[Federal Register Volume 71, Number 75 (Wednesday, April 19, 2006)]
[Notices]
[Pages 20314-20329]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3741]



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Part VI





Environmental Protection Agency





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Review of Environmental Protection Agency Draft Guidance for 
Implementing Executive Order 13175, Consultation and Coordination With 
Indian Tribal Governments; Notice

  Federal Register / Vol. 71, No. 75 / Wednesday, April 19, 2006 / 
Notices  

[[Page 20314]]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OA-2006-0248; FRL-8159-9]


Review of Environmental Protection Agency Draft Guidance for 
Implementing Executive Order 13175, Consultation and Coordination With 
Indian Tribal Governments

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice; request for public comment.

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SUMMARY: The Environmental Protection Agency (EPA) is seeking public 
comment on its draft Guidance, Executive Order 13175: Consultation and 
Coordination with Indian Tribal Governments (``Guidance''). This draft 
Guidance addresses the provisions of Executive Order 13175 (``EO 
13175'') and how EPA generally intends to implement EO 13175 in 
connection with relevant EPA activities. EPA is seeking public comment 
on this draft Guidance in order to provide EPA with a broad range of 
experiences and perspectives as the draft Guidance is finalized.

DATES: Comments must be submitted on or before July 18, 2006.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OA-
2006-0248, by one of the following methods:
     http://www.regulations.gov: Follow the online instructions 
for submitting comments.
     E-mail: [email protected].
     Mail: OEI Docket, Environmental Protection Agency, 
Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
     Hand Delivery: EPA Docket Center (EPA/DC), Room B102, EPA 
West Building, 1301 Constitution Avenue, NW., Washington, DC 20460. 
Attention Docket ID No. EPA-HQ-OA-2006-0248. Such deliveries are only 
accepted during the Docket's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OA-2006-
0248. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the EPA-HQ-OA Docket, 
EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, 
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744, and the telephone number for the 
EPA-HQ-OEI Docket is (202) 566-1752.

FOR FURTHER INFORMATION CONTACT: Joan Crawford, Office of Policy, 
Economics and Innovation, Mail Code 1803A, Environmental Protection 
Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone 
number: (202) 564-6568; fax number: (202) 564-0965, e-mail: 
[email protected] or Jose Aguto, American Indian Environmental 
Office, Mailcode 4104, Environmental Protection Agency, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: (202) 
564-0289; fax number: (202) 564-0298, e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

    This draft Guidance document is intended for EPA managers and staff 
who are involved in planning and/or developing actions such as 
regulations, legislative comments or proposed legislation, and other 
policy statements or actions. While this draft Guidance is open for 
public comment, this draft Guidance may be of particular interest to 
Indian tribes, tribal officials, and those charged with the 
responsibility of ensuring the protection of public health and the 
environment in Indian country and elsewhere.
    The statements in this draft document are intended solely to 
provide internal EPA guidance. This document is designed to implement 
EO 13175, Consultation and Coordination with Indian Tribal Governments. 
The draft document does not, however, substitute for requirements in 
federal statutes or regulations, nor is it a requirement itself. This 
document is not intended, nor can it be relied upon, to create any 
right or trust responsibility enforceable in any cause of action by any 
party against the United States, its agencies, officers or any other 
person. It does not impose legally binding requirements on EPA or 
anyone else, and may not apply to a particular situation based upon the 
circumstances. EPA may change this Guidance in the future, as needed or 
appropriate, without public notice. In addition, EO 13175, by its 
terms, is itself intended only to improve the internal management of 
the executive branch and is not intended to create any right, benefit, 
or trust responsibility, substantive or procedural, enforceable at law 
by a party against the United States, its agencies, or any person.

B. How Can I Get Copies of the Draft EPA Guidance, Other Related 
Documents, and Additional Information?

    You may view copies of the draft Guidance, other related documents, 
or request additional information by contacting:
    1. By mail: Joan Crawford or Jose Aguto at the addresses listed 
under FOR FURTHER INFORMATION CONTACT.
    2. In person. Copies of the entire draft Guidance, together with 
other related documents, may be examined during normal business hours 
at the OA Docket, at the docket address listed under ADDRESSES.

[[Page 20315]]

    3. http://www.regulations.gov/. Publicly available docket materials 
are available electronically in http://www.regulations.gov by entering 
Docket ID No. EPA-HQ-OA-2006-0248. The electronic public docket 
includes an index of all available documents associated with this 
action as well as electronic versions of those documents.

C. What Should I Consider as I Prepare My Comments for EPA?

    When submitting comments, remember to:
    1. Identify the action by docket ID number and other identifying 
information (subject heading, Federal Register date, and page number).
    2. Follow directions. The Agency may ask you to respond to specific 
questions or organize comments by referencing a specific chapter or 
section number.
    3. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    4. Describe any assumptions and provide any technical information 
and/or data that you used.
    5. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    6. Explain your views as clearly as possible, avoiding the use of 
profanity, obscene language, or personal threats.
    7. Make sure to submit your comments by the comment period 
deadline.

Background

    EO 13175 was signed on November 6, 2000 and sets forth various 
provisions regarding consultation and coordination between Federal 
agencies undertaking ``policies that have tribal implications'' and 
Indian tribal governments. This draft Guidance is intended to describe 
EPA's policy views regarding the provisions and procedures of the EO 
and to assist EPA personnel in implementing the EO as the Agency 
undertakes its various actions. Although other federal and EPA policies 
relating to Indian tribes and government-to-government consultation 
between EPA and Indian tribes may be referenced in the draft Guidance, 
the draft Guidance is not intended to define the scope of procedures 
that may be called for under, or otherwise to implement, those separate 
documents. Thus, where, for instance, the draft Guidance discusses 
consultation between EPA and Indian tribal governments, such 
consultation and related procedures are designed to relate specifically 
to the EPA/tribal interaction called for by EO 13175.
    In developing this draft Guidance, EPA considered the unique 
relationship between the Federal government and Indian tribes and 
attempted to address various complex issues as they arose to help 
strengthen our efforts to work with tribes and establish regular and 
meaningful consultation and collaboration with tribes as contemplated 
by EO 13175. Prior to developing this draft Guidance document, EPA 
convened an internal workgroup to consider the provisions of the EO and 
potential procedures to implement the EO in the context of EPA 
programs. During this early development stage, the EPA workgroup had 
significant interaction with representatives of tribal governments 
selected and designated for this purpose by the Tribal Caucuses of each 
of the EPA Regional Tribal Operations Committees. This interaction 
included active participation by the designated tribal representatives 
in regularly scheduled teleconferences with EPA staff to exchange 
ideas, insights and experiences, and to identify challenges related to 
outreach, engagement and consultation between EPA and Indian tribal 
governments as well as possible solutions and methods by which EPA and 
tribal officials might improve the consultation process. EPA recognizes 
the significance of this early tribal involvement in the process of 
developing EPA's approach to implementation of EO 13175 and looks 
forward to additional tribal input as part of this comment process.
    EPA is seeking comment on the entire document but would appreciate 
special consideration of the following issues at this time:
    Section 1(a) of EO 13175 defines the term ``Policies that have 
tribal implications.'' In addition to regulations, legislative comments 
and proposed legislation, the EO includes a reference within the 
definition of that term to ``other policy statements or actions'' that 
have substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes. EPA believes that the reference to such 
``other policy statements or actions'' potentially includes issuance of 
EPA policy statements, strategies, guidelines, guidance and 
interpretive documents (collectively, ``guidance documents''). EPA's 
position set forth in the draft Guidance is that guidance documents 
generally do not create legally binding requirements and, therefore, 
will not have ``substantial direct effects'' as described in the EO. 
Thus, where there are no legally binding requirements being created, 
such guidance documents generally will not have Tribal Implications and 
will not trigger the various requirements of EO 13175. However, where a 
document does create legally binding requirements, it may have Tribal 
Implications. EPA is seeking comment on this issue, including 
information regarding prior EPA guidances that commenters believe may 
have had substantial direct effects as described in EO 13175. In 
addition, EPA is specifically seeking comment on applicability of the 
EO to certain other types of EPA actions as set forth in Chapter 5 of 
the draft Guidance.
    Comments received within the 90-day period designated in this 
notice will be taken under consideration as the EPA workgroup continues 
drafting the Guidance and the key attachments to the Guidance.

    Dated: April 13, 2006.
Brian F. Mannix,
Associate Administrator, Office of Policy, Economics and Innovation.

    Draft Guidance: Guidance, Executive Order 13175: Consultation and 
Coordination With Indian Tribal Governments.

Table of Contents

List of Acronyms, Abbreviations, and Key Definitions

Executive Summary

What Is the Purpose of This Document?
What Is in This document?
    1. Overview of chapters
    2. A note about the development of this draft Guidance document
    3. Scope and applicability of this draft Guidance document
    4. How do the requirements of Executive Order13175 relate to 
EPA's existing Tribal policy framework?

Chapter 1--Introduction to Executive Order 13175

1.1 What Is Executive Order 13175 and What Does It Require?
1.2 What Are Tribal Coordination and Consultation?
    A. Coordination
    B. Consultation
1.3 What Is the Federal Government's Relationship With Tribal 
Governments and How May Tribal Interests be Distinct From Those of 
State and Local Governments?

Chapter 2--Regulations (or ``Rules'')

2.1 How Will I Know If My Rule is Subject to Executive Order 13175?
2.2 What Resources and Tools Can I Access To Help Determine If My 
Rule Has Tribal Implications?
2.3 What Do I Do If My Rule is Subject to the Executive Order?
    A. Coordination
    B. Consultation
    C. Certification
2.4 What Do I Do If My Rule Does Not Have TribaI Implications?

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2.5 What Do I Do If My Rule Has TribaI Implications
2.6 What Are the Types of Rules With TribaI Implications for Which I 
Must Consult With Tribal Officials?
    A. Rules With TribaI Implications That Impose Substantial Direct 
Compliance Costs
    B. Rules That Preempt Tribal Law
    C. Federal standards
2.7 What Should I do If My Rule Has TribaI Implications and I Am 
Required to Consult?
    A. Consultation Plan Development
    B. Complying With Section 5 of Executive Order
2.8 What Steps Do I Follow for My Rule?
2.9 What Help and Participation Can I Expect as I Develop My Rule?
2.10 How Do I Begin the Tribal Consultation Process?
    A. Coordination and Outreach
    B. Engaging Tribal Officials
    C. Consultation With Tribal Officials
2.11 Process for Executive Order 13175 Certification
2.12 How Does EPA Track and Record Actions Affected the Executive 
Order?

Chapter 3--Legislative Comments or Proposed Legislation

3.1 How Does Executive Order 13175 Apply to Legislative Comments or 
Proposed Legislation Submitted by EPA?
3.2 Does the Executive Order Apply When EPA Provides Comments to 
Another Agency on Their Draft Legislation or Provides Technical 
Assistance to Congressional Staff?

Chapter 4--Waivers

4.1 What Does the Executive Order Require Concerning Indian Tribes 
Applying for Waivers of Statutory and Regulatory Requirements?
4.2 What Does the Executive Order Contain About Flexible Policy 
Approaches?

