Tribal Consultation Policy, 71833-71842 [2012-29246]

Agencies

• DEPARTMENT OF LABOR
• Office of the Secretary

[Federal Register Volume 77, Number 233 (Tuesday, December 4, 2012)]
[Notices]
[Pages 71833-71842]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29246]


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DEPARTMENT OF LABOR

Office of the Secretary


Tribal Consultation Policy

AGENCY: Office of the Secretary, Labor.

ACTION: Final policy; Response to comments on proposed policy.

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SUMMARY: The Department of Labor (DOL) is issuing its final Tribal 
Consultation Policy. The Tribal Consultation Policy (hereinafter 
referred to as the ``policy'') establishes standards for improved 
consultation with federally-recognized Indian Tribes to the extent that 
no conflict exists with applicable federal laws or regulations. The 
policy applies to any Department action that affects federally-
recognized Indian tribes and requires that the Department's government-
to-government consultation involve appropriate Tribal and Departmental 
Officials. In addition to setting forth the final policy, this document 
also responds to comments on the proposed policy, which was published 
in the Federal Register on April 18, 2012 (77 FR 23283).

DATES: This Final Policy is effective December 4, 2012

FOR FURTHER INFORMATION CONTACT: For information on the Department of 
Labor's Tribal Consultation Policy, contact Jeremy Bishop, Special 
Assistant to the Secretary, Office of Public Engagement, U.S. 
Department of Labor, Room C-2313, 200 Constitution Ave. NW., 
Washington, DC 20210. Telephone: (202) 693-6452 (this is not a toll-
free number). Individuals with hearing or speech impairments may access 
the telephone via TTY by calling the toll-free Federal Information 
Relay service at 1-800-877-8339. Email: bishop.jeremy@dol.gov.

SUPPLEMENTARY INFORMATION:

I. Discussion of Comments on the Proposed Draft Tribal Consultation 
Policy

    In response to the proposed Tribal Consultation Policy, the 
Department received comments from a broad spectrum of interested 
parties, including Indian tribes, Alaska Native Corporations, and 
tribal advocacy groups that raise a variety of concerns with specific 
provisions of the proposed policy. After reviewing these comments 
thoughtfully and systemically, the Department has modified several 
provisions and retained others as originally proposed.
    Provisions of the policy that received comments are discussed in 
detail below; provisions that were not commented on have been adopted 
as originally proposed. The original comments can also be viewed online 
in their entirety at: https://www.regulations.gov/#!docketDetail;dct=FR%252BPR%252BN%252BO%252BSR%252BPS;rpp=25;po=0;D=DOL
-2012-0002.

A. Section I--Background and Purpose; B. Referenced Authorities

    A commenter suggested adding the Consolidated Appropriations Act of 
2005 (Pub. L. 108-447) to the list of authorities on which the policy 
is based. Section 518 of Title V of Division H requires OMB and all 
federal agencies to consult with Alaska Native corporations on the same 
basis as Indian tribes under Executive Order 13175, Consultation and 
Coordination With Indian Tribal Governments. This provision amends the 
Consolidated Appropriations Act of 2004 (Public Law 108-199), which 
only required that the Office of Management and Budget (OMB) 
participate in such consultations with Alaska Native Corporations.
    The Department has incorporated this change.

B. Section II--Guiding Principles; A. Government-to-Government 
Relationship and Tribal Self-Determination

    One commenter recommended editing this section to specify that 
while the relationship between the federal government and Alaska Native 
corporations is different than the government-to-government 
relationship with federally-recognized tribes, the policy should 
recognize the Department's obligations to consult with Alaska Native 
corporations pursuant to the Consolidated Appropriations Act for Fiscal 
Year 2005 (Pub. L. 108-447).
    The Department does not believe it is necessary to make this 
suggested change. The definition of ``Indian Tribe'' in section X, 
which specifically includes Alaska Native Corporations, makes clear 
that such organizations are entitled to the same treatment under the 
policy as other federally-recognized tribes.

