement must: 

(a) Cite applicable tribal laws, 

regulations, or procedures in place at 

the time the agreement is approved that 

establish tribal hearing or comment 

procedures regarding an agreement or 

activities undertaken under an 

agreement; 

(b) Cite applicable tribal laws, 

regulations, or procedures in place at 

the time the agreement is approved 

permitting allegations of a tribe’s 

noncompliance with its agreement; 

(c) Describe how, when, and under 

what conditions copies of current 

applicable tribal laws, regulations, or 

procedures or amendments may be 

obtained from the tribe; and 

(d) Require a tribe to supply the 

Secretary with citations to amendments 

and supplements to applicable laws, 

regulations, or procedures that the tribe 

adopts after the effective date of an 

agreement related to tribal hearing or 

comment processes or to establishment 

of tribal remedies for challenging tribal 

action or inaction under an agreement, 

which citations the Secretary will 

append to the agreement. 

§ 224.106 If a tribe has enacted tribal laws, 

regulations, or procedures for challenging 

tribal action under an agreement, how must 

the tribe respond to a petitioner’s 

challenge? 

If a tribe has enacted tribal laws, 

regulations, or procedures under which 

a petitioner may file a petition alleging 

noncompliance with an agreement, the 

tribe must: 

(a) Within a reasonable time issue a 

written decision under the tribal laws, 

regulations, or procedures that 

addresses the allegation , which 

decision may include a determination of 

whether the petitioner is an interested 

party; and 

(b) Provide a copy of its written 

decision to the petitioner. 

§ 224.107 What must a petitioner claim or 

request in a petition filed with the 

Secretary? 

In a petition filed with the Secretary, 

a petitioner must: 

(a) Claim that the tribe, through its 

action or inaction: 

(1) Has failed to comply with terms or 

provisions of an agreement; and 

(2) That, because of the tribe’s 

noncompliance, the petitioner’s interest 

has sustained or will sustain an adverse 

environmental impact; 

(b) Request that the Secretary review 

the matters described in the petition; 

and 

(c) Request that the Secretary take 

action necessary to bring a tribe into 

compliance with the agreement. 

§ 224.108 What must a petition contain? 

A petition must contain: 

(a) The name and contact information 

of the petitioner; 

(b) Specific facts demonstrating that 

the petitioner is an interested party 

under § 224.101; 

(c) Specific facts demonstrating that 

the petitioner participated in a tribal 

hearing or comment process regarding 

the tribal action to which the petitioner 

objects, if a hearing or comment process 

was available; 

(d) Specific facts demonstrating that 

the petitioner exhausted tribal remedies, 

if tribal laws, regulations, or procedures 


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permitted the petitioner to allege tribal 

noncompliance with an agreement to 

which the petitioner objects and that the 

petitioner followed to completion the 

procedures accorded by those tribal 

laws, regulations, or procedures; 

(e) A description of the petitioner’s 

allegation of noncompliance with an 

agreement; 

(f) A description of the adverse 

environmental impact that the 

petitioner’s interest has sustained or 

will sustain because of the tribe’s 

noncompliance with the agreement; 

(g) A copy of any written decisions 

the tribe issued responding to the 

petitioner’s allegation; 

(h) If applicable, a statement that the 

tribe has issued no written decision 

within a reasonable time related to an 

allegation a petitioner has filed with the 

tribe under applicable tribal laws, 

regulations, or procedures; 

(i) A description of the action the 

Secretary may take under § 224.120 to 

bring the tribe into compliance with the 

agreement; and 

(j) Any other information relevant to 

the petition. 

§ 224.109 What must a petitioner do before 

filing a petition with the Secretary? 

Before a petitioner may file a petition 

with the Secretary under this subpart, 

the petitioner must have: 

(a) Participated in the tribal process, 

if the tribe has laws, regulations, or 

procedures that provided the petitioner 

an opportunity to participate in a tribal 

hearing or comment process regarding 

allegations of tribal noncompliance; and 

(b) Pursued to completion procedures 

accorded by those tribal laws, 

regulations, or procedures. 

§ 224.110 When may a petitioner file a 

petition with the Secretary? 

A petitioner may file a petition with 

the Secretary by delivering the petition 

to the Director: 

(a) Within 45 days of receipt of the 

tribe’s written decision addressing the 

allegation of noncompliance under 

applicable tribal laws, regulations, or 

procedures. 

