Requirements, Expectations, and Standard Procedures for Effective Consultation with Tribes Act
Bill: H.R.3587 | Sponsor: Rep. Grijalva, Raúl M. (D-AZ)
Policy area: Native Americans

Summary:
Requirements, Expectations, and Standard Procedures for Effective Consultation with Tribes Act or the RESPECT Act
This bill establishes tribal consultation procedures for federal agencies.
Specifically, the bill requires federal agencies to consult with tribal governments (1) before undertaking any proposed federal activity or finalizing any federal regulatory action that may have a tribal impact, and (2) for all activities that would affect any part of federal land sharing a border with Indian land. Tribal impact refers to any federal action that may have an impact on tribal governments, including tribal cultural practices and tribal treaty-protected rights.
Agencies must prepare tribal impact statements to identify potential tribal impacts of a proposed activity or action. Agencies must also make a good faith effort to identify areas that contain sacred sites important to tribal governments.
The bill further outlines consultation requirements, including outreach and meeting arrangements. In general, the consultation shall conclude only upon the execution of a memorandum of agreement between the agency and the tribal government or the members of a designated tribal leader task force.
Next, the bill requires agencies to take certain actions during the decision stage for a proposed activity (e.g., public comment) and for a regulatory action.
Agencies must recognize and respect tribal self-government and sovereignty and grant tribal governments maximum discretion in the administration of federal statutes and regulations.
Tribal governments may seek judicial review of a determination of an agency under this bill if the tribal government has exhausted all other administrative remedies.

To prescribe procedures for effective consultation and coordination by 
Federal agencies with federally recognized Tribal Governments regarding 
 Federal Government actions that impact Tribal lands and interests to 
ensure that meaningful Tribal input is an integral part of the Federal 
                        decision-making process.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    (a) Short Title.--This Act may be cited as the ``Requirements, 
Expectations, and Standard Procedures for Effective Consultation with 
Tribes Act'' or the ``RESPECT Act''.

SEC. 2. TABLE OF CONTENTS.

    The table of contents for this Act is as follows:

Sec. 1. Short title.
Sec. 2. Table of contents.
Sec. 3. Findings and purposes.
Sec. 4. Sense of Congress.
Sec. 5. Definitions.
                  TITLE I--STANDARDS FOR CONSULTATION

Sec. 101. Standards for consultation.
                   TITLE II--CONSULTATION PROCEDURES

Sec. 201. Assessing Tribal impacts.
Sec. 202. Consultation stage.
Sec. 203. Decision stage for proposed activity.
Sec. 204. Decision stage for proposed regulatory action.
                 TITLE III--DOCUMENTATION AND REPORTING

Sec. 301. Documentation and reporting.
                 TITLE IV--IMPLEMENTATION AND TRAINING

Sec. 401. Designated agency official.
Sec. 402. Consultation policy.
Sec. 403. Training.
                      TITLE V--TRIBAL SOVEREIGNTY

Sec. 501. Tribal sovereignty.
Sec. 502. Sensitive Tribal information.
                       TITLE VI--JUDICIAL REVIEW

Sec. 601. Judicial review.

SEC. 3. FINDINGS AND PURPOSES.

    (a) Findings.--Congress finds that--
            (1) the United States has a unique, legally affirmed 
        government-to-government relationship with Tribal Governments, 
        as set forth in the Constitution of the United States, 
        treaties, statutes, Executive orders, and court decisions;
            (2) the United States recognizes the right of Tribal 
        Governments to self-govern and supports Tribal sovereignty and 
        self-determination;
            (3) the United States, through treaties, statutes, and 
        historical relations, has defined a unique trust relationship 
        and responsibility to protect and support Tribal Governments;
            (4) owing to this trust relationship, the United States has 
        a responsibility to consult with Tribal Governments on a 
        government-to-government basis when formulating policies and 
        undertaking activities that may have impacts on Tribal lands 
        and interests;
            (5) procedures for such consultation should be designed and 
        structured to give Tribal Governments the opportunity to 
        provide meaningful, informed input throughout the development 
        and decision-making processes;
            (6) increasing Federal and Tribal capacities for effective 
        consultation while building institutional knowledge fosters 
        greater efficiency and will benefit future actions;
            (7) the consultation process should be formalized according 
        to best practices that are designed and administered by the 
        agency and that fulfill the legal requirements mandated by this 
        Act;
            (8) consulting with Tribal Governments during the 
        formulation of long-term management plans reduces the 
        likelihood of project delays and increases the efficiency of 
        project implementations; and
            (9) effective consultation demands ongoing, respectful 
        communication between agencies and Tribal Governments.
    (b) Purposes.--The purposes of this Act are--
            (1) to establish and support a process of regular, 
        meaningful consultation and collaboration with Tribal 
        Governments in the initiation of Federal activities and the 
        development of Federal policies and regulations that impact 
        Tribal lands and interests;
            (2) to strengthen the United States government-to-
        government relationship with Tribal Governments; and
            (3) to establish minimum standard procedures to ensure the 
        above goals are achieved.

