Text of S. 1684 (112th): Indian Tribal Energy Development and Self-Determination Act Amendments of 2012 (Reported by Senate Committee version)

Calendar No. 575

112th CONGRESS

2d Session

S. 1684

[Report No. 112–263]

IN THE SENATE OF THE UNITED STATES

October 12, 2011

Mr. Barrasso (for himself, Mr. Akaka, Mr. McCain, Mr. Hoeven, Mr. Thune, and Mr. Enzi) introduced the following bill; which was read twice and referred to the Committee on Indian Affairs

December 21, 2012

Reported by Mr. Akaka, with amendments

Omit the part struck through and insert the part printed in italic

A BILL

To amend the Indian Tribal Energy Development and Self-Determination Act of 2005, and for other purposes.

This Act may be cited as the Indian Tribal Energy Development and Self-Determination Act Amendments of ~~2011~~2012.

The table of contents for this Act is as follows:

Sec. 1. Short title.

Sec. 2. Table of contents.

TITLE I—Indian tribal energy development and self-determination act amendments

Sec. 101. Indian tribal energy resource development.

Sec. 102. Indian tribal energy resource regulation.

Sec. 103. Tribal energy resource agreements.

~~Sec. 104. Conforming amendments.~~

Sec. 104. Technical assistance for Indian tribal governments.

Sec. 105. Indian energy efficiency.

Sec. 106. Conforming amendments.

TITLE II—Miscellaneous amendments

Sec. 201. Issuance of preliminary permits or licenses.

~~Sec. 202. Tribal biomass demonstration project.~~

Sec. 202. Tribal biomass demonstration project.

Sec. 203. Weatherization program.

Sec. 204. Appraisals.

Sec. 205. Leases of restricted lands for Navajo Nation.

101.

(a)

Section 2602(a) of the Energy Policy Act of 1992 (25 U.S.C. 3502(a)) is amended—

(1)

in paragraph (2)—

(A)

in subparagraph (C), by striking and after the semicolon;

(B)

in subparagraph (D), by striking the period at the end and inserting ; and; and

(C)

by adding at the end the following:

(E)

consult with each applicable Indian tribe before adopting or approving a well spacing program or plan applicable to the energy resources of that Indian tribe or the members of that Indian tribe.

; and

(2)

by adding at the end the following:

(4)

(A)

In carrying out the program established by paragraph (1), the Secretary shall provide technical assistance to interested Indian tribes to develop energy plans, including—

(i)

plans for electrification;

(ii)

plans for oil and gas permitting, renewable energy permitting, energy efficiency, electricity generation, transmission planning, water planning, and other planning relating to energy issues;

(iii)

plans for the development of energy resources and to ensure the protection of natural, historic, and cultural resources; and

(iv)

any other plans that would assist an Indian tribe in the development or use of energy resources.

(B)

In establishing the program under paragraph (1), the Secretary shall work in cooperation with the Office of Indian Energy Policy and Programs of the Department of Energy.

(b)

Section 2602(b)(2) of the Energy Policy Act of 1992 (25 U.S.C. 3502(b)(2)) is amended—

(1)

in the matter preceding subparagraph (A), by inserting , intertribal organization, after Indian tribe;

(2)

by redesignating subparagraphs (C) and (D) as subparagraphs (D) and (E), respectively; and

(3)

by inserting after subparagraph (B) the following:

(C)

activities to increase the capacity of Indian tribes to manage energy development and energy efficiency programs;

(c)

Section 2602(c) of the Energy Policy Act of 1992 (25 U.S.C. 3502(c)) is amended—

(1)

in paragraph (1), by inserting or a tribal energy development organization after Indian tribe;

(2)

in paragraph (3)—

(A)

in the matter preceding subparagraph (A), by striking guarantee and inserting guaranteed;

(B)

in subparagraph (A), by striking or;

(C)

in subparagraph (B), by striking the period at the end and inserting ; or; and

(D)

by adding at the end the following:

(C)

a tribal energy development organization, from funds of the tribal energy development organization.

; and

(3)

in paragraph (5), by striking The Secretary of Energy may and inserting Not later than 1 year after the date of enactment of the Indian Tribal Energy Development and Self-Determination Act Amendments of ~~2011~~2012, the Secretary of Energy shall.

102.

Section 2603(c) of the Energy Policy Act of 1992 (25 U.S.C. 3503(c)) is amended—

(1)

in paragraph (1), by striking on the request of an Indian tribe, the Indian tribe and inserting on the request of an Indian tribe or a tribal energy development organization, the Indian tribe or tribal energy development organization; and

(2)

in paragraph (2)(B), by inserting or tribal energy development organization after Indian tribe.

103.

(a)

Section 2604 of the Energy Policy Act of 1992 (25 U.S.C. 3504) is amended—

(1)

in subsection (a)—

(A)

in paragraph (1)—

(i)

in subparagraph (A), by striking or after the semicolon at the end;

(ii)

in subparagraph (B)—

(I)

by striking clause (i) and inserting the following:

(i)

an electric production, generation, transmission, or distribution facility (including a facility that produces electricity from renewable energy resources) located on tribal land; or

; and

(II)

in clause (ii)—

(aa)

by inserting , at least a portion of which have been after energy resources;

(bb)

by inserting or produced from after developed on; and

(cc)

by striking and after the semicolon at the end and inserting or; and

(iii)

by adding at the end the following:

(C)

pooling, unitization, or communitization of the energy mineral resources of the Indian tribe located on tribal land with any other energy mineral resource (including energy mineral resources owned by the Indian tribe or an individual Indian in fee, trust, or restricted status or by any other persons or entities) if the owner of the resources has consented or consents to the pooling, unitization, or communitization of the other resources under any lease or agreement; and

; and

(B)

by striking paragraph (2) and inserting the following:

(2)

a lease or business agreement described in paragraph (1) shall not require review by, or the approval of, the Secretary under section 2103 of the Revised Statutes (25 U.S.C. 81), or any other provision of law, if the lease or business agreement—

(A)

was executed—

(i)

in accordance with the requirements of a tribal energy resource agreement in effect under subsection (e) (including the periodic review and evaluation of the activities of the Indian tribe under the agreement, to be conducted pursuant to subparagraphs (D) and (E) of subsection (e)(2)); or

(ii)

by the Indian tribe and a tribal energy development organization—

(I)

for which the Indian tribe has obtained certification pursuant to subsection (h); and

(II)

the majority of the interest in which is, and continues to be throughout the full term or renewal term (if any) of the lease or business agreement, owned and controlled by the Indian tribe (or the Indian tribe and 1 or more other Indian tribes); and

(B)

has a term that does not exceed—

(i)

30 years; or

(ii)

in the case of a lease for the production of oil resources, gas resources, or both, 10 years and as long thereafter as oil or gas is produced in paying quantities.

