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73784 Federal Register / Vol. 76, No. 229 / Tuesday, November 29, 2011 / Proposed Rules DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Part 162 [Docket ID BIA–2011–0001] RIN 1076–AE73 Residential, Business, and Wind and Solar Resource Leases on Indian Land Bureau of Indian Affairs, Interior. ACTION: Proposed rule. AGENCY: The Bureau of Indian Affairs (BIA) is proposing to revise the regulations addressing non-agricultural leasing of Indian land. This rule would add new subparts to address residential leases, business leases, wind resource evaluation and development leases, and solar resource development leases on Indian land, and would therefore remove the existing subpart for nonagricultural leases. DATES: Comments on this proposed rule must be received by January 30, 2012. Comments on the information collections contained in this proposed regulation are separate from those on the substance of the rule. Comments on the information collection burden should be received by December 29, 2011 to ensure consideration, but must be received no later than January 30, 2012. SUMMARY: You may submit comments by any of the following methods: Federal rulemaking portal: http:// www.regulations.gov. The rule is listed under the agency name ‘‘Bureau of Indian Affairs.’’ The rule has been assigned Docket ID: BIA–2011–0001. If you would like to submit comments through the Federal e-Rulemaking Portal, go to http://www.regulations.gov and do the following. Go to the box entitled ‘‘Enter Keyword or ID,’’ type in ‘‘BIA–2011–0001,’’ and click the ‘‘Search’’ button. The next screen will display the Docket Search Results for the rulemaking. If you click on BIA– 2011–0001, you can view this rule and submit a comment. You can also view any supporting material and any comments submitted by others. —Email: consultation@bia.gov. Include the number 1076–AE73 in the subject line of the message. —Mail: Del Laverdure, Principal Deputy Assistant Secretary—Indian Affairs, U.S. Department of the Interior, Mail Stop 4141, 1849 C Street NW., Washington, DC 20240. Include the number 1076–AE73 on the outer envelope. pmangrum on DSK3VPTVN1PROD with PROPOSALS2 ADDRESSES: VerDate Mar2010 18:49 Nov 28, 2011 Jkt 226001 —Hand delivery: Del Laverdure, Principal Deputy Assistant Secretary—Indian Affairs, U.S. Department of the Interior, Room 4141, 1849 C Street NW., Washington, DC 20240. Include the number 1076– AE73 on the outer envelope. We cannot ensure that comments received after the close of the comment period (see DATES) will be included in the docket for this rulemaking and considered. Comments sent to an address other than those listed above will not be included in the docket for this rulemaking. Comments on the information collections contained in this proposed regulation are separate from those on the substance of the rule. Send comments on the information collection burden to OMB by facsimile to (202) 395–5806 or email to the OMB Desk Officer for the Department of the Interior at OIRA_DOCKET@ omb.eop.gov. Please send a copy of your comments to the person listed in the FOR FURTHER INFORMATION CONTACT section of this notice. FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Office of Regulatory Affairs & Collaborative Action, (202) 273–4680; Elizabeth.appel@bia.gov. SUPPLEMENTARY INFORMATION: I. Background This proposed rule would revise the current 25 CFR part 162, Leases and Permits, to establish subparts specifically addressing the following categories of leasing on Indian land: residential; business; wind resource evaluation and development; and solar resource development. Specifically, this rule would: • Revise Subpart A, General Provisions • Create a new Subpart C, Residential Leases • Create a new Subpart D, Business Leases • Create a new Subpart E, Wind Energy Evaluation Leases (WEELs) and Wind and Solar Resource (WSR) Leases • Delete Subpart F, Non-agricultural Leases (because that subpart was intended to address residential and business leasing, which this proposed rule addresses specifically in subparts C and D, respectively) • Move the current Subpart E, Special Requirements for Certain Indian Reservations, to Subpart F • Create a new Subpart G, Records. The proposed rule does not affect Subpart B, Agricultural Leases. Subpart B may be revised at a later time. In addition, to ensure that changes to the General Provisions do not affect PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 agricultural lease regulations, the current General Provisions sections are being moved to Subpart B, where they apply only to agricultural leases. Minor edits were made to these General Provisions to delete redundancies and clarify that they now apply only to agricultural leases. II. Summary of Substantive Revisions This rule makes the procedures for leasing as explicit and transparent as possible. The consent requirements in the proposed regulations are consistent with the Indian Land Consolidation Act of 2000 (ILCA), as amended by the American Indian Probate Reform Act (AIPRA). Because this statute does not apply to tribes in Alaska, the consent requirements for Alaska remain the same as the previous regulations governing leasing. The proposed regulations provide procedures for approval of lease amendments, assignments, subleases and leasehold mortgages. The current regulations provide for the approval of such instruments, but do not specify the procedure for such approval, leading to the possibility of inconsistencies nationwide, to the detriment of lessees and lenders. This rule provides that leases on tribal land may be approved for the compensation established in the lease. Leases for less than fair market rental may be approved on individually owned Indian land under certain circumstances. Subpart C, Residential Leases, addresses leasing for single-family homes and housing for public purposes on Indian land. The proposed regulations provide for a 30-day time frame within which BIA must issue a decision on a complete residential lease application. Bonds are not required for leases for housing for public purposes and otherwise may be waived by BIA upon a determination that it is in the best interest of the landowner(s). Subpart C also includes provisions for enforcement of lease violations. Subpart D, Business Leases, addresses leasing for business purposes, including: (1) Leases for residential purposes that are not covered in Subpart C; (2) leases for business purposes not covered by Subpart E (wind energy evaluation and wind and solar resource development); (3) leases for religious, educational, recreational, cultural, and other public purposes; and (4) commercial or industrial leases for retail, office, manufacturing, storage, biomass, waste-to-energy, and/or other business purposes. The proposed regulations provide for a 60-day time frame within which BIA must issue a E:\FR\FM\29NOP2.SGM 29NOP2 Federal Register / Vol. 76, No. 229 / Tuesday, November 29, 2011 / Proposed Rules decision on a complete business lease application. Subpart E, WEELs and WSR Leases, establishes procedures for obtaining BIA review and approval of wind energy evaluation leases (WEELs) and wind and solar resource (WSR) development leases. For wind energy, this proposed rule establishes a two-part process whereby developers obtain BIA approval of a short-term lease for possession of Indian land for the purposes of installation and maintenance of wind evaluation equipment, such as meteorological towers. The WEEL may provide the developer with an option to lease the Indian land for wind energy development purposes. The environmental reviews conducted for the short-term lease, which would only evaluate the impacts of the evaluation equipment, not the full development of the wind project, may be rolled into environmental