[Federal Register Volume 77, Number 233 (Tuesday, December 4, 2012)]
[Notices]
[Pages 71833-71842]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-29246]
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DEPARTMENT OF LABOR
Office of the Secretary
Tribal Consultation Policy
AGENCY: Office of the Secretary, Labor.
ACTION: Final policy; Response to comments on proposed policy.
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SUMMARY: The Department of Labor (DOL) is issuing its final Tribal
Consultation Policy. The Tribal Consultation Policy (hereinafter
referred to as the ``policy'') establishes standards for improved
consultation with federally-recognized Indian Tribes to the extent that
no conflict exists with applicable federal laws or regulations. The
policy applies to any Department action that affects federally-
recognized Indian tribes and requires that the Department's government-
to-government consultation involve appropriate Tribal and Departmental
Officials. In addition to setting forth the final policy, this document
also responds to comments on the proposed policy, which was published
in the Federal Register on April 18, 2012 (77 FR 23283).
DATES: This Final Policy is effective December 4, 2012
FOR FURTHER INFORMATION CONTACT: For information on the Department of
Labor's Tribal Consultation Policy, contact Jeremy Bishop, Special
Assistant to the Secretary, Office of Public Engagement, U.S.
Department of Labor, Room C-2313, 200 Constitution Ave. NW.,
Washington, DC 20210. Telephone: (202) 693-6452 (this is not a toll-
free number). Individuals with hearing or speech impairments may access
the telephone via TTY by calling the toll-free Federal Information
Relay service at 1-800-877-8339. Email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Discussion of Comments on the Proposed Draft Tribal Consultation
Policy
In response to the proposed Tribal Consultation Policy, the
Department received comments from a broad spectrum of interested
parties, including Indian tribes, Alaska Native Corporations, and
tribal advocacy groups that raise a variety of concerns with specific
provisions of the proposed policy. After reviewing these comments
thoughtfully and systemically, the Department has modified several
provisions and retained others as originally proposed.
Provisions of the policy that received comments are discussed in
detail below; provisions that were not commented on have been adopted
as originally proposed. The original comments can also be viewed online
in their entirety at: http://www.regulations.gov/#!docketDetail;dct=FR%252BPR%252BN%252BO%252BSR%252BPS;rpp=25;po=0;D=DOL
-2012-0002.
A. Section I--Background and Purpose; B. Referenced Authorities
A commenter suggested adding the Consolidated Appropriations Act of
2005 (Pub. L. 108-447) to the list of authorities on which the policy
is based. Section 518 of Title V of Division H requires OMB and all
federal agencies to consult with Alaska Native corporations on the same
basis as Indian tribes under Executive Order 13175, Consultation and
Coordination With Indian Tribal Governments. This provision amends the
Consolidated Appropriations Act of 2004 (Public Law 108-199), which
only required that the Office of Management and Budget (OMB)
participate in such consultations with Alaska Native Corporations.
The Department has incorporated this change.
B. Section II--Guiding Principles; A. Government-to-Government
Relationship and Tribal Self-Determination
One commenter recommended editing this section to specify that
while the relationship between the federal government and Alaska Native
corporations is different than the government-to-government
relationship with federally-recognized tribes, the policy should
recognize the Department's obligations to consult with Alaska Native
corporations pursuant to the Consolidated Appropriations Act for Fiscal
Year 2005 (Pub. L. 108-447).
The Department does not believe it is necessary to make this
suggested change. The definition of ``Indian Tribe'' in section X,
which specifically includes Alaska Native Corporations, makes clear
that such organizations are entitled to the same treatment under the
policy as other federally-recognized tribes.
C. Section III--Policy Statement; B. Implementation Responsibilities of
DOL Operating Agencies
A commenter suggested changing the phrase ``legally permissible''
to ``not legally prohibited'' to allow Indian tribes greater discretion
in developing their own policies and standards, so long as such actions
are not legally prohibited. The commenter believes the revised standard
would give further weight to Indian tribes' self-determination, and
would be easier to implement and enforce than ``permissible'' as a
basis for the Department's decisionmaking.
