Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Notices 23283 

Signed at Washington, DC, on the 12th day 

of April 2012. 

Hilda L. Solis, 

Secretary of Labor. 

[FR Doc. 2012–9360 Filed 4–17–12; 8:45 am] 

BILLING CODE 4510–24–P 

DEPARTMENT OF LABOR 

Office of the Secretary 

All Items Consumer Price Index for All 

Urban Consumers; United States City 

Average 

Pursuant to Section 33105(c) of Title 

49, United States Code, and the 

delegation of the Secretary of 

Transportation’s responsibilities under 

that Act to the Administrator of the 

Federal Highway Administration (49 

CFR, Section 501.2(a)(9)), the Secretary 

of Labor has certified to the 

Administrator and published this notice 

in the Federal Register that the United 

States City Average All Items Consumer 

Price Index for All Urban Consumers 

(1967 = 100) increased 116.6 percent 

from its 1984 annual average of 311.1 to 

its 2011 annual average of 673.818. 

Signed at Washington, DC, on the 12th day 

of April 2012. 

Hilda L. Solis, 

Secretary of Labor. 

[FR Doc. 2012–9362 Filed 4–17–12; 8:45 am] 

BILLING CODE 4510–24–P 

DEPARTMENT OF LABOR 

Office of the Secretary 

Tribal Consultation Policy 

AGENCY: Office of the Secretary, Labor. 

ACTION: Proposed policy: Request for 

comments. 

SUMMARY: The Department of Labor 

seeks comments on a proposed tribal 

consultation policy. This policy would 

establish standards for improved 

consultation with federally recognized 

Indian Tribes to the extent that a 

conflict does not exist with laws or 

regulations. It would apply to any 

Department action that affects federally 

recognized Indian tribes and would 

require that the Department’s 

government-to-government consultation 

involve appropriate Tribal and 

Departmental officials. 

DATES: We will consider all comments 

received by June 18, 2012. 

ADDRESSES: Submit comments and 

additional materials using any of the 

following methods. 

Electronically: Submit comments 

electronically through the Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the Web 

site instructions for submitting 

comments for docket number: DOL– 

2012–0002. 

Regular Mail, express delivery, hand 

(courier) delivery or messenger service: 

Submit comments to Jeremy Bishop, 

Special Assistant to the Secretary, Office 

of Public Engagement, U.S. Department 

of Labor, Room C2313, 200 Constitution 

Avenue NW., Washington, DC 20210. 

FOR FURTHER INFORMATION CONTACT: 

Jeremy Bishop, Office of the Secretary, 

202–693–6452 or 

bishop.jeremy@dol.gov. 

SUPPLEMENTARY INFORMATION: The U.S. 

Department of Labor’s proposed policy 

on consultation with tribes is set forth 

below. 

U.S. Department of Labor 

Tribal Consultation Policy 

I. Background and Purpose 

A. Executive Order 13175 and the 

Department of Labor’s Relationship With 

Indian Tribes 

B. Referenced Authorities 

II. Guiding Principles 

A. Government-to-Government 

Relationship and Tribal SelfDetermination 

B. Open Communications and Respect for 

Cultural Values and Traditions 

C. Ensuring Consultation Is Meaningful 

III. Policy Statement 

A. Departmental Consultation Policy 

Generally 

B. Implementation Responsibilities of DOL 

Operating Agencies 

IV. Regulations 

V. Unfunded Mandates 

VI. Flexibility and Waivers 

VII. Consultation Process Guidelines 

VIII. Performance and Accountability 

IX. Designated Officials and Points of 

Contact 

A. Designated Departmental Official. 

B. Point of Contact for Each DOL Agency. 

X. Definitions 

XI. Supplemental Terms and Effective Date 

Appendix A—Executive Order 13175 

I. Background and Purpose 

A. Executive Order 13175 and DOL’s 

Relationship With Indian Tribes 

The United States has a unique legal 

and political relationship with Indian 

tribal governments, established through 

and confirmed by the Constitution of 

the United States, treaties, statutes, 

executive orders, and judicial decisions. 

In recognition of that special 

relationship, pursuant to Executive 

Order 13175 of November 6, 2000, 

executive departments and agencies are 

charged with engaging in regular and 

meaningful consultation and 

collaboration with tribal officials in the 

development of federal policies that 

have tribal implications, and are 

responsible for strengthening the 

government-to-government relationship 

between the United States and Indian 

tribes. 

