[Federal Register Volume 66, Number 189 (Friday, September 28, 2001)]
[Notices]
[Pages 49784-49786]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24268]



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Part IV





Department of Housing and Urban Development





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Tribal Government-to-Government Consultation Policy; Notice

  Federal Register / Vol. 66 , No. 189 / Friday, September 28, 2001 / 
Notices  

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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-4580-N-01]


Tribal Government-to-Government Consultation Policy

AGENCY: Office of the Secretary, HUD.

ACTION: Notice.

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SUMMARY: Through this notice HUD advises the public of its tribal 
government-to-government consultation policy. The purpose of the 
consultation policy is to enhance communication and coordination 
between HUD and federally recognized Indian tribes, and to outline 
guiding principles and procedures under which all HUD employees are to 
operate with regard to federally recognized Indian or Alaska Native 
tribes.

DATES: Effective Date: June 28, 2001.

FOR FURTHER INFORMATION CONTACT: Ted L. Key, Acting Deputy Assistant 
Secretary for Native American Programs, Office of Public and Indian 
Housing, U.S. Department of Housing and Urban Development, 451 Seventh 
Street, SW, Room 4128, Washington, DC 20410; telephone (202) 401-7914 
(this is not a toll-free telephone number). Persons with hearing or 
speech disabilities may access this number via TTY by calling the toll 
free Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: This notice sets forth HUD's tribal 
government-to-government consultation policy. The purpose of the 
consultation policy is to enhance communication and coordination 
between HUD and federally recognized Indian tribes, and to outline 
guiding principles and procedures under which all HUD employees are to 
operate with regard to federally recognized Indian or Alaska Native 
tribes. The policy is as follows:

Department of Housing and Urban Development

Tribal Government-to-Government Consultation Policy

I. Introduction

    A. The United States Government has a unique relationship with 
American Indian governments as set forth in the Constitution of the 
United States, treaties, statutes, court decisions, and executive 
orders and memoranda.
    B. On April 29, 1994, a Presidential Memorandum was issued 
reaffirming the federal government's commitment to operate within a 
government-to-government relationship with federally recognized 
American Indian and Alaska Native tribes, and to advance self-
governance for such tribes. The Presidential Memorandum directs each 
executive department and agency, to the greatest extent practicable and 
to the extent permitted by law, to consult with tribal governments 
prior to taking actions that have substantial direct effects on 
federally recognized tribal governments. In order to ensure that the 
rights of sovereign tribal governments are fully respected, all such 
consultations are to be open and candid so that tribal governments may 
evaluate for themselves the potential impact of relevant proposals. On 
May 14, 1998, the President issued Executive Order 13084, 
``Consultation and Coordination with Indian Tribal Governments,'' which 
was revoked and superseded on November 6, 2000, by the identically 
titled Executive Order 13175, which sets forth guidelines for all 
federal agencies to (1) establish regular and meaningful consultation 
and collaboration with Indian tribal officials in the development of 
federal policies that have tribal implications; (2) strengthen the 
United States government-to-government relationships with Indian 
tribes; and (3) reduce the imposition of unfunded mandates upon Indian 
tribes.
    C. This consultation policy applies to all HUD programs that have 
substantial direct effects on federally recognized Indian tribal 
governments. In formulating or implementing such policies, HUD will be 
guided by the fundamental principles set forth in section 2 of 
Executive Order 13175, to the extent applicable to HUD programs. 
Section 2 of the Executive Order provides as follows:

    Sec. 2. Fundamental Principles. In formulating or implementing 
policies that have tribal implications, agencies shall be guided by 
the following fundamental principles:
    (a) The United States has a unique legal relationship with 
Indian tribal governments as set forth in the Constitution of the 
United States, treaties, statutes, Executive Orders, and court 
decisions. Since the formation of the Union, the United States has 
recognized Indian tribes as domestic dependent nations under its 
protection. The Federal government has enacted numerous statutes and 
promulgated numerous regulations that establish and define a trust 
relationship with Indian tribes.
    (b) Our Nation, under the law of the United States, in 
accordance with treaties, statutes, Executive Orders, and judicial 
decisions, has recognized the right of Indian tribes to self-
government. As domestic dependent nations, Indian tribes exercise 
inherent sovereign powers over their members and territory. The 
United States continues to work with Indian tribes on a government-
to-government basis to address issues concerning Indian tribal self-
government, tribal trust resources, and Indian tribal treaty and 
other rights.
    (c) The United States recognizes the right of Indian tribes to 
self-government and supports tribal sovereignty and self-
determination.