(b) If the tribe fails within a 

reasonable period to issue a written 

decision to an allegation of 

noncompliance with an agreement a 

petitioner brings under applicable tribal 

laws, regulations, or procedures, the 

Secretary will deem the allegation as 

having been denied. The Secretary will 

determine if the petitioner has filed the 

petition within a reasonable period 

following the constructive denial in 

light of the applicable facts and 

circumstances. 

(c) A petitioner may file a petition 

directly with the Secretary, if the tribe 

has no tribal laws, regulations or 

procedures that provided the petitioner 

an opportunity to allege tribal 

noncompliance with an Agreement. 

§ 224.111 What must the Director do upon 

receipt of a petition? 

Within 20 days after receipt of a 

petition, the Director must: 

(a) Notify the tribe in writing that the 

Director has received a petition; 

(b) Provide a copy of the complete 

petition to the tribe; 

(c) Initiate a petition consultation 

with the tribe that will address the 

petitioner’s allegation of a tribe’s 

noncompliance with an agreement and 

alternatives to resolve the 

noncompliance; and 

(d) Notify the tribe in writing when 

the petition consultation is complete. 

§ 224.112 What may a tribe do after it 

completes petition consultation with the 

Director? 

Within 45 days of the date of the 

Director’s notice that the tribal petition 

consultation is complete, the tribe may 

respond to the petition by submitting a 

written response to the Director and the 

petitioner. If the tribe fails to submit a 

written response to the petition within 

those 45 days, the tribe will not be 

permitted to submit any additional 

information to the Director addressing 

the petition. 

§ 224.113 How may the tribe address a 

petition in its written response? 

In its written response, the tribe may 

or may not dispute the petitioner’s 

claims. 

(a) If the tribe disputes the petitioner’s 

claims of tribal noncompliance with an 

agreement, in its written response, the 

tribe must describe why it disputes the 

petitioner’s claims of noncompliance, 

including the tribe’s interpretation of 

relevant provisions of the agreement 

and other legal requirements; 

(b) Whether or not the tribe disputes 

the petitioner’s claims of tribal 

noncompliance with an agreement, in 

its written response, the tribe may: 

(1) Discuss whether the petitioner is 

an interested party; 

(2) State whether the petitioner 

participated in a hearing or comment 

process that was available with respect 

to the allegation of the tribe’s 

noncompliance with an agreement that 

is the subject of the petition; 

(3) State whether the petitioner has 

exhausted tribal remedies; 

(4) Identify the steps, if any, the tribe 

will take to comply with the agreement 

and state when the steps will be taken; 

or 

(5) Offer a resolution of the 

petitioner’s claim of the adverse 

environmental impact the petitioner’s 

interest has sustained or will sustain 

because of the tribe’s noncompliance 

with an agreement. 

§ 224.114 What will the Director do if the 

tribe offers a resolution of a petitioner’s 

claim in which the petitioner concurs? 

If the tribe submits a proposed 

resolution and a written statement 

signed by the petitioner that shows the 

petitioner concurs with the tribe’s 

proposed resolution of the claim of 

adverse environmental impact to the 

petitioner’s interest, the Director may 

accept the resolution, dismiss the 

petition, and notify the parties of the 

petition’s dismissal. 

§ 224.115 When must the Director make 

threshold determinations about a petition? 

The Director must make threshold 

determinations about a petition if: 

(a) The tribe does not submit a timely 

written response to a petition to the 

Director and the petitioner; 

(b) The tribe’s written response does 

not include a proposed resolution in 

which the petitioner concurs; or 

(c) The Director did not accept the 

tribe’s proposed resolution in which the 

petitioner agreed. 

§ 224.116 What must the Director consider 

in making threshold determinations about a 

petition? 

The Director must consider the 

information contained in the petition 

and the information submitted in the 

tribe’s written response, if applicable, 

and determine as threshold matters 

whether: 

(a) The petitioner is an interested 

party because; 

(1) An interest of the petitioner has 

sustained or will sustain an adverse 

environmental impact; and 

(2) The adverse environmental impact 

was the result of the failure of the tribe 

to comply with an agreement. 

(b) The petitioner participated in a 

tribal hearing or comment process under 

tribal laws, regulations, or procedures 

that were available with respect to the 

allegation of the tribe’s noncompliance 

with an agreement that is the subject of 

the petition. 

(c) The petitioner exhausted tribal 

remedies under § 224.109. 

§ 224.117 When must the Director dismiss 

a petition after making the threshold 

determinations about a petition? 

