[Federal Register Volume 77, Number 75 (Wednesday, April 18, 2012)]
[Notices]
[Pages 23283-23288]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-9372]
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DEPARTMENT OF LABOR
Office of the Secretary
Tribal Consultation Policy
AGENCY: Office of the Secretary, Labor.
ACTION: Proposed policy: Request for comments.
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SUMMARY: The Department of Labor seeks comments on a proposed tribal
consultation policy. This policy would establish standards for improved
consultation with federally recognized Indian Tribes to the extent that
a conflict does not exist with laws or regulations. It would apply to
any Department action that affects federally recognized Indian tribes
and would require that the Department's government-to-government
consultation involve appropriate Tribal and Departmental officials.
DATES: We will consider all comments received by June 18, 2012.
ADDRESSES: Submit comments and additional materials using any of the
following methods.
Electronically: Submit comments electronically through the Federal
e-Rulemaking Portal: http://www.regulations.gov. Follow the Web site
instructions for submitting comments for docket number: DOL-2012-0002.
Regular Mail, express delivery, hand (courier) delivery or
messenger service: Submit comments to Jeremy Bishop, Special Assistant
to the Secretary, Office of Public Engagement, U.S. Department of
Labor, Room C2313, 200 Constitution Avenue NW., Washington, DC 20210.
FOR FURTHER INFORMATION CONTACT: Jeremy Bishop, Office of the
Secretary, 202-693-6452 or [email protected].
SUPPLEMENTARY INFORMATION: The U.S. Department of Labor's proposed
policy on consultation with tribes is set forth below.
U.S. Department of Labor
Tribal Consultation Policy
I. Background and Purpose
A. Executive Order 13175 and the Department of Labor's
Relationship With Indian Tribes
B. Referenced Authorities
II. Guiding Principles
A. Government-to-Government Relationship and Tribal Self-
Determination
B. Open Communications and Respect for Cultural Values and
Traditions
C. Ensuring Consultation Is Meaningful
III. Policy Statement
A. Departmental Consultation Policy Generally
B. Implementation Responsibilities of DOL Operating Agencies
IV. Regulations
V. Unfunded Mandates
VI. Flexibility and Waivers
VII. Consultation Process Guidelines
VIII. Performance and Accountability
IX. Designated Officials and Points of Contact
A. Designated Departmental Official.
B. Point of Contact for Each DOL Agency.
X. Definitions
XI. Supplemental Terms and Effective Date
Appendix A--Executive Order 13175
I. Background and Purpose
A. Executive Order 13175 and DOL's Relationship With Indian Tribes
The United States has a unique legal and political relationship
with Indian tribal governments, established through and confirmed by
the Constitution of the United States, treaties, statutes, executive
orders, and judicial decisions. In recognition of that special
relationship, pursuant to Executive Order 13175 of November 6, 2000,
executive departments and agencies are charged with engaging in regular
and meaningful consultation and collaboration with tribal officials in
the development of federal policies that have tribal implications, and
are responsible for strengthening the government-to-government
relationship between the United States and Indian tribes.
The Department of Labor (DOL) has collaborated extensively with
American Indians and Alaska Natives (AI/AN) for many years in advancing
its mission of fostering job opportunities, improving working
conditions, and assuring work-related benefits and rights of workers
and retirees in the United States. In recent years, senior DOL
officials have conducted many site visits in Indian Country and
regularly engage with Indian tribes and their representatives,
including the National Congress of American Indians. The Department's
collaboration with Indian tribes encompasses a broad range of DOL
matters affecting tribes, including joint efforts to improve tribal
program management, rulemaking, regulations, policies, waivers and
flexibility, grant programs, contracting opportunities, and regulatory
guidance.
