Proposed Final Policy on Consultation and Coordination With Indian Tribes, 78198-78202 [2010-31332]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 75, Number 240 (Wednesday, December 15, 2010)]
[Proposed Rules]
[Pages 78198-78202]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-31332]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Chapter I

[EPA-HQ-OA-2010-0992 FRL-9239-4]


Proposed Final Policy on Consultation and Coordination With 
Indian Tribes

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of document for public comment.

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SUMMARY: The Environmental Protection Agency (EPA) is announcing a 60-
day public comment period for the proposed Final EPA Policy on 
Consultation and Coordination with Indian Tribes (Policy). The Policy 
complies with the Presidential Memorandum on Tribal Consultation issued 
November 5, 2009, directing agencies to develop a plan to implement 
fully Executive Order 13175 (Executive Order). The Executive Order 
specifies that each Agency must have a process that is accountable to 
establish regular and meaningful consultation and coordination with 
tribal officials in the development of policies that have tribal 
implications.
    The goals of the Policy are to: Establish clear EPA standards for 
the consultation process, including defining the what, when, and how of 
consultation; designate specific EPA personnel responsible for serving 
as consultation points of contact in order to promote consistency in, 
and coordination of, the consultation process; and establish a 
management oversight and reporting structure that will ensure 
accountability and transparency. The proposed final Policy sets a broad 
standard for when EPA should consider consulting with federally-
recognized tribal governments. Notably, the scope of EPA's proposed 
consultation policy is intended to be broader than that found in 
Executive Order 13175.
    The Policy reflects the principles expressed in the 1984 EPA Policy 
for the Administration of Environmental Programs on Indian Reservations 
(1984 Policy) for interacting with tribes. The 1984 Policy remains the 
cornerstone for EPA's Indian program and assure[s] that tribal concerns 
and interests are considered whenever EPA's actions and/or decisions 
may affect tribes.
    EPA is requesting comment on the policy described in this document.

DATES: Comments must be received on or before February 16, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. [EPA-HQ-
OA-2010-0992], by one of the following methods:
     https://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     Mail: EPA's Proposed Final Policy on Consultation and 
Coordination with Indian Tribes, Environmental Protection Agency, 
Mailcode: 2822-1T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
     Hand Delivery: EPA Docket Center, EPA West, Room 3334, 
1301 Constitution Ave., NW., Washington, DC. Such deliveries are only 
accepted during the Docket's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OA-2010-
0992. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
https://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through https://www.regulations.gov (or e-mail). The https://www.regulations.gov website 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through https://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at https://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in https://www.regulations.gov or in hard copy at the HQ EPA Docket 
Center. EPA's Proposed Final Policy on Consultation and Coordination 
with Indian Tribes Docket, EPA/DC, EPA West, Room 3334, 1301 
Constitution Ave., NW., Washington, DC. The Public Reading

[[Page 78199]]

Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, 
excluding legal holidays. The telephone number for the Public Reading 
Room is (202) 566-1744.

FOR FURTHER INFORMATION CONTACT: David Guest, Office of International 
and Tribal Affairs (MC2690M), Environmental Protection Agency, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: (202) 
566-2872; fax number: (202) 564-0298; e-mail address: 
guest.david@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    This action is directed to the public in general, tribal 
governments, and tribal organizations. Since others also may be 
interested, the Agency has not attempted to describe all the specific 
entities that may be affected by this action. If you have any questions 
regarding the applicability of this action to a particular entity, 
consult the point of contact listed under FOR FURTHER INFORMATION 
CONTACT.
What should I consider as I prepare my comments for EPA?
    Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

Table of Contents

I. Policy Statement
II. Background
III. Definitions
IV. Guiding Principles
V. Consultation
    A. The Consultation Process
    B. What Activities May Involve Consultation?
    C. When Consultation Occurs
    D. How Consultation Occurs
VI. Managing the Consultation Process
    A. Roles and Responsibilities
    B. National Consultation Meeting
    C. Reporting
    D. EPA Senior Management Review

