II 

112TH CONGRESS 

1ST SESSION S. 1684 

To amend the Indian Tribal Energy Development and Self-Determination 

Act of 2005, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 12, 2011 

Mr. BARRASSO (for himself, Mr. AKAKA, Mr. MCCAIN, and Mr. HOEVEN) introduced the following bill; which was read twice and referred to the Committee on Indian Affairs 

A BILL 

To amend the Indian Tribal Energy Development and SelfDetermination Act of 2005, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Indian Tribal Energy 

5 Development and Self-Determination Act Amendments of 

6 2011’’. 

7 SEC. 2. TABLE OF CONTENTS. 

8 The table of contents for this Act is as follows: 

Sec. 1. Short title. 

Sec. 2. Table of contents. 


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TITLE I—INDIAN TRIBAL ENERGY DEVELOPMENT AND SELFDETERMINATION ACT AMENDMENTS 

Sec. 101. Indian tribal energy resource development. 

Sec. 102. Indian tribal energy resource regulation. 

Sec. 103. Tribal energy resource agreements. 

Sec. 104. Conforming amendments. 

TITLE II—MISCELLANEOUS AMENDMENTS 

Sec. 201. Issuance of preliminary permits or licenses. 

Sec. 202. Tribal biomass demonstration project. 

Sec. 203. Weatherization program. 

1 TITLE I—INDIAN TRIBAL EN2 ERGY DEVELOPMENT AND 

3 SELF-DETERMINATION ACT 

4 AMENDMENTS 

5 SEC. 101. INDIAN TRIBAL ENERGY RESOURCE DEVELOP6 MENT. 

7 (a) IN GENERAL.—Section 2602(a) of the Energy 

8 Policy Act of 1992 (25 U.S.C. 3502(a)) is amended— 

9 (1) in paragraph (2)— 

10 (A) in subparagraph (C), by striking 

11 ‘‘and’’ after the semicolon; 

12 (B) in subparagraph (D), by striking the 

13 period at the end and inserting ‘‘; and’’; and 

14 (C) by adding at the end the following: 

15 ‘‘(E) consult with each applicable Indian 

16 tribe before adopting or approving a well spac17 ing program or plan applicable to the energy re18 sources of that Indian tribe or the members of 

19 that Indian tribe.’’; and 


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1 (2) by adding at the end the following: 

2 ‘‘(4) PLANNING.— 

3 ‘‘(A) IN GENERAL.—In carrying out the 

4 program established by paragraph (1), the Sec5 retary shall provide technical assistance to in6 terested Indian tribes to develop energy plans, 

7 including— 

8 ‘‘(i) plans for electrification; 

9 ‘‘(ii) plans for oil and gas permitting, 

10 renewable energy permitting, energy effi11 ciency, electricity generation, transmission 

12 planning, water planning, and other plan13 ning relating to energy issues; 

14 ‘‘(iii) plans for the development of en15 ergy resources and to ensure the protection 

16 of natural, historic, and cultural resources; 

17 and 

18 ‘‘(iv) any other plans that would as19 sist an Indian tribe in the development or 

20 use of energy resources. 

21 ‘‘(B) COOPERATION.—In establishing the 

22 program under paragraph (1), the Secretary 

23 shall work in cooperation with the Office of In24 dian Energy Policy and Programs of the De25 partment of Energy.’’. 


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1 (b) DEPARTMENT OF ENERGY INDIAN ENERGY EDU2 CATION PLANNING AND MANAGEMENT ASSISTANCE PRO3 GRAM.—Section 2602(b)(2) of the Energy Policy Act of 

4 1992 (25 U.S.C. 3502(b)(2)) is amended— 

5 (1) in the matter preceding subparagraph (A), 

6 by inserting ‘‘, intertribal organization,’’ after ‘‘In7 dian tribe’’; 

8 (2) by redesignating subparagraphs (C) and 

9 (D) as subparagraphs (D) and (E), respectively; and 

10 (3) by inserting after subparagraph (B) the fol11 lowing: 

12 ‘‘(C) activities to increase the capacity of 

13 Indian tribes to manage energy development 

14 and energy efficiency programs;’’. 

15 (c) DEPARTMENT OF ENERGY LOAN GUARANTEE

16 PROGRAM.—Section 2602(c) of the Energy Policy Act of 

17 1992 (25 U.S.C. 3502(c)) is amended— 

18 (1) in paragraph (1), by inserting ‘‘or a tribal 

19 energy development organization’’ after ‘‘Indian 

20 tribe’’; 

21 (2) in paragraph (3)— 

22 (A) in the matter preceding subparagraph 

23 (A), by striking ‘‘guarantee’’ and inserting 

24 ‘‘guaranteed’’; 

25 (B) in subparagraph (A), by striking ‘‘or’’; 


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1 (C) in subparagraph (B), by striking the 

2 period at the end and inserting ‘‘; or’’; and 

3 (D) by adding at the end the following: 

4 ‘‘(C) a tribal energy development organiza5 tion, from funds of the tribal energy develop6 ment organization.’’; and 

7 (3) in paragraph (5), by striking ‘‘The Sec8 retary of Energy may’’ and inserting ‘‘Not later 

9 than 1 year after the date of enactment of the In10 dian Tribal Energy Development and Self-Deter11 mination Act Amendments of 2011, the Secretary of 

12 Energy shall’’. 

13 SEC. 102. INDIAN TRIBAL ENERGY RESOURCE REGULA14 TION. 

15 Section 2603(c) of the Energy Policy Act of 1992 (25 

16 U.S.C. 3503(c)) is amended— 

17 (1) in paragraph (1), by striking ‘‘on the re18 quest of an Indian tribe, the Indian tribe’’ and in19 serting ‘‘on the request of an Indian tribe or a tribal 

20 energy development organization, the Indian tribe or 

21 tribal energy development organization’’; and 

22 (2) in paragraph (2)(B), by inserting ‘‘or tribal 

23 energy development organization’’ after ‘‘Indian 

24 tribe’’. 