The Department's Employment and Training Administration (ETA), for
example, awards grants to Indian and Native American entities for
programs that have become a key part of improving tribal economic self-
sufficiency by ensuring that tribal workers have the skills to build
and operate new infrastructure and facilities at the tribal community
level and facilitate the creation of new business opportunities in
Indian Country. ETA's Division of Indian and Native American Programs
(DINAP) administers employment and training services grants to tribal
communities in ways that are consistent with the traditional cultural
values and beliefs of the people they are designed to serve, including
youth and at-risk populations facing employment barriers. DINAP works
closely with the Native American Employment and Training Council
(NAETC), a federal advisory committee comprised of representatives of
Indian tribes, tribal organizations, Alaska Native entities, Indian-
controlled organizations serving Indians, or Native Hawaiian
organizations appointed by the Secretary of Labor. The NAETC provides
advice to the Secretary regarding the overall operation and
administration of tribal programs authorized under Section 166 of the
Workforce Investment Act (Pub. L. 105-220, as amended), as well as the
implementation of other DOL tribal programs and services.
The Department's Women's Bureau (WB) has an ongoing relationship
with the United Indians of All Tribes Foundation and works with its
[[Page 23284]]
Procurement Technical Assistance Center to provide information to
Indian women small business owners concerning workforce development
trends and DOL contract opportunities. The WB is also part of a network
of Indian women organizations that collaborate on finding ways to end
domestic violence and abuse. The Department's Office of Federal
Contract Compliance Programs (OFCCP) works in concert with the Council
for Tribal Employment Rights to increase the employment of AI/ANs by
federal contractors and subcontractors through linkages, referrals,
training, regular communication, and sharing of information and
resources pursuant to federal contractors' obligations.
The Department's Occupational Safety and Health Administration
(OSHA) works with Indian tribes by providing compliance assistance and
including the tribes in relevant OSHA outreach and awareness campaigns
addressing worker safety and health. OSHA is making its contacts with
Indian tribes more regular and consistent, and seeks to establish
voluntary protection programs, partnerships, and alliances with tribal
groups in the interest of promoting job safety in Indian Country. OSHA
also makes available workplace safety grants that Indian tribes may
qualify for, such as the Susan Harwood Training Grants.
The Department's Mine Safety and Health Administration (MSHA)
assists Indian tribes with training programs for miners and has
provided annual grant funds to the Navajo Nation to educate miners and
mine operators on safe working practices in the mining industry and
compliance with applicable MSHA regulations.
These are among many of DOL's ongoing actions to engage with tribes
and support the efforts of tribal governments to have sustainable
tribal communities and achieve our mutual goals of ensuring fair wages,
employee rights, and workplace safety while working to alleviate the
high unemployment found on tribal lands. The Department is committed to
building on these efforts to engage in regular and meaningful
consultation and collaboration with tribal officials on policies and
actions that have tribal implications, including the development of
this formal tribal consultation policy. Accordingly, this policy has
been developed in consultation with Indian tribes and tribal officials
as set forth in Executive Order 13175.
Implementation of this tribal consultation policy will facilitate
greater consistency across the DOL in carrying out tribal consultations
and will improve collaboration with Indian tribes at all levels of
Departmental organizations and offices. This policy will also ensure
that a reporting structure and process is in place so that all
Departmental tribal consultation work will be transparent and
accountable. DOL employees having responsibility for the outcomes of
consultation and collaborative activities will be better able to assess
effectiveness and coordinate their efforts with other related
Departmental initiatives. Through these efforts, the Department
anticipates an even stronger relationship with Indian tribes and
improved program delivery to meet the needs of Indian tribes and
communities.
B. Referenced Authorities
This tribal consultation policy document was developed based upon:
1. Indian Self-Determination and Education Assistance Act, Public Law
93-638, as amended (25 U.S.C. 450 et seq.).
2. Indian Self-Determination Act Amendments of 1994, Public Law 103-413
(25 U.S.C. 450 et seq.).
3. Native American Programs Act, Public Law 93-644, as amended (42
U.S.C. 2991 et seq.).
