25 Cfr 224

Bureau of Indian Affairs, Interior

§ 224.10

224.119 What must the Director do when
making a decision on a petition?
224.120 What action may the Director take
to ensure compliance with a TERA?
224.121 How may a tribe or a petitioner appeal the Director’s decision about the
tribe’s compliance with the TERA?

Subpart F—Periodic Reviews
224.130 What is the purpose of this subpart?
224.131 What is a periodic review and evaluation?
224.132 How does the Director conduct a
periodic review and evaluation?
224.133 What must the Director do after a
periodic review and evaluation?
224.134 How often must the Director conduct a periodic review and evaluation?
224.135 Under what circumstances may the
Director conduct additional reviews and
evaluations?
NONCOMPLIANCE
224.136 How will the Director’s report address a tribe’s noncompliance?
224.137 What must the Director do if a
tribe’s noncompliance has resulted in
harm or the potential for harm to a physical trust asset?
224.138 What must the Director do if a
tribe’s noncompliance has caused imminent jeopardy to a physical trust asset?
224.139 What must a tribe do after receiving
a notice of imminent jeopardy to a physical trust asset?
224.140 What must the Secretary do if the
tribe fails to respond to or does not comply with the Director’s order?
224.141 What must the Secretary do if the
tribe responds to the Director’s order?

Subpart G—Reassumption
224.150 What is the purpose of this subpart?
224.151 When may the Secretary reassume
activities?
224.152 Must the Secretary always reassume
the activities upon a finding of imminent
jeopardy to a physical trust asset?

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NOTICE OF INTENT TO REASSUME
224.153 Must the Secretary notify the tribe
of an intent to reassume the authority
granted?
224.154 What must a notice of intent to reassume include?
224.155 When must a tribe respond to a notice of intent to reassume?
224.156 What information must the tribe’s
response to the notice of intent to reassume include?
224.157 How must the Secretary proceed
after receiving the tribe’s response?
224.158 What must the Secretary include in
a written notice of reassumption?

224.159 How will reassumption affect valid
existing rights or lawful actions taken
before the effective date of the reassumption?
224.160 How will reassumption affect a
TERA?
224.161 How may reassumption affect the
tribe’s ability to enter into a new TERA
or to modify another TERA to administer additional activities or assume administration of activities that the Secretary previously reassumed?

Subpart H—Rescission
224.170 What is the purpose of this subpart?
224.171 Who may rescind a TERA?
224.172 May a tribe rescind only some of the
activities subject to a TERA while retaining a portion of those activities?
224.173 How does a tribe rescind a TERA?
224.174 When does a voluntary rescission become effective?
224.175 How will rescission affect valid existing rights or lawful actions taken before the rescission?

Subpart I—General Appeal Procedures
224.180 What is the purpose of this subpart?
224.181 Who may appeal Departmental decisions or inaction under this part?
224.182 What is the Initial Appeal Process?
224.183 What other administrative appeals
processes also apply?
224.184 How do other administrative appeals
processes apply?
224.185 When are decisions under this part
effective?
AUTHORITY: 25 U.S.C. 2 and 9; 25 U.S.C. 3501–
3504; Pub. L. 109–58
SOURCE: 73 FR 12821, Mar. 10, 2008, unless
otherwise noted.

Subpart A—General Provisions
§ 224.10 What is the purpose of this
part?
This part:
(a) Establishes procedures by which a
tribe, at its discretion, may enter into
and manage leases, business agreements, and rights-of-way for purposes
of energy resource development on
tribal land; and
(b) Describes the process for obtaining, implementing, and enforcing a
tribal energy resource agreement
(TERA) that will allow a tribe to enter
into individual leases, business agreements, and rights-of-way without obtaining Secretarial approval.

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§ 224.20

25 CFR Ch. I (4–1–09 Edition)

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§ 224.20 How will the Secretary interpret and implement this part and
the Act?
(a) The Secretary will interpret and
implement this part and the Indian
Tribal Energy Development and SelfDetermination Act (the Act) in accordance with the self-determination and
energy development provisions and
policies in the Act.
(b) The Secretary will liberally construe this part and the Act for the benefit of tribes to implement the Federal
policy of self-determination. The Secretary will construe any ambiguities in
this part or the Act in favor of the
tribe to implement a TERA as authorized by this part and the Act.
§ 224.30 What definitions apply to this
part?
Act means the Indian Tribal Energy
Development and Self-Determination
Act of 2005, as promulgated in Title V
of the Energy Policy Act of 2005, Public
Law 109–58, 25 U.S.C. 3501–3504.
Application means the application
submitted for a TERA under subpart B.
Business agreement means:
(1) Any permit, contract, joint venture, option, or other agreement that
furthers any activity related to locating, producing, transporting, or marketing energy resources on tribal land;
(2) Any amendment, supplement, or
other modification to such an agreement; or
(3) Any other business agreement entered into or subject to administration
under a TERA.
Days mean calendar days in computing any period prescribed or allowed
by the Act and this part:
(1) Do not include the day of the
event from which the period begins to
run;
(2) Include the last day of the period,
unless it is a Saturday, Sunday, or
Federal holiday, in which event the period runs until the end of the next day
which is not a Saturday, Sunday, or
Federal holiday; and
(3) When the period prescribed or allowed is less than 11 days, exclude intermediate Saturdays, Sundays, and
Federal holidays from the computation.
Decision Deadline means the 120-day
period within which the Director will

make a decision about a petition submitted by an interested party under
subpart E. The Director may extend
this period for up to 120 days.
Department means the Department of
the Interior.
Designated Tribal Official means the
official designated in a tribe’s pre-application consultation request, application, or agreement to assist in scheduling consultations or to receive communications from the Secretary or the
Director to the tribe regarding the status of a TERA or activities under a
TERA.
Director means the Director of the Office of Indian Energy and Economic
Development or the Secretary’s designee, authorized to act on behalf of
the Secretary.
Energy Resources means both renewable and nonrenewable energy sources,
including, but not limited to, natural
gas, oil, uranium, coal, nuclear, wind,
solar, geothermal, biomass, and hydrologic resources.
Imminent jeopardy to a physical trust
asset means an immediate threat of devaluation, degradation, damage, or loss
of a physical trust asset, as determined
by the Secretary, caused by the noncompliance of a tribe or third party
with a TERA or applicable Federal
laws.
Interested party means a person or entity who has filed a petition with the
Secretary under subpart E seeking review of a tribe’s compliance with a
TERA and who meets the criteria in
§ 224.101.
Lease means a written agreement, or
modification of a written agreement,
between a tribe and a tenant or lessee,
whereby the tenant or lessee is granted
a right to possession of tribal land or
energy mineral resources for purposes
of energy resource development.
Petitioner means a person or entity
who has filed a petition under subpart
E with a tribe or the Secretary seeking
review of a tribe’s compliance under a
TERA. A petitioner is not considered
to be an interested party unless the petitioner meets the criteria in § 224.101.
Physical trust asset means a physical
asset held in trust by the United States
for a tribe or individual Indian or by a
tribe or individual Indian subject to a
restriction against alienation under

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Bureau of Indian Affairs, Interior

§ 224.42

the laws of the United States. ‘‘Physical trust asset’’ does not include:
(1) Any improvements (for example,
wells or structures) to the assets held
in trust or restricted status; or
(2) Monetary assets.
Public means one or more natural or
legal persons, and their associations,
organizations, or groups; or Federal,
State, tribal and local government
agencies; or private industry and their
associations, organizations, or groups.
Right-of-way means an easement,
right, or other authorization over tribal lands, granted or subject to administration under a TERA, for a pipeline or
electric transmission or distribution
line that serves a facility located on
tribal land that is related to energy resource development.
Secretary means the Secretary of the
Interior or the Secretary’s designee.
TERA means tribal energy resource
agreement.
Tribal governing body means a tribe’s
governing entity, such as tribal council
or tribal business committee, as established under tribal or Federal law and
recognized by the Secretary.
Tribal land means any land or interests in land owned by a tribe or tribes,
title to which is held in trust by the
United States, or is subject to a restriction against alienation under the
laws of the United States. For the purposes of this part, tribal land includes
land taken into trust or subject to restrictions on alienation under the laws
of the United States after the effective
date of the agreement.
Tribe means any Indian tribe, band,
nation, or other organized group or
community that is recognized as eligible for the special programs and services provided by the United States to
Indians because of their status as Indians, except a Native Corporation as defined in the Alaska Native Claims Settlement Act, 43 U.S.C. 1602.
Violation or breach means any breach
or other violation by another party of
any provision in a lease, business
agreement, or right-of-way under a
TERA or any activity or occurrence
under a lease business agreement or
right-of-way that constitutes a violation of Federal or tribal environmental
law.

