[Federal Register Volume 79, Number 116 (Tuesday, June 17, 2014)]
[Proposed Rules]
[Pages 34455-34474]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-13964]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 169

[Docket ID: BIA-2014-0001; DR.5B711.IA000814]
RIN 1076-AF20


Rights-of-Way on Indian Land

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would comprehensively update and streamline 
the process for obtaining BIA grants of rights-of-way on Indian land, 
while supporting tribal self-determination and self-governance. This 
proposed rule would also further implement the policy decisions and 
approaches established in the leasing regulations, which BIA finalized 
in December 2012, by applying them to the rights-of-way context where 
applicable. This publication also announces the dates and locations for 
tribal consultation sessions to discuss this proposed rights-of-way 
rule.

DATES: Comments on this rule must be received by August 18, 2014. 
Comments on the information collections contained in this proposed 
regulation are separate from those on the substance of the rule. 
Comments on the information collection burden should be received by 
July 17, 2014 to ensure consideration, but must be received no later 
than August 18, 2014. Please see the SUPPLEMENTARY INFORMATION section 
of this notice for dates of tribal consultation sessions.

ADDRESSES: You may submit comments by any of the following methods:

--Federal rulemaking portal: http://www.regulations.gov. The rule is 
listed under the agency name ``Bureau of Indian Affairs.'' The rule has 
been assigned Docket ID: BIA-2014-0001.
--Email: [email protected]. Include the number 1076-AF20 in the 
subject line.
--Mail or Hand Delivery: Elizabeth Appel, Office of Regulatory Affairs 
& Collaborative Action, U.S. Department of the Interior, 1849 C Street 
NW., MS 4141, Washington, DC 20240. Include the number 1076-AF20 on the 
envelope.

    Please note that we will not consider or include in the docket for 
this rulemaking comments received after the close of the comment period 
(see DATES) or comments sent to an address other than those listed 
above.
    Comments on the information collections contained in this proposed 
regulation are separate from those on the substance of the rule. Send 
comments on the information collection burden to OMB by facsimile to 
(202) 395-5806 or email to the OMB Desk Officer for the Department of 
the Interior at [email protected]. Please send a copy of 
your comments to the person listed in the FOR FURTHER INFORMATION 
CONTACT section of this notice.
    Please see the SUPPLEMENTARY INFORMATION section of this notice for 
addresses of tribal consultation sessions.

FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Director, Office of 
Regulatory Affairs & Collaborative Action, (202) 273-4680; 
[email protected]. You may review the information collection 
request online at http://www.reginfo.gov. Follow the instructions to 
review Department of the Interior collections under review by OMB.

SUPPLEMENTARY INFORMATION:

I. Executive Summary of Rule

    This is a proposed rule to comprehensively update and streamline 
the process for obtaining BIA grants of rights-of-way on Indian land. 
The current regulations were promulgated in 1968, and last updated in 
1980. In December 2012, the Department issued final regulations 
comprehensively reforming residential, business, and wind and solar 
leasing on Indian land and streamlining the leasing process. Given the 
supportive response to the leasing regulatory revisions, we are 
updating 25 CFR 169 (Rights-of-Way) to mirror those revisions to the 
extent applicable in the rights-of-way context. Highlights of the 
proposed rights-of-way revisions include:
    [cir] Eliminating the need to obtain BIA consent for surveying in 
preparation for a right-of-way;
    [cir] Establishing timelines for BIA review of rights-of-way 
requests;
    [cir] Clarifying processes for BIA review of right-of-way 
documents;
    [cir] Allowing BIA disapproval only where there is a stated 
compelling reason;
    [cir] Providing greater deference to Tribes on compensation for 
rights-of-way;
    [cir] Clarifying the authority by which BIA approves rights-of-way; 
and
    [cir] Eliminating outdated requirements specific to different types 
of rights-of-way.

Together, these revisions will modernize the rights-of-way approval 
process while better supporting Tribal self-determination. This rule 
also updates the regulations to be in a question-and-answer format, in 
compliance with ``plain language'' requirements.

II. Summary of All Revisions to 25 CFR Part 169

    The following table summarizes revisions to part 169, by showing 
where the substance of each section of the current rule is in the 
proposed rule and describing the changes.

[[Page 34456]]



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     Current 25 CFR Sec.            Current provision         Proposed 25 CFR Sec.        Description of change
----------------------------------------------------------------------------------------------------------------
169.1.........................  Definitions of            169.002......................  Revises the definition
                                 ``Secretary,''                                           of ``tribe'' to be
                                 ``individually owned                                     ``Indian tribe'' and
                                 land,'' ``tribe'',                                       to refer to the
                                 ``tribal land,'' and                                     Federal List Act.
                                 ``Government owned                                       Simplifies the
                                 land.''.                                                 remaining definitions.
                                                                                          Adds definitions for
                                                                                          ``abandonment,''
                                                                                          ``assignment,''
                                                                                          ``avigation hazard
                                                                                          easement,'' ``BIA,''
                                                                                          ``compensation,''
                                                                                          ``constructive
                                                                                          notice,''
                                                                                          ``easement,''
                                                                                          ``fractional
                                                                                          interest,'' ``grant,''
                                                                                          ``grantee,''
                                                                                          ``immediate family,''
                                                                                          ``Indian,'' ``Indian
                                                                                          land,'' ``in-kind
                                                                                          compensation,''
                                                                                          ``legal description,''
                                                                                          ``LTRO,'' ``map of
                                                                                          definite location,''
                                                                                          ``market value,''
                                                                                          ``right-of-way,''
                                                                                          ``right-of-way
                                                                                          document,'' ``Section
                                                                                          17 corporation,''
                                                                                          ``service line,''
                                                                                          ``trespass,'' ``tribal
                                                                                          authorization,''
                                                                                          ``trust account,''
                                                                                          ``trust account
                                                                                          encumbrance,'' ``trust
                                                                                          and restricted
                                                                                          status,'' ``Uniform
                                                                                          Standards for
                                                                                          Professional Appraisal
                                                                                          Practice (USPAP),''
                                                                                          and ``us/we/our.''
169.2(a), (c).................  Purpose and scope of      169.001......................  Updates the purpose of
                                 regulations.                                             the regulations to
                                                                                          provide that BIA will
                                                                                          use its general
                                                                                          statutory authority
                                                                                          for granting rights-of-
                                                                                          way.
N/A...........................  N/A.....................  169.003-169.010..............  New sections. Specify
                                                                                          what land part 169
                                                                                          applies to, when a
                                                                                          right-of-way is
                                                                                          needed, what types of
                                                                                          rights-of-way are
                                                                                          covered by part 169,
                                                                                          whether part 169
                                                                                          applies to rights-of-
                                                                                          way applications
                                                                                          submitted before this
                                                                                          version of the rule,
                                                                                          that tribes may
                                                                                          compact or contract
                                                                                          for certain BIA realty
                                                                                          functions related to
                                                                                          rights-of-way, what
                                                                                          laws apply to rights-
                                                                                          of-way, what taxes
                                                                                          apply to rights-of-
                                                                                          way, and how BIA
                                                                                          provides notice of its
                                                                                          actions related to
                                                                                          rights-of-way.
169.2(b)......................  Appeals.................  169.011......................  Adds exceptions to part
                                                                                          2 appeals and
                                                                                          clarifies ``interested
                                                                                          party'' to make
                                                                                          consistent with
                                                                                          availability of
                                                                                          appeals in the leasing
                                                                                          context.
169.3(a)......................  Tribal consent required.  169.106......................  No substantive change.
169.3(b)-(c)..................  Individual Indian         169.107, 169.108.............  Adds a requirement for
                                 landowner consent                                        BIA to provide 30-day
                                 required.                                                notice to landowners
                                                                                          on whose behalf it
                                                                                          will consent.
                                                                                          Reorganizes to
                                                                                          establish whom BIA can
                                                                                          consent on behalf of.
                                                                                          Updates to comply with
                                                                                          statutory authorities
                                                                                          that have been updated
                                                                                          since the last
                                                                                          regulatory revision.
169.4.........................  Permission to survey....  169.101(b)...................  Removes the requirement
                                                                                          for BIA approval to
                                                                                          survey, but retains
                                                                                          the requirement for
                                                                                          obtaining landowner
                                                                                          consent to survey.
169.5.........................  Application for right-of- 169.101-169.102, 169.121.....  Removes requirement for
                                 way.                                                     duplicate filing and
                                                                                          statutory citation.
                                                                                          Consolidates
                                                                                          provisions and
                                                                                          provides that they
                                                                                          will be issued in the
                                                                                          grant, rather than
                                                                                          requiring grantee to
                                                                                          submit them in a
                                                                                          stipulation with the
                                                                                          application. Clarifies
                                                                                          that application must
                                                                                          identify the affected
                                                                                          tract, right-of-way
                                                                                          location, purpose, and
                                                                                          duration, and
                                                                                          ownership of any
                                                                                          permanent
                                                                                          improvements. Adds
                                                                                          that the following
                                                                                          must accompany the
                                                                                          application: legal
                                                                                          description, bond, and
                                                                                          information necessary
                                                                                          to comply with
                                                                                          environmental laws.
N/A...........................  N/A.....................  169.105......................  Establishes requirement
                                                                                          for due diligence in
                                                                                          construction of
                                                                                          permanent
                                                                                          improvements.
169.6.........................  Maps. Requires maps of    162.102(b)...................  Removes specific
                                 definite location on                                     requirements for
                                 tracing linen or other                                   format of map of
                                 ``permanent and                                          definite location
                                 reproducible                                             (e.g., tracing linen),
                                 material.'' Requires a                                   scale, etc. Adds
                                 separate map for each                                    requirement that map
                                 20 miles, a specific                                     be signed by a
                                 scale, and the parcels,                                  professional surveyor
                                 sections, townships,                                     or engineer.
                                 and ranges affected.
169.7.........................  Field notes. Requires     N/A..........................  Deleted.
                                 field notes either on
                                 map or submitted
                                 separately.

[[Page 34457]]

 
169.8.........................  Public survey. Requires   169.002......................  Definition of map of
                                 terminal of line of                                      definite location
                                 route to be fixed to                                     requires it to include
                                 nearest corner of                                        reference to a public
                                 public survey and, if                                    survey.
                                 terminal is on
                                 unsurveyed land, be
                                 connected with corner
                                 of public survey < 6
                                 miles away.
169.9.........................  Connection with natural   N/A..........................  Deleted. Legal
                                 objects. Requires                                        description and map
                                 connection with natural                                  make this unnecessary.
                                 object or permanent
                                 monument if distance to
                                 an established corner
                                 of the public survey is
                                 > 6 miles.
169.10........................  Township and section      169.002......................  Definition of map of
                                 lines. Requires map to                                   definite location
                                 show distance to                                         requires it to include
                                 nearest corner if line                                   reference to a public
                                 of survey crosses a                                      survey
                                 township or section
                                 line of public survey.
169.11........................  Affidavit and             169.102(b)(2)................  Maintains the
                                 certificate. Requires                                    requirement for an
                                 map to include an                                        engineer to sign the
                                 affidavit by engineer                                    map, but adds that a
                                 and certificate by                                       surveyor may sign the
                                 applicant on accuracy.                                   map instead. Deletes
                                 Requires BIA-built                                       requirement for
                                 roads transferred to                                     applicant to sign a
                                 county or State to                                       certificate regarding
                                 include affidavit by                                     the map's accuracy,
                                 BIA engineer and State                                   because the rule
                                 officer on accuracy.                                     otherwise requires
                                                                                          that the map be
                                                                                          accurate. Deletes the
                                                                                          section on maps
                                                                                          covering BIA roads to
                                                                                          be transferred to a
                                                                                          county or State.
169.12........................  Consideration for right-  169.109-169.111..............  Provides that the
                                 of-way grants. Requires                                  Secretary will defer
                                 fair market value and                                    to the tribe's
                                 requires the Secretary                                   negotiated
                                 to obtain and advise                                     compensation for
                                 landowner of appraisal                                   tribal land. Maintains
                                 information.                                             requirement for fair
                                                                                          market value and a
                                                                                          valuation for
                                                                                          individually owned
                                                                                          Indian land, but adds
                                                                                          exceptions. Allows for
                                                                                          market value to be
                                                                                          determined by several
                                                                                          methods (in addition
                                                                                          to, or instead of,
                                                                                          appraisals).
N/A...........................  N/A.....................  169.112-169.117..............  New sections. Clarify
                                                                                          when compensation
                                                                                          payments may be due
                                                                                          for a right-of-way,
                                                                                          allowing for
                                                                                          agreements to make
                                                                                          payment at times other
                                                                                          than upon application,
                                                                                          require the right-of-
                                                                                          way grant to specify
                                                                                          how payment occurs
                                                                                          (direct pay or to BIA)
                                                                                          and put limits on
                                                                                          availability of direct
                                                                                          pay, allow for non-
                                                                                          monetary (e.g.,
                                                                                          discount internet
                                                                                          service) and varying
                                                                                          types of compensation,
                                                                                          clarify whether BIA
                                                                                          will notify when a
                                                                                          payment is due, and
                                                                                          clarify when right-of-
                                                                                          way grant must provide
                                                                                          for compensation
                                                                                          reviews or
                                                                                          adjustments.
169.13........................  Other damages. Requires   169.118......................  Adds other charges that
                                 grantee to pay all                                       grantee may be subject
                                 damages incident to the                                  to.
                                 survey or construction
                                 or maintenance of the
                                 facility for which the
                                 right-of-way is granted.
169.14........................  Deposit and disbursement  169.103......................  Requires estimated
                                 of consideration and                                     damages payment to be
                                 damages. Requires                                        in the form of a bond
                                 applicant to deposit                                     or alternative
                                 total estimated                                          security. Deletes
                                 consideration and                                        reference to ``special
                                 damages with                                             deposit'' accounts,
                                 application. Requires                                    because the specific
                                 amounts to be held in                                    accounts into which
                                 ``special deposit''                                      compensation would be
                                 accounts.                                                deposited is outside
                                                                                          the scope of this
                                                                                          regulation.
165.15........................  Action on application.    169.119-169.120..............  Establishes the process
                                 Provides that Secretary                                  and criteria by which
                                 may grant right-of-way,                                  BIA will grant a right-
                                 with attached maps of                                    of-way. Establishes
                                 definite location.                                       deadlines for BIA
                                 Allows Secretary to                                      action. Maintains
                                 issue one document for                                   flexibility for
                                 all tracts traversed by                                  Secretary to issue one
                                 the right-of-way, or                                     document or separate
                                 separate documents.                                      documents for multiple
                                                                                          tracts.
169.16........................  Affidavit of Completion.  N/A..........................  Deleted.
                                 Requires applicant to
                                 file an affidavit of
                                 completion once a right-
                                 of-way is constructed.
N/A...........................  N/A.....................  161.122......................  New section. Clarifies
                                                                                          that a right-of-way
                                                                                          grant may include a
                                                                                          preference for
                                                                                          employment of tribal
                                                                                          members.
N/A...........................  N/A.....................  161.123......................  New section. Clarifies
                                                                                          when a new right-of-
                                                                                          way is required for a
                                                                                          new use within or
                                                                                          overlapping an
                                                                                          existing right-of-way.
169.17........................  Change of location.       169.124......................  Allows flexibility for
                                 Requires a new right-of-                                 BIA to determine
                                 way, including consent,                                  whether a new right-of-
                                 amended maps, etc., if                                   way and/or consent,
                                 a change from the                                        amended maps, etc.,
                                 location in the grant                                    are required based on
                                 is necessary due to                                      whether the use is
                                 engineering                                              provided for or is
                                 difficulties or                                          within the same scope
                                 otherwise.                                               of use provided for in
                                                                                          the original grant.