SEC. 4. SENSE OF CONGRESS.

    It is the sense of Congress that--
            (1) consultation constitutes more than simply notifying an 
        Tribal Government about a planned undertaking;
            (2) effective, meaningful consultation requires a two-way 
        exchange of information, a willingness to listen, an attempt to 
        understand and to genuinely consider each other's opinions, 
        beliefs, and desired outcomes, and a seeking of agreement on 
        how to proceed concerning the issues at hand; and
            (3) consultation can be considered effective and meaningful 
        when each party demonstrates a genuine commitment to learn, 
        acknowledge, and respect the positions, perspectives, and 
        concerns of the other parties and when Federal agencies 
        accommodate Tribal concerns to the extent feasible and 
        consistent with applicable law.

SEC. 5. DEFINITIONS.

    For the purposes of this Act:
            (1) Activity.--The term ``activity'' means any plan, 
        project, or program funded in whole or in part under the direct 
        or indirect jurisdiction of a Federal agency, including--
                    (A) those carried out by or on behalf of an agency;
                    (B) those carried out with Federal financial 
                assistance;
                    (C) those requiring a Federal permit, license, or 
                approval; and
                    (D) those subject to state or local regulation 
                administered pursuant to a delegation or approval by a 
                Federal agency.
            (2) Agency.--The term ``agency'' means any authority of the 
        United States that is an agency under section 551 of title 5, 
        United States Code.
            (3) Lead agency.--The term ``lead agency'' means a 
        designated agency that will fulfill the collective consultation 
        responsibilities under this Act if more than one agency is 
        involved in an activity or regulatory action. Any agency that 
        does not designate a lead agency shall remain individually 
        responsible for the consultation responsibilities of that 
        agency under this Act.
            (4) Memorandum of agreement.--The term ``memorandum of 
        agreement'' means a document that records the terms and 
        conditions agreed upon by an agency, or lead agency, and a 
        Tribal Government or designated Tribal Leader Task Force 
        through the consultation process regarding an activity or 
        regulatory action.
            (5) New discovery.--The term ``new discovery'' means any 
        unexpected development that occurs during the course of an 
        activity, such as the discovery of a new archeological site, 
        unanticipated impacts on organisms or ecosystems, or the 
        realization of unintended consequences that may have impacts on 
        Tribal lands and interests.
            (6) Regulatory action.--The term ``regulatory action'' 
        means any regulation, policy, guidance, or grant funding 
        formula change that is proposed by an agency.
            (7) Sacred site.--The term ``sacred site'' means any 
        geophysical or geographical area or feature that is identified 
        by a Tribal Government--
                    (A) as sacred by virtue of its established 
                religious significance to, or ceremonial use by, a 
                Tribal religion; or
                    (B) to be of established cultural significance.
            (8) Standard method of communication.--The term ``standard 
        method of communication'' means the mode of communication that 
        the agency uses in the typical course of communicating with 
        persons outside the Federal Government.
            (9) Standard process.--The term ``standard process'' means 
        a process for Federal agency and Tribal Government interactions 
        agreed to by both parties through consultation and certified in 
        a memorandum of agreement that applies to certain specified 
        activities or regulatory actions, or to limited categories of 
        activities or regulatory actions.
            (10) Tribal government.--The term ``Tribal Government'' 
        means the governing body of any Indian or Alaska Native Tribe, 
        band, nation, pueblo, village, community, component band or 
        component reservation, individually identified (including 
        parenthetically) in the list published most recently as of the 
        date of enactment of this Act pursuant to section 104 of the 
        Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 
        5131).
            (11) Tribal impact.--The term ``Tribal impact'' means any 
        Federal action that may have an impact on one or more Tribal 
        Governments on matters, including--
                    (A) Tribal cultural practices, lands, resources, or 
                access to traditional areas of cultural or religious 
                importance;
                    (B) Tribal treaty-protected rights;
                    (C) the ability of a Tribal Government to govern or 
                provide services to its members;
                    (D) a Tribal Government's formal relationship with 
                the Federal Government; or
                    (E) the consideration of the Federal Government's 
                trust responsibility to Tribal Governments.
            (12) Tribal leader task force.--The term ``Tribal Leader 
        Task Force'' means a task force that is collaboratively 
        determined by affected Tribal Governments.