Chapter 5--Permits and Licenses

5.1 Do the Executive Order Requirements Apply to Permitting 
Activities?

Chapter 6--Policy Statements, Guidance Documents and Similar Actions

6.1 Are EPA's Policy Statements, Guidance Documents, and Similar 
Actions Covered by Executive Order 13175?
6.2 Do the Requirements of Executive Order 13175 Apply If My 
Guidance Document Is Not Titled a ``Rule'' or ``Regulation'' But 
Contains Legally Binding Requirements?
6.3 An Important Note About Guidance Documents and EPA's Policy On 
Consulting With Tribal Governments

Attachments

A. Executive Order 13175: Consultation and Coordination with Indian 
Tribal Governments
B. EPA's 1984 Policy for the Administration of Environmental 
Programs on Indian Reservations
C. Stephen L. Johnson's September 26, 2005 Memorandum Reaffirming 
EPA's 1984 Indian Policy
D. EPA's April 29, 1994 Memorandum on Government-to-Government 
Relations With Native American Tribal Governments
E. EPA's Indian Program Infrastructure and Examples of Tribal 
Partners (flowchart)
F. Executive Order 13175 Analysis for EPA Rules and Regulations 
(flowchart)
G. Recommendations for Developing Tribal Consultation Plans
H. Executive Order 13175 Preamble Template Language
I. Executive Order 13175 Compliance Certification Form
J. Agency Contacts

    Note: Attachments A through D (as listed in the table of 
contents) are available in the docket (EPA-HQ-OA-2006-0248) for this 
draft Guidance. Attachments E through J are in the drafting stage 
and not open for public comment. Those attachments therefore are not 
provided in the docket for this draft Guidance document.

List of Acronyms, Abbreviations and Key Definitions

    AIEO: American Indian Environmental Office of EPA (within the 
Office of Water).
    EO: Executive Order. When used alone, it refers to EO 13175.
    FACA: Federal Advisory Committee Act.
    OGC: Office of General Counsel.
    OIA: Office of International Affairs.
    OMB: Office of Management and Budget.
    OPEI: Office of Policy, Economics and Innovation.
    OPPTS: Office of Prevention, Pesticides and Toxic Substances.
    ORC: Office of Regional Counsel.
    PRA: Paperwork Reduction Act.
    RIC: Regional Indian Coordinator.
    RFA: Regulatory Flexibility Act.
    RMD: Regulatory Management Division.
    RRC: Regional Regulatory Contact.
    RSC: Regulatory Steering Committee.
    S/L/T: State, local, and Tribal governments.
    UMRA: Unfunded Mandates Reform Act.

Key Definitions

    Authorized Inter-Tribal Organization: For the purposes of this 
draft Guidance, an ``authorized inter-tribal organization'' is an 
organization that has been officially designated by the elected or 
duly-appointed leader of a federally recognized Tribal government to 
represent that Tribe on a particular issue. EPA would generally 
recognize an inter-tribal organization as ``authorized'' after 
receiving confirmation from an elected or duly-appointed Tribal leader 
that organization is authorized to consult with EPA on the Tribe's 
behalf. Consultation with intertribal organizations can enhance but 
should not be an acceptable substitute for direct consultation with 
Tribal governments, unless officially delegated the authority by the 
Tribal government. EPA recommends that such confirmation be provided in 
writing (e.g., letter, e-mail).
    Duly Appointed Officials: For the purposes of this draft Guidance, 
``duly appointed officials'' are representatives that have been 
officially designated by elected or duly-appointed leaders of federally 
recognized Tribal governments to represent their Tribes on a particular 
issue. EPA would generally recognize a representative of a Tribal 
government as a ``duly appointed official'' after receiving 
confirmation from an elected or duly-appointed Tribal leader that the 
representative is authorized to consult with EPA on the Tribe's behalf. 
EPA recommends that such confirmation be provided in writing (e.g., 
letter, e-mail).
    EPA's 1984 Indian Policy: The EPA Policy for the Administration of 
Environmental Programs on Indian Reservations.
    EPA's Indian Program: The phrase ``EPA's Indian Program'' generally 
describes the composition of EPA's offices, internal workgroups and 
employees across the Agency's specific environmental program offices 
that work in whole or in part on Tribal environmental issues. EPA 
offices devoted specifically to Tribal issues include the American 
Indian Environmental Office (AIEO) and the Regional Tribal Offices. 
Internal workgroups include the National Indian Workgroup (NIWG), the 
Indian Policy Program Council (IPPC) and the National Indian Law 
Workgroup (NILWG). Contact information is located at http://www.epa.gov/indian/miss.htm.
    Indian Tribe: `Indian Tribe' means an Indian or Alaskan 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.\1\
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    \1\ Executive Order 13175, section 1(b).
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    Order: Executive Order 13175.
    Tribal Coordination: For the purposes of this draft Guidance 
document, coordination refers to the harmonization of EPA's Tribal 
outreach and information dissemination/exchange activities to ensure 
that Tribal governments are aware of EPA actions that might impact them 
and afforded the opportunity to alert EPA that they wish to be 
consulted according to the terms of Executive Order 13175 early in the 
process of developing those actions.
    Tribal Consultation: For the purposes of this draft Guidance 
document, and to the extent practicable and permitted by

[[Page 20317]]

law, consultation consists of a meaningful and timely two-way exchange 
with Tribal officials in developing Agency actions, providing for open 
sharing of information, the full expression of Tribal and EPA views, a 
commitment to consider Tribal views in decision-making, and respect for 
Tribal self-government and sovereignty.
    Tribal Implications: `Policies that have Tribal implications' 
refers to regulations, legislative comments or proposed legislation, 
and other policy statements or actions that have substantial direct 
effects on one or more Indian Tribes, on the relationship between the 
Federal Government and Indian Tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian 
Tribes.\2\
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    \2\ Executive Order 13175, section 1(a).
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    Tribal Officials: `Tribal officials' means elected or duly 
appointed officials of Indian Tribal governments or authorized 
intertribal organizations.\3\
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    \3\ Executive Order 13175, section 1(d).
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Executive Summary

What Is the Purpose of This Document?

    This draft Guidance document provides guidance to EPA staff on how 
to meet requirements of Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments'', and recommends how EPA 
staff should set about the consultation process when required.

What Is in This Document?

Chapter 1: Introduction to Executive Order 13175
    This chapter discusses what is Executive Order 13175 and what EPA 
is required to do under the Order, and, for purposes of this draft 
Guidance, what are Tribal Coordination and Consultation. This chapter 
also outlines the Federal Government's relationship with Tribal 
Governments and how Tribal interests may be distinct from State and 
Local Governments.
Chapter 2: EPA Regulations
    This chapter provides EPA staff and managers guidance on how to 
determine whether EPA regulations are subject to Executive Order 13175, 
and what EPA staff should do if the regulation is subject to the Order. 
Chapter 2 discusses how to determine whether a regulation has Tribal 
implications, and what EPA should or must do if a rule is determined to 
have (or not have) Tribal implications. This chapter describes whether 
and how EPA should or must coordinate or consult with Tribal officials 
on a regulation, and outlines steps EPA should follow to coordinate 
with Tribal officials on a regulation. This chapter also discusses how 
EPA should develop a consultation plan, and when and how to begin the 
Tribal consultation process. In addition, this Chapter discusses 
whether and how EPA's certification process under Executive Order 13175 
applies to regulation activities, and how does EPA track and record 
actions affected by the Order.
Chapter 3: Legislative Comments or Proposed Legislation
    Chapter 3 discusses how Executive Order 13175 applies to 
legislative comments or proposed legislation submitted by EPA, and 
whether the Order applies when EPA provides comments to another Federal 
agency on their draft legislation or provides technical assistance to 
Congressional staff.
Chapter 4: Waivers
    This chapter discusses Executive Order 13175 requirements that 
apply to applications submitted to EPA by Tribal governments seeking to 
waive some or all of the statutory or regulatory requirements that 
apply to them. Chapter 4 also discusses the EPA's flexibility when 
considering Tribal applications for waivers of statutory and regulatory 
requirements.
Chapter 5: Permits
    Chapter 5 discusses whether and how the requirements of Executive 
Order 13175 apply to permitting activities.
Chapter 6: Policy Statements, Guidance Documents and Similar Actions
    This chapter discusses whether and how Executive Order 13175 
requirements apply to EPA's development of policy statements, guidance 
documents, and similar actions. This chapter discusses under which 
situations the requirements of the Executive Order may apply to these 
statements, documents or actions, and when consultation is recommended 
even if it is not required under the Executive Order.
Attachments
    (a) Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments.
    (b) EPA's 1984 Policy for the Administration of Environmental 
Programs on Indian Reservations.
    (c) Stephen L. Johnson's September 26, 2005 Memorandum Reaffirming 
EPA's 1984 Indian Policy.
    (d) EPA's April 29, 1994 Memorandum on Government-to-Government 
Relations With Native American Tribal Governments.
    (e) EPA's Indian Program Infrastructure and Examples of Tribal 
Partners (flowchart).
    (f) Executive Order 13175 Analysis for EPA Rules and Regulations 
(flowchart).
    (g) Recommendations for Developing Tribal Consultation Plans.
    (h) Executive Order 13175 Preamble Template Language.
    (i) Executive Order 13175 Compliance Certification Form.
    (j) Agency Contacts.

A Note About the Development of This Draft Guidance Document

    As with many guidance documents, this draft Guidance is a living 
document. We acknowledge that, over time, we may need to revise and 
improve this draft Guidance based on the consultation experiences of 
EPA and Tribes. You should take advantage of the insight and knowledge 
that Tribal governments will afford you in your consultation 
opportunities when dealing with policies that have Tribal implications 
and not merely because the Executive Order requires it. Incorporating 
the views and concerns of Indian Tribal governments in the action 
development process may help to bring about more effective 
implementation and collaboration on actions that are beneficial to 
public health and the environment in Indian country and elsewhere. As 
such, the Agency's mission of protecting human health and the 
environment is advanced by the Tribal consultation process.

Scope and Applicability of This Draft Guidance Document

A. Scope
    This draft Guidance document summarizes the requirements under 
Executive Order 13175, and recommends how EPA staff should set about 
the consultation process when required. For some actions, separate EPA 
policies relating to Indian Tribes (described later in this section in 
``How Do the Requirements of Executive Order 13175 Relate to EPA's 
Existing Tribal Policy Framework?'') may be broader than the Executive 
Order, reflecting EPA's commitment to early and meaningful consultation 
whenever possible. However, this draft Guidance document is in no way 
intended to serve as a guide to EPA's implementation of any other 
statute, executive or judicial order, memoranda on administration 
policy, or internal EPA policy directive concerning Tribal governments 
and the development and/or implementation of EPA policies. This

[[Page 20318]]

draft Guidance document is not a holistic guide to consultation with 
Tribal governments and should not be interpreted as such.
B. Applicability
    This draft Guidance document is intended for EPA managers and staff 
who are responsible for planning and/or developing actions such as 
regulations, legislative comments or proposed legislation, and other 
policy statements or actions. The requirements of Executive Order 13175 
will apply to your action if it will have substantial, direct effects 
on Tribal governments. This draft Guidance document also describes when 
consultation with Tribal officials is required under this Executive 
Order, and how EPA staff should set about the consultation process when 
required. What you should do to comply with the Order depends on the 
type of action that you are developing. The following table tells you 
where to continue reading, based on the type of your action:

------------------------------------------------------------------------
                                                Then go here for more
                                              information about whether
         If your action is a . . .           the Order applies and what
                                                     to do . . .
------------------------------------------------------------------------
Regulation (or ``Rule'')..................  page (to be added in final).
Legislative Comment or Proposed             page (to be added in final).
 Legislation.
Waiver....................................  page (to be added in final).
Permits/License...........................  page (to be added in final).
Policy Statement/Guidance Document........  page (to be added in final).
------------------------------------------------------------------------

    While you should read carefully through this draft Guidance to 
identify what, if anything, you should do to comply with the Executive 
Order requirements, this draft document is not intended to prohibit any 
alternative methods of complying with those requirements as they may 
apply to your action.

