[Federal Register Volume 78, Number 107 (Tuesday, June 4, 2013)]
[Notices]
[Pages 33331-33339]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-13052]
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DEPARTMENT OF COMMERCE
[Docket Number: 120530127-2127-02]
Tribal Consultation and Coordination Policy for the U.S.
Department of Commerce
AGENCY: Department of Commerce.
ACTION: Notice of Final Policy Statement.
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SUMMARY: In compliance with Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments'' (November 6, 2000), the
Department of Commerce (Department) adopts the following Tribal
Consultation and Coordination policy statement. This 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. The
Department continues its commitment to support tribes in the
development of strong and stable economies able to participate in
today's national and global marketplace. The notice also summarizes
comments received on the draft Tribal Consultation and Coordination
policy statement published in the Federal Register on July 3, 2012 (77
FR 39464) and the Department's response to these comments.
FOR FURTHER INFORMATION CONTACT: Requests for additional information or
an electronic copy of the final policy should be directed to Dee
Alexander,
[[Page 33332]]
Senior Advisor on Native American Affairs, Office of Legislative and
Intergovernmental Affairs, U.S. Department of Commerce Room 5422, 1401
Constitution Ave. NW., Washington, DC 20233, telephone (202) 482-0789.
SUPPLEMENTARY INFORMATION:
Background
E.O. 13175, ``requires Federal agencies to have an accountable
process to ensure meaningful and timely input by tribal officials in
developing policies that have tribal implications, and are responsible
for strengthening the government-to-government relationship between the
United States and Indian tribes.''
On November 5, 2009, President Barack Obama reaffirmed the
government-to-government relationship between the Federal Government
and Indian tribal governments in a White House memorandum. 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 final policy statement is intended only for internal
management purposes and does not create any right, benefit, or
responsibility enforceable against the United States, its agencies,
entities, or instrumentalities, its officers or employees, or any other
person. The Department believes this policy responds to President
Obama's memorandum and 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.'''
Summary of Comments Received in Response to the Draft Consultation and
Coordination Policy
On July 3, 2012, the Department published a notice and request for
comments on a draft ``Consultation and Coordination Policy for the U.S.
Department of Commerce'' policy statement in the Federal Register (77
FR 39464). The Department received letters from 15 different entities,
with approximately 48 unique comments in response to the draft policy
statement. A summary of comments received and the Department's
responses to these comments are presented below. The Department also
received seven comments and recommendations not specific to the policy
principles. The notice also includes comments and the Department's
responses to those comments received from two national webinars held on
September 12, 2012 and September 19, 2012.
General Comments and Recommendations
Comment 1: The broad statement in the background section of the
July 3 notice, that the policy ``may not apply to a particular
situation based upon the circumstances,'' should be replaced with a
narrow description of the situations to which the policy would apply.
Response: Because the statement was included in the general
background information in the Federal Register notice, it is not a part
of the Department's policy request for comments. Therefore, no changes
to the policy have been made in response to this comment.
Comment 2: Include in the final tribal consultation policy and
supporting information a (1) description of efforts made to coordinate
and consult with tribal officials on the draft policy; (2) complete
summary of public comments, especially from tribal members; and (3)
description of how the Department has addressed or incorporated
comments into the final policy.
Response: The Department included the requested information in this
notice.
Comment 3: The comprehensive Consultation and Coordination Policy
should include overseeing consultation efforts between state, tribal
and local entities and independent entities, such as the First
Responder Network Authority (FirstNet).
Response: The Department will not implement this policy in such a
manner as to conflict with statutory requirements. The Middle Class Tax
Relief Act and Job Creation Act of 2012, which establishes FirstNet,
describes a statutory method for consultation between FirstNet and
State, local, and tribal entities. The Department, in coordination with
FirstNet, will determine the policy's applicability to other similar
authorities as necessary.
Comment 4: Clarify the Department's role in coordinating with other
federal agencies, and increase interagency coordination and
collaboration to increase government efficiency and accountability.
Response: The Department will determine the scope and timing of any
required interagency coordination as circumstances indicate.
Comment 5: Amend the policy to apply to Fishery Management
Councils.