                  TITLE I--STANDARDS FOR CONSULTATION

SEC. 101. STANDARDS FOR CONSULTATION.

    (a) Scope.--Consultation with Tribal Governments shall occur before 
undertaking any proposed Federal activity or finalizing any Federal 
regulatory action that may have Tribal impacts. Additionally, 
consultation with Tribal Governments shall occur for all activities 
that would affect any part of any Federal land that shares a border 
with Indian Country, as defined in section 1151 of title 18, United 
States Code, but is not limited to activities on such lands.
    (b) Limitation.--Nothing in this Act shall--
            (1) exempt an agency from additional consultation required 
        under any other law or from taking any other consultative 
        actions as required by any other law or agency prerogative in 
        addition to those required by this Act; or
            (2) preclude an agency from additional consultation that 
        complies with agency regulations for consultation, advances 
        agency consultation practices, or supports agency efforts to 
        build or strengthen government-to-government relationships with 
        Tribal Governments.

                   TITLE II--CONSULTATION PROCEDURES

SEC. 201. ASSESSING TRIBAL IMPACTS.

    As early as possible in the planning stage of an activity or a 
regulatory action, the agency, or lead agency, shall--
            (1) prepare a Tribal Impact Statement that identifies any 
        potential Tribal impacts of the proposed activity or regulatory 
        action. At a minimum, the Tribal Impact Statement shall include 
        the scope of the activity or regulatory action being 
        considered, including any geographic areas important to Tribal 
        Governments that might be affected, as well as a list of all 
        affected Tribal Governments;
            (2) make a good faith effort to identify areas that contain 
        sacred sites important to Tribal Governments, whether such 
        sacred sites are explicitly known to an agency or not; and
            (3) publish the completed Tribal Impact Statement in the 
        Federal Register, excluding all information designated as 
        sensitive by a Tribal Government pursuant to section 502, 
        before any further action on the proposed activity or 
        regulatory action.

SEC. 202. CONSULTATION STAGE.