4. Presidential Memorandum, Government-to-Government Relations with
Native American Tribal Governments, April 29, 1994.
5. Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments, November 6, 2000.
6. Presidential Memorandum, Government-to-Government Relationship with
Tribal Governments, September 23, 2004.
7. Presidential Memorandum, Tribal Consultation, November 5, 2009.
8. OMB Memorandum M-10-33, Guidance for Implementing E.O. 13175, July
30, 2010.
II. Guiding Principles
A. Government-to-Government Relationship and Tribal Self-Determination
The United States, in accordance with treaties, statutes, executive
orders, and judicial decisions, has recognized the right of Indian
tribes to self-government and maintains a government-to-government
relationship with federally recognized tribes. Indian tribes exercise
inherent sovereign powers over their members and territory. The Federal
Government has enacted numerous statutes and promulgated numerous
regulations that establish and define a trust relationship with Indian
tribes. Based on this government-to-government relationship, DOL will
continue to work with Indian tribes on its programs involving tribes in
a manner that respects tribal self-government and sovereignty, honors
tribal treaty and other rights, and meets the Federal Government's
tribal trust responsibilities.
B. Open Communications and Respect for Cultural Values and Traditions
Communication and the exchange of ideas will be open and
transparent. Department officials will respect the cultural values and
traditions of the tribes. To ensure efficiency and avoid duplicative
efforts, DOL will work with other Federal Departments to enlist their
interest and support in cooperative efforts to assist tribes to
accomplish their goals within the context of all DOL programs.
C. Ensuring Consultation Is Meaningful
The Department is committed to ongoing and continuous dialogue with
Indian tribes, both formally and informally, on matters affecting
tribal communities. Consultation is a critical ingredient of a sound
and productive federal-tribal relationship that emphasizes trust,
respect, and shared responsibility. Engaging with tribes and building
relationships with tribal officials have improved the Department's
policy toward Indian tribes on a broad range of DOL matters. The
Department is committed to further improving its collaboration with
Indian tribes and creating additional opportunities for input from all
affected tribal communities. Consultation that is meaningful,
effective, and conducted in good faith makes the Department's
operation, decision making, and governance practices more efficient.
III. Policy Statement
A. Departmental Consultation Policy Generally
In accordance with Executive Order 13175, when formulating and
implementing policies that will have tribal implications, it is the
Department's policy that, to the extent practicable and permitted by
law, consultation with affected Indian tribes will occur. As stated in
the executive order, this refers to proposed legislation, regulations,
policies, 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.
[[Page 23285]]
B. Implementation Responsibilities of DOL Operating Agencies
Each DOL operating agency will have an accountable process to
ensure meaningful and timely input by Indian tribes on policies or
actions that have tribal implications. With respect to DOL programs
administered by Indian tribal governments, operating agencies will
grant Indian tribal governments the maximum administrative discretion
permissible consistent with applicable law, contracting requirements,
and grant agreements, and will defer to Indian tribes to develop their
own policies and standards where legally permissible. The Department's
operating agencies will review their existing tribal consultation and
program administration practices, including those of their regional
offices, and revise them as needed to comply with the Department's
policy as set forth in this document. If DOL agencies require technical
assistance in conducting consultations, the designated Departmental
official's office (see section IX below) can provide and/or coordinate
such assistance.
IV. Regulations
In accordance with Executive Order 13175, to the extent practicable
and permitted by law, prior to the promulgation of any regulation that
has tribal implications and preempts tribal law, the DOL agency
involved will:
1. Notify and consult with affected Indian tribes early in the
process of developing the proposed regulation consistent with the
Administrative Procedure Act, 5 U.S.C. 551 et seq., Executive Order
12866, and Executive Order 13563, and ensure that the tribes are
informed about opportunities to participate in stakeholder meetings and
public forums about which they might not otherwise be aware;
2. Provide a tribal summary impact statement in a separately
identified portion of the preamble to the regulation as it is to be
issued in the Federal Register, which consists of a description of the
extent of the agency's prior consultation with Indian tribes, a summary
of the nature of their concerns and the agency's position supporting
the need to issue the regulation, and a statement of the extent to
which the concerns of tribal officials have been met; and
3. Make available to the Secretary any written communications
submitted to the agency by tribal officials.
