[Federal Register Volume 81, Number 121 (Thursday, June 23, 2016)]
[Notices]
[Pages 40893-40897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14896]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-5651-N-03]


Tribal Government-to-Government Consultation Policy

AGENCY: Office of the Secretary, HUD.

ACTION: Notice of final policy statement.

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SUMMARY: In compliance with Executive Order 13175, ``Consultation with 
Indian Tribal Governments,'' HUD adopts this Tribal Government-to-
Government Consultation Policy. The purpose of this tribal consultation 
policy is to enhance communication and coordination between HUD and 
federally recognized Indian tribes and to outline guiding principles 
and procedures under which all HUD employees are to operate with regard 
to federally recognized Indian or Alaska Native tribes. This final 
policy statement follows publication of an April 8, 2015, request for 
public comment on HUD's proposed Tribal Consultation Policy and, after 
consideration of the public comments submitted in response to the April 
8, 2015, notice, adopts the proposed policy without change.

FOR FURTHER INFORMATION CONTACT: Heidi J. Frechette, Deputy Assistant 
Secretary for Native American Programs, Office of Public and Indian 
Housing, Department of Housing and Urban Development, 451 7th Street 
SW., Room 4126, Washington, DC 20410, telephone number 202-401-7914 
(this is not a toll-free number). Hearing- or speech-impaired 
individuals may access this number via TTY by calling the Federal Relay 
Service at 800-877-8339 (this is a toll-free number).

SUPPLEMENTARY INFORMATION:

Background

    Executive Order 13175 (65 FR 67249, published November 9, 2000) 
recognizes the right of Indian tribes to self-government and supports 
tribal sovereignty and self-determination. Among other things, it 
requires that agencies have an accountable process to ensure meaningful 
and timely input by tribal officials in developing policies that have 
tribal implications. On November 5, 2009, President Obama reaffirmed 
the government-to-government relationship between the Federal 
Government and Indian tribal governments in a White House memorandum 
that acknowledges that Indian tribes exercise inherent sovereign powers 
over their members and territory. The November 5, 2009, memorandum also 
acknowledged that the United States will continue 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.

Development of HUD Tribal Government-to-Government Consultation Policy

    Consistent with Executive Order 13175, and the Presidential 
memorandum of November 5, 2009, HUD undertook a series of consultations

[[Page 40894]]

