[Federal Register Volume 77, Number 128 (Tuesday, July 3, 2012)]
[Notices]
[Pages 39464-39466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-16004]
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DEPARTMENT OF COMMERCE
[Docket Number 120530127-2127-01]
American Indian and Alaska Native Consultation and Coordination
Policy
AGENCY: Department of Commerce.
ACTION: Notice and request for comments.
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SUMMARY: The Department of Commerce (Department) requests public
comments on a draft ``Consultation and Coordination Policy of the U.S.
Department of Commerce.'' This proposed policy establishes the manner
in which the Department works with federally-recognized Indian tribes
when developing Department policies that have tribal implications. The
policy reaffirms the unique government-to-government relationship that
exists between Indian tribes and the Department of Commerce to support
Tribes in the development of strong and stable economies able to
participate in today's national and global marketplace.
DATES: Written Comments must be submitted on or before October 1, 2012.
ADDRESSES: You may submit comments on this document, identified by DOC-
2012-002, by and of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal e-Rulemaking Portal, at http://www.regulations.gov. To submit comments via the e-Rulemaking Portal,
first click the ``submit a comment'' icon, then enter DOC-2012-0002 in
the keyword search. Locate the document you wish to comment on from the
resulting list and click on the ``Submit a Comment'' icon on the right
of that line.
Fax: 206-482-4420; Attn: Dee Alexander.
Regular Mail, express delivery, hand (courier) delivery or
messenger service: Submit comments to Dee Alexander, Senior Advisor on
Native American Affairs Office of Legislative and Intergovernmental
Affairs, U.S. Department of Commerce, Room 5422, 1401Constitution Ave.,
NW., Washington, DC 20230.
Instructions: All comments received are a part of the public record
and will generally be posted to http://www.regulations.gov without
change. All Personal Identifying Information (for example, name,
address, etc.) voluntarily submitted by the commenter may be publicly
accessible. Do not submit Confidential Business Information or
otherwise sensitive or protected information. The Department will
accept anonymous comments (if submitting comments via the Federal e-
Rulemaking portal, enter ``N/A'' in the relevant required fields if you
wish to remain anonymous). Attachments to electronic comments will be
accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file
formats only.
Background
Executive Order (E.O.) Number 13175, ``Consultation and
Coordination with Indian Tribal Governments,'' (November 6, 2000)
requires Federal agencies to have an accountable process to ensure
meaningful and timely input by tribal officials in developing policies
that have tribal implications.
President Barack Obama reaffirmed the government-to-government
relationship between the Federal Government and Indian tribal
governments in a White House Memorandum, ``Tribal Consultation,'' 2009
Daily Comp. Press Docs.87 (November 5, 2009). Among other things, this
memorandum acknowledges that Indian tribes exercise inherent sovereign
powers over their members and territory. The memorandum also
acknowledges that 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.
This proposed policy is part of the Department's response to
President Obama's memorandum. The Policy builds upon and expands the
principles expressed in the Department's previous policy, ``American
Indian and Alaska Native Policy of the Department of Commerce,''
promulgated on March 30, 1995. The Policy incorporates the requirements
of E.O. No. 13175, and the Office of Management and Budget Memorandum,
``Guidance for Implementing E.O. 13175, ``Consultation and Coordination
with Indian Tribal Governments.''
The Department will work with tribes on developing the final policy
by sending this draft policy directly to the tribes and by conducting
several webinars with Tribes on the policy and how to improve it. We
will announce these webinars in future notices posted in the Federal
Register.
The statements in the draft document are intended solely to provide
internal Department guidance. This document is designed to implement
E.O. 13175; 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 the Department or anyone else, and may not apply to a
particular situation based upon the circumstances. The Department may
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change this Guidance in the future, as needed or appropriate.
Request for Comments
Comments are invited on: Sections 1-7. These sections provide
guidance to the Department and all its operating units and its
employees on when and how to coordinate consultation with federally
recognized Indian tribes on a government-to-government basis, in
recognizing their sovereignty, when developing policies that have
tribal implications.
Proposed Tribal Consultation and Coordination Policy for the U.S.
Department of Commerce.