The Department of Labor (DOL) has 

collaborated extensively with American 

Indians and Alaska Natives (AI/AN) for 

many years in advancing its mission of 

fostering job opportunities, improving 

working conditions, and assuring workrelated benefits and rights of workers 

and retirees in the United States. In 

recent years, senior DOL officials have 

conducted many site visits in Indian 

Country and regularly engage with 

Indian tribes and their representatives, 

including the National Congress of 

American Indians. The Department’s 

collaboration with Indian tribes 

encompasses a broad range of DOL 

matters affecting tribes, including joint 

efforts to improve tribal program 

management, rulemaking, regulations, 

policies, waivers and flexibility, grant 

programs, contracting opportunities, 

and regulatory guidance. 

The Department’s Employment and 

Training Administration (ETA), for 

example, awards grants to Indian and 

Native American entities for programs 

that have become a key part of 

improving tribal economic selfsufficiency by ensuring that tribal 

workers have the skills to build and 

operate new infrastructure and facilities 

at the tribal community level and 

facilitate the creation of new business 

opportunities in Indian Country. ETA’s 

Division of Indian and Native American 

Programs (DINAP) administers 

employment and training services grants 

to tribal communities in ways that are 

consistent with the traditional cultural 

values and beliefs of the people they are 

designed to serve, including youth and 

at-risk populations facing employment 

barriers. DINAP works closely with the 

Native American Employment and 

Training Council (NAETC), a federal 

advisory committee comprised of 

representatives of Indian tribes, tribal 

organizations, Alaska Native entities, 

Indian-controlled organizations serving 

Indians, or Native Hawaiian 

organizations appointed by the 

Secretary of Labor. The NAETC 

provides advice to the Secretary 

regarding the overall operation and 

administration of tribal programs 

authorized under Section 166 of the 

Workforce Investment Act (Pub. L. 105– 

220, as amended), as well as the 

implementation of other DOL tribal 

programs and services. 

The Department’s Women’s Bureau 

(WB) has an ongoing relationship with 

the United Indians of All Tribes 

Foundation and works with its 

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Procurement Technical Assistance 

Center to provide information to Indian 

women small business owners 

concerning workforce development 

trends and DOL contract opportunities. 

The WB is also part of a network of 

Indian women organizations that 

collaborate on finding ways to end 

domestic violence and abuse. The 

Department’s Office of Federal Contract 

Compliance Programs (OFCCP) works in 

concert with the Council for Tribal 

Employment Rights to increase the 

employment of AI/ANs by federal 

contractors and subcontractors through 

linkages, referrals, training, regular 

communication, and sharing of 

information and resources pursuant to 

federal contractors’ obligations. 

The Department’s Occupational 

Safety and Health Administration 

(OSHA) works with Indian tribes by 

providing compliance assistance and 

including the tribes in relevant OSHA 

outreach and awareness campaigns 

addressing worker safety and health. 

OSHA is making its contacts with 

Indian tribes more regular and 

consistent, and seeks to establish 

voluntary protection programs, 

partnerships, and alliances with tribal 

groups in the interest of promoting job 

safety in Indian Country. OSHA also 

makes available workplace safety grants 

that Indian tribes may qualify for, such 

as the Susan Harwood Training Grants. 

The Department’s Mine Safety and 

Health Administration (MSHA) assists 

Indian tribes with training programs for 

miners and has provided annual grant 

funds to the Navajo Nation to educate 

miners and mine operators on safe 

working practices in the mining 

industry and compliance with 

applicable MSHA regulations. 

These are among many of DOL’s 

ongoing actions to engage with tribes 

and support the efforts of tribal 

governments to have sustainable tribal 

communities and achieve our mutual 

goals of ensuring fair wages, employee 

rights, and workplace safety while 

working to alleviate the high 

unemployment found on tribal lands. 

The Department is committed to 

building on these efforts to engage in 

regular and meaningful consultation 

and collaboration with tribal officials on 

policies and actions that have tribal 

implications, including the 

development of this formal tribal 

consultation policy. Accordingly, this 

policy has been developed in 

consultation with Indian tribes and 

tribal officials as set forth in Executive 

Order 13175. 

Implementation of this tribal 

consultation policy will facilitate greater 

consistency across the DOL in carrying 

out tribal consultations and will 

improve collaboration with Indian tribes 

at all levels of Departmental 

organizations and offices. This policy 

will also ensure that a reporting 

structure and process is in place so that 

all Departmental tribal consultation 

work will be transparent and 

accountable. DOL employees having 

responsibility for the outcomes of 

consultation and collaborative activities 

will be better able to assess effectiveness 

and coordinate their efforts with other 

related Departmental initiatives. 

Through these efforts, the Department 

anticipates an even stronger relationship 

with Indian tribes and improved 

program delivery to meet the needs of 

Indian tribes and communities. 

B. Referenced Authorities 

This tribal consultation policy 

document was developed based upon: 

1. Indian Self-Determination and 

Education Assistance Act, Public 

Law 93–638, as amended (25 U.S.C. 

450 et seq.). 