How Do the Requirements of Executive Order 13175 Relate to EPA's 
Existing Tribal Policy Framework?

    In situations where your action does not have Tribal implications, 
and thus does not trigger relevant requirements of the Executive Order, 
it is still important to assess Tribal interests that may be affected 
by your action and consider whether other Executive or EPA policies or 
legal requirements call for the Agency to seek Tribal input or 
otherwise address Tribal issues. At various places, this draft Guidance 
may recommend seeking Tribal input and considering Tribal views and 
interests regarding EPA actions that do not have Tribal implications 
under Executive Order 13175. Where such recommendations are based 
solely upon considerations apart from Executive Order, they should not 
be interpreted as an indication of any EPA position regarding the scope 
or implementation of Executive Order 13175. Any such recommendations 
are only intended to help you address the separate legal and policy 
considerations in a manner consistent with this Executive Order. When 
developing a policy that has Tribal implications pertaining to a U.S. 
border region and implements a binational/international treaty and/or 
agreement, you should consult with the Office of International Affairs 
(OIA) about any issues that warrant your consideration.
    Consider, for instance, the EPA Policy for the Administration of 
Environmental Programs on Indian Reservations (a.k.a. the ``Indian 
Policy'') and the April 29, 1994 Presidential Memorandum regarding the 
Government-to-Government Relations With Native American Tribal 
Governments. Consistent with these and other policy statements and the 
Federal government's trust responsibility to federally-recognized 
Indian Tribes, EPA generally attempts to engage Tribes regarding Agency 
actions that may affect Tribes through government-to-government 
consultation and other means of outreach. It is important to note that 
separate policies and considerations, such as the following, may have 
different threshold standards than Executive Order 13175 that you might 
need to consider even if you determined that your action would not have 
Tribal implications as defined in the Executive Order.
A. EPA's Indian Policy
    The EPA Indian Policy states that the ``keynote'' of EPA's effort 
to protect human health and the environment on Indian reservations will 
be:

    ``* * * to give special consideration to Tribal interests in 
making Agency policy, and to insure the close involvement of Tribal 
Governments in making decisions and managing environmental programs 
affecting reservation lands.''

    EPA's Indian Policy goes on to recognize Tribes as the primary 
parties for setting standards, making environmental policy decisions, 
and managing programs for Indian reservations consistent with Agency 
standards and regulations. The policy states that EPA will, consistent 
with the Federal trust responsibility, assure that Tribal concerns and 
interests are considered where EPA's actions and/or decisions may 
affect reservation environments. Similarly, the guidance document for 
implementing EPA's Indian Policy states, among other things, that:

    ``[w]here EPA manages Federal programs and/or makes decisions 
relating directly or indirectly to reservation environments, full 
consideration and weight should be given to the public policies, 
priorities and concerns of the affected Indian Tribes as expressed 
through their Tribal Governments. Agency managers should make a 
special effort to inform Tribes of EPA decisions and activities 
which can affect their reservations and solicit their input as we 
have done with State Governments. Where necessary, this should 
include providing the necessary information, explanation and/or 
briefings needed to foster the informed participation of Tribal 
Governments in the Agency's standard-setting and policy-making 
activities.''
B. 1994 Presidential Memorandum
    In addition, the April 29, 1994 Presidential Memorandum regarding 
the Government-to-Government Relations With Native American Tribal 
Governments sets forth various principles designed to clarify the 
federal government's responsibility to:
    (1) Operate within a government-to-government relationship with 
federally-recognized Tribes and
    (2) Build more effective working relationships respecting the 
rights of such Tribes to self-government.
    The Presidential Memorandum also requires agencies to consult, to 
the greatest extent practicable and to the extent permitted by law, 
with Tribal Governments prior to taking actions that affect federally-
recognized Tribal Governments and to assess the impact of Federal 
plans, projects, programs, and activities on Tribal trust resources and 
assure that Tribal Government rights and concerns are considered during 
the development of such plans, projects, programs, and activities.

Chapter 1: Introduction to Executive Order 13175

1.1 What Is Executive Order 13175 and What Am I Required to Do?

    On November 6, 2000, President Clinton issued Executive Order 
13175, ``Consultation and Coordination with Indian Tribal 
Governments,'' to establish regular and meaningful consultation and 
collaboration with Tribal officials in the development of Federal 
policies that have Tribal implications, to strengthen the United States 
government-to-government relationships with Indian Tribes, and to 
reduce the imposition of unfunded mandates upon Indian Tribes. The 
Executive Order (the ``EO'' or ``Order'')

[[Page 20319]]

established specific requirements for agencies as they develop policies 
with Tribal implications (TI) and emphasizes consultations with elected 
and duly appointed Tribal officials of Tribal governments and 
authorized intertribal organizations. For example, the Order directs 
agencies to formalize practical and achievable procedures within their 
decision-making systems to ensure that Tribal officials have the 
opportunity to consult, as required by the Order, in a ``meaningful and 
timely manner.''
    The requirements of Executive Order 13175, as described throughout 
this draft Guidance document, apply to policies that have Tribal 
implications. The Executive Order describes these types of policies as 
regulations, legislative comments or proposed legislation, and other 
policy statements or actions that have substantial direct effects on:
     One or more Indian Tribes;
     The relationship between the Federal government and the 
Indian Tribes; or
     The distribution of power and responsibilities between the 
Federal government and Indian Tribes.
    As the EO's description of policies that have Tribal implications 
is rather broad, this draft Guidance document does not identify 
specific EPA actions or types of EPA actions as examples of policies 
that are definitely subject to the EO requirements. On the one hand, it 
could be useful to understand that a specific type of action might be 
more likely to have TI. However, on the other hand, it is important to 
recognize not only that any identified types of actions may not always 
have TI, but that identifying a specific action or types of actions 
within these pages might have been construed by some managers and staff 
to be the entirety of actions that are subject to the EO. Since a broad 
array of actions are potentially subject to the EO, managers and staff 
need to carefully consider whether a given action falls within the 
scope of the EO. In this light, then, your action might have TI if it:
     Directly impacts Tribal interests, such as access to 
natural resources, that are specifically recognized by treaty, statute, 
etc.
     Directly impacts Tribal natural resources and trust lands 
that the Federal government has a responsibility to protect.
     Directly applies to lands of interest to Tribes, including 
ceded land where Tribes retain usufructuary rights, reservation land, 
dependent Indian communities, and allotments.
     Directly applies to the activities, or impacts the 
authority, of Tribal governments.

1.2 What Are Tribal Coordination and Consultation?

[1.2] A. Coordination
    For the purposes of this draft Guidance document, coordination 
refers to the harmonization of EPA's tribal outreach and information 
dissemination/exchange activities to ensure that Tribal governments 
are:
    (1) Aware of EPA actions that might impact them and
    (2) Afforded the opportunity to alert EPA's offices and officials 
that they wish to be consulted with according to the requirements of 
Executive Order 13175 early in the process of developing those actions.
    The unique government-to-government relationship between EPA and 
Tribes presents various complexities. As discussed in Part 2.10(a) 
(Coordination and Outreach), Agency staff are encouraged to coordinate 
with Tribal governments during the early stages of action development 
to determine whether the action has potential TI that may call for 
government-to-government consultation under the EO. The Office of 
Policy, Economics and Innovation's (OPEI's) Regulatory Management 
Division (RMD) works with the members of the Agency's Regulatory 
Steering Committee (RSC) and the American Indian Environmental Office 
(AIEO) to coordinate the development and dissemination of information 
to Tribal governments regarding the Agency's regulatory activities. The 
Agency anticipates that, in the spirit of collaboration, Tribal 
governments will review the information and provide their views, in a 
meaningful and timely fashion, on whether actions may have potential TI 
and warrant further coordination or consultation with the Tribes. In 
some cases, the coordination efforts described above may be adequate 
for your action.
    Good faith efforts to reach out to and coordinate with Tribes 
should be undertaken in order to assist EPA in determining whether a 
consultation obligation under the EO exists and as part of discharging 
any duty to consult that is identified. The Agency has a Tribal affairs 
infrastructure already in place that might be helpful to you as you 
undertake these responsibilities. You may find it useful to seek the 
help of EPA staff with expertise in Tribal affairs as you evaluate your 
actions and coordinate with Tribal governments to determine if Tribal 
consultation obligations under the EO exist. For instance, the help and 
knowledge of the Indian program representatives in EPA's headquarters 
and regional offices may be of great value.
    AIEO Indian Coordinators and Indian program representatives are 
often aware of Tribal organizations that have subject matter expertise 
on the EPA action in question, and may be able to connect you with 
those groups for further insight and feedback.\4\ For example, AIEO has 
regularly scheduled conference calls with the Tribal Caucus of the 
Tribal Operations Committee, which is composed of Tribal leaders and 
Tribal environmental professionals. Most Regional Tribal Offices 
interact with a Regional Tribal Caucus as well. In another example at 
headquarters, Office of Prevention, Pesticides and Toxic Substances 
(OPPTS) works regularly with the Tribal Pesticides Program Council 
(TPPC) and the Tribal Assistance Project of Forum On State and Tribal 
Toxics Action (FOSTTA). The TPPC and FOSTTA are both composed of 
environmental directors with expertise on issues related to pesticides 
and toxic substances.
---------------------------------------------------------------------------

    \4\ Meetings with outside organizations may be subject to the 
Federal Advisory Committee Act (FACA). Consult your Office of 
General/Regional Counsel attorney to determine whether FACA applies 
to your meeting.
---------------------------------------------------------------------------

    AIEO Indian Coordinators and Indian program representatives are 
also often aware of preferred Tribal consultation protocols and special 
Tribal considerations. For example, many members of Alaska Native 
Tribes spend the summer months engaged in subsistence activities. In 
this example, non-responses to EPA inquiries during that time should 
not automatically be construed as a lack of interest. Rather, EPA's 
coordination and, as appropriate, consultation efforts should be 
implemented, where possible, when active participation in the 
development of policies likely to be of interest to these Alaska Native 
Tribes and villages can be maximized.
[1.2] B. Consultation
    The Agency generally defines Tribal consultation with Tribal 
governments as a meaningful and timely government-to-government 
dialogue with elected or duly appointed Tribal officials or authorized 
intertribal organizations (Acronyms, Abbreviations and Key 
Definitions).
    To the extent practicable and permitted by law, consultation 
consists of a meaningful and timely two-way exchange with Tribal 
officials in developing Agency actions, providing for open sharing of 
information, the full expression of Tribal and EPA views, a commitment 
to consider Tribal views in decision-making, and respect for Tribal 
self-government and sovereignty. Where one or more Tribes and the 
Agency

[[Page 20320]]

explicitly or inherently share intergovernmental responsibilities or 
administration, the Agency seeks mutually acceptable resolutions as 
part of consultation, when feasible. However, the Tribal officials 
being consulted do not have the power to stop Agency action by 
withholding consent.
    A need for Tribal consultation under the EO for an agency action is 
determined as a result of EPA evaluation, as described in 2.2 (for 
regulations, 2.6 and 2.7), and coordination. In certain limited 
circumstances as described in section 3c and section 5 of the EO and 
elaborated upon in Parts 2.6 and 2.7 of this guidance, Tribal 
consultation is required of the Agency. Where Tribal consultation is 
recommended or required, this draft Guidance also provides assistance 
on resources and personnel who can assist you in the implementation of 
Tribal consultation.

