[Federal Register Volume 84, Number 160 (Monday, August 19, 2019)]
[Rules and Regulations]
[Pages 42806-42808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17781]



[[Page 42806]]

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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 169

[190A2100DD/AAKC001030/A0A501010.999900 253G]
RIN 1076-AF20; 1076-AF37


Rights-of-Way on Indian Land; Bond Exemption

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule.

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SUMMARY: This final rule exempts 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 
Bureau of Indian Affairs (BIA) land where such governments are 
prohibited by law from obtaining security.

DATES: This rule is effective on September 18, 2019.

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 under Regulation 
Identifier Number (RIN) 1076-AF20. 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. On 
July 23, 2018, the BIA published a proposed rule to eliminate the need 
for governmental entities to seek a waiver for each instance by 
exempting governmental entities from the requirement to obtain bonding, 
insurance, or alternative form of security if they are prohibited by 
law from doing so. See 83 FR 34802. The proposed rule would require 
governmental entities to: (1) Provide a certification with their 
application, with citation to applicable law, that they are prohibited 
by law from providing security; and (2) 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.

Comments and Responses on Proposed Rule

    The public comment period on the proposed rule ended on September 
21, 2018. During that time, the Department received one comment that 
was relevant to the rulemaking. (To view all comments, search by Docket 
Number ``BIA-2018-0003-0001'' in https://www.regulations.gov.) That 
comment asked for further explanation on the reason for the rule 
change, expressed concern with whether governmental entities could 
contaminate the land, and asked whether the rule change gives 
governments an unfair advantage. The following discussion addresses 
each of these items.

Reason for Rule Change

    The current version of part 169 requires applicants for a right-of-
way across Indian or BIA land to obtain bonding, insurance or 
alternative form of security. Governmental entities sometimes need to 
apply for rights-of-way across Indian or BIA land, but are unique in 
that applicable laws often prohibit governmental entities from 
obtaining bonding, insurance, or other security. The rule change 
effectively streamlines a step in the process of obtaining a right-of-
way by eliminating the need for the governmental entity to seek a 
waiver as long as the governmental entity provides a certification and 
citation to applicable law stating they are prohibited from providing 
security. The governmental entity must notify landowners as part of the 
application that they are prohibited from providing security, so that 
landowners may consider this as part of determining whether to consent 
to the right-of-way. Providing this exemption in lieu of requiring 
governmental entity applicants for rights-of-way to seek individual 
waivers in each instance streamlines the process and provides 
transparency for landowners, who may review the exemption as part of 
the application in determining whether to consent to the right-of-way.

Environmental Contamination by Governmental Entities

    The commenter pointed out that, in finalizing part 169, BIA stated 
that the potential for environmental contamination was a reason for 
imposing the bonding, insurance, or alternate security. Bonding, 
insurance, or alternate security are some of several tools BIA has at 
its disposal if a right-of-way grantee contaminates Indian or BIA land. 
For grantees who are governmental entities that are prohibited by law 
from providing bonding, insurance, or other security, the BIA may 
pursue recourse through a variety of means ranging from negotiation to 
legal action, as appropriate according to the circumstances.

Potential Advantage to Governmental Entities

    The commenter expressed concern that eliminating the need for 
governmental entities applying for a right-of-way across Indian land or 
BIA land to obtain bonding, insurance, or other security under certain 
circumstances somehow provides those entities an unfair advantage. Any 
advantage would be in the entities' legal inability to comply with part 
169's security requirement. The rule does not create that legal 
inability; rather, the rule accounts for the inability by clarifying 
what information the entities must provide in the alternative to 
qualify for the exemption. The exemption requires documentation of 
eligibility for the exemption (proof that the governmental entity 
cannot legally comply with the security requirement) \1\ and landowner 
consent. Any other grantee may seek an individual waiver from the 
security requirement and the BIA is open to any other suggestions for 
categories of grantees that have a sound basis for another exemption.
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    \1\ For example, for Federal government entities, sufficient 
documentation would be a citation to 31 U.S.C. 1301(a) and an 
explanation that appropriated funds are not available for the 
purchase of insurance.
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    No changes to the proposed rule have been made as a result of the 
above comments. Today's publication references both Regulation 
Identifier Number (RIN) 1076-AF20 and 1076-AF37 because while the 
proposed rule was inadvertently listed under RIN 1076-AF20, that RIN 
was assigned to the final rule for 25 CFR part 169 that effective in 
2016. The proposed rule published in 2018 and this final rule are 
identified as RIN 1076-AF37 on the semi-annual regulatory agenda.

[[Page 42807]]

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 
requirements.

B. Regulatory Flexibility Act

    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.). This rule 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.
    This rule acknowledges that some governmental entities are legally 
prohibited from complying with the regulatory requirement for providing 
security and merely establishes a procedure for documenting and 
notifying that the entities are legally prohibited from complying with 
the security requirement.

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. This rule does uniquely affect 
those governmental entities that are prohibited by law from complying 
with a regulatory requirement to provide security for a right-of-way 
across Indian or BIA land; however, the purpose of the rule is to 
account for that legal prohibition. The rule accounts for the legal 
prohibition in a manner that allows those governmental entities a 
transparent process for applying for a right-of-way across Indian or 
BIA land.

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 standards.

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 10/31/2019. 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. 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.

[[Page 42808]]

List of Subjects in 25 CFR Part 169

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


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

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

0
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 
seq.


0
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: April 26, 2019.
Tara Sweeney,
Assistant Secretary--Indian Affairs.


    Editorial note: This document was received for publication by 
the Office of the Federal Register on August 14, 2019.
[FR Doc. 2019-17781 Filed 8-16-19; 8:45 am]
BILLING CODE 4337-15-P