This subpart establishes procedures for:
(a) Pre-application and application consultations and process;
(b) Requirements for the content of applications;
(c) Submittal of completed applications; and
(d) Secretarial review and processing of applications.
(a) A Tribe interested in entering into a TERA should request a pre-application consultation by writing to the Secretary. The request should include the name and contact information for the Designated Tribal Official who will coordinate scheduling with the Secretary.
(b) Upon receiving a pre-application consultation request, the Secretary will contact the Designated Tribal Official within 30 days to schedule a pre-application consultation meeting. The Secretary may also initiate pre-application discussions with the Tribal governing body.
(c) At the pre-application consultation meeting, the Tribe and the Secretary 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 a TERA;
(4) The energy resource the Tribe anticipates developing;
(5) The Tribe's capacity to manage and regulate the energy resource development the Tribe identifies;
(6) Potential opportunities for funding capacity-building and other activities related to the energy resource the Tribe anticipates developing under a TERA; and
(7) Any other matters applicable to this part, the Act, and the Tribe.
A TERA under this part:
(a) May include development of all or part of a Tribe's energy resources;
(b) Must specify the type of energy resource included;
(c) May include assumption by the Tribe of certain activities normally carried out by the Department, except for inherently Federal functions; and
(d) Must specify the services or resources related to the specific activity related to energy resource development that the Tribe proposes to assume from the Department.
(a) An application for a TERA must contain all of the following:
(1) A proposed TERA between the Tribe and the Secretary, signed by the authorized representative of the Tribe, that contains the provisions required by § 224.63;
(2) A map, legal description, and general description of the Tribal land that the Tribe intends to include in the TERA;
(3) A statement that meets the requirements in paragraph (b) of this section;
(4) Documentation that the Tribe meets the definition of “qualified Tribe” in § 224.30;
(5) A statement of the scope of administrative activities that the Tribe intends to conduct and an explanation of how that meets the requirements of paragraph (c) of this section;
(6) A copy of the resolution or formal action of the Tribal governing body or bodies under § 224.41 that approves submission of an application for a TERA; and
(7) A designation of, and contact information for, the Designated Tribal Official who will receive notifications from the Secretary or the Secretary regarding the status of the TERA application.
(b) The statement required by paragraph (a)(3) 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 that the TERA includes; and
(2) State one of the following:
(i) The Tribe intends the TERA to include all Tribal land, energy resources, and categories of energy-related leases, business agreements, and rights-of-way; or
(ii) The Tribe intends the TERA to include only certain Tribal land, energy resources, or categories of energy-related leases, business agreements, or rights-of-way in the TERA. In this case, the statement must specify and describe the Tribal land, energy resources, or categories of energy-related leases, business agreements, or rights-of-way that the Tribe intends to include in the TERA.
(3) State the Tribe's intent to amend or modify leases, business agreements, or rights-of-way that exist when a TERA is approved if those activities are directly related to the activities authorized by the TERA. The Tribe's ability to amend or modify such leases, business agreements or rights-of-way requires the agreement of the other parties to the lease, business agreement or rights-of-way, which must be stated in the TERA.
(c) The statement required by paragraph (a)(5) of this section must describe the amount of administrative activities related to the permitting, approval, and monitoring of activities, as applicable, that the Tribe proposes to undertake under any lease, business agreement, or right-of-way the Tribe executes under an approved TERA.
(1) If the Tribe proposes to regulate activities, the Tribe must state its intent and describe the scope of the Tribe's plan for such administration and management.
(2) The Tribe's intended scope of administrative responsibilities may not include the responsibilities of the Federal Government under the Endangered Species Act or other inherently Federal functions.
(3) If the Tribe intends to regulate activities, it should also describe the regulatory activities it desires to assume in the geographical area identified in § 224.53(c)(2) with respect to leases, business agreements, and rights-of-way that exist when a TERA is approved.
A Tribe must submit an application and all supporting documents in a searchable portable document format (PDF) to TERA@bia.gov.
[84 FR 69611, Dec. 18, 2019]
(a) Information a Tribe submits to the Department throughout the TERA process under this part may be subject to disclosure to third parties under FOIA unless a FOIA exemption or exception applies or other provisions of law protect the information.
(b) A Tribe may, but is not required to, designate information it submits as confidential commercially or financially sensitive information, as applicable, in any submissions it makes throughout the TERA process, including, but not limited to:
(1) Pre-application information;
(2) Application information
(3) A final proposed TERA;
(4) Any amendments to a TERA; and
(5) Leases, business agreements, and grants of right-of-way executed under an approved TERA.