1.3 What Is the Federal Government's Relationship With Tribal 
Governments and How May Tribal Interests Be Distinct from Those of 
State and Local Governments?

    Indian Tribes are distinct entities, sometimes described as 
domestic dependent nations, exercising attributes of sovereignty over 
their members and territory. Among other things, the Federal government 
has a trust responsibility to federally-recognized Tribes arising from 
various documents, including the Constitution of the United States, 
treaties, statutes, executive orders, and court decisions, as well as 
the historical relations between the United States and the Tribes.
    Although the precise legal contours of this trust responsibility 
are not fully defined, it can be described as including general and 
specific components providing for the Federal government to, among 
other things, consult with and consider the views and interests of 
Tribes when taking actions that may affect Tribes or their resources 
and to ensure that its actions are consistent with the protection of 
Tribal rights arising from treaties, statutes and Executive Orders. 
Consistent with this responsibility and with its legal and political 
relationship with Tribes, the Federal Government works with Tribes on a 
government-to-government basis to address issues concerning Tribal 
self-government, Tribal trust resources and Tribal treaty and other 
rights.
    EO 13175 specifically recognizes the special relationship between 
the Federal government and Indian Tribes and requires that agencies be 
guided by certain fundamental principles in formulating or implementing 
policies with Tribal implications. As outlined in section 2 of the EO, 
these fundamental principles recognize that 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. They further acknowledge that the United 
States recognizes Indian Tribes as domestic dependent nations under its 
protection and that the Federal Government has enacted numerous 
statutes and promulgated numerous regulations that establish and define 
a trust relationship with Indian Tribes. In addition, the Executive 
Order recognizes that Indian Tribes exercise certain inherent sovereign 
powers over their members and territory, that they have the right to 
self-government, and that the United States supports Tribal sovereignty 
and self-determination and works with Indian Tribes on a government-to-
government basis.
    In addition, understanding the Federal/Tribal relationship and the 
unique and varied Tribal interests in lands and other natural resources 
and in respecting their sovereign prerogatives will also help in 
identifying policies that have Tribal implications in the first 
instance and developing a constructive foundation for consultation 
between the Agency and the Tribes.
    It is important to note that Tribes are distinct from state and 
local governments and that Agency actions may have unique political, 
legal and resource implications for Tribes that are not encountered 
with other governments. For instance, Tribes and Tribal members may 
retain various hunting, fishing and gathering rights in areas, or may 
attach religious and cultural significance to resources, located 
outside and at a distance from the areas of Indian country they occupy. 
In addition, economic conditions in Tribal communities may differ from 
conditions outside of Indian country and thus may uniquely affect the 
assessment of potential impacts on Tribes. Further, unlike state areas, 
the histories of some areas of Indian country and the opening up of 
some Indian reservations to settlement by non-Tribal members has 
resulted in complex relationships between Tribal and state governments 
and Tribes and non-Tribal owners of reservation land. It is important 
to consider these relationships and the integrity of reservation 
boundaries in assessing impacts of Agency actions on Tribes. For 
further information on the relationship between the Federal government 
and Tribal governments and on unique Tribal interests, contact your 
AIEO liaison or Indian Program representative and/or refer to AIEO's 
Working Effectively with Tribal Governments Guidance.

Chapter 2: Regulations (or ``Rules'')

2.1 How Will I Know If My Rule Is Subject to Executive Order 13175?

    Executive Order 13175 applies to rules with Tribal implications. As 
noted in the Chapter 1, this means a rule that has substantial direct 
effects on:
    (1) One or more Indian Tribes;
    (2) The relationship between the Federal Government and the Tribes; 
or
    (3) The distribution of power and responsibilities between the 
Federal Government and Indian Tribes.

2.2 What Resources and Tools Can I Access To Help Determine If My Rule 
Has Tribal Implications?

    There are several tools and resources you can use to help determine 
whether your rule has Tribal implications. Some of them, used 
individually, will not provide a clear determination, and therefore the 
use of several at the same time is recommended.
Collaboration with EPA Employees
    Because the guidelines are not clear, perhaps the most important 
resource to access are relevant EPA employees, including:
     RSC representative in your program office--http://intranet.epa.gov/adplibrary/rsc/index.htm.
     Tribal Liaison in your Program office--http://www.epa.gov/indian/miss.htm.
     Regional Indian Coordinator (RIC)--http://www.epa.gov/indian/region.htm.
     RMD representative--http://intranet.epa.gov/adplibrary/contacts.htm#DO.
     AIEO representative--http://www.epa.gov/indian/.
     Office of General Counsel (OGC) representative--http://intranet.epa.gov/ogc/issues.htm#assign.
Sections 2 and 3 of the Executive Order
    Sections 2 and 3 of the EO describe fundamental principles and 
policy making criteria respectively that provide the initial context 
that is unique to Tribes to assist in a TI determination. For example, 
section 2(b) of the EO states ``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.'' ``Indian tribal 
treaty and other rights'' may include Tribal interests on land and 
waters outside formal reservation boundaries. A rulemaking

[[Page 20321]]

on such lands may have Tribal implications.
Existing Analytical Tools
    EPA also has existing analytical tools that it applies to other 
entities such as states, local governments and small entities, that may 
be of some assistance when formulating your Tribal implications 
determination. The analyses used under the Federalism Executive Order 
and Unfunded Mandates Reform Act (UMRA) (See section 2.6 of the draft 
Guidance) can assist you in determining whether your rule has an 
economic impact upon a Tribe that is substantial and direct.
Preemption of Tribal Law
    With the help of Agency counsel, you might determine that your rule 
may preempt existing Tribal law, which may affect your Tribal 
implications determination.
Other Tools
    Rules that would apply directly to Indian country may be more 
likely to have Tribal implications, such as when a regulation would be 
expected to impose substantial direct compliance costs on one or more 
Tribal governments. These rules do not have to be national in scope, 
but are intended to be applied to a specific geographic area which 
includes Tribes. A Tribal implications determination can be made even 
if it does not impose substantial direct compliance costs or preempt 
Tribal law. For example, you could determine that your rule might 
directly impact Tribal interests (such as land rights and access to 
natural resources) that are specifically recognized by treaty, statute 
or federal court rulings and/or that fall within the Federal 
government's trust responsibility. Other examples of the kinds of rules 
that you should more closely scrutinize for possible Tribal 
implications include those that might:
     Establish Federal standards that must be met and/or 
implemented by Tribal governments.
     Establish or suggest safety levels or levels of protection 
of, and/or access to, waterways and/or lands and/or other resources of 
significance to Tribes or held in trust by the Federal government for 
Tribes.
     Authorize or delegate state, local, and/or Tribal 
authority over Federal environmental programs or projects in areas 
where Tribes are located.
     Affect jurisdictional arrangements between the Federal, 
state and Tribal governments.
     Establish rules in geographic areas that include Indian 
Country or lands in which Tribes have an interest.

2.3 What Do I Do If My Rule Is Subject to the Executive Order?

    The basic process that EPA follows to ensure that Agency actions 
are developed in compliance with the Executive Order consists of 
coordination, consultation, and certification to the extent that the EO 
applies. Early evaluation of rules that may have Tribal implications is 
recommended. In broad terms, the compliance assurance process for EO 
13175 includes the following steps during each stage:
[2.3] A. Coordination
     RMD disseminates early information about new EPA actions 
to Tribal Officials via the Unified Agenda of Regulatory and 
Deregulatory Actions (``Regulatory Agenda'' or ``Reg Agenda'').
     Tribal Officials have the opportunity to respond to the 
Regulatory Agenda and provide their views regarding whether actions may 
potentially have Tribal implications.
     The rulewriting office works with AIEO/RICs and the OGC/
Office of Regional Counsel (ORC) attorney assigned to the rule to 
consider Tribal views and to determine whether an action has Tribal 
implications.
     For Tier 3 Region-specific rulemakings, offices will have 
the opportunity to participate through the generic side-agreement.
     Coordination should at minimum include notification to all 
affected Tribal governments with meaningful and timely opportunities 
for elected Tribal Officials or duly appointed Tribal representatives 
to consult with EPA.
     If you determine that your rule will have Tribal 
implications and requires consultation, you should further coordinate 
with the Tribes to determine which Tribes are interested in 
participating in consultation (see ``Engaging Tribal Officials'' for 
details).
[2.3] B. Consultation
     For a complete Agency definition of ``Tribal 
consultation,'' see section titled ``What are Tribal coordination and 
consultation: Consultation.''
     For actions that have Tribal implications and impose 
substantial direct compliance costs, preempt Tribal law and/or 
establish Federal standards, the rulewriter would adhere to the 
consultation requirements of the Order.
     For actions subject to the consultation provisions of the 
Order, the program office should work with AIEO (as well as other EPA 
Indian Program and regional staff, as needed) to initiate and implement 
a consultation plan in a manner appropriate for that action.
[2.3] C. Certification
     For actions with Tribal implications, if the action is 
subject to Office of Management and Budget (OMB) review under EO 12866, 
and after the rulewriting office has completed any needed Tribal 
consultation activities, that office coordinates with AIEO to obtain 
certification that the Agency has complied with the requirements of EO 
13175 when transmitting the draft proposal or final rule to OMB.
    What you should do depends on the type of action you have. In 
general, EO 13175 puts a strong emphasis on consulting with Tribal 
officials, which are defined as elected and/or duly appointed officials 
of Indian Tribal governments (who may be different from your 
professional counterparts in Tribal government) or their authorized 
inter-tribal organizations. (Acronyms, Abbreviations and Key 
Definitions) Of course, you should continue to work with your 
professional Tribal government counterparts, but consulting with them 
may not satisfy the consultation requirements of EO 13175.

2.4 What Do I Do If My Rule Does Not Have Tribal Implications?

    If you have determined, using the guidelines in Chapter 2.2, that 
your rule does not have Tribal implications, then there are no special 
requirements under the EO that apply to your rule. You should discuss 
briefly in the preamble to your rule why the Order did not apply.
    Additionally, if you determine that there are no Tribal 
implications, but Tribal consultation occurred nonetheless, you should 
discuss briefly in the preamble to your rule any consultation that 
occurred, the nature of the Tribal government's concerns, and how you 
addressed those concerns or why EPA decided not to implement suggested 
changes.

2.5 What Do I Do If My Rule has Tribal Implications?

    If you determine that your rule has Tribal implications under any 
of the guidelines that are summarized above in Chapter 2.2, then, in 
addition to being guided by the fundamental principles set forth in 
section 2 of the EO, the general policymaking criteria of section 3 of 
the Order apply to your rule to the extent permitted by law. The 
policymaking criteria for all rules with Tribal implications include:

[[Page 20322]]

     Respect Indian Tribal self-government and sovereignty, 
honor Tribal treaty and other rights, and strive to meet the 
responsibilities that arise from the unique legal relationship between 
the Federal government and Indian Tribal governments;
     With respect to Federal statutes and regulations 
administered by Indian Tribal governments, grant the Tribes the maximum 
administrative discretion possible;
     Encourage Indian Tribes to develop their own policies to 
achieve program objectives;
     Where possible, defer to Indian Tribes to establish 
standards; and
     In determining whether to establish Federal standards, 
consult with Tribal officials as to the need for Federal standards and 
any alternatives that would limit the scope of Federal standards or 
otherwise preserve the prerogatives and authority of Indian Tribes.
    In addition, the EO may impose certain requirements to consult with 
Tribal officials regarding your rule. Those requirements are discussed 
below in Chapter 2.6 and 2.7.