2. Indian Self-Determination Act 

Amendments of 1994, Public Law 

103–413 (25 U.S.C. 450 et seq.). 

3. Native American Programs Act, 

Public Law 93–644, as amended (42 

U.S.C. 2991 et seq.). 

4. Presidential Memorandum, 

Government-to-Government 

Relations with Native American 

Tribal Governments, April 29, 1994. 

5. Executive Order 13175, Consultation 

and Coordination with Indian 

Tribal Governments, November 6, 

2000. 

6. Presidential Memorandum, 

Government-to-Government 

Relationship with Tribal 

Governments, September 23, 2004. 

7. Presidential Memorandum, Tribal 

Consultation, November 5, 2009. 

8. OMB Memorandum M–10–33, 

Guidance for Implementing E.O. 

13175, July 30, 2010. 

II. Guiding Principles 

A. Government-to-Government 

Relationship and Tribal SelfDetermination 

The United States, in accordance with 

treaties, statutes, executive orders, and 

judicial decisions, has recognized the 

right of Indian tribes to self-government 

and maintains a government-togovernment relationship with federally 

recognized tribes. Indian tribes exercise 

inherent sovereign powers over their 

members and territory. The Federal 

Government has enacted numerous 

statutes and promulgated numerous 

regulations that establish and define a 

trust relationship with Indian tribes. 

Based on this government-togovernment relationship, DOL will 

continue to work with Indian tribes on 

its programs involving tribes in a 

manner that respects tribal selfgovernment and sovereignty, honors 

tribal treaty and other rights, and meets 

the Federal Government’s tribal trust 

responsibilities. 

B. Open Communications and Respect 

for Cultural Values and Traditions 

Communication and the exchange of 

ideas will be open and transparent. 

Department officials will respect the 

cultural values and traditions of the 

tribes. To ensure efficiency and avoid 

duplicative efforts, DOL will work with 

other Federal Departments to enlist their 

interest and support in cooperative 

efforts to assist tribes to accomplish 

their goals within the context of all DOL 

programs. 

C. Ensuring Consultation Is Meaningful 

The Department is committed to 

ongoing and continuous dialogue with 

Indian tribes, both formally and 

informally, on matters affecting tribal 

communities. Consultation is a critical 

ingredient of a sound and productive 

federal-tribal relationship that 

emphasizes trust, respect, and shared 

responsibility. Engaging with tribes and 

building relationships with tribal 

officials have improved the 

Department’s policy toward Indian 

tribes on a broad range of DOL matters. 

The Department is committed to further 

improving its collaboration with Indian 

tribes and creating additional 

opportunities for input from all affected 

tribal communities. Consultation that is 

meaningful, effective, and conducted in 

good faith makes the Department’s 

operation, decision making, and 

governance practices more efficient. 

III. Policy Statement 

A. Departmental Consultation Policy 

Generally 

In accordance with Executive Order 

13175, when formulating and 

implementing policies that will have 

tribal implications, it is the 

Department’s policy that, to the extent 

practicable and permitted by law, 

consultation with affected Indian tribes 

will occur. As stated in the executive 

order, this refers to proposed legislation, 

regulations, policies, or actions that 

have substantial direct effects on one or 

more Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes. 

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B. Implementation Responsibilities of 

DOL Operating Agencies 

Each DOL operating agency will have 

an accountable process to ensure 

meaningful and timely input by Indian 

tribes on policies or actions that have 

tribal implications. With respect to DOL 

programs administered by Indian tribal 

governments, operating agencies will 

grant Indian tribal governments the 

maximum administrative discretion 

permissible consistent with applicable 

law, contracting requirements, and grant 

agreements, and will defer to Indian 

tribes to develop their own policies and 

standards where legally permissible. 

The Department’s operating agencies 

will review their existing tribal 

consultation and program 

administration practices, including 

those of their regional offices, and revise 

them as needed to comply with the 

Department’s policy as set forth in this 

document. If DOL agencies require 

technical assistance in conducting 

consultations, the designated 

Departmental official’s office (see 

section IX below) can provide and/or 

coordinate such assistance. 

IV. Regulations 

In accordance with Executive Order 

13175, to the extent practicable and 

permitted by law, prior to the 

promulgation of any regulation that has 

tribal implications and preempts tribal 

law, the DOL agency involved will: 

1. Notify and consult with affected 

Indian tribes early in the process of 

developing the proposed regulation 

consistent with the Administrative 

Procedure Act, 5 U.S.C. 551 et seq., 

Executive Order 12866, and Executive 

Order 13563, and ensure that the tribes 

are informed about opportunities to 

participate in stakeholder meetings and 

public forums about which they might 

not otherwise be aware; 

2. Provide a tribal summary impact 

statement in a separately identified 

portion of the preamble to the regulation 

as it is to be issued in the Federal 

Register, which consists of a description 

of the extent of the agency’s prior 

consultation with Indian tribes, a 

summary of the nature of their concerns 

and the agency’s position supporting the 

need to issue the regulation, and a 

statement of the extent to which the 

concerns of tribal officials have been 

met; and 

3. Make available to the Secretary any 

written communications submitted to 

the agency by tribal officials. 

