Tribal Consultation and Coordination Policy for the U.S. Department of Commerce, 33331-33339 [2013-13052]

Agencies

• DEPARTMENT OF COMMERCE

[Federal Register Volume 78, Number 107 (Tuesday, June 4, 2013)]
[Notices]
[Pages 33331-33339]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-13052]


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DEPARTMENT OF COMMERCE

[Docket Number: 120530127-2127-02]


Tribal Consultation and Coordination Policy for the U.S. 
Department of Commerce

AGENCY: Department of Commerce.

ACTION: Notice of Final Policy Statement.

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SUMMARY: In compliance with Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments'' (November 6, 2000), the 
Department of Commerce (Department) adopts the following Tribal 
Consultation and Coordination policy statement. This policy establishes 
the manner in which the Department works with federally-recognized 
Indian tribes when developing Department policies that have tribal 
implications. The policy reaffirms the unique government-to-government 
relationship that exists between Indian tribes and the Department. The 
Department continues its commitment to support tribes in the 
development of strong and stable economies able to participate in 
today's national and global marketplace. The notice also summarizes 
comments received on the draft Tribal Consultation and Coordination 
policy statement published in the Federal Register on July 3, 2012 (77 
FR 39464) and the Department's response to these comments.

FOR FURTHER INFORMATION CONTACT: Requests for additional information or 
an electronic copy of the final policy should be directed to Dee 
Alexander,

[[Page 33332]]

Senior Advisor on Native American Affairs, Office of Legislative and 
Intergovernmental Affairs, U.S. Department of Commerce Room 5422, 1401 
Constitution Ave. NW., Washington, DC 20233, telephone (202) 482-0789.

SUPPLEMENTARY INFORMATION:

Background

    E.O. 13175, ``requires Federal agencies to have an accountable 
process to ensure meaningful and timely input by tribal officials in 
developing policies that have tribal implications, and are responsible 
for strengthening the government-to-government relationship between the 
United States and Indian tribes.''
    On November 5, 2009, President Barack Obama reaffirmed the 
government-to-government relationship between the Federal Government 
and Indian tribal governments in a White House memorandum. Among other 
things, this memorandum acknowledges that Indian tribes exercise 
inherent sovereign powers over their members and territory. The 
memorandum also acknowledges that the United States continues to work 
with Indian tribes on a government-to-government basis to address 
issues concerning Indian tribal self-government, tribal trust 
resources, and Indian tribal treaty and other rights.
    This final policy statement is intended only for internal 
management purposes and does not create any right, benefit, or 
responsibility enforceable against the United States, its agencies, 
entities, or instrumentalities, its officers or employees, or any other 
person. The Department believes this policy responds to President 
Obama's memorandum and builds upon and expands the principles expressed 
in the Department's previous policy, ``American Indian and Alaska 
Native Policy of the Department of Commerce,'' promulgated on March 30, 
1995. The Policy incorporates the requirements of E.O. No. 13175, and 
the Office of Management and Budget Memorandum, ``Guidance for 
Implementing E.O. 13175, `Consultation and Coordination with Indian 
Tribal Governments.'''

Summary of Comments Received in Response to the Draft Consultation and 
Coordination Policy

    On July 3, 2012, the Department published a notice and request for 
comments on a draft ``Consultation and Coordination Policy for the U.S. 
Department of Commerce'' policy statement in the Federal Register (77 
FR 39464). The Department received letters from 15 different entities, 
with approximately 48 unique comments in response to the draft policy 
statement. A summary of comments received and the Department's 
responses to these comments are presented below. The Department also 
received seven comments and recommendations not specific to the policy 
principles. The notice also includes comments and the Department's 
responses to those comments received from two national webinars held on 
September 12, 2012 and September 19, 2012.

General Comments and Recommendations

    Comment 1: The broad statement in the background section of the 
July 3 notice, that the policy ``may not apply to a particular 
situation based upon the circumstances,'' should be replaced with a 
narrow description of the situations to which the policy would apply.
    Response: Because the statement was included in the general 
background information in the Federal Register notice, it is not a part 
of the Department's policy request for comments. Therefore, no changes 
to the policy have been made in response to this comment.
    Comment 2: Include in the final tribal consultation policy and 
supporting information a (1) description of efforts made to coordinate 
and consult with tribal officials on the draft policy; (2) complete 
summary of public comments, especially from tribal members; and (3) 
description of how the Department has addressed or incorporated 
comments into the final policy.
    Response: The Department included the requested information in this 
notice.
    Comment 3: The comprehensive Consultation and Coordination Policy 
should include overseeing consultation efforts between state, tribal 
and local entities and independent entities, such as the First 
Responder Network Authority (FirstNet).
    Response: The Department will not implement this policy in such a 
manner as to conflict with statutory requirements. The Middle Class Tax 
Relief Act and Job Creation Act of 2012, which establishes FirstNet, 
describes a statutory method for consultation between FirstNet and 
State, local, and tribal entities. The Department, in coordination with 
FirstNet, will determine the policy's applicability to other similar 
authorities as necessary.
    Comment 4: Clarify the Department's role in coordinating with other 
federal agencies, and increase interagency coordination and 
collaboration to increase government efficiency and accountability.
    Response: The Department will determine the scope and timing of any 
required interagency coordination as circumstances indicate.
    Comment 5: Amend the policy to apply to Fishery Management 
Councils.
    Response: Council meetings are a critical part of the fishery 
management planning process and are the first and earliest point of 
development for fishery management policy. It is most beneficial to 
Tribes, Councils and National Oceanic and Atmospheric Administration 
(NOAA) if there is early and active participation by Indian Tribes and 
Alaska Natives in these fora. NOAA strongly encourages Councils to 
discuss and work with Tribes to address their concerns while developing 
fishery conservation and management measures under the Magnuson Stevens 
Act, (MSA) 16 U.S.C. 1800 et seq. Thus, while it is NOAA's--and not the 
Councils'--responsibility to consult with federally recognized tribes 
under E.O. 13175, the Councils' current and future early engagement 
will facilitate and enhance tribal input into NOAA's rulemaking 
processes.
    Comment 6: The policy should clarify that the Department's agency 
research activities are subject to the policy.
    Response: Research activities conducted by a Department's bureau or 
agency are subject to this Policy and E.O. 13175 whenever such 
activities involve actions or policies that have tribal implications. 
The Department complies with existing statutory and regulatory 
consultation obligations.
    Comment 7: How will the new policy affect the status of existing 
co-management agreements with the National Marine Fisheries Service 
(NMFS)?
    Response: The new policy has no effect on co-management agreements 
established under section 119 of the Marine Mammal Protection Act. NMFS 
will continue to work with Alaska Native organizations under co-
management agreements. Such co-management does not constitute, nor is 
it a substitute for, government-to-government consultation as required 
by E.O. 13175.