(c) Upon receipt of a FOIA request for records that contain commercial or financial information a Tribe has submitted under the TERA process, as required by 43 CFR part 2 the Department will provide the Tribe, as submitter, with written notice of the FOIA request if:
(1) The Tribe has designated the information as confidential commercial or financial information; or
(2) The Department has reason to believe that the information requested may be protected under FOIA Exemption 4 (trade secrets and commercial or financial information which is obtained from a person and is privileged or confidential).
(d) The notice to the Tribe will:
(1) Include a copy of the FOIA request;
(2) Describe the information requested or include copies of the pertinent records;
(3) Advise the Tribe of procedures for objecting to the release of the requested information and specify the time limit for the Tribe's response;
(4) Give the Tribe no less than ten (10) working days from the Department's notice to object to the release and explain the basis for objection, if any;
(5) Advise the Tribe that:
(i) Information contained in the Tribe's objections may be subject to disclosure under FOIA if the Department receives a FOIA request for it; and
(ii) If the Tribe's objections contain commercial or financial information and a requestor asks for the objections under FOIA, the same notification procedures as above will apply;
(6) Advise the Tribe that it is the Department, rather than the Tribe, that is responsible for deciding whether the information will be released or withheld;
(7) If the Tribe designated the information as commercial or financial information 10 or more years before the FOIA request, the Department will request the Tribe's views on whether the Tribe still considers the information to be confidential;
(e) If the Tribe has any objection to disclosure of the information, the Tribe must submit a detailed written statement to the Department including the following:
(1) The justification for withholding any portion of the information under any exemption of FOIA, and if the applicable exemption is Exemption 4, the Tribe must submit a specific and detailed discussion of:
(i) Whether the Federal government required the information to be submitted, and, if so, how substantial competitive harm or other business harm would likely result from release of the information; or
(ii) Whether the Tribe provided the information voluntarily and, if so, how the information fits into a category of information that the Tribe customarily does not release to the public;
(2) A certification that the information is confidential, has not been disclosed to the public by the Tribe, and is essentially non-public because it is not routinely available to the public from other sources;
(3) If not already provided, a Tribal contact telephone and fax number so that the Department can communicate with the Tribe about the FOIA request;
(f) The Department will review and consider all objections to release that are received within the time limits specified in the notice to the Tribe, and if the Tribe does not respond within the time limits specified in the notice, the Department will presume that the Tribe has no objection to release of the information;
(g) If the Department decides to release the information over the objection of the Tribe, it will notify the Tribe in writing by certified mail, return receipt requested, and will include copies of the records the Department intends to release and the reasons for deciding to release them. The notice will also inform the Tribe that it intends to release the records within 10 working days after the Tribe's receipt of the notice.
The Secretary's receipt of a qualified Tribe's complete application begins a 270-day statutorily mandated period during which the Secretary must approve or disapprove a proposed TERA. The TERA takes effect upon the 271st day after the Secretary's receipt of a complete application from a qualified Tribe, unless the Secretary approves the TERA to take effect on an earlier date, or the Secretary disapproves the application before that date.
[84 FR 69611, Dec. 18, 2019]
(a) Upon receiving an application for a TERA, the Secretary must:
(1) Promptly notify the Designated Tribal Official in writing that the Secretary has received the application and the date it was received;
(2) Within 30 days from the date of receiving the application, determine whether the application is complete; and
(3) Take the following actions:
|If the Secretary determines that . . .||Then the Secretary must . . .|
|(i) The application is complete||(A) Issue a written notice and a request for an application consultation meeting to the Designated Tribal Official; and
(B) Identify in the written notice any financial assistance available from the Secretary to assist in implementing the TERA, including environmental review of individual projects; and
(C) If appropriate, notify other Departmental bureaus and offices of receiving the application and provide copies.
|(ii) The application is not complete||(A) Issue a written notice to the Designated Tribal Official that the application is not complete;
(B) Specify the additional information the Tribe is required to submit to make the application complete; and
(C) Start the 270-day review period only when the Secretary receives a complete application.
(b) Unless the Secretary notifies the Designated Tribal Official during the 30-day review period that the application is not complete, the application is presumed to be complete and the 270-day review period under 25 U.S.C. 3504(e)(2)(A) of the Act will begin as of the date that the application was received.
