This subpart describes how the Secretary and a Tribe will develop and perform the periodic review and evaluation required by the Act and by a TERA.
A periodic review and evaluation is an examination the Secretary performs to monitor a Tribe's performance of activities associated with the development of energy resources and to review compliance with a TERA. During the TERA consultation, a Tribe and the Secretary will develop a periodic review and evaluation process that addresses the Tribe's specific circumstances and the terms and conditions of the Tribe's TERA. The Tribe will include the agreed-upon periodic review and evaluation process in its final proposed TERA.
(a) The Secretary will conduct a periodic review and evaluation under the TERA, in consultation with the Tribe, and in cooperation with other Departmental bureaus and offices whose activities the Tribe assumed or that perform activities for the Tribe.
(b) The Secretary will communicate with the Designated Tribal Official throughout the process established by this section.
(c) During the periodic review and evaluation, the Secretary will:
(1) Review relevant records and documents, including transactions and reports the Tribe prepares under the TERA;
(2) Conduct on-site inspections as appropriate; and
(3) Review compliance with statutes and regulations applicable to activities undertaken under the TERA.
(d) Review the effect on physical trust assets resulting from activities undertaken under a TERA.
(e) Upon written request, the Tribe should provide the Secretary with records and documents relevant to the provisions of the TERA. In addition, the Tribe should identify any information in these submitted records and documents that is confidential, commercial and financial. Specific exceptions to disclosure under the Freedom of Information Act, or other statutory protections against disclosure, may apply and preclude disclosure of this information to third parties as provided for in § 224.55.
After a periodic review and evaluation, the Secretary must prepare a written report of the results and send the report to the Designated Tribal Official.
The Secretary must conduct a periodic review and evaluation annually during the first 3 years of a TERA. After the third annual review and evaluation, the Secretary and the Tribe may mutually agree to amend the TERA to conduct periodic reviews and evaluations once every 2 years.
The Secretary may conduct additional reviews and evaluations:
(a) At a Tribe's request;
(b) As part of an investigation undertaken when the Tribe notifies the Secretary of a violation or breach;
(c) As part of an investigation undertaken because of a petition submitted under subpart E of this part;
(d) As follow-up to a determination that harm or the potential for harm to a physical trust asset, previously identified in a periodic review and evaluation, exists; or
(e) As the Secretary determines appropriate to carry out the Secretary's trust responsibilities.
This section applies if the Secretary conducts a review and evaluation or investigation of a notice of violation of Federal law or the terms of a TERA.
(a) If the Secretary determines that the Tribe has not complied with Federal law or the terms of a TERA, the Secretary's written 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.
(b) If the Secretary determines that the Tribe's noncompliance may cause harm or has caused harm to a physical trust asset, the Secretary must also determine whether the noncompliance cause imminent jeopardy to a physical trust asset.
If, because of the Tribe's noncompliance with Federal law or the terms of a TERA, the Secretary 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 Secretary 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, which could include temporary suspension of the activity that resulted in non-compliance with the TERA or other applicable Federal laws or rescinding approval of all or part of the TERA.
If the Secretary finds that a Tribe's noncompliance with a Federal law or the terms of a TERA has caused imminent jeopardy to a physical trust asset, the Secretary must:
(a) Immediately notify the Tribe by a telephone call to the Designated Tribal Official followed by a written notice by facsimile to the Designated Tribal Official and the Tribal governing body of the imminent jeopardy to a physical trust asset. The notice must contain:
(1) A description of the Tribe's noncompliance with Federal law or the terms of the TERA;
(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 Secretary to correct any condition that caused the imminent jeopardy to a physical trust asset.
(b) Issue a finding that the Tribe's noncompliance with the TERA or a Federal law has caused imminent jeopardy to a physical trust asset.
(a) Upon receipt of a notice of imminent jeopardy to a physical trust asset, the Tribe must cease specific conduct outlined in the notice or take specific action the Secretary orders that is necessary to correct any condition causing the imminent jeopardy; and
(b) Within 5 days of receiving a notice of imminent jeopardy to a physical trust asset, the Tribe must submit a written response to the Secretary that:
(1) Responds to the Secretary's finding that the Tribe has failed to comply with a Federal law or the terms of the TERA;
(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, cited in the notice, causing imminent jeopardy to a physical trust asset.
If the Tribe does not respond to or does not comply with the Secretary's order under § 224.138(a)(3), the Secretary may take any actions the Secretary deems appropriate to protect the physical trust asset, which may include the immediate reassumption of all activities the Tribe assumed under the TERA. The procedures in subpart G of this part do not apply to reassumption under this section.
(a) If the Tribe responds in a timely manner to the Secretary's order under § 224.138, the Secretary must:
(1) Evaluate the Tribe's response;
(2) Determine whether or not the Tribe has complied with the TERA and the Federal law cited in the notice; and
(3) If the Secretary determines, after reviewing the Tribe's response, that the Tribe has not complied with the TERA or with a Federal law, the 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 any action the Secretary deems necessary to comply with the TERA or Federal law and to protect the physical trust asset; or
(2) Take any action the Secretary deems necessary to protect the physical trust asset, including reassumption under subpart G of this part.
(c) If the Secretary determines, after reviewing the Tribe's response, that the Tribe has complied with the TERA and with Federal law, the Secretary will withdraw the Secretary's order.
(d) The Secretary must base a finding of imminent jeopardy to a physical trust asset on the Tribe's non-compliance with a TERA or violation of a Federal law.