On issues relating to tribal self-governance, tribal self-
determination, and implementation or administration of tribal programs,
each DOL agency will make all practicable attempts where appropriate to
use consensual mechanisms for developing regulations, including
negotiated rulemaking in accordance with the Negotiated Rulemaking Act.
For any draft final regulation that has tribal implications that is
submitted to the Office of Information and Regulatory Affairs for
review under E.O. 12866, the agency will certify that the requirements
of Executive Order 13175 have been met.
V. Unfunded Mandates
In accordance with Executive Order 13175, no DOL agency shall
promulgate any regulation having tribal implications that is not
required by statute and imposes substantial direct compliance costs on
tribal communities, unless:
1. Funds necessary to pay the direct costs incurred by Indian
tribal governments in complying with the regulation are provided by the
Federal Government; or
2. Prior to the formal promulgation of the regulation, the agency:
a. Consulted with tribal officials early in the process of
developing the proposed regulation;
b. In a separately identified portion of the preamble to the
regulation as it is to be issued in the Federal Register, provides to
the Director of the Office of Management and Budget a description of
the extent of the agency's prior consultation with representatives of
affected Indian tribal governments, a summary of the nature of their
concerns and DOL's position supporting the need to issue the
regulation; and
c. Makes available to the Director of the Office of Management and
Budget any written communications submitted to DOL by such Indian
tribal governments.
VI. Flexibility and Waivers
With respect to statutory or regulatory requirements that are
discretionary and subject to waiver by DOL, each DOL agency will review
the processes under which Indian tribal governments apply for waivers
and take appropriate steps to streamline those processes as necessary.
When reviewing any application by an Indian tribal government for a
waiver of regulatory requirements in connection with any program
administered by a DOL agency, the agency will consider the relevant
factors with a general view toward increasing opportunities for
utilizing flexible policy approaches at the Indian tribal level in
cases in which the proposed waiver is consistent with the applicable
federal policy objectives and is otherwise appropriate as determined by
the agency.
Each DOL agency will promptly render a decision upon a complete
application for a waiver. The agency will provide the applicant with
timely written notice of the decision and, if the application for a
waiver is not granted, the reasons for such denial.
VII. Consultation Process Guidelines
1. Notification. When a DOL agency or regional office determines
that a proposed policy or action will have tribal implications, whether
for an individual tribe, regionally, or nationally, the DOL agency will
have an affirmative responsibility to provide advance notice to the
potentially affected Indian tribes at the earliest practicable time,
but not less than 60 days prior to DOL's action. An Indian tribe may
initiate a request for consultation with DOL or a DOL agency on a DOL
matter that it believes has tribal implications at any time by
contacting that agency or the designated Departmental official (see
section IX), and the tribe should disseminate DOL provided information
to its members. With respect to rulemaking proceedings of general
applicability that have no unique impacts on Indian tribes, DOL
agencies may use the existing Federal Register notice and comment
process to provide notice, but should supplement this process with
targeted outreach where appropriate.
2. Subjects of Consultation. To the extent consistent with
applicable laws and administrative requirements, consultation can
involve any DOL matter having tribal implications, including but not
limited to: tribal program management, rulemaking, regulations,
policies, waivers and flexibility; grant programs; contracting
opportunities; regulatory guidance; and other matters of tribal
interest. At the same time, DOL agencies should not create undue
burdens on tribes with respect to regulations or other matters that do
not have tribal implications. Routine matters, including normal DOL
interactions with direct grantees such as monitoring, selecting
grantees, and reporting requirements do not trigger further
consultation processes under this policy. Enforcement policy, planning,
investigations, cases and proceedings are not appropriate subjects for
consultation under this policy.