I. Policy Statement

    EPA's policy is to consult on a government-to-government basis with 
federally recognized tribal governments when EPA actions and decisions 
may affect tribal interests. Consultation is a process of meaningful 
communication and coordination between EPA and tribal officials prior 
to EPA taking actions or implementing decisions that may affect tribes. 
As a process, consultation includes several methods of interaction that 
may occur at different levels. The appropriate level of interaction is 
determined by past and current practices, adjustments made through this 
Policy, the continuing dialogue between EPA and tribal governments, and 
program and regional office consultation procedures and plans.
    This Policy establishes national guidelines and institutional 
controls for consultation across EPA. EPA program and regional offices 
have the primary responsibility for consulting with tribes. All program 
and regional office consultation plans and practices must be in accord 
with this Policy. This Policy seeks to strike a balance between 
providing sufficient guidance for purposes of achieving consistency and 
predictability and allowing for, and encouraging, the tailoring of 
consultation approaches to reflect the circumstances of each 
consultation situation and to accommodate the preferences of tribal 
governments. The consultation process is further detailed in Section V 
of this document.

II. Background

    To put into effect the policy statement above, EPA has developed 
this proposed EPA Policy on Consultation and Coordination with Indian 
Tribes (Policy). The Policy complies with the Presidential Memorandum 
(Memorandum) issued November 5, 2009, directing agencies to develop a 
plan to implement fully Executive Order 13175 (Executive Order). The 
Executive Order specifies that each Agency must have an accountable 
process to ensure meaningful and timely input by tribal officials in 
the development of regulatory policies that have tribal implications.
    This Policy reflects the principles expressed in the 1984 EPA 
Policy for the Administration of Environmental Programs on Indian 
Reservations (1984 Policy) for interacting with tribes. The 1984 Policy 
remains the cornerstone for EPA's Indian program and ``assure[s] that 
tribal concerns and interests are considered whenever EPA's actions 
and/or decisions may affect'' tribes (1984 Policy, p. 3, principle no. 
5).
    One of the primary goals of this Policy is to fully implement both 
the Executive Order and the 1984 Indian Policy, with the ultimate goal 
of strengthening the consultation, coordination, and partnership 
between tribal governments and EPA.
    The most basic result of this full implementation is that EPA takes 
an expansive view of the need for consultation in line with the 1984 
Policy's directive to consider tribal interests whenever EPA takes an 
action that may affect tribal interests.
    The Policy is intended to be implemented using existing EPA 
structures to the extent possible. The use of current EPA business 
processes, such as the Action Development Process, National and 
Regional Tribal Operations Committees, and tribal partnership groups is 
purposeful so that consultation with tribal governments becomes a 
standard EPA practice and not an additional requirement.
    The issuance of this Policy supports and guides the development and 
use of program and regional office consultation plans and practices 
consistent with this Policy.

III. Definitions

    A. Indian tribe or tribe means an Indian or Alaska Native tribe, 
band, nation, pueblo, village, or community that the Secretary of the 
Interior acknowledges to exist as an Indian tribe pursuant to the 
Federally Recognized Indian Tribe List Act of 1944, 25 U.S.C. 479a.
    B. Tribal official means an elected, appointed, or designated 
official or employee of a tribe.
    C. Indian country means:
    1. All land within limits of any Indian reservation \1\ under the 
jurisdiction of the United States government, notwithstanding the 
issuance of any

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patent, and, including rights-of-way running through the reservation;
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    \1\ EPA's definition of reservation encompasses both formal 
reservations and informal reservations, i.e., trust lands set aside 
for Indian tribes. See for example Oklahoma Tax Comm'n v. Sac and 
Fox Nation, 508 U.S. 114, 123 (1993); 56 FR 64876, Dec. 12, 1991; or 
63 FR 7254, Feb. 12, 1998.
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    2. All dependent Indian communities within the borders of the 
United States whether within the original or subsequently acquired 
territory thereof, and whether within or without the limits of a state; 
and
    3. All Indian allotments, the Indian titles to which have not been 
extinguished, including rights-of-way running through the same.