[[Page 34458]]

 
169.18........................  Tenure of approved right- 169.201......................  Provides guidance to
                                 of-way grants. Provides                                  BIA staff for
                                 that rights-of-way                                       determining
                                 under 1948 Act may be                                    appropriate duration
                                 without limitation as                                    of a right-of-way
                                 to term of years,                                        based on purpose of
                                 except as stated in the                                  the right-of-way.
                                 grant, but all others                                    Eliminates distinction
                                 may not exceed 50                                        between rights-of-way
                                 years, as determined by                                  under the 1948 Act and
                                 BIA.                                                     others
169.19........................  Renewal of right-of-way   169.202......................  Allows a renewal
                                 grants. Allows                                           without consent if the
                                 applications for                                         original grant
                                 renewal where no change                                  provides for it.
                                 in location or status,
                                 with consent and
                                 consideration. Requires
                                 new right-of-way
                                 application if there is
                                 any change to the size,
                                 type, or location.
N/A...........................  N/A.....................  169.203......................  New section. Clarifies
                                                                                          when a right-of-way
                                                                                          may be renewed
                                                                                          multiple times.
N/A...........................  N/A.....................  169.204-169.206..............  New sections. Clarify
                                                                                          the circumstances in
                                                                                          which a right-of-way
                                                                                          may be amended, and
                                                                                          the process for
                                                                                          amending.
N/A...........................  N/A.....................  169.207-169.209..............  New sections. Clarify
                                                                                          the circumstances in
                                                                                          which a right-of-way
                                                                                          may be assigned, and
                                                                                          the process for
                                                                                          assigning.
N/A...........................  N/A.....................  169.210-169.212..............  New sections. Clarify
                                                                                          the circumstances in
                                                                                          which a right-of-way
                                                                                          may be mortgaged, and
                                                                                          the process for
                                                                                          mortgaging.
N/A...........................  N/A.....................  169.301-169.305..............  New sections. Clarify
                                                                                          when a right-of-way is
                                                                                          effective and must be
                                                                                          recorded, what happens
                                                                                          if BIA denies the
                                                                                          right-of-way or does
                                                                                          not meet a deadline
                                                                                          for issuing a decision
                                                                                          on a right-of-way, and
                                                                                          whether appeal bonds
                                                                                          are required.
N/A...........................  N/A.....................  169.401-169.402..............  New sections. Clarify
                                                                                          when BIA may
                                                                                          investigate compliance
                                                                                          with a right-of-way.
169.20........................  Termination of right-of-  169.403-169.405..............  Allows landowners to
                                 way grants. Provides                                     provide for negotiated
                                 that the Secretary may                                   remedies, including
                                 terminate a right-of-                                    termination without
                                 way with 30-day notice                                   BIA concurrence (where
                                 for certain causes.                                      tribe is landowner) or
                                                                                          with BIA concurrence
                                                                                          (where individual
                                                                                          Indians are
                                                                                          landowners). Provides
                                                                                          that BIA will consult
                                                                                          with the landowners
                                                                                          before determining
                                                                                          whether to cancel the
                                                                                          grant.
N/A...........................  N/A.....................  169.406-169.407..............  New sections. Specify
                                                                                          what late payment
                                                                                          charges and fees apply
                                                                                          to delinquent payments
                                                                                          and how payment rights
                                                                                          will be allocated.
N/A...........................  N/A.....................  169.408-169.409..............  New sections. Specify
                                                                                          the process by which
                                                                                          BIA will cancel a
                                                                                          right-of-way and when
                                                                                          cancellation is
                                                                                          effective.
N/A...........................  N/A.....................  169.410-169.412..............  New sections. Specify
                                                                                          what BIA will do if a
                                                                                          grantee remains in
                                                                                          possession after a
                                                                                          right-of-way expires
                                                                                          or is terminated or
                                                                                          cancelled, what appeal
                                                                                          bond regulations apply
                                                                                          to cancellation
                                                                                          decisions, and what
                                                                                          happens if someone
                                                                                          uses Indian land
                                                                                          without a right-of-way
                                                                                          or other proper
                                                                                          authorization.
169.21........................  Condemnation actions      N/A..........................  Deleted.
                                 involving individually
                                 owned lands. Requires
                                 that BIA report
                                 condemnation actions to
                                 Interior.
169.22........................  Service lines. Requires   169.002, 169.501-169.505.....  Clarifies in definition
                                 execution of service                                     that a service line is
                                 line agreements. Limits                                  only a utility line
                                 service lines to                                         running from a main
                                 certain voltage.                                         line to provide
                                 Requires tribe's                                         landowners/occupants
                                 governing body to                                        with utility service
                                 consent to service line                                  and deletes provisions
                                 agreements for tribal                                    restricting service
                                 land. Requires only a                                    lines to a specific
                                 plat or diagram showing                                  voltage.
                                 location, size and
                                 extent of line.
                                 Requires filing of
                                 agreement with
                                 Secretary within 30
                                 days of execution.
169.23........................  Railroads. Lists          N/A..........................  Deleted. These
                                 specific statutory                                       provisions are
                                 authorities for                                          unnecessary because
                                 railroads and other                                      the general right-of-
                                 rights-of-way, and                                       way authority in 25
                                 includes specific                                        U.S.C. 323-328 is
                                 requirements for                                         being relied upon,
                                 railroad right-of-ways.                                  rather than specific
                                                                                          authorities.
169.24........................  Railroads in Oklahoma.    N/A..........................  Deleted. These
                                 Lists specific                                           provisions are
                                 statutory authorities                                    unnecessary because
                                 for railroad rights-of-                                  the general right-of-
                                 way in Oklahoma.                                         way authority in 25
                                                                                          U.S.C. 323-328 is
                                                                                          being relied upon,
                                                                                          rather than specific
                                                                                          authorities.

[[Page 34459]]

 
169.25........................  Oil and gas pipelines.    N/A..........................  Deleted. These
                                 Lists specific                                           provisions are
                                 statutory authorities                                    unnecessary because
                                 and requirements for                                     the general right-of-
                                 oil and gas pipeline                                     way authority in 25
                                 rights-of-way.                                           U.S.C. 323-328 is
                                                                                          being relied upon,
                                                                                          rather than specific
                                                                                          authorities. Specific
                                                                                          requirements for oil
                                                                                          and gas pipelines are
                                                                                          unnecessary because
                                                                                          they are already
                                                                                          addressed in
                                                                                          applicable State and
                                                                                          Federal laws.
169.26........................  Telephone and telegraph   N/A..........................  Deleted. These
                                 lines; radio,                                            provisions are
                                 television, and other                                    unnecessary because
                                 communications                                           the general right-of-
                                 facilities. Lists                                        way authority in 25
                                 specific statutory                                       U.S.C. 323-328 is
                                 authorities and                                          being relied upon,
                                 requirements for                                         rather than specific
                                 telephone and telegraph                                  authorities.
                                 lines, etc.
169.27........................  Power projects. Lists     N/A..........................  Deleted. These
                                 specific statutory                                       provisions are
                                 authorities and                                          unnecessary because
                                 requirements for power                                   the general right-of-
                                 project rights-of-way.                                   way authority in 25
                                                                                          U.S.C. 323-328 is
                                                                                          being relied upon,
                                                                                          rather than specific
                                                                                          authorities.
169.28........................  Public highways. Allows   N/A..........................  Deleted. These
                                 State and local                                          provisions are
                                 authorities to apply                                     unnecessary because
                                 under these regulations                                  the general right-of-
                                 for rights-of-way for                                    way authority in 25
                                 open public highways on                                  U.S.C. 323-328 is
                                 Indian land. Allows                                      being relied upon,
                                 authorities in Nebraska                                  rather than specific
                                 or Montana to open                                       authorities.
                                 highways without right-
                                 of-way, under specific
                                 statutory authority.
                                 Cross-references 25 CFR
                                 256.
----------------------------------------------------------------------------------------------------------------

    The core processes for obtaining landowner consent and BIA approval 
are the same as for obtaining a lease. The timelines this proposed rule 
would establish for rights-of-way approvals mirror those for business 
leases at 25 CFR subpart D, allowing for a 60-day review of right-of-
way applications, and 30-day review of amendments, assignments, and 
mortgages. If BIA does not act within those established deadlines, the 
parties could elevate the application to the Regional Director or 
Director of BIA, as appropriate, for action.
    We are interested in all comments regarding this rule, but also 
would specifically like comment on the bonding provisions and whether 
the proposed durations for different types of rights-of-way set out in 
section 169.201 are appropriate.

III. Tribal Consultation Sessions

    We will be hosting several tribal consultation sessions throughout 
the country to discuss this proposed rule. The dates and locations for 
the consultation sessions are as follows:

----------------------------------------------------------------------------------------------------------------
                Date                          Time                  Location                    Venue
----------------------------------------------------------------------------------------------------------------
Tuesday, August 5, 2014............  8 a.m.-12 p.m. (Local   Bismarck, North Dakota  Bismarck Civic Center,
                                      time).                                          Prairie Rose, Room 101,
                                                                                      315 S. 5th Street,
                                                                                      Bismarck, ND 58504.
Wednesday, August 6, 2014..........  1 p.m.-5 p.m. (Local    Scottsdale, Arizona...  Talking Stick Resort, 9800
                                      time).                                          E. Indian Bend Rd.,
                                                                                      Scottsdale, AZ 85256.
Thursday, August 7, 2014...........  1 p.m.-4 p.m. Eastern   Teleconference........  Call-in number: (888) 989-
                                      Time.                                           7589, Passcode: 208-1244.
----------------------------------------------------------------------------------------------------------------

IV. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866 and 13563)

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) at the Office of Management 
and Budget (OMB) will review all significant rules. OIRA has determined 
that this rule is not significant.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The E.O. directs agencies to consider regulatory approaches that reduce 
burdens and maintain flexibility and freedom of choice for the public 
where these approaches are relevant, feasible, and consistent with 
regulatory objectives. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. We have developed this rule in a manner consistent with these 
requirements. This rule is also part of the Department's commitment 
under the Executive Order to reduce the number and burden of 
regulations and provide greater notice and clarity to the public.

B. Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

C. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. It will not result in the 
expenditure by State, local, or tribal governments, in the aggregate, 
or by the private sector of $100 million or more in any one year. The 
rule's requirements will not result in a major increase in costs or 
prices for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions. Nor will this rule have 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of the U.S.-based enterprises 
to compete with foreign-based

[[Page 34460]]

enterprises because the rule is limited to rights-of-way on Indian 
land.

D. Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does 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 Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

E. Takings (E.O. 12630)

    Under the criteria in Executive Order 12630, this rule does not 
affect individual property rights protected by the Fifth Amendment nor 
does it involves a compensable ``taking.'' A takings implication 
assessment is therefore not required.

F. Federalism (E.O. 13132)

    Under the criteria in Executive Order 13132, this rule has no 
substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government. This rule 
only concerns BIA's grant of rights-of-way on Indian land.

G. Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule has been reviewed to eliminate errors and 
ambiguity and written to minimize litigation; and is written in clear 
language and contains clear legal standards.

H. Consultation With Indian Tribes (E.O. 13175)

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments,'' Executive Order 13175 (59 FR 22951, November 6, 2000), 
and 512 DM 2, we have evaluated the potential effects on federally 
recognized Indian tribes and Indian trust assets. We will be consulting 
with Indian tribes during the public comment period on this rule.

I. Paperwork Reduction Act

    This rule contains information collections requiring approval under 
the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. The 
Department is seeking approval for a new OMB Control Number.
    OMB Control Number: 1076-NEW.
    Title: Rights-of-Way on Indian Land.
    Brief Description of Collection: This information collection 
requires applicants for, and recipients of, right-of-way grants to 
cross Indian land to submit information to the Bureau of Indian 
Affairs.
    Type of Review: Existing collection in use without OMB control 
number.
    Respondents: Individuals and entities.
    Number of Respondents: 550 on average (each year).
    Number of Responses: 3,300 on average (each year).
    Frequency of Response: On occasion.
    Estimated Time per Response: 1 hour (for applications); 0.5 hours 
(for responses to notices of violation); 0.5 hours (for responses to 
trespass notices of violations); and 0.25 hours (for filing service 
line agreements).
    Estimated Total Annual Hour Burden: 2,500 hours.
    Estimated Total Non-Hour Cost: $2,200,000.

J. National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment because these are 
``regulations . . . whose environmental effects are too broad, 
speculative, or conjectural to lend themselves to meaningful analysis 
and will later be subject to the NEPA process, either collectively or 
case-by-case.'' 43 CFR 46.210(j). No extraordinary circumstances exist 
that would require greater NEPA review.

K. Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A Statement of Energy Effects is not 
required.

L. Clarity of This Regulation

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ``COMMENTS'' section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you believe lists or tables would be 
useful, etc.

M. Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

List of Subjects in 25 CFR Part 169

    Indians--lands, Rights-of-way.

    For the reasons stated in the preamble, the Department of the 
Interior, Bureau of Indian Affairs, proposes to revise 25 CFR part 169 
to read as follows:

PART 169--RIGHTS-OF-WAY OVER INDIAN LAND

Subpart A--Purpose, Definitions, General Provisions
Sec.
169.001 What is the purpose of this part?
169.002 What terms do I need to know?
169.003 To what land does this part apply?
169.004 When do I need a right-of-way to authorize possession over 
or across Indian land?
169.005 What types of rights-of-way does this part cover?
169.006 Does this part apply to right-of-way grants I submitted for 
approval before [EFFECTIVE DATE OF REGULATIONS]?
169.007 May tribes administer this part on BIA's behalf?
169.008 What laws apply to rights-of-way approved under this part?
169.009 What taxes apply to rights-of-way approved under this part?
169.010 How does BIA provide notice to the parties to a right-of-
way?
169.011 May decisions under this part be appealed?
169.012 How does the Paperwork Reduction Act affect this part?
Subpart B--Obtaining a Right-of-Way

Application

169.101 How do I obtain a right-of-way across tribal or individually 
owned Indian land?
169.102 What must an application for a right-of-way include?
169.103 What bond must accompany the application?
169.104 What is the release process for a performance bond or 
alternate form of security?
169.105 What requirements for due diligence must a right-of-way 
grant include?

[[Page 34461]]

Consent Requirements

169.106 Must I obtain tribal consent for a right-of-way across 
tribal land?
169.107 Must I obtain individual Indian landowners' consent to a 
grant of right-of-way across individually owned land?
169.108 Who is authorized to consent to a right-of-way?

Compensation Requirements

169.109 How much monetary compensation must be paid for a right-of-
way affecting tribal land?
169.110 How much monetary compensation must be paid for a right-of-
way affecting individually owned Indian land?
169.111 How will BIA determine market value for a right-of-way?
169.112 When are monetary compensation payments due under a right-
of-way?
169.113 Must a right-of-way specify who receives monetary 
compensation payments?
169.114 What form of monetary compensation payment is acceptable 
under a right-of-way?
169.115 May the right-of-way provide for non-monetary or varying 
types of compensation?
169.116 Will BIA notify a grantee when a payment is due for a right-
of-way?
169.117 Must a right-of-way grant provide for compensation reviews 
or adjustments?
169.118 What other types of payments are required for a right-of-
way?

Grants of Rights-of-Way

169.119 What is the process for BIA to grant a right-of-way?
169.120 How will BIA determine whether to grant a right-of-way?
169.121 What will the grant of right-of-way contain?
169.122 May a right-of-way contain a preference consistent with 
tribal law for employment of tribal members?
169.123 Is a new right-of-way grant required for a new use within or 
overlapping an existing right-of-way?
169.124 What is required if the location described in the original 
application and grant differs from the construction location?
Subpart C--Term, Renewals, Amendments, Assignments, Mortgages

Term & Renewals

169.201 How long may the term of a right-of-way grant be?
169.202 Under what circumstances will a grant of right-of-way be 
renewed?
169.203 May a right-of-way be renewed multiple times?

Amendments

169.204 May a grantee amend a right-of-way?
169.205 What is the approval process for an amendment of a right-of-
way?
169.206 How will BIA decide whether to approve an amendment of a 
right-of-way?

Assignments

169.207 May a grantee assign a right-of-way?
169.208 What is the approval process for an assignment of a right-
of-way?
169.209 How will BIA decide whether to approve an assignment of a 
right-of-way?

Mortgages

169.210 May a grantee mortgage a right-of-way?
169.211 What is the approval process for a mortgage of a right-of-
way?
169.212 How will BIA decide whether to approve a mortgage of a 
right-of-way?
Subpart D--Effectiveness
169.301 When will a right-of-way document be effective?
169.302 Must a right-of-way be recorded?
169.303 What happens if BIA denies a right-of-way document?
169.304 What happens if BIA does not meet a deadline for issuing a 
decision on a right-of-way document?
169.305 Will BIA require an appeal bond for an appeal of a decision 
on a right-of-way document?
Subpart E--Compliance and Enforcement
169.401 What is the purpose and scope of this subpart?
169.402 May BIA investigate compliance with a right-of-way?
169.403 May a right-of-way provide for negotiated remedies if there 
is a violation?
169.404 What will BIA do about a violation of a right-of-way grant?
169.405 What will BIA do if the grantee does not cure a violation of 
a right-of-way grant on time?
169.406 Will late payment charges or special fees apply to 
delinquent payments due under a right-of-way grant?
169.407 How will payment rights relating to a right-of-way grant be 
allocated?
169.408 What is the process for cancelling a right-of-way?
169.409 When will a cancellation of a right-of-way grant be 
effective?
169.410 What will BIA do if a grantee remains in possession after a 
right-of-way expires or is terminated or cancelled?
169.411 Will BIA appeal bond regulations apply to cancellation 
decisions involving right-of-way grants?
169.412 What if an individual or entity takes possession or uses 
Indian land without a right-of-way or other proper authorization?
Subpart F--Service Line Agreements
169.501 Is a right-of-way required for service lines?
169.502 What are the consent requirements for service line 
agreements?
169.503 Is a valuation required for service line agreements?
169.504 Must I file service line agreements with the BIA?

    Authority:  5 U.S.C. 301; 62 Stat. 17 (25 U.S.C. 323-328), 25 
U.S.C. 2218, and other acts cited in the text.

Subpart A--Purpose, Definitions, General Provisions


Sec.  169.001  What is the purpose of this part?

    (a) This part is intended to streamline the procedures and 
conditions under which we will approve (i.e., grant) rights-of-way over 
and across tribal lands, individually owned Indian lands, and 
Government-owned lands, by providing for the use of the broad authority 
under 25 U.S.C. 323-328, rather than the limited authorities under 
other statutes.
    (b) This part specifies:
    (1) Conditions and authorities under which we will approve rights-
of-way on or across Indian land;
    (2) How to obtain a right-of-way;
    (3) Terms and conditions required in rights-of-way;
    (4) How we administer and enforce rights-of-ways;
    (5) How to renew, amend, assign, and mortgage rights-of-way; and
    (6) Whether rights-of-way are required for service line agreements.
    (c) This part does not cover rights-of-way on or across tribal 
lands within a reservation for the purpose of Federal Power Act 
projects, such as constructing, operating, or maintaining dams, water 
conduits, reservoirs, powerhouses, transmission lines or other works 
which must constitute a part of any project for which a license is 
required by the Federal Power Act.
    (1) The Federal Power Act provides that any license that must be 
issued to use tribal lands within a reservation must be subject to and 
contain such conditions as the Secretary deems necessary for the 
adequate protection and utilization of such lands (16 U.S.C. 797(e)).
    (2) In the case of tribal lands belonging to a tribe organized 
under the Act of June 18, 1934 (48 Stat. 984), the Federal Power Act 
requires that annual charges for the use of such tribal lands under any 
license issued by the Federal Energy Regulatory Commission must be 
subject to the approval of the tribe (16 U.S.C. 803(e)).
    (d) This part does not apply to grants of rights-of-way on tribal 
land under a special act of Congress authorizing grants without our 
approval under certain conditions.


Sec.  169.002  What terms do I need to know?

    Abandonment means the grantee has affirmatively relinquished a 
right-of-way (as opposed to relinquishing through non-use).
    Assignment means an agreement between a grantee and an assignee, 
whereby the assignee acquires all or part of the grantee's rights, and 
assumes all

[[Page 34462]]

of the grantee's obligations under a grant.
    Avigation hazard easement means the right, acquired by government 
through purchase or condemnation from the owner of land adjacent to an 
airport, to the use of the air space above a specific height for the 
flight of aircraft.
    BIA means the Secretary of the Interior or the Bureau of Indian 
Affairs within the Department of the Interior and any tribe acting on 
behalf of the Secretary or BIA under Sec.  169.007 of this part.
    Compensation means something bargained for that is fair and 
reasonable under the circumstances of the agreement.
    Constructive notice means notice:
    (1) Posted at the tribal government office, tribal community 
building, and/or the United States Post Office; and
    (2) Published in the local newspaper(s) nearest to the affected 
land and/or announced on a local radio station(s).
    Easement means an interest in land owned by another person, 
consisting of the right to use or control, for a specific limited 
purpose, the land, or an area above or below it.
    Encumbered account means a trust fund account where some portion of 
the proceeds are obligated to another party.
    Fractional interest means an undivided interest in Indian land 
owned as tenancy in common by individual Indian or tribal landowners 
and/or fee owners.
    Government land means any tract, or interest therein, in which the 
surface estate is owned and administered by the United States, not 
including Indian land.
    Grant means the formal transfer of a right-of-way interest by the 
Secretary's approval.
    Grantee means a person or entity to whom the Secretary grants a 
right-of-way.
    Immediate family means, in the absence of a definition under 
applicable tribal law, a spouse, brother, sister, aunt, uncle, niece, 
nephew, first cousin, lineal ancestor, lineal descendant, or member of 
the household.
    Indian means:
    (1) Any person who is a member of any Indian tribe, is eligible to 
become a member of any Indian tribe, or is an owner as of October 27, 
2004, of a trust or restricted interest in land;
    (2) Any person meeting the definition of Indian under the Indian 
Reorganization Act (25 U.S.C. 479) and the regulations promulgated 
thereunder; and
    (3) With respect to the inheritance and ownership of trust or 
restricted land in the State of California under 25 U.S.C. 2206, any 
person described in paragraph (1) or (2) of this definition or any 
person who owns a trust or restricted interest in a parcel of such land 
in that State.
    Indian land means any tract in which any interest in the surface 
estate is owned by a tribe or individual Indian in trust or restricted 
status and includes both individually owned Indian land and tribal 
land.
    Indian landowner means a tribe or individual Indian who owns an 
interest in Indian land.
    Indian tribe or tribe means an Indian tribe under section 102 of 
the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 
479a).
    Individually owned Indian land means any tract, or interest 
therein, in which the surface estate is owned by an individual Indian 
in trust or restricted status.
    In-kind compensation means payment is in goods or services rather 
than money.
    Legal description means that part of the conveyance document of 
land or interest in land, which identifies the land or interest to be 
affected.
    LTRO means the Land Titles and Records Office of BIA.
    Map of definite location means a survey plat showing the location, 
size, and extent of the right-of-way and other related parcels, with 
respect to each affected parcel of individually owned land, tribal 
land, or Government land and with respect to the public surveys under 
25 U.S.C. 176, 43 U.S.C. 2, and 1764.
    Market value means the amount of compensation that a right-of-way 
would most probably command in an open and competitive market.
    Right-of-way means a legal right to cross tribal land, individually 
owned Indian land, or Government land for a specific purpose, including 
but not limited to building and operating a line or road. This term may 
also refer to the land subject to the grant of right-of-way.
    Right-of-way document means a right-of-way grant, renewal, 
amendment, assignment, or mortgage of a right-of-way.
    Secretary means the Secretary of the Interior or an authorized 
representative.
    Section 17 corporation means an Indian corporation federally 
chartered under section 17 of the Act of June 18, 1934, 25 U.S.C. 476.
    Service line means a utility line running from a main line that is 
used only for supplying owners or authorized occupants or users of land 
with telephone, water, electricity, gas, internet service, or other 
home utility service.
    Trespass means any unauthorized occupancy, use of, or action on 
tribal or individually owned Indian land.
    Tribal authorization means a duly adopted tribal resolution, tribal 
ordinance, or other appropriate tribal document authorizing the 
specified action.
    Tribal land means any tract, or interest therein, in which the 
surface estate is owned by one or more tribes in trust or restricted 
status, and includes such lands reserved for BIA administrative 
purposes. The term also includes the surface estate of lands held in 
trust for an Indian corporation chartered under section 17 of the Act 
of June 18, 1934 (48 Stat. 988; 25 U.S.C. 477).
    Trust account means a tribal account or Individual Indian Money 
(IIM) account for trust funds maintained by the Secretary.
    Trust or restricted status means:
    (1) That the United States holds title to the tract or interest in 
trust for the benefit of one or more tribes or individual Indians; or
    (2) That one or more tribes or individual Indians holds title to 
the tract or interest, but can alienate or encumber it only with the 
approval of the United States because of limitations in the conveyance 
instrument under Federal law or limitations in Federal law.
    Uniform Standards of Professional Appraisal Practice (USPAP) means 
the standards promulgated by the Appraisal Standards Board of the 
Appraisal Foundation to establish requirements and procedures for 
professional real property appraisal practice.
    Us/we/our means the BIA.


