Final NOAA Procedures for Government-to-Government Consultation With Federally Recognized Indian Tribes and Alaska Native Corporations, 68819-68821 [2013-27415]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 78, Number 221 (Friday, November 15, 2013)]
[Notices]
[Pages 68819-68821]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-27415]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XC726


Final NOAA Procedures for Government-to-Government Consultation 
With Federally Recognized Indian Tribes and Alaska Native Corporations

AGENCY: National Oceanic and Atmospheric Administration (NOAA), 
Commerce.

ACTION: Notice of Final Handbook.

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SUMMARY: In compliance with Executive Order (E.O.) 13175, 
``Consultation and Coordination with Indian Tribal Governments'' 
(November 6, 2000), the Department of Commerce (Department) adopted a 
Tribal Consultation and Coordination policy statement. This policy 
establishes the manner in which NOAA works with Federally recognized 
Indian Tribes when developing NOAA policies that have Tribal 
implications. This Handbook is intended to assist NOAA, including its 
regional and field staff, in conducting effective government-to-
government consultations and fulfill NOAA's obligations under E.O. 
13175 and Department Administrative Order 218-8 on Consultation and 
Coordination with Indian Tribal Governments, and the Department of 
Commerce Tribal Consultation and Coordination Policy.

FOR FURTHER INFORMATION CONTACT: Requests for additional information or 
an electronic copy of the final Handbook should be directed to Linda 
Belton, NOAA Tribal Liaison, NOAA Office of Legislative and 
Intergovernmental Affairs, U.S. Department of Commerce, NOAA, 1401 
Constitution Ave. NW., Washington, DC 20233, telephone (202) 482-5447, 
email at Linda.Belton@noaa.gov.

SUPPLEMENTARY INFORMATION:

Background

    E.O. 13175 states that it is the policy of the United States to 
ensure ``regular and meaningful consultation and collaboration with 
tribal officials in the development of Federal policies that have 
tribal implications . . . .'' In addition, E.O. 13175 affirms the 
unique legal and political relationship between the United States and 
Indian Tribal governments as set forth in the Constitution of the 
United States, treaties, statutes, executive orders and judicial 
decisions; and commits the United States to work with Indian Tribes on 
a government-to-government basis to address issues concerning Tribal 
trust resources and Indian Tribal treaty rights. E.O. 13175 also 
recognizes the right of Indian Tribes to self-government and 
acknowledges that Indian Tribes exercise inherent sovereign powers over 
their members and territory. On November 5, 2009, President Barack 
Obama issued a Presidential memorandum charging Federal agencies with 
strengthening the government-to-government relationship between the 
United States and Indian Tribes and engaging in regular and meaningful 
consultation and collaboration with Tribal officials in the development 
of Federal policies that have Tribal implications. To achieve these 
objectives, the Presidential memorandum recommits the Federal agencies 
to the full implementation of E.O. 13175.
    On May 21, 2013, Acting Secretary Rebecca Blank issued a new Tribal 
Consultation and Coordination Policy for the Department of Commerce 
(DOC Policy) https://www.gpo.gov/fdsys/pkg/FR-2013-06-04/pdf/2013-13052.pdf. The DOC Policy describes the manner in which the Department 
works with Tribes on a government-to-government basis when formulating 
or implementing policies that have Tribal implications. The DOC Policy 
outlines consultation procedures for all operating units within the 
Department of Commerce.
    This final Handbook of NOAA Procedures for Government-to-Government 
Consultation with Federally Recognized Indian Tribes and Alaska Native 
Corporations (Handbook) https://www.legislative.noaa.gov/tribalrelations.html responds to President Obama's November 5, 2009, 
memorandum and the principles expressed in E.O. 13175 and the DOC 
policy. The Handbook is intended only for NOAA internal management 
purposes and does not create any right or benefit, substantive or 
procedural, enforceable against the United States, its agencies, 
entities, or instrumentalities, its officers or employees, or any other 
person.

Summary of Comments Received in Response to the Draft Handbook

    On June 24, 2013, NOAA published a notice and request for comments 
on a draft ``NOAA Procedures for Government-to-Government Consultation 
with Federally Recognized Indian Tribes'' in the Federal Register (78 
FR 37795). In response, NOAA received letters from 10 different 
entities, with approximately 25 unique comments. A summary of comments 
received and NOAA's responses to those comments are presented below. 
The notice also includes comments received from two national webinars 
held on July 17, 2013, and August 13, 2013.