and requested public comment on this consultation policy statement. 
Beginning in January 2010, HUD held a series of HUD-tribal regional 
consultations to discuss HUD's existing tribal consultation policy. 
Each consultation session was hosted by one of the six Office of Native 
American Programs (ONAP) Area Office Administrators. Prior to all 
meetings, the ONAP Area Office sent out invitation letters to all 
tribes and tribally designated housing entities to inform them of the 
meetings. The invitation package included the President's memorandum, 
Executive Order 13175, HUD's current tribal consultation policy, and a 
list of questions designed to prompt discussion and focus on the 
issues. HUD's Deputy Assistant Secretary for ONAP attended a Northwest 
ONAP and Eastern/Woodlands ONAP session, and HUD's Assistant Secretary 
for Public and Indian Housing participated in the initial session held 
in Suquamish, Washington. Participants at each of the consultation 
sessions were informed that an electronic mailbox had been established 
to receive their comments and that HUD's CODETALK Web site would be 
used to display all comments received. The comments from participants 
who attended these consultations, as well as all comments received by 
other means, were consolidated by HUD's ONAP. HUD carefully reviewed 
all comments received from all sources, responded, and made changes to 
the existing HUD consultation policy based on these comments, as 
appropriate.
    HUD conducted a second round of tribal consultation by sending the 
revised draft policy to all tribal leaders for their comment. On 
November 12, 2014, the Department provided all tribal leaders a draft 
version of HUD's revised tribal government-to-government consultation 
policy and requested their feedback and opinion on the draft. In 
response to the Department's November 12, 2014, request for comments, 
the Department received three comments from Indian tribes and a 
national organization that represents the housing interests of Native 
Americans.
    More recently, on April 8, 2015, at 70 FR 18858, HUD published a 
Federal Register notice requesting public comment on its tribal 
government-to-government consultation policy. HUD published this notice 
consistent with Executive Order 13175 and a November 5, 2009, 
Presidential memorandum that reaffirms the government-to-government 
relationship between the Federal Government and Indian tribal 
governments. HUD received eight public comments on the notice. Comments 
were received from tribes and tribal housing authority officials, 
nonprofits, advocacy groups, and interested members of the public. 
After considering public comment, HUD decided not to make any changes 
to its draft policy published on April 8, 2015. As a result, this 
notice establishes HUD's Tribal Government-to-Government Consultation 
Policy. HUD would like to respond, however, to several comments 
received in response to its April 8, 2015, request for comments.
    Comment: Consultation Requires Negotiated Rulemaking. One commenter 
stated that the consultation policy should recognize that any changes 
to regulations that directly impact tribes or tribal members require 
negotiated rulemaking. According to the commenter, there have been 
changes to regulations that had a direct, negative impact upon tribal 
members, and the only consultation performed was a ``Dear Tribal 
Leader'' letter. The commenter stated that the new consultation policy 
should prevent those lapses in the future by enshrining a mandatory 
negotiated rulemaking prior to these kinds of changes.
    HUD Response: HUD disagrees that negotiated rulemaking is required 
for all of HUD's regulatory actions that impact the tribes. Rather, 
section 106 of the Native American Housing and Self-Determination Act 
(NAHASDA), as amended, limits negotiated rulemaking to ``any regulation 
that may be required pursuant to requirements made to [NAHASDA] after 
the effective date of enactment of this Act [October 1, 2008].'' See 25 
U.S.C. 4116(b). Procedures for implementing this requirement were 
recently codified in 24 CFR 1000.9. As a result, while negotiated 
rulemaking is required under the Indian Housing Block Grant program, 
HUD believes that negotiated rulemaking is only one method of tribal 
consultation, and that there are other forms of consultation that 
ensure tribal participation in HUD policy that might affect the tribes.
    Comment: Policy Should Make Clear that Tribes Can Initiate 
Consultation. One commenter stated that the policy as written only 
addresses the initiation of consultation by HUD and does not address 
the ability of tribes to initiate consultation with HUD on any specific 
issue or proposed policy that has tribal implications. The commenter 
recommended that the policy be revised to clarify that tribes can 
initiate consultation and that this right in no way alleviates HUD's 
regular and ongoing obligation to initiate and engage in meaningful 
consultation with individual tribes.
    HUD Response: HUD agrees with the commenter that consultation can 
be initiated by the tribes. HUD is not making this change, however, 
since nothing in this consultation policy prevents tribe from 
contacting or initiating consultation with HUD.
    Comment: Policy Must Address Confidentiality of Tribal Interests. 
One commenter, citing Pueblo of Sandia v United States, 50 F.3d 856, 
861-62 (10th Cir. 1995), stated that it is critical to engage in tribal 
consultation in a manner that exhibits sensitivity to and respect for 
tribal confidentiality concerns regarding cultural, religious, 
political, and other intra-tribal affairs. According to the commenter, 
the current draft policy does not contain any provision to address the 
confidentiality of tribal interests. As a result, the commenter 
recommended that the policy be revised to require that HUD develop 
appropriate safeguards and policies to ensure adequate protection of 
tribal confidentiality interests throughout the entire consultation 
process.
    HUD Response: HUD appreciates the comment and shares the 
commenter's concerns regarding the importance of ensuring the 
confidentiality of tribal interests when appropriate. HUD also 
believes, however, that consultation and collaboration as envisioned by 
Executive Order 13175 and the Presidential memorandum of November 5, 
2009, require transparency and fairness with all tribes to build trust 
among the tribes and the Federal Government. Notwithstanding, HUD will 
be sensitive to tribal confidentiality interests throughout the entire 
consultation policy.

HUD Tribal Government-to-Government Consultation Policy

I. Introduction

    A. The United States Government has a unique relationship with 
American Indian governments as set forth in the Constitution of the 
United States, treaties, statutes, judicial decisions, and Executive 
orders and Presidential memorandums.
    B. On April 29, 1994, a Presidential memorandum was issued 
reaffirming the Federal Government's commitment to operate within a 
government-to-government relationship with federally recognized 
American Indian and Alaska Native tribes, and to advance self-
governance for such tribes.\1\ The Presidential memorandum directs each