§ 224.40 How does the Act or a TERA
affect the Secretary’s trust responsibility?
(a) The Act (25 U.S.C. 3504(e)(6)) preserves the Secretary’s trust responsibilities relating to mineral and other
trust resources and requires the Secretary to act in good faith and in the
best interest of Indian tribes.
(b) Neither the Act nor this part absolves the Secretary of responsibilities
to Indian tribes under the trust relationship, treaties, statutes, regulations, Executive Orders, agreements or
other Federal law.
(c) The Act and this part preserve the
Secretary’s trust responsibility to ensure that the rights and interests of an
Indian tribe are protected if:
(1) Another party to a lease, business
agreement, or right-of-way executed
under an approved TERA violates any
term of the lease, business agreement,
or right-of-way, or any applicable Federal law; or
(2) Any provision of a lease, business
agreement, or right-of-way violates the
TERA under which it was executed.
(d) The United States is not liable for
losses to any party (including any
tribe) for any negotiated term of, or
any loss resulting from, the negotiated
terms of a lease, business agreement,
or right-of-way the tribe executes
under a TERA.
§ 224.41 When does the Secretary require agreement of more than one
tribe to approve a TERA?
When tribal land held for the benefit
of more than one tribe is contemplated
for inclusion in a TERA, each appropriate tribal governing body must request a pre-application consultation
meeting, and submit a resolution or
formal act of the tribal governing body
approving the submission of any application. Each appropriate tribal governing body must also sign the TERA,
if it is approved.
§ 224.42 How does the Paperwork Reduction Act affect these regulations?
The information collected from the
public is cleared and covered by OMB
Control Number 1076–0167. The sections
of this rule which have information
collections are §§ 224.53, 224.57(d), 224.61,

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25 CFR Ch. I (4–1–09 Edition)

224.63, 224.64, 224.65, 224.68(d), 224.76,
224.83, 224.87, 224.109, 224.112, 224.120(a),
224.139(b), 224.156, and 224.173. Please
note that 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—Procedures for Obtaining Tribal Energy Resource
Agreements
§ 224.50 What is the purpose of this
subpart?
This subpart establishes procedures
for:
(a) Pre-application and application
consultations and process;
(b) Requirements for the content of
applications;
(c) Submittal of completed applications; and
(d) Secretarial review and processing
of applications.
PRE-APPLICATION CONSULTATION AND
THE FORM OF APPLICATION

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§ 224.51 What is a pre-application consultation between a tribe and the
Director?
(a) A tribe interested in entering into
a TERA should request a pre-application consultation by writing to the Director, Office of Indian Energy and
Economic Development. The request
should include the name and contact
information for the Designated Tribal
Official who will coordinate scheduling
with the Director.
(b) Upon receiving a pre-application
consultation request, the Director will
contact the Designated Tribal Official
to schedule a pre-application consultation meeting. The Director may also
initiate pre-application discussions
with the tribal governing body.
(c) At the pre-application consultation meeting, the tribe and the Director may discuss any of the matters related to a future application including,
but not limited to:
(1) The application process;
(2) The potential scope of the tribe’s
future application, including any regulatory or administrative activities that
the tribe anticipates exercising;

(3) The required content of an application for a TERA;
(4) The energy resource the tribe anticipates developing;
(5) The tribe’s capacity to manage
and regulate the energy resource development the tribe identifies;
(6) Potential opportunities for funding capacity-building and other activities related to the energy resource the
tribe anticipates developing under a
TERA; and
(7) Any other matters applicable to
this part, the Act, and the tribe.
§ 224.52 What may a tribe include in a
TERA?
A TERA under this part:
(a) May include development of all or
part of a tribe’s energy resources;
(b) Must specify the type of energy
resource included;
(c) May include assumption by the
tribe of certain activities normally
carried out by the Department, except
for inherently Federal functions; and
(d) Must specify the services or resources related to the specific activity
related to energy resource development
that the tribe proposes to assume from
the Department.
§ 224.53 What must an application for
a TERA contain?
(a) An application for a TERA must
contain all of the following:
(1) A proposed TERA between the
tribe and the Secretary, signed by the
authorized representative of the tribe,
that contains the provisions required
by § 224.63;
(2) A statement that the Secretary
recognizes the tribe as an Indian tribe
and that the tribe has tribal land;
(3) A brief description of the tribe’s
form of government;
(4) Copies of relevant portions of tribal documents (see paragraph (b) of this
section);
(5) A map, legal description, and general description of the tribal land that
the tribe intends to include in the
TERA;
(6) A statement that meets the requirements in paragraph (c) of this section;
(7) A statement describing the tribe’s
experience in negotiating and administering energy-related leases, business

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Bureau of Indian Affairs, Interior

§ 224.53

agreements, and rights-of-way issued
under other Federal laws that includes
descriptions of significant leases, business agreements, and rights-of-way the
tribe has entered into with third parties or to which it has consented;
(8) A description of the expertise that
the tribe will use to administer the
TERA and an explanation of how that
expertise meets the requirements of
paragraph (d) of this section;
(9) A statement of the scope of administrative activities that the tribe
intends to conduct and an explanation
of how that meets the requirements of
paragraph (e) of this section;
(10) A statement that meets the requirements of paragraph (f) of this section describing the capability of the
tribe to assume all of the activities the
tribe has identified in the application;
(11) A copy of the resolution or formal action of the tribal governing body
or bodies under § 224.41 that approves
submission of an application for a
TERA; and
(12) A designation of, and contact information for, the Designated Tribal
Official who will receive notifications
from the Secretary or the Director regarding the status of the TERA application.
(b) The documents required by paragraph (a)(4) of this section include documents such as a constitution, code,
ordinance, or resolution, that designate the tribal governing body or
tribal officials that have authority to
enter into leases, business agreements,
or rights-of-way on behalf of the tribe.
(c) The statement required by paragraph (a)(6) of this section must:
(1) If applicable, state that the tribe
retains the option of entering into energy-related leases or agreements
under laws other than the Act for any
tribal land that the TERA includes;
and
(2) State one of the following:
(i) The tribe intends the TERA to include all tribal land, energy resources,
and categories of energy-related leases,
business agreements, and rights-ofway; or
(ii) The tribe intends the TERA to include only certain tribal land, energy
resources, or categories of energy-related leases, business agreements, or
rights-of-way in the TERA. In this

case, the statement must specify and
describe the tribal land, energy resources, or categories of energy-related
leases, business agreements, or rightsof-way that the tribe intends to include
in the TERA.
(3) State the tribe’s intent to amend
or modify leases, business agreements,
or rights-of-way that exist when a
TERA is approved if those activities
are directly related to the activities
authorized by the TERA. The tribe’s
ability to amend or modify such leases,
business agreements or rights-of-way
requires the agreement of the other
parties to the lease, business agreement or rights-of-way, which must be
stated in the TERA.
(d) The statement required by paragraph (a)(8) of this section must describe the expertise that the tribe will
use in the four areas specified in paragraph (d)(1) of this section. It must also
address, at a minimum, the administrative and personnel resources specified in paragraph (d)(2) of this section.
(1) The statement must describe the
expertise that the tribe will use to:
(i) Negotiate or review leases, business agreements, or rights-of-way
under the TERA;
(ii) Evaluate the environmental effects, including those related to cultural resources, of leases, business
agreements, or rights-of-way entered
into under a TERA;
(iii) Review proposals for leases, business agreements and rights-of-way
under the TERA; and
(iv) Monitor the compliance of a
third party with the terms and conditions of any leases, business agreements and rights-of-way covered by the
TERA.
(2) The statement must describe the
following:
(i) Existing energy resource development related departments or administrative divisions within the tribe;
(ii) Proposed energy resource development related departments or administrative divisions within the tribe;
(iii) Existing energy resource development related expertise possessed by
the tribe, including a description of the
relevant expertise of designated tribal
employees, consultants and/or advisors;
and

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§ 224.54

25 CFR Ch. I (4–1–09 Edition)

(iv) Proposed energy resource development related expertise that the tribe
may acquire, including a description of
the relevant expertise of designated
tribal employees, consultants and/or
advisors that the tribe intends to hire
or retain.
(e) The statement required by paragraph (a)(9) of this section must describe the amount of administrative
activities related to the permitting,
approval, and monitoring of activities,
as applicable, that the tribe proposes
to undertake under any lease, business
agreement, or right-of-way the tribe
executes under an approved TERA.
(1) If the tribe proposes to regulate
activities, the tribe must state its intent and describe the scope of the
tribe’s plan for such administration
and management in sufficient detail
for the Secretary to determine the
tribe’s capacity to administer and
manage the regulatory activity(ies).
(2) The tribe’s intended scope of administrative responsibilities may not
include the responsibilities of the Federal Government under the Endangered
Species Act or other inherently Federal functions.
(3) If the tribe intends to regulate activities, it should also describe the regulatory activities it desires to assume
in the geographical area identified in
§ 224.53(c)(2) with respect to leases,
business agreements, and rights-of-way
that exist when a TERA is approved.
(f) The statement required by paragraph (a)(10) of this section must:
(1) Describe the tribe’s ability to negotiate and enter into leases, business
agreements, and rights-of-way;
(2) Include a discussion of the estimated annual costs to the tribe to assume those activities the tribe has
identified in the application and the
proposed source of tribal funds to carry
out those activities; and
(3) Describe the estimated annual
amounts needed to conduct those activities the tribe has identified in the
application and identify the Federal
program that may provide those funds,
if one of the sources of tribal funds includes grants or contract awards from
the Department, the Department of
Energy, or other Federal agencies.
(4) Include a description of any:

(i) Compacts and contracts between
the tribe and the Secretary under the
Indian Self-Determination and Education Assistance Act, as amended;
(ii) Environmental programs a tribe
has assumed under the Clean Water
Act (33 U.S.C. 1251 et seq.) or the Clean
Air Act (42 U.S.C.A. 7401); or
(iii) Cooperative agreements under
the Federal Oil and Gas Royalty Management Act (30 U.S.C. 1701 et seq.).
PROCESSING APPLICATIONS
§ 224.54 How must a tribe submit an
application?
A tribe must submit an application
and all supporting documents in written and electronic form to the Director.
§ 224.55 Is information a tribe submits
throughout the TERA process
under this part subject to disclosure to third parties?
The requirements of this section implement the requirements of the Freedom of Information Act (5 U.S.C. 552)
(FOIA) and 43 CFR part 2:
(a) Information a tribe submits to
the Department throughout the TERA
process under this part may be subject
to disclosure to third parties under
FOIA unless a FOIA exemption or exception applies or other provisions of
law protect the information.
(b) A tribe may, but is not required
to, designate information it submits as
confidential commercially or financially sensitive information, as applicable, in any submissions it makes
throughout the TERA process, including, but not limited to:
(1) Pre-application information;
(2) Application information
(3) A final proposed TERA;
(4) Any amendments to a TERA; and
(5) Leases, business agreements, and
grants of right-of-way executed under
an approved TERA.
(c) Upon receipt of a FOIA request for
records that contain commercial or financial information a tribe has submitted under the TERA process, as required by 43 CFR part 2 the Department will provide the tribe, as submitter, with written notice of the
FOIA request if:

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Bureau of Indian Affairs, Interior