C. Section III--Policy Statement; B. Implementation Responsibilities of 
DOL Operating Agencies

    A commenter suggested changing the phrase ``legally permissible'' 
to ``not legally prohibited'' to allow Indian tribes greater discretion 
in developing their own policies and standards, so long as such actions 
are not legally prohibited. The commenter believes the revised standard 
would give further weight to Indian tribes' self-determination, and 
would be easier to implement and enforce than ``permissible'' as a 
basis for the Department's decisionmaking.
    The Department believes the suggested change is unnecessary. The 
phrase ``legally permissible'' is consistent with the text throughout 
this section and sufficiently conveys the discretion to be afforded 
Indian tribes in developing their own policies and standards regarding 
the administration of DOL programs by Indian tribes.

D. Section IV--Regulations

    A commenter recommended deleting the term ``tribal officials'' in 
section V to clarify that comments are normally provided by the Indian 
tribes, not individual tribal officials.
    The Department does not believe such a change is appropriate. The 
definition of ``Tribal Officials'' in Section X specifically recognizes 
that tribal officials have the authority to represent and act on behalf 
of their respective Indian tribes.

E. Section V--Unfunded Mandates

    One commenter suggested deleting the term ``tribal governments'' in 
paragraphs (1) and (2) of this section because it is not defined in the 
policy. The commenter notes the proposed change would alleviate 
potential confusion caused by applying some Tribal Consultation Policy 
provisions to the undefined ``tribal governments,'' while applying 
other provisions to the defined term ``Indian Tribes.''
    Moreover, while the term ``Tribal Officials'' is defined in Section 
X, the commenter suggested deleting this term in paragraph (2) to make 
clear that the policy is referring to the same entities throughout, and 
that the Unfunded Mandates section does not have a

[[Page 71834]]

different effect from other sections based on the use of different 
terminology.
    The Department agrees with this suggestion and has made the 
appropriate changes in the text of this section.
    It was also suggested that the Department include, with its summary 
of affected Indian tribes' concerns with certain proposed regulations 
in subparagraph (2)(b), an explanation of how such concerns were 
addressed through changes to the proposed regulations.
    The Department does not believe a revision is needed. The 
Department already addresses the impact of its proposed regulations on 
Indian tribes consistent with applicable federal law.

F. Section VI--Flexibility and Waivers

    A commenter recommended deleting the term ``tribal government(s)'' 
in section VI and replacing it with the term ``Indian tribes.'' The 
commenter notes the proposed change would alleviate potential confusion 
caused by applying some Tribal Consultation Policy provisions to the 
undefined ``tribal governments,'' while applying other provisions to 
the defined term ``Indian Tribes.''
    The Department agrees with these changes and they are reflected in 
the text of this section.
    A commenter also recommended the Department revise its standards 
for granting Indian tribes certain waivers of statutory or regulatory 
requirements, so that such waivers will be granted provided they are 
``not inconsistent'' with applicable federal policy objectives.
    The Department accepts this change from ``consistent'' to ``not 
inconsistent''.
    The commenter further requested that the Department provide a legal 
basis for any refusal to grant a requested wavier to an Indian tribe by 
amending the text to read as follows:

    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 including a citation to the 
legal authority which prevented DOL from granting the waiver.

    The Department routinely cites its legal bases for declining to 
request a waiver, but notes there may also be instances where important 
agency policy and programmatic concerns preclude granting a waiver of a 
statutory or regulatory requirement. Thus, the Department has 
accordingly revised the provision as reflected in the text of this 
section.
    Another commenter suggested the Department provide specific 
timeframes for issuing decisions about whether to grant a waiver of a 
statutory or regulatory requirement. The commenter also questioned 
whether the Department would deem a waiver request to be approved if 
the Department failed to respond by the applicable deadline. Lastly, 
the commenter questioned whether there is an appeals process for the 
denial of a waiver request.
    The Department notes the decision on whether to grant a waiver is 
fact-specific and varies depending on the circumstances of each 
particular application. In addition, the procedures for reviewing a 
waiver application are often prescribed by statute (e.g., the Workforce 
Investment Act of 1998 (Pub. L. 105-220, as amended; 29 U.S.C. 2801 et 
seq.)). Thus, in order to maintain the necessary flexibility to meet 
these requirements, the Department declines to make further changes to 
this section.

