Tribal Government To Government Consultation Policy: Solicitation of Public Comment, 18858-18862 [2015-08068]

Agencies

• DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Federal Register Volume 80, Number 67 (Wednesday, April 8, 2015)]
[Notices]
[Pages 18858-18862]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-08068]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-5651-N-02]


Tribal Government To Government Consultation Policy: Solicitation 
of Public Comment

AGENCY: Office of the Secretary, HUD.

ACTION: Notice.

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SUMMARY: Consistent with Executive Order 13175, ``Consultation with 
Indian Tribal Governments,'' this notice requests public comment on 
HUD's tribal government-to-government consultation policy. The purpose 
of this tribal consultation policy is to enhance communication and 
coordination between HUD and federally recognized Indian tribes, and to 
outline guiding principles and procedures under which all HUD employees 
are to operate with regard to federally recognized Indian or Alaska 
Native tribes.

DATES: Comment Due Date: June 8, 2015.

ADDRESSES: Interested persons are invited to submit comments regarding 
this document to the Regulations Division, Office of General Counsel,

[[Page 18859]]

Department of Housing and Urban Development, 451 7th Street SW., Room 
10276, Washington, DC 20410-0500. Communications must refer to the 
docket number and title above. There are two methods for submitting 
public comments. All submissions must refer to the above docket number 
and title.
    1. Submission of Comments by Mail. Comments may be submitted by 
mail to the Regulations Division, Office of General Counsel, Department 
of Housing and Urban Development, 451 7th Street SW., Room 10276, 
Washington, DC 20410-0500.
    2. Electronic Submission of Comments. Interested persons may submit 
comments electronically through the Federal eRulemaking Portal at 
www.regulations.gov. HUD strongly encourages commenters to submit 
comments electronically. Electronic submission of comments allows the 
commenter maximum time to prepare and submit a comment, ensures timely 
receipt by HUD, and enables HUD to make them immediately available to 
the public. Comments submitted electronically through the 
www.regulations.gov Web site can be viewed by other commenters and 
interested members of the public. Commenters should follow the 
instructions provided on that site to submit comments electronically.

    Note: To receive consideration as public comments, comments must 
be submitted through one of the two methods specified above. Again, 
all submissions must refer to the docket number and title of the 
document.

    No Facsimile Comments. Facsimile comments are not acceptable.
    Public Inspection of Public Comments. All properly submitted 
comments and communications submitted to HUD will be available for 
public inspection and copying between 8 a.m. and 5 p.m., weekdays, at 
the above address. Due to security measures at the HUD Headquarters 
building, an appointment to review the public comments must be 
scheduled in advance by calling the Regulations Division at 202-708-
3055 (this is not a toll-free number). Individuals with speech or 
hearing impairments may access this number via TTY by calling the toll-
free Federal Relay Service at 800-877-8339. Copies of all comments 
submitted are available for inspection and downloading at 
www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Rodger Boyd, Deputy Assistant 
Secretary for Native American Programs, Office of Public and Indian 
Housing, Department of Housing and Urban Development, 451 7th Street, 
SW., Room 4126, Washington, DC 20410, telephone number 202-401-7914 
(this is not a toll-free number). Hearing- or speech-impaired 
individuals may access this number via TTY by calling the toll-free 
Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION: Executive Order 13175 (65 FR 67249, 
published November 9, 2000) recognizes the right of Indian tribes to 
self-government and supports tribal sovereignty and self-determination. 
Among other things, it requires that agencies have an accountable 
process to ensure meaningful and timely input by tribal officials in 
developing policies that have tribal implications. On November 5, 2009, 
President Obama reaffirmed the government-to-government relationship 
between the Federal Government and Indian tribal governments in a White 
House memorandum that acknowledges that Indian tribes exercise inherent 
sovereign powers over their members and territory. The November 5, 
2009, 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, Indian tribal treaty and other rights. Today's notice, which 
requests public comment, supports these Presidential directives and 
builds upon and expands the principles expressed in the Department's 
previous ``Tribal Government-to-Government Consultation Policy,'' (66 
FR 49784, September 28, 2001).

