[Federal Register Volume 86, Number 44 (Tuesday, March 9, 2021)]
[Notices]
[Pages 13605-13609]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-04883]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary of Transportation

[Docket No. DOT-OST-2021-0023]


Notice of Tribal Consultation; Request for Comments

AGENCY: Office of the Secretary (OST), U.S. Department of 
Transportation (DOT).

ACTION: Notice of Tribal consultation; request for comments.

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SUMMARY: The U.S. Department of Transportation (DOT or we) announces 
that it is holding virtual Tribal consultation with American Indian and 
Alaskan Native Tribes on its implementation of Executive Order 13175 of 
November 6, 2000, consistent with the Presidential Memorandum of 
January 26, 2021. We also announce the establishment of a docket to 
receive comments on our Tribal consultation policies and practices. 
Testimony presented at these Tribal consultations will be considered by 
DOT in formulating its plan of actions in response to the Presidential 
Memorandum of January 26, 2021. We will host a virtual Tribal 
consultation on March 24, 2021.

DATES: Consistent with Executive Order 13175, Consultation and 
Coordination with Indian Tribal Governments, we will hold a virtual 
Tribal consultation meeting to take oral testimony. The Tribal 
consultation meeting will be held on Wednesday, March 24, 2021 from 
2:00 p.m. to 3:30 p.m. EDT. Participants can access the presentation by 
logging into the following: https://www.transportation.gov/self-governance. Participants may submit written questions in advance of the 
meeting to [email protected], or provide written comments/questions 
using the chat function during the presentation. Any questions or 
comments to be considered must be received in writing via email to 
[email protected] by 5 p.m. EST, Wednesday, March 31, 2021. 
Additional information about how to participate during the consultation 
will be made available at https://www.transportation.gov/self-governance in advance of the consultation and announced at the 
beginning of the consultation.
    Additional follow-on listening sessions with Tribal associations 
may be scheduled. These listening sessions will be open to the public. 
Please check https://www.transportation.gov/self-governance for 
additional details.
    The closing date for comments on this notice is April 19, 2021. The 
Department will consider late comments to the extent practicable.

ADDRESSES: You may submit comments by any of the following methods:
     Electronic mail: Send electronic mail to 
[email protected] and reference OST-2021-0023 in the subject line.
     Electronically through the Federal eRulemaking Portal: 
www.regulations.gov. Follow the online instructions for submitting 
comments;
     Mail: U.S. Department of Transportation, Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE, Washington, DC 20590;
     Hand Delivery: U.S. Department of Transportation, Docket 
Operations,

[[Page 13606]]

West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, 
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays; or
     Fax: 1-202-493-2251.
    All comment submissions must include the agency name, docket name, 
and docket number (DOT-OST-2021-0023). DOT solicits comments from the 
public to better inform its deliberations. DOT posts these comments, 
without edit, including any personal information the commenter 
provides, to www.regulations.gov, as described in the system of records 
notice (DOT/ALL-14 FDMS), which can be viewed at www.dot.gov/privacy. 
Physical access to the Docket is available at the Hand Delivery address 
noted in this section.

FOR FURTHER INFORMATION CONTACT: Milo Booth, Director of Tribal 
Affairs, 202-309-9786, [email protected].

SUPPLEMENTARY INFORMATION:

I. Purpose

    On January 26, 2021, President Biden issued a Presidential 
Memorandum on Tribal consultation and Strengthening Nation-to-Nation 
Relationships (Presidential Memorandum) \1\ reaffirming Executive Order 
(E.O.) 13175 titled ``Consultation and Coordination With Indian Tribal 
Governments'' \2\ and the policy announced in the 2009 Presidential 
Memorandum titled ``Tribal Consultation'' (2009 Presidential 
Memorandum).\3\ The Presidential Memorandum directs agencies to consult 
with Indian Tribes to develop a detailed plan of actions to implement 
E.O. 13175 and subsequently submit this plan to the Director of the 
Office of Management and Budget (OMB) and the Assistant to the 
President for Domestic Policy (APDP) within 90 days (April 26, 2021).
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    \1\ 86 FR 7491 (January 29, 2021).
    \2\ 65 FR 67249 (November 9, 2000).
    \3\ 74 FR 57879 (November 9, 2009).
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    Consistent with E.O. 13175 and the Presidential Memorandum, the 
U.S. Department of Transportation (DOT or we) announces its intent to 
engage in Tribal consultation on whether our existing consultation 
policies and practices are effective in implementing E.O. 13175 and 
ways we can improve our outreach and communication with Indian Tribes. 
We also announce the establishment of a docket to receive comments from 
Indian Tribal officials,\4\ tribal organizations, individual tribal 
members and other interested persons on our communication and outreach 
with Indian Tribes when we consider ``policies that have tribal 
implications.'' \5\ In section II, below, we identify specific 
questions to help us assess our implementation of E.O. 13175.
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    \4\ ``Tribal officials,'' as defined in Section I(d) of E.O. 
13175, means elected or duly appointed officials of Indian tribal 
governments or authorized intertribal organizations.
    \5\ ``Policies that have tribal implications,'' as defined in 
Section l(a) of E.O. 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.
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II. Background

