Tribal Consultation Policy, 57434-57436 [2015-24150]

Agencies

• DEPARTMENT OF THE TREASURY

[Federal Register Volume 80, Number 184 (Wednesday, September 23, 2015)]
[Notices]
[Pages 57434-57436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-24150]


-----------------------------------------------------------------------

DEPARTMENT OF THE TREASURY


Tribal Consultation Policy

AGENCY: Department of the Treasury.

ACTION: Notice of Tribal Consultation Policy.

-----------------------------------------------------------------------

SUMMARY: This notice announces a policy outlining the guiding 
principles for all Treasury bureaus and offices engaging with Tribal 
Governments on matters with Tribal implications. The policy will be 
updated periodically and refined as needed to reflect ongoing 
engagement and collaboration with Tribal partners.

DATES: Effective date: September 23, 2015.

FOR FURTHER INFORMATION CONTACT: Elaine Buckberg, Department of the 
Treasury Deputy Assistant Secretary for Policy Coordination, Office of 
Economic Policy and Point of Contact for Tribal Consultation, at 202-
622-2200 or by email at TRIBAL.CONSULT@treasury.gov.

SUPPLEMENTARY INFORMATION: On December 3, 2014, the Department of the 
Treasury (Treasury) released an interim tribal consultation policy 
outlining the guiding principles for all Treasury bureaus and offices 
engaging with Tribal Governments on matters with Tribal Implications 
(``Tribal Consultation Policy; Notice of Interim Tribal Policy,'' 79 FR 
71816). In releasing the interim policy, Treasury solicited comments 
from tribes. While the policy was being reviewed and finalized, 
Treasury has operated under the interim consultation policy. In 
response, Treasury received over 25 comments from Indian tribal 
governments and tribal organizations. The written comments and other 
feedback received via ongoing tribal consultation were very helpful in 
developing Treasury's final tribal consultation policy. We appreciate 
the commenters' interest in working with Treasury to develop a 
consultation policy that satisfies the concerns of Indian tribal 
governments and their leaders while enabling Treasury to continue to 
develop and implement policy in a timely and efficient manner.
    The final policy includes a number of changes suggested in these 
comments, including the following:
     The policy no longer includes the phrase ``endeavor to 
consult,'' and now simply states that Treasury will consult with tribes 
on policy matters with tribal implications, under the procedures set 
forth in the policy.
     The final policy now provides for consultation with tribes 
on policy matters of ``general applicability that may have an impact on 
Indian Tribes or their members.''
     While a timely response to consultation requests has 
always been Treasury's goal, the final policy now formally requires the 
POCTC to acknowledge requests for consultation ``within a reasonable 
period.''
    While we incorporated a number of comments, we have retained the 
language of the interim policy with respect to consultation on actions 
to enforce requirements administered by the agency (Section III.A.). 
After further consideration, it remains our view that consultation on 
such matters would present a number of legal and practical challenges, 
and is not within the purview of Executive Order 13175. Our guidance on 
the General Welfare Exclusion, the Per Capita Act, minor trusts, and 
other important matters, shows that a robust tribal consultation 
process can address tribes' concerns about enforcement actions or 
penalties when it is appropriate to do so.
    The consultation policy will be updated periodically and refined as 
needed to reflect ongoing engagement and collaboration with Tribal 
partners.

[[Page 57435]]

Department of the Treasury Tribal Consultation Policy

    In furtherance of Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments,'' 65 FR 67249, issued by 
President Clinton on November 6, 2000, and the Presidential Memorandum 
for the Heads of Executive Departments and Agencies on Tribal 
Consultation, 74 FR 57881, signed by President Obama on November 5, 
2009, the U.S. Department of the Treasury (Treasury) establishes this 
Tribal Consultation Policy (Policy). The Policy outlines the guiding 
principles for all Treasury bureaus and offices engaging with Tribal 
Governments on matters with Tribal Implications.