On issues relating to tribal selfgovernance, tribal self-determination, 

and implementation or administration 

of tribal programs, each DOL agency 

will make all practicable attempts where 

appropriate to use consensual 

mechanisms for developing regulations, 

including negotiated rulemaking in 

accordance with the Negotiated 

Rulemaking Act. 

For any draft final regulation that has 

tribal implications that is submitted to 

the Office of Information and Regulatory 

Affairs for review under E.O. 12866, the 

agency will certify that the requirements 

of Executive Order 13175 have been 

met. 

V. Unfunded Mandates 

In accordance with Executive Order 

13175, no DOL agency shall promulgate 

any regulation having tribal 

implications that is not required by 

statute and imposes substantial direct 

compliance costs on tribal communities, 

unless: 

1. Funds necessary to pay the direct 

costs incurred by Indian tribal 

governments in complying with the 

regulation are provided by the Federal 

Government; or 

2. Prior to the formal promulgation of 

the regulation, the agency: 

a. Consulted with tribal officials early 

in the process of developing the 

proposed regulation; 

b. In a separately identified portion of 

the preamble to the regulation as it is to 

be issued in the Federal Register, 

provides to the Director of the Office of 

Management and Budget a description 

of the extent of the agency’s prior 

consultation with representatives of 

affected Indian tribal governments, a 

summary of the nature of their concerns 

and DOL’s position supporting the need 

to issue the regulation; and 

c. Makes available to the Director of 

the Office of Management and Budget 

any written communications submitted 

to DOL by such Indian tribal 

governments. 

VI. Flexibility and Waivers 

With respect to statutory or regulatory 

requirements that are discretionary and 

subject to waiver by DOL, each DOL 

agency will review the processes under 

which Indian tribal governments apply 

for waivers and take appropriate steps to 

streamline those processes as necessary. 

When reviewing any application by 

an Indian tribal government for a waiver 

of regulatory requirements in 

connection with any program 

administered by a DOL agency, the 

agency will consider the relevant factors 

with a general view toward increasing 

opportunities for utilizing flexible 

policy approaches at the Indian tribal 

level in cases in which the proposed 

waiver is consistent with the applicable 

federal policy objectives and is 

otherwise appropriate as determined by 

the agency. 

Each DOL agency will promptly 

render a decision upon a complete 

application for a waiver. The agency 

will provide the applicant with timely 

written notice of the decision and, if the 

application for a waiver is not granted, 

the reasons for such denial. 

VII. Consultation Process Guidelines 

1. Notification. When a DOL agency 

or regional office determines that a 

proposed policy or action will have 

tribal implications, whether for an 

individual tribe, regionally, or 

nationally, the DOL agency will have an 

affirmative responsibility to provide 

advance notice to the potentially 

affected Indian tribes at the earliest 

practicable time, but not less than 60 

days prior to DOL’s action. An Indian 

tribe may initiate a request for 

consultation with DOL or a DOL agency 

on a DOL matter that it believes has 

tribal implications at any time by 

contacting that agency or the designated 

Departmental official (see section IX), 

and the tribe should disseminate DOL 

provided information to its members. 

With respect to rulemaking proceedings 

of general applicability that have no 

unique impacts on Indian tribes, DOL 

agencies may use the existing Federal 

Register notice and comment process to 

provide notice, but should supplement 

this process with targeted outreach 

where appropriate. 

2. Subjects of Consultation. To the 

extent consistent with applicable laws 

and administrative requirements, 

consultation can involve any DOL 

matter having tribal implications, 

including but not limited to: tribal 

program management, rulemaking, 

regulations, policies, waivers and 

flexibility; grant programs; contracting 

opportunities; regulatory guidance; and 

other matters of tribal interest. At the 

same time, DOL agencies should not 

create undue burdens on tribes with 

respect to regulations or other matters 

that do not have tribal implications. 

Routine matters, including normal DOL 

interactions with direct grantees such as 

monitoring, selecting grantees, and 

reporting requirements do not trigger 

further consultation processes under 

this policy. Enforcement policy, 

planning, investigations, cases and 

proceedings are not appropriate subjects 

for consultation under this policy. 