G. VII--Consultation Process Guidelines

    A commenter requested the Department revise, from 60 days to 90 
days, the notice provided to Indian tribes in paragraph (1) of this 
section before the Department moves forward with a policy or action it 
determines will have tribal implications, whether for an individual 
tribe, regionally, or nationally. The commenter states such an 
extension would allow for more meaningful participation.
    The Department believes the 60-day notice requirement provides 
sufficient opportunity for consultation with affected Indian tribes. 
The Department notes this provision is greater than the 30-day notice 
and comment period required when an agency issues a Notice of Proposed 
Rulemaking under the Administrative Procedure Act (see 5 U.S.C. 
553(d)).
    The commenter also requested that the Department delete the 
provision in paragraph (1) that an Indian tribe requesting a 
consultation should distribute any DOL-provided information to its 
members. Among other things, the commenter asserts that compliance with 
this provision would ``be unworkable because of the significant costs 
involved for postage, copying, labor, etc.''
    The Department notes this provision is not a mandatory requirement, 
but has amended the provision to offer Indian tribes greater 
flexibility in supplying DOL-provided materials to its members prior to 
the consultation.
    Another commenter suggested revising, from ``no unique impacts on 
Indian tribes'' to ``no tribal implications'', the Department's 
threshold in paragraph (1) for determining whether DOL agencies may 
follow the existing Federal Register notice and comment process when 
providing public notice about rulemaking proceedings of general 
applicability.
    The Department is concerned that requiring a consultation prior to 
the initiation of every proposed rulemaking that may only have a minor 
or tangential impact on a particular Indian tribe would impose an 
unrealistic burden on DOL agencies and may, in fact, hinder the overall 
effectiveness of the policy. Thus, the Department has revised the 
determining threshold to ``no particularized impact on Indian tribes'' 
to emphasize that consultation prior to the initiation of a rulemaking 
proceeding should be reserved for proposed rules that would have a 
particular or distinct impact on Indian tribes.
    A commenter requested that enforcement issues, such as 
``enforcement policy'' and ``planning'', be added as permissible 
subjects for consultation under the Department's Tribal Consultation 
Policy in paragraph (2).
    Discussions with Indian tribes regarding the framing and shaping of 
the Department's enforcement policies are not appropriate subjects for 
consultation under this policy. In particular, the Department's 
component agencies need to retain sufficient autonomy, discretion, and 
confidentiality in order to develop successful enforcement strategies 
within prescribed statutory frameworks. Allowing certain stakeholders 
increased influence over the development of strategies, enforcement 
policies and initiatives would frustrate agencies' efforts to ensure 
necessary worker protections, benefits, and rights. The Department, 
therefore, declines to make the recommended changes.
    A commenter also requested that ``grants management issues'' be 
included as a permissible subject for consultation in paragraph (2), 
since these issues may represent an Indian tribe's greatest area of 
interest or concern when dealing with the Department of Labor.
    Although general discussions regarding the grant programs and 
contracting are permissible subjects for consultation under the policy, 
the scope of the Department's interactions with grantees and 
prospective grantees about specific grantee selection and monitoring 
processes are routinely set forth in each grant solicitation 
application. For these reasons, the Department declines to make further 
changes to this paragraph.

[[Page 71835]]