Response: Council meetings are a critical part of the fishery
management planning process and are the first and earliest point of
development for fishery management policy. It is most beneficial to
Tribes, Councils and National Oceanic and Atmospheric Administration
(NOAA) if there is early and active participation by Indian Tribes and
Alaska Natives in these fora. NOAA strongly encourages Councils to
discuss and work with Tribes to address their concerns while developing
fishery conservation and management measures under the Magnuson Stevens
Act, (MSA) 16 U.S.C. 1800 et seq. Thus, while it is NOAA's--and not the
Councils'--responsibility to consult with federally recognized tribes
under E.O. 13175, the Councils' current and future early engagement
will facilitate and enhance tribal input into NOAA's rulemaking
processes.
Comment 6: The policy should clarify that the Department's agency
research activities are subject to the policy.
Response: Research activities conducted by a Department's bureau or
agency are subject to this Policy and E.O. 13175 whenever such
activities involve actions or policies that have tribal implications.
The Department complies with existing statutory and regulatory
consultation obligations.
Comment 7: How will the new policy affect the status of existing
co-management agreements with the National Marine Fisheries Service
(NMFS)?
Response: The new policy has no effect on co-management agreements
established under section 119 of the Marine Mammal Protection Act. NMFS
will continue to work with Alaska Native organizations under co-
management agreements. Such co-management does not constitute, nor is
it a substitute for, government-to-government consultation as required
by E.O. 13175.
Comments to Section 1: Introduction
Comment 8: Add more language to the Introduction Section of the
policy statement that reflects tribal sovereignty and tribes' rights to
self-determination and self-government.
Response: The Department adopts the recommendation and has added
the sentence to Section 1.01 stating, ``The Department recognizes
Indian tribal self-government and supports tribal sovereignty and self-
determination.''
[[Page 33333]]
Comment 9: Include the term ``on a pre-decisional basis'' in
Section 1.01. The term will ensure that the consultation occurs before
a policy is changed.
Response: The Department does not adopt this recommendation. The
term ``pre-decisional'' is a term of art, and is not appropriate for
this policy. The Department adheres to Section 3 of E.O. 13175, which
includes the timing of consultation with the Department or its
operating units, as stated in Section 7.02 of this policy.
Comment 10: Reference Executive Orders and Secretarial Orders in
the Introduction Section of the policy.
Response: The Department refers to E.O. 13175 in Section 1.04 of
this final policy. This policy does not refer to Secretarial Orders
because the Department has joint Secretarial Orders with the Department
of the Interior to implement provisions of the Endangered Species Act
which only applies to specific Department components. It is not
appropriate to include existing Secretarial Orders as part of this
policy.
Comment 11: Include the relevant ``regulations, statutes,
Presidential memoranda, and Executive Orders'' in the Introduction
section of the policy statement.
Response: The Department adopts this comment and has added the
following sentence to the end of Section 1.04: ``This Policy is to be
construed consistent with Federal statutes, regulations, Presidential
memoranda, Executive Orders, and other relevant Federal legal
authorities.''
Comment 12: Substitute the word ``input'' in the first sentence of
Section 1.04 with ``participation.''
Response: The Department does not adopt the recommendation. The
term ``input'' is consistent with Section 5(a) of E.O. 13175.
Comment 13: Include a new sub-section in the Introduction Section
of the policy with the following wording; ``The Department recognizes
and respects the diversity of Indian tribes and understands that they
are culturally, traditionally, and administratively different. This
diversity makes it impossible for any federal agency to make the sole
decision regarding whether or in what manner it is appropriate to
consult with tribes. The only entities that know enough about
individual tribes to make that determination are the tribes themselves.
Therefore, consultation can be initiated by either the Tribes or the
Department.''
Response: Section 7.01 of this policy provides for consultation
initiated by either a Tribe or the Department.
Comments to Section 2: Background
Comment 14: The policy should clarify whether it replaces the 1995
policy. If it does not, then include the 10 enumerated principles and
expand the principles in the new policy.
Response: To be clear, this new policy replaces the 1995 policy and
builds and expands upon the principles in the 1995 policy, and it
incorporates the requirements of E.O. 13175 and Presidential
Memorandum, ``Tribal Consultation,'' 2009 Daily Comp. Pres. Docs. 887
(November 5, 2009). The Department also references the 1995 American
Indian and Alaska Native Policy of the Department of Commerce in
Section 2.01 of this policy.
Comment 15: Include E.O. 13175's policymaking criteria with
explanation of how DOC will apply them when ``formulating and
implementing policies that have tribal implications.''
Response: This recommendation is addressed in Section 2.01 of the
policy, which incorporates E.O. 13175, Presidential Memorandum,
``Tribal Consultation,'' and the Office of Management and Budget's
implementing guidance of July 30, 2010.