After considering threshold 

determinations under § 224.116, the 

Director must dismiss the petition if the 

Director determines that: 

(a) The petitioner is not an interested 

party; 

(b) The petitioner failed to participate 

under tribal laws, regulations, or 


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procedures in a tribal hearing or 

comment process that was available 

with respect to the allegation of the 

tribe’s noncompliance with an 

agreement that is the subject of the 

petition, unless failure to participate 

was a result of the tribe’s failure to 

provide the petitioner with notice of the 

tribal hearing or comment process 

following the petitioner’s timely request 

for information; or 

(c) The petitioner failed to exhaust 

tribal remedies before submitting the 

petition, unless the failure to exhaust 

tribal remedies was because the tribe 

did not: 

(1) Issue a written decision within a 

reasonable time under tribal laws, 

regulations, or procedures that 

permitted an allegation of a tribe’s 

noncompliance with an agreement that 

is the subject of the petition; or 

(2) Appropriately respond to the 

petitioner’s timely request for copies of 

current applicable tribal laws, 

regulations, or procedures; permitting 

an allegation of a tribe’s noncompliance 

with an agreement. 

§ 224.118 How must the Director proceed 

if the Director dismisses a petition based on 

consideration of threshold determinations? 

If the Director dismisses a petition 

based on consideration of threshold 

determinations, the Director must: 

(a) Issue a written decision of 

dismissal that states the basis for the 

decision and includes finding of fact 

and conclusions of law; and 

(b) Provide a copy of the written 

decision of dismissal to the petitioner 

and the tribe, including a notification of 

the petitioner’s right to appeal the 

dismissal to the Deputy Assistant 

Secretary—Policy and Economic 

Development under subpart I. 

§ 224.119 How must the Director proceed 

if the Director does not dismiss the petition 

based on threshold determinations? 

If the Director does not dismiss the 

petition under § 224.117, the Director 

must: 

(a) Evaluate the petition and 

determine whether the petition states a 

claim that: 

(1) The tribe failed to comply with 

one or more terms or provisions of an 

agreement; and 

(2) The Secretary’s action is necessary 

to cure or otherwise resolve each claim 

of adverse environmental impact. 

(b) If the Director determines that the 

petition fails to state a claim, the 

Director must: 

(1) Issue a written decision of 

dismissal setting forth the basis for the 

decision; 

(2) Provide a copy of the written 

decision of dismissal to the petitioner 

and the tribe; and 

(3) Notify the tribe and the petitioner 

of the petitioner’s right to appeal the 

dismissal to the Deputy Assistant 

Secretary—Policy and Economic 

Development under subpart I. 

§ 224.120 How must the Director proceed 

with a petition if it meets the threshold 

determinations? 

If the Director determines a petition 

meets the threshold determinations of 

§ 224.116, the Director must: 

(a) Issue a written notice to the tribe 

which states that the Director has 

accepted the petition and that the tribe 

must provide a written response within 

30 days of receipt of the written notice 

or provide a written statement that the 

tribe is declining to provide a written 

response; 

(b) Review and analyze the claims 

alleged in the petition and the tribe’s 

response, if any, to determine what 

action the tribe or the Secretary must 

take to prevent, diminish, eliminate, or 

reverse the adverse environmental 

impact alleged in the petition; 

(c) Review and analyze the claims 

alleged in the petition and the tribe’s 

response to determine what action the 

tribe or the Secretary must take to cure 

the alleged violation of the agreement; 

(d) Review and analyze the tribe’s 

proposed resolution, if any, to 

determine whether that proposal will 

resolve the alleged adverse 

environmental impact; 

(e) Accept or reject the tribe’s 

proposed resolution; 

(f) Issue a written decision to the 

petitioner and the tribe that states the 

basis for the Director’s decision 

including: 

(1) Findings of fact and conclusions of 

law; and 

(2) A statement that either party, the 

petitioner or the tribe, has the right to 

appeal the Director’s decision to the 

Deputy Assistant Secretary—Policy and 

Economic Development under subpart I; 

and 

(g) Issue a notice informing the tribe 

as to what action the Director has 

determined the tribe must take to cure 

the violation of the agreement, if any, or 

whether the Director has determined 

that the Secretary must take specified 

actions to cure the violation of the 

agreement, which may include 

reassumption under subpart G. 

§ 224.121 What action must the Director 

take to bring a tribe into compliance with an 

agreement? 