reviews conducted for a lease for full development of the wind project. This two-part process is not necessary for solar resource development because solar evaluation does not require possession of the land. Some of the more notable crosscutting substantive changes include: pmangrum on DSK3VPTVN1PROD with PROPOSALS2 BIA Approval Process • Eliminating the requirement for BIA approval of permits of Indian land; • Eliminating the requirement for BIA approval of subleases and assignments where certain conditions are met; • Imposing time limits on BIA to act on requests to approve lease amendments, lease assignments, subleases, and leasehold mortgages; • Establishing that BIA has 30 days to act on a request to approve a lease amendment or sublease, or the document will be deemed approved; • Establishing that BIA must approve amendments, assignments, leasehold mortgages, and subleases unless it finds a compelling reason not to, based on certain specified findings. Compensation and Valuations • Providing that BIA will defer to the tribe’s negotiated value for a lease of tribal land and will not require valuation of tribal land; • Allowing for waivers of valuation for residential leases of individually owned land if the individual landowners provide 100 percent consent and a waiver and BIA determines it is in the best interest of the landowners (100 percent consent is necessary because non-consenting owners receive fair market value, so a valuation will be necessary if any individual does not consent); VerDate Mar2010 15:26 Nov 28, 2011 Jkt 226001 73785 • Allowing short-term leases for wind resource evaluation purposes at the value negotiated by the Indian landowners (whether tribal or individual Indians); • Allowing alternative forms of rental (other than monetary compensation) if BIA determines it is in the best interest of the Indian landowners; • Allowing other types of valuation (other than appraisals) under certain circumstances; • Allowing for automatic rental adjustments and restricting the need for reviews of the lease compensation (to determine if an adjustment is needed) to certain circumstances. A. Regulatory Planning and Review (E.O. 12866) B. Regulatory Flexibility Act C. Small Business Regulatory Enforcement Fairness Act D. Unfunded Mandates Reform Act E. Takings (E.O. 12630) F. Federalism (E.O. 13132) G. Civil Justice Reform (E.O. 12988) H. Consultation With Indian Tribes (E.O. 13175) I. Paperwork Reduction Act J. National Environmental Policy Act K. Effects on the Energy Supply (E.O. 13211) L. Clarity of This Regulation M. Public Availability of Comments Improvements A. Regulatory Planning and Review (E.O. 12866) • Requiring plans of development and schedules for construction of improvements to assist the BIA and Indian landowners in enforcement of diligent development of the leased premises. • Clarifying that improvements on trust or restricted land are not taxable by States or localities, without regard to ownership. The purposes of residential, business, and WSR leasing on Indian land are to promote Indian housing and to allow Indian landowners to use their land profitably for economic development. These regulations are intended to preempt the field of leasing of Indian lands. The Federal statutory and regulatory scheme for leasing, including the regulation of improvements, is so pervasive as to preclude the additional burden of State taxation. The assessment of State taxes would obstruct Federal policies supporting tribal economic development and self-determination, and tribal interests in effective tribal government and economic selfsufficiency. Direct Pay • Allowing for direct pay only where there are 10 or fewer landowners, and all landowners consent to direct pay; • Continuing direct pay unless and until 100 percent of the owners agree to discontinue direct pay, but suspending direct pay for any one Indian landowner who dies, is declared non compos mentis, or whose whereabouts become unknown. These changes are intended to increase the efficiency and transparency of the BIA approval process for leasing of Indian land, support tribal decisions regarding the use of their land, increase flexibility in compensation and valuations, and facilitate management of direct pay. PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 III. Procedural Requirements III. Procedural Requirements The Office of Management and Budget (OMB) has determined that this rule is significant under Executive Order 12866. This rule replaces provisions that apply to non-agricultural leasing of Indian land, generally, with provisions that apply specifically to the different types of non-agricultural leasing: Residential, business, and wind and solar resource leasing of Indian land. This rule describes how the BIA will administer residential, business, and wind and solar resource leases on trust and restricted land. Thus, the impact of the rule is confined to the Federal Government and individual Indian and tribal landowners and does not impose a compliance burden on the economy generally or create any inconsistencies or budgetary impacts to any other agency or Federal program. (1) This rule will not have an annual effect of $100 million or more on the economy or adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. This rule makes changes to promote economic development on Indian land through, for example, providing greater transparency to procedures for obtaining BIA approval, imposing timelines on BIA to act on certain lease requests, and establishing that BIA will defer to tribes’ negotiated values. The rule’s changes will not have direct effects on the economy as a whole; however, the changes should result in increased leasing of Indian land, which will have a beneficial effect on tribal economies and communities. (2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency because the Department is the only agency with authority for approving leases on Indian land. We E:\FR\FM\29NOP2.SGM 29NOP2 73786 Federal Register / Vol. 76, No. 229 / Tuesday, November 29, 2011 / Proposed Rules have coordinated with the Department of Housing and Urban Development (HUD) to ensure that the leasing procedures will not impede Indian landowners’ ability to obtain HUDfunding for residences. (3) This rule does involve entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. The revisions have no budgetary effects and do not affect the rights or obligations of any recipients. (4) This rule may raise novel legal or policy issues because it alters established procedures for reviewing and approving leases of Indian land. B. Regulatory Flexibility Act The Department of the Interior certifies that this proposed rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Small entities are not likely to enter into residential leases on Indian land because tribal housing authorities and tribal members usually enter into such leases. It is possible that small entities may enter into business leases or wind or solar resources leases but this rule does not impose any new requirements in obtaining or complying with a lease that would have a significant economic effect on those entities. pmangrum on DSK3VPTVN1PROD with PROPOSALS2 C. Small Business Regulatory Enforcement Fairness Act This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. It will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year. The rule’s requirements will not result in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. The rule continues to require lessees to pay at least fair market rental, with certain exceptions, and adds that lessees agree to some other amount negotiated by the Indian tribe under certain circumstances. Nor will this rule have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of the U.S.