;

(2)

by striking subsection (b) and inserting the following:

(b)

An Indian tribe may grant a right-of-way over tribal land without review or approval by the Secretary if the right-of-way—

(1)

serves—

(A)

an electric production, generation, transmission, or distribution facility (including a facility that produces electricity from renewable energy resources) located on tribal land;

(B)

a facility located on tribal land that extracts, produces, processes, or refines energy resources; or

(C)

the purposes, or facilitates in carrying out the purposes, of any lease or agreement entered into for energy resource development on tribal land; and

(2)

was executed—

(A)

(B)

by the Indian tribe and a tribal energy development organization—

(i)

for which the Indian tribe has obtained certification pursuant to subsection (h); and

(ii)

the majority of the interest in which is, and continues to be throughout the full term or renewal term (if any) of the right-of-way, owned and controlled by the Indian tribe (or the Indian tribe and 1 or more other Indian tribes); and

(3)

has a term that does not exceed 30 years.

;

(3)

by striking subsection (d) and inserting the following:

(d)

No lease or business agreement entered into, or right-of-way granted, pursuant to this section shall be valid unless the lease, business agreement, or right-of-way is authorized by subsection (a) or (b).

;

(4)

in subsection (e)—

(A)

in paragraph (2)—

(i)

by striking (2)(A) and all that follows through the end of subparagraph (A) and inserting the following:

(2)

(A)

(i)

On the date that is 271 days after the date on which the Secretary receives a tribal energy resource agreement from an Indian tribe under paragraph (1), the tribal energy resource agreement shall take effect, unless the Secretary disapproves the tribal energy resource agreement under subparagraph (B).

(ii)

On the date that is 91 days after the date on which the Secretary receives a revised tribal energy resource agreement from an Indian tribe under paragraph (4)(B), the revised tribal energy resource agreement shall take effect, unless the Secretary disapproves the revised tribal energy resource agreement under subparagraph (B).

;

(ii)

in subparagraph (B)—

(I)

by striking (B) and all that follows through if— and inserting the following:

(B)

The Secretary shall disapprove a tribal energy resource agreement submitted pursuant to paragraph (1) or (4)(B) only if—

;

(II)

by striking clause (i) and inserting the following:

(i)

the Secretary determines that the Indian tribe has not demonstrated that the Indian tribe has sufficient capacity to regulate the development of the specific 1 or more energy resources identified for development under the tribal energy resource agreement submitted by the Indian tribe;

;

(III)

by redesignating clause (iii) as clause (iv) and indenting appropriately;

(IV)

by striking clause (ii) and inserting the following:

(ii)

a provision of the tribal energy resource agreement would violate applicable Federal law (including regulations) or a treaty applicable to the Indian tribe;

(iii)

the tribal energy resource agreement does not include 1 or more provisions required under subparagraph (D); or

; and

(V)

in clause (iv) (as redesignated by subclause (III))—

(aa)

in the matter preceding subclause (I), by striking includes and all that follows through section— and inserting does not include provisions that, with respect to any lease, business agreement, or right-of-way to which the tribal energy resource agreement applies—; and

(bb)

in subclause (XVI)(bb), by striking or tribal;

(iii)

in subparagraph (C)—

(I)

in the matter preceding clause (i), by inserting the approval of after with respect to;

(II)

by striking clause (ii) and inserting the following:

(ii)

the identification of mitigation measures, if any, that, in the discretion of the Indian tribe, the Indian tribe might propose for incorporation into the lease, business agreement, or right-of-way;

;

(III)

in clause (iii)(I), by striking proposed action and inserting approval of the lease, business agreement, or right-of-way;

(IV)

in clause (iv), by striking and at the end;

(V)

in clause (v), by striking the period at the end and inserting ; and; and

(VI)

by adding at the end the following:

(vi)

the identification of specific classes or categories of actions, if any, determined by the Indian tribe not to have significant environmental effects.

;

(iv)

in subparagraph (D)(ii), by striking subparagraph (B)(iii)(XVI) and inserting subparagraph (B)(iv)(XV); and

(v)

by adding at the end the following:

(F)

A tribal energy resource agreement that takes effect pursuant to this subsection shall remain in effect to the extent any provision of the tribal energy resource agreement is consistent with applicable Federal law (including regulations), unless the tribal energy resource agreement is—

(i)

rescinded by the Secretary pursuant to paragraph (7)(D)(iii)(II); or

(ii)

voluntarily rescinded by the Indian tribe pursuant to the regulations promulgated under paragraph (8)(B) (or successor regulations).

(G)

(i)

The Secretary shall make a capacity determination under subparagraph (B)(i) not later than 120 days after the date on which the Indian tribe submits to the Secretary the tribal energy resource agreement of the Indian tribe pursuant to paragraph (1), unless the Secretary and the Indian tribe mutually agree to an extension of the time period for making the determination.

(ii)

Any determination that the Indian tribe lacks the requisite capacity shall be treated as a disapproval under paragraph (4) and, not later than 10 days after the date of the determination, the Secretary shall provide to the Indian tribe—

(I)

a detailed, written explanation of each reason for the determination; and

(II)

a description of the steps that the Indian tribe should take to demonstrate sufficient capacity.

