25 CFR 162 Leases & Permits (Residential, Business, and Wind & Slar Resurce) The Bureau f Indian Affairs (BIA) is prpsing t revise 25 CFR 162, Leases and Permits, t add prvisins specific t residential leasing, business leasing, and wind and slar resurce leasing. Subparts Affected This prpsed rule wuld replace Subpart F, Nn-agricultural leases, with the fllwing: A new Subpart C, Residential Leases A new Subpart D, Business Leases A new Subpart E, Wind and Slar Resurce (WSR) Leases The prpsed rule wuld als update ther subparts t: Revise Subpart A, General Prvisins Mve existing Subpart E, Special Requirements fr Certain Indian Reservatins, t Subpart F Create a new Subpart G, Recrds. The prpsed rule des nt affect Subpart B, Agricultural Leases. Subpart B may be revised at a later time. In additin, t ensure that changes t Subpart A, General Prvisins, d nt affect agricultural lease regulatins, sme f the current Subpart A, General Prvisins sectins are being mved t Subpart B, where they apply nly t agricultural leases. Minr edits were made t these General Prvisins t delete redundancies and clarify that they nw apply nly t agricultural leases. The table belw shws where current sectins f the regulatin are in the prpsed rule. Table 1. Lcatin f Current Sectins in Prpsed Rule Current -- -- -- Subpart A Subpart A 162.100-162.113 General Prvisins Subpart B Subpart B 162.200-162.256 Agricultural Leases Subpart B Subpart -- Residential Leases Subpart C [Reserved] C Subpart -- Business Leases Subpart D [Reserved] D -- -- -- Subpart E Subpart 162.500 - Special Requirements fr Subpart E 162.503 Certain Indian F Reservatins Subpart 162.600 - F 162.623 --- --- --- Subpart G Prpsed 162.001 General Prvisins 162.024 162.101 162.113 162.200 162.256 162.301 162.371 162.401 162.471 162.501 162.596 162.600 162.603 Agricultural Leases (With edits and deletins as required) Agricultural Leases Residential Leases Business Leases Wind and Slar Resurce Leases Special Requirements fr Certain Indian Reservatins Nn-Agricultural Leases -- -- (Deleted) 162.701 162.703 Recrds 1
Overview f the Prpsed Rule The prpsed rule increases the efficiency and transparency f the BIA apprval prcess fr leasing f trust r restricted land ( Indian land ) and Gvernment land, increases flexibility in cmpensatin and valuatins, and facilitates management f direct pay. BIA Apprval Prcess Adds prvisins specific t residential, business, and wind and slar resurce leasing Eliminates the requirement fr BIA apprval f permits fr use f Indian land Impses time limits n BIA t act n submitted lease dcuments, summarized in Table 2. Table 2. BIA Apprval Timelines Type Actin Deadline fr BIA decisin: If BIA fails t meet the deadline, then: Residential Lease 30 days + additinal 30 days if needed Parties may take apprpriate Sectin 162.339 Business, WSR Lease 60 days +additinal 30 days if needed Parties may take apprpriate 162.439 162.565 WEEL* Lease 20 days +additinal 30 days if needed Parties may take apprpriate 162.529 All types Amendment 30 days + additinal 30 days if needed Amendment is deemed apprved 162.345 162.445 162.570 Assignment 30 days Parties may take apprpriate 162.349 162.449 162.574 Sublease 30 days + additinal 30 days if needed Sublease is deemed apprved 162.353 162.453 162.578 Leasehld mrtgage *Wind Energy Evaluatin Lease (WEEL) 30 days Parties may take apprpriate Establishes that BIA must apprve amendments, assignments, leasehld mrtgages, and subleases unless it finds a cmpelling reasn nt t, based n certain specified findings Cmpensatin and Valuatins Clarifies that, where individually wned land is leased fr less than fair market value, landwners that did nt cnsent will still receive fair market value Allws alternative frms f rental (ther than mnetary cmpensatin) under certain circumstances Restricts the need fr reviews f the lease cmpensatin (t determine if an adjustment is needed) t certain situatins 162.358 162.458 162.582 2