Upon review of a petition, if the 

Director determines, that a tribe does 

not comply with an agreement, the 

Director must take action that the 

Director determines to be necessary to 

ensure compliance with the agreement, 

including: 

(a) Temporarily suspending any 

activity under a lease, business 

agreement, or right-of-way until the 

tribe complies with the agreement; 

(b) Rescinding approval of all or part 

of the agreement, or 

(c) Recommending that the Secretary 

reassume activities under subpart G. 

§ 224.122 When must the Director act on a 

petition? 

(a) Within 120 days of the Director’s 

receipt of a petition, the Director must 

act on the petition. The Director may: 

(1) Dismiss the petition; 

(2) Grant the petition; or 

(3) Take other action on the petition 

under this subpart. 

(b) The Director may extend the time 

for acting on a petition up to 120 days 

in any case in which the Director 

determines that additional time is 

necessary to evaluate the allegations of 

the petition and the tribe’s written 

response, if any. If the Director decides 

to extend the time, the Director must 

notify the petitioner and the tribe in 

writing of a determination and 

extension before expiration of the initial 

120-day period. 

§ 224.123 How may a tribe or a petitioner 

appeal the Director’s disposition of a 

petition? 

Either a tribe or a petitioner may 

appeal the Director’s decision 

dismissing, granting, or otherwise 

disposing of the petition under this 

subpart to the Deputy Assistant 

Secretary—Policy and Economic 

Development. 

Subpart F—Periodic Reviews 

§ 224.130 What is the purpose of this 

subpart? 

This subpart describes how the 

Secretary and a tribe will develop and 

perform the periodic review and 

evaluation process required by the Act 

and by an agreement, when the 

Secretary may conduct other reviews 

and evaluations, and how the Secretary 

will determine and remedy 

noncompliance with an agreement and 

imminent jeopardy to a physical trust 

asset. 

§ 224.131 What is a periodic review and 

evaluation? 

A periodic review and evaluation is 

an examination the Director performs to 

monitor a tribe’s performance of 

activities associated with the 

development of energy resources and to 


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review compliance with an agreement. 

During the agreement consultation, a 

tribe and the Director will develop a 

periodic review and evaluation process 

that addresses the tribe’s specific 

circumstances and the terms and 

conditions of the tribe’s agreement. The 

tribe will include the agreed upon 

review and evaluation process in its 

final proposed agreement. 

§ 224.132 How does the Director conduct a 

periodic review and evaluation? 

(a) The Director will conduct a 

periodic review and evaluation under 

the agreement, in consultation with the 

tribe, and in cooperation with other 

Department bureaus and offices whose 

activities were assumed by the tribe. 

(b) The Director will communicate 

with the tribal Designated Official 

throughout the process established by 

this section. 

(c) During the periodic review and 

evaluation, the Director will: 

(1) Review transactions and reports 

prepared under the agreement; 

(2) Conduct on-site inspections as 

appropriate; and 

(3) Review compliance with statutes 

and regulations applicable to activities 

undertaken under the agreement. 

(d) Review the effect on physical trust 

assets resulting from activities 

undertaken under an agreement. 

(e) Upon written request, the tribe 

must provide the Director with records 

and documents relevant to the 

provisions of an agreement. 

§ 224.133 What must the Director do after 

a periodic review and evaluation? 

After a periodic review and 

evaluation, the Director must prepare a 

written report of the results of the 

periodic review and evaluation and 

send the report to the tribe. 

§ 224.134 How often must the Director 

conduct a periodic review and evaluation? 

The Director must conduct a periodic 

review and evaluation annually during 

the first 3 years of an agreement. After 

the third annual review and evaluation, 

the Secretary and the tribe may 

mutually agree that periodic reviews 

and evaluations will be conducted once 

every 2 years. 

§ 224.135 Under what circumstances may 

the Director conduct additional reviews and 

evaluations? 

The Director may conduct additional 

reviews and evaluations: 

(a) At a tribe’s request; 

(b) As part of an investigation 

undertaken under a notice of Violation 

or Breach a tribe submits to the Director; 

(c) As part of an investigation 

undertaken under a petition submitted 

under subpart E; or 

(d) As follow-up to a determination of 

harm or the potential for harm to a 

physical trust asset previously 

identified in a periodic review and 

evaluation. 

Noncompliance 

§ 224.136 How will the Director’s written 

report address a tribe’s noncompliance with 

Federal law or the terms of an agreement? 