2.6 What Are the Types of Rules With Tribal Implications for Which I 
Must Consult With Tribal Officials?

    The guidelines for each type of rule with Tribal implications that 
requires consultation are outlined below in paragraphs A, B, and C.
    EO 13175 identifies requirements to consult to the extent 
practicable and permitted by law, for rules:
    A. That have TI and impose substantial direct compliance costs on 
Indian Tribal governments, unless they are required by statute or 
Federal funds are provided to cover the direct costs of compliance 
incurred by the Indian Tribal government or the Tribe (EO section 
5(b)); and for rules
    B. That have TI and preempt Tribal law (EO section 5(c)); and for 
rules
    C. That have TI and that establish Federal standards. In 
determining whether to establish Federal standards, consultation with 
Tribal officials shall include consultations as to the need for Federal 
standards and any alternatives that would limit the scope of Federal 
standards or otherwise preserve the prerogatives and authority of 
Indian Tribes (EO section 3(c)(3)).
    Even if your rule has TI but does not impose substantial direct 
compliance costs, preempt Tribal law, or establish Federal standards, 
it still may be appropriate to provide an opportunity for meaningful 
and timely input by Tribal officials under separate Agency policy.
[2.6] A. Rules With Tribal Implications That Impose Substantial Direct 
Compliance Costs
    The regulatory analysis under UMRA, sections 202 and 203 may help 
you determine whether your EPA rule places substantial direct 
compliance costs upon Tribal governments. An explanation of the UMRA 
analysis follows below.
    However, these UMRA analyses are not determinative due to the 
economic hardships that some Tribes endure. The Census Bureau reported 
in 1999 that ``the percentage of American Indians and Alaska Natives 
living below the poverty level (25.7%) was over two times greater than 
for all other people in the United States (12.4%).'' \5\ Many Tribes do 
not have a reliable stream of revenue, and no tax base. Additionally, 
many Tribes depend heavily upon federal funding to administer Tribal 
environmental programs. Therefore, seemingly innocuous direct 
compliance costs may be substantial for some Tribes.
---------------------------------------------------------------------------

    \5\ See http://www.census.gov/prod/cen2000/phc-5-pt1.pdf 
Characteristics of American Indian and Alaska Native by Tribe and 
Language: 2000, Table 13: Poverty Status in 1999 for Selected 
American Indian and Alaska Native Tribes.
---------------------------------------------------------------------------

    [2.6-A] 1. Significant Federal intergovernmental mandate under UMRA 
Section 202. If your rule contains a significant federal 
intergovernmental mandate within the meaning of section 202 of UMRA--
i.e., it is likely to result in the expenditure by State, local, and 
Tribal (SLT) governments \6\ in the aggregate of $100 million or more 
in any one year--then EPA should conclude the rule also has TI and 
imposes substantial direct compliance costs thus triggering the 
requirements of section 5(b) of the EO, unless:
---------------------------------------------------------------------------

    \6\ The UMRA section 202 Federal intergovernmental mandate 
trigger is based on the aggregate expenditures by State, Tribal and 
local governments. Although the definition of TI does not include 
effects on State and local (S/L) governments, we nonetheless use the 
UMRA section 202 trigger with minor modification to make the test 
easy to apply. If you believe your rule primarily affects S/L 
governments and only has minimal impacts on Tribes, consult with 
your Regulatory Steering Committee Representative and the attorney 
assigned to your rule to determine whether it is appropriate to 
conclude your rule has TI.
---------------------------------------------------------------------------

     The rule is required by statute,
     Federal funds are provided to cover the Tribal 
Governments' or Tribe's compliance costs of the rule, or
     You can demonstrate that the costs to Tribes are minimal.
    We interpret the phrase, ``required by statute,'' to mean that the 
action is specifically and explicitly compelled by statute without the 
use of any discretion by EPA. While our rules are authorized by 
statute, most are not specifically and explicitly compelled by statute 
without the exercise of our discretion.
    [2.6-A] 2. Impact on Small Governments under UMRA Section 203. 
While UMRA defines ``small government'' to include Tribal governments, 
we recognize that economic data for small governments is available only 
for local governments and generally does not include Tribal 
governments. As described above, Tribal revenues may be less than that 
of other small governments. With this recognition in mind, if your rule 
will significantly or uniquely impact small governments (e.g., the cost 
of the rule is likely to equal or exceed 1% of their revenues), then as 
a policy matter, EPA should conclude the rule also has TI and imposes 
substantial direct compliance costs thus triggering the requirements of 
section 5(b) of the EO, unless:
     The rule is expressly required by statute without the use 
of any discretion by EPA,
     Federal funds are provided to cover the Tribal 
governments' or Tribes' compliance costs for the rule, or
     You can demonstrate that no Tribes are directly regulated 
or that the costs are minimal.
    Tip for combining consultation under UMRA and EO 13175: If your 
rule contains a significant Federal intergovernmental mandate under 
UMRA section 202, then section 204 requires you to consult with elected 
officers of State, local, and Tribal governments or their designated 
employees with authority to act on their behalf. Likewise, if your rule 
has a significant or unique impact on small governments under UMRA 
section 203, you must allow officials of affected small governments 
(including Tribes) to provide meaningful and timely input into the 
development of your rule. Thus, consultation under UMRA does not have 
to be with elected officials. However, where consultation is called for 
under EO 13175, the consultation must be with ``Tribal Officials,'' 
which is defined as elected or duly appointed officials of Indian 
Tribal governments or authorized interTribal organizations. Thus, 
unless consultation under UMRA is conducted with Tribal representative 
that also qualify as ``Tribal Officials'' under the EO, the 
consultation under UMRA will not satisfy consultation requirements 
under EO 13175.
[2.6] B. Rules With Tribal Implications That Preempt Tribal Law
    Generally, preemption is the doctrine that holds that certain 
matters are of such a national, as opposed to local,

[[Page 20323]]

character that Federal laws take precedence over non-Federal laws. When 
preemption occurs, a Tribal government may not pass a law that is 
inconsistent with the Federal law. There are generally three types of 
preemption:
     Express preemption: Congress' intent to preempt non-
Federal law is stated expressly in the Federal statute.
     Field preemption: Occurs where Congress' creation of a 
pervasive system of Federal regulation makes reasonable the inference 
that Congress left no room for other governments to supplement it, or 
where an Act of Congress touches a field in which the Federal interest 
is so dominant that the Federal system is assumed to preclude 
enforcement of non-Federal laws on the same subject.
     Conflict preemption: Occurs when Federal law is in direct 
conflict with non-Federal law or where non-Federal law stands as an 
obstacle to the achievement of Federal objectives.
    In general, minor amendments to an existing preemptive program 
probably will not trigger the consultation and other requirements of 
section 5(c) of the EO which relates to rules with TI that preempt 
Tribal law. [Note: Such rules could still have TI for other reasons 
even if they don't preempt Tribal law or trigger 5(c).] On the other 
hand, a significant new preemptive program may create TI and preempt 
Tribal law for purposes of section 5(c).
    Application of the principles of preemption in the context of 
Federal and Tribal laws may raise significant and complex issues. 
Consult with the AIEO, OGC/ORC attorney assigned to your rule, your RIC 
(if applicable) and your RSC/RRC Representative to determine whether 
your rule has TI and preempts Tribal law.
[2.6] C. Federal Standards
    Section 3(c) of EO 13175 states:
    (c) When undertaking to formulate and implement policies that have 
Tribal implications, agencies shall:
    (1) Encourage Indian Tribes to develop their own policies to 
achieve program objectives;
    (2) Where possible, defer to Indian Tribes to establish standards; 
and
    (3) In determining whether to establish Federal standards consult 
with Tribal officials as to the need for Federal standards and any 
alternatives that would limit the scope of Federal standards or 
otherwise preserve the prerogatives and authority of Indian Tribes.

2.7 What Should I Do if My Rule Has Tribal Implications and I Am 
Required To Consult?

     There are three possible scenarios under which you would 
decide to consult with Tribal officials:
     You have determined there are no Tribal implications but 
EPA should consult for some reason,
     You have determined there are Tribal implications and that 
consultation is not required, but EPA should consult for some reason, 
and
     You have determined there are Tribal implications and that 
consultation is required.
[2.7] A. Consultation Plan Development
    If you decide that consultation is either recommended or required 
under any of the above three possible scenarios, you should develop a 
Tribal Consultation Plan for your action. The consultation plan should 
outline an appropriate mix and sequence of Tribal consultation 
activities that will occur in a timely manner as you develop your 
action, and be tailored to the estimated impacts on Tribal Governments, 
complexity and controversy of issues involved, and other specific 
circumstances surrounding the rule. A description of issues to consider 
as you develop your consultation plan is provided in the document 
Recommendations for Developing Tribal Consultation Plans.
    Your consultation plan should be developed to synchronize with 
steps outlined in EPA's ``Action Development Process'' \7\, which 
identifies the steps that you will follow as you develop your action. 
As you create and implement your Consultation Plan, you should be 
guided and informed by the Fundamental Principles set forth in section 
2 of the EO and Policymaking Criteria in section 3 of the EO. For 
example, as stated in section 2,
---------------------------------------------------------------------------

    \7\ The Action Development Guidance is available at (http://intranet.epa.gov/adplibrary).

    The United States has a unique legal relationship with Indian 
Tribal governments * * *. 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.
    * * * 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.

    EO Sec.  3(a) in part states:

    Agencies shall respect Indian Tribal self-government and 
sovereignty, honor Tribal treaty and other rights, and strive to 
meet the responsibilities that arise from the unique legal 
relationship between the Federal Government and Indian Tribal 
governments.

    As you create and implement your Consultation Plan, it is 
recommended that you obtain input and views from the following 
resources:
     Tribal Liaison in your Program office (http://www.epa.gov/indian/miss.htm);
     RSC representative and Regional Regulatory Contact (RRC) 
(http://intranet.epa.gov/adplibrary/rsc/index.htm);
     AIEO representative (http://www.epa.gov/indian/); and
     RIC (http://www.epa.gov/indian/region.htm).
[2.7] B. If I Am Required To Consult With Tribal Officials Under 
Section 5 of the Executive Order Because My Rule Has Tribal 
Implications and Imposes Substantial Direct Compliance Costs and/or 
Preempts Tribal Law, Are There Certain Requirements in Section 5 of the 
Executive Order With Which I Must Comply?
    Yes. In particular, section 5 of the EO directs you, to the extent 
practicable and permitted by law, to do the following:
    1. Consult with Tribal officials;
    2. Your consultation must be ``meaningful and timely.'' Generally, 
we interpret ``meaningful and timely'' as beginning consultation with 
appropriate Tribal representatives as early as practicable in the 
development of the proposed action. It also means that you should 
strive to provide Tribal officials with information, to the extent that 
it is available, that will enable them to assess (and subsequently 
describe) potential Tribal impacts and views.
    This consultation and information exchange should continue as you 
develop the proposed rule to give appropriate Tribal representatives an 
opportunity to consider and comment on our proposed approach for the 
issues that are of concern to them. If EPA substantially changes its 
selected approach on these issues after the proposed rule's comment 
period, you should let those you consulted know about the change and 
why we made it, as appropriate.
    3. In a separately identified portion of the preamble to the 
regulation, provide a Tribal summary impact statement, which consists 
of:
     A description of the extent of the Agency's prior 
consultation with Tribal officials,
     A summary of the nature of their concerns and the Agency's 
position

[[Page 20324]]

supporting the need to issue the regulation, and
     A statement of the extent to which the concerns of Tribal 
officials have been met.\8\
---------------------------------------------------------------------------

    \8\ As a matter of policy, we recommend that you include the 
Tribal summary impact statement in the preamble to the proposal, as 
it helps alert Tribes to their potential interests, as well as in 
the final rule. The EO calls for consultation early in the process 
of developing the proposed regulation so consultation should predate 
both the proposed and final rules.
---------------------------------------------------------------------------

    4. If your draft final rule has TI and is subject to OMB review 
under EO 12866, section 7(a) of EO 13175 states that you must include, 
in the package you send to OMB, an ``EO 13175 Compliance 
Certification'' signed by EPA's Designated EO 13175 Compliance 
Official, the Director of AIEO, certifying that the Agency has met the 
requirements of the Order in a meaningful and timely manner in 
promulgating the rule. The EO 13175 Compliance Certification should be 
prepared after the rulewriting office has completed any needed Tribal 
consultation activities, and included in the draft proposal or final 
rule package that you will transmit to OMB. See section 2.11 for more 
information on how the certification form will be processed.
    5. In addition, under section 5 of the EO you must make available 
to OMB any written communications submitted to the Agency by Tribal 
officials.