The Department believes the suggested change is unnecessary. The
phrase ``legally permissible'' is consistent with the text throughout
this section and sufficiently conveys the discretion to be afforded
Indian tribes in developing their own policies and standards regarding
the administration of DOL programs by Indian tribes.
D. Section IV--Regulations
A commenter recommended deleting the term ``tribal officials'' in
section V to clarify that comments are normally provided by the Indian
tribes, not individual tribal officials.
The Department does not believe such a change is appropriate. The
definition of ``Tribal Officials'' in Section X specifically recognizes
that tribal officials have the authority to represent and act on behalf
of their respective Indian tribes.
E. Section V--Unfunded Mandates
One commenter suggested deleting the term ``tribal governments'' in
paragraphs (1) and (2) of this section because it is not defined in the
policy. The commenter notes the proposed change would alleviate
potential confusion caused by applying some Tribal Consultation Policy
provisions to the undefined ``tribal governments,'' while applying
other provisions to the defined term ``Indian Tribes.''
Moreover, while the term ``Tribal Officials'' is defined in Section
X, the commenter suggested deleting this term in paragraph (2) to make
clear that the policy is referring to the same entities throughout, and
that the Unfunded Mandates section does not have a
[[Page 71834]]
different effect from other sections based on the use of different
terminology.
The Department agrees with this suggestion and has made the
appropriate changes in the text of this section.
It was also suggested that the Department include, with its summary
of affected Indian tribes' concerns with certain proposed regulations
in subparagraph (2)(b), an explanation of how such concerns were
addressed through changes to the proposed regulations.
The Department does not believe a revision is needed. The
Department already addresses the impact of its proposed regulations on
Indian tribes consistent with applicable federal law.
F. Section VI--Flexibility and Waivers
A commenter recommended deleting the term ``tribal government(s)''
in section VI and replacing it with the term ``Indian tribes.'' The
commenter notes the proposed change would alleviate potential confusion
caused by applying some Tribal Consultation Policy provisions to the
undefined ``tribal governments,'' while applying other provisions to
the defined term ``Indian Tribes.''
The Department agrees with these changes and they are reflected in
the text of this section.
A commenter also recommended the Department revise its standards
for granting Indian tribes certain waivers of statutory or regulatory
requirements, so that such waivers will be granted provided they are
``not inconsistent'' with applicable federal policy objectives.
The Department accepts this change from ``consistent'' to ``not
inconsistent''.
The commenter further requested that the Department provide a legal
basis for any refusal to grant a requested wavier to an Indian tribe by
amending the text to read as follows:
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 including a citation to the
legal authority which prevented DOL from granting the waiver.
The Department routinely cites its legal bases for declining to
request a waiver, but notes there may also be instances where important
agency policy and programmatic concerns preclude granting a waiver of a
statutory or regulatory requirement. Thus, the Department has
accordingly revised the provision as reflected in the text of this
section.
Another commenter suggested the Department provide specific
timeframes for issuing decisions about whether to grant a waiver of a
statutory or regulatory requirement. The commenter also questioned
whether the Department would deem a waiver request to be approved if
the Department failed to respond by the applicable deadline. Lastly,
the commenter questioned whether there is an appeals process for the
denial of a waiver request.
The Department notes the decision on whether to grant a waiver is
fact-specific and varies depending on the circumstances of each
particular application. In addition, the procedures for reviewing a
waiver application are often prescribed by statute (e.g., the Workforce
Investment Act of 1998 (Pub. L. 105-220, as amended; 29 U.S.C. 2801 et
seq.)). Thus, in order to maintain the necessary flexibility to meet
these requirements, the Department declines to make further changes to
this section.
G. VII--Consultation Process Guidelines
A commenter requested the Department revise, from 60 days to 90
days, the notice provided to Indian tribes in paragraph (1) of this
section before the Department moves forward with a policy or action it
determines will have tribal implications, whether for an individual
tribe, regionally, or nationally. The commenter states such an
extension would allow for more meaningful participation.
The Department believes the 60-day notice requirement provides
sufficient opportunity for consultation with affected Indian tribes.