I. Introduction

    A. The United States Government has a unique relationship with 
American Indian governments as set forth in the Constitution of the 
United States, treaties, statutes, judicial decisions, and Executive 
orders and memoranda.
    B. On April 29, 1994, a Presidential memorandum was issued 
reaffirming the Federal Government's commitment to operate within a 
government-to-government relationship with federally recognized 
American Indian and Alaska Native tribes, and to advance self-
governance for such tribes.\1\ The Presidential memorandum directs each 
executive department and agency, to the greatest extent practicable and 
to the extent permitted by law, to consult with tribal governments 
prior to taking actions that have substantial direct effects on 
federally recognized tribal governments. In order to ensure that the 
rights of sovereign tribal governments are fully respected, all such 
consultations are to be open and candid so that tribal governments may 
evaluate for themselves the potential impact of relevant proposals.
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    \1\ See https://www.gpo.gov/fdsys/pkg/FR-1994-05-04/html/94-10877.htm.
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    On May 14, 1998, Executive Order 13084, ``Consultation and 
Coordination with Indian Tribal Governments'' was issued.\2\ This 
executive order was revoked and superseded on November 6, 2000, by 
Executive Order 13175,\3\ which is identically titled to Executive 
Order 13084 and which sets forth guidelines for all federal agencies 
to: (1) Establish regular and meaningful consultation and collaboration 
with Indian tribal officials in the development of Federal policies 
that have tribal implications, (2) strengthen the United States 
government-to-government relationships with Indian tribes, and (3) 
reduce the imposition of unfunded mandates upon Indian tribes.
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    \2\ See https://www.gpo.gov/fdsys/pkg/FR-1998-05-19/pdf/98-13553.pdf.
    \3\ See https://www.gpo.gov/fdsys/pkg/FR-2000-11-09/pdf/00-29003.pdf.
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    On November 5, 2009,\4\ President Obama issued a memorandum to the 
heads of all executive departments and agencies that reaffirmed that 
the United States has a unique legal and political relationship with 
Indian tribal governments, established through and confirmed by the 
Constitution of the United States, treaties, statutes, Executive 
orders, and judicial decisions. The memorandum stated that 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 memorandum stated that the 
Administration is committed to regular and meaningful consultation and 
collaboration with tribal officials in policy decisions that have 
tribal implications, and directed, among other things, as an initial 
step, complete and consistent implementation of Executive Order 13175.
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    \4\ See https://www.whitehouse.gov/the-press-office/memorandum-tribal-consultation-signed-president.
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    C. In recognition of the importance of consultation and consistent 
with Executive Order 13175, and the Presidential memorandum of November 
5, 2009, HUD requests public comment on this consultation policy 
statement. In January 2010, HUD held a series of HUD-tribal regional 
consultations to

[[Page 18860]]

discuss HUD's existing tribal consultation policy. Each consultation 
session was hosted by one of the six Office of Native American Programs 
(ONAP) Area Office Administrators. Prior to all meetings, ONAP Area 
Office sent out invitation letters to all tribes and tribally 
designated housing entities to inform them of the meetings. The 
invitation package included the President's memorandum, Executive Order 
13175, HUD's current tribal consultation policy, and a list of 
questions designed to prompt discussion and focus on the issues. HUD's 
Deputy Assistant Secretary for ONAP attended a Northwest ONAP and 
Eastern/Woodlands ONAP session, and HUD's Assistant Secretary for 
Public and Indian Housing participated in the initial session held in 
Suquamish, Washington. Participants at each of the consultation 
sessions were informed that an electronic mailbox had been established 
to receive their comments and that HUD's CODETALK Web site would be 
used to display all comments received.
    The comments from participants who attended these consultations, as 
well as all comments received by other means, were consolidated by 
ONAP. HUD carefully reviewed all comments received from all sources, 
responded, and made changes to the existing HUD consultation policy 
based on these comments, as appropriate.
    HUD conducted a second round of tribal consultation by sending the 
revised draft policy to all tribal leaders for their comment. On 
November 12, 2014, the Department provided all tribal leaders a draft 
version of HUD's revised tribal government-to-government consultation 
policy and requested their feedback and opinion on the draft. In 
response to the Department's November 12, 2014, request for comments, 
the Department received three comments from Indian tribes and a 
national organization that represents the housing interests of Native 
Americans. The Department appreciates and carefully considered the 
comments submitted. This notice incorporates several of the comments 
and recommendations provided.
    This consultation policy applies to all HUD programs and policies 
that have substantial direct effects on federally recognized Indian 
tribal governments. In formulating or implementing such policies, HUD 
will be guided by the fundamental principles set forth in section 2 of 
Executive Order 13175, to the extent applicable to HUD programs. 
Section 2 of the Executive Order provides as follows:

    Sec. 2. Fundamental Principles. In formulating or implementing 
policies that have tribal implications, agencies shall be guided by 
the following fundamental principles:
    (a) The United States has a unique legal relationship with 
Indian tribal governments as set forth in the Constitution of the 
United States, treaties, statutes, Executive Orders, and court 
decisions. Since the formation of the Union, the United States has 
recognized Indian tribes as domestic dependent nations under its 
protection. The Federal Government has enacted numerous statutes and 
promulgated numerous regulations that establish and define a trust 
relationship with Indian tribes.
    (b) Our Nation, under the law of the United States, in 
accordance with treaties, statutes, Executive Orders, and judicial 
decisions, has recognized the right of Indian tribes to self-
government. As domestic dependent nations, Indian tribes exercise 
inherent sovereign powers over their members and territory. 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.
    (c) The United States recognizes the right of Indian tribes to 
self-government and supports tribal sovereignty and self-
determination.

II. Definitions

    A. ``Consultation'' means the direct and interactive (i.e., 
collaborative) involvement of tribes in the development of regulatory 
policies on matters that have tribal implications.
    Consultation is the proactive, affirmative process of (1) 
identifying and seeking input from appropriate Native American 
governing bodies, community groups and individuals; and (2) considering 
their interest as a necessary and integral part of HUD's decision-
making process.
    This definition adds to statutorily mandated notification 
procedures. The goal of notification is to provide an opportunity for 
comment; however, with consultation procedures, the burden is on the 
federal agency to show that it has made a good faith effort to elicit 
feedback.
    B. ``Exigent situation'' means an unforeseen combination of 
circumstances or the resulting state that calls for immediate action in 
order to preserve tribal resources, rights, interests, or Federal 
funding.
    C. ``Indian tribe'' means an Indian or Alaska Native tribe, band, 
nation, pueblo, village, or community that the Secretary of the 
Interior acknowledges to exist as an Indian tribe pursuant to the 
Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.
    D. ``Policies that have tribal implications'' refers to 
regulations, legislative proposals, and other policy statements or 
actions that have substantial direct effects on one or more Indian 
tribe, or on the distribution of power and responsibilities between the 
Federal Government and Indian tribes.
    E. ``To the Extent Practicable and Permitted by Law'' refers to 
situations where the opportunity for consultation is limited because of 
constraints of time, budget, legal authority, etc.
    F. ``Tribal officials'' means elected or duly appointed officials 
of Indian tribal governments or authorized intertribal organizations.

III. Principles

    A. HUD respects tribal sovereignty and acknowledges the unique 
relationship between the Federal Government and Indian tribes.
    B. HUD recognizes and commits to a government-to-government 
relationship with federally recognized tribes.
    C. HUD recognizes tribes as the appropriate non-Federal parties for 
making policy decisions and managing programs for their constituents.
    D. HUD shall take appropriate steps to remove existing legal and 
programmatic impediments to working directly and effectively with 
tribes on programs administered by HUD.
    E. HUD shall encourage states and local governments to work with 
and cooperate with tribes to resolve problems of mutual concern.
    F. HUD shall work with other Federal departments and agencies to 
enlist their interest and support in cooperative efforts to assist 
tribes to accomplish their goals within the context of all HUD 
programs.
    G. HUD shall be guided by these policy principles in its planning 
and management activities, including its budget, operating guidance, 
legislative initiatives, management accountability system, and ongoing 
policy and regulation development processes for all programs effecting 
tribes.