Comment 16: Provide additional guidance on the Department's process
for determining whether policies have tribal implications, including
examples of past Department actions that were subject to consultations.
Provide detailed guidance on how the Department will conduct
consultations and prepare tribal impact statements for regulations with
tribal impacts that impose costs, are not required by legislation, and
preempt tribal law.
Response: The Department does not adopt this recommendation. This
policy is intended to provide high-level guidance to operating units to
implement depending on their circumstances and governing legal
authorities. The policy also provides the Department with the necessary
flexibility to ensure its consultations are as effective as possible.
Comments to Section 3: Authority
The Department received no comments to Section 3.
Comments to Section 4: Definitions
Comment 17: Amend the definition 4.01, ``Consultation'' to include
an accountable process, which enables Tribal officials to participate
in Federal decision-making before an agency takes an action, or commits
to a decision to consider an action or policy with Tribal implications.
Note that consultation is not a single act of communication, but
consists of multiple steps which culminate in an outcome that reflects
the views, needs and objectives of both Federal and Tribal
participants.
Response: The Department does not adopt the recommendation. The
definition in this final policy is consistent with E.O. 13175. Section
7 of this policy also addresses the elements of consultation including
means of communication, exchange of information, and notice.
Comment 18: Amend the definition of ``Consultation'' to incorporate
the following key principles: Consultation is a process which enables
the tribes to participate in federal decision making before an agency
takes an action, or commits to a decision to consider an action or
policy with tribal implications. Consultation is not a single act of
communication but rather a process involving multiple steps which
culminate in an outcome that reflects the views, needs and objectives
of both federal and tribal participants. Consultation may be initiated
by tribal governments to discuss and exchange information on a
government-to-government basis. Consultation can be formal with
established time lines and required publications, or less formal
through means such as teleconferencing. Consultation is triggered when
the Department considers ``Policies that have tribal implications,'' as
that term is defined in E.O. 13175, or when the Department considers
proposals for regulations, rulemaking, legislation, guidance, policy
formulation or actions that may have a substantial direct effect on one
or more tribes, on the relationship between tribes and the federal
government, or on the distribution of power and responsibilities
between the tribes and federal government.
Response: The Department does not adopt the recommendation. The
final policy's definition is consistent with E.O. 13175; moreover,
Section 7 of this policy addresses the elements of consultation
including means of communication, exchange of information, and notice.
Comment 19: Add to the definition of ``consultation'' the term
``actions'' in addition to ``policies.''
Response: The Department does not adopt the recommendation. The
term ``policies that have tribal implications'' is the term for actions
requiring the procedures described in the E.O. 13175 and therefore,
this Department policy implements E.O. 13175.
Comment 20: The policy should include Alaska Native Corporation in
the definition of ``Indian Tribe,'' or adopt a parallel formal
consultation policy for Alaska Native Corporations,
[[Page 33334]]
per the Congressional direction to Federal Agencies in the Consolidated
Appropriations Act of 2004, Pub. L. 108-199, Div. H, Section 161, which
is codified as a note to 25 U.S.C. Sec. 450.
Response: The Department has added the following definition for
Alaska Native Corporations and will include ANCs in the policy
consistent with 25 U.S.C. Sec. 450 note on ``Consultation with Alaska
Native Corporations: 07. ``Alaska Native Corporation,'' pursuant to 43
U.S.C. Sec. Sec. 1602 et seq., any Regional Corporation, any Village
Corporation, any Urban Corporation, and any Group Corporation as
defined in, or established pursuant to, the Alaska Native Claims
Settlement Act.
The Department also added a new Section 8. ``Consultation with
Alaska Native Corporations,'' to the Policy, which reads as follows:
01. In 2004, through two consolidated appropriations acts, Congress
required federal agencies to consult with Alaska Native Corporations on
the same basis as federally recognized Indian Tribes under E.O. 13175
(Public Law 108-199, 118 Stat. 452, as amended by Pub. L. 108-447, 118
Stat. 3267).
02. The Department interprets the term ``Alaska Native
Corporations'' in this requirement to mean ``Native Corporations'' as
that term is defined under the Alaska Native Claims Settlement Act
(ANCSA) of 1971. Congress created regional, village, and urban
corporations to manage the lands, funds, and other assets conveyed to
Alaska Natives by ANCSA. There are 13 regional corporations and over
200 village corporations in Alaska. The village corporations generally
represent shareholders in villages associated with the 229 federally
recognized tribes in Alaska. Most Alaska Native Corporation
shareholders also are members of a federally recognized tribe in
Alaska.