§ 224.57

(1) The tribe has designated the information as confidential commercial or
financial information; or
(2) The Department has reason to believe that the information requested
may be protected under FOIA Exemption 4 (trade secrets and commercial or
financial information which is obtained from a person and is privileged
or confidential).
(d) The notice to the tribe will:
(1) Include a copy of the FOIA request;
(2) Describe the information requested or include copies of the pertinent records;
(3) Advise the tribe of procedures for
objecting to the release of the requested information and specify the
time limit for the tribe’s response;
(4) Give the tribe no less than ten (10)
working days from the Department’s
notice to object to the release and explain the basis for objection, if any;
(5) Advise the tribe that:
(i) Information contained in the
tribe’s objections may be subject to
disclosure under FOIA if the Department receives a FOIA request for it;
and
(ii) If the tribe’s objections contain
commercial or financial information
and a requestor asks for the objections
under FOIA, the same notification procedures as above will apply;
(6) Advise the tribe that it is the Department, rather than the tribe, that is
responsible for deciding whether the information will be released or withheld;
(7) If the tribe designated the information as commercial or financial information 10 or more years before the
FOIA request, the Department will request the tribe’s views on whether the
tribe still considers the information to
be confidential;
(e) If the tribe has any objection to
disclosure of the information, the tribe
must submit a detailed written statement to the Department including the
following:
(1) The justification for withholding
any portion of the information under
any exemption of FOIA, and if the applicable exemption is Exemption 4, the
tribe must submit a specific and detailed discussion of:
(i) Whether the Federal government
required the information to be sub-

mitted, and, if so, how substantial
competitive harm or other business
harm would likely result from release
of the information; or
(ii) Whether the tribe provided the
information voluntarily and, if so, how
the information fits into a category of
information that the tribe customarily
does not release to the public;
(2) A certification that the information is confidential, has not been disclosed to the public by the tribe, and is
essentially non-public because it is not
routinely available to the public from
other sources;
(3) If not already provided, a tribal
contact telephone and fax number so
that the Department can communicate
with the tribe about the FOIA request;
(f) The Department will review and
consider all objections to release that
are received within the time limits
specified in the notice to the tribe, and
if the tribe does not respond within the
time limits specified in the notice, the
Department will presume that the
tribe has no objection to release of the
information;
(g) If the Department decides to release the information over the objection of the tribe, it will notify the tribe
in writing by certified mail, return receipt requested, and will include copies
of the records the Department intends
to release and the reasons for deciding
to release them. The notice will also
inform the tribe that it intends to release the records within 10 working
days after the tribe’s receipt of the notice.
§ 224.56 What is the effect of the Director’s receipt of a tribe’s complete
application?
The Director’s receipt of a tribe’s
complete application begins a 270-day
statutorily mandated period during
which the Secretary must approve or
disapprove a proposed TERA. With the
consent of the tribe, the Secretary may
extend the 270-day period for making a
decision.
§ 224.57 What must the Director do
upon receipt of an application?
(a) Upon receiving an application for
a TERA, the Director must:

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25 CFR Ch. I (4–1–09 Edition)

(1) Promptly notify the Designated
Tribal Official in writing that the Director has received the application and
the date it was received;
(2) Within 30 days from the date of receiving the application, determine
whether the application is complete;
and
(3) Take the following actions:
If the Director determines that . . .

Then the Director must . . .

(i) The application is
complete.

(A) Issue a written notice and a request for an application consultation
meeting to the Designated Tribal Official; and
(B) If appropriate, notify other Departmental bureaus and offices of receiving the application and provide copies.
(A) Issue a written notice to the Designated Tribal Official that the application is not complete;
(B) Specify the additional information
the tribe is required to submit to
make the application complete; and
(C) Start the 270-day review period
only when the Director receives a
complete application.

(ii) The application
is not complete.

(b) Unless the Director notifies the
Designated Tribal Official during the
30-day review period that the application is not complete, the application is
presumed to be complete and the 270day review period under 25 U.S.C.
3504(e)(2)(A) of the Act will begin as of
the date that the application was received.
APPLICATION CONSULTATION MEETING

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§ 224.58 What is an application consultation meeting?
An application consultation meeting
is a meeting held at the tribe’s headquarters between the Director and the
tribal governing body and any other
representatives that the tribe may designate to discuss the TERA application. The Secretary will designate representatives of appropriate Departmental offices or bureaus to attend the
application consultation meeting, as
necessary. The tribe may record the
meeting. The meeting will:
(a) Be held at the earliest practicable
time after the Director receives a
tribe’s complete application;
(b) Include a thorough discussion of
the tribe’s application;
(c) Identify the specific services consistent with the Secretary’s ongoing

trust responsibility and available resources that the Department would
provide to the tribe upon the approval
of a TERA;
(d) Include a discussion of the relationship of the tribe to other Federal
agencies with responsibilities for implementing or ensuring compliance
with the terms and conditions of
leases, business agreements, or rightsof-way and applicable Federal laws;
(e) Include a discussion of the relationship of the tribe to its members, to
State and local governments, and to
non-Indians who may be affected by approval of a TERA or by leases, business
agreements, or rights-of-way that the
tribe may enter into or grant under an
approved TERA;
(f) Include a discussion of the tribal
administrative, financial, technical,
and managerial capacities needed to
carry out the tribe’s obligations under
a TERA; and
(g) Include a discussion of the form of
the TERA and the timing and relative
responsibilities of the parties for its
preparation.
§ 224.59 How will the Director use the
results of the application consultation meeting?
The Director will use the information
gathered during the application consultation meeting in conjunction with
information provided through §§ 224.53
and 224.63 to determine the energy resource development capacity of the
tribe as detailed in § 224.72.
§ 224.60 What will the Director provide
to the tribe after the application
consultation meeting?
Within 30 days following the meeting
with the tribe, the Director will provide to the Designated Tribal Official a
written report on the application consultation meeting. The report must include the Director’s recommendations,
if any, for revising the proposed TERA
that was submitted as part of the
tribe’s application.
§ 224.61 What will the tribe provide to
the Director after receipt of the Director’s report on the application
consultation meeting?
If the tribe wishes to proceed with
the application, the tribe must submit
a final proposed TERA to the Director

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§ 224.63

within 45 days following the date of the
Tribe’s receipt of the Director’s report
on the application consultation meeting.
§ 224.62 May a final proposed TERA
differ from the original proposed
TERA?
The final proposed TERA may or
may not contain provisions that differ
from the original proposed TERA submitted with the application.
(a) If a final proposed TERA does not
differ significantly or materially from
the original TERA contained in the
complete application, the 270-day review period will begin to run on the
date the original complete application
was received (under § 224.57(c)) or on
the date established by operation of
§ 224.57(d)).
(b) If a final proposed TERA differs
significantly or materially from the
original TERA contained in the complete application, the Secretary, with
the tribe’s consent, may extend the 270day period for a reasonable time. The
Secretary will notify the tribe in writing if an extension of time is necessary.

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TERA REQUIREMENTS
§ 224.63 What provisions must a TERA
contain?
A TERA must contain all the elements required by this section.
(a) A provision for the Secretary’s
periodic review and evaluation of the
tribe’s performance under a TERA.
(b) A provision that recognizes the
authority of the Secretary, upon a
finding of imminent jeopardy to a
physical trust asset, to take actions
the Secretary determines to be necessary to protect the asset, including
reassumption under subparts F and G
of this part.
(c) A provision under which the tribe
establishes and ensures compliance
with an environmental review process
for leases, business agreements, and
rights-of-way which, at a minimum:
(1) Identifies and evaluates all significant environmental effects (as compared to a no-action alternative), including effects on cultural resources,
arising from a lease, business agreement, or right-of-way;
(2) Identifies proposed mitigation
measures, if any, and incorporates ap-

propriate mitigation measures into the
lease, business agreement, or right-ofway;
(3) Informs the public and provides
opportunity for public comment on the
environmental impacts of the approval
of the lease, business agreement or
right-of-way;
(4) Provides for tribal responses to
relevant and substantive public comments before tribal approval of the
lease, business agreement or right-ofway;
(5) Provides for sufficient tribal administrative support and technical capability to carry out the environmental review process; and
(6) Develops adequate tribal oversight of energy resource development
activities under any lease, business
agreement or right-of-way under a
TERA that any other party conducts to
determine whether the activities comply with the TERA and applicable Federal and tribal environmental laws.
(d) Provisions that require, with respect to any lease, business agreement,
or right-of-way approved under a
TERA, all of the following:
(1) Mechanisms for obtaining corporate, technical, and financial qualifications of a third party that has applied to enter into a lease, business
agreement, or right-of-way;
(2) Express limitations on duration
that meet the restrictions of the Act
and this Part under § 224.86;
(3) Mechanisms for amendment,
transfer, and renewal;
(4) Mechanisms for obtaining, reporting and evaluating the economic return
to the tribe;
(5) Mechanisms for securing technical information about activities and
ensuring that technical activities are
performed in compliance with terms
and conditions;
(6) Assurances of the tribe’s compliance with all applicable environmental
laws;
(7) Requirements that the lessee, operator, or right-of-way grantee will
comply with all applicable environmental laws;
(8) Identification of tribal representatives with the authority to approve a
lease, business agreement, or right-ofway and the related energy development activities that would occur under

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§ 224.63

25 CFR Ch. I (4–1–09 Edition)

a lease, business agreement, or rightof-way;
(9) Public notification that a lease,
business agreement, or right-of-way
has received final tribal approval;
(10) A process for consultation with
affected States regarding off-reservation impacts, if any, identified under
paragraph (c) of this section;
(11) A description of remedies for
breach;
(12) A statement that any provision
that violates an express term or requirement of the TERA is null and
void;
(13) A statement that if the Secretary determines that any provision
that violates an express term or requirement of the TERA is material, the
Secretary may suspend or rescind the
lease, business agreement, or right-ofway, or take any action the Secretary
determines to be in the best interest of
the tribe, including, with the consent
of the parties, revising the nonconforming provisions so that they conform to the intent of the applicable
portion of the TERA; and
(14) A statement that the lease, business agreement, or right-of-way subject
to a TERA, unless otherwise provided,
goes into effect when the tribe delivers
executed copies of the lease, business
agreement, or right-of-way to the Director by first class mail return receipt
requested or express delivery. The parties to a lease, business agreement, or
right-of-way may agree in writing that
any provision of their contract may
have retroactive application.
(e) Citations to any applicable tribal
laws, regulations, or procedures that:
(1) Provide opportunity for the public
to comment on and to participate in
public hearings, if any, under paragraph (c)(2) of this section; and
(2) Provide remedies that petitioning
parties must exhaust before filing a petition with the Secretary under subpart E of this part.
(f) Provisions that require a tribe to
provide the Secretary with citations to
any tribal laws, regulations, or procedures the tribe adopts after the effective date of a TERA that establish,
amend, or supplement tribal remedies
that petitioning parties must exhaust
before filing a petition with the Secretary under subpart E of this part.