IV. Tribal Consultation Process

    A. Applicability. HUD will apply this tribal consultation policy to 
all proposed policies that have tribal implications, to the greatest 
extent practicable and permitted by law. Based on a government-to-
government relationship and in recognition of the uniqueness of each 
tribe, the primary focus for consultation activities is with individual 
tribes. ONAP, within the Office of Public and Indian Housing, may 
serve, under the direction of the Secretary, as the lead HUD office for 
the implementation of this policy. Internal HUD policies and procedures 
are excluded from this policy.

[[Page 18861]]

    B. Methods of Communication. The methods of communication used will 
be determined by the significance of the consultation matter, the need 
to act quickly, and other relevant factors. Consultation can be 
accomplished through various methods of communication. While modern 
technology and group events should be utilized whenever possible to 
conserve funds and respect time constraints of all those involved, 
generally these methods of communication should not serve in the place 
of formal, face-to-face discussion.
    C. Consultation with Tribes When Drafting Policies That Have Tribal 
Implications. To the extent practicable and permitted by law, HUD shall 
make reasonable efforts to consult with tribal officials concerning 
proposed policies that have tribal implications before such policies 
are drafted, in order to facilitate greater tribal participation in 
development of the proposed policies. Such consultation shall include 
on the HUD Web site a notice of HUD's plans to develop such policies 
and an invitation for tribal officials to comment on items that should 
be included in such policies. HUD shall provide a specific deadline for 
comments, which shall not be less than 30 days from the date of the 
notice. This timeline may be compressed in exigent situations.
    D. Notice of Proposed Policies That Have Tribal Implications. To 
the extent practicable and permitted by law, after proposed policies 
that have tribal implications have been drafted, HUD will notify the 
tribes of such proposed policies, and will include a copy of the 
proposed policies with the notice. The notice shall designate the lead 
office in HUD Headquarters. The lead office in HUD Headquarters shall 
be responsible for such notification, unless it has delegated such 
responsibility to another office. HUD shall provide a specific deadline 
for tribal comments, which shall not be less than 60 days from the date 
of the notice. This timeline may be compressed in exigent situations. 
Nothing herein shall affect the deadlines established by Federal law or 
regulation with regard to comments in the course of the formal agency 
rulemaking process for the promulgation of federal regulations.
    E. Tribal Response. Tribal officials may provide recommendations 
concerning proposed policies that have or that may have tribal 
implications to the lead office in HUD Headquarters no later than the 
deadline established in Part IV.D of this consultation policy. Such 
recommendations may be provided orally during meetings with HUD 
representatives or by written documents submitted to HUD 
representatives.
    F. Meetings. Tribes may facilitate regional meetings with HUD 
representatives to identify and address issues relevant to HUD policies 
that have tribal implications. HUD will convene at least one national 
tribal consultation meeting each year. To reduce costs and conserve 
resources to the greatest extent feasible, tribes and HUD will 
coordinate consultation meetings with other regularly scheduled 
meetings, such as multiagency and association meetings.
    G. Reporting Mechanisms. In all cases when a tribe or tribes have 
been involved in the consultation process, HUD will maintain an 
Internet Web site or Web page to address the informational needs of 
tribes and tribal leaders. Such Web site or Web page will include 
relevant HUD documents and other relevant documents, including comments 
submitted by other tribes. HUD shall notify the tribes of the 
finalization of proposed policies that have tribal implications, and 
provide such policies to the tribes.
    H. Tribal Advisory Organizations, Committees, and Workgroups. HUD 
will work with tribal organizations, committees, or workgroups, when 
appropriate, to assist in facilitating involvement of tribes in 
decisionmaking and policy development. The work with tribal 
organizations, committees, and workgroups will be in coordination with, 
and not to the exclusion of, consultation with individual tribes on a 
government-to-government basis.
    I. Joint Federal/Tribal Workgroups.
    1. A workgroup may be established by HUD and tribes to address 
specific issues or to draft specific policies that have tribal 
implications. Tribal representation should be consistent with the 
established standard of geographically diverse small, medium, and large 
tribes, whenever possible.
    2. Alternate workgroup members may be appointed by written 
notification signed by the member. Such alternates shall possess the 
authority of the workgroup member to make decisions on their behalf if 
such authority is so delegated to them in writing.
    3. The workgroup shall be chaired by at least one tribal workgroup 
member, selected by the tribal workgroup members, and one HUD 
representative.
    4. The workgroup may conduct its activities through various methods 
of communication, including in-person meetings, conference calls, and 
internet-based meeting platforms. Workgroup members may be accompanied 
by other individuals for advice as the members deem necessary.
    5. Whenever possible, workgroup products should be circulated to 
tribal leaders for review and comment.
    6. All final recommendations will be given serious consideration by 
HUD.