General Comments and Recommendations

    Comment 1: The Handbook should strengthen consultation by requiring 
a Tribal Liaison in each Line Office and Regional Office.
    Response: NOAA will have Tribal Liaisons in all Line Offices. NOAA 
recognizes that requiring a Tribal Liaison in each region is ideal. 
However, funding is a significant constraint on NOAA's ability to 
commit to this level of staffing. NOAA intends for each region to 
determine its capacity to provide a Tribal Liaison in accordance with 
its budget priorities. NOAA does not adopt this recommendation for the 
reasons identified, but encourages Regional Offices to establish such a 
position if warranted.
    Comment 2: Tribes should be involved in training NOAA Employees.
    Response: NOAA encourages the development of joint training 
opportunities with Tribes to improve communication and efficiency in 
the conduct of government-to-government consultations. NOAA will seek 
to send staff to attend to training to which a Tribe extends an 
invitation to the extent practicable given existing agency workload 
responsibilities and resource limitations. In addition, NOAA will make 
every effort to invite Tribal participation in the development and 
presentation of in-house training opportunities for NOAA employees. 
Such in-house training may include: the history of American Indians and 
Alaska Natives or specific Tribes, cultural protocols, Tribal issues, 
Tribal governmental structures, and the legal context of Tribal rights 
and resources. Please send any information regarding training 
opportunities or related inquiries to Linda Belton, NOAA Tribal 
Liaison, at Linda.Belton@noaa.gov.
    Comment 3: Consultations should begin at the regional level and 
then move to NOAA Headquarters if necessary.
    Response: NOAA agrees. The intent of the Handbook is to encourage 
and support consultations at a Regional or Line Office level. This will 
allow the NOAA experts on the ground to provide

[[Page 68820]]