I. Definitions

    A. ``Indian Tribe'' refers to 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.
    B. ``Tribal Government'' refers to the governing body of an Indian 
Tribe.
    C. ``Tribal Consultation'' (or ``Consultation'') involves the 
direct, timely, and interactive process of receiving input from Indian 
Tribes regarding proposed Treasury actions on Policies that have Tribal 
Implications.
    D. ``Policies that have Tribal Implications'' has the same meaning 
as used in Executive Order 13175, and refers to Treasury regulations, 
published guidance, or 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 the 
distribution of power and responsibilities between the Federal 
Government and Indian Tribes. It does not include policy matters of 
general applicability that may have an impact on Indian Tribes or their 
members; however, Treasury may consider Consultation on such matters 
under the circumstances described in Section III.A.
    E. ``Tribal Official'' refers to an elected, appointed, or 
designated official or employee of the governing body of an Indian 
Tribe, or an authorized inter-tribal organization.

II. Guiding Principles

    A. The United States recognizes the right of Indian Tribes to self-
government, and their inherent sovereign powers over their members and 
territories. The principle of consultation has its roots in the unique 
relationship between the federal government and the governments of 
Indian Tribes. This government-to-government relationship has a more 
than 200-year history, and is built on the foundation of the U.S. 
Constitution, treaties, legislation, executive action, and judicial 
rulings. Most recently, consultation was recognized in Executive Order 
13175 and in the November 5, 2009 Presidential Memorandum on Tribal 
Consultation.
    B. Treasury is committed to strengthening the government-to-
government relationships between the United States and Indian Tribes. 
Treasury recognizes that agency policies, programs, and services may 
affect Indian Tribes and is committed to consulting with Tribal 
Officials with regard to Treasury Policies that have Tribal 
Implications. This policy will complement, not supersede, any existing 
laws, rules, or regulations that guide existing consultation processes 
with Indian Tribes.
    C. Tribal Consultation will inform Treasury's development of 
regulations, published guidance, and other policy statements or 
actions, as it will enhance Treasury's understanding of the potential 
impacts of these activities on Indian Tribes.
    D. Treasury is committed to developing and issuing regulations and 
guidance in a timely manner.

III. Consultation Policy

A. Statement of Policy

    Treasury will consult with Tribal Officials prior to implementing 
Policies that have Tribal Implications. While not required by this 
Policy or EO 13175, when specifically requested, Treasury also may 
consult with Tribal Officials regarding policy matters of general 
applicability that may have an impact on Indian Tribes or their 
members. Treasury may also conduct listening sessions, meetings with 
individual Tribes, and informal discussions with Tribal Officials on 
matters of concern.
    The Tribal Consultation process should achieve the following core 
objectives: (1) Timely identification of policy matters that may 
warrant Tribal Consultation; (2) implementation of a process that is 
accessible and convenient to Tribal participants; and (3) development 
of meaningful, transparent, and accountable dialogue involving the 
appropriate participants.
    Consistent with EO 13175, Tribal Consultation is not required for 
actions to enforce requirements administered by the agency or actions 
to penalize violations of these requirements, even if the actions 
impact multiple Indian Tribes or members of multiple Indian Tribes. 
Actions that do not require Tribal Consultation include, but are not 
limited to:
     Administrative orders or practices involving penalties or 
equitable or similar relief to ameliorate the effects of prior 
violations or ensure compliance;
     Administrative orders that impose specialized requirements 
of limited duration;
     Audits, examinations, collections, litigation, or 
investigations; and
     Internal agency guidelines with respect to such matters.

B. Role of the POCTC

    The Treasury Point of Contact for Tribal Consultation (POCTC) is 
the Deputy Assistant Secretary for Policy Coordination in the Office of 
Economic Policy, or another official as designated by the Secretary or 
the Deputy Secretary. Treasury bureaus and policy offices, as well as 
the Office of the General Counsel (OGC) and the Executive Secretariat, 
may assist the POCTC in identifying policy matters that may require 
Tribal Consultation.
    The POCTC is available to assist Treasury bureaus and offices in 
the identification of policy matters that may be appropriate for Tribal 
Consultation. OGC is also available to assist in resolving internal 
questions related to Tribal Consultation matters.