IV. Guiding Principles

    To understand both the purpose and scope of the Policy as well as 
the integration of the Policy, Memorandum, and Executive Order, it is 
helpful to list principles found in EPA's January 2010 Plan to Develop 
a Tribal Consultation and Coordination Policy Implementing Executive 
Order 13175:
    EPA's fundamental objective in carrying out its responsibilities in 
Indian country is to protect human health and the environment.
    EPA recognizes and works directly with federally recognized tribes 
as sovereign entities with primary authority and responsibility for 
each tribe's land and membership, and not as political subdivisions of 
states or other governmental units.
    EPA recognizes the federal government's trust responsibility, which 
derives from the historical relationship between the federal government 
and Indian tribes as expressed in certain treaties and federal Indian 
law.
    EPA ensures the close involvement of tribal governments and gives 
special consideration to their interests whenever EPA's actions may 
affect Indian country or other tribal interests.
    When EPA issues involve other federal agencies, EPA carries out its 
consultation responsibilities jointly with those other agencies, where 
appropriate.
    In addition, it is helpful to note the distinction between this 
Policy, federal environmental laws pertaining to public involvement, 
and Executive Order 12898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations. Under this 
Policy, EPA consults with federally recognized tribal governments when 
Agency actions and decisions may affect tribal interests. EPA also 
recognizes its obligations to involve the public as required by federal 
environmental laws. Finally, EPA recognizes the need to be responsive 
to the environmental justice concerns of non-federally recognized 
tribes, individual tribal members, tribal community-based/grassroots 
organizations and other indigenous stakeholders.

V. Consultation

A. The Consultation Process

    To the fullest extent possible, EPA plans to use existing EPA 
business operations to put this Policy into effect.
    Tribal officials may request consultation in addition to EPA's 
ability to determine what requires consultation. EPA attempts to honor 
the tribal government's request with consideration of the nature of the 
activity, past consultation efforts, available resources, timing 
considerations, and all other relevant factors.
    Consultation at EPA consists of four phases: Identification, 
Notification, Input, and Follow-up:
    1. Identification Phase: EPA identifies activities that may be 
appropriate for consultation, using the mechanisms described in section 
B.2, below. The identification phase should include a determination of 
the complexity of the activity, its potential implications for tribes, 
and any time and/or resource constraints relevant to the consultation 
process. This phase should also include an initial identification of 
the potentially affected tribe(s).
    2. Notification Phase: EPA notifies the tribes of activities that 
may be appropriate for consultation.
    Notification can occur in a number of ways depending on the nature 
of the activity and the number of tribes potentially affected. For 
example, EPA may send out a mass mailing to all tribes, may contact the 
tribal governments by telephone, or provide notice through other agreed 
upon means. EPA normally honors tribal preferences regarding the 
specific mode of contact.
    Notification includes sufficient information for tribal officials 
to make an informed decision about the desire to continue with 
consultation and sufficient information to understand how to provide 
informed input.
    Notification should occur sufficiently early in the process to 
allow for meaningful input by the tribe(s).
    3. Input Phase: Tribes provide input to EPA on the consultation 
matter. This phase may include a range of interactions including 
written and oral communications including exchanges of information, 
phone calls, meetings, and other appropriate interactions depending 
upon the specific circumstances involved. EPA coordinates with tribal 
officials during this phase to be responsive to their needs for 
information and to provide opportunities to provide, receive, and 
discuss input. During this phase, EPA considers the input regarding the 
activity in question. EPA may need to undertake subsequent rounds of 
consultation if there are significant changes in the originally-
proposed activity or as new issues arise.
    4. Follow-up Phase: EPA provides feedback to the tribes(s) involved 
in the consultation to explain how their input was considered in the 
final action. This feedback should be a formal, written communication 
from a senior EPA official involved to the most senior tribal official 
involved in the consultation.