    A. Agency Mission. Our mission is to ensure America has the safest, 
most efficient and modern transportation system in the world, which 
boosts our economic productivity and global competitiveness and 
enhances the quality of life in communities both rural and urban. The 
Department and its Operating Administrations (OAs) implement a diverse 
set of funding and safety programs. We are interested in any general 
comments or concerns that would help us improve our communication and 
outreach with Indian Tribes on ``policies that have tribal 
implications,'' as we strive to achieve our mission.
    B. Existing Policies Regarding Interactions with Indian Tribes. We 
previously have issued two policy statements that set forth principles 
to promote effective government-to-government interactions with 
American Indian and Alaska Native Tribes, and to encourage and 
facilitate Tribal involvement in areas over which the DOT has 
jurisdiction. DOT Order 5301.1, ``Department of Transportation 
Programs, Policies, and Procedures Affecting American Indians, Alaska 
Natives, and Tribes'' (November 16, 1999). (https://www.transportation.gov/sites/dot.gov/files/docs/DOT%205301.1.pdf) and a 
Consultation Plan issued in response to the 2009 Presidential 
Memorandum (https://www.transportation.gov/sites/dot.gov/files/docs/Tribal%20Consultation%20Plan.pdf) comprise these policy statements. 
These policy statements provide Department-wide guidelines to achieve 
consistency, but also encourage tailored approaches to consultation and 
coordination that reflect the circumstances of each situation and the 
preference of each Tribal government. It is our expectation that all 
program and OA consultation and coordination practices will be 
consistent with or adhere to the Department's Tribal consultation 
policies.

1. Consultation Plan

    The U.S. Department of Transportation Tribal Consultation Plan 
(Consultation Plan) (https://www.transportation.gov/sites/dot.gov/files/docs/Tribal%20Consultation%20Plan.pdf) summarized E.O. 13175, the 
2009 Presidential Memorandum, and DOT Order 5301.1. The Consultation 
Plan did not cancel or displace DOT Order 5301.1. Rather, we read the 
two documents jointly. The Consultation Plan identified seven goals and 
specific actions associated with each goal that we would continue to 
take to support the principles of self-governance, self-determination, 
and tribal sovereignty identified in E.O. 13175. These goals and 
actions include the following:
    Goal 1: Foster meaningful government-to-government relations by:
     Ensuring participation by Department officials at national 
tribal conferences, tribal/State meetings, summits, and conferences 
discussing tribal issues.
     Establishing direct contact with Indian tribal 
governments, including visiting tribal governments at reservations, 
Native Villages, and communities.
     Seeking tribal government representation in meetings, 
conferences, summits, advisory committees, and review boards concerning 
issues with tribal implications.
    Goal 2: Improve existing tribal programs by:
     Seeking tribal input when the DOT develops or revises 
regulations with tribal implications and providing adequate time to 
allow for comment.
     Notifying tribes of grant opportunities through multiple 
means, including direct letters and emails whenever appropriate, as 
well as announcements on the DOT website and in the Federal Register.
     Providing timely technical assistance on changes to 
legislation, regulations, programs, and grants.
    Goal 3: Ensure meaningful tribal input into future tribal 
transportation programs by:
     Developing policy and programs using input, guidance, and 
recommendations from tribal leaders.
     Seeking and responding to comments from tribal 
governments.
     Soliciting tribal comments in the development of the DOT's 
surface transportation reauthorization proposal.
     Conducting meetings throughout the country after the 
passage of the next surface transportation authorization legislation to 
discuss impacts on and