-based enterprises to compete VerDate Mar2010 15:26 Nov 28, 2011 Jkt 226001 with foreign-based enterprises because the rule is limited to Indian land and is intended to promote economic development. D. Unfunded Mandates Reform Act This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required. E. Takings (E.O. 12630) Under the criteria in Executive Order 12630, this rule does not affect individual property rights protected by the Fifth Amendment nor does it involve a compensable ‘‘taking.’’ A takings implication assessment is not required. F. Federalism (E.O. 13132) Under the criteria in Executive Order 13132, this rule has no substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. This rule governs leasing on Indian land, which is land held by the Federal Government in trust or restricted status for individual Indians or Indian tribes. Such land is subject to tribal law and Federal law, only, except in limited circumstances and areas where Congress or a Federal court has made State law applicable. This rule therefore does not affect the relationship between the Federal Government and States or among the various levels of government. G. Civil Justice Reform (E.O. 12988) This rule complies with the requirements of Executive Order 12988. Specifically, this rule has been reviewed to eliminate errors and ambiguity and written to minimize litigation; and is written in clear language and contains clear legal standards. H. Consultation With Indian Tribes (E.O. 13175) In accordance with the President’s memorandum of April 29, 1994, PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 ‘‘Government-to-Government Relations with Native American Tribal Governments,’’ Executive Order 13175 (59 FR 22951, November 6, 2000), and 512 DM 2, we have evaluated the potential effects on federally recognized Indian tribes and Indian trust assets. During the development of this proposed rule, the Department discussed the rule with tribal representatives at several consultation sessions. We distributed a preliminary draft of the rule to tribes in February 2011 and held three consultation sessions: Thursday, March 17, 2011 at the Reservation Economic Summit (RES) 2011 in Las Vegas; March 31, 2011 in Minnesota; and April 6, 2011, in Albuquerque, New Mexico. We requested that tribes submit written comments by April 18, 2011. We received written and oral comments from over 70 Indian tribes during tribal consultation. We reviewed each comment in depth and revised the rule accordingly. This proposed rule incorporates those revisions. We also compiled a summary of tribal comments received and our responses to those comments and are making that document available to tribes at: http:// www.bia.gov/WhoWeAre/AS-IA/ Consultation/index.htm. We plan to hold additional tribal consultation sessions, particularly in the geographic areas we were not able to reach prior to this proposed rule. We will announce the dates and locations of the additional tribal consultation sessions by letter to tribal leaders. I. Paperwork Reduction Act OMB Control No. 1076–0155 currently authorizes the collections of information contained in 25 CFR part 162, totaling an estimated 106,065 annual burden hours. If this proposed rule is finalized, the annual burden hours will increase by an estimated 2,910 hours. Because the sections where the information collections occur changes, we are including a table showing the section changes and whether a change to the information collection requirement associated with those sections has changed. E:\FR\FM\29NOP2.SGM 29NOP2 Federal Register / Vol. 76, No. 229 / Tuesday, November 29, 2011 / Proposed Rules Current CFR cite 162.109, 162.204, 162.205 162.207, 162.242–244, 162.604(a), 162.610. 162.213, 162.604(a) ............ 162.217, 162.246 ................. New CFR cite Information collection requirement Explanation of change 162.109, 162.204, 162.205, 162.338(e), 162.438(e), 162.528(d), 162.568(e). 162.320(a), 321(a), 162.420(a), 421(a), 162,546(a), 162.547(a). 162.320(b), 321(b), 162.420(b), 421(b), 162,546(b), 162.547(b). 162.324, 162.424, 162.550 162.368, 162.468, 162.593 Provide notice of tribal leasing laws, regulations, exemptions. No change. Previously required, but now listed in specific subparts. Request for fair market rental/valuation on tribal land. New. Request for waiver of fair market rental/ valuation for individually owned land. New. Agreement to suspend direct pay ........... Notification of good faith negotiations with holdover. Submit lease, assignment, amendment, leasehold mortgage for approval. New. New. Provide supporting documentation .......... No change. Previously required, but now listed in separate subparts. Submit permits to BIA for file .................. Permits must now be submitted to BIA for file. No change. Previously required, but now listed in separate subparts. 162.009, 162.207, 162.242–244, 162. 345, 350, 353, 357, 162. 445, 450, 453, 457, 162. 530, 162.570, 574, 578, 582. 162.024, 162.213, 162.338, 162.438, 162.528, 162.563. 162.004 .............................. 162.212, 162.606 ................. 162.217, 162.246, 162.341, 162.441, 162.566. 162.234, 162.334, 162.434, 162.525, 162.559. 162.237, 162.337, 162.437, 162.527, 162.562. 162.241 .............................. 162.247, 162.325, 329, 162.425, 429, 162.523, 551, 555. 162.248, 162.365, 162.465, 162.590. 162.009, 162.212 .............. 162.603 ................................ 162.008(b)(2) ..................... Use of minor’s land ................................. 162.251, 162.618 ................. 162.251, 162.363, 162.463, 162.588. 162.256, 162.368, 162.468, 162.593. 162.022, 162.113 .............. Provide notice of curing violation ............ 162.234, 162.604(c) ............ 162.237, 162.604(d) ............ 162.241 ................................ 162.247, 162.613 ................. 162.248, 162.616 ................. 162.256, 162.623 ................. 162.113 ................................ Submit lease for recording ...................... No change. Previously required, but now listed in separate subparts. Provide a bond ........................................ No change. Previously required, but now listed in separate subparts. Provide information for acceptable insurance. No change. Previously required, but now listed in separate subparts. Administrative fees .................................. Pay rent ................................................... No change. No change. Previously required, but now listed in separate subparts. Pay penalties for late payment ............... No change. Previously required, listed in separate subparts. No change. Previously required, listed in separate subparts. No change. Previously required, listed in separate subparts. No change. Previously required, listed in separate subparts. No change. Previously required, listed in separate subparts. No change. Previously required, listed in separate subparts. Bidding on advertised lease .................... Respond to notice of trespass ................ Appealing decisions ................................ The table showing the burden of the information collection is included below for your information. pmangrum on DSK3VPTVN1PROD with PROPOSALS2 BILLING CODE 4310–6W–P VerDate Mar2010 15:26 Nov 28, 2011 73787 Jkt 226001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 E:\FR\FM\29NOP2.SGM 29NOP2 but now but now but now but now but now but now VerDate Mar2010 Federal Register / Vol. 76, No. 229 / Tuesday, November 29, 2011 / Proposed Rules 15:26 Nov 28, 2011 Jkt 226001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4725 E:\FR\FM\29NOP2.SGM 29NOP2 EP29NO11.010 pmangrum on DSK3VPTVN1PROD with PROPOSALS2 73788 Federal Register / Vol. 76, No. 229 / Tuesday, November 29, 2011 / Proposed Rules BIA invites comments on the information collection requirements in the proposed regulation. You may submit comments to OMB by facsimile to (202) 395–5806 or you may send an email to the attention of the OMB Desk Officer for the Department of the Interior: OIRA_DOCKET@omb.eop.gov. Please send a copy of your comments to the person listed in the FOR FURTHER INFORMATION CONTACT section of this notice. Note that the request for comments on the rule and the request for comments on the information collection are separate. To best ensure consideration of your comments on the information collection, we encourage you to submit them by December 29, 2011; while OMB has 60 days from the date of publication to act on the information collection request, OMB may choose to act on or after 30 days. Comments on the information collection should address: (a) The necessity of this information collection for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency’s estimate of the burden (hours and cost) of the collection of information, including the validity of the methodology and assumptions used; (c) ways we could enhance the quality, utility and clarity of the information to be collected; and (d) ways we could minimize the burden of the collection of the information on the respondents, such as through the use of automated collection techniques or other forms of information technology. Please note that an agency may not sponsor or request, and an individual need not respond to, a VerDate Mar2010 15:26 Nov 28, 2011 Jkt 226001 collection of information unless it has a valid OMB Control Number. J. National Environmental Policy Act This rule does not constitute a major Federal action significantly affecting the quality of the human environment because these are ‘‘regulations * * * whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively or case-bycase.’’ 43 CFR 46.210(j). No extraordinary circumstances exist that would require greater NEPA review. K. Effects on the Energy Supply (E.O. 13211) This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required. L. Clarity of This Regulation We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must: (a) Be logically organized; (b) Use the active voice to address readers directly; (c) Use clear language rather than jargon; (d) Be divided into short sections and sentences; and (e) Use lists and tables wherever possible. If you feel that we have not met these requirements, send us comments by one of the methods listed in the ‘‘COMMENTS’’ section. To better help PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you believe lists or tables would be useful, etc. M. Public Availability of Comments Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. List of Subjects in 25 CFR Part 162 Indians—lands. For the reasons stated in the preamble, the Department of the Interior, Bureau of Indian Affairs, proposes to amend part 162 in Title 25 of the Code of Federal Regulations as follows: PART 162—LEASES AND PERMITS 1. Revise the authority citation for part 162 to read as follows: Authority: 5 U.S.C. 301, R.S. 463 and 465; 25 U.S.C. 2 and 9. Interpret or apply sec. 3, 26 Stat. 795, sec. 1, 28 Stat. 305, secs. 1, 2, 31 Stat. 229, 246, secs. 7, 12, 34 Stat. 545, 34 Stat. 1015, 1034, 35 Stat. 70, 95, 97, sec. 4, 36 Stat. 856, sec. 1, 39 Stat. 128, 41 Stat. 415, as amended, 751, 1232, sec. 17, 43 Stat. 636, 641, 44 Stat. 658, as amended, 894, 1365, as amended, 47 Stat. 1417, sec. 17, 48 E:\FR\FM\29NOP2.SGM 29NOP2 EP29NO11.011 pmangrum on DSK3VPTVN1PROD with PROPOSALS2 BILLING CODE 4310–6W–C 73789 73790 Federal Register / Vol. 76, No. 229 / Tuesday, November 29, 2011 / Proposed Rules Stat. 984, 988, 49 Stat. 115, 1135, sec. 55, 49 Stat. 781, sec. 3, 49 Stat. 1967, 54 Stat. 745, 1057, 60 Stat. 308, secs. 1, 2, 60 Stat. 962, sec. 5, 64 Stat. 46, secs. 1, 2, 4, 5, 6, 64 Stat. 470, 69 Stat. 539, 540, 72 Stat. 968, 107 Stat. 2011, 108 Stat. 4572, March 20, 1996, 110 Stat. 4016; 25 U.S.C. 380, 393, 393a, 394, 395, 397, 402, 402a, 403, 403a, 403b, 403c, 409a, 413, 415, 415a, 415b, 415c, 415d, 477, 635, 2201 et seq., 3701, 3702, 3703, 3712, 3713, 3714, 3715, 3731, 3733, 4211; 44 U.S.C. 3101 et seq. § 162.100 [Removed] 2. Remove § 162.100. §§ 162.101.162.113 [Redesignated] 3. Redesignate § 162.101–§ 162.113 in subpart A as § 162.101–§ 162.113 in subpart B. 4. Revise subpart A to read as follows: PART 162—LEASES AND PERMITS Subpart A—General Provisions Purpose, Definitions, and Scope Sec. 162.001 What is the purpose of this part? 162.002 How is this part subdivided? 162.003 What key terms do I need to know? 162.004 May BIA approve or grant permits under this part? When to Get a Lease 162.005 When does this part apply? 162.006 To what land does this part apply? 162.007 To what types of land use agreements does this part not apply? 162.008 When do I need a lease to authorize possession of Indian land? pmangrum on DSK3VPTVN1PROD with PROPOSALS2 How to Get a Lease 162.009 How do I obtain a lease? 162.010 How does a prospective lessee identify and contact Indian landowners to negotiate a lease? 162.011 What are the consent requirements for a lease? 162.012 Who is authorized to consent to a lease? Lease Administration 162.013 What laws apply to leases approved under this part? 162.014 Will BIA comply with tribal laws in making decisions regarding leases? 162.015 May tribes administer this part on BIA’s behalf? 162.016 May a lease address access to the leased premises by roads or other infrastructure? 162.017 May a lease combine tracts with different Indian landowners? 162.018 What are BIA’s responsibilities in approving leases? 162.019 What are BIA’s responsibilities in administering and enforcing leases? 162.020 What may BIA do if an individual or entity takes possession of or uses Indian land without an approved lease or other proper authorization? 162.021 May BIA take emergency action if Indian land is threatened? 162.022 May decisions under this part be appealed? VerDate Mar2010 15:26 Nov 28, 2011 Jkt 226001 162.023 Who may I contact with questions concerning the leasing process? 162.024 What documentation may BIA require in approving, administering, and enforcing leases? Subpart A—General Provisions Purpose, Definitions, and Scope § 162.001 What is the purpose of this part? This part identifies: (a) Conditions and authorities under which we will approve leases of Indian land and may issue permits on Government land; (b) How to obtain leases; (c) Terms and conditions required in leases; (d) How we administer and enforce leases; and (e) Special requirements for leases made under special acts of Congress that apply only to certain Indian reservations. § 162.002 How is this part subdivided? (a) This part includes multiple subparts relating to: (1) General Provisions (Subpart A); (2) Agricultural Leases (Subpart B); (3) Residential Leases (Subpart C); (4) Business Leases (Subpart D); (5) Wind Energy Evaluation, Wind Resource, and Solar Resource Leases (Subpart E); (6) Special Requirements for Certain Reservations (Subpart F); (7) Records (Subpart G). (b) Subpart F identifies special provisions applicable only to leases made under special acts of Congress that apply only to certain Indian reservations. Leases covered by Subpart F are also subject to the provisions in subparts A through G, except to the extent that subparts A through G are inconsistent with the provisions in subpart F or any act of Congress under which the lease is made. (c) Leases covered by Subpart B are not subject to the provisions in subpart A. Leases covered by subpart B are subject to the provisions in subpart G, except that if a provision in subpart B conflicts with a provision of subpart G, then the provision in subpart B will govern. § 162.003 know? What key terms do I need to Adult means a person who is 18 years of age or older. Appeal bond means a bond posted upon filing of an appeal that provides a security or guaranty if an appeal creates a delay in implementing a BIA decision that could cause a