B. What activities may involve consultation?

    1. General Categories of Activities Appropriate for Consultation: 
The broad scope of consultation contemplated by this Policy creates a 
large number of actions that may be appropriate for consultation.
    The following list of EPA activity categories provides a general 
framework from which to begin the determination of whether any 
particular action or decision is appropriate for consultation. The 
final decision on consultation is normally made after examining the 
complexity of the activity, its implications for tribes, time and/or 
resource constraints, an initial identification of the potentially 
affected tribe(s), application of the mechanisms for identifying 
matters for consultation, described below, and interaction with tribal 
partnership groups and tribal governments.
    The following, non-exclusive list of EPA activity categories are 
normally appropriate for consultation if they may affect a tribe(s):

a. Regulations or rules
b. Policies, guidance documents, directives
c. Budget and priority planning development
d. Legislative comments \2\
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    \2\ Legislative comments are a special case where, due to short 
legislative timeframes, consultation in advance of comment 
submission may not always be possible. Nevertheless, EPA will strive 
to inform tribes when it submits legislative comments on activities 
that may affect Indian country or other tribal governmental 
interests.
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e. Permits
f. Civil enforcement and compliance monitoring actions \3\
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    \3\ Primary guidance on civil enforcement matters involving 
tribes can be found in ``Guidance on the Enforcement Priorities 
Outlined in the 1984 Indian Policy,'' and ``Questions and Answers on 
the Tribal Enforcement Process.'' This guidance is intended to work 
with the Tribal Consultation Policy in a complementary fashion to 
ensure appropriate consultation with tribes on civil enforcement 
matters. EPA generally does not consult on criminal investigations 
and enforcement actions.

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g. Response actions and emergency preparedness \4\
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    \4\ The term response as defined under the Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA) 
includes removals and remedial actions.
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h. State or tribal authorizations or delegations
i. International Treaties and Agreements
    2. EPA's Mechanisms for Identifying Matters for Consultation: The 
mechanisms EPA uses for identifying matters appropriate for 
consultation are as follows:
    a. Tribal Government-Requested Consultation. Tribal officials may 
request consultation in addition to EPA's ability to determine what 
requires consultation. EPA attempts to honor the tribal government's 
request with consideration of the nature of the activity, past 
consultation efforts, available resources, timing considerations, and 
all other relevant factors.
    b. Regulatory Steering Committee (RSC). This committee oversees 
EPA's Action Development Process (ADP), which covers all EPA 
regulations and non-regulatory actions of national significance. The 
RSC identifies matters appropriate for consultation on the 
Comprehensive Regulatory Data Form. These forms are available to tribes 
in the semiannual Regulatory Agenda as well as in the subset of rules 
on the Regulatory Gateway accessed through the EPA website.
    This Policy is not intended to subject additional Agency actions to 
the ADP process for the sole purpose of a consultation analysis. Non-
ADP actions are subject to consultation analysis through other 
mechanisms identified within the Policy.
    c. National Program Offices and Regional Offices. For those actions 
and decisions not in the ADP process, program and regional offices also 
determine if consultation is appropriate under this Policy. EPA's 
Tribal Consultation Advisors, described below, provide assistance with 
that determination. Such determination includes coordination with 
national and/or regional tribal partnership groups.
    d. National and Regional Tribal Partnership Groups. EPA meets 
regularly with a number of national and regional tribal partnership 
groups. These groups assist in the identification of matters that may 
be appropriate for consultation.

C. When Consultation Occurs

    Consultation should occur early enough to allow tribes the 
opportunity to provide meaningful input that can be considered prior to 
EPA deciding whether, how, or when to act on the matter under 
consideration. As proposals and options are developed, consultation and 
coordination should be continued, to ensure that the overall range of 
options and decisions is shared and deliberated by all concerned 
parties, including additions or amendments that occur later in the 
process.