3. Initial Planning and Scoping. Following notification to affected
tribes that policies or actions have tribal implications, the DOL
agency or regional office, in conjunction with the designated
Departmental official's office, should engage with those tribes
[[Page 23286]]
on initial planning and the appropriate scope of the consultation.
Initial planning and scoping should include describing the nature and
extent of the expected tribal implications; identifying any time
constraints or deadlines, relevant existing policies, and potential
resource issues; and making a determination as to the most useful and
appropriate consultation mechanism.
4. Consultation Mechanisms. The manner of consultation should be
appropriate to the nature and complexity of the matter and can occur
via mailings (e.g., for remote tribes that may not have Internet
access), one or more face-to-face meetings or meetings via
teleconference, roundtables, or other appropriate means and may include
the use of electronic media and messaging and Web site portals. All
meetings will be open to the public.
5. Conducting Consultations. When a consultation commences, DOL
will solicit the views of the Indian tribes involved on the relevant
subjects and issues. Consultation should involve a thorough examination
of the subject at issue, including discussion of cultural, economic and
other impacts on tribal programs, services, functions and activities;
compliance guidance; programmatic and funding issues if relevant; any
external constraints such as executive, judicial, or legislative
actions; and any relevant technical or other regulatory issues as they
affect tribes.
6. Frequency of Consultation Meetings. Consultation meetings may be
scheduled on a regular basis or on an as needed basis except that at
least one national tribal consultation meeting will be held by DOL each
calendar year. For example, DOL agencies may establish a quarterly or
semi-annual conference call with the tribes in order to consult with
them on the regulatory proposals being considered by the agency and
inform them about opportunities to participate in stakeholder meetings
and public forums. To reduce costs, tribes and DOL agencies will make
their best efforts to coordinate face-to-face consultation meetings to
coincide with other regularly scheduled meetings (such as multi-agency
and association meetings and regional tribal meetings).
7. Submissions of Tribal Comments. The DOL agency involved in the
consultation will communicate clear and explicit instructions on the
means and time frames for Indian tribes to submit comments to DOL on
the matter, whether in person, by teleconference, and/or in writing,
and if appropriate will allow a reasonable period of time following a
consultation meeting for tribes to submit additional materials. A
written communication on the correspondence of the highest elected or
appointed tribal official will be considered by DOL to be the official
position of the tribe on the subject at issue. If the DOL agency
determines that the Administrative Procedure Act or other federal law
or regulation prohibits continued discussion at a specified point in
the decision-making process, the agency will so inform the Indian
tribes. With respect to rulemaking proceedings of general applicability
that will have no unique impacts on Indian tribes, DOL agencies may use
existing Federal Register notices, dockets, and comment periods to
obtain tribal comments, but should supplement them with additional
means of obtaining tribal input where appropriate.
8. Time Frames. Time frames for the consultation process will
depend on the nature and complexity of the consultation and the need to
act quickly. Suggested guidelines are as follows:
a. The initial planning and scoping should take place within 30
days from the date of the issuance of the notice of the proposed
action;
b. If a consultation meeting will occur, the meeting should be
scheduled within 30 days of the completion of the planning and scoping;
c. For consultations involving one or more meetings, the
consultation process should normally be concluded within 60 days of the
final consultation meeting; for consultations not involving meetings
the consultation process should normally be concluded within 60 days of
the planning and scoping.
These time frames may be compressed in exigent situations, such as
when a critical deadline is involved, or expanded as necessary for
novel or highly complex matters.
9. Reporting of Outcome of Consultation to Tribes. The DOL agency
involved in the consultation will report the status or outcome of the
issue involved to the affected Indian tribes within 30 days of the
conclusion of the consultations on that issue. To the extent that
tribal input was not adopted, the agency will make written explanations
available.