Sec.  169.003  To what land does this part apply?

    (a) This part applies to Indian land and Government land.
    (1) We will not take any action on a right-of-way across fee land 
or collect compensation on behalf of fee interest owners. We will not 
condition our grant of a right-of-way across Indian land or Government 
land on the applicant having obtained a right-of-way from the owners of 
any fee interests. The applicant will be responsible for negotiating 
directly with and making any payments directly to the owners of any fee 
interests that may exist in the property on which the right-of-way is 
granted.
    (2) We will not include the fee interests in a tract in calculating 
the applicable percentage of interests required for consent to a right-
of-way.

[[Page 34463]]

    (b) This paragraph (b) applies if there is a life estate on the 
land proposed to be subject to a right-of-way.
    (1) Unless otherwise provided in a will creating the life estate, 
when all of the trust or restricted interests in a tract are subject to 
the same life estate (created by operation of law), the life tenant may 
grant a right-of-way over the land without the consent of the owners of 
the remainder interests or our approval, for the duration of the life 
estate.
    (i) The right-of-way will terminate upon the expiration of the life 
estate.
    (ii) The life tenant must record the right-of-way in the LTRO.
    (iii) The grantee must pay compensation directly to the life tenant 
under the terms of the right-of-way unless the whereabouts of the life 
tenant are unknown, in which case we may collect compensation on behalf 
of the life tenant.
    (iv) We may monitor the use of the land, as appropriate, and will 
enforce the terms of the right-of-way on behalf of the owners of the 
remainder interests, but will not be responsible for enforcing the 
right-of-way on behalf of the life tenant.
    (v) We will not grant a right-of-way on behalf of the owners of the 
remainder interests or join in a right-of-way granted by the life 
tenant on behalf of the owners of the remainder interests except as 
needed to preserve the value of the land.
    (2) Unless otherwise provided in a will creating the life estate, 
when less than all of the trust or restricted interests in a tract are 
subject to a particular life estate (by operation of law), the life 
tenant may grant a right-of-way for his or her interest without the 
consent of the owners of the remainder interests, for the duration of 
the life estate, but the applicant must obtain the consent of the co-
owners and our approval.
    (i) The right-of-way over the life interest will terminate upon the 
expiration of the life estate.
    (ii) We will not grant a right-of-way on the life tenant's behalf.
    (iii) The right-of-way must provide that the grantee pays the life 
tenant directly, unless the life tenant's whereabouts are unknown in 
which case we may collect compensation on behalf of the life tenant.
    (iv) The right-of-way must be recorded in the LTRO.
    (v) We may monitor the use of the land, as appropriate, and will 
enforce the terms of the right-of-way on behalf of the owners of the 
remainder interests, but will not be responsible for enforcing the 
right-of-way on behalf of the life tenant.
    (3) We may grant a right-of-way for longer than the duration of a 
life estate with the consent of a majority of the owners of the 
remainder interests, and may consent on behalf of undetermined owners 
of remainder interests.
    (4) Unless otherwise provided in a will creating the life estate, 
where the owners of the remainder interests and the life tenant have 
not entered into a right-of-way or other written agreement approved by 
the Secretary providing for the distribution of rent monies under the 
right-of-way, the life tenant will receive payment in accordance with 
the distribution and calculation scheme set forth in Part 179 of this 
chapter.
    (5) The life tenant may not cause or allow permanent injury to the 
land.
    (6) The life tenant must provide a copy of their right-of-way 
consent to us and must record any right-of-way granted under paragraph 
(b)(1) of this section in the LTRO.


Sec.  169.004  When do I need a right-of-way to authorize possession 
over or across Indian land?

    (a) You need an approved right-of-way under this part before 
crossing Indian land if you meet one of the criteria in the following 
table, unless you are authorized by a land use agreement not subject to 
this part (e.g., under 25 CFR part 84) or a lease under 25 CFR part 
162, 211, 212, 225, or similar, tribe-specific authority.

------------------------------------------------------------------------
                                         then you must obtain a right-of-
            If you are . . .                way under this part . . .
------------------------------------------------------------------------
(1) A person or legal entity (including  from us, with the consent of
 an independent legal entity owned and    the owners of the majority
 operated by a tribe or Federal, State,   interest in the land before
 or local governmental entity) who is     crossing the land or any
 not an owner of the Indian land.         portion thereof.
(2) An Indian landowner of a fractional  from us, with the consent of
 interest in the land.                    the owners of other trust and
                                          restricted interests in the
                                          land, totaling at least a
                                          majority interest, unless all
                                          of the owners have given you
                                          permission to cross without a
                                          right-of-way.
------------------------------------------------------------------------

    (b) You do not need a right-of-way to cross Indian land if:
    (1) You are an Indian landowner who owns 100 percent of the trust 
or restricted interests in the land; or
    (2) You meet any of the criteria in the following table.

------------------------------------------------------------------------
 You do not need a right-of-way if you     but the following conditions
               are . . .                           apply . . .
------------------------------------------------------------------------
(i) A parent or guardian of a minor      We may require you to provide
 child who owns 100 percent of the        evidence of a direct benefit
 trust or restricted interests in the     to the minor child and when
 land.                                    the child is no longer a
                                          minor, you must obtain a right-
                                          of-way to authorize continued
                                          possession.
(ii) Authorized by a service line        You must file the agreement
 agreement to cross the land.             with us under Sec.   169.504.
(iii) Otherwise authorized by law        You must comply with the
 (e.g., a statute, judicial order, or     requirements of the applicable
 common law authorizes access).           statute, judicial order, or
                                          common law.
------------------------------------------------------------------------

Sec.  169.005  What types of rights-of-way does this part cover?

    (a) This part covers rights-of-way over and across Indian or 
Government land, for uses including but not limited to the following:
    (1) Railroads;
    (2) Public roads and highways;
    (3) Access roads;
    (4) Service roads and trails essential to any other right-of-way 
purpose;
    (5) Public and community water lines (including pumping stations 
and appurtenant facilities);
    (6) Public sanitary and storm sewer lines (including sewage 
disposal and treatment plant lines);
    (7) Water control and use projects (including but not limited to, 
flowage easements, irrigation ditches and canals, and water treatment 
plant lines);
    (8) Oil and gas pipelines;

[[Page 34464]]

    (9) Electric transmission and distribution lines (including poles, 
towers, and appurtenant facilities);
    (10) Telecommunications, broadband, fiber optic lines;
    (11) Avigation hazard easements; or
    (12) Conservation easements not covered by 25 CFR 84, Encumbrances 
of Tribal Land--Contract Approvals, or 25 CFR 162, Leases and Permits.
    (b) BIA will grant rights-of-way using the authority in 25 U.S.C. 
323-328, and relying on supplementary authority such as 25 U.S.C. 2218, 
where appropriate, and this part covers all rights-of-way granted under 
that statutory authority. This part also covers existing rights-of-way 
that were granted under other statutory authorities prior to the 
effective date of this rule, except that if the provisions of the 
preexisting right-of-way document conflict with this part, the 
provisions of the preexisting right-of-way document govern.


Sec.  169.006  Does this part apply to right-of-way grants I submitted 
for approval before [EFFECTIVE DATE OF REGULATIONS]?

    This part applies to all right-of-way documents. If you submitted 
your right-of-way document to us for granting or approval before 
[EFFECTIVE DATE OF REGULATIONS], the qualifications in paragraphs (a) 
and (b) of this section also apply.
    (a) If we granted or approved your right-of-way document before 
[EFFECTIVE DATE OF REGULATIONS], this part applies to that right-of-way 
document; however, if the provisions of the right-of-way document 
conflict with this part, the provisions of the right-of-way document 
govern.
    (b) If you submitted a right-of-way document but we did not approve 
or grant it before [EFFECTIVE DATE OF REGULATIONS], then:
    (1) We will review the right-of-way document under the regulations 
in effect at the time of your submission; and
    (2) Once we grant or approve the right-of-way document, this part 
applies to that right-of-way document; however, if the provisions of 
the right-of-way document conflict with this part, the provisions of 
the right-of-way document govern.


Sec.  169.007  May tribes administer this part on BIA's behalf?

    A tribe or tribal organization may contract or compact under the 
Indian Self-Determination and Education Assistance Act (25 U.S.C. 450f 
et seq.) to administer any portion of this part that is not a grant, 
approval, or disapproval of a right-of-way document, waiver of a 
requirement for right-of-way grant or approval (including but not 
limited to waivers of market value and valuation), cancellation of a 
right-of-way, or an appeal.


Sec.  169.008  What laws apply to rights-of-way approved under this 
part?

    (a) In addition to the regulations in this part, rights-of-way 
approved under this part:
    (1) Are subject to all applicable Federal laws;
    (2) Are subject to tribal law, subject to paragraph (b) of this 
section; and
    (3) Are not subject to State law or the law of a political 
subdivision thereof except that:
    (i) State law or the law of a political subdivision thereof may 
apply in the specific areas and circumstances in Indian country where 
the Indian tribe with jurisdiction has made it expressly applicable;
    (ii) State law may apply in the specific areas and circumstances in 
Indian country where Congress has made it expressly applicable; and
    (iii) State law may apply where a Federal court has expressly 
applied State law to a specific area or circumstance in Indian country 
in the absence of Federal or tribal law.
    (b) Tribal laws generally apply to land under the jurisdiction of 
the tribe enacting the laws, except to the extent that those tribal 
laws are inconsistent with these regulations or other applicable 
Federal law. However, these regulations may be superseded or modified 
by tribal laws, as long as:
    (1) The tribe has notified us of the superseding or modifying 
effect of the tribal laws;
    (2) The superseding or modifying of the regulation would not 
violate a Federal statute or judicial decision, or conflict with our 
general trust responsibility under Federal law; and
    (3) The superseding or modifying of the regulation applies only to 
tribal land.
    (c) Unless prohibited by Federal law, the parties to a right-of-way 
may subject that right-of-way to State or local law in the absence of 
Federal or tribal law, if the Indian landowners expressly agree, in 
writing, to the application of State or local law.
    (d) An agreement under paragraph (c) of this section does not waive 
a tribe's sovereign immunity unless the tribe expressly states its 
intention to waive sovereign immunity in its consent to the right-of-
way on tribal land.
    (e) A right-of-way is an interest in land, but title does not pass 
to the grantee. Unless otherwise expressly stated in its consent to the 
right-of-way for tribal land, or in a tribal authorization for a right-
of-way for individually-owned Indian land, the Secretary's grant of a 
right-of-way does not diminish to any extent:
    (1) The Indian tribe's jurisdiction over the land subject to the 
right-of-way;
    (2) The power of the Indian tribe to tax the land, any improvements 
on the land, or any activity related to, and not inconsistent with, the 
right-of-way;
    (3) The Indian tribe's authority to enforce tribal law of general 
or particular application on the land subject to the right-of-way, as 
if there were no grant of right-of-way;
    (4) The Indian tribe's inherent sovereign power to exercise civil 
jurisdiction over non-members on tribal land by regulating, through 
taxation, licensing, or other means, the activities of non-members who 
enter into consensual relationships with the Indian tribe or its 
members; or
    (5) The character of the land subject to the right-of-way as Indian 
country under 18 U.S.C. 1151.


Sec.  169.009  What taxes apply to rights-of-way approved under this 
part?

    (a) Subject only to applicable Federal law, permanent improvements 
in a right-of-way, without regard to ownership of those improvements, 
are not subject to any fee, tax, assessment, levy, or other charge 
imposed by any State or political subdivision of a State. Improvements 
may be subject to taxation by the Indian tribe with jurisdiction.
    (b) Subject only to applicable Federal law, activities under a 
right-of-way grant are not subject to any fee, tax, assessment, levy, 
or other charge (e.g., business use, privilege, public utility, excise, 
gross revenue taxes) imposed by any State or political subdivision of a 
State. Activities may be subject to taxation by the Indian tribe with 
jurisdiction.
    (c) Subject only to applicable Federal law, the right-of-way or 
possessory interest is not subject to any fee, tax, assessment, levy, 
or other charge imposed by any State or political subdivision of a 
State. Possessory interests may be subject to taxation by the Indian 
tribe with jurisdiction.


Sec.  169.010  How does BIA provide notice to the parties to a right-
of-way?

