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e-CFR data is current as of September 24, 2020

Title 25Chapter ISubchapter IPart 224 → Subpart E


Title 25: Indians
PART 224—TRIBAL ENERGY RESOURCE AGREEMENTS UNDER THE INDIAN TRIBAL ENERGY DEVELOPMENT AND SELF DETERMINATION ACT


Subpart E—Interested Party Petitions


Contents
§224.100   May a person or entity ask the Secretary to review a Tribe's compliance with a TERA?
§224.101   Who is an interested party?
§224.102   Must a Tribe establish a comment or hearing process for addressing environmental concerns?
§224.103   Must a Tribe establish other public participation processes?
§224.104   Must a Tribe enact Tribal laws, regulations, or procedures permitting a person or entity to allege that a Tribe is not complying with a TERA?
§224.105   How may a person or entity obtain copies of Tribal laws, regulations, or procedures that would permit an allegation of noncompliance with a TERA?
§224.106   If a Tribe has enacted Tribal laws, regulations, or procedures for challenging Tribal action, how must the Tribe respond to a petition?
§224.107   What must a petitioner do before filing a petition with the Secretary?
§224.108   May Tribes offer a resolution of a petitioner's claim?
§224.109   What must a petitioner claim or request in a petition filed with the Secretary?
§224.110   What must a petition to the Secretary contain?
§224.111   When may a petitioner file a petition with the Secretary?
§224.112   What must the Secretary do upon receipt of a petition?
§224.113   What must the Tribe do after it completes petition consultation with the Secretary?
§224.114   How may the Tribe address a petition in its written response?
§224.115   When in the petition process must the Secretary investigate a Tribe's compliance with a TERA?
§224.116   What is the time period in which the Secretary must investigate a Tribe's compliance with a TERA?
§224.117   Must the Secretary make a determination of the Tribe's compliance with a TERA?
§224.118   How must the Tribe respond to the Secretary's notice of the opportunity for a hearing?
§224.119   What must the Secretary do when making a decision on a petition?
§224.120   What action may the Secretary take to ensure compliance with a TERA?
§224.121   How may a Tribe or a petitioner appeal the Secretary's decision about the Tribe's compliance with the TERA?

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§224.100   May a person or entity ask the Secretary to review a Tribe's compliance with a TERA?

In accordance with this subpart, a person or entity that may be an interested party may submit to the Secretary a petition to review a Tribe's compliance with a TERA. However, before filing a petition with the Secretary, a person or entity that may be an interested party must first exhaust Tribal remedies, if a Tribe has provided for such remedies. If a Tribe has not provided for Tribal remedies, a person or entity that may be an interested party may file a petition directly with the Secretary.

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§224.101   Who is an interested party?

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

[84 FR 69613, Dec. 18, 2019]

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§224.102   Must a Tribe establish a comment or hearing process 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 subpart B of this part require a Tribe to establish an environmental review process under a TERA 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 a TERA;

(b) Requires that the Tribe respond to relevant and substantive comments about the environmental impacts of a proposed Tribal action before the Tribe approves a lease, business agreement, or right-of-way; and

(c) Provides for a process for consultation with any affected States regarding off-reservation environmental impacts, if any, resulting from approval of a lease, business agreement, or right-of-way.

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§224.103   Must a Tribe establish other public participation processes?

No. Except for the environmental review process required by the Act and §224.63(b)(1), a Tribe is not required to establish a process for public participation concerning non-environmental issues in a TERA or leases, business agreements or rights-of-way undertaken under a TERA. However, a Tribe may elect to establish procedures that permit the public to participate in public hearings or that expand the scope of matters about which the public may comment.

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§224.104   Must a Tribe enact Tribal laws, regulations, or procedures permitting a person or entity to allege that a Tribe is not complying with a TERA?

No. A Tribe is not required, but may elect, to enact Tribal laws, regulations, or procedures permitting a person or entity that may be an interested party to allege that a Tribe is not complying with its TERA.

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§224.105   How may a person or entity obtain copies of Tribal laws, regulations, or procedures that would permit an allegation of noncompliance with a TERA?

(a) A person or entity that may be an interested party may obtain copies of Tribal laws, regulations, or procedures that establish Tribal remedies that permit a person or entity to allege that the Tribe is not complying with its TERA by making a request to the Tribe in accordance with the TERA and §224.63(g).

(b) Upon obtaining copies of Tribal laws, regulations, or procedures under subsection (a), a person or entity that may be an interested party may file a petition with the Tribe under those Tribal laws, regulations, or procedures.