[[Page 13607]]

opportunities for the tribes and their transportation systems.
     Consulting with tribal governments on making 
transportation services available to improve mobility, employment 
opportunities, and access to community services for people who have 
disabilities, are elderly, or low-income.
    Goal 4: Ensure the DOT's uniform and effective delivery of tribal 
programs throughout the country by:
     Reviewing existing tribal policies in DOT's OAs to ensure 
consistency with this action plan and each other.
     Assessing the resource needs of the tribal transportation 
programs at DOT.
     Developing training modules for DOT employees on tribal 
transit and highway programs.
     Developing a training program for DOT employees regarding 
tribes, the sovereignty of tribal governments, and the unique 
government-to-government relationship between tribes and the Federal 
Government.
     Reaffirming DOT's commitment to working with the Bureau of 
Indian Affairs on the administration of tribal highway safety grants.
     Continuing to support the tribal Technical Assistance 
Program (TTAP).
     Addressing tribal transportation issues in DOT Strategic 
Plans.
     Enhancing support for tribal Liaisons in the Federal 
Transit Administration, the Federal Highway Administration, the Federal 
Aviation Administration, and other staff throughout the Department 
working with tribal governments.
     Coordinating efforts among DOT's OAs by establishing a 
Department-wide working group tasked with making specific 
recommendations to the Secretary of Transportation.
    Goal 5: Assist in implementing tribal infrastructure projects by:
     Building capacity of tribes on DOT Programs and processes, 
including the Indian Reservation Roads Program and the Tribal Transit 
Program.
     Initiating a review of the grant process for the Tribal 
Transit Program in consultation with the tribes.
     Working with tribal governments to develop case studies 
and best practices in transportation planning and highway safety.
     Developing a highway Safety Management System (SMS) for 
tribal governments and forming a Steering Committee that includes 
tribal representatives to advise on the SMS.
     Identifying and communicating to tribal leaders emerging 
issues that could impact tribal transportation programs.
     Publishing guidance on DOT's programs with potential 
benefits to tribal governments.
    Goal 6: Assist tribal members in developing transportation 
capacities by:
     Increasing internships for American Indians and Alaska 
Natives at DOT through outreach to tribal colleges and universities.
     Creating a web page for tribes on the DOT website.
     Increasing the representation of American Indians and 
Alaska Natives in the DOT workforce, within merit principles and 
consistent with the application of appropriate veterans' preference 
criteria.
    Goal 7: Assist efforts to coordinate national tribal infrastructure 
policy and programs within the Federal Government by:
     Working with the U.S. Department of Agriculture, the 
Indian Health Service, and the Bureau of Indian Affairs to coordinate 
Federal tribal infrastructure programs and incorporating livability 
principles as adopted by the Department's Sustainability Partnership 
with the U.S. Department of Housing and Urban Development and the U.S. 
Environmental Protection Agency.
    We seek your input on these seven goals, which the Department 
identified in the Consultation Plan developed in 2010 to guide the 
actions we will take to support the principles set forth in E.O. 13175. 
Should we revise any of these goals or incorporate new goals? Please 
explain your recommendation. If a new goal is proposed, what actions 
should we take, to the extent practicable and consistent with law, to 
support the principles set forth in E.O. 13175? Please explain why 
these actions are appropriate and how they are consistent with law.

2. DOT Order 5301.1

    The Department issued DOT Order 5301.1 (https://www.transportation.gov/sites/dot.gov/files/docs/DOT%205301.1.pdf) to 
ensure that programs, policies, and procedures administered by the 
Department are responsive to the needs and concerns of American 
Indians, Alaska Natives, and tribes. DOT Order 5301.1 predates E.O. 
13175. It affirms the Department's and the OAs' unique legal 
relationship with Indian tribes; establishes the Department's 
consultation and coordination process with Indian tribes for any action 
that may ``significantly or uniquely affect'' them; and, lists goals 
and requirements for OAs carrying out policies, programs, and 
activities affecting American Indians, Alaska Natives, and tribes. 
These requirements were designed to recognize Indian statutory 
preferences in employment, Federal financial assistance arrangements, 
and contracting; respond to the transportation concerns of Indian 
tribes related to environmental justice, children's safety and 
environmental health risks, occupational health and safety, and 
environmental matters; foster opportunities for hiring tribal members 
and increasing participation in Federal training activities; include 
tribal colleges and universities in Departmental educational, research, 
and program activities; and treat correspondence from leaders of Indian 
tribes in the same manner as Congressional correspondence.
    In developing our detailed plan of action for consideration by OMB 
and the APDP, we have identified a need to review DOT Order 5301.1.
    E.O. 13175 requires agencies to ensure meaningful and timely input 
from Tribal government representatives in the development of rules that 
have substantial direct effects. What additional or different steps can 
we take to ``ensure meaningful and timely input'' in the development of 
``policies that have tribal implications''? Please explain why these 
actions are appropriate.
    What steps should we continue to take to ensure meaningful and 
timely input by tribal officials in the development of regulatory 
``policies that have tribal implications?''
    Are there recommendations for ways the accountability of our 
consultation process can be improved?
    DOT Order 5301.1 defines consultation, in relevant part, as a 
``meaningful and timely discussion . . . during the development of 
regulations, policies, programs, plans or matters that significantly or 
uniquely affect'' Tribal communities. DOT Order 5301.1 references 
implementing instructions found in OMB Memorandum M-95-20 and the 1994 
Presidential Memorandum titled ``Government-to-Government Consultations 
with Native American Tribal Governments.'' How do you recommend that we 
revise DOT Order 5301.1 to align it with E.O 13175? Please explain your 
recommendation.
    E.O. 13175 requires agencies to consult with Tribal governments in 
the development of rules that impose ``substantial direct compliance 
costs'' or ``substantial direct effects'' on Tribal communities or the 
relationship and distribution of power between the Federal Government 
and Tribes. Please identify actions we have taken that, in your view, 
impose ``substantial direct compliance costs'' or ``substantial direct 
effects'' on Tribes or the distribution of power between the Federal 
Government and Tribes. Please explain why, in your view, these actions 
have a substantial