    (a) When this part requires us to notify the parties of the status 
of our review of a right-of-way document (including but not limited to, 
providing notice to the parties of the date of receipt, informing the 
parties of the need for additional review time, and informing the 
parties that an application package is not complete):

[[Page 34465]]

    (1) For rights-of-way affecting tribal land, we will notify the 
grantee and the tribe by mail; and
    (2) For rights-of-way affecting individually owned Indian land, we 
will notify the grantee by mail and, where feasible, the individual 
Indian landowners by constructive notice or mail.
    (b) When this part requires us to notify the parties of our 
determination to approve or disapprove a right-of-way document, and to 
provide any right of appeal:
    (1) For rights-of-way affecting tribal land, we will notify the 
applicant and the tribe by mail; and
    (2) For rights-of-way affecting individually owned Indian land, we 
will notify the applicant by mail and the individual Indian landowners 
by constructive notice, mail, or electronic mail.


Sec.  169.011  May decisions under this part be appealed?

    (a) Appeals from BIA decisions under this part may be taken under 
part 2 of this chapter, except:
    (1) Our decision to disapprove a right-of-way may be appealed only 
by an Indian landowner.
    (2) Our decision to disapprove any other right-of-way document may 
be appealed only by the Indian landowners or the applicant.
    (b) For purposes of appeals from BIA decisions under this part, 
``interested party'' is defined as any person whose own direct economic 
interest is adversely affected by an action or decision.


Sec.  169.012  How does the Paperwork Reduction Act affect this part?

    The collections of information in this part have been approved by 
the Office of Management and Budget under 44 U.S.C. 3501 et seq. and 
assigned OMB Control Number 1076-NEW. Response is required to obtain a 
benefit. 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--Obtaining a Right-of-Way

Application


Sec.  169.101  How do I obtain a right-of-way across tribal or 
individually owned Indian land?

    (a) To obtain a right-of-way across tribal or individually owned 
Indian land, you must submit a complete application to the BIA office 
with jurisdiction over the land covered by the right-of-way.
    (b) If you must obtain access to Indian land to prepare information 
required by the application (e.g., to survey), you must obtain the 
consent of the Indian landowners in the following manner before 
accessing the land, but our approval to access is not required.
    (1) For tribal land, you must obtain written authorization or a 
permit from the tribe.
    (2) For individually owned Indian land, you must notify all Indian 
landowners and obtain the consent of the Indian landowners of the 
majority interest under Sec.  169.107. Upon written request, we will 
provide you with the names, addresses, and percentage of ownership of 
individual Indian landowners, to allow you to obtain the landowners' 
consent to survey.
    (3) If the BIA will be granting the right-of-way across Indian land 
under Sec.  169.107(b), then the BIA may grant permission to access the 
land.


Sec.  169.102  What must an application for a right-of-way include?

    (a) An application for a right-of-way must identify:
    (1) The applicant;
    (2) The tract(s) or parcel(s) affected by the right-of-way;
    (3) The general location of the right-of-way;
    (4) The purpose of the right-of-way;
    (5) The duration of the right-of-way: and
    (6) The ownership of permanent improvements associated with the 
right-of-way and the responsibility for constructing, operating, 
maintaining, and managing permanent improvements under Sec.  169.105.
    (b) The following must be submitted with the application:
    (1) An accurate legal description of the right-of-way, its 
boundaries, and parcels associated with the right-of-way;
    (2) A map of definite location of the right-of-way and existing 
facilities adjacent to the proposed project, signed by a professional 
surveyor or engineer (this requirement does not apply to easements 
covering the entire tract of land);
    (3) A bond meeting the requirements of Sec.  169.103;
    (4) Record of consent for the right-of-way meeting the requirements 
of Sec.  169.106 for tribal land, and Sec.  169.107 for individually 
owned Indian land;
    (5) If applicable, a valuation meeting the requirements of Sec.  
169.111;
    (6) If the applicant is a corporation, limited liability company, 
partnership, joint venture, or other legal entity, except a tribal 
entity, information such as organizational documents, certificates, 
filing records, and resolutions, demonstrating that:
    (i) The representative has authority to execute the application;
    (ii) The right-of-way will be enforceable against the applicant; 
and
    (iii) The legal entity is in good standing and authorized to 
conduct business in the jurisdiction where the land is located;
    (7) Environmental and archeological reports, surveys, and site 
assessments, as needed to facilitate compliance with applicable Federal 
and tribal environmental and land use requirements.
    (c) There is no standard application form.


Sec.  169.103  What bond must accompany the application?

    (a) You must include payment of a performance bond or alternative 
form of security with your application for a right-of-way in an amount 
that covers:
    (1) The highest annual rental specified in the grant, unless 
compensation is a one-time payment;
    (2) The estimated damages resulting from the construction of any 
permanent improvements;
    (3) The operation and maintenance charges for any land located 
within an irrigation project; and
    (4) The restoration and reclamation of the premises to their 
condition at the start of the right-of-way or some other specified 
condition.
    (b) The performance bond or other security must be deposited with 
us and made payable only to us, and may not be modified without our 
approval, except for tribal land in which case the bond or security may 
be deposited with and made payable to the tribe, and may not be 
modified without the approval of the tribe.
    (c) The grant will specify the conditions under which we may adjust 
the security or performance bond requirements to reflect changing 
conditions, including consultation with the tribal landowner for tribal 
land before the adjustment.
    (d) We may require that the surety provide any supporting documents 
needed to show that the performance bond or alternative form of 
security will be enforceable, and that the surety will be able to 
perform the guaranteed obligations.
    (e) The performance bond or other security instrument must require 
the surety to provide notice to us at least 60 days before canceling a 
performance bond or other security. This will allow us to notify the 
grantee of its obligation to provide a substitute performance bond or 
other security before the cancellation date. Failure to provide a 
substitute performance bond or security is a violation of the right-of-
way.

[[Page 34466]]

    (f) We may waive the requirement for a performance bond or 
alternative form of security if the Indian landowners of the majority 
of the interests request it and we determine a waiver is in the Indian 
landowners' best interest. For tribal land, we will defer, to the 
maximum extent possible, to the tribe's determination that a waiver of 
a performance bond or alternative form of security is in its best 
interest.
    (g) We will accept a performance bond only in one of the following 
forms:
    (1) Certificates of deposit issued by a federally insured financial 
institution authorized to do business in the United States;
    (2) Irrevocable letters of credit issued by a federally insured 
financial institution authorized to do business in the United States;
    (3) Negotiable Treasury securities; or
    (4) Surety bonds issued by a company approved by the U.S. 
Department of the Treasury.
    (h) We may accept an alternative form of security approved by us 
that provides adequate protection for the Indian landowners and us, 
including but not limited to an escrow agreement and assigned savings 
account.
    (i) All forms of performance bonds or alternative security must, if 
applicable:
    (1) Indicate on their face that BIA approval is required for 
redemption;
    (2) Be accompanied by a statement granting full authority to BIA to 
make an immediate claim upon or sell them if the grantee violates the 
right-of-way;
    (3) Be irrevocable during the term of the performance bond or 
alternative security; and
    (4) Be automatically renewable during the term of the right-of-way.
    (j) We will not accept cash bonds.


Sec.  169.104  What is the release process for a performance bond or 
alternative form of security?

    Upon expiration, termination, or cancellation of the right-of-way, 
the grantee may ask BIA in writing to release the performance bond or 
alternative form of security. Upon receiving the grantee's request, BIA 
will:
    (a) Confirm with the tribe, for tribal land or, where feasible, 
with the Indian landowners for individually owned Indian land, that the 
grantee has complied with all grant obligations; and
    (b) Release the performance bond or alternative form of security to 
the grantee, unless we determine that the bond or security must be 
redeemed to fulfill the contractual obligations.


Sec.  169.105  What requirements for due diligence must a right-of-way 
grant include?

    (a) If permanent improvements are to be constructed, the right-of-
way grant must include due diligence requirements that require the 
grantee to complete construction of any permanent improvements within 
the schedule specified in the right-of-way grant or general schedule of 
construction, and a process for changing the schedule by mutual consent 
of the parties. If construction does not occur, or is not expected to 
be completed, within the time period specified in the grant, the 
grantee must provide the Indian landowners and BIA with an explanation 
of good cause as to the nature of any delay, the anticipated date of 
construction of facilities, and evidence of progress toward 
commencement of construction.
    (b) Failure of the grantee to comply with the due diligence 
requirements of the grant is a violation of the grant and may lead to 
cancellation of the right-of-way under Sec.  169.408.
    (c) BIA may waive the requirements in this section if such waiver 
is in the best interest of the Indian landowners.

Consent Requirements


Sec.  169.106  Must I obtain tribal consent for a right-of-way across 
tribal land?

    The applicant must obtain tribal consent, in the form of a tribal 
authorization, to a grant of right-of-way across tribal land.


Sec.  169.107  Must I obtain individual Indian landowners' consent to a 
grant of right-of-way across individually-owned land?

    (a) Except as provided in paragraph (b) of this section, the 
applicant must notify all individual Indian landowners and must obtain 
consent from the owners of the majority interest in each tract affected 
by the grant of right-of-way.
    (b) We may issue the grant of right-of-way without the consent of 
any of the individual Indian owners if:
    (1) The owners of interests in the land are so numerous that it 
would be impracticable to obtain consent;
    (2) We determine the grant will cause no substantial injury to the 
land or any landowner;
    (3) We determine that all of the landowners will be adequately 
compensated for consideration and any damages that may arise from a 
grant of right-of-way; and
    (4) We provide notice of our intent to issue the grant of right-of-
way to all of the owners at least 30 days prior to the date of the 
grant using the procedures in Sec.  169.010.
    (c) For the purposes of this section, the owners of interests in 
the land are so numerous that it would be impracticable to obtain 
consent, where there are:
    (1) 50 or more, but less than 100, co-owners of undivided trust or 
restricted interests, and no one of such co-owners holds a total 
undivided trust or restricted interest in the parcel that is greater 
than 10 percent of the entire undivided ownership of the parcel; or
    (2) 100 or more co-owners of undivided trust or restricted 
interests.
    (d) The right-of-way will not bind a non-consenting Indian tribe, 
except with respect to the tribally owned fractional interest, and the 
non-consenting Indian tribe will not be treated as a party to the 
right-of-way. Nothing in this paragraph affects the sovereignty or 
sovereign immunity of the Indian tribe.
    (e) Successors are bound by consent granted by their predecessors-
in-interest.


Sec.  169.108  Who is authorized to consent to a right-of-way?

    (a) Indian tribes, adult Indian landowners, and emancipated minors, 
may consent to a right-of-way affecting their land, including undivided 
interests in fractionated tracts.
    (b) The following individuals or entities may consent on behalf of 
an individual Indian landowner:
    (1) An adult with legal custody acting on behalf of his or her 
minor children;
    (2) A guardian, conservator, or other fiduciary appointed by a 
court of competent jurisdiction to act on behalf of an individual 
Indian landowner;
    (3) Any person who is authorized to practice before the Department 
of the Interior under 43 CFR 1.3(b) and has been retained by the Indian 
landowner for this purpose;
    (4) BIA, under the circumstances in paragraph (c) of this section; 
or
    (5) An adult or legal entity who has been given a written power of 
attorney that:
    (i) Meets all of the formal requirements of any applicable law 
under Sec.  169.008;
    (ii) Identifies the attorney-in-fact; and
    (iii) Describes the scope of the powers granted, to include 
granting rights-of-way on land, and any limits on those powers.
    (c) BIA may give written consent to a right-of-way, as long as we 
determine that the grant will cause no substantial injury to the land 
or any landowner, and that consent must be counted in the majority 
interest under Sec.  169.107, on behalf of:
    (1) The individual owner, if the owner is deceased, and the heirs 
to, or devisees of, the interest of the deceased owner have not been 
determined;
    (2) An individual whose whereabouts are unknown to us, after we 
make a

[[Page 34467]]

reasonable attempt to locate the individual;
    (3) An individual who is found to be non compos mentis or 
determined to be an adult in need of assistance who does not have a 
guardian duly appointed by a court of competent jurisdiction, or an 
individual under legal disability as defined in part 115 of this 
chapter;
    (4) An orphaned minor who does not have a guardian duly appointed 
by a court of competent jurisdiction; and
    (5) An individual who has given us a written power of attorney to 
consent to a right-of-way of their land.

Compensation Requirements


Sec.  169.109  How much monetary compensation must be paid for a right-
of-way affecting tribal land?

    (a) A right-of-way affecting tribal land may allow for any payment 
amount negotiated by the tribe, and we will defer to the tribe and not 
require a valuation if the tribe submits a tribal authorization 
expressly stating that it:
    (1) Has negotiated compensation satisfactory to the tribe;
    (2) Waives valuation; and
    (3) Has determined that accepting such negotiated compensation and 
waiving valuation is in its best interest.
    (b) The tribe may request, in writing, that we determine market 
value, in which case we will use a valuation in accordance with Sec.  
169.111. After providing the tribe with the market value, we will defer 
to a tribe's decision to allow for any compensation negotiated by the 
tribe.
    (c) If the conditions in paragraph (a) or (b) of this section are 
not met, we will require that the grantee provide for market value 
based on a valuation in accordance with Sec.  169.111.


Sec.  169.110  How much monetary compensation must be paid for a right-
of-way affecting individually owned Indian land?