If the Director concludes, as a part of 

any review and evaluation or 

investigation of a notice of violation or 

breach, that the tribe has not complied 

with Federal law or the terms of an 

agreement, the Director’s report must 

include a determination of whether the 

tribe’s noncompliance has resulted in 

harm or the potential for harm to a 

physical trust asset. If the Director 

determines that the tribe’s 

noncompliance has harmed or may 

harm a physical trust asset, the Director 

must also determine whether the 

noncompliance poses imminent 

jeopardy to a physical trust asset. 

§ 224.137 What must the Director do if a 

tribe’s noncompliance has resulted in harm 

or the potential for harm to a physical trust 

asset? 

If, because of the tribe’s 

noncompliance with Federal law or the 

terms of an agreement, the Director 

determines that there is harm or the 

potential for harm to a physical trust 

asset that does not rise to the level of 

imminent jeopardy to a physical trust 

asset, the Director must: 

(a) Document the issue in the written 

report of the review and evaluation; 

(b) Report the issue in writing to the 

tribal governing body; 

(c) Report the issue in writing to the 

Assistant Secretary—Indian Affairs; and 

(d) Determine what action, if any, the 

Secretary must take to protect the 

physical trust asset. 

§ 224.138 What must the Director do if a 

tribe’s noncompliance has caused 

imminent jeopardy to a physical trust 

asset? 

If the Director determines that a 

tribe’s noncompliance with Federal law 

or the terms of an agreement has caused 

imminent jeopardy to a physical trust 

asset, the Director must: 

(a) Document the issue in the written 

report of the review and evaluation; and 

(b) Immediately notify the tribe by a 

telephone call to the tribal Designated 

official followed by a written notice by 

facsimile to the tribal Designated official 

and the tribal governing body of the 

imminent jeopardy to a physical trust 

asset which notice must contain: 

(1) A description of the tribe’s 

noncompliance with Federal law or the 

terms of the agreement; 

(2) A description of the physical trust 

asset and the nature of the imminent 

jeopardy to a physical trust asset 

resulting from the tribe’s 

noncompliance; and 

(3) An order to the tribe to cease 

specific conduct or take specific action 

deemed necessary by the Director to 

correct any condition that caused the 

imminent jeopardy to a physical trust 

asset. 

§ 224.139 What must a tribe do after 

receiving a notice of imminent jeopardy to 

a physical trust asset? 

(a) Upon receipt of the notice of 

imminent jeopardy to a physical trust 

asset, the tribe must cease specific 

conduct or take specific action ordered 

by the Director as necessary to correct 

any condition causing imminent 

jeopardy to a physical trust asset; and 

(b) Within 5 days of receipt of a notice 

of imminent jeopardy to a physical trust 

asset the tribe must submit a written 

response to the Director that: 

(1) Responds to the Secretary’s 

finding that the tribe has failed to 

comply with applicable Federal law or 

the terms of the agreement; 

(2) Responds to the Secretary’s 

finding of imminent jeopardy to a 

physical trust asset; 

(3) Describes the status of the tribe’s 

cessation of specific conduct or specific 

action the tribe has taken to correct any 

condition causing imminent jeopardy to 

a physical trust asset; and 

(4) Describes what further actions, if 

any, the tribe proposes to take to correct 

any condition causing imminent 

jeopardy to a physical trust asset. 

§ 224.140 What must the Secretary do if 

the tribe fails to respond to or does not 

comply with the Director’s order? 

If the tribe does not respond to or 

does not comply with the Director’s 

order under § 224.138(b)(iii), the 

Secretary may take any actions the 

Secretary deems appropriate to protect 

the physical trust asset and will 

immediately reassume all activities the 

tribe assumed under the agreement. The 

procedures in subpart G do not apply to 

reassumption under this section. 

§ 224.141 What must the Secretary do if 

the tribe responds to the Director’s order? 

(a) If the tribe responds in a timely 

manner to the Director’s order under 

§ 224.138, the Secretary must: 

(1) Consider the tribe’s response; 

(2) Determine whether or not the tribe 

has complied with the agreement and 

Federal law; and 

(3) If the Secretary determines, after 

reviewing the tribe’s response, that the 

tribe has not complied with the 

agreement or with Federal law, the 


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Secretary will determine whether the 

noncompliance caused imminent 

jeopardy to a physical trust asset. 

(b) If the Secretary determines that the 

tribe’s noncompliance has caused 

imminent jeopardy to a physical trust 

asset, the Secretary may: 

(1) Order the tribe to take further 

action deemed necessary by the 

Secretary to protect the physical trust 

asset; or 

(2) Take action deemed necessary to 

protect the physical trust asset, 

including reassumption under subpart 

G. 