The Department notes this provision is greater than the 30-day notice
and comment period required when an agency issues a Notice of Proposed
Rulemaking under the Administrative Procedure Act (see 5 U.S.C.
553(d)).
The commenter also requested that the Department delete the
provision in paragraph (1) that an Indian tribe requesting a
consultation should distribute any DOL-provided information to its
members. Among other things, the commenter asserts that compliance with
this provision would ``be unworkable because of the significant costs
involved for postage, copying, labor, etc.''
The Department notes this provision is not a mandatory requirement,
but has amended the provision to offer Indian tribes greater
flexibility in supplying DOL-provided materials to its members prior to
the consultation.
Another commenter suggested revising, from ``no unique impacts on
Indian tribes'' to ``no tribal implications'', the Department's
threshold in paragraph (1) for determining whether DOL agencies may
follow the existing Federal Register notice and comment process when
providing public notice about rulemaking proceedings of general
applicability.
The Department is concerned that requiring a consultation prior to
the initiation of every proposed rulemaking that may only have a minor
or tangential impact on a particular Indian tribe would impose an
unrealistic burden on DOL agencies and may, in fact, hinder the overall
effectiveness of the policy. Thus, the Department has revised the
determining threshold to ``no particularized impact on Indian tribes''
to emphasize that consultation prior to the initiation of a rulemaking
proceeding should be reserved for proposed rules that would have a
particular or distinct impact on Indian tribes.
A commenter requested that enforcement issues, such as
``enforcement policy'' and ``planning'', be added as permissible
subjects for consultation under the Department's Tribal Consultation
Policy in paragraph (2).
Discussions with Indian tribes regarding the framing and shaping of
the Department's enforcement policies are not appropriate subjects for
consultation under this policy. In particular, the Department's
component agencies need to retain sufficient autonomy, discretion, and
confidentiality in order to develop successful enforcement strategies
within prescribed statutory frameworks. Allowing certain stakeholders
increased influence over the development of strategies, enforcement
policies and initiatives would frustrate agencies' efforts to ensure
necessary worker protections, benefits, and rights. The Department,
therefore, declines to make the recommended changes.
A commenter also requested that ``grants management issues'' be
included as a permissible subject for consultation in paragraph (2),
since these issues may represent an Indian tribe's greatest area of
interest or concern when dealing with the Department of Labor.
Although general discussions regarding the grant programs and
contracting are permissible subjects for consultation under the policy,
the scope of the Department's interactions with grantees and
prospective grantees about specific grantee selection and monitoring
processes are routinely set forth in each grant solicitation
application. For these reasons, the Department declines to make further
changes to this paragraph.
[[Page 71835]]
A commenter recommended that Indian tribes be involved in matters
of interest to them before the Initial Planning and Scoping stage
outlined in paragraph (3). The commenter believes that Indian tribes
should be directly involved in development and planning, and not merely
as respondents to a plan developed by the Department of Labor.
The Initial Planning and Scoping stage is specifically designed to
allow the Department and Indian tribes to jointly frame the scope of
consultation following the Department's notification to affected tribes
that a proposed policy or action will have tribal implications. It is
through this consultation process that a proposed policy or action may
be subject to amendment based on the valuable input received from
affected Indian tribes. A requirement that DOL consult with affected
Indian tribes before a proposed policy or action is even formulated
would not serve to further the goals of the Tribal Consultation Policy.
For these reasons, the Department declines to require consultation
prior to the Initial Planning and Scoping stage.
A commenter objected to the requirement in paragraph (7) that a
written communication on the correspondence of the highest elected or
appointed tribal official will be considered by the Department as the
official position of the tribe on the subject at issue. The commenter
notes that Indian tribes operate differently and do not all follow the
same procedures for vetting their views. Thus, to preserve tribes'
sovereignty and self-determination, the commenter suggests allowing
Indian tribes to use their own process for submitting comments on
issues of concern.
The Department agrees, and has amended the provision to convey that
an Indian tribe's views can also be submitted by an appropriate third
party designee.