03. The Department will implement the requirement to consult with
Alaska Native Corporations in a manner as close as possible to
consultations with federally recognized tribes in Alaska, while
recognizing the important differences between sovereign tribal
governments and the federal trust responsibility to those tribal
governments and corporations obligated to maximize financial returns to
shareholders. Alaska Native Corporations were established to operate as
for-profit enterprises, and may not necessarily represent the same
perspective or interests as the tribes. Consultation and coordination
with the corporations will follow the same process as described in this
Policy for tribes, with the following exceptions:
a. Consultations with Alaska Native Corporations will occur on a
``government-to-corporation'' basis, rather than ``government-to-
government'' basis to reflect the distinction between sovereign
governments and corporate entities.
b. Government-to-corporation consultations will occur with
appropriate adjustments given the unique status, structure, and
interests of Alaska Native Corporations.
Comment 21: Clarify whether the policy applies to the Office of the
Secretary as well as to its operating units, and identify the
organizations to which the policy does not apply. Also, require the
implementation of procedures at each bureau and agency level to allow
the bureaus/agencies to determine when a policy has tribal
implications, and allow the Tribes to consult on the various agency-
level policies.
Response: The Department does not adopt the recommendation. This
policy is intended to provide high-level guidance to the Department's
bureaus to allow them to implement the policy depending on their
circumstances and governing legal authorities. Section 6 of the policy
allows, but does not require, the development of operating level,
bureau and agency, procedures. The policy applies to the Office of the
Secretary, as implemented by the Tribal Consultation Official, see
Section 5.01.
Comment 22: On definition 4.04, ``policies that have tribal
implications'':
a. Tribal consultation officials should interpret the term
``policies that have tribal implications'' broadly so that the term
applies to more than just regulations and legislative action. The
policy should clarify that the phrase in section 7.02.a ``other policy
statements and actions'' is intended to apply broadly to include all
written statements of policy or actions that have the potential to
affect tribal rights and interests.
b. Tribal consultations should also be triggered by any Department
action that affects American Indian, Alaska Native and Native American
tribes, not just formal Department policies.
c. Include language about the timing of consultation. Amend the
policy to include the following or similar language from the 1995
policy: ``work with tribal governments prior to implementing any
action.''
Response: The subject phrase is a term defined in E.O. 13175 and
applies to ``actions'' as well as policies and regulations.
Comment 23: Amend definition 4.05 ``Tribal Officials,'' to read as
follows: ```Tribal officials' means an elected or duly appointed Tribal
leader or official delegate, designated in writing by a Tribe, or a
duly authorized representative of an authorized intertribal
organization.'' Also, include official delegates who are designated as
such by their tribes to ensure that individuals who have been
authorized to consult on behalf of their tribe will be accorded the
same status as elected or duly appointed officials.
Response: The Department used the definition from E.O. 13175 for
``Tribal officials,'' which includes ``duly appointed officials,''
meaning that a delegated representative of a tribal government will be
recognized as an appropriate ``tribal official.''
Comments to Section 5: Roles and Responsibilities
Comment 24: The tribal consultation official should develop
protocols, SOPs and, as appropriate, a Memorandum of Understanding
(MOU) for formal and informal consultations. These documents would
establish the means for providing and exchanging information between
the Department and tribal governments.
Response: The Department does not adopt this recommendation. This
policy is intended to provide high-level guidance to the Department's
bureaus and agencies to allow them to implement the policy depending on
their circumstances and governing legal authorities. The Department
intends that operating units address such procedures in their handbooks
or other guidance as appropriate.
Comment 25: The Department should encourage each of its bureaus and
agencies to allocate funding toward Tribal consultation activities,
including consultation itself, staff training, and other associated
activities.
Response: The Department does not adopt the recommendation. The
Department will encourage the operating units to work within existing
resources to comply with E.O. 13175.
Comment 26: Tribal officials situated at headquarters are poorly
positioned to implement the meaningful and timely consultation process
anticipated by E.O. 13175. National consultation officials have little
experience on the regional issues and insufficient time to focus on the
issues to effectively monitor and coordinate. A regional consultation
official would have more regular contact with the tribes and would be
able to screen issues and provide advance notice of impending issues.