(c) If the Secretary determines, after 

reviewing the tribe’s response, that the 

tribe has complied with the agreement 

and with Federal law, the Secretary will 

withdraw the Director’s order. 

(d) The Secretary must base a finding 

of imminent jeopardy to a physical trust 

asset on the tribe’s violation of an 

agreement or applicable Federal law. 

Subpart G—Reassumption 

§ 224.150 What is the purpose of this 

subpart? 

This subpart explains when and how 

the Secretary may reassume all or 

certain activities included within an 

agreement without the consent of a 

tribe. 

§ 224.151 When may the Secretary 

reassume activities under an agreement? 

Upon issuing a written finding of 

imminent jeopardy to a physical trust 

asset, the Secretary may reassume 

activities under an agreement in 

accordance with this subpart. The 

Secretary may issue a finding of 

imminent jeopardy to a physical trust 

asset following any review and 

evaluation of a tribe’s compliance with 

an agreement. The Secretary may also 

reassume activities approved under an 

agreement in response to a petition from 

an interested party under subpart E. 

Only the Secretary or the Assistant 

Secretary—Indian Affairs may reassume 

activities under an agreement. 

§ 224.152 Must the Secretary always 

reassume the activities under an agreement 

upon a finding of imminent jeopardy to a 

physical trust asset? 

(a) The Secretary may take whatever 

actions the Secretary deems appropriate 

to protect the physical trust asset. These 

actions may, at the discretion of the 

Secretary, include reassumption of the 

activities under an agreement. 

(b) If the tribe does not respond to or 

does not comply with the Director’s 

order under § 224.138(b)(iii), the 

Secretary will immediately reassume all 

activities the tribe assumed under the 

agreement. The procedures in this 

subpart will not apply to that immediate 

reassumption. 

Notice of Intent To Reassume 

§ 224.153 Must the Secretary notify the 

tribe of an intent to reassume activities 

under an agreement? 

If the Secretary determines under 

§ 224.152 that reassumption is 

appropriate to protect the physical trust 

asset, the Secretary will issue a written 

notice to the tribal governing body of 

the Secretary’s intent to reassume. 

§ 224.154 What must a notice of intent to 

reassume include? 

A notice of intent to reassume must 

include: 

(a) A statement of the reasons for the 

intended reassumption, including, as 

applicable, a copy of the Secretary’s 

written finding of imminent jeopardy to 

a physical trust asset; 

(b) A description of specific measures 

that the tribe must take to correct the 

violation and any condition that caused 

the imminent jeopardy; 

(c) The time period within which the 

tribe must take the measures to correct 

the violation and any condition that 

caused the imminent jeopardy to a 

physical trust asset; and 

(d) The effective date of the 

reassumption if the tribe does not meet 

the requirements in paragraphs (b) and 

(c) of this section. 

§ 224.155 When must a tribe respond to a 

notice of intent to reassume? 

The tribe must respond to the Director 

in writing by mail, facsimile, or 

overnight express within 5 days of 

receipt of the Secretary’s notice of intent 

to reassume. If sent by mail, the tribe 

must send the response by certified 

mail, return receipt requested, and the 

postmark date will be considered the 

date of response. 

§ 224.156 What information must the 

tribe’s response to the notice of intent to 

reassume include? 

The tribe’s response to the notice of 

intent to reassume must state: 

(a) That the tribe has complied with 

the Secretary’s requirements in the 

notice of intent to reassume; 

(b) The measures that the tribe is 

taking to comply with the Secretary’s 

requirements, and when the tribe will 

complete such measures, if the time 

required under § 224.154(c) to complete 

the required measures is greater than 5 

days; or 

(c) A declaration that the tribe will 

not comply with the Secretary’s 

required measures. 

§ 224.157 How must the Secretary proceed 

after receiving the tribe’s response? 

(a) If the Secretary determines that the 

tribe’s measures to comply with the 

Secretary’s requirements are adequate or 

will be adequate to correct the violation 

and any condition that caused the 

imminent jeopardy or the adverse 

environmental impact alleged in a 

petition from an interested party, the 

Secretary will: 

(1) Notify the tribe of the acceptance 

in writing; and 

(2) Terminate the reassumption 

proceedings in writing. 