II. Definitions

    A. ``Consultation'' means the direct and inter-active (i.e., 
collaborative) involvement of tribes in the development of regulatory 
policies on matters that have tribal implications.
    Consultation is the active, affirmative process of (1) identifying 
and seeking input from appropriate Native American governing bodies, 
community groups and individuals; and (2) considering their interest as 
a necessary and integral part of HUD's decision-making process.
    This definition adds to any statutorily mandated notification 
procedures. The goal of notification is to provide an opportunity for 
comment; however, with consultation procedures, the burden is on the 
federal agency to show that it has made a good faith effort to elicit 
feedback.
    B. ``Exigent situation'' means an unforeseen combination of 
circumstances or the resulting state that calls for immediate action in 
order to preserve tribal resources, rights, interests, or federal 
funding.
    C. ``Indian tribe'' means an Indian or Alaska Native tribe, band, 
nation, pueblo, village, or community that the Secretary of the 
Interior acknowledges to exist as an Indian tribe pursuant to the 
Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.

III. Principles

    A. HUD acknowledges the unique relationship between the federal 
government and Indian tribes.
    B. HUD recognizes and commits to a government-to-government 
relationship with Federally-recognized tribes.
    C. HUD recognizes tribes as the appropriate non-federal parties for 
making their policy decisions and managing programs at the local level 
for their constituents.
    D. HUD shall take appropriate steps to remove existing legal and 
programmatic impediments to working directly and effectively with 
tribes on housing and community development programs administered by 
HUD.
    E. HUD shall encourage states and local governments to work with 
and cooperate with tribes to resolve problems of mutual concern.
    F. HUD shall work with other federal departments and agencies to 
enlist their interest and support in cooperative efforts to assist 
tribes to accomplish their goals within the context of all HUD 
programs.

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    G. HUD shall be guided by these policy principles in its planning 
and management activities, including its budget, operating guidance, 
legislative initiatives, management accountability system and ongoing 
policy and regulation development processes for all programs affecting 
tribes.