(H)

Notwithstanding any other provision of this section, an Indian tribe shall be considered to have demonstrated sufficient capacity under subparagraph (B)(i) to regulate the development of the specific 1 or more energy resources of the Indian tribe identified for development under the tribal energy resource agreement submitted by the Indian tribe pursuant to paragraph (1) if—

(i)

the Secretary determines that—

(I)

the Indian tribe has carried out a contract or compact under title I or IV of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.); and

(II)

for a period of not less than 3 consecutive years ending on the date on which the Indian tribe submits the tribal energy resource agreement of the Indian tribe pursuant to paragraph (1) or (4)(B), the contract or compact—

(aa)

has been carried out by the Indian tribe without material audit exceptions (or without any material audit exceptions that were not corrected within the 3-year period); and

(bb)

has included programs or activities relating to the management of tribal land; or

(ii)

the Secretary fails to make the determination within the time allowed under subparagraph (G)(i) (including any extension of time agreed to under that subparagraph).

;

(B)

in paragraph (4), by striking date of disapproval and all that follows through the end of subparagraph (C) and inserting the following:

date of disapproval, provide the Indian tribe with—

(A)

a detailed, written explanation of—

(i)

each reason for the disapproval; and

(ii)

the revisions or changes to the tribal energy resource agreement necessary to address each reason; and

(B)

an opportunity to revise and resubmit the tribal energy resource agreement.

;

(C)

in paragraph (6)—

(i)

in subparagraph (B)—

(I)

by striking (B) Subject to and inserting the following:

(B)

Subject only to

; and

(II)

by striking subparagraph (D) and inserting subparagraphs (C) and (D);

(ii)

in subparagraph (C), in the matter preceding clause (i), by inserting to perform the obligations of the Secretary under this section and before to ensure; and

(iii)

in subparagraph (D), by adding at the end the following:

(iii)

Nothing in this section absolves, limits, or otherwise affects the liability, if any, of the United States for any—

(I)

term of any lease, business agreement, or right-of-way under this section that is not a negotiated term; or

(II)

losses that are not the result of a negotiated term, including losses resulting from the failure of the Secretary to perform an obligation of the Secretary under this section.

; and

(D)

in paragraph (7)—

(i)

in subparagraph (A), by striking has demonstrated and inserting the Secretary determines has demonstrated with substantial evidence;

(ii)

in subparagraph (B), by striking any tribal remedy and inserting all remedies (if any) provided under the laws of the Indian tribe;

(iii)

in subparagraph (D)—

(I)

in clause (i), by striking determine and all that follows through the end of the clause and inserting the following:

determine—

(I)

whether the petitioner is an interested party; and

(II)

if the petitioner is an interested party, whether the Indian tribe is not in compliance with the tribal energy resource agreement as alleged in the petition.

;

(II)

in clause (ii), by striking determination and inserting determinations; and

(III)

in clause (iii), in the matter preceding subclause (I) by striking agreement the first place it appears and all that follows through , including and inserting agreement pursuant to clause (i), the Secretary shall only take such action as the Secretary determines necessary to address the claims of noncompliance made in the petition, including;

(iv)

in subparagraph (E)(i), by striking the manner in which and inserting , with respect to each claim made in the petition, how; and

(v)

by adding at the end the following:

(G)

Notwithstanding any other provision of this paragraph, the Secretary shall dismiss any petition from an interested party that has agreed with the Indian tribe to a resolution of the claims presented in the petition of that party.

;

(5)

by redesignating subsection (g) as subsection (j); and

(6)

by inserting after subsection (f) the following:

(g)

(1)

Any amounts that the Secretary would otherwise expend to operate or carry out any program, function, service, or activity (or any portion of a program, function, service, or activity) of the Department that, as a result of an Indian tribe carrying out activities under a tribal energy resource agreement, the Secretary does not expend, the Secretary shall, at the request of the Indian tribe, make available to the Indian tribe in accordance with this subsection.

(2)

The Secretary shall make the amounts described in paragraph (1) available to an Indian tribe through an annual written funding agreement that is negotiated and entered into with the Indian tribe that is separate from the tribal energy resource agreement.

(3)

Notwithstanding paragraph (1)—

(A)

the provision of amounts to an Indian tribe under this subsection is subject to the availability of appropriations; and

(B)

the Secretary shall not be required to reduce amounts for programs, functions, services, or activities that serve any other Indian tribe to make amounts available to an Indian tribe under this subsection.

(4)

(A)

The Secretary shall calculate the amounts under paragraph (1) in accordance with the regulations adopted under section 103(b) of the Indian Tribal Energy Development and Self-Determination Act Amendments of ~~2011~~2012.

(B)

The effective date or implementation of a tribal energy resource agreement under this section shall not be delayed or otherwise affected by—

(i)

a delay in the promulgation of regulations under section 103(b) of the Indian Tribal Energy Development and Self-Determination Act Amendments of ~~2011~~2012;

(ii)

the period of time needed by the Secretary to make the calculation required under paragraph (1); or

(iii)

the adoption of a funding agreement under paragraph (2).

(h)

(1)

Not later than 90 days after the date on which an Indian tribe submits an application for certification of a tribal energy development organization in accordance with regulations promulgated under section 103(b) of the Indian Tribal Energy Development and Self-Determination Act Amendments of ~~2011~~2012, the Secretary shall approve or disapprove the application.

(2)

The Secretary shall approve an application for certification if—

(A)

(i)

the Indian tribe has carried out a contract or compact under title I or IV of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.); and

(ii)

for a period of not less than 3 consecutive years ending on the date on which the Indian tribe submits the application, the contract or compact—

(I)

has been carried out by the Indian tribe without material audit exceptions (or without any material audit exceptions that were not corrected within the 3-year period); and

(II)

has included programs or activities relating to the management of tribal land; and

(B)

(i)

the tribal energy development organization is organized under the laws of the Indian tribe and subject to the jurisdiction and authority of the Indian tribe;

(ii)

the majority of the interest in the tribal energy development organization is owned and controlled by the Indian tribe (or the Indian tribe and 1 or more other Indian tribes); and

(iii)

the organizing document of the tribal energy development organization requires that the Indian tribe (or the Indian tribe and 1 or more other Indian tribes) own and control at all times a majority of the interest in the tribal energy development organization.