(b) If the Secretary determines that the 

tribe’s measures to comply with the 

Secretary’s requirements are not 

adequate, then the Secretary will issue 

a written notice of reassumption. 

§ 224.158 What must the Secretary include 

in a written notice of reassumption? 

The notice of reassumption must 

include: 

(a) A description of the activities the 

Secretary is reassuming; 

(b) The reasons for the determination 

under § 224.157(a); 

(c) The effective date of the 

reassumption; and 

(d) A statement that the decision is a 

final agency action and is subject to 

judicial review. 

§ 224.159 How will reassumption affect 

valid existing rights that vested or lawful 

actions taken by the tribe or the Secretary 

before the effective date of the 

reassumption? 

Reassumption will not affect valid 

existing rights that vested before the 

effective date of the reassumption or 

lawful actions the tribe and the 

Secretary took before the effective date 

of the reassumption. 

§ 224.160 How will reassumption affect an 

agreement? 

Reassumption of an agreement applies 

to all activities undertaken under an 

agreement. 

§ 224.161 How may reassumption affect 

the tribe’s ability to modify an agreement, 

administer additional activities or to 

assume administration of activities that the 

Secretary previously reassumed? 

Following reassumption, the tribe 

may request to modify an agreement, 

administer additional activities, or 

assume administration of activities the 

Secretary previously reassumed. In 

reviewing a subsequent tribal request, 

however, the Director may consider the 

fact that activities were reassumed and 

any changes in circumstances 

supporting the tribe’s request. 


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Subpart H—Rescission 

§ 224.170 What is the purpose of this 

subpart? 

This subpart explains the process and 

requirements under which a tribe may 

rescind an agreement and return to the 

Secretary the responsibility to approve 

any future leases, business agreements, 

or rights-of-way related to energy 

resource development previously 

covered under the agreement. 

§ 224.171 Who may rescind an agreement? 

A tribe, acting through a resolution 

passed by the tribal governing body, 

may rescind an agreement and return to 

the Secretary the responsibility to 

approve any future leases, business 

agreements, or rights-of-way related to 

energy resource development. 

§ 224.172 May a tribe rescind its authority 

to approve or disapprove a specific future 

lease, business agreement, or right-of-way 

or the development of a specific energy 

resource or geographic area? 

No. A tribe may only rescind an 

agreement, not its authority to approve 

a specific future lease, business 

agreement, or right-of-way under an 

agreement or the development of a 

specific energy resource or geographic 

area. 

§ 224.173 How does a tribe rescind an 

agreement? 

To rescind an agreement, a tribe must 

submit to the Secretary a written tribal 

resolution or other official action of the 

tribe’s governing body voluntarily 

rescinding the agreement. 

§ 224.174 When does a voluntary 

rescission become effective? 

A voluntary rescission becomes 

effective on the date specified by the 

Secretary, provided that the date is no 

more than 90 days after the Secretary 

receives the tribal resolution or other 

official action the tribe submits under 

§ 224.173. 

§ 224.175 How will rescission affect rights 

that vested before the effective date of the 

rescission or lawful actions taken by the 

tribe or the Secretary before the effective 

date of the rescission? 

Rescission does not affect rights that 

vested before the effective date of the 

rescission or lawful actions taken by the 

tribe and the Secretary before the 

effective date of the rescission. 

Subpart I—General Appeal Procedures 

§ 224.180 What is the purpose of this 

subpart? 

The purpose of this subpart is to 

explain who may appeal Departmental 

decisions or inaction under this part 

and the initial administrative appeal 

processes, and general administrative 

appeal processes, including how 25 CFR 

part 2 and 43 CFR part 4 apply, and the 

effective dates for appeal decisions. 

§ 224.181 Who may appeal Department 

decisions or inaction under this part? 

The following persons or entities may 

appeal Department decisions or inaction 

under this part: 

(a) A tribe that is unfavorably affected 

by a decision of or inaction by an 

official of the Department of the Interior 

under this part; 

(b) A person or entity who has entered 

into a lease, right-of-way, or business 

agreement and is unfavorably affected 

by a decision of or inaction by a 

Department official under this part; or 

(c) An interested party who is 

unfavorably affected by a decision of or 

inaction by the Director under subpart 

E, provided that the interested party 

may appeal only those issues raised in 

its prior participation under subpart E 

and may not appeal any other decision 

rendered or inaction under this part. 

§ 224.182 What is the Initial Appeal 

Process? 