(c) If the person or entity that may be an interested party files a petition alleging noncompliance with a TERA, the person or entity becomes a petitioner, and the Tribe must respond according to §224.106.

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§224.106   If a Tribe has enacted Tribal laws, regulations, or procedures for challenging Tribal action, how must the Tribe respond to a petition?

If a Tribe has enacted Tribal laws, regulations, or procedures under which a petitioner may file a petition alleging noncompliance with a TERA, the Tribe must:

(a) Within a reasonable time issue a final written decision under the Tribal laws, regulations, or procedures that addresses the claim. The decision may include a determination of whether the petitioner is an interested party;

(b) Provide a copy of its final written decision to the petitioner; and

(c) If the Tribe fails, within a reasonable period, to issue a written decision to a petition that a petitioner brings under applicable Tribal laws, regulations, or procedures the petitioner may file a petition with the Secretary.

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

Before a petitioner may file a petition with the Secretary under this subpart, the petitioner must have exhausted all tribal remedies by participating in any tribal process under §224.106, and available under the laws, regulations, or procedures of the Tribe, including any tribal appeal process.

[84 FR 69613, Dec. 18, 2019]

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§224.108   May Tribes offer a resolution of a petitioner's claim?

Yes. In responding to a petition filed under Tribal laws, regulations or procedures, a Tribe may, with the petitioner's written consent, resolve the petitioner's claims.

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§224.109   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 has failed to comply with terms or provisions of a TERA, and, as a result, the petitioner's interest has sustained or will sustain an adverse environmental impact.

(b) Request that the Secretary review the claims raised in the petition; and

(c) Request that the Secretary take whatever action is necessary to bring a Tribe into compliance with the TERA.

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§224.110   What must a petition to the Secretary contain?

A petition must contain:

(a) The petitioner's name and contact information;

(b) Specific facts demonstrating that the petitioner is an interested party under §224.101, including identification of the affected interest;

(c) Specific facts demonstrating that the petitioner exhausted Tribal remedies, if Tribal laws, regulations, or procedures permitted the petitioner to allege Tribal noncompliance with a TERA;

(d) A description of facts supporting the petitioner's allegation of the Tribe's noncompliance with a TERA;

(e) A description of the adverse environmental impact that the petitioner's interest has sustained or will sustain because of the Tribe's alleged noncompliance with the TERA;

(f) A copy of any written decision the Tribe issued responding to the petitioner's claims;

(g) If applicable, a statement that the Tribe has issued no written decision within a reasonable time related to a claim a petitioner has filed with the Tribe under applicable Tribal laws, regulations, or procedures;

(h) If applicable, a statement and supporting documentation that the Tribe did not respond to the petitioner's request under §224.105(a) for copies of any Tribal laws, regulations, or procedures allowing the petitioner to allege that the Tribe is not complying with a TERA; and

(i) Any other information relevant to the petition.

[73 FR 12821, Mar. 10, 2008, as amended at 84 FR 69613, Dec. 18, 2019]

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§224.111   When may a petitioner file a petition with the Secretary?

(a) A petitioner may file a petition with the Secretary:

(1) By delivering the petition to the Secretary within 30 days of receiving the Tribe's final written decision addressing the allegation of noncompliance under applicable Tribal laws, regulations, or procedures;

(2) Within a reasonable period following the Tribe's constructive denial of the petition under §224.106(c), and the Secretary will determine if the petition is timely in light of the applicable facts and circumstances; or

(3) The Tribe did not respond to the petitioner's request for copies of any Tribal laws, regulations, or procedures under §224.105(a).

(b) A petitioner may file a petition directly with the Secretary if the Tribe has no Tribal laws, regulations or procedures that provide the petitioner an opportunity to allege Tribal noncompliance with a TERA.

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§224.112   What must the Secretary do upon receipt of a petition?

Within 20 days after receiving a petition, the Secretary must:

(a) Notify the Tribe in writing that the Secretary 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 a TERA and alternatives to resolve any noncompliance; and

(d) Notify the Tribe in writing by certified mail, return receipt requested, when the petition consultation is complete.

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§224.113   What must the Tribe do after it completes petition consultation with the Secretary?

(a) Within 45 days of receiving the Secretary's notice that the petition consultation is complete, the Tribe must respond to any claim made in the petition by submitting a written response to the Secretary; and

(b) Within a reasonable time after 45 days following the completion of the petition consultation process, the Tribe must cure or otherwise resolve each claim of noncompliance made in the petition.

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§224.114   How may the Tribe address a petition in its written response?