Therefore, change Section 5.02.b to require the designation of
consultation coordinators at the regional level, particularly within
operating units such as NOAA. Also,
[[Page 33335]]
give the tribes significant input into the selection process for the
designated national and regional consultation officials.
Response: The Department does not adopt the recommendation. Section
5.02.b of this policy allows operating units to delegate authority.
Comment 27: The Department's tribal consultation official or
designee should certify to the Office of Management and Budget (OMB)
that draft final regulations or proposed regulations with tribal
implications comply with EO 13175. A tribal consultation summary report
is part of the required annual update to OMB that each agency must
provide.
Response: The Department added a paragraph under Section 5.01; the
new paragraph reads: d. The Tribal Consultation Official has the
responsibility for submitting an annual report to OMB pursuant section
7(a) of E.O. 13175.
Comment 28: Make it clear how, and when, each operating unit
designates officials to consult with the tribes. Explain how tribes can
open lines of communication with the designated officials.
Response: Pursuant to Section 5.02.a of the policy, each operating
unit is responsible for designating an official at the operating unit
level and for the timing of that designation.
Comment 29: Clarify the term ``periodic dialogue'' in Section
5.01.c, or replace that phrase with the term ``meaningful dialogue'' or
``biannually'' to give more guidance on what the term means in the
context of the policy.
Response: The Department does not adopt the recommendation. The
phrase ``periodic dialogue'' is intended to allow flexibility in the
regular review of this policy's implementation.
Comment 30: Section 5.02.a. of the Policy states that the head of
each operating unit within the Department will designate an official to
ensure compliance with the Policy. As written, there is no timeframe
for this designation in the policy. Institute a timeframe for this
process. Additionally, some units already have an experienced
designated official, while other units' designated officials may have
little to no experience in tribal consultation. Increase
interdepartmental cooperation, in addition to providing a timeline for
designating the officials, to provide certainty and continuity for
Tribes as they navigate the new policy and interact with federal
officials across the Department.
Response: The Department does not adopt the recommendation. The
Department determined that these responsibilities are best addressed at
the operating unit level to allow each operating unit to assess its
needs to support interactions and relationships with tribes.
Comment 31: Add the following responsibilities to the tribal
consultation official or designated officials in the operating units
Section: Responding to inquiries from tribes about a specific
consultation--past, ongoing, or proposed; responding to inquiries about
the consultation process in general; receiving requests from tribes
seeking to initiate consultation; coordinating to identify and screen
for potential consultation issues; preserving and maintaining complete
consultation records; assisting tribal governments seeking to access
consultation records; and receiving post-consultation complaints,
objections, and alleged inconsistencies.
Response: The Department does not adopt the recommendation. This
policy is intended to provide high-level guidance to the Department's
bureaus and agencies to allow them to implement the policy depending on
their circumstances and governing legal authorities. The Department
intends that operating units address this matter in their handbooks or
other guidance as appropriate.
Comment 32: Establish tribal liaison positions to implement the
consultation policy, and to encourage agencies to allocate funding for
tribal consultations.
Response: The Department does not adopt the recommendation, and
encourages operating units to work with existing resources and staff to
comply with E.O. 13175.
Comments to Section 6: Training and Guidance
Comment 33: The focus of the consultation in most cases should be
at the local level; however, it is critical that bureau or agency
officials at the headquarters level with no background in tribal
relations be properly trained in the consultation process.
Response: This policy provides for training in Section 6.01.
Comment 34: Section 6.02 provides that ``each operating unit may
develop and issue tribal consultation guidance.'' Agencies should be
required to develop Tribal consultation guidance. This guidance should
be developed under supervision of the Tribal Consultation Official to
ensure that its content is uniform across the Department's operating
units.
Response: The Department addresses this recommendation in Section
6.02 of the Policy which permits operating units to develop tribal
consultation guidance provided that the guidance is consistent with DAO
218-8 and is reviewed by the Tribal Consultation Official.
Comments to Section 7: Consultation
Comment 35: The term ``reasonable effort'' in Section 7 is unclear.
Clarify that the Department will confirm receipt of a tribal request
for consultation within 30 days, or even 45 days. Tribes believe that
there are few circumstances where the Department would not be able to
accommodate a request, and urge the Department to conduct face-to-face
consultations with tribes.
Response: The Department does not adopt the recommendations.
Operating units may have specific time constraints imposed by statute
or circumstances, and this policy is intended to provide them with the
flexibility to accommodate those constraints.