A commenter recommended that the suggested timeframes for the
consultation process outlined in paragraph (8) be mandatory, rather
than permissive, so that all interested parties know with certainty
when such actions will take place. The commenter would also extend the
timeframe in subsections (a) and (b) from 30 to 60 days, and extend the
timeframe in subsection (c) from 60 to 90 days.
The Department recognizes that each tribal consultation is unique
and will depend on the nature and complexity of the issues to be
discussed. There may be times, for example, when these timeframes must
be compressed to respond to an emergency situation or to meet a
critical deadline, or expanded to address novel or highly complex
matters. Thus, the Department has retained the permissive nature of the
established time frames, but revised the text in subsections (a), (b),
and (c) by replacing the word ``should'' with ``shall normally''.
One commenter suggested adding a requirement in paragraph (9) that
the Department provide, at the conclusion of a consultation, a specific
explanation for why any tribal input was not adopted. The commenter
believes this would make the consultation process more transparent and
ensure that tribes' recommendations receive full and fair consideration
by the Department.
The Department notes the requirement to provide a ``specific
explanation'' for why a particular recommendation was not adopted may
be difficult to articulate in some instances, and an extended debate
over the required degree of specificity may unnecessarily detract from
the overarching purpose of the policy to improve coordination between
the Department and affected Indian tribes. Thus, the Department has
accordingly revised the provision as reflected in the text of this
paragraph.
A commenter suggested in paragraph (11) that DOL agencies' use of
existing statutory advisory committees be a mandatory, rather than
permissive, part of their consultation responsibilities under the
policy.
The Department recognizes the valuable role advisory committees
often play in meaningful consultation. The Department notes, however,
that some Indian tribes may have concerns about being forced to utilize
an advisory committee structure as part of the consultation process.
The Department has, therefore, declined to make this suggested change.
A commenter recommended deleting the term ``tribal governments''
from paragraph (12), Submission of Comments by Other AI/AN
Organizations, to alleviate potential confusion caused by applying some
Tribal Consultation Policy provisions to the undefined ``tribal
governments'', while applying other provisions to the defined term
``Indian Tribes''.
The Department agrees with this suggestion and has changed the text
of the section accordingly.
Another commenter stated that aside from paragraph (12), the policy
does not provide meaningful participation for Alaska Native
Corporations as required by the Consolidated Appropriations Act for
Fiscal Year 2005 (Public Law 108-447).
The Department believes the definition of ``Indian Tribes'' in
section X, which specifically includes Alaska Native Corporations,
makes clear that such organizations are entitled to the same treatment
under the policy as other federally-recognized tribes.
H. VIII --Performance and Accountability
One commenter recommended under paragraph (1) of this section that
the policy specify that DOL agencies be required to maintain records of
tribal concerns that were not addressed, as well as those that were,
and that such records also be made available to Indian tribes.
The Department believes these changes are unnecessary, since it
already reports this information to the public on an annual basis, and
continually provides relevant follow-up information on the DOL Web site
at: http://www.dol.gov.
A commenter also suggested that under paragraph (2), the Department
develop and utilize appropriate evaluation measures, with input from
affected Indian tribes, in assessing its efforts to determine whether
the overall policy is effective over time.
The Department believes that all Indian tribes should have an
opportunity to express their views on how to best measure the
effectiveness of the Tribal Consultation Policy, not just those tribes
who may be directly impacted by the policy in the near-term. Thus, the
Department has accordingly revised this provision.
I. IX--Designated Officials and Points of Contact; B. Point of Contact
for Each DOL Operating Agency
A commenter identified a possible typographical error that would
require the Department to appoint an ``alternate tribal official'',
instead of providing the Department the authority to appoint one of its
own staff as the alternate official.
The Department agrees and has deleted the word ``tribal''.
The commenter further noted this subsection also contains reference
to ``agency tribal officials''. The commenter suggests revising the
text so to make clear the subsection does not refer to actual tribal
officials.
The Department agrees and has revised the provision accordingly.
Lastly, this commenter suggested changing ``should'' to ``shall''
in the final sentence of this subsection to clarify that responsibility
for tribal matters is not a civil rights matter, and, therefore, does
not belong within the Department's Civil Rights Center.