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1 SEC. 103. TRIBAL ENERGY RESOURCE AGREEMENTS. 

2 (a) AMENDMENT.—Section 2604 of the Energy Pol3 icy Act of 1992 (25 U.S.C. 3504) is amended— 

4 (1) in subsection (a)— 

5 (A) in paragraph (1)— 

6 (i) in subparagraph (A), by striking 

7 ‘‘or’’ after the semicolon at the end; 

8 (ii) in subparagraph (B)— 

9 (I) by striking clause (i) and in10 serting the following: 

11 ‘‘(i) an electric production, generation, 

12 transmission, or distribution facility (in13 cluding a facility that produces electricity 

14 from renewable energy resources) located 

15 on tribal land; or’’; and 

16 (II) in clause (ii)— 

17 (aa) by inserting ‘‘, at least 

18 a portion of which have been’’ 

19 after ‘‘energy resources’’; 

20 (bb) by inserting ‘‘or pro21 duced from’’ after ‘‘developed 

22 on’’; and 

23 (cc) by striking ‘‘and’’ after 

24 the semicolon at the end and in25 serting ‘‘or’’; and 


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1 (iii) by adding at the end the fol2 lowing: 

3 ‘‘(C) pooling, unitization, or 

4 communitization of the energy mineral re5 sources of the Indian tribe located on tribal 

6 land with any other energy mineral resource 

7 (including energy mineral resources owned by 

8 the Indian tribe or an individual Indian in fee, 

9 trust, or restricted status or by any other per10 sons or entities) if the owner of the resources 

11 has consented or consents to the pooling, unit12 ization, or communitization of the other re13 sources under any lease or agreement; and’’; 

14 and 

15 (B) by striking paragraph (2) and insert16 ing the following: 

17 ‘‘(2) a lease or business agreement described in 

18 paragraph (1) shall not require review by, or the ap19 proval of, the Secretary under section 2103 of the 

20 Revised Statutes (25 U.S.C. 81), or any other provi21 sion of law, if the lease or business agreement— 

22 ‘‘(A) was executed— 

23 ‘‘(i) in accordance with the require24 ments of a tribal energy resource agree25 ment in effect under subsection (e) (includVerDate Mar 15 2010 22:48 Oct 13, 2011 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1684.IS S1684

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1 ing the periodic review and evaluation of 

2 the activities of the Indian tribe under the 

3 agreement, to be conducted pursuant to 

4 subparagraphs (D) and (E) of subsection 

5 (e)(2)); or 

6 ‘‘(ii) by the Indian tribe and a tribal 

7 energy development organization— 

8 ‘‘(I) for which the Indian tribe 

9 has obtained certification pursuant to 

10 subsection (h); and 

11 ‘‘(II) the majority of the interest 

12 in which is, and continues to be 

13 throughout the full term or renewal 

14 term (if any) of the lease or business 

15 agreement, owned and controlled by 

16 the Indian tribe (or the Indian tribe 

17 and 1 or more other Indian tribes); 

18 and 

19 ‘‘(B) has a term that does not exceed— 

20 ‘‘(i) 30 years; or 

21 ‘‘(ii) in the case of a lease for the pro22 duction of oil resources, gas resources, or 

23 both, 10 years and as long thereafter as oil 

24 or gas is produced in paying quantities.’’; 


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1 (2) by striking subsection (b) and inserting the 

2 following: 

3 ‘‘(b) RIGHTS-OF-WAY.—An Indian tribe may grant a 

4 right-of-way over tribal land without review or approval 

5 by the Secretary if the right-of-way— 

6 ‘‘(1) serves— 

7 ‘‘(A) an electric production, generation, 

8 transmission, or distribution facility (including 

9 a facility that produces electricity from renew10 able energy resources) located on tribal land; 

11 ‘‘(B) a facility located on tribal land that 

12 extracts, produces, processes, or refines energy 

13 resources; or 

14 ‘‘(C) the purposes, or facilitates in car15 rying out the purposes, of any lease or agree16 ment entered into for energy resource develop17 ment on tribal land; and 

18 ‘‘(2) was executed— 

19 ‘‘(A) in accordance with the requirements 

20 of a tribal energy resource agreement in effect 

21 under subsection (e) (including the periodic re22 view and evaluation of the activities of the In23 dian tribe under the agreement, to be conducted 

24 pursuant to subparagraphs (D) and (E) of sub25 section (e)(2)); or 


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1 ‘‘(B) by the Indian tribe and a tribal en2 ergy development organization— 

3 ‘‘(i) for which the Indian tribe has ob4 tained certification pursuant to subsection 

5 (h); and 

6 ‘‘(ii) the majority of the interest in 

7 which is, and continues to be throughout 

8 the full term or renewal term (if any) of 

9 the right-of-way, owned and controlled by 

10 the Indian tribe (or the Indian tribe and 1 

11 or more other Indian tribes); and 

12 ‘‘(3) has a term that does not exceed 30 

13 years.’’; 