Comments to Section 1: Introduction

    Comment 8: Add more language to the Introduction Section of the 
policy statement that reflects tribal sovereignty and tribes' rights to 
self-determination and self-government.
    Response: The Department adopts the recommendation and has added 
the sentence to Section 1.01 stating, ``The Department recognizes 
Indian tribal self-government and supports tribal sovereignty and self-
determination.''

[[Page 33333]]

    Comment 9: Include the term ``on a pre-decisional basis'' in 
Section 1.01. The term will ensure that the consultation occurs before 
a policy is changed.
    Response: The Department does not adopt this recommendation. The 
term ``pre-decisional'' is a term of art, and is not appropriate for 
this policy. The Department adheres to Section 3 of E.O. 13175, which 
includes the timing of consultation with the Department or its 
operating units, as stated in Section 7.02 of this policy.
    Comment 10: Reference Executive Orders and Secretarial Orders in 
the Introduction Section of the policy.
    Response: The Department refers to E.O. 13175 in Section 1.04 of 
this final policy. This policy does not refer to Secretarial Orders 
because the Department has joint Secretarial Orders with the Department 
of the Interior to implement provisions of the Endangered Species Act 
which only applies to specific Department components. It is not 
appropriate to include existing Secretarial Orders as part of this 
policy.
    Comment 11: Include the relevant ``regulations, statutes, 
Presidential memoranda, and Executive Orders'' in the Introduction 
section of the policy statement.
    Response: The Department adopts this comment and has added the 
following sentence to the end of Section 1.04: ``This Policy is to be 
construed consistent with Federal statutes, regulations, Presidential 
memoranda, Executive Orders, and other relevant Federal legal 
authorities.''
    Comment 12: Substitute the word ``input'' in the first sentence of 
Section 1.04 with ``participation.''
    Response: The Department does not adopt the recommendation. The 
term ``input'' is consistent with Section 5(a) of E.O. 13175.
    Comment 13: Include a new sub-section in the Introduction Section 
of the policy with the following wording; ``The Department recognizes 
and respects the diversity of Indian tribes and understands that they 
are culturally, traditionally, and administratively different. This 
diversity makes it impossible for any federal agency to make the sole 
decision regarding whether or in what manner it is appropriate to 
consult with tribes. The only entities that know enough about 
individual tribes to make that determination are the tribes themselves. 
Therefore, consultation can be initiated by either the Tribes or the 
Department.''
    Response: Section 7.01 of this policy provides for consultation 
initiated by either a Tribe or the Department.

Comments to Section 2: Background

    Comment 14: The policy should clarify whether it replaces the 1995 
policy. If it does not, then include the 10 enumerated principles and 
expand the principles in the new policy.
    Response: To be clear, this new policy replaces the 1995 policy and 
builds and expands upon the principles in the 1995 policy, and it 
incorporates the requirements of E.O. 13175 and Presidential 
Memorandum, ``Tribal Consultation,'' 2009 Daily Comp. Pres. Docs. 887 
(November 5, 2009). The Department also references the 1995 American 
Indian and Alaska Native Policy of the Department of Commerce in 
Section 2.01 of this policy.
    Comment 15: Include E.O. 13175's policymaking criteria with 
explanation of how DOC will apply them when ``formulating and 
implementing policies that have tribal implications.''
    Response: This recommendation is addressed in Section 2.01 of the 
policy, which incorporates E.O. 13175, Presidential Memorandum, 
``Tribal Consultation,'' and the Office of Management and Budget's 
implementing guidance of July 30, 2010.
    Comment 16: Provide additional guidance on the Department's process 
for determining whether policies have tribal implications, including 
examples of past Department actions that were subject to consultations. 
Provide detailed guidance on how the Department will conduct 
consultations and prepare tribal impact statements for regulations with 
tribal impacts that impose costs, are not required by legislation, and 
preempt tribal law.
    Response: The Department does not adopt this recommendation. This 
policy is intended to provide high-level guidance to operating units to 
implement depending on their circumstances and governing legal 
authorities. The policy also provides the Department with the necessary 
flexibility to ensure its consultations are as effective as possible.

Comments to Section 3: Authority

    The Department received no comments to Section 3.