(3)

If the Secretary approves an application for certification pursuant to paragraph (2), the Secretary shall, not more than 10 days after making the determination—

(A)

issue a certification stating that—

(i)

the tribal energy development organization is organized under the laws of the Indian tribe and subject to the jurisdiction and authority of the Indian tribe;

(ii)

the majority of the interest in the tribal energy development organization is owned and controlled by the Indian tribe (or the Indian tribe and 1 or more other Indian tribes);

(iii)

(iv)

the certification is issued pursuant this subsection;

(B)

deliver a copy of the certification to the Indian tribe; and

(C)

publish the certification in the Federal Register.

(i)

Nothing in this section waives the sovereign immunity of an Indian tribe.

(b)

Not later than 1 year after the date of enactment of the Indian Tribal Energy Development and Self-Determination Act Amendments of ~~2011~~2012, the Secretary shall promulgate or update any regulations that are necessary to implement this section, including provisions to implement—

(1)

section 2604(g) of the Energy Policy Act of 1992 (25 U.S.C. 3504(g)) including the manner in which the Secretary, at the request of an Indian tribe, shall—

(A)

identify the programs, functions, services, and activities (or any portions of programs, functions, services, or activities) that the Secretary will not have to operate or carry out as a result of the Indian tribe carrying out activities under a tribal energy resource agreement;

(B)

identify the amounts that the Secretary would have otherwise expended to operate or carry out each program, function, service, and activity (or any portion of a program, function, service, or activity) identified pursuant to subparagraph (A); and

(C)

provide to the Indian tribe a list of the programs, functions, services, and activities (or any portions of programs, functions, services, or activities) identified pursuant subparagraph (A) and the amounts associated with each program, function, service, and activity (or any portion of a program, function, service, or activity) identified pursuant to subparagraph (B); and

(2)

section 2604(h) of the Energy Policy Act of 1992 (25 U.S.C. 3504(h)), including the process to be followed by, and any applicable criteria and documentation required for, an Indian tribe to request and obtain the certification described in that section.

104.

(a)

Section 2601 of the Energy Policy Act of 1992 (25 U.S.C. 3501) is amended by striking paragraph (11) and inserting the following:

~~(11)~~

~~The term tribal energy development organizationmeans—~~

(11)

The term tribal energy development organization means—

(A)

any enterprise, partnership, consortium, corporation, or other type of business organization that is engaged in the development of energy resources and is wholly owned by an Indian tribe (including an organization incorporated pursuant to section 17 of the Indian Reorganization Act of 1934 (25 U.S.C. 477) or section 3 of the Act of June 26, 1936 (25 U.S.C. 503) (commonly known as the Oklahoma Indian Welfare Act)); or

(B)

any organization of 2 or more entities, at least 1 of which is an Indian tribe, that has the written consent of the governing bodies of all Indian tribes participating in the organization to apply for a grant, loan, or other assistance under section 2602 or to enter into a lease or business agreement with, or acquire a right-of-way from, an Indian tribe pursuant to subsection (a)(2)(A)(ii) or (b)(2)(B) of section 2604.

(b)

Section 2602 of the Energy Policy Act of 1992 (25 U.S.C. 3502) is amended—

(1)

in subsection (a)—

(A)

in paragraph (1), by striking tribal energy resource development organizations and inserting tribal energy development organizations; and

(B)

in paragraph (2), by striking tribal energy resource development organizations each place it appears and inserting tribal energy development organizations; and

(2)

in subsection (b)(2), by striking tribal energy resource development organization and inserting tribal energy development organization.

(c)

Section 2606(c)(3) of the Energy Policy Act of 1992 (25 U.S.C. 3506(c)(3)) is amended by striking energy resource development and inserting energy development.

(d)

Section 2604(e) of the Energy Policy Act of 1992 (25 U.S.C. 3504(e)) is amended—

(1)

in paragraph (1)—

(A)

by striking (1) On the date and inserting the following:

(1)

On the date

; and

(B)

by striking for approval;

(2)

in paragraph (2)(B)(iv) (as redesignated by section 4(a)(4)(A)(ii)(III))—

(A)

in subclause (XIV), by inserting and after the semicolon at the end;

(B)

by striking subclause (XV); and

(C)

by redesignating subclause (XVI) as subclause (XV);

(3)

in paragraph (3)—

(A)

by striking (3) The Secretary and inserting the following:

(3)

The Secretary

; and

(B)

by striking for approval;

(4)

in paragraph (4), by striking (4) If the Secretary and inserting the following:

(4)

If the Secretary

;

(5)

in paragraph (5)—

(A)

by striking (5) If an Indian tribe and inserting the following:

(5)

If an Indian tribe

; and

(B)

in the matter preceding subparagraph (A), by striking approved and inserting in effect;

(6)

in paragraph (6)—

(A)

by striking (6)(A) In carrying out and inserting the following:

(6)

(A)

In carrying out

;

(B)

in subparagraph (A), by indenting clauses (i) and (ii) appropriately;

(C)

in subparagraph (B), by striking approved and inserting in effect; and

(D)

in subparagraph (D)—

(i)

in clause (i), by striking an approved tribal energy resource agreement and inserting a tribal energy resource agreement in effect under this section; and

(ii)

in clause (ii), by striking approved by the Secretary and inserting in effect; and

(7)

in paragraph (7)—

(A)

by striking (7)(A) In this paragraph and inserting the following:

(7)

(A)

In this paragraph

;

(B)

in subparagraph (A), by striking approved by the Secretary and inserting in effect;

(C)

in subparagraph (B), by striking approved by the Secretary and inserting in effect; and

(D)

in subparagraph (D)(iii)—

(i)

in subclause (I), by striking approved; and

(ii)

in subclause (II)—

(I)

by striking approval of in the first place it appears; and

(II)

by striking subsection (a) or (b) and inserting subsection (a)(2)(A)(i) or (b)(2)(A).