14 (3) by striking subsection (d) and inserting the 

15 following: 

16 ‘‘(d) VALIDITY.—No lease or business agreement en17 tered into, or right-of-way granted, pursuant to this sec18 tion shall be valid unless the lease, business agreement, 

19 or right-of-way is authorized by subsection (a) or (b).’’; 

20 (4) in subsection (e)— 

21 (A) in paragraph (2)— 

22 (i) by striking ‘‘(2)(A)’’ and all that 

23 follows through the end of subparagraph 

24 (A) and inserting the following: 

25 ‘‘(2) PROCEDURE.— 


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1 ‘‘(A) EFFECTIVE DATE.— 

2 ‘‘(i) IN GENERAL.—On the date that 

3 is 271 days after the date on which the 

4 Secretary receives a tribal energy resource 

5 agreement from an Indian tribe under 

6 paragraph (1), the tribal energy resource 

7 agreement shall take effect, unless the Sec8 retary disapproves the tribal energy re9 source agreement under subparagraph (B). 

10 ‘‘(ii) REVISED TRIBAL ENERGY RE11 SOURCE AGREEMENT.—On the date that is 

12 91 days after the date on which the Sec13 retary receives a revised tribal energy re14 source agreement from an Indian tribe 

15 under paragraph (4)(B), the revised tribal 

16 energy resource agreement shall take ef17 fect, unless the Secretary disapproves the 

18 revised tribal energy resource agreement 

19 under subparagraph (B).’’; 

20 (ii) in subparagraph (B)— 

21 (I) by striking ‘‘(B)’’ and all that 

22 follows through ‘‘if—’’ and inserting 

23 the following: 

24 ‘‘(B) DISAPPROVAL.—The Secretary shall 

25 disapprove a tribal energy resource agreement 


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1 submitted pursuant to paragraph (1) or (4)(B) 

2 only if—’’; 

3 (II) by striking clause (i) and in4 serting the following: 

5 ‘‘(i) the Secretary determines that the 

6 Indian tribe has not demonstrated that the 

7 Indian tribe has sufficient capacity to reg8 ulate the development of the specific 1 or 

9 more energy resources identified for devel10 opment under the tribal energy resource 

11 agreement submitted by the Indian tribe;’’; 

12 (III) by redesignating clause (iii) 

13 as clause (iv) and indenting appro14 priately; 

15 (IV) by striking clause (ii) and 

16 inserting the following: 

17 ‘‘(ii) a provision of the tribal energy 

18 resource agreement would violate applica19 ble Federal law (including regulations) or 

20 a treaty applicable to the Indian tribe; 

21 ‘‘(iii) the tribal energy resource agree22 ment does not include 1 or more provisions 

23 required under subparagraph (D); or’’; and 

24 (V) in clause (iv) (as redesig25 nated by subclause (III))— 


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1 (aa) in the matter preceding 

2 subclause (I), by striking ‘‘in3 cludes’’ and all that follows 

4 through ‘‘section—’’ and insert5 ing ‘‘does not include provisions 

6 that, with respect to any lease, 

7 business agreement, or right-of8 way to which the tribal energy 

9 resource agreement applies—’’; 

10 and 

11 (bb) in subclause (XVI)(bb), 

12 by striking ‘‘or tribal’’; 

13 (iii) in subparagraph (C)— 

14 (I) in the matter preceding clause 

15 (i), by inserting ‘‘the approval of’’ 

16 after ‘‘with respect to’’; 

17 (II) by striking clause (ii) and in18 serting the following: 

19 ‘‘(ii) the identification of mitigation 

20 measures, if any, that, in the discretion of 

21 the Indian tribe, the Indian tribe might 

22 propose for incorporation into the lease, 

23 business agreement, or right-of-way;’’; 

24 (III) in clause (iii)(I), by striking 

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1 proval of the lease, business agree2 ment, or right-of-way’’; 

3 (IV) in clause (iv), by striking 

4 ‘‘and’’ at the end; 

5 (V) in clause (v), by striking the 

6 period at the end and inserting ‘‘; 

7 and’’; and 

8 (VI) by adding at the end the fol9 lowing: 

10 ‘‘(vi) the identification of specific 

11 classes or categories of actions, if any, de12 termined by the Indian tribe not to have 

13 significant environmental effects.’’; 

14 (iv) in subparagraph (D)(ii), by strik15 ing ‘‘subparagraph (B)(iii)(XVI)’’ and in16 serting ‘‘subparagraph (B)(iv)(XV)’’; and 

17 (v) by adding at the end the following: 

18 ‘‘(F) A tribal energy resource agreement 

19 that takes effect pursuant to this subsection 

20 shall remain in effect to the extent any provi21 sion of the tribal energy resource agreement is 

22 consistent with applicable Federal law (includ23 ing regulations), unless the tribal energy re24 source agreement is— 


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1 ‘‘(i) rescinded by the Secretary pursu2 ant to paragraph (7)(D)(iii)(II); or 

3 ‘‘(ii) voluntarily rescinded by the In4 dian tribe pursuant to the regulations pro5 mulgated under paragraph (8)(B) (or suc6 cessor regulations). 

7 ‘‘(G)(i) The Secretary shall make a capac8 ity determination under subparagraph (B)(i) 

9 not later than 120 days after the date on which 

10 the Indian tribe submits to the Secretary the 

11 tribal energy resource agreement of the Indian 

12 tribe pursuant to paragraph (1), unless the Sec13 retary and the Indian tribe mutually agree to 

14 an extension of the time period for making the 

15 determination. 