V. Tribal Standing Committee

    On issues relating to tribal self-governance, tribal trust 
resources, or treaty and other rights, HUD will explore and, where 
appropriate, use consensual mechanisms for developing regulations, 
including negotiated rulemaking. HUD may establish a standing 
committee, consisting of representatives of tribal governments, to 
consult on the appropriateness of using negotiated rulemaking 
procedures on particular matters. The procedures governing such a 
standing committee would be established through the mutual agreement of 
HUD and tribal governments.

VI. Unfunded Mandates

    To the extent practicable and permitted by law, HUD shall not 
promulgate any regulation that is not required by statute, that has 
tribal implications, and that imposes substantial direct compliance 
costs on such communities, unless:
    A. Funds necessary to pay the direct costs incurred by the Indian 
tribal government in complying with the regulation are provided by the 
Federal Government; or
    B. HUD, prior to the formal promulgation of the regulation:
    1. Consulted with tribal officials early in the process of 
developing the proposed regulation;
    2. 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 (OMB)a description 
of the extent of HUD's prior consultation with representatives of 
affected Indian tribal governments, a summary of the nature of their 
concerns and the agency's position supporting the need to issue the 
regulation; and
    3. Makes available to the Director of OMB any written 
communications submitted to HUD by such Indian tribal governments.

VII. Increasing Flexibility for Indian Tribal Waivers

    HUD shall review the processes under which Indian tribal 
governments apply for waivers of statutory and regulatory requirements 
and take appropriate steps to streamline those processes.
    A. HUD shall, to the extent practicable and permitted by law, 
consider any application by an Indian tribal government for a waiver of

[[Page 18862]]

statutory or regulatory requirements in connection with any program 
administered by HUD 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 consistent with the applicable 
Federal policy objectives and is otherwise appropriate.
    B. HUD shall, to the extent practicable and permitted by law, 
render a decision upon a complete application for a waiver within 90 
days of receipt of such application by HUD. HUD shall 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.
    C. This section applies only to statutory or regulatory 
requirements that are discretionary and subject to waiver by HUD. 
Applicable civil rights statutes and regulations are not subject to 
waiver.

VIII. Applicability of the Federal Advisory Committee Act

    The provisions of the Federal Advisory Committee Act (5 U.S.C. 
App.) (FACA) do not apply to consultations undertaken pursuant to this 
policy. In accordance with section 204(b) of the Unfunded Mandates 
Reform Act of 1995 (Pub. L. 104-4, approved March 22, 1995), FACA is 
not applicable to consultations between the Federal Government and 
elected officers of Indian tribal governments (or their designated 
employees with authority to act on their behalf). As OMB 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 the exemption should be 
construed broadly to include any 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)).

IX. General Provisions

    This document has been adopted for the purpose of enhancing 
government-to-government relationships, communications, and mutual 
cooperation between the U.S. Department of Housing and Urban 
Development and tribes and is not intended to, and does not, create any 
right to administrative or judicial review, or any other right or 
benefit or trust responsibility, substantive or procedural, enforceable 
by a party against the United States, its agencies or 
instrumentalities, its officers or employees, or any other persons. The 
provisions of the FACA are not applicable to this policy. This document 
is effective on the date it is signed.

    Dated: March 30, 2015.
 Juli[aacute]n Castro,
Secretary.
[FR Doc. 2015-08068 Filed 4-7-15; 8:45 am]
 BILLING CODE 4210-67-P