2.8 What Steps Do I Follow for My Rule?

    In the broad sense, EPA's ``Action Development Process'' \9\ will 
serve as the vehicle for coordinating with Tribes to identify Tribal 
implications and complying with the Order.
---------------------------------------------------------------------------

    \9\ The Action Development Guidance can be found at http://intranet.epa.gov/adplibrary.
---------------------------------------------------------------------------

2.9 What Help and Participation Can I Expect as I Develop My Rule?

    The AIEO oversees and coordinates the Agency-wide effort to 
strengthen public health and environmental protection in Indian country 
and oversees development and implementation of EPA's Indian Policy, 
including implementation of the EO, across the Agency. EPA's Indian 
Program staff can help you with your efforts to comply with Executive 
Order 13175. Contact information for AIEO, Headquarters and Regional 
staff, is available at http://www.epa.gov/indian/miss.htm.
    EPA's RSC coordinates the Agency's rulemaking process and includes 
representatives for each Assistant Administrator (AA) and each Regional 
Administrator (RA). As part of the Office of Water (OW), the interests 
of AIEO are represented on EPA's RSC by the OW committee member. Like 
other members of the RSC, the OW representative reviews tiering forms, 
Regulatory Agenda entries, and other reports to identify rules under 
development that warrant or necessitate the AA-ship's participation.
    For Tier 1 and Tier 2 rules, OW, like each of the other AA-ships 
and Regional offices, has an opportunity to confirm their participation 
in a formal role as a workgroup participant as well as the option to 
concur or non-concur that the Agency should issue a regulation as 
drafted.
    The preliminary TI determination should preferably be made before 
the action is tiered. If TI is determined and consultation is 
determined to be necessary, the Tiering form should reflect that 
determination and note that OW/AIEO is requested to be a workgroup 
member or have a side agreement. As described in the above paragraph, 
AIEO or OW on AIEO's behalf would then reply in the affirmative to the 
tiering request to confirm that they will participate in a formal role 
as a workgroup participant or that they will request a side agreement.
    You are encouraged to contact your RSC representative or RRC about 
any help they can give you as you plan or conduct your consultation. If 
you determine that your rule has TI after it has been tiered, alert 
your AA-ship's RSC representative as soon as possible in order to 
arrange for any appropriate formal workgroup participation by OW/AIEO.
    It is important that you provide the AIEO workgroup member with 
timely information, such as drafts of requested consultation plans or 
Tribal summary impact statements, and that you carefully consider and 
respond, as appropriate, to their comments at the earliest stages of 
rulemaking. The following chart provides a summary of the stages in the 
rulemaking process where you may interact with OW/AIEO:

------------------------------------------------------------------------
                                     OW/AIEO participation on rules with
               Step                          tribal implications
------------------------------------------------------------------------
Tiering...........................  You should consult with AIEO before
                                     making your initial TI
                                     determination. AIEO participates on
                                     all rules that have TI. If you
                                     determine that your rule has TI,
                                     AIEO should participate on your
                                     workgroup either as an active
                                     member or through a ``side
                                     agreement'' between the lead office
                                     and OW to forward your consultation
                                     plan to AIEO. OW/AIEO may also have
                                     side agreements on Tier 1 and Tier
                                     2 rules. If you cannot make a TI
                                     determination at the tiering stage
                                     (and for many rules, you may not be
                                     able to), alert your AA-ship's RSC
                                     representative to arrange for any
                                     appropriate formal workgroup
                                     participation by OW/AIEO as soon
                                     you as you determine that your rule
                                     has TI.
Analytic Blueprint/Consultation     You should work with AIEO in
 Plan.                               developing your analytic blueprint/
                                     consultation plan.
Final Agency Review (Tier 1 and 2   If OW/AIEO participates on your Tier
 rules only).                        1 or Tier 2 workgroup, they should
                                     participate in Final Agency Review
                                     of your rule. Like all
                                     participating offices, OW (in
                                     representation of AIEO and its
                                     other program offices) is asked to
                                     concur, concur with comment, or non-
                                     concur on the draft rule and
                                     preamble. You should alert the OW
                                     RSC representative if your rule has
                                     TI. If they non-concur, you should
                                     include their comments in the
                                     Action Memo sent by your AA to the
                                     Administrator, or in the memo to
                                     your AA requesting his or her
                                     signature on your rule.
OMB Review under EO 12866.........  Under EO 13175, EPA's Designated EO
                                     13175 Compliance Official (the
                                     Director of AIEO) must certify each
                                     final rule with TI that will be
                                     reviewed by OMB under EO 12866. RMD
                                     will coordinate certification of
                                     your rule by the Designated EO
                                     13175 Compliance Official.
------------------------------------------------------------------------


[[Page 20325]]

2.10 How Do I Begin the ``Tribal Consultation'' Process?

A. Coordination and Outreach
    Coordination and outreach provide the key building blocks that lead 
to full-blown consultation. Coordination and outreach allow for early 
information exchange, issue education, problem identification, and the 
eventual establishment of consultation protocols. Early coordination 
with Tribes and Tribal interests can help to inform the final 
determination that the rule does or does not have TI.
    [2.10-A] 1. Outreach through regulatory reports. The Agency has a 
number of routine means to alert the public, including Tribal 
officials, that EPA is developing regulations. For example, EPA 
publishes the Regulatory Agenda twice each year. The Regulatory Agenda 
describes EPA's planned rulemakings, identifies anticipated schedules 
for proposed and final rules, and indicates which rules are likely to 
have impacts on State, local, and Tribal Governments.
    OPEI intends to send a copy of the Regulatory Agenda to each 
federally recognized Tribe upon publication bi-annually. This 
information is made available via the Internet (http://www.epa.gov/regagenda).
    When the Regulatory Agenda is disseminated to the Tribes, EPA 
should also specifically request that the Tribal governments review the 
regulatory information and respond to the EPA program offices with an 
indication of actions that may have potential Tribal implications and 
information to help the Agency understand such implications. The Agency 
should also strive to make this information available electronically 
through AIEO's Internet site (http://www.epa.gov/indian) and the 
Federal government's interagency Web site, Codetalk (http://www.hud.gov/offices/pih/ih/codetalk/index.cfm). This information 
exchange helps ensure that Tribal Officials are afforded early and 
meaningful opportunities to provide input on regulations that may 
require consultation.
    Your determination of whether an action has TI should be made with 
the help of AIEO and the OGC/ORC attorney assigned to your rule. You 
should carefully assess the feedback of Tribal governments before 
making your TI determination. The sections above explain how you should 
generally proceed within the rulemaking process after you make the 
determination that your rule does or does not have TI. You should still 
continue to work with your RSC representative to provide periodic 
updated regulatory information to Tribes. As stated earlier, a lack of 
Tribal responses to EPA inquiries during a time period should not 
automatically be construed as lack of interest, nor should you 
immediately infer that the lack of feedback regarding the potential 
impacts on Tribes means that the rule will not have TI. However, if 
after a meaningful and timely effort at consultation, there is no 
response from any Tribal Officials, these efforts will be sufficient to 
satisfy the EO with respect to your action's promulgation.
    [2.10-A] 2. Outreach through forums for hearing Tribal concerns and 
perspectives. We also strongly encourage you to take advantage of 
existing EPA resources, contacts within your AA-ship's Lead Region, and 
the Agency's existing relationships with Tribal entities, be they EPA 
Indian program staff, advisory committees, and/or Tribal organizations. 
Your program office's Indian Coordinator/RIC and AIEO staff have 
developed relationships with Tribes and are well versed in areas of 
particular concern to Tribes. Your work with organizations representing 
Tribal interests may not satisfy the consultation requirements of the 
EO because representatives of these bodies are not necessarily 
authorized to speak officially on behalf of their respective Tribes. 
However, these organizations may provide you with valuable information 
and perspectives, as well as help you identify whether your rule has 
the potential to have more than a minimal impact on Tribes. They may 
also be able to recommend with whom you should/may consult.
    In addition to the attorney assigned to your rule and your RSC/RRC 
Representative, your program office's Tribal coordinator/RIC, and EPA's 
Indian Program staff are the most appropriate internal contacts to help 
evaluate Agency actions for Tribal implications, identify the 
appropriate Tribal representatives and organizations, and facilitate 
contacts with those Tribal representatives and organizations. For a 
list of those contacts, see 2.10-C.
    You should also consider soliciting input on the potential impact 
of your rule from EPA's TOC and RTOC, respectively. These committees 
are composed of EPA's senior leadership, Tribal leaders and/or their 
Tribal environmental program managers.
    Engaging the TOC and RTOCs to discuss your rule, inviting input and 
comment from Tribes, and providing further outreach, if needed, may 
help bring about important insights and perspectives. Again, while the 
TOC and RTOCs are important and effective vehicles for enhancing 
communications between EPA and the Tribes, your work with them may not 
a substitute for Agency consultation with Tribal Officials under the 
EO. However, the TOCs or ROTCs may be able to identify Tribal Officials 
with whom you should consult.
    You may also consider soliciting input on the potential impact of 
your rule by publishing articles in EPA or other newsletters that reach 
Indian country, through electronic forums such as EPA Web sites, 
through e-mails directly to Tribal governments/environmental staff, or 
through other forums.
[2.10] B. Engaging Tribal Officials
    If you determine that your rule will have TI and requires 
consultation, you should further coordinate with the Tribes to 
determine which Tribes are interested in participating in consultation. 
You should prepare a letter from your senior program manager or AA to 
Tribal leaders that:
     Extends an opportunity to consult on the rule, and
     Requests that the Tribal leader identify the manner in 
which he or she wishes to be consulted, if at all, and/or identify a 
Tribal official, employee or inter-Tribal organization that is duly 
authorized to consult with the Agency on the Tribal leader's behalf. 
(Note: Meetings with inter-Tribal organizations may be subject to 
FACA.)
    As part of that mailing, we recommend that you include your 
appropriate contact information and options for Tribes to recommend and 
return in order to simplify the response process. Once the consultation 
options have been identified, the Program office will develop a 
consultation plan in concert with AIEO.
[2.10] C. Consultation With Tribal Officials
    As discussed in sections 2.6 and 2.7, sections 3(c)(3) and 5 of the 
Order create requirements for EPA to consult with Tribal officials 
under certain circumstances on rules with Tribal implications and 
substantial direct compliance costs or that pre-empt Tribal law or that 
establish Federal standards. Such consultation should involve AIEO, 
rulewriters, and high-level program office representatives. Senior 
program managers should be involved because the Agency may be 
consulting with high-level officials in Tribal government. Given the 
government-to-government relationship between the Federal government 
and the Tribes, your AA/RA would optimally be involved in the 
consultation activity, or