16 ‘‘(ii) Any determination that the Indian 

17 tribe lacks the requisite capacity shall be treat18 ed as a disapproval under paragraph (4) and, 

19 not later than 10 days after the date of the de20 termination, the Secretary shall provide to the 

21 Indian tribe— 

22 ‘‘(I) a detailed, written explanation of 

23 each reason for the determination; and 


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1 ‘‘(II) a description of the steps that 

2 the Indian tribe should take to dem3 onstrate sufficient capacity. 

4 ‘‘(H) Notwithstanding any other provision 

5 of this section, an Indian tribe shall be consid6 ered to have demonstrated sufficient capacity 

7 under subparagraph (B)(i) to regulate the de8 velopment of the specific 1 or more energy re9 sources of the Indian tribe identified for devel10 opment under the tribal energy resource agree11 ment submitted by the Indian tribe pursuant to 

12 paragraph (1) if— 

13 ‘‘(i) the Secretary determines that— 

14 ‘‘(I) the Indian tribe has carried 

15 out a contract or compact under title 

16 I or IV of the Indian Self-Determina17 tion and Education Assistance Act 

18 (25 U.S.C. 450 et seq.); and 

19 ‘‘(II) for a period of not less than 

20 3 consecutive years ending on the date 

21 on which the Indian tribe submits the 

22 tribal energy resource agreement of 

23 the Indian tribe pursuant to para24 graph (1) or (4)(B), the contract or 

25 compact— 


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1 ‘‘(aa) has been carried out 

2 by the Indian tribe without mate3 rial audit exceptions (or without 

4 any material audit exceptions 

5 that were not corrected within 

6 the 3-year period); and 

7 ‘‘(bb) has included programs 

8 or activities relating to the man9 agement of tribal land; or 

10 ‘‘(ii) the Secretary fails to make the 

11 determination within the time allowed 

12 under subparagraph (G)(i) (including any 

13 extension of time agreed to under that sub14 paragraph).’’; 

15 (B) in paragraph (4), by striking ‘‘date of 

16 disapproval’’ and all that follows through the 

17 end of subparagraph (C) and inserting the fol18 lowing: ‘‘date of disapproval, provide the Indian 

19 tribe with— 

20 ‘‘(A) a detailed, written explanation of— 

21 ‘‘(i) each reason for the disapproval; 

22 and 

23 ‘‘(ii) the revisions or changes to the 

24 tribal energy resource agreement necessary 

25 to address each reason; and 


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1 ‘‘(B) an opportunity to revise and resubmit 

2 the tribal energy resource agreement.’’; 

3 (C) in paragraph (6)— 

4 (i) in subparagraph (B)— 

5 (I) by striking ‘‘(B) Subject to’’ 

6 and inserting the following: 

7 ‘‘(B) Subject only to’’; and 

8 (II) by striking ‘‘subparagraph 

9 (D)’’ and inserting ‘‘subparagraphs 

10 (C) and (D)’’; 

11 (ii) in subparagraph (C), in the mat12 ter preceding clause (i), by inserting ‘‘to 

13 perform the obligations of the Secretary 

14 under this section and’’ before ‘‘to ensure’’; 

15 and 

16 (iii) in subparagraph (D), by adding 

17 at the end the following: 

18 ‘‘(iii) Nothing in this section absolves, 

19 limits, or otherwise affects the liability, if 

20 any, of the United States for any— 

21 ‘‘(I) term of any lease, business 

22 agreement, or right-of-way under this 

23 section that is not a negotiated term; 

24 or 


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1 ‘‘(II) losses that are not the re2 sult of a negotiated term, including 

3 losses resulting from the failure of the 

4 Secretary to perform an obligation of 

5 the Secretary under this section.’’; 

6 and 

7 (D) in paragraph (7)— 

8 (i) in subparagraph (A), by striking 

9 ‘‘has demonstrated’’ and inserting ‘‘the 

10 Secretary determines has demonstrated 

11 with substantial evidence’’; 

12 (ii) in subparagraph (B), by striking 

13 ‘‘any tribal remedy’’ and inserting ‘‘all 

14 remedies (if any) provided under the laws 

15 of the Indian tribe’’; 

16 (iii) in subparagraph (D)— 

17 (I) in clause (i), by striking ‘‘de18 termine’’ and all that follows through 

19 the end of the clause and inserting the 

20 following: ‘‘determine— 

21 ‘‘(I) whether the petitioner 

22 is an interested party; and 

23 ‘‘(II) if the petitioner is an 

24 interested party, whether the In25 dian tribe is not in compliance 


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1 with the tribal energy resource 

2 agreement as alleged in the peti3 tion.’’; 

4 (II) in clause (ii), by striking 

5 ‘‘determination’’ and inserting ‘‘deter6 minations’’; and 

7 (III) in clause (iii), in the matter 

8 preceding subclause (I) by striking 

9 ‘‘agreement’’ the first place it appears 

10 and all that follows through ‘‘, includ11 ing’’ and inserting ‘‘agreement pursu12 ant to clause (i), the Secretary shall 

13 only take such action as the Secretary 

14 determines necessary to address the 

15 claims of noncompliance made in the 

16 petition, including’’; 

17 (iv) in subparagraph (E)(i), by strik18 ing ‘‘the manner in which’’ and inserting 

19 ‘‘, with respect to each claim made in the 

20 petition, how’’; and 

21 (v) by adding at the end the following: 