10. Formation of Tribal Committees, Task Forces, or Work Groups.
Based on the government-to-government relationship, consultation under
this policy is generally with one or more individual tribal
governments. In some cases, it may become necessary for DOL to form a
tribal committee, task force, or work group to study a particular
policy, practice, issue, or concern. Members of such committees or work
groups will include representatives of federally recognized tribal
governments or their designees with authority to represent their
interests or act on their behalf. Tribal representation on such
committees or work groups should consist of geographically diverse
small, medium and large tribes, whenever possible. Members of these
committees or work groups shall make good-faith attempts to attend all
meetings which shall be open to the public and may establish member
roles and protocols for producing their work and obtaining input and
comment on it. All final work group products or recommendations will be
given serious consideration by the Department. [See Section XI below on
the Federal Advisory Committee Act (FACA) exemption for consultations
undertaken with officials of federally recognized tribal governments
pursuant to this tribal consultation policy.]
11. Use of Existing Statutory Advisory Committees. DOL agencies may
also use existing tribal advisory committees such as the NAETC as part
of meeting their consultation responsibilities under this policy. If
such an advisory committee is required by law to be used exclusively
for a particular function or purpose, consultation shall take place in
accordance with the requirements of such committee and nothing in this
policy requires any further consultation (see, e.g., 29 U.S.C.
2911(h)).
12. Submission of Comments by Other AI/AN Organizations. The
primary focus of formal consultation activities under this policy is
with representatives of federally recognized Indian tribal governments.
DOL recognizes, however, that in some cases the consultation process
would be negatively affected if other (non-federally recognized) AI/AN
organizations lacking the government-to-government relationship were
excluded. Accordingly, nothing in this policy prohibits other AI/AN
organizations that are not representatives of Indian tribal governments
from providing their views to the Department.
VIII. Performance and Accountability
The consultation process and activities conducted under this policy
should be accountable, transparent, and result in a meaningful outcome
for the Department and for the affected Indian tribes. To enable the
Department and the Indian tribes to effectively evaluate the
implementation and results of this consultation policy:
1. DOL agencies will maintain records of each consultation and the
manner in which the tribal concerns were addressed, and will document
the status or outcome of each subject of consultation.
[[Page 23287]]
2. DOL agencies will develop and utilize appropriate evaluation
measures to assess their efforts to determine whether their overall
consultation process is effective over time.
3. DOL agencies will report annually to the office of the
designated Departmental official on the frequency, scope, and
effectiveness of their consultation activities including any
recommendations received from Indian tribes on ways to improve the
consultation process.
4. The designated Departmental official's office will compile the
reports of the agencies and prepare an annual DOL consultation report
evaluating the overall effectiveness of this policy which will be made
available to the Indian tribes. The office will seek tribal feedback on
the annual consultation report and consider any comments from Indian
tribes and federal participants to determine whether DOL should make
any amendments to this policy.
5. The designated Departmental official's office will prepare and
submit any reports required to be submitted to the Office of Management
and Budget under Executive Order 13175 and the November 5, 2009
Presidential Memorandum.
IX. Designated Officials and Points of Contact
A. Designated Departmental Official
The designated Departmental official to coordinate the
implementation of this policy will be the Director, Office of Public
Engagement, working in conjunction with the Department's Office of
Intergovernmental Affairs in the Office of Congressional and
Intergovernmental Affairs, or other Departmental official in the Office
of the Secretary, as designated by the Secretary.
The duties and responsibilities of the designated Departmental
official include: serving as the Secretary's expert informational
resource on tribal matters; maintaining an overall understanding of
tribal concerns and issues as they relate to DOL programs and
coordinating and managing the Secretary's policies for Indian tribes;
coordination of tribal site visits for DOL executive leadership;
serving as DOL's representative on interdepartmental working groups on
tribal matters; conducting periodic intradepartmental meetings and
otherwise overseeing the implementation of the Department's tribal
consultation policy by DOL operating agencies; providing advice and
assistance to DOL agencies and regional field offices on tribal
matters; and conducting outreach to national tribal government
organizations.