C. Procedures for Evaluating and Initiating Consultation

    1. Treasury bureaus and offices should conduct Tribal Consultation 
with respect to Policies that have Tribal Implications, including early 
outreach to solicit comments from appropriate Tribal Officials who may 
be substantially affected by changes in Treasury regulations, published 
guidance, or other policies under consideration. Program staff and 
legal counsel should assist in the identification of policy matters 
that are likely to require Tribal Consultation. Generally, every effort 
should be made to provide sufficient notice prior to scheduling 
Consultation, and the POCTC or Treasury office or bureau conducting a 
Consultation should inform Tribal Officials as soon as practicable if 
exceptional circumstances, such as legislative or regulatory deadlines 
or other factors beyond Treasury's control, warrant an abbreviated 
period of advance notice.
    2. Tribal Consultation will be conducted by Treasury officials who 
are knowledgeable about the matters at hand and authorized to speak for 
the Department.

[[Page 57436]]

    3. A phased approach to Tribal Consultation may be appropriate in 
some matters, in which a plan for more extensive Tribal Consultation is 
identified and a commitment is made to consult within a specified time 
frame.
    4. Treasury bureaus and offices should notify the POCTC in advance 
of final actions on policies that may have Tribal Implications. The 
POCTC may advise on the potential need for Tribal Consultation with 
respect to such matters.
    5. With respect to regulations and published guidance on matters 
that have Tribal Implications, to the extent practicable and permitted 
by law, Treasury will consult with Tribal Officials early in the 
process of developing such regulations or guidance. These Consultations 
should seek comment on compliance costs as appropriate to the nature of 
the regulation or guidance under development. The timing, nature, 
detail, and extent of Consultation will depend on the regulation or 
guidance involved.

D. Methods of Consultation

    Tribal Consultation may include, but is not limited to, one or more 
of the following:
     Federal Register (FR) notices or other published guidance 
soliciting comments. Tribal Consultation opportunities may be announced 
in FR notices and other published guidance, including guidance 
published in the Internal Revenue Bulletin. FR notices and other 
published guidance requesting comments from Tribal Officials should be 
published as soon as practicable after Treasury determines that Tribal 
Consultation is appropriate. When practicable, a comment period of 60 
to 120 days will be provided, to allow sufficient time for Tribal 
Officials to consult with their members and legal counsel on any 
matters of concern.
     Meetings, written correspondence, conference calls, 
videoconferences, and workshops to encourage an exchange of views. 
Tribal Consultation may also be conducted through email, regular mail, 
telephone calls (including conference calls), video conferences, and 
in-person meetings or conferences, as schedules and resources permit. 
Where appropriate, intra- and inter-agency meetings also may be 
utilized to address areas of concern, conserve resources, and ensure 
comprehensive coverage of an issue. Disparities in time zones and 
travel costs, including those of Alaskan Native tribes, will be taken 
into account when scheduling phone calls and conferences.
     Targeted outreach. Treasury officials or the POCTC may 
also directly contact Tribal Officials to discuss Policies that have 
Tribal Implications. In addition, as resources and schedules permit, 
Treasury officials may attend conferences sponsored by inter-tribal 
organizations to participate in agency listening sessions and/or to 
present on issues of concern to Indian Tribes.

E. Process for Tribal Officials To Request Consultation

    Tribal Officials are encouraged to contact directly the appropriate 
Treasury officials, on a government-to-government basis, to seek 
Consultation on Policies that have Tribal Implications. Consultation 
requests may also be addressed to the POCTC, who may direct the matter 
to additional Treasury officials, as appropriate. Consultation requests 
to the POCTC will be acknowledged within a reasonable period. The POCTC 
also may be contacted with general concerns or requests for 
information, and may refer specific policy matters to the Treasury 
bureaus or offices with direct jurisdiction, as appropriate. The POCTC 
can be reached at Tribal.Consult@treasury.gov.

IV. Judicial Review

    This Policy is intended only to improve the internal management of 
Treasury, and is not intended to create any right, benefit, or trust 
responsibility, substantive or procedural, enforceable at law by a 
party against Treasury or any person.

David R. Pearl,
Executive Secretary.
[FR Doc. 2015-24150 Filed 9-22-15; 8:45 am]
 BILLING CODE 4810-25-P