(g) Provisions that designate a person or entity, together with contact information, authorized by the tribe to
maintain and disseminate to requesting members of the public current copies of tribal laws, regulations, or procedures that establish or describe tribal
remedies that petitioning parties must
exhaust before instituting appeals
under subpart E of this part.
(h) Identification of financial assistance, if any, that the Secretary has
agreed to provide to the tribe to assist
in implementation of the TERA, including the tribe’s environmental review of individual energy development
activities.
(i) Provisions that require a tribe to
notify the Secretary and the Director
in writing, as soon as practicable after
the tribe receives notice, of a violation
or breach as defined in this Part.
(j) Provisions that require the tribe
and the tribe’s financial experts to adhere to Government auditing standards
and to applicable continuing professional education requirements.
(k) Provisions that require the tribe
to submit to the Director information
and documentation of payments made
directly to the tribe, if any. These provisions enable the Secretary to discharge the trust responsibility of the
United States to enforce the terms of,
and protect the rights of the tribe
under, a lease, business agreement, or
right-of-way. Required documentation
must include documents evidencing
proof of payment such as cancelled
checks; cash receipt vouchers; copies of
money orders or cashiers checks; or
verification of electronic payments.
(l) Provisions that ensure the creation, maintenance and preservation of
records related to leases, business
agreements, or rights-of-way and performance of activities a tribe assumed
under a TERA sufficient to facilitate
the Secretary’s periodic review of the
TERA. The Secretary will use these
records as part of the periodic review
and evaluation process under § 224.132.
Approved Departmental records retention procedures under the Federal
Records Act (44 U.S.C. Chapters 29, 31,
and 33) provide a framework the tribe
may use to ensure that its records

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Bureau of Indian Affairs, Interior

§ 224.68

under a TERA adequately document essential transactions, furnish information necessary to protect its legal and
financial rights, and enable the Secretary to discharge the trust responsibility if:
(1) Any other party violates the
terms of any lease, business agreement,
or right-of-way; or
(2) Any provision of a lease, business
agreement or right-of-way violates the
TERA.
§ 224.64 How may a tribe assume management of development of different types of energy resources?
In order for a tribe to assume authority for approving leases, business
agreements, and rights-of-way for development of another energy resource
that is not included in the TERA, a
tribe must apply for a new TERA covering the authority for the development of another energy resource it
wishes to assume. The Secretary’s consideration of a new TERA will include
a determination of the tribe’s capacity
to develop that type of energy resource
and will trigger the public notice and
opportunity for comment consistent
with § 224.67.

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§ 224.65 How may a tribe assume additional activities under a TERA?
A tribe may assume additional activities related to the development of
the same type of energy resource included in a TERA by negotiating with
the Secretary an amendment to the existing TERA to include the additional
activities. The Secretary will determine in each case whether the tribe
has sufficient capacity to carry out additional activities the tribe may wish
to assume under an approved TERA.
§ 224.66 How may a tribe reduce the
scope of the TERA?
A tribe may reduce the scope of the
TERA by negotiating with the Secretary an amendment to the existing
TERA to eliminate an activity assumed under the TERA or a type of energy resource development managed
under the TERA. Any such reduction in
scope must include the return of all
relevant Departmental resources transferred under the TERA and any relevant records and documents.

PUBLIC NOTIFICATION AND COMMENT
§ 224.67 What must the Secretary do
upon the Director’s receipt of a
final proposed TERA?
(a) Within 10 days of the Director’s
receipt of a final proposed TERA, the
Secretary must submit a notice for
publication in the FEDERAL REGISTER
advising the public:
(1) That the Secretary is considering
a final proposed TERA for approval or
disapproval: and
(2) Of any National Environmental
Policy Act (NEPA) review the Secretary is conducting.
(b) The FEDERAL REGISTER notice
will:
(1) Contain information advising the
public how to request and receive copies of or participate in any NEPA reviews, as prescribed in subpart C of this
part, related to approval of the final
proposed TERA; and
(2) Contain information advising the
public how to comment on a final proposed TERA.
§ 224.68 How will the Secretary use
public comments?
(a) The Secretary will review and
consider public comments in deciding
to approve or disapprove the final proposed TERA; and
(b) The Secretary will provide copies
of the comments to the Designated
Tribal Official;
(c) Upon mutual agreement between
the tribe and the Secretary, the tribe
may make changes in the final proposed TERA based on the comments received; and
(d) If the tribe revises the final proposed TERA based on public comments,
the tribal governing body must approve
the changes, the authorized representative of the tribe must sign the final
proposed TERA as revised, and the
tribe must send the revised final proposed TERA to the Director. The Secretary and the tribe will consult on
whether an extension of the review period is necessary under § 224.62(b).

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§ 224.70

25 CFR Ch. I (4–1–09 Edition)

Subpart C—Approval of Tribal
Energy Resource Agreements
§ 224.70 Will the Secretary review a
proposed TERA under the National
Environmental Policy Act?
Yes, the Secretary will conduct a review under the National Environmental Policy Act (NEPA) of the potential impacts on the quality of the
human environment that might arise
from approving a final proposed TERA.
The scope of the Secretary’s evaluation
will be limited to the scope of the
TERA. The public comment period,
when required, under the NEPA review
will occur concurrently with the public
comment period for a TERA under
§ 224.67.

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§ 224.71 What standards will the Secretary use to decide to approve a
final proposed TERA?
The Secretary will consider the best
interests of the tribe and the Federal
policy of promoting tribal self-determination in deciding whether to approve a final proposed TERA. The Secretary must approve a final proposed
TERA if it contains the provisions required by the Act and this part and the
Secretary determines that the tribe
has demonstrated sufficient capacity
to manage the development of energy
resources it proposes to develop.
§ 224.72 How will the Secretary determine whether a tribe has demonstrated sufficient capacity?
The Secretary will determine whether a tribe has demonstrated sufficient
capacity under § 224.71 based on the information obtained through the application process. The Secretary will consider:
(a) The specific energy resource development the tribe proposes to regulate;
(b) The scope of the administrative or
regulatory activities the tribe seeks to
assume;
(c) Materials and information submitted with the application for a
TERA, the result of meetings between
the tribe and a representative of the
Department and the Director’s written
report;
(d) The history of the tribe’s role in
energy resource development, includ-

ing negotiating and approval or disapproval of pre-existing energy-related
leases,
business
agreements,
and
rights-of-way;
(e) The administrative expertise of
the tribe available to regulate energy
resource development within the scope
of the final proposed TERA or the
tribe’s plans for establishing that expertise;
(f) The financial capacity of the tribe
to maintain or procure the technical
expertise needed to evaluate proposals
and to monitor anticipated activities
in a prudent manner;
(g) The tribe’s past performance administering contracts and grants associated with self-determination programs, cooperative agreements with
Federal and State agencies, and environmental programs administered by
the Environmental Protection Agency;
(h) The tribe’s past performance
monitoring activities undertaken by
third parties under approved leases,
business agreements, or rights-of-way;
and
(i) Any other factors the Secretary
finds to be relevant in light of the
scope of the proposed TERA.
§ 224.73 How will the scope of energy
resource development affect the
Secretary’s determination of the
tribe’s capacity?
The Secretary’s review under § 224.72
of the tribe’s capacity to manage and
regulate energy resource development
under the TERA will include a determination as to each type of energy resource development subject to the
TERA for which the tribe seeks to regulate, and each type of regulatory activity the tribe proposes to assume.
The Secretary’s review of a TERA
must be limited to activities specified
by its provisions.
§ 224.74 When must the Secretary approve or disapprove a final proposed TERA?
The Secretary must approve or disapprove a final proposed TERA or a revised final proposed TERA within 270
days of the Director’s receipt of a complete application for a TERA. With the
consent of the tribe, or as provided in
§ 224.62(b), the Secretary may extend
the period for a decision.

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§ 224.82

§ 224.75 What must the Secretary do
upon approval or disapproval of a
final proposed TERA?
Within 10 days of the Secretary’s approval or disapproval of a final proposed TERA, the Secretary must notify
the tribal governing body in writing
and take the following actions:
If the Secretary’s
decision is . . .

Then the Secretary will . . .

(a) To approve the
final proposed
TERA.

(1) Sign the TERA making it effective
on the date of signature, and return
the signed TERA to the tribal governing body; and
(2) Maintain a copy of the TERA and
any subsequent amendments or supplements to the TERA.
Send the tribe a notice of disapproval
that must include:
(1) The basis of the disapproval;
(2) The changes or other actions
required to address the Secretary’s basis for disapproval;
and
(3) A statement that the decision is
a final agency action and is subject to judicial review.

(b) To disapprove
the final proposed
TERA.

§ 224.76 Upon notification of disapproval, may a tribe re-submit a
revised final proposed TERA?

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Yes, within 45 days of receiving the
notice of disapproval, or a later date as
the Secretary and the tribe agree to in
writing, the tribe may re-submit a revised final proposed TERA, approved
by the tribal governing body and
signed by the tribe’s authorized representative, to the Director that addresses the Secretary’s concerns. Unless the Secretary and the tribe otherwise agree, the Secretary must approve
or disapprove the revised final proposed
TERA within 60 days of the Director’s
receipt of the revised final proposed
TERA. Within 10 days of the Secretary’s approval or disapproval of a
revised final proposed TERA, the Secretary must notify the tribal governing
body in writing and take the following
actions:
If the Secretary’s
decision is . . .

Then the Secretary will . . .

(a) To approve the
revised final proposed TERA.