    A commenter recommended that Indian tribes be involved in matters 
of interest to them before the Initial Planning and Scoping stage 
outlined in paragraph (3). The commenter believes that Indian tribes 
should be directly involved in development and planning, and not merely 
as respondents to a plan developed by the Department of Labor.
    The Initial Planning and Scoping stage is specifically designed to 
allow the Department and Indian tribes to jointly frame the scope of 
consultation following the Department's notification to affected tribes 
that a proposed policy or action will have tribal implications. It is 
through this consultation process that a proposed policy or action may 
be subject to amendment based on the valuable input received from 
affected Indian tribes. A requirement that DOL consult with affected 
Indian tribes before a proposed policy or action is even formulated 
would not serve to further the goals of the Tribal Consultation Policy. 
For these reasons, the Department declines to require consultation 
prior to the Initial Planning and Scoping stage.
    A commenter objected to the requirement in paragraph (7) that a 
written communication on the correspondence of the highest elected or 
appointed tribal official will be considered by the Department as the 
official position of the tribe on the subject at issue. The commenter 
notes that Indian tribes operate differently and do not all follow the 
same procedures for vetting their views. Thus, to preserve tribes' 
sovereignty and self-determination, the commenter suggests allowing 
Indian tribes to use their own process for submitting comments on 
issues of concern.
    The Department agrees, and has amended the provision to convey that 
an Indian tribe's views can also be submitted by an appropriate third 
party designee.
    A commenter recommended that the suggested timeframes for the 
consultation process outlined in paragraph (8) be mandatory, rather 
than permissive, so that all interested parties know with certainty 
when such actions will take place. The commenter would also extend the 
timeframe in subsections (a) and (b) from 30 to 60 days, and extend the 
timeframe in subsection (c) from 60 to 90 days.
    The Department recognizes that each tribal consultation is unique 
and will depend on the nature and complexity of the issues to be 
discussed. There may be times, for example, when these timeframes must 
be compressed to respond to an emergency situation or to meet a 
critical deadline, or expanded to address novel or highly complex 
matters. Thus, the Department has retained the permissive nature of the 
established time frames, but revised the text in subsections (a), (b), 
and (c) by replacing the word ``should'' with ``shall normally''.
    One commenter suggested adding a requirement in paragraph (9) that 
the Department provide, at the conclusion of a consultation, a specific 
explanation for why any tribal input was not adopted. The commenter 
believes this would make the consultation process more transparent and 
ensure that tribes' recommendations receive full and fair consideration 
by the Department.
    The Department notes the requirement to provide a ``specific 
explanation'' for why a particular recommendation was not adopted may 
be difficult to articulate in some instances, and an extended debate 
over the required degree of specificity may unnecessarily detract from 
the overarching purpose of the policy to improve coordination between 
the Department and affected Indian tribes. Thus, the Department has 
accordingly revised the provision as reflected in the text of this 
paragraph.
    A commenter suggested in paragraph (11) that DOL agencies' use of 
existing statutory advisory committees be a mandatory, rather than 
permissive, part of their consultation responsibilities under the 
policy.
    The Department recognizes the valuable role advisory committees 
often play in meaningful consultation. The Department notes, however, 
that some Indian tribes may have concerns about being forced to utilize 
an advisory committee structure as part of the consultation process. 
The Department has, therefore, declined to make this suggested change.
    A commenter recommended deleting the term ``tribal governments'' 
from paragraph (12), Submission of Comments by Other AI/AN 
Organizations, to alleviate potential confusion caused by applying some 
Tribal Consultation Policy provisions to the undefined ``tribal 
governments'', while applying other provisions to the defined term 
``Indian Tribes''.
    The Department agrees with this suggestion and has changed the text 
of the section accordingly.
    Another commenter stated that aside from paragraph (12), the policy 
does not provide meaningful participation for Alaska Native 
Corporations as required by the Consolidated Appropriations Act for 
Fiscal Year 2005 (Public Law 108-447).
    The Department believes the definition of ``Indian Tribes'' in 
section X, which specifically includes Alaska Native Corporations, 
makes clear that such organizations are entitled to the same treatment 
under the policy as other federally-recognized tribes.

H. VIII --Performance and Accountability

    One commenter recommended under paragraph (1) of this section that 
the policy specify that DOL agencies be required to maintain records of 
tribal concerns that were not addressed, as well as those that were, 
and that such records also be made available to Indian tribes.
    The Department believes these changes are unnecessary, since it 
already reports this information to the public on an annual basis, and 
continually provides relevant follow-up information on the DOL Web site 
at: https://www.dol.gov.
    A commenter also suggested that under paragraph (2), the Department 
develop and utilize appropriate evaluation measures, with input from 
affected Indian tribes, in assessing its efforts to determine whether 
the overall policy is effective over time.
    The Department believes that all Indian tribes should have an 
opportunity to express their views on how to best measure the 
effectiveness of the Tribal Consultation Policy, not just those tribes 
who may be directly impacted by the policy in the near-term. Thus, the 
Department has accordingly revised this provision.

I. IX--Designated Officials and Points of Contact; B. Point of Contact 
for Each DOL Operating Agency

    A commenter identified a possible typographical error that would 
require the Department to appoint an ``alternate tribal official'', 
instead of providing the Department the authority to appoint one of its 
own staff as the alternate official.
    The Department agrees and has deleted the word ``tribal''.
    The commenter further noted this subsection also contains reference 
to ``agency tribal officials''. The commenter suggests revising the 
text so to make clear the subsection does not refer to actual tribal 
officials.
    The Department agrees and has revised the provision accordingly.
    Lastly, this commenter suggested changing ``should'' to ``shall'' 
in the final sentence of this subsection to clarify that responsibility 
for tribal matters is not a civil rights matter, and, therefore, does 
not belong within the Department's Civil Rights Center.
    The Department has changed ``should'' to ``shall'' in this 
sentence, but believes that it is important to retain

[[Page 71836]]

final discretion as to whether these responsibilities should ever be 
placed with the Civil Rights Center.