104.

Section 2602(b) of the Energy Policy Act of 1992 (25 U.S.C. 3502(b)) is amended—

(1)

by redesignating paragraphs (3) through (6) as paragraphs (4) through (7), respectively; and

(2)

by inserting after paragraph (2) the following:

(3)

In addition to providing grants to Indian tribes under this subsection, the Secretary shall collaborate with the Directors of the National Laboratories in making the full array of technical and scientific resources of the Department of Energy available for tribal energy activities and projects.

105.

Part D of title III of the Energy Policy and Conservation Act (42 U.S.C. 6321 et seq.) is amended by adding at the end the following:

367.

(a)

In this section, the term Indian tribe has the meaning given the term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b).

(b)

The purpose of the grants provided under subsection (d) shall be to assist Indian tribes in implementing strategies—

(1)

to reduce fossil fuel emissions created as a result of activities within the jurisdictions of eligible entities in a manner that—

(A)

is environmentally sustainable; and

(B)

to the maximum extent practicable, maximizes benefits for Indian tribes and tribal members;

(2)

to increase the energy efficiency of Indian tribes and tribal members; and

(3)

to improve energy efficiency in—

(A)

the transportation sector;

(B)

the building sector; and

(C)

other appropriate sectors.

(c)

Of the amount of funds authorized to be appropriated for each fiscal year under section 365(f) to carry out this part, the Secretary shall allocate not less than 2.5 percent of the funds for each fiscal year to be distributed to Indian tribes in accordance with subsection (d).

(d)

Of the amounts available for distribution under subsection (c), the Secretary shall establish a competitive process for providing grants under this section that gives priority to projects that—

(1)

increase energy efficiency and energy conservation rather than new energy generation projects;

(2)

integrate cost-effective renewable energy with energy efficiency;

(3)

move beyond the planning stage and are ready for implementation;

(4)

clearly articulate and demonstrate the ability to achieve measurable goals;

(5)

have the potential to make an impact in the government buildings, infrastructure, communities, and land of an Indian tribe; and

(6)

maximize the creation or retention of jobs on Indian land.

(e)

An Indian tribe may use a grant received under this section to carry out activities to achieve the purposes described in subsection (b), including—

(1)

the development and implementation of energy efficiency and conservation strategies;

(2)

the retention of technical consultant services to assist the Indian tribe in the development of an energy efficiency and conservation strategy, including—

(A)

the formulation of energy efficiency, energy conservation, and energy usage goals;

(B)

the identification of strategies to achieve the goals—

(i)

through efforts to increase energy efficiency and reduce energy consumption; and

(ii)

by encouraging behavioral changes among the population served by the Indian tribe;

(C)

the development of methods to measure progress in achieving the goals;

(D)

the development and publication of annual reports to the population served by the eligible entity describing—

(i)

the strategies and goals; and

(ii)

the progress made in achieving the strategies and goals during the preceding calendar year; and

(E)

other services to assist in the implementation of the energy efficiency and conservation strategy;

(3)

the implementation of residential and commercial building energy audits;

(4)

the establishment of financial incentive programs for energy efficiency improvements;

(5)

the provision of grants for the purpose of performing energy efficiency retrofits;

(6)

the development and implementation of energy efficiency and conservation programs for buildings and facilities within the jurisdiction of the Indian tribe, including—

(A)

the design and operation of the programs;

(B)

the identification of the most effective methods of achieving maximum participation and efficiency rates;

(C)

the education of the members of an Indian tribe;

(D)

the measurement and verification protocols of the programs; and

(E)

the identification of energy efficient technologies;

(7)

the development and implementation of programs to conserve energy used in transportation, including—

(A)

the use of—

(i)

flextime by employers; or

(ii)

satellite work centers;

(B)

the development and promotion of zoning guidelines or requirements that promote energy-efficient development;

(C)

the development of infrastructure, including bike lanes, pathways, and pedestrian walkways;

(D)

the synchronization of traffic signals; and

(E)

other measures that increase energy efficiency and decrease energy consumption;

(8)

the development and implementation of building codes and inspection services to promote building energy efficiency;

(9)

the application and implementation of energy distribution technologies that significantly increase energy efficiency, including—

(A)

distributed resources; and

(B)

district heating and cooling systems;

(10)

the implementation of activities to increase participation and efficiency rates for material conservation programs, including source reduction, recycling, and recycled content procurement programs that lead to increases in energy efficiency;

(11)

the purchase and implementation of technologies to reduce, capture, and, to the maximum extent practicable, use methane and other greenhouse gases generated by landfills or similar sources;

(12)

the replacement of traffic signals and street lighting with energy-efficient lighting technologies, including—

(A)

light-emitting diodes; and

(B)

any other technology of equal or greater energy efficiency;

(13)

the development, implementation, and installation on or in any government building of the Indian tribe of onsite renewable energy technology that generates electricity from renewable resources, including—

(A)

solar energy;

(B)

wind energy;

(C)

fuel cells; and

(D)

biomass; and

(14)

any other appropriate activity, as determined by the Secretary, in consultation with—

(A)

the Secretary of the Interior;

(B)

the Administrator of the Environmental Protection Agency;

(C)

the Secretary of Transportation;

(D)

the Secretary of Housing and Urban Development; and

(E)

Indian tribes.

(f)

(1)

(A)

To apply for a grant under this section, an Indian tribe shall submit to the Secretary a proposed energy efficiency and conservation strategy in accordance with this paragraph.