[[Page 13608]]

direct effect on Tribal communities and how these actions impose 
substantial direct compliance costs or on Tribes.
    Would it be helpful to define the meaning of the terms 
``substantial direct compliance costs'' and ``substantial direct 
effects?'' How do you define these terms when determining whether to 
consult with DOT?

3. Consultation With ANCSA Corporations

    Our policies address consultation with federally-recognized Indian 
tribes (including Alaska Native tribes, villages, and communities) that 
the Secretary of the Interior acknowledges to exist as an Indian tribe 
pursuant to the Federally Recognized Indian Tribe List Act of 1994.11 
It does not, however, address consultation with corporations 
established pursuant to the Alaska Native Claims Settlement Act (ANCSA 
Corporations). In 2004, through two consolidated appropriations acts, 
Congress required Federal agencies to consult with Alaska Native 
Corporations \6\ 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.) DOT 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. DOT is considering adding to the DOT 
Consultation Policy the requirement to consult with Alaska Native 
Corporations on the same basis as Indian Tribes under E.O. 13175. The 
Department requests comments on the requirement to consult with Alaska 
Native Corporations that would help us improve our policy while 
recognizing the important differences between them and sovereign tribal 
governments, the Federal trust responsibility to those Tribal 
governments and corporations obligated to maximize financial returns to 
shareholders, and that Alaska Native Corporations may not necessarily 
represent the same perspective or interests as Tribal nations.
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    \6\ ``Alaska Native Corporation,'' pursuant to 43 U.S.C. 1602 et 
seq., is 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.
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4. Consultation With Native Hawaiians and State-Recognized Tribes

    Our policies currently include references to non-Federally 
recognized groups of Indigenous people, such as State-recognized 
Tribes, but not Native Hawaiians and Native Hawaiian organizations. The 
intent of our Tribal consultation policies is to outline how DOT will 
engage and conduct consultation with Federally recognized Tribal 
Governments in accordance with E.O. 13175 and applicable requirements. 
To be consistent with the definition of an ``Indian tribe'' in E.O. 
13175, the Department is considering removing from our policies 
implementing E.O. 13175 references to non-Federally recognized Tribes. 
Please comment on whether you would agree with removing references to 
non-Federally recognized Tribes.

5. Communicating Agency Disposition of Tribal Input

    DOT and its OAs describe tribal input and concerns regarding 
specific projects in its environmental documents and decision 
documents. DOT similarly addresses tribal input and concerns in its 
rulemaking documents by describing any Tribal consultations or concerns 
that were identified in the course of developing the rulemaking. We are 
interested in any general comments or concerns that would help us 
improve our process for communicating with Tribes how their input was 
considered by agency decision makers. How could we improve our post-
consultation communication? Are there best practices of which we should 
be aware to ensure that tribal concerns are heard and addressed?