22 ‘‘(G) Notwithstanding any other provision 

23 of this paragraph, the Secretary shall dismiss 

24 any petition from an interested party that has 

25 agreed with the Indian tribe to a resolution of 


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1 the claims presented in the petition of that 

2 party.’’; 

3 (5) by redesignating subsection (g) as sub4 section (j); and 

5 (6) by inserting after subsection (f) the fol6 lowing: 

7 ‘‘(g) FINANCIAL ASSISTANCE IN LIEU OF ACTIVITIES

8 BY THE SECRETARY.— 

9 ‘‘(1) IN GENERAL.—Any amounts that the Sec10 retary would otherwise expend to operate or carry 

11 out any program, function, service, or activity (or 

12 any portion of a program, function, service, or activ13 ity) of the Department that, as a result of an Indian 

14 tribe carrying out activities under a tribal energy re15 source agreement, the Secretary does not expend, 

16 the Secretary shall, at the request of the Indian 

17 tribe, make available to the Indian tribe in accord18 ance with this subsection. 

19 ‘‘(2) ANNUAL FUNDING AGREEMENTS.—The 

20 Secretary shall make the amounts described in para21 graph (1) available to an Indian tribe through an 

22 annual written funding agreement that is negotiated 

23 and entered into with the Indian tribe that is sepa24 rate from the tribal energy resource agreement. 


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1 ‘‘(3) EFFECT OF APPROPRIATIONS.—Notwith2 standing paragraph (1)— 

3 ‘‘(A) the provision of amounts to an Indian 

4 tribe under this subsection is subject to the 

5 availability of appropriations; and 

6 ‘‘(B) the Secretary shall not be required to 

7 reduce amounts for programs, functions, serv8 ices, or activities that serve any other Indian 

9 tribe to make amounts available to an Indian 

10 tribe under this subsection. 

11 ‘‘(4) DETERMINATION.— 

12 ‘‘(A) IN GENERAL.—The Secretary shall 

13 calculate the amounts under paragraph (1) in 

14 accordance with the regulations adopted under 

15 section 103(b) of the Indian Tribal Energy De16 velopment and Self-Determination Act Amend17 ments of 2011. 

18 ‘‘(B) APPLICABILITY.—The effective date 

19 or implementation of a tribal energy resource 

20 agreement under this section shall not be de21 layed or otherwise affected by— 

22 ‘‘(i) a delay in the promulgation of 

23 regulations under section 103(b) of the In24 dian Tribal Energy Development and Self25 Determination Act Amendments of 2011; 


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1 ‘‘(ii) the period of time needed by the 

2 Secretary to make the calculation required 

3 under paragraph (1); or 

4 ‘‘(iii) the adoption of a funding agree5 ment under paragraph (2). 

6 ‘‘(h) CERTIFICATION OF TRIBAL ENERGY DEVELOP7 MENT ORGANIZATION.— 

8 ‘‘(1) IN GENERAL.—Not later than 90 days 

9 after the date on which an Indian tribe submits an 

10 application for certification of a tribal energy devel11 opment organization in accordance with regulations 

12 promulgated under section 103(b) of the Indian 

13 Tribal Energy Development and Self-Determination 

14 Act Amendments of 2011, the Secretary shall ap15 prove or disapprove the application. 

16 ‘‘(2) REQUIREMENTS.—The Secretary shall ap17 prove an application for certification if— 

18 ‘‘(A)(i) the Indian tribe has carried out a 

19 contract or compact under title I or IV of the 

20 Indian Self-Determination and Education As21 sistance Act (25 U.S.C. 450 et seq.); and 

22 ‘‘(ii) for a period of not less than 3 con23 secutive years ending on the date on which the 

24 Indian tribe submits the application, the con25 tract or compact— 


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1 ‘‘(I) has been carried out by the In2 dian tribe without material audit excep3 tions (or without any material audit excep4 tions that were not corrected within the 3- 

5 year period); and 

6 ‘‘(II) has included programs or activi7 ties relating to the management of tribal 

8 land; and 

9 ‘‘(B)(i) the tribal energy development orga10 nization is organized under the laws of the In11 dian tribe and subject to the jurisdiction and 

12 authority of the Indian tribe; 

13 ‘‘(ii) the majority of the interest in the 

14 tribal energy development organization is owned 

15 and controlled by the Indian tribe (or the In16 dian tribe and 1 or more other Indian tribes); 

17 and 

18 ‘‘(iii) the organizing document of the tribal 

19 energy development organization requires that 

20 the Indian tribe (or the Indian tribe and 1 or 

21 more other Indian tribes) own and control at all 

22 times a majority of the interest in the tribal en23 ergy development organization. 

24 ‘‘(3) ACTION BY SECRETARY.—If the Secretary 

25 approves an application for certification pursuant to 


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1 paragraph (2), the Secretary shall, not more than 10 

2 days after making the determination— 

3 ‘‘(A) issue a certification stating that— 

4 ‘‘(i) the tribal energy development or5 ganization is organized under the laws of 

6 the Indian tribe and subject to the juris7 diction and authority of the Indian tribe; 

8 ‘‘(ii) the majority of the interest in 

9 the tribal energy development organization 

10 is owned and controlled by the Indian tribe 

11 (or the Indian tribe and 1 or more other 

12 Indian tribes); 

13 ‘‘(iii) the organizing document of the 

14 tribal energy development organization re15 quires that the Indian tribe (or the Indian 

16 tribe and 1 or more other Indian tribes) 

17 own and control at all times a majority of 

18 the interest in the tribal energy develop19 ment organization; and 

20 ‘‘(iv) the certification is issued pursu21 ant this subsection; 

22 ‘‘(B) deliver a copy of the certification to 

23 the Indian tribe; and 

24 ‘‘(C) publish the certification in the Fed25 eral Register. 