    (a) A right-of-way affecting individually owned Indian land must 
require payment of not less than market value before any adjustments, 
based on a fixed amount, a percentage of the projected income, or some 
other method, unless paragraphs (b) or (c) of this section permit a 
lesser amount. The grant must establish how the fixed amount, 
percentage, or combination will be calculated and the frequency at 
which the payments will be made. Compensation will include market value 
and may include additional fees, such as throughput fees, severance 
damages, franchise fees, avoidance value, bonuses, or other factors.
    (b) We may approve a right-of-way affecting individually owned 
Indian land that provides for the payment of nominal compensation, or 
less than a market value, if:
    (1) The Indian landowners execute a written waiver of the right to 
receive market value; and
    (2) We determine it is in the Indian landowners' best interest, 
based on factors including, but not limited to:
    (i) The grantee is a member of the immediate family, as defined in 
Sec.  169.002, of an individual Indian landowner;
    (ii) The grantee is a co-owner in the affected tract;
    (iii) A special relationship or circumstances exist that we believe 
warrant approval of the right-of-way; or
    (iv) We have waived the requirement for a valuation under paragraph 
(d) of this section.
    (c) We will require a valuation, unless:
    (1) 100 percent of the Indian landowners submit to us a written 
request to waive the valuation requirement; or
    (2) We waive the requirement under paragraph (d) of this section.
    (d) The grant must provide that the non-consenting Indian 
landowners, and those on whose behalf we have consented under Sec.  
169.108(c), or granted the right-of-way without consent under Sec.  
169.107(b), receive market value, as determined by a valuation, unless 
we waive the requirement because the tribe or grantee will construct 
infrastructure improvements benefitting the Indian landowners, and we 
determine it is in the best interest of all the landowners.


Sec.  169.111  How will BIA determine market value for a right-of-way?

    (a) We will use a market analysis, appraisal, or other appropriate 
valuation method to determine the market value before we grant a right-
of-way affecting individually owned Indian land or, at the request of 
the tribe, for tribal land.
    (b) We will either:
    (1) Prepare, or have prepared, a market analysis, appraisal, or 
other appropriate valuation method; or
    (2) Use an approved market analysis, appraisal, or other 
appropriate valuation method from the Indian landowners or grantee.
    (c) We will use or approve use of a market analysis, appraisal, or 
other appropriate valuation method only if it:
    (1) Has been prepared in accordance with USPAP or a valuation 
method developed by the Secretary under 25 U.S.C. 2214 and complies 
with Departmental policies regarding appraisals, including third-party 
appraisals; or
    (2) Has been prepared by another Federal agency.


Sec.  169.112  When are monetary compensation payments due under a 
right-of-way?

    (a) If compensation is a one-time, lump sum payment, the grantee 
must make the payment within 10 days of our grant of the right-of-way.
    (b) If compensation is to be paid in increments, the right-of-way 
grant must specify the dates on which all payments are due. Payments 
are due at the time specified in the grant, regardless of whether the 
grantee receives an advance billing or other notice that a payment is 
due. Increments may not be more frequent than quarterly.


Sec.  169.113  Must a right-of-way specify who receives monetary 
compensation payments?

    (a) A right-of-way grant must specify whether the grantee will make 
payments directly to the Indian landowners (direct pay) or to us on 
their behalf.
    (b) The grantee may make payments directly to the Indian landowners 
if:
    (1) The Indian landowners' trust accounts are encumbered accounts;
    (2) There are 10 or fewer beneficial owners; and
    (3) One hundred percent of the beneficial owners (including those 
on whose behalf we have consented) agree to receive payment directly 
from the grantee at the start of the right-of-way.
    (c) If the right-of-way document provides that the grantee will 
directly pay the Indian landowners, then:
    (1) The right-of-way document must include provisions for proof of 
payment upon our request.
    (2) When we consent on behalf of an Indian landowner, the grantee 
must make payment to us on behalf of that landowner.
    (3) The grantee must send direct payments to the parties and 
addresses specified in the right-of-way, unless the grantee receives 
notice of a change of ownership or address.
    (4) Unless the right-of-way document provides otherwise, payments 
may not be made payable directly to anyone other than the Indian 
landowners.
    (5) Direct payments must continue through the duration of the 
right-of-way, except that:
    (i) The grantee must make all Indian landowners' payments to us if 
100 percent of the Indian landowners agree to suspend direct pay and 
provide us with documentation of their agreement; and
    (ii) The grantee must make an individual Indian landowner's payment 
to us if that individual Indian landowner dies, is declared non compos 
mentis, owes a debt resulting in an encumbered account, or his or her 
whereabouts become unknown.

[[Page 34468]]

Sec.  169.114  What form of monetary compensation is acceptable under a 
right-of-way?

    (a) Our preferred method of payment is electronic funds transfer 
payments. We will also accept:
    (1) Money orders;
    (2) Personal checks;
    (3) Certified checks; or
    (4) Cashier's checks.
    (b) We will not accept cash or foreign currency.
    (c) We will accept third-party checks only from financial 
institutions or Federal agencies.


Sec.  169.115  May the right-of-way provide for non-monetary or varying 
types of compensation?

    (a) A right-of-way grant may provide for the following, subject to 
the conditions in paragraphs (b) and (c) of this section:
    (1) Alternative forms of compensation, including but not limited 
to, in-kind consideration and payments based on throughput or 
percentage of income; or
    (2) Varying types of compensation at specific stages during the 
life of the right-of-way grant, including but not limited to, fixed 
annual payments during construction, payments based on income during an 
operational period, and bonuses.
    (b) For tribal land, we will defer to the tribe's determination 
that the compensation under paragraph (a) of this section is in its 
best interest, if the tribe submits a signed certification or tribal 
authorization stating that it has determined the compensation under 
paragraph (a) of this section to be in its best interest.
    (c) For individually owned land, we may grant a right-of-way that 
provides for compensation under paragraph (a) of this section if we 
determine that it is in the best interest of the Indian landowners.


Sec.  169.116  Will BIA notify a grantee when a payment is due for a 
right-of-way?

    Upon request of the Indian landowners, we may issue invoices to a 
grantee in advance of the dates on which payments are due under the 
right-of-way. The grantee's obligation to make these payments in a 
timely manner will not be excused if invoices are not issued, 
delivered, or received.


Sec.  169.117  Must a right-of-way grant provide for compensation 
reviews or adjustments?

    (a) For a right-of-way grant affecting tribal land, no periodic 
review of the adequacy of compensation or adjustment is required, 
unless the tribe negotiates for reviews or adjustments.
    (b) For a right-of-way grant of individually owned Indian land, no 
periodic review of the adequacy of compensation or adjustment is 
required if:
    (1) Payment is a one-time lump sum;
    (2) The term of the right-of-way grant is 5 years or less;
    (3) The grant provides for automatic adjustments; or
    (4) We determine it is in the best interest of the Indian 
landowners not to require a review or automatic adjustment based on 
circumstances including, but not limited to, the following:
    (i) The right-of-way grant provides for payment of less than market 
value;
    (ii) The right-of-way grant provides for most or all of the 
compensation to be paid during the first 5 years of the grant term or 
before the date the review would be conducted; or
    (iii) The right-of-way grant provides for graduated rent or non-
monetary or varying types of compensation.
    (c) If the conditions in paragraph (b) of this section are not met, 
a review of the adequacy of compensation must occur at least every 
fifth year, in the manner specified in the grant. The grant must 
specify:
    (1) When adjustments take effect;
    (2) Who can make adjustments;
    (3) What the adjustments are based on; and
    (4) How to resolve disputes arising from the adjustments.
    (d) When a review results in the need for adjustment of 
compensation, the Indian landowners must consent to the adjustment in 
accordance with Sec.  169.107, unless the grant provides otherwise.


Sec.  169.118  What other types of payments are required for a right-
of-way?

    (a) The grantee may be required to pay additional fees, taxes, and 
assessments associated with the use of the land, as determined by 
entities having jurisdiction, except as provided in Sec.  169.009. The 
grantee must pay these amounts to the appropriate office.
    (b) In addition to the compensation for a right-of-way provided for 
in paragraph (a) of this section, the applicant for a right-of-way will 
be required to pay all damages incident to the survey of the right-of-
way or incident to the construction or maintenance of the facility for 
which the right-of-way is granted.

Grants of Rights-of-Way


Sec.  169.119  What is the process for BIA to grant a right-of-way?

    (a) Before we grant a right-of-way, we must determine that the 
right-of-way is in the best interest of the Indian landowners. In 
making that determination, we will:
    (1) Review the right-of-way application and supporting documents;
    (2) Identify potential environmental impacts and ensure compliance 
with all applicable environmental laws, land use laws, and ordinances; 
and
    (3) Require any modifications or mitigation measures necessary to 
satisfy any requirements including any other Federal or tribal land use 
requirements.
    (b) Upon receiving a right-of-way application, we will promptly 
notify the applicant whether the package is complete. A complete 
package includes all the information and supporting documents required 
under this subpart, including but not limited to, an accurate legal 
description for each affected tract, NEPA review documentation and 
valuation documentation, where applicable.
    (1) If the right-of-way application package is not complete, our 
letter will identify the missing information or documents required for 
a complete package. If we do not respond to the submission of an 
application package, the parties may take action under Sec.  169.304.
    (2) If the right-of-way application package is complete, we will 
notify the parties of the date of our receipt of the complete package. 
Within 60 days of that receipt date, we will grant or deny the right-
of-way, return the package for revision, or inform the applicant in 
writing that we need additional review time. If we inform the applicant 
in writing that we need additional time, then:
    (i) Our letter informing the applicant that we need additional 
review time must identify our initial concerns and invite the applicant 
to respond within 15 days of the date of the letter; and
    (ii) We have 30 days from sending the letter informing the 
applicant that we need additional time to grant or deny the right-of-
way.
    (c) If we do not meet the deadlines in this section, then the 
applicant may take appropriate action under Sec.  169.304.
    (d) We will provide any right-of-way grant or denial and the basis 
for the determination, along with notification of any appeal rights 
under part 2 of this chapter to the parties to the right-of-way. If the 
right-of-way is granted, we will provide a copy of the right-of-way to 
the tribal landowner and, upon written request, make copies available 
to the individual Indian landowners.

[[Page 34469]]

Sec.  169.120  How will BIA determine whether to grant a right-of-way?

    (a) We will grant a right-of-way unless:
    (1) The required consents have not been obtained from the parties 
to the right-of-way under Sec.  169.106 and Sec.  169.107;
    (2) The requirements of this subpart have not been met; or
    (3) We find a compelling reason to withhold the grant in order to 
protect the best interests of the Indian landowners.
    (b) We will defer, to the maximum extent possible, to the Indian 
landowners' determination that the right-of-way is in their best 
interest.
    (c) We may not unreasonably withhold our grant of a right-of-way.
    (d) We may grant one right-of-way for all of the tracts traversed 
by the right-of-way, or we may issue separate grants for one or more 
tracts traversed by the right-of-way.


Sec.  169.121  What will the grant of right-of-way contain?

    (a) The grant will incorporate the conditions or restrictions set 
out in the consents obtained pursuant to Sec.  169.106 for tribal land 
and Sec.  169.107 for individually owned Indian land
    (b) The grant will state that:
    (1) The grantee has no right to any of the products or resources of 
the land, including but not limited to, timber, forage, mineral, and 
animal resources, unless otherwise provided for in the grant;
    (2) BIA may treat any provision of a grant that violates Federal 
law as a violation of the grant; and
    (3) The grantee must:
    (i) Construct and maintain the right-of-way in a professional 
manner consistent with industry standards;
    (ii) Pay promptly all damages and compensation, in addition to the 
performance bond or alternative form of security made pursuant to Sec.  
169.103, determined by the BIA to be due the landowners and authorized 
users and occupants of land as a result of the granting, construction, 
and maintenance of the right-of-way;
    (iii) Restore the land as nearly as may be possible to its original 
condition, upon the completion of construction, to the extent 
compatible with the purpose for which the right-of-way was granted, 
unless otherwise negotiated by the parties;
    (iv) Clear and keep clear the land within the right-of-way, to the 
extent compatible with the purpose of the right-of-way, and dispose of 
all vegetative and other material cut, uprooted, or otherwise 
accumulated during the construction and maintenance of the project;
    (v) Comply with all applicable laws and obtain all required 
permits;
    (vi) Not commit waste;
    (vii) Repair and maintain improvements consistent with the right-
of-way grant;
    (viii) Build and maintain necessary and suitable crossings for all 
roads and trails that intersect the improvements constructed, 
maintained, or operated under the right-of-way;
    (ix) Restore land to its original condition, as much as reasonably 
possible, upon revocation or termination of the right-of-way, unless 
otherwise negotiated by the parties;
    (x) At all times keep the BIA informed of the grantee's address;
    (xi) Refrain from interfering with the landowner's use of the land, 
provided that the landowner's use of the land is not inconsistent with 
the right-of-way; and
    (xii) Comply with due diligence requirements under Sec.  169.105.
    (4) Unless the grantee would be prohibited by law from doing so, 
the grantee must also:
    (i) Hold the United States and the Indian landowners harmless from 
any loss, liability, or damages resulting from the applicant's use or 
occupation of the premises; and
    (ii) Indemnify the United States and the Indian landowners against 
all liabilities or costs relating to the use, handling, treatment, 
removal, storage, transportation, or disposal of hazardous materials, 
or release or discharge of any hazardous material from the premises 
that occurs during the term of the grant, regardless of fault, with the 
exception that the applicant is not required to indemnify the Indian 
landowners for liability or cost arising from the Indian landowners' 
negligence or willful misconduct.
    (c) The grant must attach or incorporate by reference maps of 
definite location reviewed in accordance with the Standards for Indian 
Trust Land Boundary Evidence.


