[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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