IV. Tribal Coordination, Collaboration and Consultation

    A. Tribal Coordination, Collaboration and Consultation applies when 
any proposed policies, programs or actions are identified by HUD as 
having a substantial direct effect on an Indian tribe. The Office of 
Native American Programs (ONAP), within the Office of Public and Indian 
Housing, may serve as the lead Departmental office for the 
implementation of this policy, and is the principal point of contact 
for consultation with tribes on all HUD programs.
    B. Procedures and Methods for Implementation--Tribal, Regional and 
National Forums.
    1. Based on a government-to-government relationship and in 
recognition of the uniqueness of each tribe, a primary focus for 
consultation activities is with individual tribal governments. The use 
of tribal organizations/committees will be in coordination with, and 
not to the exclusion of, consultation with individual tribal 
governments. When proposed federal government policies, programs or 
actions are determined by HUD as having tribal implications, HUD will 
notify the affected tribe(s) and take affirmative steps to consult and 
collaborate directly with the tribe(s) or its (their) designee. Tribes 
at any time may exercise their right to request consultation with HUD.
    2. Tribes are encouraged to exercise their option to convene 
regional tribal meetings to identify and address issues. Tribes may 
schedule quarterly regional meetings with HUD representatives to 
address issues relevant to HUD policies, regulations, and statutes.
    3. At least one national tribal consultation and coordination 
meeting will be held by HUD each year. To reduce costs and conserve 
resources, to the extent feasible, tribes and HUD will coordinate 
consultation meetings to be held before or after other regularly 
scheduled meetings such as multi-agency and association meetings.
    C. Tribal Advisory Organizations/Committees. The principal focus 
for consultation activities of HUD is with individual tribal 
governments. However, it is frequently necessary that HUD have 
organizations/committees in place from which to solicit tribal advice 
and recommendations, and to involve tribes in decision-making and 
policy development. In consultation with elected tribal governments, 
HUD recognizes tribal advisory organizations/committees. Consultation 
shall be conducted as follows:
    1. Headquarters. HUD will consult with existing national 
organizations.
    2. Area Offices. Each Area ONAP Administrator, in consultation with 
tribal governments, will consult with organizations/committees and/or 
representatives of tribal governments served by the Area ONAP. The 
tribal organizations/committees and/or representatives will provide 
advice and consultation to the Area ONAP Administrator and staff. 
Meetings with the Area ONAP shall occur at least annually, or more 
frequently when there is a need.
    3. National/Area Coordination. To promote coordination in 
addressing issues arising from tribal consultation events at both the 
national and local level, a summary record of the comments made during 
national and area consultations will be made available to tribes.
    D. Joint Federal/Tribal Work Groups or Task Forces. It may become 
necessary for HUD, to establish or select a work group or task force to 
develop recommendations on certain issues. The work group or task force 
may conduct its activities through conventional (e.g., telephone and 
mail), as well as innovative (e.g., e-mail and video conferences) means 
of communication.
    1. Membership and Meeting Notices.
    a. Tribal representation should be consistent with the established 
standard of geographically diverse small, medium and large tribes, 
whenever possible.
    b. Meetings will be posted on the Internet and will be open to the 
public. In addition to internet posting, HUD may also announce meetings 
through FAX, letter, e-mail, publication in the Federal Register, or 
other appropriate means.
    2. Participation.
    a. Attendance: Work group members shall make good-faith attempts to 
attend all meetings. They may be accompanied by other individuals to 
advise them as they deem necessary.
    b. Appointment of Alternates: Alternate work group members may be 
appointed by written notification signed by the member. Such alternates 
shall possess the authority of the work group member to make decisions 
on their behalf if such authority is so delegated to them in writing.
    3. Work Group Protocols that may be established.
    a. Roles of the work group members.
    b. Process for decision-making.
    c. Process for creating written products and other decisional 
documents.
    d. Other items as deemed necessary by the work group.
    4. Work Group Final Products and Recommendations. All final 
recommendations will be given serious consideration by HUD. Whenever 
possible, all work group products should be circulated to tribal 
leaders for review and comment.

V. Rulemaking

    On issues relating to tribal self-government, tribal trust 
resources, or treaty and other rights, HUD will explore, and where 
appropriate, use consensual mechanisms for developing regulations, 
including negotiated rulemaking. HUD may establish a standing 
committee, consisting of representatives of tribal governments, to 
consult on the appropriateness of using negotiated rulemaking 
procedures on particular matters. The procedures governing such a 
standing committee would be established through the mutual agreement of 
HUD and tribal governments.

VI. Unfunded Mandates

    To the extent practicable and permitted by law, HUD shall not 
promulgate any regulation that is not required by statute, that has 
tribal implications, and that imposes substantial direct compliance 
costs on such communities, unless:
    1. Funds necessary to pay the direct costs incurred by the Indian 
tribal government in complying with the regulation are provided by the 
federal government; or
    2. HUD, prior to the formal promulgation of the regulation:
    a. Consulted with tribal officials early in the process of 
developing the proposed regulation;
    b. In a separately identified portion of the preamble to the 
regulation as it is to be issued in the Federal Register, provides to 
the Director of the Office of Management and Budget a description of 
the extent of HUD's prior consultation with representatives of affected 
Indian tribal governments, a summary of the nature of their concerns 
and the agency's position supporting the need to issue the regulation; 
and
    c. Makes available to the Director of the Office of Management and 
Budget any written communications submitted to HUD by such Indian 
tribal governments.