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1 ‘‘(i) SOVEREIGN IMMUNITY.—Nothing in this section 

2 waives the sovereign immunity of an Indian tribe.’’. 

3 (b) REGULATIONS.—Not later than 1 year after the 

4 date of enactment of the Indian Tribal Energy Develop5 ment and Self-Determination Act Amendments of 2011, 

6 the Secretary shall promulgate or update any regulations 

7 that are necessary to implement this section, including 

8 provisions to implement— 

9 (1) section 2604(g) of the Energy Policy Act of 

10 1992 (25 U.S.C. 3504(g)) including the manner in 

11 which the Secretary, at the request of an Indian 

12 tribe, shall— 

13 (A) identify the programs, functions, serv14 ices, and activities (or any portions of pro15 grams, functions, services, or activities) that the 

16 Secretary will not have to operate or carry out 

17 as a result of the Indian tribe carrying out ac18 tivities under a tribal energy resource agree19 ment; 

20 (B) identify the amounts that the Sec21 retary would have otherwise expended to oper22 ate or carry out each program, function, serv23 ice, and activity (or any portion of a program, 

24 function, service, or activity) identified pursu25 ant to subparagraph (A); and 


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1 (C) provide to the Indian tribe a list of the 

2 programs, functions, services, and activities (or 

3 any portions of programs, functions, services, or 

4 activities) identified pursuant subparagraph (A) 

5 and the amounts associated with each program, 

6 function, service, and activity (or any portion of 

7 a program, function, service, or activity) identi8 fied pursuant to subparagraph (B); and 

9 (2) section 2604(h) of the Energy Policy Act of 

10 1992 (25 U.S.C. 3504(h)), including the process to 

11 be followed by, and any applicable criteria and docu12 mentation required for, an Indian tribe to request 

13 and obtain the certification described in that section. 

14 SEC. 104. CONFORMING AMENDMENTS. 

15 (a) DEFINITION OF TRIBAL ENERGY DEVELOPMENT

16 ORGANIZATION.—Section 2601 of the Energy Policy Act 

17 of 1992 (25 U.S.C. 3501) is amended by striking para18 graph (11) and inserting the following: 

19 ‘‘(11) TRIBAL ENERGY DEVELOPMENT ORGANI20 ZATION.—The term ‘tribal energy development orga21 nization’ means— 

22 ‘‘(A) any enterprise, partnership, consor23 tium, corporation, or other type of business or24 ganization that is engaged in the development 

25 of energy resources and is wholly owned by an 


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1 Indian tribe (including an organization incor2 porated pursuant to section 17 of the Indian 

3 Reorganization Act of 1934 (25 U.S.C. 477) or 

4 section 3 of the Act of June 26, 1936 (25 

5 U.S.C. 503) (commonly known as the ‘Okla6 homa Indian Welfare Act’)); or 

7 ‘‘(B) any organization of 2 or more enti8 ties, at least 1 of which is an Indian tribe, that 

9 has the written consent of the governing bodies 

10 of all Indian tribes participating in the organi11 zation to apply for a grant, loan, or other as12 sistance under section 2602 or to enter into a 

13 lease or business agreement with, or acquire a 

14 right-of-way from, an Indian tribe pursuant to 

15 subsection (a)(2)(A)(ii) or (b)(2)(B) of section 

16 2604.’’. 

17 (b) INDIAN TRIBAL ENERGY RESOURCE DEVELOP18 MENT.—Section 2602 of the Energy Policy Act of 1992 

19 (25 U.S.C. 3502) is amended— 

20 (1) in subsection (a)— 

21 (A) in paragraph (1), by striking ‘‘tribal 

22 energy resource development organizations’’ 

23 and inserting ‘‘tribal energy development orga24 nizations’’; and 


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1 (B) in paragraph (2), by striking ‘‘tribal 

2 energy resource development organizations’’ 

3 each place it appears and inserting ‘‘tribal en4 ergy development organizations’’; and 

5 (2) in subsection (b)(2), by striking ‘‘tribal en6 ergy resource development organization’’ and insert7 ing ‘‘tribal energy development organization’’. 

8 (c) WIND AND HYDROPOWER FEASIBILITY STUDY.— 

9 Section 2606(c)(3) of the Energy Policy Act of 1992 (25 

10 U.S.C. 3506(c)(3)) is amended by striking ‘‘energy re11 source development’’ and inserting ‘‘energy development’’. 

12 (d) CONFORMING AMENDMENTS.—Section 2604(e) 

13 of the Energy Policy Act of 1992 (25 U.S.C. 3504(e)) is 

14 amended— 

15 (1) in paragraph (1)— 

16 (A) by striking ‘‘(1) On the date’’ and in17 serting the following: 

18 ‘‘(1) IN GENERAL.—On the date’’; and 

19 (B) by striking ‘‘for approval’’; 

20 (2) in paragraph (2)(B)(iv) (as redesignated by 

21 section 4(a)(4)(A)(ii)(III))— 

22 (A) in subclause (XIV), by inserting ‘‘and’’ 

23 after the semicolon at the end; 