(1) Sign the TERA making it effective
on the date of signature, and return
the signed TERA to the tribal governing body; and
(2) Maintain a copy of the TERA and
any subsequent amendments or supplements to the TERA.

If the Secretary’s
decision is . . .

Then the Secretary will . . .

(b) To disapprove
the revised final
proposed TERA.

Send the tribe a notice of disapproval
that must include:
(1) The reasons for the disapproval; and
(2) A statement that the decision is
a final agency action and is subject to judicial review.

§ 224.77 Who may appeal the Secretary’s decision on a final proposed TERA or a revised final proposed TERA?
Only a tribe applying for a TERA
may appeal the Secretary’s decision to
disapprove a final proposed TERA or a
revised final proposed TERA in accordance with the appeal procedures contained in subpart I of this part. No
other person or entity may appeal the
Secretary’s decision. The Secretary’s
decision to approve a final proposed
TERA or a revised final proposed
TERA is a final agency action.

Subpart D—Implementation of
Tribal Energy Resource Agreements
APPLICABLE AUTHORITIES AND
RESPONSIBILITIES
§ 224.80 Under what authority will a
tribe perform activities for energy
resource development?
A tribe will perform activities for energy resource development activities
undertaken under a TERA under the
authorities provided in the approved
TERA. Notwithstanding anything in
this part or an approved TERA to the
contrary, a tribe will retain all sovereign and other powers it otherwise
possesses.
§ 224.81 What laws are applicable to
activities?
Federal and tribal laws apply to activities under a TERA, unless otherwise specified in the TERA.
§ 224.82 What activities will the Department continue to perform after
approval of a TERA?
After approval of a TERA, the Department will provide a tribe:
(a) All activities that the Department performs unless the tribe has assumed such activities under the TERA;

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25 CFR Ch. I (4–1–09 Edition)

(b) Access to title status information
and support services needed by a tribe
in the course of evaluating proposals
for leases, business agreements, or
rights-of-way;
(c) Coordination between the tribe
and the Department for ongoing maintenance of accurate real property
records;
(d) Access to technical support services within the Department to assist
the tribe in evaluating the physical,
economic, financial, cultural, social,
environmental, and legal consequences
of approving proposals for leases, business agreements, or rights-of-way
under a TERA; and
(e) Assistance to ensure that thirdparty violations or breaches of the
terms of leases, business agreements,
or rights-of-way or applicable provisions of Federal law by third parties
are handled appropriately.
LEASES, BUSINESS AGREEMENTS, AND
RIGHTS-OF-WAY UNDER A TERA
§ 224.83 What must a tribe do after
executing a lease or business agreement, or granting a right-of-way?
Following the execution of a lease,
business agreement, or grant of rightof-way under a TERA, a tribe must:
(a) Inform the public of approval of
the lease, business agreement, or rightof-way under the authority granted in
the TERA; and
(b) Send a copy of the executed lease,
business agreement, or right-of-way, or
amendments, to the Director within
one business day of execution. The
copy must be sent by certified mail return receipt requested or by overnight
delivery.

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§ 224.84 When may a tribe grant a
right-of-way?
A tribe may grant a right-of-way
under a TERA if the grant of right-ofway is over tribal land for a pipeline or
an electric transmission or distribution
line if the pipeline or electric transmission or distribution line serves:
(a) An electric generation, transmission, or distribution facility located on tribal land; or
(b) A facility located on tribal land
that processes or refines energy resources developed on tribal land.

§ 224.85 When may a tribe enter into a
lease or business agreement?
A tribe may enter into a lease or
business agreement for the purpose of
energy resource development for:
(a) Exploration for, extraction of, or
other development of the tribe’s energy
mineral resources on tribal land including, but not limited to, marketing
or distribution;
(b) Construction or operation of an
electric generation, transmission, or
distribution facility located on tribal
land; or
(c) A facility to process or refine energy resources developed on tribal
land.
§ 224.86 Are there limits on the duration of leases, business agreements,
and rights-of-way?
(a) The duration of leases, business
agreements, and rights-of-way entered
into under a TERA are limited as follows:
(1) For leases and business agreements, except as provided in paragraph
(b) of this section, 30 years;
(2) For leases for production of oil resources and gas resources, or both, 10
years and as long after as oil or gas
production continues in paying quantities; and
(3) For rights-of-way, 30 years.
(b) A lease or business agreement a
tribe enters into, or a right-of-way a
tribe grants may be renewed at the discretion of the tribe as long as the
TERA remains in effect and the approved activities have not been rescinded by the tribe or suspended or reassumed by the Department.
VIOLATION OR BREACH
§ 224.87 What are the obligations of a
tribe if it discovers a violation or
breach?
As soon as practicable after discovering or receiving notice of a violation
or breach of a lease, business agreement, or right-of-way of a Federal or
tribal environmental law resulting
from an activity undertaken by a third
party under a lease, business agreement, or right-of-way, the tribe must
provide written notice to the Director
describing:

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§ 224.102

(a) The nature of the violation or
breach in reasonable detail;
(b) The corrective action taken or
planned by the tribe; and
(c) The proposed period for the corrective action to be completed.
§ 224.88 What must the Director do
after receiving notice of a violation
or breach from the tribe?
After receiving notice of a violation
or breach from the tribe, the Director
will:
(a) Review the notice and conduct an
investigation under § 224.135(b) including, as necessary:
(1) An on-site inspection; and
(2) A review of relevant records, including transactions and reports.
(b) If the Director determines, after
the investigation, that a violation or
breach is not causing or will not cause
imminent jeopardy to a physical trust
asset, the Director will review, for concurrence or disapproval, the corrective
action to be taken or imposed by the
tribe and the proposed period for completion of the corrective action;
(c) If the Director determines, after
the investigation, that a violation or
breach is causing or will cause imminent jeopardy to a physical trust asset,
the Director will proceed under the imminent jeopardy provisions of subpart
F of this part.

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§ 224.89 What procedures will the Secretary use to enforce leases, business agreements, or rights-of-way?
(a) The Secretary and a tribe will
consult with each other regarding enforcement of and Secretarial assistance
needed to enforce leases, business
agreements, or rights-of-way entered
into under a TERA. When appropriate,
the Secretary will:
(1) Use the notification and enforcement procedures established in 25 CFR
parts 162, 211 and 225 to ensure compliance with leases and business agreements; and
(2) Use the notification and enforcement procedures of 25 CFR part 169 to
ensure compliance with rights-of-way.
(b) All enforcement remedies established in 25 CFR parts 162, 211, 225, and
169 are available to the Secretary.

Subpart E—Interested Party
Petitions
§ 224.100 May a person or entity ask
the Secretary to review a tribe’s
compliance with a TERA?
In accordance with this subpart, a
person or entity that may be an interested party may submit to the Secretary a petition to review a tribe’s
compliance with a TERA. However, before filing a petition with the Secretary, a person or entity that may be
an interested party must first exhaust
tribal remedies, if a tribe has provided
for such remedies. If a tribe has not
provided for tribal remedies, a person
or entity that may be an interested
party may file a petition directly with
the Secretary.
§ 224.101

Who is an interested party?

For the purposes of this part, an interested party is a person or entity
that has demonstrated that an interest
of the person or entity has sustained,
or will sustain, an adverse environmental impact as a result of a tribe’s
failure to comply with a TERA.
§ 224.102 Must a tribe establish a comment or hearing process for addressing environmental concerns?
Yes.
The
Act
(25
U.S.C.
3504(e)(2)(C)(iii)(I), (II) and 25 U.S.C.
3504(e)(2)(B)(iii)(X)) and subpart B of
this part require a tribe to establish an
environmental review process under a
TERA that:
(a) Ensures that the public is notified
about and has an opportunity to comment on the environmental impacts of
proposed tribal action to be taken
under a TERA;
(b) Requires that the tribe respond to
relevant and substantive comments
about the environmental impacts of a
proposed tribal action before the tribe
approves a lease, business agreement,
or right-of-way; and
(c) Provides for a process for consultation with any affected States regarding off-reservation environmental
impacts, if any, resulting from approval of a lease, business agreement,
or right-of-way.

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25 CFR Ch. I (4–1–09 Edition)

§ 224.103 Must a tribe establish other
public participation processes?
No. Except for the environmental review process required by the Act and
§ 224.63(b)(1), a tribe is not required to
establish a process for public participation concerning non-environmental
issues in a TERA or leases, business
agreements or rights-of-way undertaken under a TERA. However, a tribe
may elect to establish procedures that
permit the public to participate in public hearings or that expand the scope of
matters about which the public may
comment.
§ 224.104 Must a tribe enact tribal
laws, regulations, or procedures
permitting a person or entity to allege that a tribe is not complying
with a TERA?
No. A tribe is not required, but may
elect, to enact tribal laws, regulations,
or procedures permitting a person or
entity that may be an interested party
to allege that a tribe is not complying
with its TERA.
§ 224.105 How may a person or entity
obtain copies of tribal laws, regulations, or procedures that would permit an allegation of noncompliance
with a TERA?

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(a) A person or entity that may be an
interested party may obtain copies of
tribal laws, regulations, or procedures
that establish tribal remedies that permit a person or entity to allege that
the tribe is not complying with its
TERA by making a request to the tribe
in accordance with the TERA and
§ 224.63(g).
(b) Upon obtaining copies of tribal
laws, regulations, or procedures under
subsection (a), a person or entity that
may be an interested party may file a
petition with the tribe under those
tribal laws, regulations, or procedures.
(c) If the person or entity that may
be an interested party files a petition
alleging noncompliance with a TERA,
the person or entity becomes a petitioner, and the tribe must respond according to § 224.106.