Comment 36: It is important for the consultation process to retain
the requirement that it is a government-to-government interaction. The
consultation process must also involve elected tribal officials unless
otherwise approved by the tribe.
Response: This comment is addressed in the policy definition of
``Tribal officials,'' adopted from Section 1(d) of E.O. 13175.
Comment 37: The Department should include in the policy further
guidance indicating standards for determining which forms of
consultation are appropriate in various circumstances, and allow the
tribes to consult on these standards.
Response: The Department does not adopt the recommendation. This
policy is intended to provide high-level guidance to allow operating
units to implement the policy depending on their circumstances and
governing legal authorities. The Department intends that operating
units address details of their respective consultation process in their
handbooks or other guidance as appropriate.
Comment 38: Coordination with the tribes should not be limited to
formal consultation, and a variety of consultation types should be
further defined in sub-section 01. Consultation types could include
informal discussions with tribal leaders, meetings with individual
tribes, listening sessions, and formal consultations. Add as the last
section to sub-section 01: ``Ultimately the consultation process is to
entail an informed discussion of the proposed federal policy and
associated tribal concerns between the designated Tribal Consultation
Official and tribal officials.''
[[Page 33336]]
Response: The Department adopts this recommendation and has added
the following language to the end of Section 7.01: Ultimately, the
consultation process is to entail an informed discussion of the
proposed federal policy and associated tribal concerns between the
designated Tribal Consultation Official and tribal officials.
Comment 39: Develop a tribal liaison position for the Alaska
region. Tribal liaisons should be trained in how to conduct tribal
consultations to help facilitate tribal-agency relationships.
Response: The Department does not adopt the recommendation to
develop a tribal liaison position for the Alaska region. This comment
has been forwarded to NOAA for its consideration.
Comment 40: The phrase ``reasonable effort'' in Section 7.02.b. is
unclear, and should either be removed and replaced with language
clarifying the specific time frame that the Department considers
reasonable.
Response: The Department does not adopt the recommendation to
remove the term ``reasonable effort'' because consultations are
intended to reflect a relationship between the operating unit and the
tribe, taking into account the resources and mission of the operating
unit. Some operating units have specific time constraints imposed by
statute or other circumstances, and this policy is intended to provide
those units with sufficient flexibility to accommodate those
parameters.
Comment 41: Add to end of last sentence in Section 7.02.b. the
following language: ``prior to substantive decision points and/or final
action'' and include that ``the timing of consultation is to allow for
the substantive consideration of tribal input and concerns before
finalizing a decision on federal policies, regulations, or
legislation.''
Response: The Department adopts the recommendation in part and has
added the following language to the end of subsection b.: Exchange of
Information. The Department and operating units will make a reasonable
effort to identify and provide timely and accurate information for
consultation prior to substantive decision or final action.
Comment 42: Section 7.02.c. should include a statement that the
Department will clearly notify tribes of events such as meetings that
it considers to be consultations, and that the Department will do so
within 45 or 90 days prior to the consultation. The Department should
seek tribal participation in its deliberative process about the
necessity of a proposed action.
Response: The Department will advise its operating units to provide
45 days advanced notice of any invitation to conduct a consultation, or
to provide notice at the earliest time practicable. Such notices will
include any relevant materials to facilitate discussion. This response
does not supersede any existing legal authorities or responsibilities
of the operating units.
Comment 43: Communication to and from rural Alaska can be
difficult, and the Department should follow up on correspondence to
Tribes and Tribal entities. Response: The final policy addresses
follow-up notices to tribal officials in Section 7.02.
Comment 44: The phrase ``when practical'' in Sections 7.01, 7.02.b
and 7.02.d is unclear, and the Department should amend the section to
clarify that the Department will provide tribes with a specific amount
of time to prepare for consultations and submit views, and will be
flexible about the time allowed.
Response: The Department agrees with the recommendation to provide
Tribes adequate time to prepare for consultation as well as relevant
materials to facilitate and submit their views, and will advise its
operating units to develop consultation materials, as appropriate. In
addition, the Department has added the following language to Section
7.01 Consultation/Consultation Process: ``The Tribal Consultation
Official or the head of each operating unit, as applicable, will treat
a request for consultation from a tribal official in an expedited
fashion and provide a written response confirming receipt of the
request.''