J. Section X--Definitions

    The Department received input that the policy is inadequate 
because, among other things, it limits the Department's responsibility 
to consulting only with Indian tribes.
    One commenter noted there are several instances in the policy where 
the word ``Indian'' does not appear before the word ``tribe''. Since 
the term ``Indian tribe'' specifically encompasses Alaska Native 
Corporations, the commenter suggests using the term consistently 
throughout to make clear that Alaska Native Corporations will receive 
the same treatment under the Tribal Consultation Policy as other 
federally-recognized tribes.
    The Department has addressed this concern throughout the policy, as 
appropriate, and specifically notes that Alaska Native Corporations are 
entitled to the same treatment as other federally-recognized tribes 
under this Tribal Consultation Policy.
    A commenter also objected to inclusion of ``Native Hawaiians'' 
within the definition of ``American Indian and Alaska Native (AI/AN)''. 
The commenter believes ``Native Hawaiian'' is considered a racial or 
ethnic classification rather than a tribal classification, and that use 
of the term is thus prohibited.
    The Department disagrees with this view. The analogous treatment of 
Native Hawaiians and federally-recognized Indian tribes is explicitly 
recognized in numerous federal statutes. For example, section 166 of 
the Workforce Investment Act of 1998 (Public Law 105-220, as amended), 
which provides specific employment and training programs for Indian, 
Alaska Native, and Native Hawaiian individuals, gives the same meaning 
to ``Native Hawaiians'' as the term is defined in section 7207 of the 
Native Hawaiian Education Act (Pub. L. 107-110, as amended):

    (1) Native Hawaiian: The term ``Native Hawaiian'' means any 
individual who is
    (A) A citizen of the United States; and
    (B) A descendent of the aboriginal people who, prior to 1778, 
occupied and exercised sovereignty in the area that now comprises 
the State of Hawaii, as evidenced by--
    (i) Genealogical records;
    (ii) Kapuna (elders) or Kamaaina (long-term community residents) 
verification; or
    (iii) Certified birth records.

    In addition, section 7202(12)(B) of the Native Hawaiian Education 
Act states, ``Congress does not extend services to Native Hawaiians 
because of their race, but because of their unique status as the 
indigenous people of a once sovereign nation as to whom the United 
States has established a trust relationship.''
    The commenter cites Rice v. Cayetano, 528 U.S. 495 (2000) in 
support of the assertion that ``Native Hawaiian'' is a suspect racial 
classification rather than a tribal classification. In Rice, the 
Supreme Court held that Hawaii's voting scheme for the statewide 
election of trustees for the Office of Hawaiian Affairs, which 
restricted voter eligibility to certain defined classes of Hawaiian 
citizens (including Native Hawaiians), violated the Fifteenth 
Amendment. However, the Court reached its decision without ever 
addressing whether Congress (or by extension the Executive branch) may 
treat Native Hawaiians in the same manner as federally-recognized 
tribes. In fact, the Court expressly declined to review this issue.
    Further, while Native Hawaiians are included in the definition of 
``American Indian and Alaska Native (AI/AN)'', the Tribal Consultation 
policy does not provide any additional consultation rights to Native 
Hawaiian individuals, communities, or organizations. For these reasons, 
the Department declines to delete the reference to ``Native Hawaiians'' 
from the term ``American Indian and Alaska Native (AI/AN)'' as defined 
in the policy.
    Another commenter noted that federally-recognized Indian tribes 
have formed consortiums and multi-tribal organizations which operate 
DOL programs and serve more than one tribe. The commenter notes, 
``[e]ach of these groups speaks on behalf of the tribes they serve on 
DOL issues, unless a tribe has decided to participate in any particular 
issue or has reserved that power to itself.'' To accurately include 
these consortium groups' participation in the Tribal Consultation 
Policy, the commenter suggests adding another category, ``Tribal 
Organization'', which would have the same impact on DOL policy as 
individual tribes, to be defined as follows:

    Tribal Organization: For purposes of this Tribal Consultation 
Policy, ``tribal organization'' means an American Indian or Alaska 
Native intertribal organization, consortium, or other similar 
organization whose membership includes at least one federally-
recognized Indian Tribe.