§ 224.106 If a tribe has enacted tribal
laws, regulations, or procedures for
challenging tribal action, how must
the tribe respond to a petition?
If a tribe has enacted tribal laws, regulations, or procedures under which a
petitioner may file a petition alleging
noncompliance with a TERA, the tribe
must:
(a) Within a reasonable time issue a
final written decision under the tribal
laws, regulations, or procedures that
addresses the claim. The decision may
include a determination of whether the
petitioner is an interested party;
(b) Provide a copy of its final written
decision to the petitioner; and
(c) If the tribe fails, within a reasonable period, to issue a written decision
to a petition that a petitioner brings
under applicable tribal laws, regulations, or procedures the petitioner may
file a petition with the Secretary.
§ 224.107 What must a petitioner do before filing a petition with the Secretary?
Before a petitioner may file a petition with the Secretary under this subpart, the petitioner must have exhausted tribal remedies by participating in any tribal process under
§ 224.106, including any tribal appeal
process.
§ 224.108 May tribes offer a resolution
of a petitioner’s claim?
Yes. In responding to a petition filed
under tribal laws, regulations or procedures, a tribe may, with the petitioner’s written consent, resolve the
petitioner’s claims.
§ 224.109 What must a petitioner claim
or request in a petition filed with
the Secretary?
In a petition filed with the Secretary,
a petitioner must:
(a) Claim that the tribe, through its
action or inaction has failed to comply
with terms or provisions of a TERA,
and, as a result, the petitioner’s interest has sustained or will sustain an adverse environmental impact.
(b) Request that the Secretary review
the claims raised in the petition; and
(c) Request that the Secretary take
whatever action is necessary to bring a
tribe into compliance with the TERA.

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§ 224.114

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§ 224.110 What must a petition to the
Secretary contain?
A petition must contain:
(a) The petitioner’s name and contact
information;
(b) Specific facts demonstrating that
the interested party under § 224.101, including identification of the affected
interest;
(c) Specific facts demonstrating that
the petitioner exhausted tribal remedies, if tribal laws, regulations, or
procedures permitted the petitioner to
allege tribal noncompliance with a
TERA;
(d) A description of facts supporting
the petitioner’s allegation of the
tribe’s noncompliance with a TERA;
(e) A description of the adverse environmental impact that the petitioner’s
interest has sustained or will sustain
because of the tribe’s alleged noncompliance with the TERA;
(f) A copy of any written decision the
tribe issued responding to the petitioner’s claims;
(g) If applicable, a statement that the
tribe has issued no written decision
within a reasonable time related to a
claim a petitioner has filed with the
tribe under applicable tribal laws, regulations, or procedures;
(h) If applicable, a statement and
supporting documentation that the
tribe did not respond to the petitioner’s request under § 224.105(a) for
copies of any tribal laws, regulations,
or procedures allowing the petitioner
to allege that the tribe is not complying with a TERA; and
(i) Any other information relevant to
the petition.
§ 224.111 When may a petitioner file a
petition with the Secretary?
(a) A petitioner may file a petition
with the Secretary:
(1) By delivering the petition to the
Director within 30 days of receiving the
tribe’s final written decision addressing the allegation of noncompliance
under applicable tribal laws, regulations, or procedures;
(2) Within a reasonable period following the tribe’s constructive denial
of the petition under § 224.106(c), and
the Secretary will determine if the petition is timely in light of the applicable facts and circumstances; or

(3) The tribe did not respond to the
petitioner’s request for copies of any
tribal laws, regulations, or procedures
under § 224.105(a).
(b) A petitioner may file a petition
directly with the Secretary if the tribe
has no tribal laws, regulations or procedures that provide the petitioner an
opportunity to allege tribal noncompliance with a TERA.
§ 224.112 What must the Director do
upon receipt of a petition?
Within 20 days after receiving a petition, the Director must:
(a) Notify the tribe in writing that
the Director has received a petition;
(b) Provide a copy of the complete
petition to the tribe;
(c) Initiate a petition consultation
with the tribe that will address the petitioner’s allegation of a tribe’s noncompliance with a TERA and alternatives to resolve any noncompliance;
and
(d) Notify the tribe in writing by certified mail, return receipt requested,
when the petition consultation is complete.
§ 224.113 What must the tribe do after
it completes petition consultation
with the Director?
(a) Within 45 days of receiving the Director’s notice that the petition consultation is complete, the tribe must
respond to any claim made in the petition by submitting a written response
to the Director; and
(b) Within a reasonable time after 45
days following the completion of the
petition consultation process, the tribe
must cure or otherwise resolve each
claim of noncompliance made in the
petition.
§ 224.114 How may the tribe address a
petition in its written response?
In addition to responding to the petitioner’s claims, the tribe may also:
(a) Include its interpretation of relevant provisions of the TERA and
other legal requirements;
(b) Discuss whether the petitioner is
an interested party;
(c) State whether the petitioner has
exhausted tribal remedies, and if so,
how; and

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§ 224.115

25 CFR Ch. I (4–1–09 Edition)

(d) Propose to cure or otherwise resolve the claims within the time frame
in § 224.113(b).
§ 224.115 When in the petition process
must the Director investigate a
tribe’s compliance with a TERA?
The Director must investigate the
petitioner’s claims of the tribe’s noncompliance with a TERA only after
making a threshold determination
that:
(a) The tribe has denied or failed to
respond to each claim made in the petition
within
the
period
under
§ 224.113(a); or
(b) The tribe has failed, refused, or
was unable to cure or otherwise resolve
each claim made in the petition within
a reasonable period, as determined by
the Director, after the expiration of
the period in § 224.113(b).

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§ 224.116 What is the time period in
which the Director must investigate
a tribe’s compliance with a TERA?
(a) If the Director determines under
§ 224.115 that one of the threshold determinations in § 224.114 has been met,
then within 120 days of the Director’s
receipt of a petition, the Director must
determine whether or not a tribe is in
compliance with the TERA;
(b) The Director may extend the time
for determining a tribe’s compliance
with a TERA up to 120 days in any case
in which the Director determines that
additional time is necessary to evaluate the claims in the petition and the
tribe’s written response, if any. If the
Director decides to extend the time,
the Director must notify the petitioner
and the tribe in writing of the extension.
§ 224.117 Must the Director make a determination of the tribe’s compliance with a TERA?
(a) Yes. Upon a finding that one of
the
threshold
determinations
in
§ 224.115 has been met, the Director
must make a determination of the
tribe’s compliance with a TERA within
the time period in § 224.116.
(b) If the Director determines that
the tribe is in compliance with the
TERA, the Director will notify the
tribe and the petitioner in writing;
(c) If the Director determines that
the tribe is not in compliance with the

TERA, the Director will notify the
tribe and the petitioner in writing and,
in addition, must provide the tribe:
(1) A written determination that describes the manner in which the TERA
has been violated together with a written notice of the violations;
(2) Notice of a reasonable opportunity to comply with the TERA; and
(3) Notice of the tribe’s opportunity
for a hearing.
§ 224.118 How must the tribe respond
to the Director’s notice of the opportunity for a hearing?
The tribe must respond in writing to
the Director’s notice of the opportunity for a hearing within 20 days of
receipt of the notice by requesting a
hearing or declining to request a hearing. If the tribe does not respond within the time period, the Director will
proceed with making a decision without further input from the tribe.
§ 224.119 What must the Director do
when making a decision on a petition?
(a) The Director must issue a written
decision to the tribe and the petitioner
stating the basis for the decision about
the tribe’s compliance or noncompliance with the TERA within 30 days following:
(1) A hearing, if the tribe requested a
hearing;
(2) The tribe’s declining the opportunity for a hearing; or
(3) The tribe’s failure to respond to
the opportunity for a hearing within 20
days of the Director’s written notice of
the opportunity for a hearing.
(b) If the Director decides that the
tribe is not in compliance with the
TERA, the Director must:
(1) Include findings of fact and conclusions of law with the written decision to the tribe; and
(2) Take action to ensure compliance
with the TERA.
§ 224.120 What action may the Director
take to ensure compliance with a
TERA?
If the Director decides that a tribe is
not in compliance with a TERA, the
Director may take action to ensure
compliance with the TERA including:

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§ 224.135

(a) Temporarily suspending any activity under a lease, business agreement, or right-of-way until the tribe
complies with the TERA; or
(b) Rescinding approval of part of the
TERA, or
(c) Rescinding all of the TERA and
recommending that the Secretary reassume activities under subpart G of
this part.
§ 224.121 How may a tribe or a petitioner appeal the Director’s decision about the tribe’s compliance
with the TERA?
A tribe or a petitioner, or both, may
appeal the Director’s decision on the
petition under § 224.119 to the Principal
Deputy Assistant Secretary—Indian
Affairs under subpart I of this part.

Subpart F—Periodic Reviews
§ 224.130 What is the purpose of this
subpart?
This subpart describes how the Secretary and a tribe will develop and perform the periodic review and evaluation required by the Act and by a
TERA.
§ 224.131 What is a periodic review
and evaluation?

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A periodic review and evaluation is
an examination the Director performs
to monitor a tribe’s performance of activities associated with the development of energy resources and to review
compliance with a TERA. During the
TERA consultation, a tribe and the Director will develop a periodic review
and evaluation process that addresses
the tribe’s specific circumstances and
the terms and conditions of the tribe’s
TERA. The tribe will include the
agreed-upon periodic review and evaluation process in its final proposed
TERA.
§ 224.132 How does the Director conduct a periodic review and evaluation?
(a) The Director will conduct a periodic review and evaluation under the
TERA, in consultation with the tribe,
and in cooperation with other Departmental bureaus and offices whose activities the tribe assumed or that perform activities for the tribe.