The Department has changed ``should'' to ``shall'' in this
sentence, but believes that it is important to retain
[[Page 71836]]
final discretion as to whether these responsibilities should ever be
placed with the Civil Rights Center.
J. Section X--Definitions
The Department received input that the policy is inadequate
because, among other things, it limits the Department's responsibility
to consulting only with Indian tribes.
One commenter noted there are several instances in the policy where
the word ``Indian'' does not appear before the word ``tribe''. Since
the term ``Indian tribe'' specifically encompasses Alaska Native
Corporations, the commenter suggests using the term consistently
throughout to make clear that Alaska Native Corporations will receive
the same treatment under the Tribal Consultation Policy as other
federally-recognized tribes.
The Department has addressed this concern throughout the policy, as
appropriate, and specifically notes that Alaska Native Corporations are
entitled to the same treatment as other federally-recognized tribes
under this Tribal Consultation Policy.
A commenter also objected to inclusion of ``Native Hawaiians''
within the definition of ``American Indian and Alaska Native (AI/AN)''.
The commenter believes ``Native Hawaiian'' is considered a racial or
ethnic classification rather than a tribal classification, and that use
of the term is thus prohibited.
The Department disagrees with this view. The analogous treatment of
Native Hawaiians and federally-recognized Indian tribes is explicitly
recognized in numerous federal statutes. For example, section 166 of
the Workforce Investment Act of 1998 (Public Law 105-220, as amended),
which provides specific employment and training programs for Indian,
Alaska Native, and Native Hawaiian individuals, gives the same meaning
to ``Native Hawaiians'' as the term is defined in section 7207 of the
Native Hawaiian Education Act (Pub. L. 107-110, as amended):
(1) Native Hawaiian: The term ``Native Hawaiian'' means any
individual who is
(A) A citizen of the United States; and
(B) A descendent of the aboriginal people who, prior to 1778,
occupied and exercised sovereignty in the area that now comprises
the State of Hawaii, as evidenced by--
(i) Genealogical records;
(ii) Kapuna (elders) or Kamaaina (long-term community residents)
verification; or
(iii) Certified birth records.
In addition, section 7202(12)(B) of the Native Hawaiian Education
Act states, ``Congress does not extend services to Native Hawaiians
because of their race, but because of their unique status as the
indigenous people of a once sovereign nation as to whom the United
States has established a trust relationship.''
The commenter cites Rice v. Cayetano, 528 U.S. 495 (2000) in
support of the assertion that ``Native Hawaiian'' is a suspect racial
classification rather than a tribal classification. In Rice, the
Supreme Court held that Hawaii's voting scheme for the statewide
election of trustees for the Office of Hawaiian Affairs, which
restricted voter eligibility to certain defined classes of Hawaiian
citizens (including Native Hawaiians), violated the Fifteenth
Amendment. However, the Court reached its decision without ever
addressing whether Congress (or by extension the Executive branch) may
treat Native Hawaiians in the same manner as federally-recognized
tribes. In fact, the Court expressly declined to review this issue.
Further, while Native Hawaiians are included in the definition of
``American Indian and Alaska Native (AI/AN)'', the Tribal Consultation
policy does not provide any additional consultation rights to Native
Hawaiian individuals, communities, or organizations. For these reasons,
the Department declines to delete the reference to ``Native Hawaiians''
from the term ``American Indian and Alaska Native (AI/AN)'' as defined
in the policy.
Another commenter noted that federally-recognized Indian tribes
have formed consortiums and multi-tribal organizations which operate
DOL programs and serve more than one tribe. The commenter notes,
``[e]ach of these groups speaks on behalf of the tribes they serve on
DOL issues, unless a tribe has decided to participate in any particular
issue or has reserved that power to itself.'' To accurately include
these consortium groups' participation in the Tribal Consultation
Policy, the commenter suggests adding another category, ``Tribal
Organization'', which would have the same impact on DOL policy as
individual tribes, to be defined as follows:
Tribal Organization: For purposes of this Tribal Consultation
Policy, ``tribal organization'' means an American Indian or Alaska
Native intertribal organization, consortium, or other similar
organization whose membership includes at least one federally-
recognized Indian Tribe.