    As part of this change, the commenter suggests adding the term 
``tribal organization'' throughout the text of the Tribal Consultation 
Policy wherever there is a reference to ``Indian tribes''. The 
commenter also suggests revising the definition of an ``AI/AN 
Organization'' so that there is a clear distinction between that term 
and the commenter's proposed definition of ``Tribal Organization''.
    The Department does not believe that the additional definition of 
``Tribal Organization'' is necessary. The Department recognizes that 
Indian tribes may delegate or appoint a third party to represent their 
interests, provided such notice is submitted to the Department in 
writing prior to the start of any consultation with the Department, 
similar to consultations conducted pursuant to the Federal Advisory 
Committee Act (Pub. L. 92-463). The Department has added a 
corresponding sentence to the definition of ``Indian tribe''.
    Lastly, one commenter suggested deleting the word ``government'' 
from the definition of the term ``Tribal Committee, Task Force, or Work 
Group'', to ensure consistency with other defined terms. The commenter 
notes the term ``Tribal Government Officials'' is undefined in the 
Tribal Consultation Policy, and may cause confusion as to who is 
specifically permitted to participate in such task forces, committees, 
and work groups.
    The Department agrees and has deleted the word ``government'' from 
this definition.

II. Final Tribal Consultation Policy

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

[[Page 71837]]

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 
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. Consolidated Appropriations Act of 2005, Public Law 108-447.
    5. Executive Order 12866, Regulatory Planning and Review, September 
30, 1993.
    6. Presidential Memorandum, Government-to-Government Relations with 
Native American Tribal Governments, April 29, 1994.
    7. Executive Order 13175, Consultation and Coordination with Indian 
Tribal Governments, November 6, 2000.
    8. Presidential Memorandum, Government-to-Government Relationship 
with Tribal Governments, September 23, 2004.
    9. Presidential Memorandum, Tribal Consultation, November 5, 2009.
    10. OMB Memorandum M-10-33, Guidance for Implementing E.O. 13175, 
July 30, 2010.

[[Page 71838]]

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.

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 
tribes 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 Indian tribes 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 tribes, 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 
tribes.

[[Page 71839]]

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 tribes apply for waivers and take 
appropriate steps to streamline those processes as necessary.
    When reviewing any application by an Indian tribe 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 not inconsistent 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, including a 
citation to any relevant legal authority that provides a basis for the 
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 any DOL-provided 
information to its members by the method(s) it deems appropriate (e.g., 
U.S. mail, electronic mail, hard-copy handouts). With respect to 
rulemaking proceedings of general applicability that have no 
particularized impact 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 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 
official, appointed tribal official, or other third party designee of 
such authority (according to the procedures set forth under the 
definition of ``Indian Tribes'' in section X), 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 shall normally 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 shall normally 
be scheduled within 30 days of the completion of the planning and 
scoping;
    c. For consultations involving one or more meetings, the 
consultation process shall normally be concluded within 60 days of the 
final consultation meeting; for consultations not involving meetings 
the consultation process shall normally

[[Page 71840]]

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. And, to the extent that 
tribal input was not adopted, the agency will provide a written 
explanation for why such input was not adopted or incorporated.
    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. Sec.  
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 tribes. 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 tribes 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.
    2. DOL agencies will, with input from Indian tribes, 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 official to serve in the 
absence of the primary official.
    The duties of the agency officials having responsibility for tribal 
matters 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 shall 
not be placed within the agency Offices of Civil Rights, as tribal 
relations and consultations are treaty, trust, and government-to-
government based, and

[[Page 71841]]

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 (Pub. L. 92-203; 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. A federally recognized Indian tribe may expressly delegate a 
third party to represent the tribe in all tribal consultations with the 
Department of Labor, provided the Department is notified of such 
delegation in writing prior to the consultation. An Indian tribe may 
rescind its delegation at any time, but the rescission should occur in 
writing, if practicable.
    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 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 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

[[Page 71842]]

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.
    4. Effective Date. The Tribal Consultation Policy is effective 
December 4, 2012 and shall apply to all prospective actions taken by 
the Department as described herein.

    Dated: November 29, 2012.
Hilda L. Solis,
Secretary of Labor.
[FR Doc. 2012-29246 Filed 12-3-12; 8:45 am]
BILLING CODE 4510-23-P