significant and measurable financial loss to another party. PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 Approval means written authorization by the Secretary or a delegated official or, where applicable, the ‘‘deemed approved’’ authorization of an amendment or sublease. Assignment means an agreement between a lessee and an assignee, whereby the assignee acquires all or some of the lessee’s rights, and assumes all or some of the lessee’s obligations, under a lease. BIA means the Secretary of the Interior or the Bureau of Indian Affairs within the Department of the Interior and any tribe acting on behalf of the Secretary or Bureau of Indian Affairs under § 162.015, except that this term means only the Secretary of the Interior or Bureau of Indian Affairs if the function is an inherently Federal function. Business day means Monday through Friday, excluding federally recognized holidays and other days that the applicable office of the Federal Government is closed to the public. Consent or consenting means written authorization by an Indian landowner to a specified action. Constructive notice means: (1) Public notice posted at the tribal government office, tribal community building, and/or the United States Post Office; and (2) Notice published in the local newspaper(s) nearest to the affected land and/or announced on a local radio station(s). Court of competent jurisdiction means a Federal, tribal, or State court with jurisdiction. Day means a calendar day, unless otherwise specified. Emancipated minor means a person less than 18 years of age who is married or who is determined by a court of competent jurisdiction to be legally able to care for himself or herself. Equipment installation plan means a plan that describes the type and location of any improvements to be installed by the lessee to evaluate the resources and a schedule showing the tentative commencement and completion dates for installation of those improvements. Fair market rental means the amount of rental income that a leased tract of Indian land would most probably command in an open and competitive market, or as determined by competitive bidding. Fee interest means an interest in land that is owned in unrestricted fee status, and is thus freely alienable by the fee owner. Fractionated tract means a tract of Indian land owned in common by Indian landowners and/or fee owners holding undivided interests therein. E:\FR\FM\29NOP2.SGM 29NOP2 pmangrum on DSK3VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 76, No. 229 / Tuesday, November 29, 2011 / Proposed Rules Government land means any tract, or interest therein, in which the surface estate is owned and administered by the United States, not including tribal land that has been reserved for administrative purposes. Holdover means circumstances in which a lessee remains in possession of the leased premises after the lease term expires. Housing for public purposes means multi-family developments and singlefamily residential developments (i) administered by a tribe, TriballyDesignated Housing Entity, or a triballysponsored or tribally sanctioned not-forprofit entity; or (ii) substantially financed using a tribal, Federal, or State housing assistance program or not-for profit entity. Immediate family means a spouse, brother, sister, aunt, uncle, niece, nephew, first cousin, lineal ancestor, lineal descendant, or member of the household. Improvements means buildings, other structures, and associated infrastructure constructed or installed under a lease to serve the purposes of the lease. Indian means: (1) Any person who is a member of any Indian tribe, is eligible to become a member of any Indian tribe, or is an owner as of October 27, 2004, of a trust or restricted interest in land; (2) Any person meeting the definition of Indian under the Indian Reorganization Act (25 U.S.C. 479) and the regulations promulgated thereunder; and (3) With respect to the inheritance and ownership of trust or restricted land in the State of California pursuant to 25 U.S.C. 2206, any person described in paragraph (1) or (2) or any person who owns a trust or restricted interest in a parcel of such land in that State. Indian land means any tract in which any interest in the surface estate is owned by a tribe or individual Indian in trust or restricted status and includes both individually owned Indian land and tribal land. Indian landowner means a tribe or individual Indian who owns an interest in Indian land. Individually owned Indian land means any tract, or interest therein, in which the surface estate is owned by an individual Indian in trust or restricted status. Indian tribe means an Indian tribe under section 102 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a). Interest, when used with respect to Indian land, means an ownership right to the surface estate of Indian land. VerDate Mar2010 15:26 Nov 28, 2011 Jkt 226001 Lease means a written contract between Indian landowners and a lessee, whereby the lessee is granted a right to possession of Indian land, for a specified purpose and duration. Leasehold mortgage means a mortgage, deed of trust, or other instrument that pledges a lessee’s leasehold interest as security for a debt or other obligation owed by the lessee to a lender or other mortgagee. Lessee means person or entity who has acquired a legal right of possession to Indian land by a lease under this part. Life estate means an interest in property held only for the duration of a designated person’s life. A life estate may be created by a conveyance document or by operation of law. LTRO means the Land Titles and Records Office of the BIA. Mail means mailing by U.S. Postal Service or commercial delivery service. Minor means an individual who is less than 18 years of age. Nominal rental or nominal compensation means a rental amount that is so insignificant that it bears no relationship to the value of the property that is being leased. Non compos mentis means a person who has been legally determined by a court of competent jurisdiction to be of unsound mind or incapable of managing his or her own affairs. Notice of violation means a letter notifying the lessee of a violation of the lease and providing the lessee with a specified period of time to show cause why the lease should not be cancelled for the violation. A 10-day show cause letter is one type of notice of violation. Orphaned minor means a minor who does not have one or more guardians duly appointed by a court of competent jurisdiction. Performance bond means security for the performance of certain lease obligations, as furnished by the lessee, or a guaranty of such performance as furnished by a third-party surety. Permit means a written, nonassignable agreement between Indian landowners or BIA and the permittee, whereby the permittee is granted a temporary, revocable privilege to use Indian land or Government land, for a specified purpose. Permittee means a person or entity who has acquired a legal right of use to Indian land or Government land by a permit. Power of attorney means an authority by which one person enables another to act for him/her as attorney in fact. Remainder interest means an interest in Indian land that is created at the same time as a life estate, for the use and PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 73791 enjoyment of its owner after the life estate terminates. Restoration and reclamation plan means a plan that defines the reclamation, revegetation, restoration, and soil stabilization requirements for the project area, and requires the expeditious reclamation of construction areas and revegetation of disturbed areas to reduce invasive plant infestation and erosion. Secretary means the Secretary of the Interior. Single-family residence means a building with one to four dwelling units on a tract of land under a single