3. Initial Planning and Scoping. 

Following notification to affected tribes 

that policies or actions have tribal 

implications, the DOL agency or 

regional office, in conjunction with the 

designated Departmental official’s 

office, should engage with those tribes 

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23286 Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Notices 

on initial planning and the appropriate 

scope of the consultation. Initial 

planning and scoping should include 

describing the nature and extent of the 

expected tribal implications; identifying 

any time constraints or deadlines, 

relevant existing policies, and potential 

resource issues; and making a 

determination as to the most useful and 

appropriate consultation mechanism. 

4. Consultation Mechanisms. The 

manner of consultation should be 

appropriate to the nature and 

complexity of the matter and can occur 

via mailings (e.g., for remote tribes that 

may not have Internet access), one or 

more face-to-face meetings or meetings 

via teleconference, roundtables, or other 

appropriate means and may include the 

use of electronic media and messaging 

and Web site portals. All meetings will 

be open to the public. 

5. Conducting Consultations. When a 

consultation commences, DOL will 

solicit the views of the Indian tribes 

involved on the relevant subjects and 

issues. Consultation should involve a 

thorough examination of the subject at 

issue, including discussion of cultural, 

economic and other impacts on tribal 

programs, services, functions and 

activities; compliance guidance; 

programmatic and funding issues if 

relevant; any external constraints such 

as executive, judicial, or legislative 

actions; and any relevant technical or 

other regulatory issues as they affect 

tribes. 

6. Frequency of Consultation 

Meetings. Consultation meetings may be 

scheduled on a regular basis or on an as 

needed basis except that at least one 

national tribal consultation meeting will 

be held by DOL each calendar year. For 

example, DOL agencies may establish a 

quarterly or semi-annual conference call 

with the tribes in order to consult with 

them on the regulatory proposals being 

considered by the agency and inform 

them about opportunities to participate 

in stakeholder meetings and public 

forums. To reduce costs, tribes and DOL 

agencies will make their best efforts to 

coordinate face-to-face consultation 

meetings to coincide with other 

regularly scheduled meetings (such as 

multi-agency and association meetings 

and regional tribal meetings). 

7. Submissions of Tribal Comments. 

The DOL agency involved in the 

consultation will communicate clear 

and explicit instructions on the means 

and time frames for Indian tribes to 

submit comments to DOL on the matter, 

whether in person, by teleconference, 

and/or in writing, and if appropriate 

will allow a reasonable period of time 

following a consultation meeting for 

tribes to submit additional materials. A 

written communication on the 

correspondence of the highest elected or 

appointed tribal official will be 

considered by DOL to be the official 

position of the tribe on the subject at 

issue. If the DOL agency determines that 

the Administrative Procedure Act or 

other federal law or regulation prohibits 

continued discussion at a specified 

point in the decision-making process, 

the agency will so inform the Indian 

tribes. With respect to rulemaking 

proceedings of general applicability that 

will have no unique impacts on Indian 

tribes, DOL agencies may use existing 

Federal Register notices, dockets, and 

comment periods to obtain tribal 

comments, but should supplement them 

with additional means of obtaining 

tribal input where appropriate. 

8. Time Frames. Time frames for the 

consultation process will depend on the 

nature and complexity of the 

consultation and the need to act 

quickly. Suggested guidelines are as 

follows: 

a. The initial planning and scoping 

should take place within 30 days from 

the date of the issuance of the notice of 

the proposed action; 

b. If a consultation meeting will 

occur, the meeting should be scheduled 

within 30 days of the completion of the 

planning and scoping; 

c. For consultations involving one or 

more meetings, the consultation process 

should normally be concluded within 

60 days of the final consultation 

meeting; for consultations not involving 

meetings the consultation process 

should normally be concluded within 

60 days of the planning and scoping. 

These time frames may be compressed 

in exigent situations, such as when a 

critical deadline is involved, or 

expanded as necessary for novel or 

highly complex matters. 

9. Reporting of Outcome of 

Consultation to Tribes. The DOL agency 

involved in the consultation will report 

the status or outcome of the issue 

involved to the affected Indian tribes 

within 30 days of the conclusion of the 

consultations on that issue. To the 

extent that tribal input was not adopted, 

the agency will make written 

explanations available. 

10. Formation of Tribal Committees, 

Task Forces, or Work Groups. Based on 

the government-to-government 

relationship, consultation under this 

policy is generally with one or more 

individual tribal governments. In some 

cases, it may become necessary for DOL 

to form a tribal committee, task force, or 

work group to study a particular policy, 

practice, issue, or concern. Members of 

such committees or work groups will 

include representatives of federally 

recognized tribal governments or their 

designees with authority to represent 

their interests or act on their behalf. 

Tribal representation on such 

committees or work groups should 

consist of geographically diverse small, 

medium and large tribes, whenever 

possible. Members of these committees 

or work groups shall make good-faith 

attempts to attend all meetings which 

shall be open to the public and may 

establish member roles and protocols for 

producing their work and obtaining 

input and comment on it. All final work 

group products or recommendations 

will be given serious consideration by 

the Department. [See Section XI below 

on the Federal Advisory Committee Act 

(FACA) exemption for consultations 

undertaken with officials of federally 

recognized tribal governments pursuant 

to this tribal consultation policy.] 