    (a) Initial Consultation Outreach.--The agency, or lead agency, 
shall--
            (1) transmit, via the agency's standard method of 
        communication, a formal request for a consultation meeting, 
        along with along with a copy of the proposed activity or 
        regulatory action as well as copy of the Tribal Impact 
        Statement as prepared according to section 201, to each 
        affected Tribal Government identified in the Tribal Impact 
        Statement. In the case of a proposed activity, the documents 
        shall also be transmitted to relevant Tribal governmental 
        agencies (including the Tribal Historic Preservation Officer or 
        cultural resource manager), and relevant non-Tribal 
        stakeholders (including the State Historic Preservation Officer 
        and local governments that have jurisdiction on any affected 
        land via agreement with the agency);
            (2) at the request of an affected Tribal Government, 
        transmit, via the agency's standard method of communication, a 
        copy of the Tribal Impact Statement and the letter requesting a 
        consultation meeting to non-governmental Tribal stakeholders;
            (3) not request consultation with non-governmental Tribal 
        stakeholders without the written consent of the affected Tribal 
        Government;
            (4) follow up within 5 business days to ensure receipt of 
        the documents by all intended recipients; and
            (5) if the documents were not received by any of the 
        intended recipients, retransmit all materials via a form of 
        communication that is suitable to the recipient.
    (b) Non-Response to Consultation Outreach.--If, after a good faith 
effort, the agency, or lead agency, fails to engage an affected Tribal 
Government in the consultation process, the agency, or lead agency, may 
conclude its consultation efforts by providing the Tribal Government 
with a written notification and explanation for its decision, signed by 
the head of the agency, or lead agency, which shall be made part of the 
official consultation record as described in section 301(a).
    (c) Meeting Arrangements.--
            (1) The agency, or lead agency, shall negotiate with each 
        affected Tribal Government to determine the format, agenda, and 
        goals of a consultation meeting, and shall keep thorough 
        documentation of all steps taken to engage the affected Tribal 
        Government in consultation meetings.
            (2) In appropriate circumstances, affected Tribal 
        Governments may elect to form a Tribal Leader Task Force, to 
        aid in consultation on activities that are regional in scope or 
        that affect multiple Tribal Governments. To the maximum extent 
        possible, the Tribal Leader Task Force shall represent a cross-
        section of Tribal interests with respect to the proposed 
        activity or regulatory action. Affected Tribal Governments that 
        do not elect to join a Tribal Leader Task Force shall be 
        consulted separately.
    (d) Consultation Meeting Requirements.--A consultation meeting 
shall--
            (1) begin with confirmation of the format, agenda, and 
        goals of the meeting, with adequate time scheduled for 
        introductions and any ceremonial proceedings;
            (2) be structured to allow for meaningful and respectful 
        interaction throughout the meeting among all meeting 
        participants; and
            (3) conclude with planning for the next meeting, if 
        necessary, as well as confirmation of the method of any 
        potential interim communications between all parties 
        participating in the consultation.
    (e) Conclusion of Consultation With a Memorandum of Agreement.--
            (1) Except as provided by subsection (b), subsection (f), 
        and subsection (g), consultation shall conclude only upon the 
        execution of a memorandum of agreement signed by the head of 
        the agency, or lead agency, and the head of the affected Tribal 
        Government or the members of the designated Tribal Leader Task 
        Force.
            (2) The memorandum of agreement--
                    (A) may address multiple activities or regulatory 
                actions if the activities or regulatory actions are 
                similar and repetitive in nature, or are multistate or 
                regional in scope, or where routine management 
                activities are undertaken at Federal installations, 
                facilities, or other land management units;
                    (B) may establish standard processes for certain 
                categories of activities and regulatory actions 
                determined through consultation and defined in the 
                memorandum of agreement;
                    (C) shall, in the case of a proposed activity--
                            (i) include a provision for monitoring and 
                        reporting on the implementation of the 
                        activity;
                            (ii) include provisions for reconsideration 
                        if the activity has not been completed within a 
                        specified time; and
                            (iii) include provisions to address new 
                        discoveries, which may include halting the 
                        activity and returning to the consultation 
                        stage.
            (3) The signed memorandum of agreement may be amended at 
        any time by the joint approval of all signatories.
    (f) Conclusion of Consultation Without a Memorandum of Agreement.--
            (1) The agency, or lead agency, shall make a good faith 
        effort through sustained interaction and collaboration to reach 
        a consensus resulting in a memorandum of agreement.
            (2) If, after a good faith effort, the agency, or lead 
        agency, determines that further consultation will not be 
        productive, it may conclude consultation by providing the 
        Tribal Government with a written notification and explanation 
        for its decision, including identification of any legal, 
        policy, or factual barriers that prevented the agency from 
        reaching agreement with the affected Tribal Government, signed 
        by the head of the agency, or lead agency, which shall be made 
        part of the official consultation record as described in 
        section 301(a).
    (g) Tribal Withdrawal From Consultation.--An affected Tribal 
Government may at any point decide to withdraw from the consultation 
process. In such case, the agency, or lead agency, shall provide the 
affected Tribal Government with the opportunity to submit a written 
statement, explanation, or comment on the consultation proceedings that 
will become part of the official consultation record as described in 
section 301(a).

SEC. 203. DECISION STAGE FOR PROPOSED ACTIVITY.