B. Point of Contact for Each DOL Operating Agency
Each DOL operating agency will designate a senior official as
having primary responsibility for tribal matters. The designated
Departmental official's office will maintain an up-to-date list clearly
identifying the agency tribal officials and their contact information
and this information will be made available to Indian tribes. DOL
agencies should also designate an alternate tribal official to serve in
the absence of the primary official.
The duties and responsibilities of the agency tribal officials
include: having and maintaining knowledge of this policy and the
government-to-government relationships and sovereign status of Indian
tribes; serving as the primary liaison with Indian tribes for their
agency; ensuring the consultation responsibilities of their agencies
are carried out, including those of their regional offices; and
reporting to the administration in their respective agencies, as well
as the designated Departmental official. Unless otherwise approved by
the designated Departmental official, these responsibilities should not
be placed within the agency Offices of Civil Rights, as tribal
relations and consultations are treaty, trust, and government-to-
government based, and are not a function of civil rights based on race.
X. Definitions
For the purposes of this policy, the following definitions apply:
American Indian and Alaska Native (AI/AN)-- A member of an American
Indian or Alaska Native tribe, band, nation, pueblo, village, or
community of indigenous peoples in the United States, as membership is
defined by the tribal community, including Native Hawaiians.
AI/AN Organization--An AI/AN organization or group having members
that are not representatives of federally recognized Indian tribal
governments, such as state tribes and members of urban AI/AN groups
that are not located on Indian tribal lands.
Consultation--An enhanced form of communication consisting of an
open and free exchange of information and opinion among parties which
emphasizes trust, respect, and shared responsibility. The consultation
process enables mutual understanding, facilitates the effort to reach
consensus on issues, and contributes to informed decision making.
Deliberative Process Privilege--A privilege exempting the Federal
Government from disclosure of government agency materials containing
opinions, recommendations, and other internal communications that are
part of the deliberative process within the Department or agency.
Department--Means the U.S. Department of Labor.
DOL Operating Agency--A Department of Labor administration, agency,
bureau, office, or division that: (1) Has operational responsibility
for a Departmental program that has tribal implications; or (2) has
been designated by the Secretary to participate in this policy.
Executive Order--An order issued by the Federal Government's
executive on the basis of authority specifically granted to the
executive branch (as by the U.S. Constitution or a Congressional Act).
Indian Tribe--An Indian or Alaska Native tribe 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,
and with whom the Federal Government maintains a government-to-
government relationship, including any Alaska Native village or
regional or village corporation as defined in or established pursuant
to the Alaska Native Claims Settlement Act (85 Stat. 688)(43 U.S.C.
1601 et seq.). The Department of the Interior's Bureau of Indian
Affairs maintains and regularly publishes the official list of
federally recognized Indian tribes which are generally established
pursuant to a federal treaty, statute, executive order, court order, or
a federal administrative action making these tribes eligible for
certain federal programs and benefits because of their status as
Indians.
Policies or Actions with Tribal Implications--Refers to proposed
legislation, regulations, policies, and actions that have substantial
direct effects on one or more Indian tribes, on the relationship
between the Federal Government and the Indian tribes, or on the
distribution of power and responsibilities between the Federal
Government and Indian tribes. This encompasses a broad range of DOL
programs and activities targeted at tribal governments or having AI/ANs
as participants including, but not limited to, tribal program
management, rulemaking, regulations, policies, waivers and flexibility;
grant programs; contracting opportunities; regulatory guidance; or
other DOL activities that would have a substantial direct effect on a
tribe's traditional way of life, tribal lands, tribal resources, or the
ability of
[[Page 23288]]
the tribe to govern its members or to provide services to its members.