(B)

A proposed strategy described in subparagraph (A) shall include a description of—

(i)

the goals of the Indian tribe for increased energy efficiency and conservation in the jurisdiction of the Indian tribe; and

(ii)

the manner in which—

(I)

the proposed strategy complies with the restrictions described in subsection (e); and

(II)

a grant will allow the Indian tribe fulfill the goals of the proposed strategy.

(2)

(A)

The Secretary shall approve or disapprove a proposed strategy under paragraph (1) by not later than 120 days after the date of submission of the proposed strategy.

(B)

If the Secretary disapproves a proposed strategy under paragraph (1)—

(i)

the Secretary shall provide to the Indian tribe the reasons for the disapproval; and

(ii)

the Indian tribe may revise and resubmit the proposed strategy as many times as necessary, until the Secretary approves a proposed strategy.

(C)

The Secretary shall not provide to an Indian tribe a grant under this section until a proposed strategy is approved by the Secretary.

(3)

Of the amounts provided to an Indian tribe under this section, an Indian tribe may use for administrative expenses, excluding the cost of the reporting requirements of this section, an amount equal to the greater of—

(A)

10 percent of the administrative expenses; or

(B)

$75,000.

(4)

Not later than 2 years after the date on which funds are initially provided to an Indian tribe under this section, and annually thereafter, the Indian tribe shall submit to the Secretary a report describing—

(A)

the status of development and implementation of the energy efficiency and conservation strategy; and

(B)

to the maximum extent practicable, an assessment of energy efficiency gains within the jurisdiction of the Indian tribe.

106.

(a)

Section 2601 of the Energy Policy Act of 1992 (25 U.S.C. 3501) is amended by striking paragraph (11) and inserting the following:

(11)

The term tribal energy development organization means—

(A)

(B)

(b)

Section 2602 of the Energy Policy Act of 1992 (25 U.S.C. 3502) is amended—

(1)

in subsection (a)—

(A)

in paragraph (1), by striking tribal energy resource development organizations and inserting tribal energy development organizations; and

(B)

in paragraph (2), by striking tribal energy resource development organizations each place it appears and inserting tribal energy development organizations; and

(2)

in subsection (b)(2), by striking tribal energy resource development organization and inserting tribal energy development organization.

(c)

Section 2606(c)(3) of the Energy Policy Act of 1992 (25 U.S.C. 3506(c)(3)) is amended by striking energy resource development and inserting energy development.

(d)

Section 2604(e) of the Energy Policy Act of 1992 (25 U.S.C. 3504(e)) is amended—

(1)

in paragraph (1)—

(A)

by striking (1) On the date and inserting the following:

(1)

On the date

; and

(B)

by striking for approval;

(2)

in paragraph (2)(B)(iv) (as redesignated by section 4(a)(4)(A)(ii)(III))—

(A)

in subclause (XIV), by inserting and after the semicolon at the end;

(B)

by striking subclause (XV); and

(C)

by redesignating subclause (XVI) as subclause (XV);

(3)

in paragraph (3)—

(A)

by striking (3) The Secretary and inserting the following:

(3)

The Secretary

; and

(B)

by striking for approval;

(4)

in paragraph (4), by striking (4) If the Secretary and inserting the following:

(4)

If the Secretary

;

(5)

in paragraph (5)—

(A)

by striking (5) If an Indian tribe and inserting the following:

(5)

If an Indian tribe

; and

(B)

in the matter preceding subparagraph (A), by striking approved and inserting in effect;

(6)

in paragraph (6)—

(A)

by striking (6)(A) In carrying out and inserting the following:

(6)

(A)

In carrying out

;

(B)

in subparagraph (A), by indenting clauses (i) and (ii) appropriately;

(C)

in subparagraph (B), by striking approved and inserting in effect; and

(D)

in subparagraph (D)—

(i)

in clause (i), by striking an approved tribal energy resource agreement and inserting a tribal energy resource agreement in effect under this section; and

(ii)

in clause (ii), by striking approved by the Secretary and inserting in effect; and

(7)

in paragraph (7)—

(A)

by striking (7)(A) In this paragraph and inserting the following:

(7)

(A)

In this paragraph

;

(B)

in subparagraph (A), by striking approved by the Secretary and inserting in effect;

(C)

in subparagraph (B), by striking approved by the Secretary and inserting in effect; and

(D)

in subparagraph (D)(iii)—

(i)

in subclause (I), by striking approved; and

(ii)

in subclause (II)—

(I)

by striking approval of in the first place it appears; and

(II)

by striking subsection (a) or (b) and inserting subsection (a)(2)(A)(i) or (b)(2)(A).

201.

(a)

Section 7(a) of the Federal Power Act (16 U.S.C. 800(a)) is amended by striking States and municipalities and inserting States, Indian tribes, and municipalities.

(b)

The amendment made by subsection (a) shall not affect—

(1)

any preliminary permit or original license issued before the date of enactment of the Indian Tribal Energy Development and Self-Determination Act Amendments of ~~2011~~2012; or

(2)

an application for an original license, if the Commission has issued a notice accepting that application for filing pursuant to section 4.32(d) of title 18, Code of Federal Regulations (or successor regulations), before the date of enactment of the Indian Tribal Energy Development and Self-Determination Act Amendments of ~~2011~~2012.

(c)

For purposes of section 7(a) of the Federal Power Act (16 U.S.C. 800(a)) (as amended by subsection (a)), the term Indian tribe has the meaning given the term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b).

202.

The Tribal Forest Protection Act of 2004 (Public Law 108–278; 118 Stat. 868) is amended—

(1)

in section 2(a), by striking In this section and inserting In this Act; and

(2)

by adding at the end the following:

(a)

For each of fiscal years 2013 through 2017, the Secretary shall enter into stewardship contracts or similar agreements (excluding direct service contracts) with Indian tribes to carry out demonstration projects to promote biomass energy production (including biofuel, heat, and electricity generation) on Indian forest land and in nearby communities by providing reliable supplies of woody biomass from Federal land.

(b)

In each fiscal year for which projects are authorized, at least 4 new demonstration projects that meet the eligibility criteria described in subsection (c) shall be carried out under contracts or agreements described in subsection (a).