An application consultation meeting is a meeting held at the Tribe's headquarters between the Secretary and the Tribal governing body and any other representatives that the Tribe may designate to discuss the TERA application. The Secretary will designate representatives of appropriate Departmental offices or bureaus to attend the application consultation meeting, as necessary. The Tribe may record the meeting. The meeting will:
(a) Be held at the earliest practicable time after the Secretary receives a Tribe's complete application;
(b) Include a thorough discussion of the Tribe's application;
(c) Identify the specific services consistent with the Secretary's ongoing trust responsibility and available resources that the Department would provide to the Tribe upon the approval of a TERA;
(d) 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;
(e) 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 a TERA or by leases, business agreements, or rights-of-way that the Tribe may enter into or grant under an approved TERA;
(f) Include a discussion of the Tribal administrative, financial, technical, and managerial capacities needed to carry out the Tribe's obligations under a TERA; and
(g) Include a discussion of the form of the TERA and the timing and relative responsibilities of the parties for its preparation.
The Secretary will use the information gathered during the application consultation meeting in conjunction with information provided through §§ 224.53 and 224.63 to determine whether to recommend any revisions to the proposed TERA.
[84 FR 69612, Dec. 18, 2019]
Within 30 days following the meeting with the Tribe, the Secretary will provide to the Designated Tribal Official a written report on the application consultation meeting. The report must include the Secretary's recommendations, if any, for revising the proposed TERA that was submitted as part of the Tribe's application.
If the Tribe wishes to proceed with the application, the Tribe must submit a final proposed TERA to the Secretary within 45 days following the date of the Tribe's receipt of the Secretary's report on the application consultation meeting.
The final proposed TERA may or may not contain provisions that differ from the original proposed TERA submitted with the application. In either case, the 270-day review period will begin to run on the date the original complete application was received (under § 224.57).
[84 FR 69612, Dec. 18, 2019]
A TERA must contain all the elements required by this section.
(a) A provision for the Secretary's periodic review and evaluation of the Tribe's performance under a TERA.
(b) A provision that recognizes 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 protect the asset, including reassumption under subparts F and G of this part.
(c) A provision under which the Tribe establishes and ensures compliance with an environmental review process for leases, business agreements, and rights-of-way which, at a minimum:
(1) Informs the public and provides opportunity for public comment on the environmental impacts of the approval of the lease, business agreement or right-of-way;
(2) Provides for Tribal responses to relevant and substantive public comments before Tribal approval of the lease, business agreement or right-of-way;
(3) Provides for sufficient Tribal administrative support and technical capability to carry out the environmental review process; and
(4) Develops adequate Tribal oversight of energy resource development activities under any lease, business agreement or right-of-way under a TERA that any other party conducts to determine whether the activities comply with the TERA and applicable Federal and Tribal environmental laws.
(d) Provisions that require, with respect to any lease, business agreement, or right-of-way approved under a TERA, all of the following:
(1) Express limitations on duration that meet the restrictions of the Act and this Part under § 224.86;
(2) Mechanisms for amendment, transfer, and renewal;
(3) Mechanisms for obtaining, reporting and evaluating the economic return to the Tribe;
(4) Assurances of the Tribe's compliance with all applicable environmental laws;
(5) Requirements that the lessee, operator, or right-of-way grantee will comply with all applicable environmental laws;
(6) Identification of Tribal representatives with the authority to approve a lease, business agreement, or right-of-way and the related energy development activities that would occur under a lease, business agreement, or right-of-way;
(7) Public notification that a lease, business agreement, or right-of-way has received final Tribal approval;
(8) A process for consultation with affected States regarding off-reservation impacts, if any, identified under paragraph (c) of this section;
(9) A description of remedies for breach;
(10) A statement that any provision that violates an express term or requirement of the TERA is null and void;
(11) A statement that if the Secretary determines that any provision that violates an express term or requirement of the TERA is material, the Secretary may suspend or rescind the lease, business agreement, or right-of-way, or take any action the Secretary determines to be in the best interest of the Tribe, including, with the consent of the parties, revising the nonconforming provisions so that they conform to the intent of the applicable portion of the TERA; and
(12) A statement that the lease, business agreement, or right-of-way subject to a TERA, unless otherwise provided, goes into effect when the Tribe delivers executed copies of the lease, business agreement, or right-of-way to the Secretary by first class mail return receipt requested or express delivery. The parties to a lease, business agreement, or right-of-way may agree in writing that any provision of their contract may have retroactive application.
(e) Citations to any applicable Tribal laws, regulations, or procedures that:
(1) Provide opportunity for the public to comment on and to participate in public hearings, if any, under paragraph (c)(2) of this section; and
(2) Provide remedies that petitioning parties must exhaust before filing a petition with the Secretary under subpart E of this part.