Comments to Section 4: Definitions

    Comment 17: Amend the definition 4.01, ``Consultation'' to include 
an accountable process, which enables Tribal officials to participate 
in Federal decision-making before an agency takes an action, or commits 
to a decision to consider an action or policy with Tribal implications. 
Note that consultation is not a single act of communication, but 
consists of multiple steps which culminate in an outcome that reflects 
the views, needs and objectives of both Federal and Tribal 
participants.
    Response: The Department does not adopt the recommendation. The 
definition in this final policy is consistent with E.O. 13175. Section 
7 of this policy also addresses the elements of consultation including 
means of communication, exchange of information, and notice.
    Comment 18: Amend the definition of ``Consultation'' to incorporate 
the following key principles: Consultation is a process which enables 
the tribes to participate in federal decision making before an agency 
takes an action, or commits to a decision to consider an action or 
policy with tribal implications. Consultation is not a single act of 
communication but rather a process involving multiple steps which 
culminate in an outcome that reflects the views, needs and objectives 
of both federal and tribal participants. Consultation may be initiated 
by tribal governments to discuss and exchange information on a 
government-to-government basis. Consultation can be formal with 
established time lines and required publications, or less formal 
through means such as teleconferencing. Consultation is triggered when 
the Department considers ``Policies that have tribal implications,'' as 
that term is defined in E.O. 13175, or when the Department considers 
proposals for regulations, rulemaking, legislation, guidance, policy 
formulation or actions that may have a substantial direct effect on one 
or more tribes, on the relationship between tribes and the federal 
government, or on the distribution of power and responsibilities 
between the tribes and federal government.
    Response: The Department does not adopt the recommendation. The 
final policy's definition is consistent with E.O. 13175; moreover, 
Section 7 of this policy addresses the elements of consultation 
including means of communication, exchange of information, and notice.
    Comment 19: Add to the definition of ``consultation'' the term 
``actions'' in addition to ``policies.''
    Response: The Department does not adopt the recommendation. The 
term ``policies that have tribal implications'' is the term for actions 
requiring the procedures described in the E.O. 13175 and therefore, 
this Department policy implements E.O. 13175.
    Comment 20: The policy should include Alaska Native Corporation in 
the definition of ``Indian Tribe,'' or adopt a parallel formal 
consultation policy for Alaska Native Corporations,

[[Page 33334]]

per the Congressional direction to Federal Agencies in the Consolidated 
Appropriations Act of 2004, Pub. L. 108-199, Div. H, Section 161, which 
is codified as a note to 25 U.S.C. Sec.  450.
    Response: The Department has added the following definition for 
Alaska Native Corporations and will include ANCs in the policy 
consistent with 25 U.S.C. Sec.  450 note on ``Consultation with Alaska 
Native Corporations: 07. ``Alaska Native Corporation,'' pursuant to 43 
U.S.C. Sec. Sec.  1602 et seq., any Regional Corporation, any Village 
Corporation, any Urban Corporation, and any Group Corporation as 
defined in, or established pursuant to, the Alaska Native Claims 
Settlement Act.
    The Department also added a new Section 8. ``Consultation with 
Alaska Native Corporations,'' to the Policy, which reads as follows:
    01. In 2004, through two consolidated appropriations acts, Congress 
required federal agencies to consult with Alaska Native Corporations on 
the same basis as federally recognized Indian Tribes under E.O. 13175 
(Public Law 108-199, 118 Stat. 452, as amended by Pub. L. 108-447, 118 
Stat. 3267).
    02. The Department interprets the term ``Alaska Native 
Corporations'' in this requirement to mean ``Native Corporations'' as 
that term is defined under the Alaska Native Claims Settlement Act 
(ANCSA) of 1971. Congress created regional, village, and urban 
corporations to manage the lands, funds, and other assets conveyed to 
Alaska Natives by ANCSA. There are 13 regional corporations and over 
200 village corporations in Alaska. The village corporations generally 
represent shareholders in villages associated with the 229 federally 
recognized tribes in Alaska. Most Alaska Native Corporation 
shareholders also are members of a federally recognized tribe in 
Alaska.
    03. The Department will implement the requirement to consult with 
Alaska Native Corporations in a manner as close as possible to 
consultations with federally recognized tribes in Alaska, while 
recognizing the important differences between sovereign tribal 
governments and the federal trust responsibility to those tribal 
governments and corporations obligated to maximize financial returns to 
shareholders. Alaska Native Corporations were established to operate as 
for-profit enterprises, and may not necessarily represent the same 
perspective or interests as the tribes. Consultation and coordination 
with the corporations will follow the same process as described in this 
Policy for tribes, with the following exceptions:
    a. Consultations with Alaska Native Corporations will occur on a 
``government-to-corporation'' basis, rather than ``government-to-
government'' basis to reflect the distinction between sovereign 
governments and corporate entities.
    b. Government-to-corporation consultations will occur with 
appropriate adjustments given the unique status, structure, and 
interests of Alaska Native Corporations.
    Comment 21: Clarify whether the policy applies to the Office of the 
Secretary as well as to its operating units, and identify the 
organizations to which the policy does not apply. Also, require the 
implementation of procedures at each bureau and agency level to allow 
the bureaus/agencies to determine when a policy has tribal 
implications, and allow the Tribes to consult on the various agency-
level policies.
    Response: The Department does not adopt the recommendation. This 
policy is intended to provide high-level guidance to the Department's 
bureaus to allow them to implement the policy depending on their 
circumstances and governing legal authorities. Section 6 of the policy 
allows, but does not require, the development of operating level, 
bureau and agency, procedures. The policy applies to the Office of the 
Secretary, as implemented by the Tribal Consultation Official, see 
Section 5.01.
    Comment 22: On definition 4.04, ``policies that have tribal 
implications'':
    a. Tribal consultation officials should interpret the term 
``policies that have tribal implications'' broadly so that the term 
applies to more than just regulations and legislative action. The 
policy should clarify that the phrase in section 7.02.a ``other policy 
statements and actions'' is intended to apply broadly to include all 
written statements of policy or actions that have the potential to 
affect tribal rights and interests.
    b. Tribal consultations should also be triggered by any Department 
action that affects American Indian, Alaska Native and Native American 
tribes, not just formal Department policies.
    c. Include language about the timing of consultation. Amend the 
policy to include the following or similar language from the 1995 
policy: ``work with tribal governments prior to implementing any 
action.''
    Response: The subject phrase is a term defined in E.O. 13175 and 
applies to ``actions'' as well as policies and regulations.
    Comment 23: Amend definition 4.05 ``Tribal Officials,'' to read as 
follows: ```Tribal officials' means an elected or duly appointed Tribal 
leader or official delegate, designated in writing by a Tribe, or a 
duly authorized representative of an authorized intertribal 
organization.'' Also, include official delegates who are designated as 
such by their tribes to ensure that individuals who have been 
authorized to consult on behalf of their tribe will be accorded the 
same status as elected or duly appointed officials.
    Response: The Department used the definition from E.O. 13175 for 
``Tribal officials,'' which includes ``duly appointed officials,'' 
meaning that a delegated representative of a tribal government will be 
recognized as an appropriate ``tribal official.''