residential lease, or as defined by tribal zoning law or other tribal authorization. Single-family residential development means one or more single-family residences owned, managed, or developed by a single entity. Sublease means a written agreement by which the lessee grants to an individual or entity a right to possession less than that held by the lessee under the lease. Surety means one who guarantees the performance of another. Trespass means any unauthorized occupancy, use of, or action on any Indian land or Government land. Tribal authorization means a duly adopted tribal resolution, tribal ordinance, or other appropriate tribal document authorizing the specified action. Tribally Designated Housing Entity means a tribally designated housing entity under 25 U.S.C. 4103(21). Tribal land means the surface estate of lands or any interest therein, title to which is held by the United States in trust for one or more tribes, or title to which is held by one or more tribes subject to Federal restrictions against alienation or encumbrance, and includes such lands reserved for BIA administrative purposes. The term also includes the surface estate of lands held by the United States in trust for an Indian corporation chartered under section 17 of the Act of June 18, 1934 (48 Stat. 988; 25 U.S.C. 477). Tribal law means the body of nonFederal law that governs lands and activities under the jurisdiction of a tribe, including ordinances or other enactments by the tribe, and tribal court rulings. Tribal land assignment means a contract or agreement that conveys to tribal members any rights for the temporary use of tribal lands, assigned by an Indian tribe in accordance with tribal laws or customs. Trust or restricted land or trust or restricted status means any tract, or interest therein, that the United States E:\FR\FM\29NOP2.SGM 29NOP2 73792 Federal Register / Vol. 76, No. 229 / Tuesday, November 29, 2011 / Proposed Rules holds in trust for the benefit of one or more tribes or individual Indians, or any tract, or interest therein, that one or more tribes or individual Indians holds title to, but can only alienate or encumber with the approval of the United States because of limitations contained in the conveyance instrument pursuant to Federal law or limitations contained in Federal law. Undivided interest means a fractional share in the surface estate of Indian land, where the surface estate is owned in common with other Indian landowners or fee owners. Us/we/our means the Secretary or the Bureau of Indian Affairs (BIA) and any tribe acting on behalf of the Secretary or BIA under § 162.015, except that this term means only the Secretary or BIA if the function is an inherently Federal function. Uniform Standards of Professional Appraisal Practice (USPAP) means the standards promulgated by the Appraisal Standards Board of the Appraisal Foundation to establish requirements and procedures for professional real property appraisal practice. Violation means a failure to take an action, including payment of compensation, when required by the lease, or to otherwise not comply with a term of the lease. This definition applies for purposes of this part no matter how ‘‘violation’’ or ‘‘default’’ is defined in the lease. § 162.004 May BIA approve or grant permits under this part? pmangrum on DSK3VPTVN1PROD with PROPOSALS2 (a) Permits for the use of Indian land do not require our approval; however, you must fulfill the following requirements: (1) Ensure that permitted activities comply with all applicable environmental and cultural resource laws; and (2) Submit all permits to the appropriate BIA office for us to confirm that the document meets the definition of ‘‘permit’’ and does not grant an interest in Indian land and allow us to maintain a copy of the permit in our records. (b) The following table provides characteristics of permits versus leases. Permit Lease Does not grant a legal interest in Indian land. Shorter term .............. Limited use ................ VerDate Mar2010 Grants a legal interest in Indian land. Longer term. Broader use with associated infrastructure. 15:26 Nov 28, 2011 Jkt 226001 Permit Lease Subject to unlimited access by others. Indian landowner may terminate at any time. Lessee has right of possession, ability to limit or prohibit access by others. Indian landowner may terminate under limited circumstances. (c) We may grant permits for the use of Government land. The leasing regulations in this part will apply to such permits, as appropriate. When to Get a Lease § 162.005 When does this part apply? (a) This part applies to all leases, amendments, assignments, subleases, and leasehold mortgages submitted to BIA for approval after [INSERT FINAL RULE EFFECTIVE DATE]. (b) If the terms of a lease document approved by BIA prior to [INSERT FINAL RULE EFFECTIVE DATE] conflict with this part, the terms of the lease document govern. (c) We may amend this part at any time. § 162.006 apply? To what land does this part (a) This part applies to Indian land and Government land, including any tract in which an individual Indian or tribe owns an interest in trust or restricted status. (1) We will not lease fee interests or collect rent on behalf of fee interest owners. We will not condition our approval of a lease of the trust and restricted interests on a lease having been obtained from the owners of any fee interests. (2) We will not include the fee interests in a tract in calculating the applicable percentage of interests required for consent to a lease document. (b) This paragraph applies if there is a life estate on the land to be leased. (1) When all of the trust or restricted interests in a tract are subject to a life estate, the life tenant may lease the land without our approval, for the duration of the life estate. The following conditions apply: (i) Such a lease must be recorded; (ii) The lessee must pay rent directly to the life tenant under the terms of the lease; (iii) We may monitor the use of the land on behalf of the owners of the remainder interests, as appropriate, but will not be responsible for enforcing the lease on behalf of the life tenant. (iv) We will not lease the remainder interests or join in a lease by the life PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 tenant on behalf of the owners of the remainder interests except as needed to preserve the value of the land; (v) We will not lease on the life tenant’s behalf, but we may collect rents on behalf of the life tenant; and (vi) We will be responsible for enforcing the terms of the lease on behalf of the owners of the remainder interests. (2) When less than all of the trust or restricted interests in a tract are subject to a life estate, the life tenant may not lease the land unless the remainder interests are also leased. The following conditions apply: (i) We will not lease on the life tenant’s behalf, but we may collect rents on behalf of the life tenant; and (ii) We will be responsible for enforcing the terms of the lease on behalf of the owners of the remainder interests. (3) Rent payable under the lease will be paid to the life tenant in accordance with Part 179 of this chapter, unless the document creating the life estate provides otherwise. (4) All leases entered into by life tenants must be recorded in our Land Titles and Records Office, even where our approval is not required. § 162.007 To what types of land use agreements does this part not apply? (a) This part does not apply to the following types of land use agreements: This part does not apply to . . . which are covered by . . . Mineral leases, prospecting permits, or mineral development agreements. Grazing permits ......... Timber contracts ........ Contracts or agreements that encumber tribal land. Rights-of-way ............. Tribal land assignments and similar instruments authorizing temporary uses. Traders’ licenses ....... 