24 (B) by striking subclause (XV); and 


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1 (C) by redesignating subclause (XVI) as 

2 subclause (XV); 

3 (3) in paragraph (3)— 

4 (A) by striking ‘‘(3) The Secretary’’ and 

5 inserting the following: 

6 ‘‘(3) NOTICE AND COMMENT; SECRETARIAL RE7 VIEW.—The Secretary’’; and 

8 (B) by striking ‘‘for approval’’; 

9 (4) in paragraph (4), by striking ‘‘(4) If the 

10 Secretary’’ and inserting the following: 

11 ‘‘(4) ACTION IN CASE OF DISAPPROVAL.—If the 

12 Secretary’’; 

13 (5) in paragraph (5)— 

14 (A) by striking ‘‘(5) If an Indian tribe’’ 

15 and inserting the following: 

16 ‘‘(5) PROVISION OF DOCUMENTS TO SEC17 RETARY.—If an Indian tribe’’; and 

18 (B) in the matter preceding subparagraph 

19 (A), by striking ‘‘approved’’ and inserting ‘‘in 

20 effect’’; 

21 (6) in paragraph (6)— 

22 (A) by striking ‘‘(6)(A) In carrying out’’ 

23 and inserting the following: 

24 ‘‘(6) SECRETARIAL OBLIGATIONS AND EFFECT

25 OF SECTION.— 


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1 ‘‘(A) In carrying out’’; 

2 (B) in subparagraph (A), by indenting 

3 clauses (i) and (ii) appropriately; 

4 (C) in subparagraph (B), by striking ‘‘ap5 proved’’ and inserting ‘‘in effect’’; and 

6 (D) in subparagraph (D)— 

7 (i) in clause (i), by striking ‘‘an ap8 proved tribal energy resource agreement’’ 

9 and inserting ‘‘a tribal energy resource 

10 agreement in effect under this section’’; 

11 and 

12 (ii) in clause (ii), by striking ‘‘ap13 proved by the Secretary’’ and inserting ‘‘in 

14 effect’’; and 

15 (7) in paragraph (7)— 

16 (A) by striking ‘‘(7)(A) In this paragraph’’ 

17 and inserting the following: 

18 ‘‘(7) PETITIONS BY INTERESTED PARTIES.— 

19 ‘‘(A) In this paragraph’’; 

20 (B) in subparagraph (A), by striking ‘‘ap21 proved by the Secretary’’ and inserting ‘‘in ef22 fect’’; 

23 (C) in subparagraph (B), by striking ‘‘ap24 proved by the Secretary’’ and inserting ‘‘in ef25 fect’’; and 


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1 (D) in subparagraph (D)(iii)— 

2 (i) in subclause (I), by striking ‘‘ap3 proved’’; and 

4 (ii) in subclause (II)— 

5 (I) by striking ‘‘approval of’’ in 

6 the first place it appears; and 

7 (II) by striking ‘‘subsection (a) 

8 or (b)’’ and inserting ‘‘subsection 

9 (a)(2)(A)(i) or (b)(2)(A)’’. 

10 TITLE II—MISCELLANEOUS 

11 AMENDMENTS 

12 SEC. 201. ISSUANCE OF PRELIMINARY PERMITS OR LI13 CENSES. 

14 (a) IN GENERAL.—Section 7(a) of the Federal Power 

15 Act (16 U.S.C. 800(a)) is amended by striking ‘‘States 

16 and municipalities’’ and inserting ‘‘States, Indian tribes, 

17 and municipalities’’. 

18 (b) APPLICABILITY.—The amendment made by sub19 section (a) shall not affect— 

20 (1) any preliminary permit or original license 

21 issued before the date of enactment of the Indian 

22 Tribal Energy Development and Self-Determination 

23 Act Amendments of 2011; or 

24 (2) an application for an original license, if the 

25 Commission has issued a notice accepting that appliVerDate Mar 15 2010 22:48 Oct 13, 2011 Jkt 019200 PO 00000 Frm 00032 Fmt 6652 Sfmt 6201 E:\BILLS\S1684.IS S1684

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1 cation for filing pursuant to section 4.32(d) of title 

2 18, Code of Federal Regulations (or successor regu3 lations), before the date of enactment of the Indian 

4 Tribal Energy Development and Self-Determination 

5 Act Amendments of 2011. 

6 (c) DEFINITION OF INDIAN TRIBE.—For purposes of 

7 section 7(a) of the Federal Power Act (16 U.S.C. 800(a)) 

8 (as amended by subsection (a)), the term ‘‘Indian tribe’’ 

9 has the meaning given the term in section 4 of the Indian 

10 Self-Determination and Education Assistance Act (25 

11 U.S.C. 450b). 

12 SEC. 202. TRIBAL BIOMASS DEMONSTRATION PROJECT. 

13 The Tribal Forest Protection Act of 2004 (Public 

14 Law 108–278; 118 Stat. 868) is amended— 

15 (1) in section 2(a), by striking ‘‘In this section’’ 

16 and inserting ‘‘In this Act’’; and 

17 (2) by adding at the end the following: 

18 ‘‘SEC. 3. TRIBAL BIOMASS DEMONSTRATION PROJECT. 

19 ‘‘(a) IN GENERAL.—For each of fiscal years 2013 

20 through 2017, the Secretary shall enter into stewardship 

21 contracts or similar agreements (excluding direct service 

22 contracts) with Indian tribes to carry out demonstration 

23 projects to promote biomass energy production (including 

24 biofuel, heat, and electricity generation) on Indian forest 


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1 land and in nearby communities by providing reliable sup2 plies of woody biomass from Federal land. 