Comments to Section 5: Roles and Responsibilities

    Comment 24: The tribal consultation official should develop 
protocols, SOPs and, as appropriate, a Memorandum of Understanding 
(MOU) for formal and informal consultations. These documents would 
establish the means for providing and exchanging information between 
the Department and tribal governments.
    Response: The Department does not adopt this recommendation. This 
policy is intended to provide high-level guidance to the Department's 
bureaus and agencies to allow them to implement the policy depending on 
their circumstances and governing legal authorities. The Department 
intends that operating units address such procedures in their handbooks 
or other guidance as appropriate.
    Comment 25: The Department should encourage each of its bureaus and 
agencies to allocate funding toward Tribal consultation activities, 
including consultation itself, staff training, and other associated 
activities.
    Response: The Department does not adopt the recommendation. The 
Department will encourage the operating units to work within existing 
resources to comply with E.O. 13175.
    Comment 26: Tribal officials situated at headquarters are poorly 
positioned to implement the meaningful and timely consultation process 
anticipated by E.O. 13175. National consultation officials have little 
experience on the regional issues and insufficient time to focus on the 
issues to effectively monitor and coordinate. A regional consultation 
official would have more regular contact with the tribes and would be 
able to screen issues and provide advance notice of impending issues. 
Therefore, change Section 5.02.b to require the designation of 
consultation coordinators at the regional level, particularly within 
operating units such as NOAA. Also,

[[Page 33335]]

give the tribes significant input into the selection process for the 
designated national and regional consultation officials.
    Response: The Department does not adopt the recommendation. Section 
5.02.b of this policy allows operating units to delegate authority.
    Comment 27: The Department's tribal consultation official or 
designee should certify to the Office of Management and Budget (OMB) 
that draft final regulations or proposed regulations with tribal 
implications comply with EO 13175. A tribal consultation summary report 
is part of the required annual update to OMB that each agency must 
provide.
    Response: The Department added a paragraph under Section 5.01; the 
new paragraph reads: d. The Tribal Consultation Official has the 
responsibility for submitting an annual report to OMB pursuant section 
7(a) of E.O. 13175.
    Comment 28: Make it clear how, and when, each operating unit 
designates officials to consult with the tribes. Explain how tribes can 
open lines of communication with the designated officials.
    Response: Pursuant to Section 5.02.a of the policy, each operating 
unit is responsible for designating an official at the operating unit 
level and for the timing of that designation.
    Comment 29: Clarify the term ``periodic dialogue'' in Section 
5.01.c, or replace that phrase with the term ``meaningful dialogue'' or 
``biannually'' to give more guidance on what the term means in the 
context of the policy.
    Response: The Department does not adopt the recommendation. The 
phrase ``periodic dialogue'' is intended to allow flexibility in the 
regular review of this policy's implementation.
    Comment 30: Section 5.02.a. of the Policy states that the head of 
each operating unit within the Department will designate an official to 
ensure compliance with the Policy. As written, there is no timeframe 
for this designation in the policy. Institute a timeframe for this 
process. Additionally, some units already have an experienced 
designated official, while other units' designated officials may have 
little to no experience in tribal consultation. Increase 
interdepartmental cooperation, in addition to providing a timeline for 
designating the officials, to provide certainty and continuity for 
Tribes as they navigate the new policy and interact with federal 
officials across the Department.
    Response: The Department does not adopt the recommendation. The 
Department determined that these responsibilities are best addressed at 
the operating unit level to allow each operating unit to assess its 
needs to support interactions and relationships with tribes.
    Comment 31: Add the following responsibilities to the tribal 
consultation official or designated officials in the operating units 
Section: Responding to inquiries from tribes about a specific 
consultation--past, ongoing, or proposed; responding to inquiries about 
the consultation process in general; receiving requests from tribes 
seeking to initiate consultation; coordinating to identify and screen 
for potential consultation issues; preserving and maintaining complete 
consultation records; assisting tribal governments seeking to access 
consultation records; and receiving post-consultation complaints, 
objections, and alleged inconsistencies.
    Response: The Department does not adopt the recommendation. This 
policy is intended to provide high-level guidance to the Department's 
bureaus and agencies to allow them to implement the policy depending on 
their circumstances and governing legal authorities. The Department 
intends that operating units address this matter in their handbooks or 
other guidance as appropriate.
    Comment 32: Establish tribal liaison positions to implement the 
consultation policy, and to encourage agencies to allocate funding for 
tribal consultations.
    Response: The Department does not adopt the recommendation, and 
encourages operating units to work with existing resources and staff to 
comply with E.O. 13175.

Comments to Section 6: Training and Guidance

    Comment 33: The focus of the consultation in most cases should be 
at the local level; however, it is critical that bureau or agency 
officials at the headquarters level with no background in tribal 
relations be properly trained in the consultation process.
    Response: This policy provides for training in Section 6.01.
    Comment 34: Section 6.02 provides that ``each operating unit may 
develop and issue tribal consultation guidance.'' Agencies should be 
required to develop Tribal consultation guidance. This guidance should 
be developed under supervision of the Tribal Consultation Official to 
ensure that its content is uniform across the Department's operating 
units.
    Response: The Department addresses this recommendation in Section 
6.02 of the Policy which permits operating units to develop tribal 
consultation guidance provided that the guidance is consistent with DAO 
218-8 and is reviewed by the Tribal Consultation Official.