25 CFR parts 211, 212 and 225. 25 CFR part 166. 25 CFR part 163. 25 U.S.C. 81. 25 CFR part 169. tribal laws. 25 CFR part 140. (b) This part does not apply to leases of water rights associated with Indian land, except to the extent the use of such water rights is incorporated in a lease of the land itself. § 162.008 When do I need a lease to authorize possession of Indian land? (a) You need a lease under this part to possess Indian land if you meet one of the criteria in the following table. E:\FR\FM\29NOP2.SGM 29NOP2 Federal Register / Vol. 76, No. 229 / Tuesday, November 29, 2011 / Proposed Rules 73793 If you are . . . then you must obtain a lease under this part . . . (1) A person or legal entity (including an independent legal entity owned and operated by a tribe) who is not an owner of the Indian land. (2) An Indian landowner of a fractional interest in the land ..................... from the owners of the land before taking possession of the land or any portion thereof. from the owners of other trust and restricted interests in the land, unless those owners have given you permission to take or continue in possession without a lease. (b) You do not need a lease to possess Indian land if you meet any of the criteria in the following table. You do not need a lease if you are . . . but the following conditions apply . . . (1) An Indian landowner who owns 100 percent of the trust or restricted interests in a tract. (2) A parent or guardian of a minor child who owns 100 percent of the trust interests in the land. (3) A 25 U.S.C. 477 corporate entity that holds the Indian land directly under its Federal charter (not pursuant to a lease from the Indian tribe). (4) A person or legal entity that is leasing Indian land under a special act of Congress authorizing leases without our approval. (1) We may require you to provide evidence of a direct benefit to the minor child; and (2) When the child is no longer a minor, you must obtain a lease to authorize continued possession. You must record documents in accordance with § 162.341, § 162.441, and § 162.566. (c) Landowners who enter into an agreement under paragraph (a)(2) may wish to consider documenting such an agreement and recording it in the LTRO. How to Get a Lease pmangrum on DSK3VPTVN1PROD with PROPOSALS2 § 162.009 How do I obtain a lease? (a) This section establishes the basic steps to obtain a lease. (1) Prospective lessees must: (i) Directly negotiate with Indian landowners for a lease; and (ii) Notify all Indian landowners and obtain the consent of the Indian landowners of the applicable percentage of interests, for fractionated tracts; and (2) Prospective lessees and Indian landowners must: (i) Prepare the required information and analyses, including information to facilitate BIA’s analysis under applicable environmental and cultural resource requirements; and (ii) Ensure the lease complies with the requirements in subpart B for agricultural leases, subpart C for residential leases, subpart D for business leases, and subpart E for wind energy evaluation, wind resource, or solar resource leases; and (3) Prospective lessees and/or Indian landowners must submit the lease, and required information and analyses, to the BIA office with jurisdiction over the lands covered by the lease for our review and approval. (b) Generally, residential, business, wind energy evaluation, wind resource, and solar resource leases will not be advertised for competitive bid. VerDate Mar2010 15:26 Nov 28, 2011 Jkt 226001 You must record documents in accordance with § 162.341, § 162.441, and § 162.566. § 162.010 How does a prospective lessee identify and contact Indian landowners to negotiate a lease? (a) Prospective lessees may submit a written request to us to obtain the following information for the purpose of negotiating a lease: (1) Names and addresses of the Indian landowners or their representatives; (2) Information on the location of the parcel; and (3) The percentage of undivided interest owned by each Indian landowner. (b) We may assist prospective lessees in contacting the Indian landowners or their representatives for the purpose of negotiating a lease, upon request. (c) We will assist the Indian landowners in those negotiations, upon their request. § 162.011 What are the consent requirements for a lease? (a) For fractionated tracts: (1) Except in Alaska, the owners of the following percentage of undivided trust or restricted interests in a fractionated tract of Indian land must consent to a lease of that tract: If the number of owners of the undivided trust or restricted interest in the tract is Then the required percentage of the undivided trust or restricted interest is (i) One to five ............ (ii) Six to 10 ............... (iii) 11 to 19 ............... (iv) 20 or more ........... 90 percent; 80 percent; 60 percent; Over 50 percent. (2) Leases in Alaska require consent of all of the Indian landowners in the tract. (3) If the prospective lessee is also an Indian landowner, their consent will be PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 included in the percentages in paragraphs (a)(1) and (a)(2). (4) Where owners of the applicable percentages in paragraph (a)(1) consent to a lease document: (i) That lease document binds all nonconsenting owners to the same extent as if those owners also consented to the lease document. (ii) That lease document will not bind a non-consenting Indian tribe, except with respect to the tribally owned fractional interest, and the nonconsenting Indian tribe will not be treated as a party to the lease. Nothing in this paragraph shall be construed to affect the sovereignty or sovereign immunity of the Indian tribe. (5) We will determine the number of owners of, and undivided interests in, a fractionated tract of Indian land, for the purposes of calculating the percentages in paragraph (a)(1) based on our records on the date on which the lease is submitted to us for approval. (b) Tribal land subject to a tribal land assignment may only be leased with the consent of the tribe. § 162.012 a lease? Who is authorized to consent to (a) Indian tribes, adult Indian landowners, or emancipated minors, may consent to a lease of their land, including undivided interests in fractionated tracts. (b) The following individuals or entities may consent on behalf of an individual Indian landowner: (1) An adult with legal custody acting on behalf of his or her minor children; (2) A guardian, conservator, or other fiduciary appointed by a court of E:\FR\FM\29NOP2.SGM 29NOP2 73794 Federal Register / Vol. 76, No. 229 / Tuesday, November 29, 2011 / Proposed Rules pmangrum on DSK3VPTVN1PROD with PROPOSALS2 competent jurisdiction recognized to act on behalf of an individual Indian landowner; (3) Any person who is authorized to practice before the Department of the Interior under 43 CFR part 1 and has been retained by the Indian landowner; (4) BIA, under the circumstances in paragraph (c) of this section; or (5) An adult or legal entity who has been given a written power of attorney that: (i) Meets all of the formal requirements of any applicable law under § 162.013; and (ii) Identifies the attorney-in-fact; and (iii) Describes the scope of the powers granted, to include leasing land, and any limits on those powers. (c) BIA may give written consent to a lease, and that consent must be counted in the percentage ownership described in § 162.011, on behalf of: (1) The individual owner if the owner is deceased and the heirs to, or devisees of, the interest of the deceased owner have not been determined; (2) Individuals whose whereabouts are unknown to us, after we make a reasonable attempt to locate such individuals; (3) Individuals who are found to be non compos mentis, or determined to be an adult in need of assistance or