As part of this change, the commenter suggests adding the term
``tribal organization'' throughout the text of the Tribal Consultation
Policy wherever there is a reference to ``Indian tribes''. The
commenter also suggests revising the definition of an ``AI/AN
Organization'' so that there is a clear distinction between that term
and the commenter's proposed definition of ``Tribal Organization''.
The Department does not believe that the additional definition of
``Tribal Organization'' is necessary. The Department recognizes that
Indian tribes may delegate or appoint a third party to represent their
interests, provided such notice is submitted to the Department in
writing prior to the start of any consultation with the Department,
similar to consultations conducted pursuant to the Federal Advisory
Committee Act (Pub. L. 92-463). The Department has added a
corresponding sentence to the definition of ``Indian tribe''.
Lastly, one commenter suggested deleting the word ``government''
from the definition of the term ``Tribal Committee, Task Force, or Work
Group'', to ensure consistency with other defined terms. The commenter
notes the term ``Tribal Government Officials'' is undefined in the
Tribal Consultation Policy, and may cause confusion as to who is
specifically permitted to participate in such task forces, committees,
and work groups.
The Department agrees and has deleted the word ``government'' from
this definition.
II. Final Tribal Consultation Policy
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
[[Page 71837]]
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
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. Consolidated Appropriations Act of 2005, Public Law 108-447.
5. Executive Order 12866, Regulatory Planning and Review, September
30, 1993.
6. Presidential Memorandum, Government-to-Government Relations with
Native American Tribal Governments, April 29, 1994.
7. Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments, November 6, 2000.
8. Presidential Memorandum, Government-to-Government Relationship
with Tribal Governments, September 23, 2004.
9. Presidential Memorandum, Tribal Consultation, November 5, 2009.
10. OMB Memorandum M-10-33, Guidance for Implementing E.O. 13175,
July 30, 2010.
[[Page 71838]]
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.
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
tribes 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 Indian tribes 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 tribes, 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
tribes.
[[Page 71839]]
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 tribes apply for waivers and take
appropriate steps to streamline those processes as necessary.
When reviewing any application by an Indian tribe 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 not inconsistent 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, including a
citation to any relevant legal authority that provides a basis for the
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 any DOL-provided
information to its members by the method(s) it deems appropriate (e.g.,
U.S. mail, electronic mail, hard-copy handouts). With respect to
rulemaking proceedings of general applicability that have no
particularized impact 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 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
official, appointed tribal official, or other third party designee of
such authority (according to the procedures set forth under the
definition of ``Indian Tribes'' in section X), 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 shall normally 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 shall normally
be scheduled within 30 days of the completion of the planning and
scoping;
c. For consultations involving one or more meetings, the
consultation process shall normally be concluded within 60 days of the
final consultation meeting; for consultations not involving meetings
the consultation process shall normally
[[Page 71840]]
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. And, to the extent that
tribal input was not adopted, the agency will provide a written
explanation for why such input was not adopted or incorporated.
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. Sec.
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 tribes. 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 tribes 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.
2. DOL agencies will, with input from Indian tribes, 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 official to serve in the
absence of the primary official.
The duties of the agency officials having responsibility for tribal
matters 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 shall
not be placed within the agency Offices of Civil Rights, as tribal
relations and consultations are treaty, trust, and government-to-
government based, and
[[Page 71841]]
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 (Pub. L. 92-203; 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. A federally recognized Indian tribe may expressly delegate a
third party to represent the tribe in all tribal consultations with the
Department of Labor, provided the Department is notified of such
delegation in writing prior to the consultation. An Indian tribe may
rescind its delegation at any time, but the rescission should occur in
writing, if practicable.
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 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 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
[[Page 71842]]
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.
4. Effective Date. The Tribal Consultation Policy is effective
December 4, 2012 and shall apply to all prospective actions taken by
the Department as described herein.
Dated: November 29, 2012.
Hilda L. Solis,
Secretary of Labor.
[FR Doc. 2012-29246 Filed 12-3-12; 8:45 am]
BILLING CODE 4510-23-P