[[Page 40895]]

executive department and agency, to the greatest extent practicable and 
to the extent permitted by law, to consult with tribal governments 
prior to taking actions that have substantial direct affect on 
federally recognized tribal governments. In order to ensure that the 
rights of sovereign tribal governments are fully respected, all such 
consultations are to be open and candid so that tribal governments may 
evaluate for themselves the potential impact of relevant proposals.
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    \1\ See http://www.gpo.gov/fdsys/pkg/FR-1994-05-04/html/94-10877.htm.
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    On May 14, 1998, Executive Order 13084, Consultation and 
Coordination with Indian Tribal Government was issued.\2\ This 
Executive order was revoked and superseded on November 6, 2000, by 
Executive Order 13175,\3\ which is identically titled to Executive 
Order 13084 and which sets forth guidelines for all Federal agencies 
to: (1) Establish regular and meaningful consultation and collaboration 
with Indian tribal officials in the development of Federal policies 
that have tribal implications, (2) strengthen the United States 
government-to-government relationships with Indian tribes, and (3) 
reduce the imposition of unfunded mandates upon Indian tribes.
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    \2\ See http://www.gpo.gov/fdsys/pkg/FR-1998-05-19/pdf/98-13553.pdf.
    \3\ See http://www.gpo.gov/fdsys/pkg/FR-2000-11-09/pdf/00-29003.pdf.
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    On November 5, 2009,\4\ President Obama issued a memorandum to the 
heads of all executive departments and agencies that reaffirmed that 
the United States has a unique legal and political relationship with 
Indian tribal governments, established through and confirmed by the 
Constitution of the United States, treaties, statutes, Executive 
orders, and judicial decisions. The memorandum stated that 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 memorandum stated that the 
Administration is committed to regular and meaningful consultation and 
collaboration with tribal officials in policy decisions that have 
tribal implications, and directed, among other things, as an initial 
step, through complete and consistent implementation of Executive Order 
13175.
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    \4\ See http://www.whitehouse.gov/the-press-office/memorandum-tribal-consultation-signed-president.
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    C. This consultation policy applies to all HUD programs and 
policies that have substantial direct effects on Federally recognized 
Indian tribal governments. In formulating or implementing such 
policies, HUD will be guided by the fundamental principles set forth in 
section 2 of Executive Order 13175, to the extent applicable to HUD 
programs. Section 2 of the Executive order provides as follows:
    Sec. 2. Fundamental Principles. In formulating or implementing 
policies that have tribal implications, agencies shall be guided by the 
following fundamental principles:
    (a) The United States has a unique legal relationship with Indian 
tribal governments as set forth in the Constitution of the United 
States, treaties, statutes, Executive Orders, and court decisions. 
Since the formation of the Union, the United States has recognized 
Indian tribes as domestic dependent nations under its protection. The 
Federal Government has enacted numerous statutes and promulgated 
numerous regulations that establish and define a trust relationship 
with Indian tribes.
    (b) Our Nation, under the law of the United States, in accordance 
with treaties, statutes, Executive Orders, and judicial decisions, has 
recognized the right of Indian tribes to self-government. As domestic 
dependent nations, Indian tribes exercise inherent sovereign powers 
over their members and territory. 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.
    (c) The United States recognizes the right of Indian tribes to 
self-government and supports tribal sovereignty and self-determination.

II. Definitions

    A. ``Consultation'' means the direct and interactive (i.e., 
collaborative) involvement of tribes in the development of regulatory 
policies on matters that have tribal implications.
    Consultation is the proactive, affirmative process of: (1) 
Identifying and seeking input from appropriate Native American 
governing bodies, community groups, and individuals; and (2) 
considering their interest as a necessary and integral part of HUD's 
decisionmaking process.
    This definition adds to statutorily mandated notification 
procedures. The goal of notification is to provide an opportunity for 
comment; however, with consultation procedures, the burden is on the 
Federal agency to show that it has made a good faith effort to elicit 
feedback.
    B. ``Exigent situation'' means an unforeseen combination of 
circumstances or the resulting state that calls for immediate action in 
order to preserve tribal resources, rights, interests, or Federal 
funding.
    C. ``Indian tribe'' 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.
    D. ``Policies that have tribal implications'' refers to 
regulations, legislative proposals, and other policy statements or 
actions that have substantial direct effects on one or more Indian 
tribe, or on the distribution of power and responsibilities between the 
Federal Government and Indian tribes.
    E. ``To the extent practicable and permitted by law'' refers to 
situations where the opportunity for consultation is limited because of 
constraints of time, budget, legal authority, etc.
    F. ``Tribal officials'' means elected or duly appointed officials 
of Indian tribal governments or authorized intertribal organizations.