Comments to Section 7: Consultation

    Comment 35: The term ``reasonable effort'' in Section 7 is unclear. 
Clarify that the Department will confirm receipt of a tribal request 
for consultation within 30 days, or even 45 days. Tribes believe that 
there are few circumstances where the Department would not be able to 
accommodate a request, and urge the Department to conduct face-to-face 
consultations with tribes.
    Response: The Department does not adopt the recommendations. 
Operating units may have specific time constraints imposed by statute 
or circumstances, and this policy is intended to provide them with the 
flexibility to accommodate those constraints.
    Comment 36: It is important for the consultation process to retain 
the requirement that it is a government-to-government interaction. The 
consultation process must also involve elected tribal officials unless 
otherwise approved by the tribe.
    Response: This comment is addressed in the policy definition of 
``Tribal officials,'' adopted from Section 1(d) of E.O. 13175.
    Comment 37: The Department should include in the policy further 
guidance indicating standards for determining which forms of 
consultation are appropriate in various circumstances, and allow the 
tribes to consult on these standards.
    Response: The Department does not adopt the recommendation. This 
policy is intended to provide high-level guidance to allow operating 
units to implement the policy depending on their circumstances and 
governing legal authorities. The Department intends that operating 
units address details of their respective consultation process in their 
handbooks or other guidance as appropriate.
    Comment 38: Coordination with the tribes should not be limited to 
formal consultation, and a variety of consultation types should be 
further defined in sub-section 01. Consultation types could include 
informal discussions with tribal leaders, meetings with individual 
tribes, listening sessions, and formal consultations. Add as the last 
section to sub-section 01: ``Ultimately the consultation process is to 
entail an informed discussion of the proposed federal policy and 
associated tribal concerns between the designated Tribal Consultation 
Official and tribal officials.''

[[Page 33336]]

    Response: The Department adopts this recommendation and has added 
the following language to the end of Section 7.01: Ultimately, the 
consultation process is to entail an informed discussion of the 
proposed federal policy and associated tribal concerns between the 
designated Tribal Consultation Official and tribal officials.
    Comment 39: Develop a tribal liaison position for the Alaska 
region. Tribal liaisons should be trained in how to conduct tribal 
consultations to help facilitate tribal-agency relationships.
    Response: The Department does not adopt the recommendation to 
develop a tribal liaison position for the Alaska region. This comment 
has been forwarded to NOAA for its consideration.
    Comment 40: The phrase ``reasonable effort'' in Section 7.02.b. is 
unclear, and should either be removed and replaced with language 
clarifying the specific time frame that the Department considers 
reasonable.
    Response: The Department does not adopt the recommendation to 
remove the term ``reasonable effort'' because consultations are 
intended to reflect a relationship between the operating unit and the 
tribe, taking into account the resources and mission of the operating 
unit. Some operating units have specific time constraints imposed by 
statute or other circumstances, and this policy is intended to provide 
those units with sufficient flexibility to accommodate those 
parameters.
    Comment 41: Add to end of last sentence in Section 7.02.b. the 
following language: ``prior to substantive decision points and/or final 
action'' and include that ``the timing of consultation is to allow for 
the substantive consideration of tribal input and concerns before 
finalizing a decision on federal policies, regulations, or 
legislation.''
    Response: The Department adopts the recommendation in part and has 
added the following language to the end of subsection b.: Exchange of 
Information. The Department and operating units will make a reasonable 
effort to identify and provide timely and accurate information for 
consultation prior to substantive decision or final action.
    Comment 42: Section 7.02.c. should include a statement that the 
Department will clearly notify tribes of events such as meetings that 
it considers to be consultations, and that the Department will do so 
within 45 or 90 days prior to the consultation. The Department should 
seek tribal participation in its deliberative process about the 
necessity of a proposed action.
    Response: The Department will advise its operating units to provide 
45 days advanced notice of any invitation to conduct a consultation, or 
to provide notice at the earliest time practicable. Such notices will 
include any relevant materials to facilitate discussion. This response 
does not supersede any existing legal authorities or responsibilities 
of the operating units.
    Comment 43: Communication to and from rural Alaska can be 
difficult, and the Department should follow up on correspondence to 
Tribes and Tribal entities. Response: The final policy addresses 
follow-up notices to tribal officials in Section 7.02.
    Comment 44: The phrase ``when practical'' in Sections 7.01, 7.02.b 
and 7.02.d is unclear, and the Department should amend the section to 
clarify that the Department will provide tribes with a specific amount 
of time to prepare for consultations and submit views, and will be 
flexible about the time allowed.
    Response: The Department agrees with the recommendation to provide 
Tribes adequate time to prepare for consultation as well as relevant 
materials to facilitate and submit their views, and will advise its 
operating units to develop consultation materials, as appropriate. In 
addition, the Department has added the following language to Section 
7.01 Consultation/Consultation Process: ``The Tribal Consultation 
Official or the head of each operating unit, as applicable, will treat 
a request for consultation from a tribal official in an expedited 
fashion and provide a written response confirming receipt of the 
request.''
    Comment 45: For Section 7.e., when a consultation occurs between 
the Department or its operating units and Tribal officials, the 
Department or operating unit should provide the Tribal officials with a 
formal, written communication that summarizes the consultation, and 
responds to the issues and concerns, if any, identified during 
consultation. Tribes should be able to agree to the accuracy of the 
summaries of the tribes' position in the consultation. The follow-up 
communications should be transmitted within 30 days of the 
consultation. They should also specifically indicate whether the 
Department accepts the tribes' position, or include an explanation of 
the Department's position. The Tribal Consultation Official or head of 
each operating unit conducting a consultation should also maintain 
documentation addressing the consultation, tribal concerns, and 
recommendations in conformance with applicable records retention 
schedules. Additionally, the policy should acknowledge that Tribes are 
more familiar with their local environment and, thus, the policy should 
clarify that the Tribes possess unique knowledge. The policy should 
also allow the Tribes to initiate consultations whenever there is a 
potential for their rights and interests to be affected. The 
consultation process should also be timely and initiated early in the 
decision making process to allow the tribe to have access to 
information about the proposed regulation or policy. Regular 
communication between the Department and a Tribe is an essential 
precursor to the consultation process; consultation should be as a 
matter of course and not just when ``practical.'' The policy should 
also distinguish between regular communications, calls, site visits, 
and participation in events and informal meetings, which are not 
intended to serve as the formal negotiation component of the 
government-to-government consultation process.
    Response: The Department does not adopt the recommendation for a 
specified timeframe to submit a written summary of the consultation. 
Section 7.2.e. of the policy states that ``the Department or operating 
unit will provide the Tribal officials with a formal, written 
communication that summarizes the consultation, and responds to the 
issues and concerns, if any, identified during consultation.'' The 
Department expects operating units to address written consultation 
summaries in their handbooks or other guidance, as appropriate. Written 
summaries are not intended to be used to document regular 
communications and interactions between Department employees and 
Tribes; rather, these written communications are part of the 
consultation process.
    Comment 46: A written summary of consultation should include the 
Tribe's responses and should become part of the official record on 
consultation activities maintained by the operating unit and the 
Department, and should form the basis for a tribal impact summary.
    Response: E.O. 13175 requires a tribal summary impact statement 
when an agency (1) promulgates regulations that have tribal 
implications, that impose substantial direct compliance costs on Indian 
tribal governments, and are not required by statute, or (2) promulgates 
regulations that have tribal implications and that preempt tribal law.
    The Department intends consultation reporting to be a separate 
component of all consultations, regardless of whether they involve 
regulations. In response to this comment, the Department has added the 
following language as a new subparagraph to 5.02.c. The head of

