[Federal Register Volume 86, Number 98 (Monday, May 24, 2021)]
[Rules and Regulations]
[Pages 27806-27808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10764]



Bureau of Indian Affairs

25 CFR Part 224

RIN 1076-AF65

Tribal Energy Resource Agreements

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Interim final rule.


SUMMARY: On December 18, 2019, the Bureau of Indian Affairs (BIA) 
amended its regulations governing Tribal Energy

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Resource Agreements (TERAs) between the Secretary of the Interior 
(Secretary) and Indian Tribes. That document inadvertently failed to 
include the statutory requirement that any application for a Tribal 
Energy Development Organization (TEDO) be submitted by the Tribe, 
rather than the TEDO itself, and incorrectly listed three cross-
references. This interim final rule would correct that omission and 

DATES: This rule is effective May 24, 2021. Submit comments by June 23, 

ADDRESSES: You may submit comments by any of the following methods:
     Federal rulemaking portal www.regulations.gov. The rule is 
listed under the agency name ``Bureau of Indian Affairs.''
     Email: [email protected].
     We cannot ensure that comments received after the close of 
the comment period (see DATES) will be included in the docket for this 
rulemaking and considered. Comments sent to an address other than those 
listed above will not be included in the docket for this rulemaking.

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

I. Background
II. Corrections to Final Rule
III. Procedural Requirements
    A. Regulatory Planning and Review (E.O. 12866, 13563, and 13771)
    B. Regulatory Flexibility Act
    C. Small Business Regulatory Enforcement Fairness Act
    D. Unfunded Mandates Reform Act
    E. Takings (E.O. 12630)
    F. Federalism (E.O. 13132)
    G. Civil Justice Reform (E.O. 12988)
    H. Consultation With Indian Tribes (E.O. 13175)
    I. Paperwork Reduction Act
    J. National Environmental Policy Act
    K. Effects on the Energy Supply (E.O. 13211)

I. Background

    On December 18, 2019, BIA updated its TERA regulations under the 
authority of the Indian Tribal Energy Development and Self-
Determination Act of 2005, as amended by the Indian Tribal Energy 
Development and Self-Determination Act Amendments of 2017, 25 U.S.C. 
3501-3504, Public Law 115-325, and 25 U.S.C. 2 and 9. The rule 
addressed the requirements of the Indian Tribal Energy Development and 
Self-Determination Act Amendments of 2017 (2017 Amendments), including 
establishing a process and criteria for TEDOs to obtain certification 
from the Secretary so that they may enter into leases, business 
agreements, and rights-of-way with Tribes on Tribal land without 
Secretarial approval. See Section 103(b) of the 2017 Amendments.

II. Corrections to Final Rule

    The 2019 regulation stated at Sec.  224.202 that a TEDO must submit 
an application. The statute, however, states that the Tribe submits the 
application for certification of a TEDO. See 25 U.S.C. 3504(h)(1). For 
that reason, the regulation at Sec.  224.202 must be corrected to 
provide that a Tribe must submit the application.
    Additionally, Indian Affairs identified typographical errors in the 
cross-references to paragraphs in Sec.  224.53, which should be 
corrected as follows:
     In paragraph (a)(3), the cross-reference should be to 
paragraph (b), rather than paragraph (c);
     In paragraph (a)(5), the cross-reference should be to 
paragraph (c) rather than paragraph (d); and
     In paragraph (b), the cross reference should be to 
paragraph (a)(3) rather than paragraph (a)(6).

III. Procedural Requirements

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

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. This rule:
    (a) Does 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; and
    (c) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises 
because this rule makes minor corrections.

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 monetarily 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 affect a taking of private property or otherwise 
have taking implications under Executive Order 12630 because this rule 
does not affect individual property rights protected by the Fifth 
Amendment or involve a compensable ``taking.'' A takings implication 
assessment is not required.

F. Federalism (E.O. 13132)

    Under the criteria in section 1 of Executive Order 13132, this rule 
does not have sufficient federalism implications to warrant the 
preparation of a federalism summary impact statement because the rule 
affects only agreements entered into by Tribes and the Department. A 
federalism summary impact statement is not required.

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

    This rule complies with the requirements of Executive Order 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

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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 Executive Order 13175 and have determined that it does not have 
substantial direct effects on federally recognized Indian Tribes 
because the Department consulted on substantive requirements of the 
rule that is in effect, and this rule merely makes minor corrections to 
that substantive rule.

I. Paperwork Reduction Act

    OMB Control No. 1076-0167 currently authorizes the collections of 
information contained in 25 CFR part 224. This rule does not affect 
those collections of information.

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 Executive Order 13211. A Statement of Energy Effects is not 

L. Clarity of This Regulation

    We are required by Executive Orders 12866 (section 1(b)(12)), and 
12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), 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 common, everyday words and clear language rather than 
    (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 you find unclear, which sections or sentences are 
too long, the sections where you think lists or tables would be useful, 

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. Determination To Issue an Interim Final Rule With Immediate 
Effective Date

    We are publishing this interim final rule with a request for 
comment without prior notice and comment, as allowed under 5 U.S.C. 
553(b). Under section 553(b) we find that there is good cause to 
effectuate this rule without prior notice, and comments are unnecessary 
and would be contrary to the public interest. This rule is necessary to 
ensure that the regulation is clear in that the Tribe must approve a 
TEDO application, and correct internal section cross-references.
    As allowed under 5 U.S.C. 553(d)(3), the effective date of this 
rule is the date of publication in the Federal Register. Good cause for 
an immediate effective date exists because the delay in publishing this 
rule serves no useful purpose as the statute already requires what this 
interim final rule updates in the regulation and any delay in 
correcting internal cross-references to sections may cause confusion on 
the part of potential TEDO applicants. We are requesting comments on 
this interim final rule. We will review any comments received and, by a 
future publication in the Federal Register, address any comments 

List of Subjects in 25 CFR Part 224

    Agreement, Appeals, Application, Business Agreements, Energy 
Development, Interested Party, Lease, Record keeping requirements, 
Reporting requirements, Right-of-Way, Tribal Energy Resource 
Agreements, Tribal capacity, Tribal lands, Trust, Trust asset.

    For the reasons stated in the preamble, the Department of the 
Interior, Bureau of Indian Affairs, amends part 224 in title 25 of the 
Code of Federal Regulations as follows:


1. The authority for part 224 continues to read as follows:

    Authority: 25 U.S.C. 2 and 9; 25 U.S.C. 3501-3504; Pub. L. 109-
58; Pub. L. 115-325.

Sec.  224.53  [Amended]

2. In Sec.  224.53:
a. Amend paragraph (a)(3) by removing ``paragraph (c)'' and adding 
``paragraph (b)'' in its place;
b. Amend paragraph (a)(5) by removing``paragraph (d)'' and adding 
``paragraph (c)'' in its place.
c. Amend paragraph (b) introductory text by removing ``paragraph 
(a)(6)'' and adding ``paragraph (a)(3)'' in its place.

3. Revise Sec.  224.202 to read as follows:

Sec.  224.202  How must a Tribe submit an application for certification 
of a TEDO?

    A Tribe must submit an application for certification of a TEDO and 
all supporting documents in a searchable portable document format (PDF) 
to [email protected].

Bryan Newland,
Principal Deputy Assistant Secretary--Indian Affairs.
[FR Doc. 2021-10764 Filed 5-21-21; 8:45 am]