    (a) Proposal Document.--Upon completion of the consultation stage 
pursuant to section 202, the agency, or lead agency, shall--
            (1) compile a proposal document consisting of the plan for 
        the proposed activity, its anticipated Tribal impacts, and any 
        signed memorandum of agreement;
            (2) include sufficient supporting documentation to the 
        extent permitted by law to enable any reviewing parties to 
        understand its basis;
            (3) transmit, via the agency's standard method of 
        communication, a copy of the proposal document to the affected 
        Tribal Governments, including those that withdrew from the 
        process;
            (4) follow up within 5 business days to ensure receipt of 
        the proposal document by all intended recipients;
            (5) if the proposal document was not received by an 
        intended recipient, retransmit all material via a form of 
        communication that is suitable to the recipient; and
            (6) after the verified receipt of the proposal document by 
        all intended recipients, the proposal document shall be 
        published in the Federal Register, excluding all information 
        designated as sensitive by a Tribal Government pursuant to 
        section 502.
    (b) Public Comment Period.--The agency, or lead agency, shall 
provide a period of not less than 90 days after publication of the 
proposal document in the Federal Register for public comment. A 30-day 
extension of the 90-day period shall be automatically granted upon 
request by an affected Tribal Government.
    (c) Preliminary Decision Document.--After expiration of the public 
comment period pursuant to subsection (b), the agency, or lead agency, 
shall prepare a preliminary decision letter, signed by the head of the 
agency, or lead agency, that shall--
            (1) state the decision to proceed or not proceed with the 
        activity;
            (2) state the rationale for the decision;
            (3) list any changes to the proposed activity made in 
        response to the comments filed pursuant to subsection (b);
            (4) specifically address any points where the decision 
        conflicts with the request of an affected Tribal Government, 
        including a detailed explanation of why the request was 
        disregarded;
            (5) transmit, via the agency's standard method of 
        communication, a copy of the preliminary decision letter to the 
        affected Tribal Governments, including those that withdrew from 
        the process;
            (6) follow up within 5 business days to ensure receipt of 
        the preliminary decision letter by all intended recipients; and
            (7) if the preliminary decision letter was not received by 
        an intended recipient, retransmit the material via a form of 
        communication that is suitable to the recipient.
    (d) Tribal Response Period.--The agency, or lead agency, shall 
provide a period of no less than 45 days after issuance of the 
preliminary decision letter for a response by an affected Tribal 
Government.
    (e) Final Decision Document.--After expiration of the Tribal 
Response Period pursuant to subsection (d), the agency, or lead agency, 
shall prepare a letter stating the final decision of the agency, signed 
by the head of the agency, or lead agency, that shall--
            (1) state the decision to proceed or not proceed with the 
        activity;
            (2) state the rationale for the decision;
            (3) list any changes to the preliminary decision in 
        response to comments received from an affected Tribal 
        Government pursuant to subsection (d);
            (4) specifically address any points where the final 
        decision conflicts with the request of an affected Tribal 
        Government, including a detailed explanation of why the request 
        was disregarded;
            (5) transmit, via the agency's standard method of 
        communication, a copy of the final decision letter to the 
        affected Tribal Governments, including those that withdrew from 
        the process;
            (6) follow up after 5 business days to ensure receipt of 
        the final decision letter by all intended recipients; and
            (7) if the final decision letter was not received by an 
        intended recipient, retransmit the material via a form of 
        communication that is suitable to the recipient.
    (f) Publication of Letter.--The agency shall make public the final 
decision letter, excluding all information designated as sensitive by a 
Tribal Government pursuant to section 502.

SEC. 204. DECISION STAGE FOR PROPOSED REGULATORY ACTION.

    (a) Decision Document.--Upon completion of the consultation stage 
pursuant to section 202, the agency, or lead agency, shall prepare a 
decision letter, signed by the head of the agency, or lead agency, that 
shall--
            (1) state the decision to proceed or not proceed with the 
        proposed regulatory action;
            (2) state the rationale for the decision;
            (3) list any changes to the proposed regulatory action made 
        at the request of an affected Tribal Government during the 
        consultation process as outlined in section 202;
            (4) specifically address any points where the decision 
        conflicts with the request of an affected Tribal Government, 
        along with a detailed explanation of why the request was 
        disregarded;
            (5) transmit, via the agency's standard method of 
        communication, a copy of the decision letter to the affected 
        Tribal Governments, including those that withdrew from the 
        process;
            (6) follow up within 5 business days to ensure receipt of 
        the decision letter by all intended recipients; and
            (7) if the decision letter was not received by an intended 
        recipient, retransmit the material via a form of communication 
        that is suitable to the recipient.
    (b) Publication in Federal Register.--The decision letter shall be 
published in the Federal Register alongside the final decision on the 
regulatory action, excluding all information designated as sensitive by 
a Tribal Government pursuant to section 502.

                 TITLE III--DOCUMENTATION AND REPORTING

SEC. 301. DOCUMENTATION AND REPORTING.

