[Federal Register Volume 83, Number 141 (Monday, July 23, 2018)]
[Proposed Rules]
[Pages 34802-34804]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15680]



Bureau of Indian Affairs

25 CFR Part 169

[189A2100DD/AAKC001030/A0A501010.999900 253G]
RIN 1076-AF20

Rights-of-Way on Indian Land; Bond Exemption

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule.


SUMMARY: This proposed rule would exempt Federal, State, Tribal, and 
local governments from the requirement to obtain a bond, insurance, or 
alternative form of security for a right-of-way across Indian land and 
BIA land where such governments are prohibited by law from obtaining 

DATES: Comments are due by September 21, 2018.

ADDRESSES: Please submit comments by email to [email protected] or 
to Office of Regulatory Affairs & Collaborative Action--Indian Affairs 
(RACA), U.S. Department of the Interior, 1849 C Street NW, Mail Stop 
4660, Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Director, Office of 
Regulatory Affairs & Collaborative Action, (202) 273-4680; 
[email protected].

SUPPLEMENTARY INFORMATION: On November 19, 2015, the Bureau of Indian 
Affairs (BIA) finalized revisions to the regulations governing rights-
of-way on Indian land and BIA land at 25 CFR part 169. See 80 FR 72492. 
The regulations became effective on April 21, 2016. 81 FR 14976. The 
final regulations established new requirements for bonding, insurance, 
or alternative form of security to cover the annual rental, estimated 
damages, operation and maintenance charges, and restoration. See 25 CFR 
169.103(a). The regulations allow for waiver of this requirement on a 
case-by-case basis. See 25 CFR 169.103(f).
    Currently, a governmental entity applying for a right-of-way across 
Indian land or BIA land must seek a waiver (and landowner consent for 
the waiver) from the requirement to provide bonding, insurance, or 
alternate security in those cases in which the entity is prohibited by 
law from obtaining such bonding, insurance, or alternate security. This 
rule would eliminate the need for governmental entities to seek a 
waiver for each instance by exempting governmental entities from the

[[Page 34803]]

requirement to obtain bonding, insurance, or alternative form of 
security if they are prohibited by law from doing so. It also requires 
governmental entities to provide a certification with their 
application, with citation to applicable law, that they are prohibited 
by law from providing security. In addition, this rule requires 
governmental entities to notify landowners that they are prohibited by 
law from providing security when they notify the Indian landowners of 
their application under 25 CFR 169.107.

Procedural Requirements

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

    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 

B. Regulatory Flexibility Act

    The Department of the Interior certifies that this document 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.). 
It does not change current funding requirements and would not impose 
any economic effects on small governmental entities.

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. This rule:
    (a) Will not have an annual effect on the economy of $100 million 
or more.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    (c) Will not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of the 
U.S.-based enterprises to compete with foreign-based enterprises.

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)

    This rule does not effect a taking of private property or otherwise 
have taking implications under E.O. 12630. A takings implication 
assessment is not required.

F. Federalism (E.O. 13132)

    Under the criteria in section 1 of E.O. 13132, this rule does not 
have sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement. A federalism summary impact 
statement is not required.

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

    This rule complies with the requirements of E.O. 12988. 
Specifically, this rule:
    (a) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 

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

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Indian tribes through a 
commitment to consultation with Indian tribes and recognition of their 
right to self-governance and tribal sovereignty. We have evaluated this 
rule under the Department's consultation policy and under the criteria 
in E.O. 13175 and have determined there are no substantial direct 
effects on federally recognized Indian Tribes that will result from 
this rulemaking because the rule addresses an inconsistency that may 
have otherwise prevented governments from obtaining rights-of-way on 
Indian land.

I. Paperwork Reduction Act

    The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., 
prohibits a Federal agency from conducting or sponsoring a collection 
of information that requires OMB approval, unless such approval has 
been obtained and the collection request displays a currently valid OMB 
control number. Nor is any person required to respond to an information 
collection request that has not complied with the PRA. In accordance 
with 44 U.S.C. 3507(d), the information collections in 25 CFR part 169 
are authorized by OMB Control Number 1076-0181, Rights-of-Way on Indian 
Land, which expires 04/30/2019. The requirements in this rule to 
provide a legal citation and notice is not expected to have a 
quantifiable effect on the hour burden estimate for the information 
collection, but BIA will review whether its current estimates are 
affected by this change at the next renewal.
    A Federal agency may not conduct or sponsor, and you are not 
required to respond to, a collection of information unless the form or 
regulation requesting the information displays a currently valid OMB 
Control Number.

J. National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act of 1969 (NEPA) is not 
required because this is an administrative and procedural regulation. 
(For further information see 43 CFR 46.210(i)). We have also determined 
that the rule does not involve any of the extraordinary circumstances 
listed in 43 CFR 46.215 that would require further analysis under NEPA.

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

    This rule is not a significant energy action under the definition 
in E.O. 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;

[[Page 34804]]

    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 ADDRESSES 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.

N. E.O. 13771: Reducing Regulation and Controlling Regulatory Costs

    This action is not an E.O. 13771 regulatory action because it 
imposes no more than de minimis costs.

List of Subjects in 25 CFR Part 169

    Indians-lands, Reporting and recordkeeping requirements, Rights-of-

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


1. The authority citation for part 169 continues to read as follows:

    Authority: 5 U.S.C. 301; 25 U.S.C. 323-328; 25 U.S.C. 2201 et 

2. Amend Sec.  169.103 by adding paragraph (k) to read as follows:

Sec.  169.103  What bonds, insurance, or other security must accompany 
the application?

* * * * *
    (k) The requirements of this section do not apply to Federal, 
State, Tribal, or local governments who are prohibited by law from 
providing a bond, insurance, or other security. Federal, State, Tribal, 
or local governments seeking this exemption must include with their 
application a certification, including a citation to applicable law, 
that they are prohibited by law from providing security. Federal, 
State, Tribal, or local governments must also notify landowners that 
they are prohibited by law from providing security when they notify the 
Indian landowners of their application under Sec.  169.107.

    Dated: June 29, 2018.
John Tahsuda,
Principal Deputy Assistant Secretary--Indian Affairs exercising the 
authority of the Assistant Secretary--Indian Affairs.
[FR Doc. 2018-15680 Filed 7-20-18; 8:45 am]