information and allow regional officials to participate in the 
consultation. Generally, working relationships between NOAA and the 
Tribes are developed at the Regional or Line Office level. A 
consultation may be elevated to Headquarters under unusual 
circumstances, such as a consultation affecting a nationwide NOAA 
policy.
    Comment 4: The Handbook should emphasize the importance of ongoing 
communication and information sharing throughout the document.
    Response: NOAA agrees and has emphasized the importance of ongoing 
communications throughout the document.
    Comment 5: NOAA should maintain the requirements for communication 
and information before a consultation.
    Response: NOAA agrees to communicate and share information before a 
consultation to the greatest extent reasonable. The current language in 
the Handbook is consistent with this approach.
    Comment 6: NOAA should create an accountability or elevation 
mechanism for ensuring the requirements of the Handbook are followed by 
the Regional and Line Offices.
    Response: NOAA anticipates that the Handbook will provide helpful 
guidance and assist agency personnel in fulfilling their 
responsibilities under E.O. 13175. Should a Tribe feel that a NOAA Line 
Office or Regional Office has failed to comply with the requirements of 
E.O. 13175, it should first contact the responsible Line Office or 
Regional Office official to make its views clear. The NOAA Tribal 
Liaisons within each Line Office will periodically assess 
implementation of the Handbook and share best practices. NOAA does not 
adopt this recommendation because the Handbook already contains 
sufficient mechanisms for the elevation of a consultation to 
Headquarters.
    Comment 7: NOAA should identify specific criteria for determining 
which agency actions are impacting Tribes and require consultation.
    Response: NOAA does not adopt this recommendation. E.O. 13175 
requires NOAA to maintain an accountable process ensuring meaningful 
and timely input by Tribal officials in the development of NOAA 
policies that have Tribal implications. ``Policies that have tribal 
implications'' are defined in section 1 of E.O. 13175. This Handbook 
provides guidance to Regional Offices and Line Offices in the 
identification of those policies with Tribal implications. Adding 
specific criteria to the definition provided in E.O. 13175 could unduly 
limit categories of activities and undermine the Handbook's utility. 
NOAA believes it most prudent to allow the Line Offices, Regions, and 
Tribes to make this determination on a case-by-case basis using the 
Handbook as a guide. For certain issues (e.g., Endangered Species Act) 
consultation protocols already exist (e.g., Secretarial Order for 
American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, 
and the Endangered Species Act (SO)) and should already be in use by 
Line and Regional Offices.
    Comment 8: NOAA should work with Tribes and Regional Fishery 
Management Councils to determine how to build meaningful and effective 
consultation into the Federal fishery management process.
    Response: 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 
Fishery Conservation and Management Act (MSA) 16 U.S.C. 1800 et seq. 
Whenever practicable l, Councils should initiate dialogue with Tribes 
early in the development of fishery management measures. This early 
communication will provide an opportunity to identify potential impacts 
on Tribes and Tribal trust resources at the earliest practicable time. 
Pursuant to E.O. 13175, it is NOAA's--and not the Councils'--
responsibility to consult with Federally recognized Indian Tribes; the 
Councils' early engagement with Tribes will facilitate and enhance 
NOAA's rulemaking processes and development of fishery management 
measures.
    Comment 9: NOAA should use regional Tribal organizations in 
addition to individual Tribal governments to promote efficient 
consultations.
    Response: A Tribe may invite a Tribal organization to participate 
in a discussion with a Regional or Line Office or even a government-to-
government consultation; however, meetings with Tribal organizations 
are not a substitute for government-to-government consultation with a 
Federally recognized Tribe (unless the Tribe has specifically delegated 
authority to represent the individual Tribal government's interest in a 
particular consultation). Tribal organizations can be effective 
conduits of information, provide opportunities for informal meetings, 
and assist the agency in identifying Tribes that may be affected by 
agency actions.
    Comment 10: In Section V, the phrase ``Tribal members'' should be 
changed to ``Tribal leaders'' or ``Tribally designated officials.''
    Response: NOAA has incorporated this suggested change in Section V 
part C to read ``Tribally designated officials.''
    Comment 11: In Section VI, NOAA should add ``ceded lands'' to the 
examples.
    Response: NOAA believes any action with Tribal implications related 
to ``ceded lands'' is addressed by the example in VI. A. ``policy or 
action that affects Tribes, tribal governments, or a Tribe's 
traditional way of life.''
    Comment 12: Section VII has two part ``B''s.
    Response: NOAA has made the change so that Section VII has only one 
part ``B.''
    Comment 13: The Handbook should refer to Section 7 consultations 
under the Endangered Species Act which can result in new Federal 
policies.
    Response: There are many types of actions and consultative 
activities that may result in new Federal policies. The examples noted 
in the Handbook are not intended to be exhaustive of all of the various 
actions that may require consultation. In addition, with respect to 
implementation of the Endangered Species Act, NOAA views the 
Secretarial Order 3206 as controlling internal agency procedures in the 
first instance, and government-to-government consultation as a 
component of the Secretarial Order procedures.
    Comment 14: Two commenters suggested changes in the title of the 
Handbook. One suggested ``NOAA Procedures for Government-to-Government 
Consultation with Federally Recognized Tribes.'' Another suggested 
``NOAA Procedures for Consultation with Federally Recognized Indian 
Tribes and Alaska Native Corporations''.
    Response: NOAA has changed the title to ``NOAA Procedures for 
Consultation with Federally Recognized Indian Tribes and Alaska Native 
Corporations,'' which more accurately describes the intent and 
obligations outlined in this Handbook.
    Comment 15: NOAA should consider subsistence schedules in 
determining the preparation time before government-to-government 
consultation begins.
    Response: NOAA has incorporated this suggested change in Section V 
part ``B.''
    Comment 16: NOAA should include ``on their lands'' after ``one or 
more Indian Tribes.'' in the definition of ``Policies with Tribal 
Implications.''
    Response: E.O. 13175 governs the implementation of the Handbook and 
has defined the term ``policies with tribal implications.'' It is not 
within the

[[Page 68821]]