(b) The Director will communicate
with the Designated Tribal Official
throughout the process established by
this section.
(c) During the periodic review and
evaluation, the Director will:
(1) Review relevant records and documents, including transactions and reports the tribe prepares under the
TERA;
(2) Conduct on-site inspections as appropriate; and
(3) Review compliance with statutes
and regulations applicable to activities
undertaken under the TERA.
(d) Review the effect on physical
trust assets resulting from activities
undertaken under a TERA.
(e) Upon written request, the tribe
should provide the Director with
records and documents relevant to the
provisions of the TERA. In addition,
the tribe should identify any information in these submitted records and
documents that is confidential, commercial and financial. Specific exceptions to disclosure under the Freedom
of Information Act, or other statutory
protections against disclosure, may
apply and preclude disclosure of this
information to third parties as provided for in § 224.55.
§ 224.133 What must the Director do
after a periodic review and evaluation?
After a periodic review and evaluation, the Director must prepare a written report of the results and send the
report to the Designated Tribal Official.
§ 224.134 How often must the Director
conduct a periodic review and evaluation?
The Director must conduct a periodic
review and evaluation annually during
the first 3 years of a TERA. After the
third annual review and evaluation,
the Secretary and the tribe may mutually agree to amend the TERA to conduct periodic reviews and evaluations
once every 2 years.
§ 224.135 Under what circumstances
may the Director conduct additional reviews and evaluations?
The Director may conduct additional
reviews and evaluations:
(a) At a tribe’s request;

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25 CFR Ch. I (4–1–09 Edition)

(b) As part of an investigation undertaken when the tribe notifies the Director of a violation or breach;
(c) As part of an investigation undertaken because of a petition submitted
under subpart E of this part;
(d) As follow-up to a determination
that harm or the potential for harm to
a physical trust asset, previously identified in a periodic review and evaluation, exists; or
(e) As the Secretary determines appropriate to carry out the Secretary’s
trust responsibilities.
NONCOMPLIANCE
§ 224.136 How will the Director’s report address a tribe’s noncompliance?
This section applies if the Director
conducts a review and evaluation or investigation of a notice of violation of
Federal law or the terms of a TERA.
(a) If the Director determines that
the tribe has not complied with Federal law or the terms of a TERA, the
Director’s written report must include
a determination of whether the tribe’s
noncompliance has resulted in harm or
the potential for harm to a physical
trust asset.
(b) If the Director determines that
the tribe’s noncompliance may cause
harm or has caused harm to a physical
trust asset, the Director must also determine whether the noncompliance
cause imminent jeopardy to a physical
trust asset.

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§ 224.137 What must the Director do if
a tribe’s noncompliance has resulted in harm or the potential for
harm to a physical trust asset?
If, because of the tribe’s noncompliance with Federal law or the terms of
a TERA, the Director determines that
there is harm or the potential for harm
to a physical trust asset that does not
rise to the level of imminent jeopardy
to a physical trust asset, the Director
must:
(a) Document the issue in the written
report of the review and evaluation;
(b) Report the issue in writing to the
tribal governing body;
(c) Report the issue in writing to the
Assistant Secretary—Indian Affairs;
and

(d) Determine what action, if any,
the Secretary must take to protect the
physical trust asset, which could include temporary suspension of the activity that resulted in non-compliance
with the TERA or other applicable
Federal laws or rescinding approval of
all or part of the TERA.
§ 224.138 What must the Director do if
a tribe’s noncompliance has caused
imminent jeopardy to a physical
trust asset?
If the Director finds that a tribe’s
noncompliance with a Federal law or
the terms of a TERA has caused imminent jeopardy to a physical trust asset,
the Director must:
(a) Immediately notify the tribe by a
telephone call to the Designated Tribal
Official followed by a written notice by
facsimile to the Designated Tribal Official and the tribal governing body of
the imminent jeopardy to a physical
trust asset. The notice must contain:
(1) A description of the tribe’s noncompliance with Federal law or the
terms of the TERA;
(2) A description of the physical trust
asset and the nature of the imminent
jeopardy to a physical trust asset resulting from the tribe’s noncompliance;
and
(3) An order to the tribe to cease specific conduct or take specific action
deemed necessary by the Director to
correct any condition that caused the
imminent jeopardy to a physical trust
asset.
(b) Issue a finding that the tribe’s
noncompliance with the TERA or a
Federal law has caused imminent jeopardy to a physical trust asset.
§ 224.139 What must a tribe do after
receiving a notice of imminent jeopardy to a physical trust asset?
(a) Upon receipt of a notice of imminent jeopardy to a physical trust asset,
the tribe must cease specific conduct
outlined in the notice or take specific
action the Director orders that is necessary to correct any condition causing
the imminent jeopardy; and
(b) Within 5 days of receiving a notice of imminent jeopardy to a physical
trust asset, the tribe must submit a
written response to the Director that:
(1) Responds to the Director’s finding
that the tribe has failed to comply

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§ 224.152

with a Federal law or the terms of the
TERA;
(2) Responds to the Director’s finding
of imminent jeopardy to a physical
trust asset;
(3) Describes the status of the tribe’s
cessation of specific conduct or specific
action the tribe has taken to correct
any condition causing imminent jeopardy to a physical trust asset; and
(4) Describes what further actions, if
any, the tribe proposes to take to correct any condition, cited in the notice,
causing imminent jeopardy to a physical trust asset.

ical trust asset, including reassumption under subpart G of this part.
(c) If the Secretary determines, after
reviewing the tribe’s response, that the
tribe has complied with the TERA and
with Federal law, the Secretary will
withdraw the Director’s order.
(d) The Secretary must base a finding
of imminent jeopardy to a physical
trust asset on the tribe’s non-compliance with a TERA or violation of a
Federal law.

§ 224.140 What must the Secretary do
if the tribe fails to respond to or
does not comply with the Director’s
order?

§ 224.150 What is the purpose of this
subpart?

If the tribe does not respond to or
does not comply with the Director’s
order under § 224.138(a)(3), the Secretary may take any actions the Secretary deems appropriate to protect
the physical trust asset, which may include the immediate reassumption of
all activities the tribe assumed under
the TERA. The procedures in subpart G
of this part do not apply to reassumption under this section.

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§ 224.141 What must the Secretary do
if the tribe responds to the Director’s order?
(a) If the tribe responds in a timely
manner to the Director’s order under
§ 224.138, the Secretary must:
(1) Evaluate the tribe’s response;
(2) Determine whether or not the
tribe has complied with the TERA and
the Federal law cited in the notice; and
(3) If the Secretary determines, after
reviewing the tribe’s response, that the
tribe has not complied with the TERA
or with a Federal law, the Secretary
will determine whether the noncompliance caused imminent jeopardy to a
physical trust asset.
(b) If the Secretary determines that
the tribe’s noncompliance has caused
imminent jeopardy to a physical trust
asset, the Secretary may:
(1) Order the tribe to take any action
the Secretary deems necessary to comply with the TERA or Federal law and
to protect the physical trust asset; or
(2) Take any action the Secretary
deems necessary to protect the phys-

Subpart G—Reassumption

This subpart explains when and how
the Secretary may reassume all activities included within a TERA without
the consent of the tribe.
§ 224.151 When may the Secretary reassume activities?
Upon issuing a written finding of imminent jeopardy to a physical trust
asset, the Secretary may reassume activities under a TERA in accordance
with this subpart. The Secretary may
also reassume activities approved
under a TERA in response to a petition
from an interested party under subpart
E of this part. Only the Secretary or
the Assistant Secretary—Indian Affairs
may reassume activities under a
TERA.
§ 224.152 Must the Secretary always
reassume the activities upon a finding of imminent jeopardy to a physical trust asset?
(a) The Secretary may take whatever
actions the Secretary deems necessary
to protect the physical trust asset. At
the discretion of the Secretary, these
actions may include reassumption of
the activities a tribe assumed under a
TERA.
(b) If the tribe does not respond to or
does not comply with the Director’s
order under § 224.138(a)(3), the Secretary must immediately reassume all
activities the tribe assumed under the
TERA. The notice procedures in this
subpart will not apply to such immediate reassumption.

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25 CFR Ch. I (4–1–09 Edition)

NOTICE OF INTENT TO REASSUME
§ 224.153 Must the Secretary notify the
tribe of an intent to reassume the
authority granted?
If the Secretary determines under
§ 224.152 that reassumption is necessary
to protect the physical trust asset, the
Secretary will issue a written notice to
the tribal governing body of the Secretary’s intent to reassume.
§ 224.154 What must a notice of intent
to reassume include?
A notice of intent to reassume must
include:
(a) A statement of the reasons for the
intended reassumption, including, as
applicable, a copy of the Secretary’s
written finding of imminent jeopardy
to a physical trust asset;
(b) A description of specific measures
that the tribe must take to correct the
violation and any condition that
caused the imminent jeopardy to a
physical trust asset;
(c) The time period within which the
tribe must take the measures to correct the violation of the TERA and any
condition that caused the imminent
jeopardy to a physical trust asset; and
(d) The effective date of the reassumption, if the tribe does not meet
the requirements in paragraphs (b) and
(c) of this section.
§ 224.155 When must a tribe respond to
a notice of intent to reassume?
The tribe must respond to the Director in writing by mail, facsimile, or
overnight express within 5 days of receiving the Secretary’s notice of intent
to reassume. If sent by mail, the tribe
must send the response by certified
mail, with return receipt requested.
The Director will consider the date of
the written response as the date it is
postmarked.

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§ 224.156 What information must the
tribe’s response to the notice of intent to reassume include?
The tribe’s response to the notice of
intent to reassume must state that:
(a) The tribe has complied with the
Secretary’s requirements in the notice
of intent to reassume;

(b) The tribe is taking specified
measures to comply with the Secretary’s requirements, and when the
tribe will complete such measures, if
the tribe needs more than 5 days to do
so; or
(c) The tribe will not comply with
the Secretary’s requirements.
§ 224.157 How must the Secretary proceed after receiving the tribe’s response?
(a) If the Secretary determines that
the tribe’s proposed or completed actions to comply with the Secretary’s
requirements are adequate to correct
the violation of the TERA or Federal
law and any condition that caused the
imminent jeopardy, the Secretary will:
(1) Notify the tribe of the adequacy of
its response in writing; and
(2) Terminate the reassumption proceedings in writing.
(b) If the Secretary determines that
the tribe’s proposed or completed actions to comply with the Secretary’s
requirements are not adequate, then
the Secretary will issue a written notice of reassumption.
§ 224.158 What must the Secretary include in a written notice of reassumption?
The written notice of reassumption
must include:
(a) A description of the authorities
the Secretary is reassuming;
(b) The reasons for the determination
under § 224.157(b);
(c) The effective date of the reassumption; and
(d) A statement that the decision is a
final agency action and is subject to judicial review.
§ 224.159 How will reassumption affect
valid existing rights or lawful actions taken before the effective date
of the reassumption?
Reassumption will not affect valid
existing rights that vested before the
effective date of the reassumption or
lawful actions the tribe and the Secretary took before the effective date of
the reassumption.