[[Page 33337]]

each operating unit will consult with Tribes and prepare tribal summary 
impact statements when promulgating any regulations that have tribal 
implications, that impose substantial direct compliance costs on Indian 
tribal governments, and that are not required by statute; and when 
promulgating any regulation that has tribal implications and that 
preempts tribal law.
    Comment 47: The Department should distribute a follow-up report 
detailing immediate and long-term actions to be taken after 
consultations, and should add language in Section 7.02.e. to the effect 
that documentation includes any proposal for Departmental follow-up 
actions.
    Response: The Department does not adopt the recommendation. Section 
7.02.e. sufficiently addresses this request by requiring the Department 
or operating unit to provide tribal officials with ``a formal written 
communication that summarizes the consultation, and responds to the 
issues and concerns, if any, identified during the consultation.''

Changes to the Proposed Policy

    The policy statement adopted in this Notice differs from the 
proposed policy statement as follows:
    (a) Proposed policy Section No. 1, ``Introduction,'' subparagraphs 
01. and 04. were modified in response to comments.
    (b) Proposed policy Section No. 2, ``Background,'' subparagraph 01. 
was modified to include wording on consultation with Alaska Native 
Corporations in compliance with existing law.
    (c) Proposed policy Section No. 4, ``Definitions,'' subparagraph 
03. was modified to expressly state that the definition of operating 
units includes all bureaus and agencies in response to comments.
    (d) Proposed policy Section No. 4, ``Definitions,'' was modified to 
include a definition for ``Alaska Native Corporation'' in response to 
comments.
    (e) Proposed policy Section No 5, ``Roles and Responsibilities for 
Consultation,'' subsection 01. was modified to include additional 
reporting language in response to comments.
    (f) Proposed policy Section No. 5, ``Roles and Responsibilities for 
Consultation,'' subsection 02. was modified in response to comments to 
include additional responsibilities language for the heads of operating 
units.
    (g) Proposed policy Consultation Process Section No. 7, 
``Consultation Process,'' subparagraph 01. was modified and includes 
additional language relating to the purpose of consultation.
    (h) Proposed policy Consultation Process Section No. 7, 
``Consultation Process,'' subparagraph 02 was modified in response to 
comments received to include additional language relating to responses 
to requests for tribal consultations.
    (i) Proposed policy Section No. 8, ``Implementation,'' was 
renumbered to Section No. 9.
    (j) A new Section No. 8, ``Consultation with Alaska Native 
Corporations,'' was added to address the consultation with Alaska 
Native Corporations.
    The final Consultation and Coordination Policy of the U.S. 
Department of Commerce now reads as follows:

Tribal Consultation and Coordination Policy of the U.S. Department of 
Commerce

Section 1. Introduction

    01. This ``Tribal Consultation and Coordination Policy of the U.S. 
Department of Commerce'' (``Tribal Consultation Policy'' or ``Policy'') 
establishes the manner in which the Department of Commerce 
(``Department'') works with Indian tribes on a government-to-government 
basis to build a durable relationship and address issues concerning 
tribal self-government, tribal trust resources, and tribal treaty and 
other rights, as well as support tribes in developing strong and stable 
economies able to participate in the national and global marketplace. 
The Department recognizes Indian tribal self-government and supports 
tribal sovereignty and self-determination.
    02. The Department recognizes the Federal Government's unique legal 
relationship, as established in the Constitution, statutes, treaties 
and federal court decisions, between Tribal governments and the Federal 
Government.
    03. The Department and operating units will seek and promote 
cooperation within the Department and with other agencies that have 
related responsibilities. The Department's mission encompasses many 
complex issues where cooperation and mutual consideration among 
governments (federal, state, tribal, and local) are essential. The 
Department and operating units will promote intradepartmental and 
interagency coordination and cooperation to assist Tribal governments 
in resolving issues requiring mutual effort.
    04. Executive Order (E.O.) No. 13175, ``Consultation and 
Coordination with Indian Tribal Governments,'' requires federal 
agencies to have an accountable process to ensure meaningful and timely 
input by tribal officials in developing policies that have tribal 
implications. This Policy provides uniform standards and methodology 
outlining consultation procedures for all Department personnel working 
with Tribal governments regarding policies that have tribal 
implications. This Policy is to be construed consistent with Federal 
statutes, regulations, Presidential memoranda, Executive Orders, and 
other relevant Federal legal authorities.