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VII. Increasing Flexibility for Indian Tribal Waivers

    HUD shall review the processes under which Indian tribal 
governments apply for waivers of statutory and regulatory requirements 
and take appropriate steps to streamline those processes.
    1. HUD shall, to the extent practicable and permitted by law, 
consider any application by an Indian tribal government for a waiver of 
statutory or regulatory requirements in connection with any program 
administered by HUD with a general view toward increasing opportunities 
for utilizing flexible policy approaches at the Indian tribal level in 
cases in which the proposed waiver is consistent with the applicable 
federal policy objectives and is otherwise appropriate.
    2. HUD shall, to the extent practicable and permitted by law, 
render a decision upon a complete application for a waiver within 120 
days of receipt of such application by HUD. HUD shall provide the 
applicant with timely written notice of the decision and, if the 
application for a waiver is not granted, the reasons for such denial.
    3. This section applies only to statutory or regulatory 
requirements that are discretionary and subject to waiver by HUD. 
Applicable civil rights statutes and regulations are not subject to 
waiver.

VIII. Implementation

    1. All committees shall be chaired by at least one tribal and one 
HUD representative.
    2. Time Frames. Time frames for consultation outreach will depend 
on the need to act quickly. Suggested guidelines are not less than 60 
days for significant new matters of national scale, 30 days for routine 
proposed actions, and 2-3 weeks with expanded tribal outreach efforts 
for proposed actions which must be ``fast tracked'' to respond to 
critical deadlines. These time frames may be compressed in exigent 
situations.
    3. Methods of Communication. The following are examples of 
communication means by which consultation can be accomplished. The 
method(s) of communication used will be determined by the significance 
of the consultation matter, the need to act quickly, and other relevant 
factors: Internet; broadcast fax; U.S. Postal Service; telephone-
conference calls; multimedia; direct contact; and formal meetings.
    4. Reporting Mechanisms. In all cases where a tribe or tribes have 
been involved in the consultation process, the tribe(s) shall be 
notified of the HUD decision by one or more of the communication 
method(s) identified above. This notification shall specifically 
include a discussion of the basis for the HUD decision, including 
public comments received, relationship to the concerns raised in 
consultation, and any avenues available for further discussion, protest 
or appeal of the decisions.
    5. Internal HUD policies and procedures are excluded from this 
policy.

IX. Applicability of the Federal Advisory Committee Act

    The provisions of the Federal Advisory Committee Act (5 U.S.C. 
App.) (FACA) do not apply to consultations undertaken pursuant to this 
policy. In accordance with section 204(b) of the Unfunded Mandates 
Reform Act of 1995 (Pub. L. 104-4, approved March 22, 1995), FACA is 
not applicable to consultations between the Federal government and 
elected officers of Indian tribal governments (or their designated 
employees with authority to act on their behalf). As the Office of 
Management and Budget stated in its guidelines implementing section 
204(b):

    This exemption applies to meetings between Federal officials and 
employees and * * * tribal governments acting through their elected 
officers, officials, employees, and Washington representatives, at 
which `views, information, or advice' are exchanged concerning the 
implementation of intergovernmental responsibilities or 
administration, including those that arise explicitly or implicitly 
under statute, regulation, or Executive Order. The scope of meetings 
covered by this exemption should be construed broadly to include 
meetings called for any purpose relating to intergovernmental 
responsibilities or administration. Such meetings include, but are 
not limited to, meetings called for the purpose of seeking 
consensus, exchanging views, information, advice, and/or 
recommendations; or facilitating any other interaction relating to 
intergovernmental responsibilities or administration. (OMB 
Memorandum 95-20 (September 21, 1995), pp. 6-7, published at 60 FR 
50651, 50653 (September 29, 1995)).

X. General Provisions

    This document has been adopted for the purpose of enhancing 
government-to-government relationships, communications, and mutual 
cooperation between the U.S. Department of Housing and Urban 
Development and tribes and is not intended to, and does not, create any 
right to administrative or judicial review, or any other right or 
benefit or trust responsibility, substantive or procedural, enforceable 
by a party against the United States, its agencies or 
instrumentalities, its officers or employees, or any other persons. 
This document is effective on the date it is signed.

    Dated: June 28, 2001.
Mel Martinez,
Secretary.
[FR Doc. 01-24268 Filed 9-27-01; 8:45 am]
BILLING CODE 4210-32-P