11. Use of Existing Statutory Advisory 

Committees. DOL agencies may also use 

existing tribal advisory committees such 

as the NAETC as part of meeting their 

consultation responsibilities under this 

policy. If such an advisory committee is 

required by law to be used exclusively 

for a particular function or purpose, 

consultation shall take place in 

accordance with the requirements of 

such committee and nothing in this 

policy requires any further consultation 

(see, e.g., 29 U.S.C. 2911(h)). 

12. Submission of Comments by Other 

AI/AN Organizations. The primary 

focus of formal consultation activities 

under this policy is with representatives 

of federally recognized Indian tribal 

governments. DOL recognizes, however, 

that in some cases the consultation 

process would be negatively affected if 

other (non-federally recognized) AI/AN 

organizations lacking the governmentto-government relationship were 

excluded. Accordingly, nothing in this 

policy prohibits other AI/AN 

organizations that are not 

representatives of Indian tribal 

governments from providing their views 

to the Department. 

VIII. Performance and Accountability 

The consultation process and 

activities conducted under this policy 

should be accountable, transparent, and 

result in a meaningful outcome for the 

Department and for the affected Indian 

tribes. To enable the Department and 

the Indian tribes to effectively evaluate 

the implementation and results of this 

consultation policy: 

1. DOL agencies will maintain records 

of each consultation and the manner in 

which the tribal concerns were 

addressed, and will document the status 

or outcome of each subject of 

consultation. 

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2. DOL agencies will develop and 

utilize appropriate evaluation measures 

to assess their efforts to determine 

whether their overall consultation 

process is effective over time. 

3. DOL agencies will report annually 

to the office of the designated 

Departmental official on the frequency, 

scope, and effectiveness of their 

consultation activities including any 

recommendations received from Indian 

tribes on ways to improve the 

consultation process. 

4. The designated Departmental 

official’s office will compile the reports 

of the agencies and prepare an annual 

DOL consultation report evaluating the 

overall effectiveness of this policy 

which will be made available to the 

Indian tribes. The office will seek tribal 

feedback on the annual consultation 

report and consider any comments from 

Indian tribes and federal participants to 

determine whether DOL should make 

any amendments to this policy. 

5. The designated Departmental 

official’s office will prepare and submit 

any reports required to be submitted to 

the Office of Management and Budget 

under Executive Order 13175 and the 

November 5, 2009 Presidential 

Memorandum. 

IX. Designated Officials and Points of 

Contact 

A. Designated Departmental Official 

The designated Departmental official 

to coordinate the implementation of this 

policy will be the Director, Office of 

Public Engagement, working in 

conjunction with the Department’s 

Office of Intergovernmental Affairs in 

the Office of Congressional and 

Intergovernmental Affairs, or other 

Departmental official in the Office of the 

Secretary, as designated by the 

Secretary. 

The duties and responsibilities of the 

designated Departmental official 

include: serving as the Secretary’s 

expert informational resource on tribal 

matters; maintaining an overall 

understanding of tribal concerns and 

issues as they relate to DOL programs 

and coordinating and managing the 

Secretary’s policies for Indian tribes; 

coordination of tribal site visits for DOL 

executive leadership; serving as DOL’s 

representative on interdepartmental 

working groups on tribal matters; 

conducting periodic intradepartmental 

meetings and otherwise overseeing the 

implementation of the Department’s 

tribal consultation policy by DOL 

operating agencies; providing advice 

and assistance to DOL agencies and 

regional field offices on tribal matters; 

and conducting outreach to national 

tribal government organizations. 

B. Point of Contact for Each DOL 

Operating Agency 

Each DOL operating agency will 

designate a senior official as having 

primary responsibility for tribal matters. 

The designated Departmental official’s 

office will maintain an up-to-date list 

clearly identifying the agency tribal 

officials and their contact information 

and this information will be made 

available to Indian tribes. DOL agencies 

should also designate an alternate tribal 

official to serve in the absence of the 

primary official. 

The duties and responsibilities of the 

agency tribal officials include: having 

and maintaining knowledge of this 

policy and the government-togovernment relationships and sovereign 

status of Indian tribes; serving as the 

primary liaison with Indian tribes for 

their agency; ensuring the consultation 

responsibilities of their agencies are 

carried out, including those of their 

regional offices; and reporting to the 

administration in their respective 

agencies, as well as the designated 

Departmental official. Unless otherwise 

approved by the designated 

Departmental official, these 

responsibilities should not be placed 

within the agency Offices of Civil 

Rights, as tribal relations and 

consultations are treaty, trust, and 

government-to-government based, and 

are not a function of civil rights based 

on race. 