Sec.  169.122  May a right-of-way contain a preference consistent with 
tribal law for employment of tribal members?

    A grant of right-of-way over Indian land may include a provision, 
consistent with tribal law, requiring the grantee to give a preference 
to qualified tribal members, based on their political affiliation with 
the tribe.


Sec.  169.123  Is a new right-of-way grant required for a new use 
within or overlapping an existing right-of-way?

    (a) If you propose to use all or a portion of an existing right-of-
way for a use not specified in the original grant of the existing 
right-of-way, or not within the same scope of the use specified in the 
original grant of the existing right-of-way, you must request a new 
right-of-way within or overlapping the existing right-of-way for the 
new use.
    (b) We may grant a new right-of-way within or overlapping an 
existing right-of-way if it meets the following conditions:
    (1) The applicant follows the procedures and requirements in this 
part to obtain a new right-of-way.
    (2) The new right-of-way does not interfere with the use or purpose 
of the existing right-of-way or the applicant has obtained the consent 
of the existing right-of-way grantee. The existing right-of-way grantee 
may not unreasonably withhold consent.
    (3) If the existing right-of-way was granted under the Act of March 
3, 1901, 25 U.S.C. 311, to a State or local authority for public 
highways, before the effective date of this part, we may grant the new 
right-of-way only if it is not prohibited by State law.


Sec.  169.124  What is required if the location described in the 
original application and grant of right-of-way differs from the 
construction location?

    (a) If there were engineering or other complications that prevented 
construction within the location identified in the original application 
and grant, we will determine whether the change in location requires 
one or more of the following:
    (1) An amended map of definite location;
    (2) Landowner consent;
    (3) A valuation;
    (4) Additional compensation; and/or
    (5) A new right-of-way grant.
    (b) If we grant a right-of-way for the new route or location, the 
applicant must execute instruments to extinguish the right-of-way at 
the original location identified in the application.
    (c) We will transmit the instruments to extinguish the right-of-way 
to the LTRO for recording.

Subpart C--Term, Renewals, Amendments, Assignments, Mortgages


Sec.  169.201  How long may the term of a right-of-way grant be?

    (a) All rights-of-way granted under this part are limited to the 
time periods stated in the grant.
    (b) For tribal land, we will defer to the tribe's determination 
that the right-of-way term, including any renewal, is reasonable.
    (c) For individually owned Indian land, we will review the right-
of-way

[[Page 34470]]

term, including any renewal, to ensure that it is reasonable, given the 
purpose of the right-of-way. We will use the following table as 
guidelines for what terms are reasonable given the purpose of the 
right-of-way:

----------------------------------------------------------------------------------------------------------------
                     Purpose                                                   Term
----------------------------------------------------------------------------------------------------------------
Railroads.......................................  In Perpetuity.
Public roads and highways.......................  In Perpetuity.
Access roads....................................  25 years, with renewal option.
Service roads and trails essential to any other   Consistent with use.
 right-of-way purpose.
Public and community water lines (including       In Perpetuity.
 pumping stations and appurtenant facilities).
Utility Gas Lines...............................  In Perpetuity.
Public sanitary and storm sewer lines including   In Perpetuity.
 sewage disposal and treatment plants.
Water control and use projects (including but     In Perpetuity.
 not limited to dams, reservoirs, flowage
 easements, irrigation/ditches and canals and
 water treatment plants).
Oil and gas pipelines...........................  20 years.
Electric power projects, generating plants,       50 years.
 switchyards, electric transmission and
 distribution lines (including poles, towers,
 and appurtenant facilities).
Telecommunication lines.........................  30 years.
Broadband or fiber optic lines..................  30 years.
Avigation hazard easements......................  20 years.
Conservation easements..........................  Consistent with use.
----------------------------------------------------------------------------------------------------------------

    (c) Unless the right-of-way grant provides otherwise, a right-of-
way may not be extended by holdover.


Sec.  169.202  Under what circumstances will a grant of right-of-way be 
renewed?

    (a) The grantee may request a renewal (an extension of term without 
any other change) of an existing right-of-way grant and we will renew 
the grant as long as:
    (1) The original right-of-way grant allows for renewal and 
specifies any compensation;
    (2) The grantee provides us with a signed attestation that there is 
no change in size, type, location, or duration of the right-of-way; and
    (3) The grantee provides us with confirmation that landowner 
consent has been obtained, unless it is not required under paragraph 
(b) of this section.
    (b) Consent is not required if the original right-of-way grant 
allows for renewal without the owners' consent.
    (c) We will record any renewal of a right-of-way grant in the LTRO.
    (d) If the proposed renewal involves a change in size, type, 
location, or duration of the right-of-way, the grantee must reapply for 
a new right-of-way, in accordance with Sec.  169.101, and we will 
handle the application for renewal as an original application for a 
right-of-way.


Sec.  169.203  May a right-of-way be renewed multiple times?

    There is no prohibition on renewing a right-of-way multiple times.

Amendments


Sec.  169.204  May a grantee amend a right-of-way?

    (a) A grantee may request that we amend a right-of-way grant if the 
grantee meets the consent requirements in Sec.  169.106 for tribal land 
or Sec.  169.107 for individually owned Indian land and obtains our 
approval, except that a grantee may request that we amend a right-of-
way to correct a legal description or make other technical corrections 
without meeting consent requirements.
    (b) An amendment is required to change any provisions of a right-
of-way grant or to accommodate a change in the location of permanent 
improvements to previously unimproved land within the right-of-way 
corridor.


Sec.  169.205  What is the approval process for an amendment of a 
right-of-way?

    (a) When we receive an amendment for our approval, we will notify 
the parties of the date we receive it. If our approval is required, we 
have 30 days from receipt of the executed amendment, proof of required 
consents, and required documentation (including but not limited to a 
corrected legal description, if any, and NEPA compliance) to approve or 
disapprove the amendment or inform the parties in writing that we need 
additional review time. Our determination whether to approve the 
amendment will be in writing and will state the basis for our approval 
or disapproval.
    (b) Our letter informing the parties that we need additional review 
time must identify our initial concerns and invite the parties to 
respond within 15 days of the date of the letter. We have 30 days from 
sending the letter informing the parties that we need additional time 
to approve or disapprove the amendment.
    (c) If we do not meet the deadline in paragraph (a) of this 
section, or paragraph (b) of this section if applicable, the grantee or 
Indian landowners may take appropriate action under Sec.  169.304.


Sec.  169.206  How will BIA decide whether to approve an amendment of a 
right-of-way?

    (a) We may disapprove a request for an amendment of a right-of-way 
only if at least one of the following is true:
    (1) The Indian landowners have not consented;
    (2) The grantee's sureties have not consented;
    (3) The grantee is in violation of the right-of-way grant;
    (4) The requirements of this subpart have not been met; or
    (5) We find a compelling reason to withhold our approval in order 
to protect the best interests of the Indian landowners.
    (b) We will defer, to the maximum extent possible, to the Indian 
landowners' determination that the amendment is in their best interest.
    (c) We may not unreasonably withhold approval of an amendment.

Assignments


Sec.  169.207  May a grantee assign a right-of-way?

    (a) A grantee may assign a right-of-way by meeting the consent 
requirements in Sec.  169.106 for tribal land or Sec.  169.107 for 
individually owned Indian land and obtaining our approval, or by 
meeting the conditions in paragraph (b).
    (b) A grantee may assign a right-of-way without BIA approval only 
if:
    (1) The original right-of-way grant allows for assignment without 
BIA approval; and
    (2) The assignee and grantee provide a copy of the assignment and 
supporting documentation to BIA for recording in the LTRO.


Sec.  169.208  What is the approval process for an assignment of a 
right-of-way?

    (a) When we receive an assignment for our approval, we will notify 
the

[[Page 34471]]

parties of the date we receive it. If our approval is required, we have 
30 days from receipt of the executed assignment, proof of required 
consents, and required documentation to approve or disapprove the 
assignment. Our determination whether to approve the assignment will be 
in writing and will state the basis for our approval or disapproval.
    (b) If we do not meet the deadline in this section, the grantee or 
Indian landowners may take appropriate action under Sec.  169.304.


Sec.  169.209  How will BIA decide whether to approve an assignment of 
a right-of-way?

    (a) We may disapprove an assignment of a right-of-way only if at 
least one of the following is true:
    (1) The Indian landowners have not consented and their consent is 
required;
    (2) The grantee's sureties have not consented;
    (3) The grantee is in violation of the right-of-way grant;
    (4) The assignee does not agree to be bound by the terms of the 
right-of-way grant;
    (5) The requirements of this subpart have not been met; or
    (6) We find a compelling reason to withhold our approval in order 
to protect the best interests of the Indian landowners.
    (b) We will defer, to the maximum extent possible, to the Indian 
landowners' determination that the assignment is in their best 
interest.
    (c) We may not unreasonably withhold approval of an assignment.

Mortgages


Sec.  169.210  May a grantee mortgage a right-of-way?

    A grantee may mortgage a right-of-way by meeting the consent 
requirements in Sec.  169.106 for tribal land or Sec.  169.107 for 
individually owned Indian land and obtaining our approval.


Sec.  169.211  What is the approval process for a mortgage of a right-
of-way?

    (a) When we receive a right-of-way mortgage for our approval, we 
will notify the parties of the date we receive it. We have 30 days from 
receipt of the executed mortgage, proof of required consents, and 
required documentation to approve or disapprove the mortgage. Our 
determination whether to approve the mortgage will be in writing and 
will state the basis for our approval or disapproval.
    (b) If we do not meet the deadline in this section, the grantee or 
Indian landowners may take appropriate action under Sec.  169.304.


Sec.  169.212  How will BIA decide whether to approve a mortgage of a 
right-of-way?

    (a) We may disapprove a right-of-way mortgage only if at least one 
of the following is true:
    (1) The Indian landowners have not consented;
    (2) The grantee's mortgagees or sureties have not consented;
    (3) The requirements of this subpart have not been met; or
    (4) We find a compelling reason to withhold our approval in order 
to protect the best interests of the Indian landowners.
    (b) In making the finding required by paragraph (a)(4) of this 
section, we may consider whether:
    (1) The mortgage proceeds would be used for purposes unrelated to 
the right-of-way purpose; and
    (2) The mortgage is limited to the right-of-way.
    (c) We will defer, to the maximum extent possible, to the Indian 
landowners' determination that the mortgage is in their best interest.
    (d) We may not unreasonably withhold approval of a right-of-way 
mortgage.

Subpart D--Effectiveness


Sec.  169.301  When will a right-of-way document be effective?

    A right-of-way document will be effective on the date we approve 
the right-of-way document, even if an appeal is filed under part 2 of 
this chapter.


Sec.  169.302  Must a right-of-way be recorded?

    (a) Any right-of-way document must be recorded in our LTRO with 
jurisdiction over the affected Indian land.
    (1) We will record the right-of-way document immediately following 
our approval or granting.
    (2) In the case of assignments that do not require our approval 
under Sec.  169.207(b), the parties must provide us with a copy of the 
assignment and we will record the assignment in the LTRO with 
jurisdiction over the affected Indian land.
    (b) The tribe must record right-of-way documents for the following 
types of rights-of-way in the LTRO with jurisdiction over the affected 
Indian lands, even though BIA approval is not required:
    (1) Grants on tribal land for a tribal utility that is not a 
separate legal entity under Sec.  169.004;
    (2) Grants on tribal land under a special act of Congress 
authorizing grants without our approval under certain conditions.


Sec.  169.303  What happens if BIA denies a right-of-way document?

    If we deny the right-of-way grant, renewal, amendment, assignment, 
or mortgage, we will notify the parties immediately and advise the 
landowners of their right to appeal the decision under part 2 of this 
chapter.


Sec.  169.304  What happens if BIA does not meet a deadline for issuing 
a decision on a right-of-way document?

    (a) If a Superintendent does not meet a deadline for granting or 
denying a right-of-way, renewal, amendment, assignment, or mortgage, 
the parties may file a written notice to compel action with the 
appropriate Regional Director.
    (b) The Regional Director has 15 days from receiving the notice to:
    (1) Grant or deny the right-of-way; or
    (2) Order the Superintendent to grant or deny the right-of-way 
within the time set out in the order.
    (c) The parties may file a written notice to compel action with the 
BIA Director if:
    (1) The Regional Director does not meet the deadline in paragraph 
(b) of this section;
    (2) The Superintendent does not grant or deny the right-of-way 
within the time set by the Regional Director under paragraph (b)(2) of 
this section; or
    (3) The initial decision on the right-of-way, renewal, amendment, 
assignment, or mortgage is with the Regional Director, and he or she 
does not meet the deadline for such decision.
    (d) The BIA Director has 15 days from receiving the notice to:
    (1) Grant or deny the right-of-way; or
    (2) Order the Regional Director or Superintendent to grant or deny 
the right-of-way within the time set out in the order.
    (e) If the Regional Director or Superintendent does not grant or 
deny the right-of-way within the time set out in the order under 
paragraph (d)(2), then the BIA Director must issue a decision within 15 
days from the expiration of the time set out in the order.
    (f) The parties may file an appeal from our inaction to the 
Interior Board of Indian Appeals if the Director does not meet the 
deadline in paragraph (d) or (e) of this section.
    (g) The provisions of 25 CFR 2.8 do not apply to the inaction of 
BIA officials with respect to a granting or denying a right-of-way, 
renewal, amendment, assignment, or mortgage under this subpart.