6. Recognition of Federal Trust and Treaty Obligations

    As set forth in the U.S. Constitution, treaties, U.S. Supreme Court 
decisions, Federal statutes and regulations, and Executive Orders, the 
United States has a unique legal relationship with Indian tribes and a 
special relationship with Alaska Native entities. Based on treaties 
with Indian tribes, the U.S. Supreme Court shortly after the founding 
of the United States established the concept of a Federal trust to 
define the relationship between the Federal and tribal governments. 
This trust relationship continues to guide and interpret the 
responsibility of the United States to Indian tribes. The Department 
acknowledges that the Federal trust doctrine is a cornerstone of 
Federal Indian law and that it is the responsibility of the U.S. 
government to faithfully carry out its treaty promises and trust 
obligations to Indian tribes.
    To ensure that the Department is meeting its treaty obligations and 
trust responsibilities, we are therefore seeking comments on what 
actions you think the Department should conduct or not conduct 
regarding its programs and activities with Indian tribes. Please 
explain your recommendation.
    What treaty or other source do you consider creates an obligation 
that the Department should carry out? Please explain your response.
    What treaty or other source do you consider creates a trust 
obligation for the Department?
    In addition to carrying out consultations with tribes on ``policies 
that have tribal implications,'' what other specific trust obligations 
should be carried out by the Department? Please explain your 
recommendation.

III. Tribal Consultation Meeting

    This Tribal consultation meeting and any listening sessions hosted 
by Tribal associations are intended to provide interested parties with 
an opportunity to discuss their views on the issues; and for us to 
obtain the views of Federally recognized Tribes, in accordance with 
E.O. 13175 and the Presidential Memorandum, on ways we can improve our 
outreach and communication with Indian Tribes when we develop policies 
with Tribal implications. We consider Tribal consultation meetings a 
valuable component of our deliberations and believe that these meetings 
will allow for constructive dialogue with the Tribal community, Tribal 
officials, Tribal Elders, elected members of Alaska Native Villages or 
their appointed representatives, and principals of tribally-owned and 
Alaska Native Corporation-owned firms. Testimony received at these 
Tribal consultations will guide our review process of our Tribal 
consultation policies and practice and may be used to develop new 
policies and strategies for consultation.
    Respondents. The Consultation will prioritize the Government-to-
Government discussion and will provide elected or appointed leaders of 
Tribal governments or their designated representatives first 
opportunity to comment. Other representatives of Tribal governments, 
Tribal organizations, and members of the public may offer comment after 
official Tribal representatives. The order of comments will be as 
follows: First, elected or appointed leaders of Tribal governments or 
their designated representatives who requested to provide testimony in 
advance of the meeting; second, elected or appointed leaders of Tribal 
governments or their designated representatives who requested to 
provide testimony via a chat function during the consultation; third, 
other representatives of Tribal governments who request to provide oral 
testimony in advance of the meeting or via the chat function; fourth,

[[Page 13609]]

representatives of Tribal organizations, who request to provide oral 
testimony in advance of the meeting or via the chat function; fifth, 
other members of the public who request to provide oral testimony in 
advance of the meeting or via the chat function; and sixth, all other 
members of the public who identify themselves orally.
    Adjournment. We will adjourn Tribal consultation meetings early if 
all attendees who requested to provide oral testimony in advance of and 
during the consultation have delivered their comments. We may provide 
additional or alternate opportunities to comment, including in virtual 
listening sessions hosted by Tribal transportation associations with 
Departmental officials. Additional information regarding additional 
opportunities to provide oral comment will be made available at https://www.transportation.gov/self-governance. We will summarize in a letter 
to Tribal governments the comments received and indicate how Tribal 
input was considered in the final action. The letter will constitute 
formal follow-up notification and will be entered as the date Tribal 
consultation ended.

IV. Request for Comments

    We request public comment from Indian Tribes on the Department's 
implementation of E.O. 13175 and its Tribal consultation policies and 
practice. Your comments may relate to, but should not be limited to, 
the questions identified above. All comments will be accepted. The 
virtual Tribal consultation meetings and listening sessions are not the 
only opportunity you have to comment on this matter. In addition to, or 
in place of, attending a virtual meeting, we encourage you to submit 
comments in accordance with the instructions in ADDRESSES, above. 
Public comment submissions should include the Docket number OST-2021-
0023.
    DOT solicits comments from the public to better inform its 
deliberations. The DOT posts these comments, without edit, including 
any personal information the commenter provides, to 
www.regulations.gov, as described in the system of records notice (DOT/
ALL-14 FDMS), which can be viewed at www.dot.gov/privacy.

    Issued in Washington, DC, on or about March 4, 2021.
Peter Paul Montgomery Buttigieg,
Secretary of Transportation.
[FR Doc. 2021-04883 Filed 3-8-21; 8:45 am]
BILLING CODE 4910-9X-P