    (a) Official Consultation Record.--The agency, or lead agency, 
shall--
            (1) keep an official consultation record that allows 
        accurate tracking of the process so that the agency and all 
        consulting parties can correct any errors or omissions, and 
        provides an official record of the process that can be referred 
        to in any litigation that may arise;
            (2) document all efforts to initiate consultation as well 
        as documenting the process once it has begun, such as 
        correspondence, telephone logs, and emails;
            (3) keep notes so that the consultation record documents 
        the content of consultation meetings, site visits, and phone 
        calls in addition to information about dates and who 
        participated;
            (4) include all documentation in the official consultation 
        record; and
            (5) ensure that all information designated as sensitive by 
        a Tribal Government pursuant to section 502 is kept 
        confidential.
    (b) Payment for Tribal Documentation Work.--If the agency, or lead 
agency, asks a Tribal Government for specific information or 
documentation that in any way fulfills the duties of the agency in a 
role similar to that of a consultant or contractor, then the agency, or 
lead agency, must pay for such services, if so requested by the Tribal 
Government, as it would for any private consultant or contractor.
    (c) Report to Congress.--Each agency shall submit a biennial report 
on its consultation activities to Congress, including outcomes.

                 TITLE IV--IMPLEMENTATION AND TRAINING

SEC. 401. DESIGNATED AGENCY OFFICIAL.

    No later than 90 days after the date of the enactment of this Act--
            (1) the head of each agency shall designate an official 
        with principal responsibility for the agency's implementation 
        of this Act; and
            (2) each bureau or office within the agency shall designate 
        one or more officials with the responsibility to work with the 
        principal agency official on implementation of this Act.

SEC. 402. CONSULTATION POLICY.

    No later than 180 days after enactment of this Act, the designated 
agency official shall submit to the Office of Management and Budget a 
description of the agency's consultation policy, including all 
designated agency officials, in conformity with this Act.

SEC. 403. TRAINING.

    Each agency shall design training for staff aimed at improving the 
agency's capacity for interacting with Tribal Governments and executing 
the consultation process. The training shall--
            (1) promote consultation, communication, collaboration, and 
        other interactions with Tribal Governments;
            (2) outline and reinforce the agency duties concerning 
        Tribal interests; and
            (3) strengthen the understanding of the United States 
        government-to-government relationship with Tribal Governments.

                      TITLE V--TRIBAL SOVEREIGNTY

SEC. 501. TRIBAL SOVEREIGNTY.

    (a) In General.--Agencies shall recognize and respect Tribal self-
government and sovereignty, honor Tribal treaty and other rights, and 
strive to meet the responsibilities that arise from the unique legal 
relationship between the Federal Government and Tribal Governments.
    (b) Maximum Tribal Administrative Discretion.--With respect to 
Federal statutes and regulations administered by Tribal Governments, 
the Federal Government shall grant Tribal Governments the maximum 
administrative discretion possible.
    (c) Alternatives to Federal Regulation.--With respect to the 
formulation and implementation of policies that have an impact on 
Tribal matters, agencies shall--
            (1) encourage Tribal Governments to develop their own 
        policies to achieve program objectives;
            (2) when possible, defer to Tribal Governments to establish 
        standards; and
            (3) in determining whether to establish Federal standards, 
        consult with Tribal Governments as to the need for Federal 
        standards and any alternatives that would limit the scope of 
        Federal standards or otherwise preserve the prerogatives and 
        authority of Tribal Governments.

SEC. 502. SENSITIVE TRIBAL INFORMATION.

    Notwithstanding chapter 7 of title 5, United States Code (commonly 
known as the Administrative Procedure Act), consultation meetings shall 
be closed to the public at the request of the Tribal Government. 
Notwithstanding section 552 of title 5, United States Code (commonly 
known as the Freedom of Information Act), all information designated by 
the Tribal Government as sensitive, such as the location of sacred 
sites or other details of cultural or religious practices, shall be 
deleted from any public publication made as part of the consultation 
process or in the process of carrying out the activity. Once 
information has been designated as sensitive, the agency will determine 
in consultation with the Tribal Government who may have access to the 
information for the purposes of carrying out the activity.

                       TITLE VI--JUDICIAL REVIEW

SEC. 601. JUDICIAL REVIEW.

    A Tribal Government may seek judicial review of a determination of 
an agency under this Act in accordance with subchapter II of chapter 5 
of title 5, United States Code, and chapter 7 of title 5, United States 
Code (commonly known as the Administrative Procedure Act), if the 
Tribal Government has exhausted all other administrative remedies 
available to the Tribal Government.
                                 <all>