X. Definitions 

For the purposes of this policy, the 

following definitions apply: 

American Indian and Alaska Native 

(AI/AN)— A member of an American 

Indian or Alaska Native tribe, band, 

nation, pueblo, village, or community of 

indigenous peoples in the United States, 

as membership is defined by the tribal 

community, including Native 

Hawaiians. 

AI/AN Organization—An AI/AN 

organization or group having members 

that are not representatives of federally 

recognized Indian tribal governments, 

such as state tribes and members of 

urban AI/AN groups that are not located 

on Indian tribal lands. 

Consultation—An enhanced form of 

communication consisting of an open 

and free exchange of information and 

opinion among parties which 

emphasizes trust, respect, and shared 

responsibility. The consultation process 

enables mutual understanding, 

facilitates the effort to reach consensus 

on issues, and contributes to informed 

decision making. 

Deliberative Process Privilege—A 

privilege exempting the Federal 

Government from disclosure of 

government agency materials containing 

opinions, recommendations, and other 

internal communications that are part of 

the deliberative process within the 

Department or agency. 

Department—Means the U.S. 

Department of Labor. 

DOL Operating Agency—A 

Department of Labor administration, 

agency, bureau, office, or division that: 

(1) Has operational responsibility for a 

Departmental program that has tribal 

implications; or (2) has been designated 

by the Secretary to participate in this 

policy. 

Executive Order—An order issued by 

the Federal Government’s executive on 

the basis of authority specifically 

granted to the executive branch (as by 

the U.S. Constitution or a Congressional 

Act). 

Indian Tribe—An Indian or Alaska 

Native tribe that the Secretary of the 

Interior acknowledges to exist as an 

Indian tribe pursuant to the Federally 

Recognized Indian Tribe List Act of 

1994, 25 U.S.C. 479a, and with whom 

the Federal Government maintains a 

government-to-government relationship, 

including any Alaska Native village or 

regional or village corporation as 

defined in or established pursuant to the 

Alaska Native Claims Settlement Act (85 

Stat. 688)(43 U.S.C. 1601 et seq.). The 

Department of the Interior’s Bureau of 

Indian Affairs maintains and regularly 

publishes the official list of federally 

recognized Indian tribes which are 

generally established pursuant to a 

federal treaty, statute, executive order, 

court order, or a federal administrative 

action making these tribes eligible for 

certain federal programs and benefits 

because of their status as Indians. 

Policies or Actions with Tribal 

Implications—Refers to proposed 

legislation, regulations, policies, and 

actions that have substantial direct 

effects on one or more Indian tribes, on 

the relationship between the Federal 

Government and the Indian tribes, or on 

the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. This 

encompasses a broad range of DOL 

programs and activities targeted at tribal 

governments or having AI/ANs as 

participants including, but not limited 

to, tribal program management, 

rulemaking, regulations, policies, 

waivers and flexibility; grant programs; 

contracting opportunities; regulatory 

guidance; or other DOL activities that 

would have a substantial direct effect on 

a tribe’s traditional way of life, tribal 

lands, tribal resources, or the ability of 

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23288 Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Notices 

the tribe to govern its members or to 

provide services to its members. This 

term does not include matters that are 

the subject of litigation or that are 

undertaken in accordance with an 

administrative or judicial order. 

Secretary—Means the Secretary of 

Labor. 

Substantial Direct Compliance 

Costs—Those costs incurred directly 

from implementation of changes 

necessary to meet the requirements of a 

federal mandate. Because of the large 

variation in resources among tribes, 

‘‘substantial costs’’ will vary by Indian 

tribe. Where necessary and appropriate, 

the Secretary will determine the level of 

costs that represent ‘‘substantial costs’’ 

in the context of an Indian tribe’s 

resource base. 

To the Extent Practicable and 

Permitted by Law—Refers to situations 

where the opportunity for consultation 

is limited due to practical constraints 

including time, budget, or other such 

reason, and situations where other legal 

requirements take precedence. 

Tribal Committee, Task Force, or 

Work Group—A group composed of 

Indian tribal government officials or 

their designees with authority to 

represent their interests or act on their 

behalf that is formed to work on a 

particular policy, practice, issue, or 

concern. This can include 

representatives of existing organizations 

representing federally recognized tribes, 

such as the National Congress of 

American Indians. 

Tribal Officials—Tribal council 

members and delegates, chairpersons, or 

other elected or duly appointed officials 

of the governing bodies of Indian tribes 

or authorized intertribal organizations 

or their designees with authority to 

represent them or act on their behalf. 