(c)

To be eligible to enter into a contract or agreement under this subsection, an Indian tribe shall submit to the Secretary an application—

(1)

containing such information as the Secretary may require; and

(2)

that includes a description of—

(A)

the Indian forest land or rangeland under the jurisdiction of the Indian tribe; and

(B)

the demonstration project proposed to be carried out by the Indian tribe.

(d)

In evaluating the applications submitted under subsection (c), the Secretary shall—

(1)

take into consideration—

(A)

the factors set forth in paragraphs (1) and (2) of section 2(e); and

(B)

whether a proposed project would—

(i)

increase the availability or reliability of local or regional energy;

(ii)

enhance the economic development of the Indian tribe;

(iii)

result in or improve the connection of electric power transmission facilities serving the Indian tribe with other electric transmission facilities;

(iv)

improve the forest health or watersheds of Federal land or Indian forest land or rangeland;

(v)

demonstrate new investments in infrastructure; or

(vi)

otherwise promote the use of woody biomass; and

(2)

exclude from consideration any merchantable logs that have been identified by the Secretary for commercial sale.

(e)

The Secretary shall—

(1)

ensure that the criteria described in subsection (c) are publicly available by not later than 120 days after the date of enactment of this section; and

(2)

to the maximum extent practicable, consult with Indian tribes and appropriate intertribal organizations likely to be affected in developing the application and otherwise carrying out this section.

(f)

Not later than September 20, 2015, the Secretary shall submit to Congress a report that describes, with respect to the reporting period—

(1)

each individual tribal application received under this section; and

(2)

each contract and agreement entered into pursuant to this section.

(g)

In carrying out a contract or agreement under this section, on receipt of a request from an Indian tribe, the Secretary shall incorporate into the contract or agreement, to the extent practicable, management plans (including forest management and integrated resource management plans) in effect on the Indian forest land or rangeland of the respective Indian tribe.

(h)

A contract or agreement entered into under this section—

(1)

shall be for a term of not more than 20 years; and

(2)

may be renewed in accordance with this section for not more than an additional 10 years.

202.

(a)

The purpose of this section is to establish a biomass demonstration project for federally recognized Indian tribes and Alaska Native corporations to promote biomass energy production.

(b)

The Tribal Forest Protection Act of 2004 (Public Law 108–278; 118 Stat. 868) is amended—

(1)

in section 2(a), by striking In this section and inserting In this Act; and

(2)

by adding at the end the following:

(a)

(b)

(c)

To be eligible to enter into a contract or agreement under this section, an Indian tribe shall submit to the Secretary an application—

(1)

containing such information as the Secretary may require; and

(2)

that includes a description of—

(A)

the Indian forest land or rangeland under the jurisdiction of the Indian tribe; and

(B)

the demonstration project proposed to be carried out by the Indian tribe.

(d)

In evaluating the applications submitted under subsection (c), the Secretary shall—

(1)

take into consideration—

(A)

the factors set forth in paragraphs (1) and (2) of section 2(e); and

(B)

whether a proposed project would—

(i)

increase the availability or reliability of local or regional energy;

(ii)

enhance the economic development of the Indian tribe;

(iii)

result in or improve the connection of electric power transmission facilities serving the Indian tribe with other electric transmission facilities;

(iv)

improve the forest health or watersheds of Federal land or Indian forest land or rangeland;

(v)

demonstrate new investments in infrastructure; or

(vi)

otherwise promote the use of woody biomass; and

(2)

exclude from consideration any merchantable logs that have been identified by the Secretary for commercial sale.

(e)

The Secretary shall—

(1)

ensure that the criteria described in subsection (c) are publicly available by not later than 120 days after the date of enactment of this section; and

(2)

to the maximum extent practicable, consult with Indian tribes and appropriate intertribal organizations likely to be affected in developing the application and otherwise carrying out this section.

(f)

Not later than September 20, 2015, the Secretary shall submit to Congress a report that describes, with respect to the reporting period—

(1)

each individual tribal application received under this section; and

(2)

each contract and agreement entered into pursuant to this section.

(g)

In carrying out a contract or agreement under this section, on receipt of a request from an Indian tribe, the Secretary shall incorporate into the contract or agreement, to the maximum extent practicable, management plans (including forest management and integrated resource management plans) in effect on the Indian forest land or rangeland of the respective Indian tribe.

(h)

A contract or agreement entered into under this section—

(1)

shall be for a term of not more than 20 years; and

(2)

may be renewed in accordance with this section for not more than an additional 10 years.

(c)

(1)

In this subsection:

(A)

The term Alaska Native corporation has the meaning given the term Native Corporation in section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602).

(B)

The term “Federal land” means—

(i)

land of the National Forest System (as defined in section 11(a) of the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1609(a)) administered by the Secretary of Agriculture, acting through the Chief of the Forest Service; and

(ii)

public lands (as defined in section 103 of the Federal Land Policy Management Act of 1976 (43 U.S.C. 1702)), the surface of which is administered by the Secretary of the Interior, acting through the Director of the Bureau of Land Management.

(C)

The term “forest land” means land that—

(i)

is conveyed to an Alaska Native corporation pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.); and

(ii)

(I)

is considered chiefly valuable for the production of forest products or to maintain watershed or other land values enhanced by a forest cover (including commercial and noncommercial timberland and woodland), regardless of whether a formal inspection and land classification action has been taken; or

(II)

formerly had a forest or vegetative cover that is capable of restoration.

(D)

The term “Secretary” means—

(i)

the Secretary of Agriculture, with respect to land under the jurisdiction of the Forest Service; and

(ii)

the Secretary of the Interior, with respect to land under the jurisdiction of the Bureau of Land Management.

(2)

For each of fiscal years 2013 through 2017, the Secretary shall enter into a stewardship contract or similar agreement (excluding a direct service contract) with 1 or more Alaska Native corporations to carry out a demonstration project to promote biomass energy production (including biofuel, heat, and electricity generation) on forest land of the Alaska Native corporations and in nearby communities by providing reliable supplies of woody biomass from Federal land.