This term does not include matters that are the subject of litigation
or that are undertaken in accordance with an administrative or judicial
order.
Secretary--Means the Secretary of Labor.
Substantial Direct Compliance Costs--Those costs incurred directly
from implementation of changes necessary to meet the requirements of a
federal mandate. Because of the large variation in resources among
tribes, ``substantial costs'' will vary by Indian tribe. Where
necessary and appropriate, the Secretary will determine the level of
costs that represent ``substantial costs'' in the context of an Indian
tribe's resource base.
To the Extent Practicable and Permitted by Law--Refers to
situations where the opportunity for consultation is limited due to
practical constraints including time, budget, or other such reason, and
situations where other legal requirements take precedence.
Tribal Committee, Task Force, or Work Group--A group composed of
Indian tribal government officials or their designees with authority to
represent their interests or act on their behalf that is formed to work
on a particular policy, practice, issue, or concern. This can include
representatives of existing organizations representing federally
recognized tribes, such as the National Congress of American Indians.
Tribal Officials--Tribal council members and delegates,
chairpersons, or other elected or duly appointed officials of the
governing bodies of Indian tribes or authorized intertribal
organizations or their designees with authority to represent them or
act on their behalf.
XI. Supplemental Terms and Effective Date
1. Inapplicability of the Federal Advisory Committee Act (FACA). In
accordance with section 204(b) of the Unfunded Mandates Reform Act of
1995 (Pub. L. 104-4), the provisions of FACA are not applicable to
consultations between the Federal Government and elected officers of
tribal governments or their designated employees with authority to act
on their behalf. Therefore, FACA is generally not applicable to
consultations undertaken pursuant to this tribal consultation policy.
As the Office of Management and Budget stated in its guidelines
implementing section 204(b):
This exemption applies to meetings between Federal officials and
employees and * * * tribal governments acting through their elected
officers, officials, employees, and Washington representatives, at
which `views, information, or advice' are exchanged concerning the
implementation of intergovernmental responsibilities or
administration, including those that arise explicitly or implicitly
under statute, regulation, or Executive Order. The scope of meetings
covered by this exemption should be construed broadly to include
meetings called for any purpose relating to intergovernmental
responsibilities or administration. Such meetings include, but are
not limited to, meetings called for the purpose of seeking
consensus, exchanging views, information, advice, and/or
recommendations; or facilitating any other interaction relating to
intergovernmental responsibilities or administration. (OMB
Memorandum 95-20 (September 21, 1995), pp. 6-7, published at 60 FR
50651, 50653 (September 29, 1995)).
If, however, DOL were to form an advisory committee consisting of
(non-federally recognized) AI/AN organizations or groups lacking the
government-to-government relationship, the section 204(b) exception
would not apply and all FACA requirements would need to be followed.
2. Reservation of Authorities. Nothing in this policy waives or
diminishes the U.S. Government's rights, authorities, immunities, or
privileges, including the deliberative process privilege. Among other
things, internal communications on the development of proposed
legislation, enforcement policy, and other internal policy matters are
part of the deliberative process by the Executive Branch and will
remain confidential.
Nothing in this policy waives or diminishes any tribal rights,
authorities, immunities, or privileges including treaty rights and
sovereign immunities, and this policy does not diminish any rights or
protections afforded to individual AI/ANs under federal law.
3. Disclaimer. This document is intended to improve the
Department's management of its relations and cooperative activities
with Indian tribes. DOL has no obligation to engage in any consultation
activities under this policy unless they are practicable and permitted
by law. Nothing in this policy requires any budgetary obligation or
creates a right of action against the Department for failure to comply
with this policy nor creates any right, substantive or procedural,
enforceable at law by a party against the United States, its agencies,
or any person.
Dated: April 12, 2012.
Hilda L. Solis,
Secretary of Labor.
[FR Doc. 2012-9372 Filed 4-17-12; 8:45 am]
BILLING CODE 4510-23-P