Overview f Prpsed Rule, Cmpensatin and Valuatins (cntinued) Allws leasing f tribal land fr less than fair market rental where the tribe negtiates the value and prvides a tribal certificatin (fr residential leasing) r authrizatin dcument (fr business and wind r slar resurce leasing), summarized in Table 3. Table 3. Lease Cmpensatin Requirements Type Tribal land Individually wned land Sectin Residential Business Any amunt negtiated by tribe (with certificatin) Any amunt negtiated by tribe (with authrizatin) FMR unless written waiver & best interest determinatin FMR unless waiver & best interest determinatin r predevelpment r cnstructin WEEL Any amunt negtiated by tribe. Any amunt negtiated by individual landwners WSR Any amunt negtiated by tribe (with authrizatin) FMR unless waiver & best interest determinatin r predevelpment r cnstructin 162.320 162.420 162.523 162.546 Prvides that BIA will nt cnduct a fair market value review r require a valuatin fr tribal land unless requested by the tribe, and will waive the valuatin requirement fr individually wned land under certain circumstances, summarized in Table 4. Table 4. Valuatin Requirements Type Tribal land Individually wned land Sectin Residential Business N valuatin required, if tribe submits certificatin N valuatin required, if tribe submits authrizatin. Required, unless BIA waives based n: 100% request and BIA determinatin that waiver is in landwners best interest (BIA has 30 days) Required, unless BIA waives based n: lease is fr religius, educatinal, recreatinal, cultural, r ther public purpse; and 100% request; and BIA determines it is in landwners best interest (BIA has 30 days) 162.321 162.421 WEEL N valuatin required. N valuatin required. 162.524 WSR N valuatin required, if tribe submits authrizatin. Required, unless landwners request ecnmic analysis, IEED prepares, and BIA determines it is in landwners best interest 162.547 Direct Pay Allws fr direct pay nly where there are 10 r fewer landwners, and all landwners cnsent t direct pay. Cntinues direct pay unless and until 100% f the wners agree t discntinue direct pay r certain circumstances ccur allwing discntinuatin with regard t ne specific landwner 3
Subpart A Summary f Majr Changes frm February 2011 Draft Regulatins Rerganized several prvisins Definitins Added definitins fr: equipment installatin plan, hldver, and restratin and reclamatin plan Deleted definitin fr 10-day shw cause letter and instead nted that it is ne type f a ntice f vilatin Revised several definitins Permit v. Lease Mved t 162.004. Deleted characteristics regarding surface disturbance and temprary r permanent imprvements. Added that permits must cmply with applicable envirnmental and cultural resurce laws. Revised prvisins regarding leasing f land subject t life estates Mved cnsent requirements frm individual subparts t subpart A ( 162.009 162.012) Nte - fr agricultural leases, the specific cnsent prvisins in subpart B still gvern Revised prvisin regarding what laws apply t this part t specify that State law applies nly in the specific areas and circumstances in Indian cuntry where Cngress r a Federal curt has made it expressly applicable Crss-Cutting Changes (Subparts C, D, E) Added explicit reference t statutry authrity fr lnger lease terms Deleted prhibitins n: Rights f first refusal Lease term cmmencing mre than ne year after date f apprval Payments Revised valuatin requirements, prviding that BIA will defer t tribe s negtiated cmpensatin fr tribal land when tribe prvides certificatin r authrizatin Revised fair market value requirements, prviding that BIA will nt require valuatins fr leases f tribal land, r under ther specified circumstances Added that direct pay fr an individual Indian landwner s payment may be suspended if that individual Indian landwner dies, is declared nn cmps mentis, becmes whereabuts unknwn, r wes a debt resulting in a trust Added that BIA may accept third-party checks frm financial institutins r Federal agencies Added that, fr tribal land, BIA will defer t the tribe s determinatin that alternative frms f rental are in its best interest, if the tribe submits a certificatin. Added that a review f the adequacy f rent is nt required if the lease prvides fr autmatic adjustments, and that neither a review f the adequacy f rent r autmatic adjustment is required under certain circumstances Mved prvisins gverning late payments and special fees fr delinquent payments t be with the ther Effectiveness, Cmpliance, and Enfrcement sectins 4
