[Federal Register Volume 77, Number 75 (Wednesday, April 18, 2012)]
[Notices]
[Pages 23283-23288]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-9372]


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DEPARTMENT OF LABOR

Office of the Secretary


Tribal Consultation Policy

AGENCY: Office of the Secretary, Labor.

ACTION: Proposed policy: Request for comments.

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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 
e-Rulemaking 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 <a href="/cdn-cgi/l/email-protection#01636872696e712f6b6473646c7841656e6d2f666e77"><span class="__cf_email__" data-cfemail="86e4eff5eee9f6a8ece3f4e3ebffc6e2e9eaa8e1e9f0">[email protected]</span></a>.

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 Self-
Determination
    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 work-related 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 self-
sufficiency 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

[[Page 23284]]

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 Self-Determination

    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-to-government 
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-to-government relationship, DOL will 
continue to work with Indian tribes on its programs involving tribes in 
a manner that respects tribal self-government 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.

[[Page 23285]]

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 self-governance, 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

[[Page 23286]]

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 government-to-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.

[[Page 23287]]

    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-to-government 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

[[Page 23288]]

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 
(non-federally 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


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