[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]
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