D. How Consultation Occurs

    There is no single formula for what constitutes appropriate 
consultation, and the analysis, planning, and implementation of 
consultation should consider all aspects of the action under 
consideration. In the case of national rulemaking, a series of meetings 
in geographically diverse areas may be appropriate. For more routine 
operational matters, a less formal process may be sufficient.

VI. Managing the Consultation Process

A. Roles and Responsibilities

    The following roles and responsibilities have been defined to allow 
EPA to effectively implement this Policy. These roles and 
responsibilities reflect the fact that, while oversight and 
coordination of consultation occurs at EPA headquarters, as a practical 
matter, much of the actual consultation activity occurs in EPA's 
program and regional offices. The responsibility for initially 
analyzing the need for consultation and then subsequently carrying it 
out, resides with these offices.
    Designated Consultation Official--In addition to being the EPA's 
National Program Manager for the EPA Tribal Program, EPA's Assistant 
Administrator for the Office of International and Tribal Affairs (OITA) 
is the EPA-Designated Consultation Official under the Executive Order.
    These responsibilities include coordination and implementation of 
tribal consultation in accordance with this Policy and Agency 
compliance with the 1984 Indian Policy.
    The Designated Consultation Official has the authority for: 
Defining EPA actions appropriate for consultation, evaluating the 
adequacy of that consultation, and ensuring that EPA program and 
regional office consultation practices are consistent with this Policy.
    Per the Memorandum, the Designated Consultation Official reports 
annually to OMB on the implementation of the Executive Order.\5\ 
Further, the Designated Consultation Official certifies compliance with 
the Executive Order for applicable EPA activities. The American Indian 
Environmental Office (AIEO) is located within OITA and coordinates the 
operational details of the Policy and compiles consultation-related 
information for the Designated Consultation Official.
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    \5\ Report is filed by August 3rd.
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    2. Assistant Administrators--Assistant Administrators oversee the 
consultation process in their respective offices including analysis for 
potential consultation and the consultation process. Each program 
office is directed to prepare a semi-annual agenda of matters 
appropriate for consultation and a brief summary of consultation that 
has occurred. The program offices provide this information to AIEO for 
reporting to OMB. Each office is directed to designate a Tribal 
Consultation Advisor.
    3. Regional Administrators--Regional Administrators oversee the 
consultation process in their respective offices including analysis for 
potential consultation and the consultation process. Each region is 
directed to prepare a semi-annual agenda of matters appropriate for 
consultation and a brief summary of consultation that has occurred. The 
regions provide this information to AIEO for reporting to OMB. Each 
region is directed to designate a Tribal Consultation Advisor.
    4. Tribal Consultation Advisors--Tribal Consultation Advisors 
(TCAs) assist in identifying matters appropriate for consultation and 
prepare summary information on consultation activities and provide it 
to AIEO. TCAs receive and provide advice within their respective 
program offices and regions on what actions may be appropriate for 
consultation. TCAs also serve as a point-of-contact for EPA staff, 
tribal governments, and other parties interested in the consultation 
process. TCAs are the in-office subject matter experts to assist staff 
and management in the implementation of the Policy.

B. National Consultation Meeting

    OITA/AIEO may convene a periodic National Consultation Meeting to 
be chaired by the Designated Consultation Official to review the 
consultation process across the Agency.

C. Reporting

    Pursuant to the Memorandum, EPA submits annual progress reports to 
OMB on the status of the consultation process and actions and provides 
any updates to this Policy.

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D. EPA Senior Management Review

    The Designated Consultation Official communicates regularly with 
the Assistant and Regional Administrators to review the consultation 
system, to consider any matters requiring senior management attention, 
and to make adjustments necessary to improve the Policy or its 
implementation.
    EPA plans to receive ongoing feedback on the Policy from all 
parties to assess its effectiveness and implement improvements.

    Dated: December 8, 2010.
Michael Stahl,
Acting Director American Indian Environmental Office.
[FR Doc. 2010-31332 Filed 12-14-10; 8:45 am]
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