[[Page 20326]]

at a minimum, delegate that responsibility to a senior program manager.
    The key to successful consultation is early notice and early 
initiation of contact with elected Tribal officials to promote adequate 
input during the regulatory development process. Important to the 
process is a willingness to go to the Tribes openly without 
preconceived outcomes, and to listen to the concerns and issues the 
Tribes bring to the process. It is in this climate of mutual respect 
and sharing of information that the concept of consultation can be 
realized.
    It is also important to identify opportunities to engage the Tribes 
in outreach activities, such as scheduling special or separate sessions 
for Tribes at public hearings, attending National Tribal Forums, and 
other such meetings as circumstances warrant. This helps to ensure that 
Tribes continue to be informed of any actions with potential Tribal 
implications. Each rule may call for a different approach to 
consultation, and flexibility in this process will be a hallmark of 
successful collaboration.
    [2.10-C] 1. How much consultation is appropriate? The amount and 
type of outreach and consultation for a rule should be commensurate 
with its estimated impacts on Tribal governments, its complexity, and 
controversy over the issues involved. This approach focuses the most 
extensive outreach and intensive consultation efforts on those 
regulations of greatest interest to, and potential effect on, Tribal 
governments. Recognizing that Tribal officials are often in a better 
position than EPA to identify the potential political and resource 
implications of regulations EPA is considering, you are strongly 
encouraged to coordinate with potentially affected Tribal leaders 
before deciding how much consultation would be appropriate and before 
preparing a final consultation plan. Consultation is especially 
important at key points in the process, such as options selection. AIEO 
can help you to determine appropriate levels of consultation.
    Tribal consultation for rules with TI that are expected to preempt 
Tribal law and/or impose substantial direct compliance costs should 
begin early in the process of developing the proposed regulation. 
Proposed regulations that have benefitted from Tribal involvement in 
their development inherently have greater support from the regulated 
entities, and the possibility of poor reception to a proposed rule from 
those affected is diminished.
    [2.10-C] 2. How do I communicate with Tribal officials? Because of 
the large number of Tribal governments that you may potentially 
consult, there is no one-size-fits-all approach to Tribal consultation. 
You should tailor the consultation process, using the approach 
described above in C.1, to the regulation that you are developing. 
However, it is very important that a senior manager sign correspondence 
between EPA and the Tribes, and be present at conference calls and in-
person meetings, especially during initial contact. Authority may be 
delegated--by both EPA and the Tribes--as appropriate, keeping in mind 
the government-to-government relationship and the importance of 
choosing appropriate personnel for these sensitive dialogues.
    Once the consultation plan has been developed, confirm the time-
line and provide the Tribes with enough information so that meaningful 
dialogue is promoted. Whether through teleconferences or face-to-face 
meetings, it is important to continue the dialogue, obtain input from 
the Tribes, and provide feedback.
    You should carefully consider what information to prepare and 
provide to Tribal government representatives. Information can serve two 
purposes:
    (a) To promote understanding of what EPA is planning and why, and
    (b) To foster participation of these officials in the rulemaking 
process.
    To consult with Tribal officials, you should design information 
specifically for their needs and interests. Materials designed for 
Tribal government officials should be in plain language and, to the 
extent such information is available:
     Describe clearly the problem the rule is intended to 
address.
     Explain the basis for determining there is a problem.
     Point out whether the problem is regional or national in 
scope.
     Explain how the rule will improve on present conditions.
     Identify who will benefit from the rule.
     Identify what facilities or operations will be subject to 
the requirements.
     Explain whether and how the benefits of the rule can be 
measured.
     Identify who will pay for the rule.
     Provide information on potential costs and benefits.
     Explain any flexibility in the rule that would allow for 
adjustments to Tribal conditions or circumstances.
    Some of this information may not be available until later in 
developing a proposed rule. You may, however, begin your consultations 
without full information and provide further information as it becomes 
available.
    [2.10-C] 3. What types of consultation should I consider? You 
should explore a variety of alternative approaches to consulting with 
Tribal government officials when developing a regulation--including 
one-on-one discussions, public meetings, Tribal summits, workshops, 
policy dialogues in formal advisory committees, written correspondence 
and regulatory negotiations.\10\ You can also work with the TOC and 
RTOC to identify possible avenues for consulting with Tribal officials 
and via consortia, as appropriate or agreed upon. Remember, Tribes may 
not want or need to consult face-to-face but they should be offered the 
opportunity to consult if a proposed rule has TI and preempts Tribal 
law or imposes substantial direct compliance costs. Regardless, you 
should involve AIEO and the OGC/ORC attorney assigned to your rule when 
discussing these approaches, for example, in your consultation plan. 
You will need to be aware of any legal requirements that may apply to 
your approach (including, for instance, requirements of the Paperwork 
Reduction Act) and ensure your outreach and consultation activities are 
consistent with the law.
---------------------------------------------------------------------------

    \10\ Meetings with outside organizations may be subject to the 
Federal Advisory Committee Act (FACA). Consult your Office of 
General/Regional Counsel attorney to determine whether FACA applies 
to your meeting.
---------------------------------------------------------------------------

    [2.10-C] 4. Does the Federal Advisory Committee Act (FACA) apply to 
consultations with Tribal government representatives? Under UMRA's FACA 
exemption, FACA does not apply to meetings that are ``exclusively 
between Federal officials and elected officers of State, local, and 
Tribal governments (or their designated employees with authority to act 
on their behalf) acting in their official capacities, [provided that 
the] meetings are solely for the purposes of exchanging views, 
information, or advice relating to the management or implementation of 
Federal programs established pursuant to public law that explicitly or 
inherently share intergovernmental responsibilities or 
administration.'' [UMRA 204(b), 2 U.S.C. 1534(b)]. OMB construes the 
UMRA exemption broadly \11\ to facilitate intergovernmental 
communications.
---------------------------------------------------------------------------

    \11\ Guidelines and Instructions for Implementing section 204, 
``State, Local, and Tribal Government Input,'' of Title II of Public 
Law 104-4, Alice M. Rivlin, Director, Office of Management and 
Budget, September 21, 1995, pages 6-7.
---------------------------------------------------------------------------

    Caution!! UMRA's exemption to FACA might not apply to your meeting!
    While OMB construes the exemption broadly, it applies only to 
meetings convened solely to discuss matters

[[Page 20327]]

relating to intergovernmental responsibilities or administration. 
Meetings relating to situations in which the Tribe is a regulated party 
likely are not exempt from FACA. Even if your meeting is not covered by 
the UMRA exemption, other statutes may still govern whether and how you 
are to consult with Tribal governments.\12\
---------------------------------------------------------------------------

    \12\ Mandatory consultation provisions with Tribes (and other 
affected entities) may exist in statutes and regulations that may 
not be directly administered by EPA, but which may nevertheless 
obligate the Agency to consult. E.g., the National Historic 
Preservation Act (NHPA) and the Native American Graves Protection 
and Repatriation Act (NAGPRA) are not directly administered by EPA; 
however, circumstances may exist which require consultation under 
these statutes. Check with OGC and/or ORC for legal interpretations 
of the consultation-related provisions in the various statutory and 
regulatory schemes.
---------------------------------------------------------------------------

    [2.10-C] 5. Should I keep records of Tribal consultations? In 
general, yes. It is generally recommended to keep records of 
consultation activities that you undertake related to the Order, and 
place them in the docket of the rulemaking. This helps to readily 
document compliance in the event of questions, either from EPA's 
Designated EO 13175 Compliance Official or from OMB. However, it is 
also important to promote a full and frank exchange of views during 
government-to-government consultation with Tribes, which may include 
discussions relating to issues of unique sensitivity to Tribes such as 
Tribal cultural practices and uses of environmental resources, 
locations of Tribal cultural resources, Tribal relationships with 
surrounding States, jurisdictional issues, etc. In preparing any 
records memorializing consultations with Tribes, you should consider 
these potential sensitivities in determining the level of detail to 
include. You should also consider and, as appropriate, consult with the 
Tribes regarding the fact that memorializations of consultations (or 
other documents) exchanged between EPA and Tribes may not necessarily 
be privileged or otherwise protected from disclosure under the Freedom 
of Information Act. You should consult with your OGC/ORC contact in 
evaluating these issues.

2.11 Process for Executive Order 13175 Certification

    If a draft final regulation has substantial, direct effects on 
Tribal governments (i.e., Tribal implications), a designated agency 
official must certify that EPA has complied with the relevant 
requirements of EO 13175, pursuant to section 7(a) of the Order.
    If the draft final regulation will be reviewed by OMB pursuant to 
Executive Order (EO) 12866 and it has Tribal implications, complete the 
form and submit it to OPEI's RMD with your EO 12866 submission package. 
OPEI will transmit this form to OMB when submitting the final rule to 
OMB pursuant to EO 12866.
    For Tier 1 and 2 rules, OPEI's RMD will generate the EO 13175 
Compliance Certification in preparation for the Final Agency Review 
meeting and coordinate signature by the Designated EO 13175 Compliance 
Official.
    For Tier 3 rules, the RSC representative or RRC will send the rule 
and an unsigned certification form to RMD when the rule is ready for 
certification and submission to OMB. RMD will coordinate signature by 
the Designated EO 13175 Compliance Official.
    Program offices place the EO 13175 Compliance Certification form in 
the docket of the rulemaking.

2.12 How Does EPA Track and Record Actions That May Be Affected by the 
Executive Order?

    OPEI gathers a listing of all rules that will have any effect on 
Tribal governments in order to prepare EPA's semi-annual Regulatory 
Agenda.
    The status of Tribal consultation plans (e.g., under development, 
consulting with AIEO, outreach initiatives) is monitored throughout the 
action development process.
    For draft final regulations that are reviewed by OMB pursuant to 
Executive Order (EO) 12866 and have Tribal implications, the EO 13175 
Compliance Certification forms will be placed in the docket for the 
particular rulemaking.