(f) Provisions that require a Tribe to provide the Secretary with citations to any Tribal laws, regulations, or procedures the Tribe adopts after the effective date of a TERA that establish, amend, or supplement Tribal remedies that petitioning parties must exhaust before filing a petition with the Secretary under subpart E of this part.
(g) Provisions that designate a person or entity, together with contact information, authorized by the Tribe to maintain and disseminate to requesting members of the public current copies of Tribal laws, regulations, or procedures that establish or describe Tribal remedies that petitioning parties must exhaust before instituting appeals under subpart E of this part.
(h) Identification of financial assistance, if any, that the Secretary has agreed to provide to the Tribe to assist in implementation of the TERA, including the Tribe's environmental review of individual energy development activities.
(i) Provisions that require a Tribe to notify the Secretary and the Secretary in writing, as soon as practicable after the Tribe receives notice, of a violation or breach as defined in this Part.
(j) Provisions that require the Tribe and the Tribe's financial experts to adhere to Government auditing standards and to applicable continuing professional education requirements.
(k) Provisions that require the Tribe to submit to the Secretary information and documentation of payments made directly to the Tribe, if any. These provisions enable the Secretary to discharge the trust responsibility of the United States to enforce the terms of, and protect the rights of the Tribe under, a lease, business agreement, or right-of-way. Required documentation must include documents evidencing proof of payment such as cancelled checks; cash receipt vouchers; copies of money orders or cashiers checks; or verification of electronic payments.
(l) Provisions that ensure the creation, maintenance and preservation of records related to leases, business agreements, or rights-of-way and performance of activities a Tribe assumed under a TERA sufficient to facilitate the Secretary's periodic review of the TERA. The Secretary will use these records as part of the periodic review and evaluation process under § 224.132. Approved Departmental records retention procedures under the Federal Records Act (44 U.S.C. Chapters 29, 31, and 33) provide a framework the Tribe may use to ensure that its records under a TERA adequately document essential transactions, furnish information necessary to protect its legal and financial rights, and enable the Secretary to discharge the trust responsibility if:
(1) Any other party violates the terms of any lease, business agreement, or right-of-way; or
(2) Any provision of a lease, business agreement or right-of-way violates the TERA.
(m) At the option of the Tribe, identify which functions, if any, the Tribe intends to conduct to authorize any operational or development activities pursuant to a lease, business agreement, or right-of-way approved by the Tribe.
(a) In order for a Tribe to assume authority for approving leases, business agreements, and rights-of-way for the development of another energy resource that is not included in the TERA, a Tribe must submit to the Secretary:
(1) An amendment to the TERA that specifies and describes the additional Tribal land, energy resources, or categories of energy-related leases, business agreements, or rights-of-way that the Tribe intends to include in the TERA; and
(2) A copy of the resolution or formal action of the Tribal governing body, or Tribal governing bodies if the land is held for the benefit of more than one Tribe, that approves submission of the TERA amendment.
(d) Each Tribal governing body that is party to the TERA must sign the TERA amendment upon approval.
[84 FR 69612, Dec. 18, 2019]
A Tribe may assume additional activities related to the development of the same type of energy resource included in a TERA by negotiating with the Secretary an amendment to the existing TERA to include the additional activities.
A Tribe may reduce the scope of the TERA by negotiating with the Secretary an amendment to the existing TERA to eliminate an activity assumed under the TERA or a type of energy resource development managed under the TERA. Any such reduction in scope must include the return of all relevant Departmental resources transferred under the TERA and any relevant records and documents.
(a) Within 10 days of the Secretary's receipt of a final proposed TERA, the Secretary must submit a notice for publication in the Federal Register advising the public:
(1) That the Secretary is considering a final proposed TERA for approval or disapproval: and
(2) Of any National Environmental Policy Act (NEPA) review the Secretary is conducting.
(b) The Federal Register notice will:
(1) Contain information advising the public how to request and receive copies of or participate in any NEPA reviews, as prescribed in subpart C of this part, related to approval of the final proposed TERA; and
(2) Contain information advising the public how to comment on a final proposed TERA.
(a) The Secretary will review and consider public comments in deciding to approve or disapprove the final proposed TERA; and
(b) The Secretary will provide copies of the comments to the Designated Tribal Official;
(c) Upon mutual agreement between the Tribe and the Secretary, the Tribe may make changes in the final proposed TERA based on the comments received; and
(d) If the Tribe revises the final proposed TERA based on public comments, the Tribal governing body must approve the changes, the authorized representative of the Tribe must sign the final proposed TERA as revised, and the Tribe must send the revised final proposed TERA to the Secretary.