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§ 224.181

§ 224.160 How will reassumption affect
a TERA?
Reassumption of a TERA applies to
all of the authority and activities assumed under a TERA. Upon reassumption, the tribe must also return all Departmental resources transferred under
the TERA and any relevant records and
documents to the Secretary.
§ 224.161 How may reassumption affect
the tribe’s ability to enter into a
new TERA or to modify another
TERA to administer additional activities or to assume administration
of activities that the Secretary previously reassumed?
Following reassumption, a tribe may
submit a request to enter into a new
TERA or modify another TERA to administer additional activities, or assume administration of activities that
the Secretary previously reassumed. In
reviewing a subsequent tribal request,
however, the Secretary may consider
the fact that activities were reassumed
and any change in circumstances supporting the tribe’s request.

§ 224.174 When does a voluntary rescission become effective?
A voluntary rescission becomes effective on the date specified by the Secretary, provided that the date is no
more than 90 days after the Secretary
receives the tribal resolution or other
official action the tribe submits under
§ 224.173.
§ 224.175 How will rescission affect
valid existing rights or lawful actions taken before the rescission?
Rescission does not affect valid existing rights that vested before the effective date of the rescission or lawful actions the tribe and the Secretary took
before the effective date of the rescission.

Subpart H—Rescission

Subpart I—General Appeal
Procedures

§ 224.170 What is the purpose of this
subpart?

§ 224.180 What is the purpose of this
subpart?

This subpart explains the process and
requirements under which a tribe may
rescind a TERA and therefore return to
the Secretary all authority and activities assumed under that TERA.

The purpose of this subpart is to explain who may appeal Departmental
decisions or inaction under this part
and the initial administrative appeal
processes, and general administrative
appeal processes, including how 25 CFR
part 2 and 43 CFR part 4 apply, and the
effective dates for appeal decisions.

§ 224.171

Who may rescind a TERA?

Only a tribe may rescind a TERA.

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the tribe’s governing body approving
the voluntary rescission of the TERA.
Upon rescission, the tribe must also return all Departmental resources transferred under the TERA and any relevant records and documents.

§ 224.172 May a tribe rescind only
some of the activities subject to a
TERA while retaining a portion of
those activities?

§ 224.181 Who may appeal Departmental decisions or inaction under
this part?

No. A tribe may only rescind a TERA
in its entirety, including the authority
to approve leases, business agreements
and grant rights-of-way for specific energy resource development, not some of
the authority or activities subject to
the TERA.

The following persons or entities
may appeal Department decisions or
inaction under this part:
(a) A tribe that is adversely affected
by a decision of or inaction by an official of the Department of the Interior
under this part;
(b) A third party who has entered
into a lease, right-of-way, or business
agreement with a tribe under an approved TERA and is adversely affected
by a decision of, or inaction by a Department official under this part; or

§ 224.173 How does a tribe rescind a
TERA?
To rescind a TERA, a tribe must submit to the Secretary a written tribal
resolution or other official action of

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§ 224.182

25 CFR Ch. I (4–1–09 Edition)

(c) An interested party who is adversely affected by a decision of or inaction by the Director under subpart E
of this part, provided that the interested party may appeal only those
issues raised in its prior participation
under subpart E of this part and may
not appeal any other decision rendered
or inaction under this part.
§ 224.182 What is the Initial Appeal
Process?
The initial appeal process is as follows:
(a) Within 30 days of receiving an adverse decision by the Director or within 30 days after the time period within
which the Director is required to act
under subpart E, a party that may appeal under this subpart may file an appeal to the Principal Deputy Assistant
Secretary-Indian Affairs;
(b) Within 60 days of receiving an appeal, the Principal Deputy Assistant
Secretary—Indian Affairs will review
the record and issue a written decision
on the appeal; and
(c) Within 7 days of a decision by the
Principal Deputy Assistant Secretary—
Indian Affairs, the Secretary will provide a written copy of the decision to
the tribe and other participating parties.
§ 224.183 What other administrative
appeals processes also apply?
The administrative appeal processes
in 25 CFR part 2 and 43 CFR part 4, subject to the limitations in § 224.184,
apply to:
(a) An interested party’s appeal from
an adverse decision or inaction by the
Principal Deputy Assistant Secretary—
Indian Affairs under § 224.182; and
(b) An appeal by a tribe or a person
or entity that has entered into a lease,
business agreement, or right-of-way
from an adverse decision by or the inaction of a Departmental official taken
under this part.

dwashington3 on PROD1PC60 with CFR

§ 224.184 How do other administrative
appeals processes apply?
The administrative appeals process
in 25 CFR part 2 and 43 CFR part 4 are
modified, only as they apply to appeals
under this part, as set forth in this section.

(a) The definition of interested party
in 25 CFR part 2 and as incorporated in
43 CFR part 4 does not apply to this
part.
(b) The right of persons or entities
other than an appealing party to participate in appeals under 25 CFR part 2
and 43 CFR part 4 does not apply to
this part, except as permitted under
paragraph (c) of this section.
(c) The only persons or entities,
other than appealing parties, under
§ 224.181(a) to (c), who may participate
in an appeal under this part are:
(1) The Secretary, if an appeal is
taken from a decision of the Director
or Principal Deputy Assistant Secretary—Indian Affairs;
(2) A tribe, which may intervene, appear as an amicus curiae, or otherwise
appear in any appeal taken under this
part by a person or entity who has entered into a lease, business agreement,
or right-of-way with the tribe or by an
interested party under this part; or
(3) A person or entity that has entered into a lease, business agreement,
or right-of-way with a tribe, may intervene, appear as an amicus curiae, or
otherwise appear in any appeal taken
under this part by the tribe or by an interested party under this part.
(d) The Secretary does not have an
obligation to provide notice and service upon non-appealing persons as provided in 25 CFR part 2 and 43 CFR part
4. The only exception to this principle
is that notice and service of all documents must be served consistent with
the requirements of 25 CFR part 2 and
43 CFR part 4 on those persons or entities identified in paragraph (c) of this
section.
§ 224.185 When are decisions
this part effective?

Decisions under subpart I are effective as follows:
(a) Decisions of the Secretary disapproving a final proposed TERA or a
revised final proposed TERA under subpart C of this part, a finding of imminent jeopardy to a physical trust asset
under subpart F of this part, and decisions by the Secretary or the Assistant
Secretary—Indian Affairs to reassume
activities under subpart G of this part

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Bureau of Indian Affairs, Interior

§ 225.1

are final for the Department. These decisions and findings are effective upon
issuance.
(b) Decisions under this part, other
than those in paragraph (a) of this section, that adversely affect a tribe and
for which an appeal is pending are not
final for the Department and are not
effective while the appeal is pending,
unless:
(1) The tribe had an opportunity for a
hearing before the decision was issued;
(2) The tribe had a reasonable
amount of time to comply with the
TERA after the decision was issued;
and
(3) The Interior Board of Indian Appeals (Board), the Secretary, or Assistant Secretary—Indian Affairs issued a
written decision that, notwithstanding
a reasonable period given the tribe to
comply with the TERA, the tribe has
failed to take the actions necessary to
comply with the TERA.
(c) All other decisions rendered by
the Board or the Assistant Secretary—
Indian Affairs in an appeal from a Director’s decision under subparts E, F,
or G of this part are effective when
issued.

PART 225—OIL AND GAS, GEOTHERMAL, AND SOLID MINERALS
AGREEMENTS
Subpart A—General
Sec.
225.1 Purpose and scope.
225.2 Information collection.
225.3 Definitions.
225.4 Authority and responsibility of the
Bureau of Land Management (BLM).
225.5 Authority and responsibility of the Office of Surface Mining Reclamation and
Enforcement (OSMRE).
225.6 Authority and responsibility of the
Minerals Management Service (MMS).

dwashington3 on PROD1PC60 with CFR

Subpart B—Minerals Agreements
225.20 Authority to contract.
225.21 Negotiation procedures.
225.22 Approval of minerals agreements.
225.23 Economic assessments.
225.24 Environmental studies.
225.25 Resolution of disputes.
225.26 Auditing and accounting.
225.27 Forms and reports.
225.28 Approval of amendments to minerals
agreements.

225.29 Corporate qualifications and requests
for information.
225.30 Bonds.
225.31 Manner of payments.
225.32 Permission to start operations.
225.33 Assignment of minerals agreements.
225.34 [Reserved]
225.35 Inspection of premises; books and accounts.
225.36 Minerals agreement cancellation; Bureau of Indian Affairs notice of noncompliance.
225.37 Penalties.
225.38 Appeals.
225.39 Fees.
225.40 Government employees cannot acquire minerals agreements.
AUTHORITY: Indian Mineral Development
Act of 1982, 25 U.S.C. 2101–2108; and 25 U.S.C.
2 and 9.
SOURCE: 59 FR 14971, Mar. 30, 1994, unless
otherwise noted.

Subpart A—General
§ 225.1 Purpose and scope.
(a) The regulations in this part, administered by the Bureau of Indian Affairs under the direction of the Secretary of the Interior, govern minerals
agreements for the development of Indian-owned minerals entered into pursuant to the Indian Mineral Development Act of 1982, 25 U.S.C. 2101–2108
(IMDA). These regulations are applicable to the lands or interests in lands of
any Indian tribe, individual Indian or
Alaska native the title to which is held
in trust by the United States or is subject to a restriction against alienation
imposed by the United States. These
regulations are intended to ensure that
Indian mineral owners are permitted to
enter into minerals agreements that
will allow the Indian mineral owners to
have more responsibility in overseeing
and greater flexibility in disposing of
their mineral resources, and to allow
development in the manner which the
Indian mineral owners believe will
maximize their best economic interest
and minimize any adverse environmental or cultural impact resulting
from such development. Pursuant to
section 4 of the IMDA (25 U.S.C.
2103(e)), as part of this greater flexibility, where the Secretary has approved a minerals agreement in compliance with the provisions of 25 U.S.C.
chap. 23 and any other applicable provision of law, the United States shall not

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