purview of the Handbook to alter the definition in the Executive Order.
    Comment 17: The Handbook should include a requirement that all 
Tribes are contacted by at least two different means prior to assuming 
the Tribe has no interest in a proposed action.
    Response: NOAA does not adopt this recommendation. A Tribe may work 
with a Region or Line Office to establish a consultation protocol to 
address its preferred means of contact.
    Comment 18: NOAA should have one integrated consultation process, 
not one for Tribes and one for Alaska Native Corporations.
    Response: The unique legal and political relationship between the 
United States and Indian Tribal governments identified in E.O. 13175 
and President Obama's November 5, 2009, Memorandum and established in 
treaties, statutes, executive orders, and judicial decisions does not 
apply to Alaska Native Corporations, which lack any kind of sovereign 
political status and are not governmental entities. Rather, they are 
corporate form entities created by the Federal statute. The 
consultations with Alaska Native Corporations should be and, as 
described in the Handbook, are different from those for Federally 
recognized Indian Tribes.
    In addition, the Handbook allows the Alaska Regional Office and/or 
Line Offices to develop consultation protocols with Alaska Native 
Corporations when the need for any specific procedures to identify and 
address where the interests of an Alaska Native Corporation and 
Federally recognized Indian tribe may conflict or coincide. The essence 
of the trust relationship between NOAA and Federally recognized Indian 
tribes is NOAA's obligation to ensure the interests of tribes in 
government-to-government consultation are fully considered, whether by 
providing separate consultations or joint consultations with an Alaska 
Native Corporation.
    Comment 19: NOAA should provide specific guidance on how 
disagreements between Alaska Native Corporations and Federally 
recognized Tribal governments will be resolved during a dual 
consultation process.
    Response: NOAA does not adopt this recommendation. As noted in 
response to comment 18 above, this Handbook allows the Alaska Regional 
Office and/or Line Offices to develop consultation protocols with 
Alaska Native Corporations or Indian Tribal governments, including 
joint protocols, to address the Tribal implications of proposed NOAA 
policies and actions. E.O. 13175 requires NOAA to strengthen the 
government-to-government relationship between the United States and 
Indian Tribes and engage in regular and meaningful consultation and 
collaboration with Tribal officials in the development of Federal 
policies that have Tribal implications. NOAA does not accept the 
recommendation that added weight should be given to an entity's views 
based on relative impact of a policy with Tribal implications. NOAA 
will consult with Alaska Native Corporations on a basis similar to that 
for Federally recognized tribes and reflecting the essential 
distinction between the sovereign governments and Alaska Native 
Corporations.
    Comment 20: NOAA should include additional background information 
regarding the unique history of Alaska Native Corporations and their 
obligations to Alaska Natives.
    Response: Section VII part E includes a history of Alaska Native 
Corporations and the Federal obligations to Alaska Natives. Therefore, 
additional information was not added to the Handbook.
    Comment 21: Establish a Web page containing links to all DOC agency 
actions.
    Response: NOAA will continue to explore the practicality of 
developing such a Web page and will work with the DOC Senior Advisor on 
communications and consultations processes.
    Comment 22: The Handbook should clarify that Tribes need not use 
the Freedom of Information Act (FOIA) to obtain NOAA records relevant 
to a government-to-government consultation. In addition, NOAA should 
revise the Handbook to indicate that Tribal knowledge can be protected 
from FOIA requests.
    Response: NOAA has incorporated this suggested change in section VI 
part F subsection 4. Culturally Sensitive Information is addressed in 
the Handbook section VIII.C. It should be noted, however, that there 
are situations where NOAA is legally obligated to provide documents to 
the public in response to a FOIA request.
    Comment 23: NOAA should add a reference to the DOC Policy to the 
Handbook.
    Response: The DOC Policy is discussed in the introduction section 
of the Handbook.
    Comment 24: NOAA should add a statement to the Handbook making 
clear that NOAA cannot be represented by a private entity nor may 
government-to-government consultations be managed or facilitated by a 
private entity.
    Response: NOAA does not adopt this recommendation. The Handbook 
provides NOAA with the necessary flexibility to ensure its 
consultations are as effective as possible. To provide meaningful 
consultation and coordination, NOAA may need to engage a consultant or 
expert facilitator to assist with a consultation or to represent NOAA 
during a government-to-government consultation. However, at all times, 
an appropriate-level NOAA representative will be present to represent 
the agency.
    Comment 25: On the top of page 9 the terms ``Band, Nation, Pueblo, 
Village, and Community'' should be capitalized.
    Response: NOAA has incorporated this suggested change.
    Authority: Presidential Memorandum of April 29, 1994, ``Government-
to-Government Relations with Native American Tribal Governments'' (59 
FR No. 85, May 4, 1994); E.O. 13175 of November 6, 2000 ``Consultation 
and Coordination with Indian Tribal Governments'' (65 FR 67249, 
November 9, 2000); Presidential Memorandum of November 5, 2009, 
``Tribal Consultation'' (74 FR 57881, November 9, 2009); Department of 
Commerce Administrative Order 218-8 and Tribal Consultation and 
Coordination Policy for the U.S. Department of Commerce, 78 FR 3331 
(June 4, 2012).

    Dated: November 8, 2013.
Mark Schaefer,
NOAA Assistant Secretary for Conservation and Management.
[FR Doc. 2013-27415 Filed 11-14-13; 8:45 am]
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