under legal disability as defined in part 115 of this chapter; (4) Orphaned minors who do not have guardians duly appointed by a court of competent jurisdiction; (5) Individuals who have given us a written power of attorney to lease their land; or (6) The individual Indian landowners of a fractionated tract where: (i) We have given the Indian landowners written notice of our intent to consent to a lease on their behalf; (ii) The Indian landowners are unable to agree upon a lease during a three month negotiation period following the notice; and (iii) The land is not being used by an Indian landowner under § 162.008(b)(1). (b) If any regulation in this part conflicts with a tribal law, the Secretary may waive the application of such regulation to tribal land, unless the waiver would: (1) Violate a Federal statute or judicial decision; or (2) Conflict with the United States’ trust responsibility under Federal law. (c) The parties to a specific lease may subject it to State or local law in the absence of Federal or tribal law, if: (1) The lease includes a provision to this effect; and (2) The Indian landowners expressly agree to the application of State or local law. (d) An agreement under paragraph (c) of this section does not waive a tribe’s sovereign immunity unless the tribe expressly states its intention to waive sovereign immunity in the lease of tribal land. § 162.014 Will BIA comply with tribal laws in making decisions regarding leases? Unless contrary to Federal law, BIA will comply with tribal laws in making decisions regarding leases, including tribal laws regulating activities on leased land under tribal jurisdiction, including, but not limited to, tribal laws relating to land use, environmental protection, and historic or cultural preservation. § 162.015 May tribes administer this part on BIA’s behalf? A tribe or tribal organization may contract or compact under the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450f et seq.) to administer any portion of this part that is not an inherent Federal function. § 162.016 May a lease address access to the leased premises by roads or other infrastructure? A lease may address access to the leased premises by roads or other infrastructure, as long as the access complies with applicable statutory and regulatory requirements, including 25 CFR part 169. Lease Administration § 162.017 May a lease combine tracts with different Indian landowners? § 162.013 What laws will apply to leases approved under this part? (a) We may approve a lease that combines multiple tracts of Indian land into a unit, if we determine that unitization is: (1) In the Indian landowners’ best interest; and (2) Consistent with the efficient administration of the land. (b) For a lease that covers multiple tracts, the minimum consent requirements apply to each tract separately. (c) Unless the lease provides otherwise, the rent or other (a) In addition to the regulations in this part, leases approved under this part are subject to: (1) Applicable Federal laws and any specific Federal statutory requirements that are not incorporated in this part; (2) Tribal law, subject to paragraph (b) of this section; and (3) State law, in the specific areas and circumstances in Indian country where Congress or a Federal court has made it expressly applicable. VerDate Mar2010 15:26 Nov 28, 2011 Jkt 226001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 compensation will be prorated in proportion to each tract acreage contribution to the entire lease. Once prorated per tract, the rent will be distributed to the owners of each tract based upon their respective percentage interest in that particular tract. § 162.018 What are BIA’s responsibilities in approving leases? (a) We will work to provide assistance to Indian landowners in leasing their land, either through negotiations or advertisement. (b) We will promote tribal control and self-determination over tribal land and other land under the tribe’s jurisdiction, including through contracts and selfgovernance compacts entered into under the Indian Self-Determination and Education Assistance Act, as amended, 25 U.S.C. 450f et. seq. (c) We will promptly respond to requests for BIA approval of leases, as specified in § 162.339, § 162.439, § 162.529, and § 162.564. (d) We will work to ensure that the use of the land is consistent with the Indian landowners’ wishes. § 162.019 What are BIA’s responsibilities in administering and enforcing leases? (a) Upon notification from the Indian landowner that the lessee has failed to comply with the terms and conditions of the lease, we will promptly take appropriate action, as specified in § 162.362, § 162.462, and § 162.587. (b) We will promptly respond to requests for BIA approval of amendments, assignments, leasehold mortgages, and subleases, as specified in subparts B, C, D, and E. (c) We will respond to Indian landowners’ concerns regarding the management of their land. (d) We will take emergency action as needed to preserve the value of the land. § 162.020 What may BIA do if an individual or entity takes possession of or uses Indian land without an approved lease or other proper authorization? If an individual or entity takes possession of, or uses, Indian land without a lease and a lease is required, the unauthorized possession or use is a trespass. We may take action to recover possession on behalf of the Indian landowners and pursue any additional remedies available under applicable law. The Indian landowner may pursue any available remedies under tribal law. § 162.021 May BIA take emergency action if Indian land is threatened? (a) We may take appropriate emergency action if there is a natural disaster or if an individual or entity causes or threatens to cause immediate E:\FR\FM\29NOP2.SGM 29NOP2 Federal Register / Vol. 76, No. 229 / Tuesday, November 29, 2011 / Proposed Rules and significant harm to Indian land. Emergency action may include judicial action seeking immediate cessation of the activity resulting in or threatening the harm. (b) We will make reasonable efforts to notify the Indian landowners before and after taking emergency action. In all cases, we will notify the Indian landowners after taking emergency action by constructive notice. § 162.022 May decisions under this part be appealed? Appeals from BIA decisions under this part may be taken pursuant to part 2 of this chapter, except where otherwise provided in this part. For purposes of appeals from BIA decisions under this part, ‘‘interested party’’ is defined as any person whose own direct economic interest is adversely affected by an action or decision. § 162.023 Who may I contact with questions concerning the leasing process? The Indian landowner or prospective lessee may contact the local BIA realty office with jurisdiction over the land for answers to questions about the leasing process. pmangrum on DSK3VPTVN1PROD with PROPOSALS2 § 162.024 What documentation may BIA require in approving, administering, and enforcing leases? (a) We may require that the parties provide any pertinent environmental and technical records, reports, and other information (e.g., records of lease payments), related to approval, administration, and enforcement of leases. (b) We will adopt environmental assessments and environmental impact statements prepared by another Federal agency, entity, or person under 43 CFR 46.320 and 42 CFR 1506.3, but may require a supplement. We shall use any reasonable evidence that another Federal agency has accepted the environmental report, including but not limited to, letters of approval or acceptance. (c) Upon our request, the parties must make appropriate records, reports, or information available for our inspection and duplication. We will keep confidential any such information that is marked confidential or proprietary and is exempt from public