In addition to responding to the petitioner's claims, the Tribe may also:

(a) Include its interpretation of relevant provisions of the TERA and other legal requirements;

(b) Discuss whether the petitioner is an interested party;

(c) State whether the petitioner has exhausted Tribal remedies, and if so, how; and

(d) Propose to cure or otherwise resolve the claims within the time frame in §224.113(b).

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

The Secretary must investigate the petitioner's claims of the Tribe's noncompliance with a TERA only after making a threshold determination that the petitioner is an interested party and:

(a) The Tribe has denied or failed to respond to each claim made in the petition within the period under §224.113(a); or

(b) The Tribe has failed, refused, or was unable to cure or otherwise resolve each claim made in the petition within a reasonable period, as determined by the Secretary, after the expiration of the period in §224.113(b).

[73 FR 12821, Mar. 10, 2008, as amended at 84 FR 69613, Dec. 18, 2019]

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

(a) If the Secretary determines under §224.115 that one of the threshold determinations in §224.114 has been met, then within 120 days of the Secretary's receipt of a petition, the Secretary must determine:

(1) Whether the petitioner is an interested party; and

(2) If the petitioner is an interested party, whether or not a Tribe is in compliance with the TERA as alleged in the petition;

(b) The Secretary may extend the time for the Tribe making the determinations in paragraph (a) of this section for up to 120 days in any case in which the Secretary determines that additional time is necessary to evaluate the claims in the petition and the Tribe's written response, if any. If the Secretary decides to extend the time, the Secretary must notify the petitioner and the Tribe in writing of the extension.

[84 FR 69613, Dec. 18, 2019]

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§224.117   Must the Secretary make a determination of the Tribe's compliance with a TERA?

(a) Yes. Upon a finding that one of the threshold determinations in §224.115 has been met, the Secretary must make a determination of the Tribe's compliance with a TERA within the time period in §224.116.

(b) If the Secretary determines that the Tribe is in compliance with the TERA, the Secretary will notify the Tribe and the petitioner in writing;

(c) If the Secretary determines that the Tribe is not in compliance with the TERA, the Secretary will notify the Tribe and the petitioner in writing and, in addition, must provide the Tribe:

(1) A written determination that describes the manner in which the TERA has been violated together with a written notice of the violations;

(2) Notice of a reasonable opportunity to comply with the TERA; and

(3) Notice of the Tribe's opportunity for a hearing.

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§224.118   How must the Tribe respond to the Secretary's notice of the opportunity for a hearing?

The Tribe must respond in writing to the Secretary's notice of the opportunity for a hearing within 20 days of receipt of the notice by requesting a hearing or declining to request a hearing. If the Tribe does not respond within the time period, the Secretary will proceed with making a decision without further input from the Tribe.

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

(a) The Secretary must issue a written decision to the Tribe and the petitioner stating the basis for the decision about the Tribe's compliance or noncompliance with the TERA within 30 days following:

(1) A hearing, if the Tribe requested a hearing;

(2) The Tribe's declining the opportunity for a hearing; or

(3) The Tribe's failure to respond to the opportunity for a hearing within 20 days of the Secretary's written notice of the opportunity for a hearing.

(b) If the Secretary decides that the Tribe is not in compliance with the TERA, the Secretary must:

(1) Include findings of fact and conclusions of law with respect to each claim made in the petition in the written decision to the Tribe; and

(2) Take action to ensure compliance with the TERA.

(c) The Secretary will dismiss any petition if the interested party who filed the petition has agreed with the Tribe to a resolution of the claims presented in the petition.

[73 FR 12821, Mar. 10, 2008, as amended at 84 FR 69613, Dec. 18, 2019]

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

If the Secretary decides that a Tribe is not in compliance with a TERA, the Secretary may take only such action as the Secretary determines to be necessary to address the claims of noncompliance made in the petition including:

(a) Temporarily suspending any activity under a lease, business agreement, or right-of-way until the Tribe complies with the TERA; or

(b) Rescinding approval of part of the TERA, or

(c) Rescinding all of the TERA and recommending that the Secretary reassume activities under subpart G of this part.

[73 FR 12821, Mar. 10, 2008, as amended at 84 FR 69614, Dec. 18, 2019]

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§224.121   How may a Tribe or a petitioner appeal the Secretary's decision about the Tribe's compliance with the TERA?

A Tribe or a petitioner, or both, may appeal the Secretary's decision on the petition under §224.119 to the Principal Deputy Assistant Secretary—Indian Affairs under subpart I of this part.

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