Comment 45: For Section 7.e., when a consultation occurs between
the Department or its operating units and Tribal officials, the
Department or operating unit should 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. Tribes should be able to agree to the accuracy of the
summaries of the tribes' position in the consultation. The follow-up
communications should be transmitted within 30 days of the
consultation. They should also specifically indicate whether the
Department accepts the tribes' position, or include an explanation of
the Department's position. The Tribal Consultation Official or head of
each operating unit conducting a consultation should also maintain
documentation addressing the consultation, tribal concerns, and
recommendations in conformance with applicable records retention
schedules. Additionally, the policy should acknowledge that Tribes are
more familiar with their local environment and, thus, the policy should
clarify that the Tribes possess unique knowledge. The policy should
also allow the Tribes to initiate consultations whenever there is a
potential for their rights and interests to be affected. The
consultation process should also be timely and initiated early in the
decision making process to allow the tribe to have access to
information about the proposed regulation or policy. Regular
communication between the Department and a Tribe is an essential
precursor to the consultation process; consultation should be as a
matter of course and not just when ``practical.'' The policy should
also distinguish between regular communications, calls, site visits,
and participation in events and informal meetings, which are not
intended to serve as the formal negotiation component of the
government-to-government consultation process.
Response: The Department does not adopt the recommendation for a
specified timeframe to submit a written summary of the consultation.
Section 7.2.e. of the policy states that ``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
Department expects operating units to address written consultation
summaries in their handbooks or other guidance, as appropriate. Written
summaries are not intended to be used to document regular
communications and interactions between Department employees and
Tribes; rather, these written communications are part of the
consultation process.
Comment 46: A written summary of consultation should include the
Tribe's responses and should become part of the official record on
consultation activities maintained by the operating unit and the
Department, and should form the basis for a tribal impact summary.
Response: E.O. 13175 requires a tribal summary impact statement
when an agency (1) promulgates regulations that have tribal
implications, that impose substantial direct compliance costs on Indian
tribal governments, and are not required by statute, or (2) promulgates
regulations that have tribal implications and that preempt tribal law.
The Department intends consultation reporting to be a separate
component of all consultations, regardless of whether they involve
regulations. In response to this comment, the Department has added the
following language as a new subparagraph to 5.02.c. The head of
[[Page 33337]]
each operating unit will consult with Tribes and prepare tribal summary
impact statements when promulgating any regulations that have tribal
implications, that impose substantial direct compliance costs on Indian
tribal governments, and that are not required by statute; and when
promulgating any regulation that has tribal implications and that
preempts tribal law.
Comment 47: The Department should distribute a follow-up report
detailing immediate and long-term actions to be taken after
consultations, and should add language in Section 7.02.e. to the effect
that documentation includes any proposal for Departmental follow-up
actions.
Response: The Department does not adopt the recommendation. Section
7.02.e. sufficiently addresses this request by requiring the Department
or operating unit to provide tribal officials with ``a formal written
communication that summarizes the consultation, and responds to the
issues and concerns, if any, identified during the consultation.''
Changes to the Proposed Policy
The policy statement adopted in this Notice differs from the
proposed policy statement as follows:
(a) Proposed policy Section No. 1, ``Introduction,'' subparagraphs
01. and 04. were modified in response to comments.
(b) Proposed policy Section No. 2, ``Background,'' subparagraph 01.
was modified to include wording on consultation with Alaska Native
Corporations in compliance with existing law.
(c) Proposed policy Section No. 4, ``Definitions,'' subparagraph
03. was modified to expressly state that the definition of operating
units includes all bureaus and agencies in response to comments.
(d) Proposed policy Section No. 4, ``Definitions,'' was modified to
include a definition for ``Alaska Native Corporation'' in response to
comments.
(e) Proposed policy Section No 5, ``Roles and Responsibilities for
Consultation,'' subsection 01. was modified to include additional
reporting language in response to comments.
(f) Proposed policy Section No. 5, ``Roles and Responsibilities for
Consultation,'' subsection 02. was modified in response to comments to
include additional responsibilities language for the heads of operating
units.
(g) Proposed policy Consultation Process Section No. 7,
``Consultation Process,'' subparagraph 01. was modified and includes
additional language relating to the purpose of consultation.
(h) Proposed policy Consultation Process Section No. 7,
``Consultation Process,'' subparagraph 02 was modified in response to
comments received to include additional language relating to responses
to requests for tribal consultations.
(i) Proposed policy Section No. 8, ``Implementation,'' was
renumbered to Section No. 9.
(j) A new Section No. 8, ``Consultation with Alaska Native
Corporations,'' was added to address the consultation with Alaska
Native Corporations.