Section 1. Introduction
01. This ``Tribal Consultation and Coordination Policy of the U.S.
Department of Commerce'' (``Tribal Consultation Policy'' or ``Policy'')
establishes the manner in which the Department of Commerce
(``Department'') works with Indian tribes on a government-to-government
basis to build a durable relationship and address issues concerning
tribal self-government, tribal trust resources, and tribal treaty and
other rights, as well as support tribes in developing strong and stable
economies able to participate in the national and global marketplace.
02. The Department recognizes the Federal Government's trust
responsibility, as established in the Constitution, statutes, treaties
and federal court decisions, which together define the unique legal
relationship between Tribal governments and the Federal Government.
03. The Department and operating units will seek and promote
cooperation within the Department and with other agencies that have
related responsibilities. The Department's mission encompasses many
complex issues where cooperation and mutual consideration among
governments (federal, state, tribal, and local) are essential. The
Department and operating units will promote intradepartmental and
interagency coordination and cooperation to assist Tribal governments
in resolving issues requiring mutual effort.
04. Executive Order (E.O.) No. 13175, ``Consultation and
Coordination with Indian Tribal Governments,'' requires federal
agencies to have an accountable process to ensure meaningful and timely
input by tribal officials in developing policies that have tribal
implications. This Policy provides uniform standards and methodology
outlining consultation procedures for all Department personnel working
with Tribal governments regarding policies that have tribal
implications.
Section 2. Background
01. This Policy builds upon and expands the principles expressed in
the ``American Indian and Alaska Native Policy of the Department of
Commerce,'' promulgated by the Department on March 30, 1995. The Tribal
Consultation Policy incorporates the requirements of E.O. No. 13175;
Presidential Memorandum, ``Tribal Consultation,'' 2009 Daily Comp.
Pres. Docs. 887 (November 5, 2009); and the Office of Management and
Budget Memorandum, ``Guidance for Implementing E.O. 13175,
`Consultation and Coordination with Indian Tribal Governments'.''
02. This Policy is for internal management only and shall not be
construed to grant or vest any right to any party not otherwise granted
or vested by existing law or regulations.
Section 3. Authority
This Tribal Consultation Policy is issued pursuant to the authority
of 5 U.S.C. 301 and Department Administrative Order (DAO) 218-8,
``Consultation and Coordination with Indian Tribal Governments.'' This
Policy shall have the same force and effect as a DAO. Amendments
(substantive changes) or revisions (corrections or updates) to this
Policy may be developed and issued by the Department of Commerce Tribal
Consultation Official or the Secretary's designee in consultation with
Tribal governments.
Section 4. Definitions
01. ``Consultation,'' as defined in Section 5 of E.O. No. 13175,
refers to an accountable process ensuring meaningful and timely input
from tribal officials on Department policies that have tribal
implications.
02. ``Indian tribe (or Tribe),'' as defined in Section 1(b) of E.O.
No. 13175, means an Indian or Alaska Native tribe, band, nation,
pueblo, village, or community that the Secretary of the Interior
acknowledges to exist as an Indian tribe pursuant to the Federally
Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.
03. ``Operating units,'' as defined in Section 3.c.1 of Department
Organization Order 1-1, are organizational entities outside the Office
of the Secretary charged with carrying out specified substantive
functions (i.e., programs) of the Department. The operating units are
the components of the Department through which most of its substantive
functions are carried out.
04. ``Policies that have tribal implications,'' as defined in
Section 1(a) of E.O. No. 13175, 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.
05. ``Tribal Consultation Official,'' as defined in Section 5(a) of
E.O. No. 13175, means the designee of the Secretary with principal
responsibility for the implementation of this Policy.
06. ``Tribal officials,'' as defined in Section 1(d) of E.O. No.
13175, means elected or duly appointed officials of Indian tribal
governments or authorized intertribal organizations.
Section 5. Roles and Responsibilities for Consultations
01. Department of Commerce Tribal Consultation Official
a. The Tribal Consultation Official is an individual in the Office
of Legislative and Intergovernmental Affairs (OLIA) within the Office
of the Secretary who is duly appointed to act as a liaison between the
Secretary of Commerce and Tribal officials. The Tribal Consultation
Official may delegate authority, as necessary, to the head of each
operating unit. The Tribal Consultation Official has primary
responsibility for ensuring compliance with DAO 218-8, this Policy, and
E.O. No. 13175, and is responsible for tribal consultations and
coordination for the Office of the Secretary programs.
b. The Tribal Consultation Official has responsibility for
coordinating the implementation of this Policy and DAO 218-8 within the
Department and all operating units.
c. The Tribal Consultation Official will engage tribal officials in
periodic dialogue to discuss the Department's implementation of this
Policy. The dialogue will provide an opportunity for tribal officials
to assess policy implementation, program delivery, and discuss outreach
and communication efforts, and other issues.