III. Principles

    A. HUD respects tribal sovereignty and acknowledges the unique 
relationship between the Federal Government and Indian tribes.
    B. HUD recognizes and commits to a government-to-government 
relationship with federally recognized tribes.
    C. HUD recognizes tribes as the appropriate non-Federal parties for 
making policy decisions and managing programs for their constituents.
    D. HUD shall take appropriate steps to remove existing legal and 
programmatic impediments to working directly and effectively with 
tribes on programs administered by HUD.
    E. HUD shall encourage States and local governments to work with 
and cooperate with tribes to resolve problems of mutual concern.
    F. HUD shall work with other Federal departments and agencies to 
enlist their interest and support in cooperative efforts to assist 
tribes to accomplish their goals within the context of all HUD 
programs.
    G. HUD shall be guided by these policy principles in its planning 
and management activities, including its budget, operating guidance, 
legislative initiatives, management accountability system, and ongoing 
policy and

[[Page 40896]]

regulation development processes for all programs affecting tribes.

IV. Tribal Consultation Process

    A. Applicability. HUD will apply this tribal consultation policy to 
all proposed policies that have tribal implications, to the greatest 
extent practicable and permitted by law. Based on a government-to-
government relationship and in recognition of the uniqueness of each 
tribe, the primary focus for consultation activities is with individual 
tribes. The Office of Public and Indian Housing's ONAP, may serve, 
under the direction of the Secretary, as the lead HUD office for the 
implementation of this policy. Internal HUD policies and procedures are 
excluded from this policy.
    B. Methods of Communication. The methods of communication used will 
be determined by the significance of the consultation matter, the need 
to act quickly, and other relevant factors. Consultation can be 
accomplished through various methods of communication. While modern 
technology and group events should be utilized whenever possible to 
conserve funds and respect time constraints of all those involved, 
generally these methods of communication should not serve in the place 
of formal, face-to-face discussion.
    C. Consultation with Tribes When Drafting Policies That Have Tribal 
Implications. To the extent practicable and permitted by law, HUD shall 
make reasonable efforts to consult with tribal officials concerning 
proposed policies that have tribal implications, before such policies 
are drafted, in order to facilitate greater tribal participation in 
development of the proposed policies. Such consultation shall include 
on the HUD Web site a notice of HUD's plans to develop such policies, 
and an invitation for tribal officials to comment on items that should 
be included in such policies. HUD shall provide a specific deadline for 
comments, which shall not be less than 30 days from the date of the 
notice. This timeline may be compressed in exigent situations.
    D. Notice of Proposed Policies That Have Tribal Implications. To 
the extent practicable and permitted by law, after proposed policies 
that have tribal implications have been drafted, HUD will notify the 
tribes of such proposed policies and will include a copy of the 
proposed policies with the notice. The notice shall designate the lead 
office in HUD Headquarters. The lead office in HUD Headquarters shall 
be responsible for such notification, unless it has delegated such 
responsibility to another office. HUD shall provide a specific deadline 
for tribal comments, which shall not be less than 60 days from the date 
of the notice. This timeline may be compressed in exigent situations. 
Nothing herein shall affect the deadlines established by Federal law or 
regulation with regard to comments in the course of the formal agency 
rulemaking process for the promulgation of Federal regulations.
    E. Tribal Response. Tribal officials may provide recommendations 
concerning proposed policies that have or that may have tribal 
implications to the lead office in HUD Headquarters no later than the 
deadline established in Part IV.D of this consultation policy. Such 
recommendations may be provided orally during meetings with HUD 
representatives or by written documents submitted to HUD 
representatives.
    F. Meetings. Tribes may facilitate regional meetings with HUD 
representatives to identify and address issues relevant to HUD policies 
that have tribal implications. HUD will convene at least one national 
tribal consultation meeting each year. To reduce costs and conserve 
resources to the greatest extent feasible, tribes and HUD will 
coordinate consultation meetings with other regularly scheduled 
meetings, such as multi-agency and association meetings.
    G. Reporting Mechanisms. In all cases when a tribe or tribes have 
been involved in the consultation process, HUD will maintain an 
Internet Web site or Web page to address the informational needs of 
tribes and tribal leaders. Such Web site or Web page will include 
relevant HUD documents and other relevant documents, including comments 
submitted by other tribes. HUD shall notify the tribes of the 
finalization of proposed policies that have tribal implications, and 
provide such policies to the tribes.
    H. Tribal Advisory Organizations, Committees, and Workgroups. HUD 
will work with tribal organizations, committees, or workgroups, when 
appropriate, to assist in facilitating involvement of tribes in 
decisionmaking and policy development. The work with tribal 
organizations, committees, and workgroups will be in coordination with, 
and not to the exclusion of, consultation with individual tribes on a 
government-to-government basis.
    I. Joint Federal/Tribal Workgroups.
    1. A workgroup may be established by HUD and tribes to address 
specific issues or to draft specific policies that have tribal 
implications. Tribal representation should be consistent with the 
established standard of geographically diverse small, medium, and large 
tribes, whenever possible.
    2. Alternate workgroup members may be appointed by written 
notification signed by the member. Such alternates shall possess the 
authority of the workgroup member to make decisions on their behalf, if 
such authority is so delegated to them in writing.
    3. The workgroup shall be chaired by at least one tribal workgroup 
member, selected by the tribal workgroup members, and one HUD 
representative.
    4. The workgroup may conduct its activities through various methods 
of communication, including in-person meetings, conference calls, and 
Internet-based meeting platforms. Workgroup members may be accompanied 
by other individuals for advice, as the members deem necessary.
    5. Whenever possible, workgroup products should be circulated to 
tribal leaders for review and comment.
    6. All final recommendations will be given serious consideration by 
HUD.