[[Page 34472]]

Sec.  169.305  Will BIA require an appeal bond for an appeal of a 
decision on a right-of-way document?

    (a) If a party appeals our decision on a right-of-way document, 
then the official to whom the appeal is made may require the appellant 
to post an appeal bond in accordance with part 2 of this chapter. We 
will not require an appeal bond if the tribe is a party to the appeal 
and requests a waiver of the appeal bond.
    (b) The appellant may not appeal the appeal bond decision. The 
appellant may, however, request that the official to whom the appeal is 
made reconsider the bond decision, based on extraordinary 
circumstances. Any reconsideration decision is final for the 
Department.

Subpart E--Compliance and Enforcement


Sec.  169.401  What is the purpose and scope of this subpart?

    This subpart describes the procedures we use to address compliance 
and enforcement related to rights-of-way on Indian land. Any 
abandonment, non-use, or violation of the right-of-way grant, including 
but not limited to encroachments beyond the defined boundaries, 
accidental, willful, and/or incidental trespass, unauthorized new 
construction or changes in use, and late or insufficient payment may 
result in enforcement actions.


Sec.  169.402  May BIA investigate compliance with a right-of-way?

    BIA may investigate compliance with a right-of-way.
    (a) If an Indian landowner notifies us that a specific abandonment, 
non-use, or violation has occurred, we will promptly initiate an 
appropriate investigation.
    (b) We may enter the Indian land subject to a right-of-way at any 
reasonable time, upon reasonable notice, and consistent with any notice 
requirements under applicable tribal law and applicable grant 
documents, to protect the interests of the Indian landowners and to 
determine if the grantee is in compliance with the requirements of the 
right-of-way.


Sec.  169.403  May a right-of-way provide for negotiated remedies?

    (a) The tribe and the grantee on tribal land may negotiate remedies 
for the event of a violation, abandonment, or non-use. The negotiated 
remedies must be stated in the tribe's consent to the right-of-way 
grant. The negotiated remedies may include, but are not limited to, the 
power to terminate the right-of-way grant. If the negotiated remedies 
provide one or both parties with the power to terminate the grant:
    (1) BIA approval of the termination is not required;
    (2) The termination is effective without BIA cancellation; and
    (3) The Indian landowners must provide us with written notice of 
the termination so that we may record it in the LTRO.
    (b) The Indian landowners and the grantee to a right-of-way grant 
on individually owned Indian land may negotiate remedies, so long as 
the consent also specifies the manner in which those remedies may be 
exercised by or on behalf of the Indian landowners of the majority 
interest under Sec.  169.107 of this part. If the negotiated remedies 
provide one or both parties with the power to terminate the grant:
    (1) BIA concurrence with the termination is required to ensure that 
the Indian landowners of the applicable percentage of interests have 
consented; and
    (2) BIA will record the termination in the LTRO.
    (c) The parties must notify any surety or mortgagee of any 
violation that may result in termination and the termination of a 
right-of-way.
    (d) Negotiated remedies may apply in addition to, or instead of, 
the cancellation remedy available to us, as specified in the right-of-
way grant. The landowners may request our assistance in enforcing 
negotiated remedies.
    (e) A right-of-way grant may provide that violations will be 
addressed by a tribe, and that disputes will be resolved by a tribal 
court, any other court of competent jurisdiction, or by a tribal 
governing body in the absence of a tribal court, or through an 
alternative dispute resolution method. We may not be bound by decisions 
made in such forums, but we will defer to ongoing actions or 
proceedings, as appropriate, in deciding whether to exercise any of the 
remedies available to us.


Sec.  169.404  What will BIA do about a violation of a right-of-way 
grant?

    (a) In the absence of actions or proceedings described in Sec.  
169.403 (negotiated remedies), or if it is not appropriate for us to 
defer to the actions or proceedings, we will follow the procedures in 
paragraphs (b) and (c) of this section.
    (b) If we determine there has been a violation of the conditions of 
a grant, other than a violation of payment provisions covered by 
paragraph (c) of this section, we will promptly send the grantee a 
written notice of violation.
    (1) We will send a copy of the notice of violation to the tribe for 
tribal land, or provide constructive notice to Indian landowners for 
individually owned Indian land.
    (2) The notice of violation will advise the grantee that, within 10 
business days of the receipt of a notice of violation, the grantee 
must:
    (i) Cure the violation and notify us, and the tribe for tribal 
land, in writing that the violation has been cured;
    (ii) Dispute our determination that a violation has occurred; or
    (iii) Request additional time to cure the violation.
    (3) The notice of violation may order the grantee to cease 
operations under the right-of-way grant.
    (c) A grantee's failure to pay compensation in the time and manner 
required by a right-of-way grant is a violation, and we will issue a 
notice of violation in accordance with this paragraph.
    (1) We will send the grantees a written notice of violation 
promptly following the date on which the payment was due.
    (2) We will send a copy of the notice of violation to the tribe for 
tribal land, or provide constructive notice to the Indian landowners 
for individually owned Indian land.
    (3) The notice of violation will require the grantee to provide 
adequate proof of payment.
    (d) The grantee will continue to be responsible for the obligations 
in the grant until the grant expires, or is terminated or cancelled.


Sec.  169.405  What will BIA do if the grantee does not cure a 
violation of a right-of-way grant on time?

    (a) If the grantee does not cure a violation of a right-of-way 
grant within the required time period, or provide adequate proof of 
payment as required in the notice of violation, we will consult with 
the tribe for tribal land or, where feasible, with Indian landowners 
for individually owned Indian land, and determine whether:
    (1) We should cancel the grant;
    (2) The Indian landowners wish to invoke any remedies available to 
them under the grant;
    (3) We should invoke other remedies available under the grant or 
applicable law, including collection on any available performance bond 
or, for failure to pay compensation, referral of the debt to the 
Department of the Treasury for collection; or
    (4) The grantee should be granted additional time in which to cure 
the violation.
    (b) Following consultation with the tribe for tribal land or, where 
feasible, with Indian landowners for individually

[[Page 34473]]

owned Indian land, we may take action to recover unpaid compensation 
and any associated late payment charges.
    (1) We do not have to cancel the grant or give any further notice 
to the grantee before taking action to recover unpaid compensation.
    (2) We may still take action to recover any unpaid compensation if 
we cancel the grant.
    (c) If we decide to cancel the grant, we will send the grantee a 
cancellation letter by certified mail, return receipt requested, within 
5 business days of our decision. We will send a copy of the 
cancellation letter to the tribe for tribal land, and will provide 
Indian landowners for individually owned Indian land with actual or 
constructive notice of the cancellation. The cancellation letter will:
    (1) Explain the grounds for cancellation;
    (2) If applicable, notify the grantee of the amount of any unpaid 
compensation or late payment charges due under the grant;
    (3) Notify the grantee of the grantee's right to appeal under part 
2 of this chapter, including the possibility that the official to whom 
the appeal is made may require the grantee to post an appeal bond;
    (4) Order the grantee to vacate the property within 31 days of the 
date of receipt of the cancellation letter, if an appeal is not filed 
by that time; and
    (5) Order the grantee to take any other action BIA deems necessary 
to protect the Indian landowners.
    (d) We may invoke any other remedies available to us under the 
grant, including collecting on any available performance bond, and the 
Indian landowners may pursue any available remedies under tribal law.


Sec.  169.406  Will late payment charges, penalties, or special fees 
apply to delinquent payments due under a right-of-way grant?

    (a) Late payment charges and penalties will apply as specified in 
the grant. The failure to pay these amounts will be treated as a 
violation.
    (b) We may assess the following special fees to cover 
administrative costs incurred by the United States in the collection of 
the debt, if compensation is not paid in the time and manner required, 
in addition to the late payment charges that must be paid to the Indian 
landowners under the grant:

------------------------------------------------------------------------
    The grantee will pay . . .                    For . . .
------------------------------------------------------------------------
(1) $50.00........................  Any dishonored check.
(2) $15.00........................  Processing of each notice or demand
                                     letter.
(3) 18 percent of balance due.....  Treasury processing following
                                     referral for collection of
                                     delinquent debt.
------------------------------------------------------------------------

Sec.  169.407  How will payment rights relating to a right-of-way grant 
be allocated?

    The right-of-way grant may allocate rights to payment for any 
proceeds, trespass damages, condemnation awards, settlement funds, and 
other payments between the Indian landowners and the grantee. If not 
specified in the grant, applicable policy, order, award, judgment, or 
other document, the Indian landowners or grantees will be entitled to 
receive these payments.


Sec.  169.408  What is the process for cancelling a right-of-way for 
non-use or abandonment?

    (a) We may cancel, in whole or in part, any rights-of-way granted 
under this part 30 days after mailing written notice to the grantee at 
its latest address, for any of the following causes:
    (1) A nonuse of the right-of-way for a consecutive 2-year period 
for the purpose for which it was granted; or
    (2) An abandonment of the right-of-way.
    (b) If the grantee fails to correct the basis for cancellation by 
the 30th day after we mailed the notice, we will issue an appropriate 
instrument cancelling the right-of-way and transmit it to the office of 
record pursuant to 25 CFR part 150 for recording and filing.


Sec.  169.409  When will a cancellation of a right-of-way grant be 
effective?

    (a) A cancellation involving a right-of-way grant will not be 
effective until 31 days after the grantee receives a cancellation 
letter from us, or 41 days from the date we mailed the letter, 
whichever is earlier.
    (b) The cancellation decision will not be effective if an appeal is 
filed unless the cancellation is made immediately effective under part 
2 of this chapter. While a cancellation decision is ineffective, the 
grantee must continue to pay compensation and comply with the other 
terms of the grant.


Sec.  169.410  What will BIA do if a grantee remains in possession 
after a right-of-way expires or is terminated or cancelled?

    If a grantee remains in possession after the expiration, 
termination, or cancellation of a right-of-way, we may treat the 
unauthorized possession as a trespass under applicable law in 
consultation with the Indian landowners. Unless the Indian landowners 
of the applicable percentage of interests under Sec.  169.106 or 
169.107 have notified us in writing that they are engaged in good faith 
negotiations with the holdover grantee to renew or obtain a new right-
of-way, we may take action to recover possession on behalf of the 
Indian landowners, and pursue any additional remedies available under 
applicable law, such as a forcible entry and detainer action.


Sec.  169.411  Will BIA appeal bond regulations apply to cancellation 
decisions involving right-of-way grants?

    (a) Except as provided in paragraph (b) of this section, the appeal 
bond provisions in part 2 of this chapter will apply to appeals from 
right-of-way cancellation decisions.
    (b) The grantee may not appeal the appeal bond decision. The 
grantee may, however, request that the official to whom the appeal is 
made reconsider the appeal bond decision, based on extraordinary 
circumstances. Any reconsideration decision is final for the 
Department.


Sec.  169.412  What if an individual or entity takes possession of or 
uses Indian land without a right-of-way or other proper authorization?

    If an individual or entity takes possession of, or uses, Indian 
land without a right-of-way and a right-of-way is required, the 
unauthorized possession or use is a trespass. An unauthorized use 
within an existing right-of-way is also a trespass. We may take action 
to recover possession, including eviction, on behalf of the Indian 
landowners and pursue any additional remedies available under 
applicable law. The Indian landowners may pursue any available remedies 
under applicable law.

Subpart F--Service Line Agreements


Sec.  169.501  Is a right-of-way required for service lines?

    A right-of-way is not required for service lines. Service line 
agreements are for the purpose of supplying the owners (or authorized 
occupants or users, as demonstrated by a lease or tribal authorization) 
of tribal or

[[Page 34474]]

individually owned Indian land with utilities for use by such owners 
(or occupants or users) on the premises. A service line agreement 
should address the mitigation of any damages incurred during 
construction and the restoration of the premises at the termination of 
the agreement.


Sec.  169.502  What are the consent requirements for service line 
agreements?

    (a) Before the applicant may begin any work to construct service 
lines across tribal land, the applicant and the tribe (or the legally 
authorized occupants or users of the tribal land and the tribe) must 
execute a service line agreement.
    (b) Before the applicant may begin any work to construct service 
lines across individually owned land, the applicant and the owners (or 
the legally authorized occupants or users) must execute a service line 
agreement.


Sec.  169.503  Is a valuation required for service line agreements?

    We do not require a valuation for service line agreements.


Sec.  169.504  Must I file service line agreements with the BIA?

    The parties must file an executed copy of service line agreements, 
together with a plat or diagram, with us within 30 days after the date 
of execution for recording in the LTRO. The plat or diagram must show 
the boundary of the ownership parcel and point of connection with the 
distribution line. When the plat or diagram is placed on a separate 
sheet it must include the signatures of the parties.

    Dated: June 2, 2014.
Kevin K. Washburn,
Assistant Secretary--Indian Affairs.
[FR Doc. 2014-13964 Filed 6-16-14; 8:45 am]
BILLING CODE 4310-6W-P