Section 2. Background

    01. This Policy builds upon and expands the principles expressed in 
the ``American Indian and Alaska Native Policy of the Department of 
Commerce,'' promulgated by the Department on March 30, 1995. The Tribal 
Consultation Policy incorporates the requirements of E.O. No. 13175; 
Presidential Memorandum, ``Tribal Consultation,'' 2009 Daily Comp. 
Pres. Docs. 887 (November 5, 2009); the Office of Management and Budget 
Memorandum, ``Guidance for Implementing E.O. 13175, `Consultation and 
Coordination with Indian tribal Governments;' '' and the Consolidated 
Appropriations Act, 2004, Pub. L. 108-199, Div. H Sec.  161, 118 Stat. 
3, 452 (2004), as amended by Consolidated Appropriations Act, 2005, 
Pub. L. 108-447, Div. H., Title V Sec.  518, 118 Stat. 2809, 3267, 
relating to consultation with Alaska Native Corporations.
    02. This Policy is for internal management only and shall not be 
construed to grant or vest any right to any party not otherwise granted 
or vested by existing law or regulations.

Section 3. Authority

    01. This Tribal Consultation Policy is issued pursuant to the 
authority of 5 U.S.C. 301 and Department Administrative Order (DAO) 
218-8, ``Consultation and Coordination with Indian Tribal 
Governments.'' This Policy shall have the same force and effect as a 
DAO. Amendments (substantive changes) or revisions (corrections or 
updates) to this Policy may be developed and issued by the Department 
of Commerce Tribal Consultation Official or the Secretary's designee in 
consultation with Tribal governments.

Section 4. Definitions

    01. ``Consultation,'' as defined in Section 5 of E.O. No. 13175, 
refers to an accountable process ensuring meaningful and timely input 
from tribal officials on Department policies that have tribal 
implications.

[[Page 33338]]

    02. ``Indian tribe (or Tribe),'' as defined in Section 1(b) of E.O. 
No. 13175, 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 1994, 25 U.S.C. 479a.
    03. ``Operating units,'' as defined in Section 3.c.1 of Department 
Organization Order 1-1, are organizational entities outside the Office 
of the Secretary charged with carrying out specified substantive 
functions (i.e., programs) of the Department. The operating units are 
the components of the Department through which most of its substantive 
functions are carried out. ``Operating units'' includes all Department 
bureaus and agencies.
    04. ``Policies that have tribal implications,'' as defined in 
Section 1(a) of E.O. No. 13175, refers to regulations, legislative 
comments or proposed legislation, and other policy statements 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.
    05. ``Tribal Consultation Official,'' as defined in Section 5(a) of 
E.O. No. 13175, means the designee of the Secretary with principal 
responsibility for the implementation of this Policy.
    06. ``Tribal officials,'' as defined in Section 1(d) of E.O. No. 
13175, means elected or duly appointed officials of Indian tribal 
governments or authorized intertribal organizations.
    07. ``Alaska Native Corporation,'' pursuant to 43 U.S.C. 1602 et 
seq., any Regional Corporation, any Village Corporation, any Urban 
Corporation, and any Group Corporation as defined in, or established 
pursuant to, the Alaska Native Claims Settlement Act.

Section 5. Roles and Responsibilities for Consultations

    01. Department of Commerce Tribal Consultation Official
    a. The Tribal Consultation Official is an individual in the Office 
of Legislative and Intergovernmental Affairs (OLIA) within the Office 
of the Secretary who is duly appointed to act as a liaison between the 
Secretary of Commerce and Tribal officials. The Tribal Consultation 
Official may delegate authority, as necessary, to the head of each 
operating unit. The Tribal Consultation Official has primary 
responsibility for ensuring compliance with DAO 218-8, this Policy, and 
E.O. No. 13175, and is responsible for tribal consultations and 
coordination for the Office of the Secretary programs.
    b. The Tribal Consultation Official has responsibility for 
coordinating the implementation of this Policy and DAO 218-8 within the 
Department and all operating units.
    c. The Tribal Consultation Official will engage tribal officials in 
periodic dialogue to discuss the Department's implementation of this 
Policy. The dialogue will provide an opportunity for tribal officials 
to assess policy implementation, program delivery, and discuss outreach 
and communication efforts, and other issues.
    d. The Tribal Consultation Official is responsible for submitting 
an annual report to OMB pursuant section 7(a) of E.O. No. 13175.
    02. Head of operating unit Responsibilities
    a. The head of each operating unit will designate an official in 
the headquarters office who has primary responsibility for ensuring 
compliance with this Policy within the operating unit. Each operating 
unit's designated official will work with the Department Tribal 
Consultation Official to ensure coordination of tribal consultations, 
as necessary. The designated official is responsible for the 
development, maintenance and internal distribution of any guidance 
produced by the operating unit in compliance with the requirements of 
this Policy.
    b. The head of each operating unit or the designated official may 
delegate authority to appropriate individuals within the operating 
unit.
    c. The head of each operating unit will consult with Tribes and 
prepare tribal summary impact statements when promulgating any 
regulations that have tribal implications, that impose substantial 
direct compliance costs on Indian tribal governments, and that are not 
required by statute; and when promulgating any regulations that have 
tribal implications and that preempt tribal law.