02. Head of Operating Unit Responsibilities
a. The head of each operating unit will designate an official in
the headquarters office who has primary responsibility for ensuring
compliance with this Policy within the operating unit. Each operating
unit's designated official will work with the Department Tribal
Consultation Official to ensure coordination of tribal consultations,
as necessary. The designated official is
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responsible for the development, maintenance and internal distribution
of any guidance produced by the operating unit in compliance with the
requirements of this Policy.
b. The head of each operating unit or the designated official may
delegate authority to appropriate individuals within the operating
unit.
Section 6. Training and Guidance
01. The Tribal Consultation Official and the head of each operating
unit will ensure that personnel assisting with tribal consultations
have appropriate training.
02. Each operating unit may develop and issue tribal consultation
guidance to assist staff in preparing, reviewing and managing the
consultation process within their respective operating units, so long
as:
a. The guidance is consistent with DAO 218-8, and
b. The Department's Tribal Consultation Official reviews the
guidance.
Section 7. Consultation
01. The Consultation Process. Consultation may take a variety of
forms. Implementing this Policy may require a range of formal and
informal planning activities. The Department and operating units'
consultation processes may include one or more of the following: formal
meetings, informal meetings, letters, conference calls, webinars, on-
site visits, or participation in regional and national events. The
Tribal Consultation Official or the head of each operating unit, as
applicable, will make a reasonable effort to accommodate a tribal
request for consultation.
02. Elements of the Consultation Process.
a. Ongoing communication shall be a regular part of the government-
to-government relationship with tribal governments. The Department and
operating units will engage in meaningful dialogue with Tribes
regarding all policies that have tribal implications.
b. Exchange of Information. The Department and operating units will
make a reasonable effort to identify and provide timely and accurate
information for consultation.
c. Notification. The Department and operating units will notify
Tribes of policies that have tribal implications. Follow-up may be
necessary to ensure the appropriate tribal official has received the
consultation notification and accompanying documents. These
notifications do not replace or supersede any notifications that are
required by statute or E.O. regarding tribal consultations.
d. Consultation Planning. The Department and operating units will
coordinate with tribal officials to plan logistical considerations for
the consultation. The Department and operating units will, when
practical, allow Tribes a reasonable amount of time to prepare for
consultation and submit their views on policies that have tribal
implications.
e. Written Communication and Record-Keeping. When a consultation
occurs between the Department or its operating units and Tribal
officials, the Department or operating unit will provide the Tribal
officials with a formal, written communication that summarizes the
consultation, and responds to the issues and concerns, if any,
identified during consultation. The Tribal Consultation Official or
head of each operating unit conducting a consultation will maintain
documentation addressing the consultation, tribal concerns, and
recommendations in conformance with applicable records retention
schedules.
Section 8. Implementation
01. The Tribal Consultation Official, located in OLIA within the
Office of the Secretary, is responsible for ensuring implementation of
this Policy. This responsibility may be delegated as appropriate. This
Policy does not alter or affect any existing duty or authority of any
individual operating unit.
02. This Policy is not intended to, and does not, grant, expand,
create or diminish any legally enforceable rights, benefits, or trust
responsibilities, substantive or procedural, not otherwise granted or
created under existing law. Nor shall this Policy be construed to
alter, amend, repeal, interpret, or modify tribal sovereignty, any
treaty rights of any Indian tribes, or to preempt, modify, or limit the
exercise of any such rights.
03. This Policy is intended to improve the Department's management
of its relations and cooperative activities with Indian tribes. The
Department and operating units have 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.
04. This Policy shall be updated as necessary.
Section 9. Effective Date
01. This Policy is effective beginning with the date of this
memorandum and will remain in effect until it is amended, superseded by
a Departmental Administrative Order, or revoked.
Dated: June 26, 2012.
Dee Alexander,
Senior Advisor on Native American Affairs.
[FR Doc. 2012-16004 Filed 7-2-12; 8:45 am]
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