Chapter 3--Legislative Comments or Proposed Legislation

3.1 How Does Executive Order 13175 Apply to Legislative Comments or 
Proposed Legislation Submitted by EPA?

    The Order defines ``policies that have Tribal implications'' as 
including legislative comments or proposed legislation that have 
substantial direct effects on one or more Indian Tribes, on the 
relationship between the Federal Government and Indian Tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian Tribes.
    Accordingly, if EPA is submitting official Agency legislative 
comments or proposed legislation to Congress or OMB, and the comments 
or proposed legislation have TI, the principles of section 2 and the 
general policymaking criteria provided in section 3 of the Order would 
apply (see Chapter 2.5).
    In addition, section 4 of EO 13175 contains ``Special Requirements 
for Legislative Proposals.'' The Order states that agencies shall not 
submit to the Congress legislation that would be inconsistent with the 
section 3 policymaking criteria.
    EPA interprets the EO as applying to proposed legislation or 
legislative comments that are official Agency positions with 
Administration clearance. At EPA, the Office of Congressional and 
Intergovernmental Relations (OCIR) within the Office of the 
Administrator is the Agency's principal point of contact with Congress, 
and has responsibility for developing and implementing the legislative 
agenda of the Agency.
    Legislative comments or proposals that would fall within the scope 
of the Order are typically those on which OCIR has worked with all 
Agency offices to develop and/or draft; has worked with other 
departments and agencies within the Executive Branch to obtain 
Administration-wide concurrence and clearance through OMB; and has 
communicated to Congress.
    For example, if a member of Congress or the Senate has draft 
legislation to introduce and sends a letter to the Administrator or the 
Associate Administrator asking for the Agency's position on that 
legislation, our legislative comments on that bill potentially would be 
subject to the requirements of sections 2, 3 and 4 of the Order. 
Similarly, if a member of Congress or the Senate asks EPA to submit 
draft legislation to him or her for consideration, this potentially 
would be subject to the Order.
    As with draft final rules that are subject to OMB review under EO 
12866, when OCIR transmits to OMB for clearance any proposed 
legislation that has TI, OCIR must include an EO 13175 Compliance 
Certification Form signed by the Designated EO 13175 Compliance 
Official that states that EPA has met the requirements of the Order. In 
this case, the certification would state we have met the ``Special 
Requirements for Legislative Proposals'' contained in the Order.
    Within EPA, the responsibility for determining whether there are TI 
and following the Order's requirements falls on the program office that 
has the lead for drafting the substance of the draft legislation or 
legislative comments. The lead office should work closely with its OGC 
or ORC attorneys and AIEO staff.

[[Page 20328]]

3.2 Does the Executive Order Apply When EPA Provides Comments to 
Another Agency on Their Draft Legislation or Provides Technical 
Assistance to Congressional Staff?

    No. Responding to another agency's request for comments on their 
draft legislation or testimony would not be subject to the Order, as 
these are not comments submitted by EPA to Congress. The duty to 
determine whether there are any Tribal implications for the draft bill 
or legislative comments falls upon the agency that is submitting the 
bill or comments.
    Similarly, responding to a request from Congressional staff for 
technical assistance on how to craft or word a bill would not be 
subject to the Order, as EPA is merely responding to the request for 
technical assistance, not submitting to Congress draft legislation or 
official agency legislative comments.

Chapter 4--Waivers

4.1 What Does the Executive Order Require Concerning Indian Tribes 
Applying for Waivers of Statutory and Regulatory Requirements?

    Section 6 of EO 13175 contains requirements that apply to 
applications submitted to EPA by Tribal governments seeking to waive 
some or all of the statutory or regulatory requirements that apply to 
them.
    Specifically, if the authorizing statute gives EPA discretion to 
waive some or all of the statutory or regulatory requirements as 
applied to the Tribal government(s), EO 13175 requires EPA, to the 
extent practicable and permitted by law, to:
     Streamline the process for Tribal waiver applications.
     Increase opportunities for utilizing flexible policy 
approaches where the proposed waiver is consistent with Federal policy 
objectives and is otherwise appropriate.
     Render a decision within 120 days or as otherwise provided 
by law or regulation.
     Provide timely written notice and reasons therefor if the 
waiver is not granted.

4.2 What Does the Executive Order Contain About Flexible Policy 
Approaches?

    As described above, the Order directs agencies, to the extent 
practicable and permitted by law, to consider Tribal applications for 
waivers of statutory and regulatory requirements with a general view 
toward increasing opportunities for use of flexible policy approaches. 
To this end, we encourage you to encourage Tribes to develop their own 
policies to achieve program objectives, and where possible, to defer to 
Indian Tribes to establish standards. At a minimum, under the EO you 
would be required, to the extent permitted by law, to consult with 
Tribal officials as to the need for Federal standards and to explore 
any alternatives that would limit the scope of Federal standards or 
preserve the prerogatives and authority of Indian Tribes.

Chapter 5--Permits and Licenses

5.1 Do the Requirements of Executive Order 13175 Apply to Permitting 
Activities?

    As noted throughout this draft document, EO 13175 applies to 
``policies that have Tribal implications.'' In addition to regulations 
and legislative comments/proposed legislation, which are discussed, 
respectively, in Parts 2 and 3 of this draft document, ``policies that 
have Tribal implications'' may also include other policy statements and 
actions that have substantial direct effects as described in the EO. 
EPA's position with respect to such other actions, including permitting 
actions, is that, to the extent they do not in and of themselves 
require any action or compliance by Tribal governments, these actions 
will not have direct effects on such governments and thus will not have 
Tribal implications. Permits typically apply directly to named parties 
(i.e., permittees), and it is those named parties that realize any 
direct impacts. For example, a water treatment facility applying for a 
discharge permit will be directly responsible for compliance with the 
permit and the underlying environmental statute and regulations, as 
well as the associated compliance costs. Such a facility would be the 
entity that may be directly affected by the permitting action. Any 
additional effects (for instance, on users of the water or local 
communities) would necessarily be indirect in nature. Thus, permits 
issued to non-Tribal facilities would generally be considered as not 
having Tribal implications even if the facility is located in or near 
Indian country or some other area of interest to a Tribal government 
since any effect on the Tribe would be indirect in nature. However, 
where a permit would require action or compliance by a Tribal 
government (e.g., where a Tribe or a Tribal facility is the applicant/
permittee), it is possible that the permitting action will have 
substantial direct effects as described in the EO, and EPA should 
consider whether the threshold for Tribal implications has been met.
    For permitting actions that do meet the threshold for Tribal 
implications, EPA should apply all applicable provisions of the EO for 
this type of action. Because permits are not rules and because they do 
not establish Federal standards (which, for purposes of EPA actions, 
would generally be accomplished through rulemaking), EPA's view is that 
the specific requirements, including consultation requirements, of 
sections 3(c)(3) and 5 of EO 13175 generally do not apply to permits.
    Permits typically apply directly to named parties, and therefore it 
is those named parties that receive a permit which realize any direct 
impacts. For example, a water treatment facility holding a discharge 
permit is directly responsible for compliance with the permit and the 
underlying environmental statute and regulations, as well as the 
associated compliance costs. If EPA issues a permit to a non-Tribal 
facility that is located near, but not in, Indian country, the permit 
would generally be considered to have no Tribal implications. In such a 
case, while a Tribe may in fact be impacted, it is the facility that 
realizes any direct effects of the permit. Where a Tribe is the 
recipient of a permit, then the tribe is the directly impacted, named 
party subject to compliance with the permit, the statute, and 
regulations. In these situations, a permit could have substantial, 
direct effects on a tribe. However, for permitting actions with Tribal 
implications, you must still adhere to the fundamental principles and 
federal policymaking criteria expressed in sections 2 and 3 
(respectively) of the EO. As always, you should work with the OGC/ORC 
attorney assigned to your action to address any questions about the 
applicability of EO 13175 to your action.
    Lastly and importantly, even though you may not be required to 
consult with Tribal governments on individual permitting/licensing 
actions under the terms of EO 13175, consultation with Tribal 
governments may be called for under other Federal and/or EPA-specific 
policies and/or directives. The Executive Memorandum of April 29, 1994, 
on Government-to-Government Relations with Native American Tribal 
Governments, which EO 13175 intended to supplement, and EPA's Policy 
for the Administration of Environmental Programs on Indian Reservations 
both set forth further criteria for appropriately consulting/
interacting with Tribal governments.

[[Page 20329]]

Chapter 6--Policy Statements, Guidance Documents and Similar Actions

6.1 Are EPA's Policy Statements, Guidance Documents, and Similar 
Actions Covered by Executive Order 13175?

    In addition to those actions described in Chapters 2 through 5 of 
this draft document, EO 13175 also applies to ``other policy statements 
and actions'' that have substantial direct effects. These other 
policies may include policy statements, strategies, guidelines, 
guidance and interpretive documents (collectively, ``guidance 
documents''). EPA's position is that guidance documents generally do 
not create legally binding requirements and, therefore, will not have 
``substantial direct effects on one or more Indian Tribes, on the 
relationship between the Federal Government and Indian Tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian Tribes.'' Thus, where there are no legally 
binding requirements being created, such guidance documents generally 
will not have TI and will not trigger the various relevant requirements 
of the EO. Nonetheless, other policies relating to consultation with 
Tribal governments and consideration of Tribal views may be relevant to 
your guidance document.

6.2 Do the Requirements of Executive Order 13175 Apply If My Guidance 
Document Is Not Titled a ``Rule'' or ``Regulation'' But Creates Legally 
Binding Requirements?

    Regardless of what it is called, if your guidance document does 
create any legally binding requirements (e.g., grant guidelines/
conditions--including application deadlines--upon which EPA will base 
its award decisions), the requirements of the EO may apply, and you 
should determine in consultation with your program's RSC representative 
and the attorney assigned to your action whether it has TI.\13\ 
Documents that contain legally binding requirements are generally 
subject to the TI analysis and consultation provisions in the same 
manner as rules, as discussed in Chapter 2 of this draft Guidance. As 
described in that Chapter, if your document has TI, you should consider 
whether consultation requirements of the EO are triggered by analyzing 
whether your document imposes substantial direct compliance costs on 
Tribal governments (including consideration of whether your action has 
either an UMRA intergovernmental mandate or will impact small 
governments at or above 1% of their revenues)\14\. Similarly, you 
should coordinate with OGC/ORC in analyzing whether the document would 
have preemptive effects.
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    \13\ Under the APA section 551(4), `` 'rule' means the whole or 
a part of an agency statement of general or particular applicability 
and future effect designed to implement, interpret, or prescribe law 
or policy or describing the organization, procedure, or practice 
requirements of an agency and includes the approval or prescription 
for the future of rates, wages, corporate or financial structures or 
reorganizations thereof, prices, facilities, appliances, services or 
allowances therefor or of valuations, costs, or accounting, or 
practices bearing on any of the foregoing;''.
    \14\ In general, grant guidelines don't have TI under the 
substantial cost threshold (see part [2.6-A]1) because conditions of 
federal assistance are excluded from the definition of Federal 
intergovernmental mandate under UMRA, 2 U.S.C. 658(5). But you still 
must determine whether your guideline meets any of the other 
thresholds for TI (see part 2.6A and C).
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6.3 An Important Note about Guidance Documents and EPA's Internal 
Policy on Consulting With Tribal Governments

    As noted above, EPA's guidance documents generally do not create 
legally binding requirements and most will not have Tribal 
implications. However, Tribal governments may have--or you may expect 
them to have--a heightened level of interest in certain non-binding 
guidance documents. For example, a policy statement might announce for 
the first time how EPA is planning to address a significant 
environmental problem nationally. In some circumstances, you might know 
or expect that the problem at hand is one of particular significance to 
Tribal governments, and that the policy statement would have 
significant implications for those governments.
    Even if the consultation requirements of EO 13175 and the 
considerations of other EPA and/or government-wide policies do not 
apply to your guidance document, you are nonetheless encouraged to 
engage Tribal officials--in the spirit of EO 13175 and consistent with 
EPA's objective of promoting communication between EPA and Tribal 
governments--on those guidance documents that you expect to be of 
interest to Tribal governments by:
     Consulting early, to the extent practicable given the 
nature and the timing of the action, with appropriate Tribal government 
representatives, including your professional counterparts, if they so 
desire; and
     Discussing briefly in your document any consultation that 
occurred, the nature of the Tribal government representative's 
concerns, and how you addressed those concerns or why EPA decided not 
to implement suggested changes.

[FR Doc. 06-3741 Filed 4-18-06; 8:45 am]
BILLING CODE 6560-50-P