The final Consultation and Coordination Policy of the U.S.
Department of Commerce now reads as follows:
Tribal Consultation and Coordination Policy of 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.
The Department recognizes Indian tribal self-government and supports
tribal sovereignty and self-determination.
02. The Department recognizes the Federal Government's unique legal
relationship, as established in the Constitution, statutes, treaties
and federal court decisions, 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. This Policy is to be construed consistent with Federal
statutes, regulations, Presidential memoranda, Executive Orders, and
other relevant Federal legal authorities.
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); the Office of Management and Budget
Memorandum, ``Guidance for Implementing E.O. 13175, `Consultation and
Coordination with Indian tribal Governments;' '' and the Consolidated
Appropriations Act, 2004, Pub. L. 108-199, Div. H Sec. 161, 118 Stat.
3, 452 (2004), as amended by Consolidated Appropriations Act, 2005,
Pub. L. 108-447, Div. H., Title V Sec. 518, 118 Stat. 2809, 3267,
relating to consultation with Alaska Native Corporations.
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
01. 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.
[[Page 33338]]
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. ``Operating units'' includes all Department
bureaus and agencies.
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.
07. ``Alaska Native Corporation,'' pursuant to 43 U.S.C. 1602 et
seq., any Regional Corporation, any Village Corporation, any Urban
Corporation, and any Group Corporation as defined in, or established
pursuant to, the Alaska Native Claims Settlement Act.
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.
d. The Tribal Consultation Official is responsible for submitting
an annual report to OMB pursuant section 7(a) of E.O. No. 13175.
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 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.
c. The head of each operating unit will consult with Tribes and
prepare tribal summary impact statements when promulgating any
regulations that have tribal implications, that impose substantial
direct compliance costs on Indian tribal governments, and that are not
required by statute; and when promulgating any regulations that have
tribal implications and that preempt tribal law.
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:
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.
Ultimately, the consultation process is to entail an informed
discussion of the proposed federal policy and associated tribal
concerns between the designated Tribal Consultation Official and tribal
officials.
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 or operating units will
coordinate with tribal officials to plan logistical considerations for
the consultation. The Department or 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. The Tribal Consultation Official or the head of each
operating unit, as applicable, will treat a request for consultation
from a tribal official in an expedited fashion and provide a written
response confirming receipt of the request.
e. Written Communication and Record-Keeping. When a consultation
[[Page 33339]]
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. Consultation With Alaska Native Corporations
01. In 2004, through two consolidated appropriations acts, Congress
required federal agencies to consult with Alaska Native Corporations on
the same basis as federally recognized Indian Tribes under E.O. 13175
(Pub. L. 108-199, 118 Stat. 452, as amended by Pub. L. 108-447, 118
Stat. 3267).
02. The Department interprets the term ``Alaska Native
Corporations'' in this requirement to mean ``Native Corporations'' as
that term is defined under the Alaska Native Claims Settlement Act
(ANCSA) of 1971. Congress created regional, village, and urban
corporations to manage the lands, funds, and other assets conveyed to
Alaska Natives by ANCSA. There are 13 regional corporations and over
200 village corporations in Alaska. The village corporations generally
represent shareholders in villages associated with the 229 federally
recognized tribes in Alaska. Most Alaska Native Corporation
shareholders also are members of a federally recognized tribe in
Alaska.
03. The Department will implement the requirement to consult with
Alaska Native Corporations in a manner as close as possible to
consultations with federally recognized tribes in Alaska, while
recognizing the important differences between sovereign tribal
governments and the federal trust responsibility to those tribal
governments and corporations obligated to maximize financial returns to
shareholders. Alaska Native Corporations were established to operate as
for-profit enterprises, and may not necessarily represent the same
perspective or interests as the tribes. Consultation and coordination
with the corporations will follow the same process as described in this
Policy for tribes, with the following exceptions:
a. Consultations with Alaska Native Corporations will occur on a
``government-to-corporation'' basis, rather than ``government-to-
government'' basis to reflect the distinction between sovereign
governments and corporate entities.
b. Government-to-corporations consultations will occur with
appropriate adjustments given the unique status, structure, and
interests of Alaska Native Corporations.
Section 9. 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 10. 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: May 21, 2013.
Rebecca M. Blank,
Acting Secretary of Commerce.
[FR Doc. 2013-13052 Filed 6-3-13; 8:45 am]
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