Section 6. Training and Guidance

    01. The Tribal Consultation Official and the head of each operating 
unit will ensure that personnel assisting with tribal consultations 
have appropriate training.
    02. Each operating unit may develop and issue tribal consultation 
guidance to assist staff in preparing, reviewing and managing the 
consultation process within their respective operating units, so long 
as:
    a. The guidance is consistent with DAO 218-8, and
    b. The Department's Tribal Consultation Official reviews the 
guidance.

Section 7. Consultation

    01. The Consultation Process. Consultation may take a variety of 
forms. Implementing this Policy may require a range of formal and 
informal planning activities. The Department and operating units' 
consultation processes may include one or more of the following: 
meetings, letters, conference calls, webinars, on-site visits, or 
participation in regional and national events. The Tribal Consultation 
Official or the head of each operating unit, as applicable, will make a 
reasonable effort to accommodate a tribal request for consultation. 
Ultimately, the consultation process is to entail an informed 
discussion of the proposed federal policy and associated tribal 
concerns between the designated Tribal Consultation Official and tribal 
officials.
    02. Elements of the Consultation Process.
    a. Ongoing communication shall be a regular part of the government-
to-government relationship with tribal governments. The Department and 
operating units will engage in meaningful dialogue with Tribes 
regarding all policies that have tribal implications.
    b. Exchange of Information. The Department and operating units will 
make a reasonable effort to identify and provide timely and accurate 
information for consultation.
    c. Notification. The Department and operating units will notify 
Tribes of policies that have tribal implications. Follow-up may be 
necessary to ensure the appropriate tribal official has received the 
consultation notification and accompanying documents. These 
notifications do not replace or supersede any notifications that are 
required by statute or E.O. regarding tribal consultations.
    d. Consultation Planning. The Department or operating units will 
coordinate with tribal officials to plan logistical considerations for 
the consultation. The Department or operating units will, when 
practical, allow Tribes a reasonable amount of time to prepare for 
consultation and submit their views on policies that have tribal 
implications. The Tribal Consultation Official or the head of each 
operating unit, as applicable, will treat a request for consultation 
from a tribal official in an expedited fashion and provide a written 
response confirming receipt of the request.
    e. Written Communication and Record-Keeping. When a consultation

[[Page 33339]]

occurs between the Department or its operating units and Tribal 
officials, the Department or operating unit will provide the Tribal 
officials with a formal, written communication that summarizes the 
consultation, and responds to the issues and concerns, if any, 
identified during consultation. The Tribal Consultation Official or 
head of each operating unit conducting a consultation will maintain 
documentation addressing the consultation, tribal concerns, and 
recommendations in conformance with applicable records retention 
schedules.

Section 8. Consultation With Alaska Native Corporations

    01. In 2004, through two consolidated appropriations acts, Congress 
required federal agencies to consult with Alaska Native Corporations on 
the same basis as federally recognized Indian Tribes under E.O. 13175 
(Pub. L. 108-199, 118 Stat. 452, as amended by Pub. L. 108-447, 118 
Stat. 3267).
    02. The Department interprets the term ``Alaska Native 
Corporations'' in this requirement to mean ``Native Corporations'' as 
that term is defined under the Alaska Native Claims Settlement Act 
(ANCSA) of 1971. Congress created regional, village, and urban 
corporations to manage the lands, funds, and other assets conveyed to 
Alaska Natives by ANCSA. There are 13 regional corporations and over 
200 village corporations in Alaska. The village corporations generally 
represent shareholders in villages associated with the 229 federally 
recognized tribes in Alaska. Most Alaska Native Corporation 
shareholders also are members of a federally recognized tribe in 
Alaska.
    03. The Department will implement the requirement to consult with 
Alaska Native Corporations in a manner as close as possible to 
consultations with federally recognized tribes in Alaska, while 
recognizing the important differences between sovereign tribal 
governments and the federal trust responsibility to those tribal 
governments and corporations obligated to maximize financial returns to 
shareholders. Alaska Native Corporations were established to operate as 
for-profit enterprises, and may not necessarily represent the same 
perspective or interests as the tribes. Consultation and coordination 
with the corporations will follow the same process as described in this 
Policy for tribes, with the following exceptions:
    a. Consultations with Alaska Native Corporations will occur on a 
``government-to-corporation'' basis, rather than ``government-to-
government'' basis to reflect the distinction between sovereign 
governments and corporate entities.
    b. Government-to-corporations consultations will occur with 
appropriate adjustments given the unique status, structure, and 
interests of Alaska Native Corporations.

Section 9. Implementation

    01. The Tribal Consultation Official, located in OLIA within the 
Office of the Secretary, is responsible for ensuring implementation of 
this Policy. This responsibility may be delegated as appropriate. This 
Policy does not alter or affect any existing duty or authority of any 
individual operating unit.
    02. This Policy is not intended to, and does not, grant, expand, 
create or diminish any legally enforceable rights, benefits, or trust 
responsibilities, substantive or procedural, not otherwise granted or 
created under existing law. Nor shall this Policy be construed to 
alter, amend, repeal, interpret, or modify tribal sovereignty, any 
treaty rights of any Indian tribes, or to preempt, modify, or limit the 
exercise of any such rights.
    03. This Policy is intended to improve the Department's management 
of its relations and cooperative activities with Indian tribes. The 
Department and operating units have 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.
    04. This Policy shall be updated as necessary.

Section 10. Effective Date

    01. This Policy is effective beginning with the date of this 
memorandum and will remain in effect until it is amended, superseded by 
a Departmental Administrative Order, or revoked.

    Dated: May 21, 2013.
Rebecca M. Blank,
Acting Secretary of Commerce.
[FR Doc. 2013-13052 Filed 6-3-13; 8:45 am]
BILLING CODE 3510-17-P