(3)

In each fiscal year for which projects are authorized, at least 1 new demonstration project that meets the eligibility criteria described in paragraph (4) shall be carried out under contracts or agreements described in paragraph (2).

(4)

To be eligible to enter into a contract or agreement under this subsection, an Alaska Native corporation shall submit to the Secretary an application—

(A)

containing such information as the Secretary may require; and

(B)

that includes a description of—

(i)

the forest land or rangeland under the jurisdiction of the Alaska Native corporation; and

(ii)

the demonstration project proposed to be carried out by the Alaska Native corporation.

(5)

In evaluating the applications submitted under paragraph (4), the Secretary shall—

(A)

take into consideration whether a proposed project would—

(i)

increase the availability or reliability of local or regional energy;

(ii)

enhance the economic development of the Alaska Native corporation;

(iii)

result in or improve the connection of electric power transmission facilities serving the Alaska Native corporation with other electric transmission facilities;

(iv)

improve the forest health or watersheds of Federal land or Alaska Native corporation forest land or rangeland;

(v)

demonstrate new investments in infrastructure; or

(vi)

otherwise promote the use of woody biomass; and

(B)

exclude from consideration any merchantable logs that have been identified by the Secretary for commercial sale.

(6)

The Secretary shall—

(A)

ensure that the criteria described in paragraph (4) are publicly available by not later than 120 days after the date of enactment of this subsection; and

(B)

to the maximum extent practicable, consult with Alaska Native corporations and appropriate Alaska Native organizations likely to be affected in developing the application and otherwise carrying out this subsection.

(7)

Not later than September 20, 2015, the Secretary shall submit to Congress a report that describes, with respect to the reporting period—

(A)

each individual application received under this subsection; and

(B)

each contract and agreement entered into pursuant to this subsection.

(8)

A contract or agreement entered into under this subsection—

(A)

shall be for a term of not more than 20 years; and

(B)

may be renewed in accordance with this subsection for not more than an additional 10 years.

203.

Section 413(d) of the Energy Conservation and Production Act (42 U.S.C. 6863(d)) is amended—

(1)

by striking paragraph (1) and inserting the following:

(1)

(A)

Subject to subparagraph (B) and notwithstanding any other provision of this part, the Secretary shall reserve from amounts that would otherwise be allocated to a State under this part not less than 100 percent, but not more than 150 percent, of an amount which bears the same proportion to the allocation of that State for the applicable fiscal year as the population of all low-income members of an Indian tribe in that State bears to the population of all low-income individuals in that State.

(B)

Subparagraph (A) shall apply only if—

(i)

the tribal organization serving the low-income members of the applicable Indian tribe requests that the Secretary make a grant directly; and

(ii)

the Secretary determines that the low-income members of the applicable Indian tribe would be equally or better served by making a grant directly than a grant made to the State in which the low-income members reside.

;

(2)

in paragraph (2)—

(A)

by striking The sums and inserting Administration.—The amounts;

(B)

by striking on the basis of his determination;

(C)

by striking individuals for whom such a determination has been made and inserting low-income members of the Indian tribe; and

(D)

by striking he and inserting the Secretary; and

(3)

in paragraph (3), by striking In order and inserting Application.—In order.

204.

(a)

Title XXVI of the Energy Policy Act of 1992 (25 U.S.C. 3501 et seq.) is amended by adding at the end the following:

2607.

(a)

For any transaction that requires approval of the Secretary and involves mineral or energy resources held in trust by the United States for the benefit of an Indian tribe or by an Indian tribe subject to Federal restrictions against alienation, any appraisal relating to fair market value of those resources required to be prepared under applicable law may be prepared by—

(1)

the Secretary;

(2)

the affected Indian tribe; or

(3)

a certified, third-party appraiser pursuant to a contract with the Indian tribe.

(b)

Not later than 45 days after the date on which the Secretary receives an appraisal prepared by or for an Indian tribe under paragraph (2) or (3) of subsection (a), the Secretary shall—

(1)

review the appraisal; and

(2)

approve the appraisal unless the Secretary determines that the appraisal fails to meet the standards set forth in regulations promulgated under subsection (d).

(c)

If the Secretary determines that an appraisal submitted for approval under subsection (b) should be disapproved, the Secretary shall give written notice of the disapproval to the Indian tribe and a description of—

(1)

each reason for the disapproval; and

(2)

how the appraisal should be corrected or otherwise cured to meet the applicable standards set forth in the regulations promulgated under subsection (d).

(d)

The Secretary shall promulgate regulations to carry out this section, including standards the Secretary shall use for approving or disapproving the appraisal described in subsection (a).

205.

(a)

Subsection (e)(1) of the first section of the Act of August 9, 1955 (commonly known as the Long-Term Leasing Act) (25 U.S.C. 415(e)(1)), is amended—

(1)

by striking , except a lease for and inserting , including a lease for;

(2)

by striking subparagraph (A) and inserting the following:

(A)

in the case of a business or agricultural lease, 99 years;

;

(3)

in subparagraph (B), by striking the period at the end and inserting ; and; and

(4)

by adding at the end the following:

(C)

in the case of a lease for the exploration, development, or extraction of any mineral resource (including geothermal resources), 25 years, except that—

(i)

any such lease may include an option to renew for 1 additional term of not to exceed 25 years; and

(ii)

any such lease for the exploration, development, or extraction of an oil or gas resource shall be for a term of not to exceed 10 years, plus such additional period as the Navajo Nation determines to be appropriate in any case in which an oil or gas resource is produced in a paying quantity.

(b)

Not later than 5 years after the date of enactment of this Act, the Comptroller General of the United States shall prepare and submit to Congress a report describing the progress made in carrying out the amendment made by subsection (a)(4).

December 21, 2012

Reported with amendments

Text of the Indian Tribal Energy Development and Self-Determination Act Amendments of 2012