XI. Supplemental Terms and Effective 

Date 

1. Inapplicability of the Federal 

Advisory Committee Act (FACA). In 

accordance with section 204(b) of the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4), the provisions of FACA 

are not applicable to consultations 

between the Federal Government and 

elected officers of tribal governments or 

their designated employees with 

authority to act on their behalf. 

Therefore, FACA is generally not 

applicable to consultations undertaken 

pursuant to this tribal consultation 

policy. As the Office of Management 

and Budget stated in its guidelines 

implementing section 204(b): 

This exemption applies to meetings 

between Federal officials and employees and 

* * * tribal governments acting through 

their elected officers, officials, employees, 

and Washington representatives, at which 

‘views, information, or advice’ are exchanged 

concerning the implementation of 

intergovernmental responsibilities or 

administration, including those that arise 

explicitly or implicitly under statute, 

regulation, or Executive Order. The scope of 

meetings covered by this exemption should 

be construed broadly to include meetings 

called for any purpose relating to 

intergovernmental responsibilities or 

administration. Such meetings include, but 

are not limited to, meetings called for the 

purpose of seeking consensus, exchanging 

views, information, advice, and/or 

recommendations; or facilitating any other 

interaction relating to intergovernmental 

responsibilities or administration. (OMB 

Memorandum 95–20 (September 21, 1995), 

pp. 6–7, published at 60 FR 50651, 50653 

(September 29, 1995)). 

If, however, DOL were to form an 

advisory committee consisting of (nonfederally recognized) AI/AN 

organizations or groups lacking the 

government-to-government relationship, 

the section 204(b) exception would not 

apply and all FACA requirements 

would need to be followed. 

2. Reservation of Authorities. Nothing 

in this policy waives or diminishes the 

U.S. Government’s rights, authorities, 

immunities, or privileges, including the 

deliberative process privilege. Among 

other things, internal communications 

on the development of proposed 

legislation, enforcement policy, and 

other internal policy matters are part of 

the deliberative process by the 

Executive Branch and will remain 

confidential. 

Nothing in this policy waives or 

diminishes any tribal rights, authorities, 

immunities, or privileges including 

treaty rights and sovereign immunities, 

and this policy does not diminish any 

rights or protections afforded to 

individual AI/ANs under federal law. 

3. Disclaimer. This document is 

intended to improve the Department’s 

management of its relations and 

cooperative activities with Indian tribes. 

DOL has no obligation to engage in any 

consultation activities under this policy 

unless they are practicable and 

permitted by law. Nothing in this policy 

requires any budgetary obligation or 

creates a right of action against the 

Department for failure to comply with 

this policy nor creates any right, 

substantive or procedural, enforceable at 

law by a party against the United States, 

its agencies, or any person. 

Dated: April 12, 2012. 

Hilda L. Solis, 

Secretary of Labor. 

[FR Doc. 2012–9372 Filed 4–17–12; 8:45 am] 

BILLING CODE 4510–23–P 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

Notice of Determinations Regarding 

Eligibility To Apply for Worker 

Adjustment Assistance 

In accordance with Section 223 of the 

Trade Act of 1974, as amended (19 

U.S.C. 2273) the Department of Labor 

herein presents summaries of 

determinations regarding eligibility to 

apply for trade adjustment assistance for 

workers by (TA–W) number issued 

during the period of March 26, 2012 

through March 30, 2012. 

In order for an affirmative 

determination to be made for workers of 

a primary firm and a certification issued 

regarding eligibility to apply for worker 

adjustment assistance, each of the group 

eligibility requirements of Section 

222(a) of the Act must be met. 

I. Under Section 222(a)(2)(A), the 

following must be satisfied: 

(1) A significant number or proportion 

of the workers in such workers’ firm 

have become totally or partially 

separated, or are threatened to become 

totally or partially separated; 

(2) The sales or production, or both, 

of such firm have decreased absolutely; 

and 

(3) One of the following must be 

satisfied: 

(A) Imports of articles or services like 

or directly competitive with articles 

produced or services supplied by such 

firm have increased; 

(B) Imports of articles like or directly 

competitive with articles into which one 

or more component parts produced by 

such firm are directly incorporated, 

have increased; 

(C) Imports of articles directly 

incorporating one or more component 

parts produced outside the United 

States that are like or directly 

competitive with imports of articles 

incorporating one or more component 

parts produced by such firm have 

increased; 

(D) Imports of articles like or directly 

competitive with articles which are 

produced directly using services 

supplied by such firm, have increased; 

and 

(4) The increase in imports 

contributed importantly to such 

workers’ separation or threat of 

separation and to the decline in the 

sales or production of such firm; or 

II. Section 222(a)(2)(B) all of the 

following must be satisfied: 

(1) A significant number or proportion 

of the workers in such workers’ firm 

have become totally or partially 

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