3 ‘‘(b) DEMONSTRATION PROJECTS.—In each fiscal 

4 year for which projects are authorized, at least 4 new dem5 onstration projects that meet the eligibility criteria de6 scribed in subsection (c) shall be carried out under con7 tracts or agreements described in subsection (a). 

8 ‘‘(c) ELIGIBILITY CRITERIA.—To be eligible to enter 

9 into a contract or agreement under this subsection, an In10 dian tribe shall submit to the Secretary an application— 

11 ‘‘(1) containing such information as the Sec12 retary may require; and 

13 ‘‘(2) that includes a description of— 

14 ‘‘(A) the Indian forest land or rangeland 

15 under the jurisdiction of the Indian tribe; and 

16 ‘‘(B) the demonstration project proposed 

17 to be carried out by the Indian tribe. 

18 ‘‘(d) SELECTION.—In evaluating the applications 

19 submitted under subsection (c), the Secretary shall— 

20 ‘‘(1) take into consideration— 

21 ‘‘(A) the factors set forth in paragraphs 

22 (1) and (2) of section 2(e); and 

23 ‘‘(B) whether a proposed project would— 

24 ‘‘(i) increase the availability or reli25 ability of local or regional energy; 


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1 ‘‘(ii) enhance the economic develop2 ment of the Indian tribe; 

3 ‘‘(iii) result in or improve the connec4 tion of electric power transmission facilities 

5 serving the Indian tribe with other electric 

6 transmission facilities; 

7 ‘‘(iv) improve the forest health or wa8 tersheds of Federal land or Indian forest 

9 land or rangeland; 

10 ‘‘(v) demonstrate new investments in 

11 infrastructure; or 

12 ‘‘(vi) otherwise promote the use of 

13 woody biomass; and 

14 ‘‘(2) exclude from consideration any merchant15 able logs that have been identified by the Secretary 

16 for commercial sale. 

17 ‘‘(e) IMPLEMENTATION.—The Secretary shall— 

18 ‘‘(1) ensure that the criteria described in sub19 section (c) are publicly available by not later than 

20 120 days after the date of enactment of this section; 

21 and 

22 ‘‘(2) to the maximum extent practicable, consult 

23 with Indian tribes and appropriate intertribal orga24 nizations likely to be affected in developing the ap25 plication and otherwise carrying out this section. 


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1 ‘‘(f) REPORT.—Not later than September 20, 2015, 

2 the Secretary shall submit to Congress a report that de3 scribes, with respect to the reporting period— 

4 ‘‘(1) each individual tribal application received 

5 under this section; and 

6 ‘‘(2) each contract and agreement entered into 

7 pursuant to this section. 

8 ‘‘(g) INCORPORATION OF MANAGEMENT PLANS.—In 

9 carrying out a contract or agreement under this section, 

10 on receipt of a request from an Indian tribe, the Secretary 

11 shall incorporate into the contract or agreement, to the 

12 extent practicable, management plans (including forest 

13 management and integrated resource management plans) 

14 in effect on the Indian forest land or rangeland of the re15 spective Indian tribe. 

16 ‘‘(h) TERM.—A contract or agreement entered into 

17 under this section— 

18 ‘‘(1) shall be for a term of not more than 20 

19 years; and 

20 ‘‘(2) may be renewed in accordance with this 

21 section for not more than an additional 10 years.’’. 

22 SEC. 203. WEATHERIZATION PROGRAM. 

23 Section 413(d) of the Energy Conservation and Pro24 duction Act (42 U.S.C. 6863(d)) is amended— 


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1 (1) by striking paragraph (1) and inserting the 

2 following: 

3 ‘‘(1) RESERVATION OF AMOUNTS.— 

4 ‘‘(A) IN GENERAL.—Subject to subpara5 graph (B) and notwithstanding any other provi6 sion of this part, the Secretary shall reserve 

7 from amounts that would otherwise be allocated 

8 to a State under this part not less than 100 

9 percent, but not more than 150 percent, of an 

10 amount which bears the same proportion to the 

11 allocation of that State for the applicable fiscal 

12 year as the population of all low-income mem13 bers of an Indian tribe in that State bears to 

14 the population of all low-income individuals in 

15 that State. 

16 ‘‘(B) RESTRICTIONS.—Subparagraph (A) 

17 shall apply only if— 

18 ‘‘(i) the tribal organization serving the 

19 low-income members of the applicable In20 dian tribe requests that the Secretary 

21 make a grant directly; and 

22 ‘‘(ii) the Secretary determines that 

23 the low-income members of the applicable 

24 Indian tribe would be equally or better 

25 served by making a grant directly than a 


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1 grant made to the State in which the low2 income members reside.’’; 

3 (2) in paragraph (2)— 

4 (A) by striking ‘‘The sums’’ and inserting 

5 ‘‘ADMINISTRATION.—The amounts’’; 

6 (B) by striking ‘‘on the basis of his deter7 mination’’; 

8 (C) by striking ‘‘individuals for whom such 

9 a determination has been made’’ and inserting 

10 ‘‘low-income members of the Indian tribe’’; and 

11 (D) by striking ‘‘he’’ and inserting ‘‘the 

12 Secretary’’; and 

13 (3) in paragraph (3), by striking ‘‘In order’’ 

14 and inserting ‘‘APPLICATION.—In order’’. 

Æ 


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