V. Tribal Standing Committee

    On issues relating to tribal self-governance, tribal trust 
resources, or treaty and other rights, HUD will explore and, where 
appropriate, use consensual mechanisms for developing regulations, 
including negotiated rulemaking. HUD may establish a standing 
committee, consisting of representatives of tribal governments, to 
consult on the appropriateness of using negotiated rulemaking 
procedures on particular matters. The procedures governing such a 
standing committee would be established through the mutual agreement of 
HUD and tribal governments.

VI. Unfunded Mandates

    To the extent practicable and permitted by law, HUD shall not 
promulgate any regulation that is not required by statute, that has 
tribal implications, and that imposes substantial direct compliance 
costs on such communities, unless:
    A. Funds necessary to pay the direct costs incurred by the Indian 
tribal government in complying with the regulation are provided by the 
Federal Government; or
    B. HUD, prior to the formal promulgation of the regulation:
    1. Consulted with tribal officials early in the process of 
developing the proposed regulation;
    2. 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 (OMB) a description 
of the extent of HUD's prior

[[Page 40897]]

consultation with representatives of affected Indian tribal 
governments, a summary of the nature of their concerns, and the 
agency's position supporting the need to issue the regulation; and
    3. Makes available to the Director of OMB any written 
communications submitted to HUD by such Indian tribal governments.

VII. Increasing Flexibility for Indian Tribal Waivers

    HUD shall review the processes under which Indian tribal 
governments apply for waivers of statutory and regulatory requirements, 
and take appropriate steps to streamline those processes.
    A. HUD shall, to the extent practicable and permitted by law, 
consider any application by an Indian tribal government for a waiver of 
statutory or regulatory requirements, in connection with any program 
administered by HUD, with a general view toward increasing 
opportunities for utilizing flexible policy approaches, at the Indian 
tribal level, in cases in which the proposed waiver is consistent with 
the applicable Federal policy objectives and is otherwise appropriate.
    B. HUD shall, to the extent practicable and permitted by law, 
render a decision upon a complete application for a waiver within 90 
days of receipt of such application by HUD. HUD shall 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.
    C. This section applies only to statutory or regulatory 
requirements that are discretionary and subject to waiver by HUD. 
Applicable civil rights statutes and regulations are not subject to 
waiver.

VIII. Applicability of the Federal Advisory Committee Act

    The provisions of the Federal Advisory Committee Act (5 U.S.C. 
App., Pub. L. 92-463, section 2, Oct. 6, 1972, 86 Stat. 770) (FACA) do 
not apply to consultations undertaken pursuant to this policy. In 
accordance with section 204(b) of the Unfunded Mandates Reform Act of 
1995 (Pub. L. 104-4, approved March 22, 1995, 109 Stat. 48), FACA is 
not applicable to consultations between the Federal Government and 
elected officers of Indian tribal governments (or their designated 
employees with authority to act on their behalf). As OMB 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 the exemption should be 
construed broadly to include any 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)).

IX. General Provisions

    This document has been adopted for the purpose of enhancing 
government-to-government relationships, communications, and mutual 
cooperation between the United States Department of Housing and Urban 
Development and tribes and is not intended to, and does not, create any 
right to administrative or judicial review, or any other right or 
benefit or trust responsibility, substantive or procedural, enforceable 
by a party against the United States, its agencies or 
instrumentalities, its officers or employees, or any other persons. The 
provisions of FACA are not applicable to this policy. This document is 
effective on the date it is signed.

    Dated: April 4, 2016.
Juli[aacute]n Castro,
Secretary.
[FR Doc. 2016-14896 Filed 6-22-16; 8:45 am]
 BILLING CODE 4210-67-P