Crss-Cutting Changes (Subparts C, D, E) cntinued Bnding & Insurance Added a requirement that, befre BIA releases a bnd, BIA must cnfirm with the tribe/individual Indian landwners that the lessee cmplied with all lease bligatins Added prvisins fr a waiver f the insurance requirement under certain circumstances Lease Apprval Changed timeline fr BIA review f the lease t eliminate the indefinite extensin Added prvisins regarding making the lease available t the tribe r individual Indian landwner Clarified effective date f leases Deleted prvisins allwing BIA fficial t issue a shrt-term lease where a lease decisin is appealed Amendments, Assignments, Subleases, Leasehld Mrtgages Added that parties are respnsible fr prviding lease assignments and subleases fr file even where BIA apprval is nt required Revised sectins utlining prcess fr apprval f amendments, assignments, leasehld mrtgages, and subleases t separate cnsent frm apprval Deleted prvisins establishing that landwners are deemed t have cnsented, and instead prvided that a lease may allw fr deemed cnsent f amendments, assignments, subleases, and leasehld mrtgages Added that n cnsent t leasehld mrtgages is required if the lease cntains an authrizatin fr the leasehld mrtgage and states what law will apply in case f freclsure Deleted prvisins allwing BIA t request time t review leasehld mrtgages beynd 30 days Effectiveness, Cmpliance and Enfrcement Added that an assignment r sublease that des nt require landwner cnsent r BIA apprval is effective upn executin Added additinal ptins fr BIA actin if a lessee des nt cure a vilatin n time Added requirement fr BIA t ntify the tribe r individual landwners f a lease cancellatin Added that the Indian landwner may ntify BIA f gd faith negtiatins with a hldver lessee s BIA des nt take enfrcement actin (e.g., t recver pssessin) Imprvements Clarified that wnership f permanent imprvements n leased Indian land des nt affect whether a State r plitical subdivisin f State can tax the imprvements, and that the tribe with jurisdictin may tax imprvements Added requirement fr BIA t cnsult with the tribe/indian landwner befre taking certain actins, including remval f imprvements 5
Subpart C (Residential Leasing) Added explicit reference t mdel tribal lease frm develped by HUD, VA, USDA, and BIA Added an exemptin frm the bnd requirement fr leases fr public purpses Mandatry dcuments Deleted requirement fr a cnstructin schedule Deleted requirement fr an fficial r certified survey, instead allwing a public r private survey r legal descriptin Clarified that bth the tribe and BIA must apprve leases issued under the Native American Husing and Self-Determinatin Act (NAHASDA), regardless f whether the lease is fr tribal r individually-wned land Assignments Subleases Added that assignments may be made withut further cnsent r BIA apprval under certain circumstances if the assignee is a leasehld mrtgagee r its designee acquiring the lease either thrugh freclsure r by cnveyance. Added that where a sublease is fr husing fr public purpses, the lessee may sublease withut meeting cnsent requirements r btaining BIA apprval, where the lease prvides and BIA has apprved a general plan f develpment, a sublease frm, and rent schedule Subpart D (Business Leasing) Added that due diligence requirements d nt apply t leases fr religius, educatinal, recreatinal, cultural, r ther public purpses. Added that BIA may waive the bnd requirement where the lease is fr religius, educatinal, recreatinal, cultural r ther public purpses. Assignments Shrtened the time perid in which the lessee must ntify BIA f an assignment t certain parties Subleases Added that where the prpsed sublease is part f a cmmercial develpment r residential develpment, the lessee may sublease withut meeting cnsent requirements r btaining BIA apprval f the sublease, where the lease prvides and BIA has apprved a general plan, rent schedule and sublease frm, and the parties prvide BIA with a cpy f the executed sublease within 30 days Subpart E (Wind and Slar Leasing) Replaced the prvisin fr a WSR permit with a prvisin fr a shrt-term lease fr wind energy evaluatin ( wind energy evaluatin lease r WEEL) Clarified that tribes seeking t cnduct wind r slar resurce activities n their wn tribal land d nt need t btain BIA apprval Deleted requirement t prvide BIA with energy resurce infrmatin upn request Deleted restrictins n wh may negtiate with whm during ptin perid Deleted prvisins that wuld require WEEL cmpensatin based n acreage and established by Federal Register ntice, instead prviding that the WEEL will state the cmpensatin Deleted requirement fr a perfrmance bnd fr a WEEL Deleted requirement fr dcuments shwing lessee s financial capability Deleted prhibitin n amending, assigning, mrtgaging, r subleasing a WEEL 6