The initial appeal process is as 

follows: 

(a) Within 30 days of receipt of an 

adverse decision by the Director or 

within 30 days after the time periods 

within which the Director was required 

to act under subpart E, a party that may 

appeal under this subpart may file an 

appeal to the Deputy Assistant 

Secretary—Policy and Economic 

Development. 

(b) Within 60 days of receipt of an 

appeal, the Deputy Assistant 

Secretary—Policy and Economic 

Development will review the record and 

issue a written decision on the appeal. 

(c) Within 7 days of a decision by the 

Deputy Assistant Secretary—Policy and 

Economic Development, the Secretary 

will provide a written copy of the 

decision to the tribe and other 

participating parties. 

§ 224.183 What other administrative 

appeals processes also apply? 

The administrative appeal processes 

in 25 CFR part 2 and 43 CFR part 4, 

subject to the limitations in § 224.184, 

apply to: 

(a) An interested party’s appeal from 

an adverse decision or inaction by the 

Deputy Assistant Secretary—Policy and 

Economic Development under 

§ 224.182; and 

(b) An appeal by a tribe or a person 

or entity that has entered into a lease, 

business agreement, or right-of-way 

from an adverse decision by or the 

inaction of a Department official taken 

under this part. 

§ 224.184 How do other administrative 

appeals processes apply? 

The administrative appeals process in 

25 CFR part 2 and 43 CFR part 4 are 

modified, only as they apply to appeals 

under this part, as follows: 

(a) The definition of interested party 

in 25 CFR part 2 and as incorporated in 

43 CFR part 4 does not apply to this 

part. 

(b) The right of persons or entities 

other than an appealing party to 

participate in appeals under 25 CFR part 

2 and 43 CFR part 4 does not apply to 

this part, except as permitted under 

paragraph (c) of this section. 

(c) The only persons or entities, other 

than appealing parties under 

§ 224.181(a) to (c), who may participate 

in an appeal under this part are: 

(1) The Secretary, if an appeal is taken 

from a decision of the Director or 

Deputy Assistant Secretary—Policy and 

Economic Development; 

(2) A tribe, which may intervene, 

appear as an amicus curiae, or otherwise 

appear in any appeal taken under this 

part by a person or entity who has 

entered into a lease, business agreement, 

or right-of-way with the tribe or by an 

interested party under this part; or 

(3) A person or entity that has entered 

into a lease, business agreement, or 

right-of-way with a tribe, which may 

intervene, appear as an amicus curiae, 

or otherwise appear in any appeal taken 

under this part by the tribe or by an 

interested party under this part. 

(d) Any obligation to provide notice 

and service upon non-appealing persons 

provided in 25 CFR part 2 and 43 CFR 

part 4 does not apply to this part, except 

that notice and service of all documents 

must be served consistent with the 

requirements of 25 CFR part 2 and 43 

CFR part 4 on those persons or entities 

identified in paragraph (c) of this 

section. 

§ 224.185 When are decisions under this 

part effective? 

Decisions under subpart I are effective 

as follows: 

(a) Decisions of the Secretary 

disapproving a final proposed 

agreement or revised final proposed 

agreement under subpart C, finding 

imminent jeopardy to a physical trust 

asset under subpart F, and decisions by 

the Secretary or the Assistant 

Secretary—Indian Affairs to reassume a 

program under subpart G are final for 

the Department and effective upon 

issuance. 

(b) Decisions under this part, other 

than those in paragraph (a) of this 


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Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 / Proposed Rules 48645 

section that are unfavorable to a tribe 

and in which an appeal is pending are 

not final for the Department and are not 

effective pending appeal, unless: 

(1) Before the decision, the tribe had 

an opportunity for a hearing; 

(2) After the decision was rendered, 

the tribe had a reasonable amount of 

time to attain compliance with the 

agreement; and 

(3) The Interior Board of Indian 

Appeals (Board), the Secretary, or 

Assistant Secretary—Indian Affairs 

issued a written decision that, 

notwithstanding a reasonable period to 

attain compliance with the agreement, 

the tribe has not attained compliance. 

(c) All other decisions rendered by the 

Board or the Assistant Secretary of 

Indian Affairs in an appeal from a 

Director’s decision under subparts E, F, 

or G are effective when rendered by the 

Board, the Secretary, or the Assistant 

Secretary—Indian Affairs. 

[FR Doc. 06–6852 Filed 8–18–06; 8:45 am] 

BILLING CODE 4310–96–P 


sroberts on PROD1PC70 with PROPOSALS