Revised Final Tribal Consultation Policy, 89467-89478 [2023-28493]

Agencies

• DEPARTMENT OF LABOR

[Federal Register Volume 88, Number 247 (Wednesday, December 27, 2023)]
[Notices]
[Pages 89467-89478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28493]


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DEPARTMENT OF LABOR


Revised Final Tribal Consultation Policy

AGENCY: Office of Congressional and Intergovernmental Affairs (OCIA), 
Department of Labor.

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

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SUMMARY: The Department of Labor (DOL) is issuing its revised final 
Tribal Consultation Policy. The Tribal Consultation Policy (hereinafter 
referred to as the ``policy'') establishes standards for improved 
consultation with federally recognized Indian Tribes to the extent that 
no conflict exists with applicable Federal laws or regulations. The 
policy applies to any Department action that affects federally 
recognized Indian Tribes and requires that the Department's government-
to-government consultation involve appropriate Tribal and Departmental 
Officials. These revisions are set forth as the final policy in 
response to comments from the April 14, 2021, Tribal consultation 
meeting.

DATES: This Revised Final Policy is effective October 10, 2023.

FOR FURTHER INFORMATION CONTACT: For information on the Department of 
Labor's (DOL) Tribal Consultation Policy, contact Jack Jackson, Tribal 
Liaison, Office of Congressional and Intergovernmental Affairs, 
[email protected], (202) 431-7710. Individuals with hearing or 
speech impairments may access the telephone via TTY by calling 7-1-1 
Federal Relay Telecommunications Access.

SUPPLEMENTARY INFORMATION:

[[Page 89468]]

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

    On April 14, 2021, the Department conducted a Tribal Consultation 
meeting and received comments from a broad spectrum of interested 
parties representing Indian Tribes, Alaska Native Corporations, and 
tribal advocacy groups. They raised a variety of concerns with specific 
provisions of the proposed policy. After reviewing these comments 
thoughtfully and systemically, the Department has updated several 
provisions of its policy.
    Comments related to the following provisions are discussed in 
detail below.

A. Section I--Streamlining Tribal Consultation Policy

    Several commenters proposed adopting a uniform tribal consultation 
policy that broadly and consistently applies to agencies. One commenter 
suggested using the Department of the Interior's (DOI) Tribal 
Consultation Policy as a starting point, as DOI engages with Tribal 
Governments more frequently than most other agencies. Another commenter 
recommended that DOL and DOI work together to revive the Native One-
Stop resource for tribes and tribal organizations that was initiated 
during the Obama Administration and to ensure that it is sustainable 
into the future.
    The Department continues to engage with the White House Council on 
Native American Affairs to seek guidance and recommendations for tribal 
consultation and engagement. During the 2022 Tribal Nations Summit, the 
DOI Secretary announced the launch of the first Secretary's Tribal 
Advisory Committee (STAC). The goal of the committee is to facilitate 
intergovernmental discussions and modernize DOI's tribal consultation 
plan. The STAC is comprised of a primary representative and alternate 
member from each of the 12 Bureau of Indian Affairs (BIA) Regions. The 
Department will request to engage with the committee on DOL related 
policy and guidance with tribal implications.
    Additionally, on November 30, 2022, President Biden signed the 
Presidential Memorandum on Uniform Standards for Tribal Consultation, 
which establishes uniform minimum standards to be implemented across 
all agencies regarding how tribal consultations are to be conducted. 
The Department continues to work with our Federal agency partners and 
the White House Council on Native American Affairs to improve and 
streamline the consultation process for both tribes and Federal 
participants, and ensure more consistency in how agencies initiate, 
provide notice for, conduct, record, and report on tribal 
consultations.
    Regarding reviving the Native One-Stop, the Department recommends 
tribes utilize the Career-One Stop website at https://www.careeronestop.org/ to find employment opportunities in their local 
area. The site is owned by DOL and is updated nightly. Another 
commenter suggested that OMB provide a standardized set of basic 
regulatory consultation standards that apply across all Federal 
agencies, in order to provide a minimum standard baseline that all 
tribes could rely upon regardless of what agency they are interacting 
with. This should include a provision that OMB can determine whether a 
consultation conducted by an agency meets the standard established by 
E.O. 13175.
    The Department notes that OMB has established a set of nine 
specific consultation standards which DOL incorporated in its policy.
    A commenter recommended the creation of consultation policies that 
persist from administration to administration, so that tribes do not 
have to repeat their consultation feedback to every new administration.
    The Department agrees and notes that the 2012 Tribal Consultation 
Policy published in the Federal Register serves as the foundation for 
the Department. It is a best practice for each new administration to 
consult with tribal officials on proposed policies and guidance that 
have tribal implications. Just as the White House administration 
changes, so does the leadership of tribal nations. Therefore, it is 
necessary to periodically request feedback from tribal officials. 
Consultation and feedback from tribal officials are key to the 
implementation and success of new initiatives.
    A commenter suggested cooperating with other Federal agencies where 
tribal issues overlap, so that tribes do not have to work individually 
with multiple agencies. For example, DOL should meet with the Treasury 
and their Tribal Advisory Committee, which is working on the need for 
tribal input when defining Tribal Government and commercial functions.
    The Department agrees and notes that its goal is to engage and 
partner with Federal agencies when issues with tribal implications 
overlap. The DOL Tribal Liaison serves on several White House Council 
for Native American Affairs (WHCNAA) working groups to collaborate on 
implementing agency related initiatives.
    A commenter proposed creating a website that would provide a 
cohesive platform that tribes can access that consolidates all 
information tribes may need including consultation policies.
    The Department notes that the Department of the Interior has 
created a website specifically for Federal agencies to post tribal 
consultations and engagement meetings with tribal officials.
    A commenter suggested coordinating among agencies to ensure that 
multiple tribal consultations are not scheduled at the same time. 
Consider holding consultations during tribal gatherings like 
conferences and summits when large number of tribal representatives are 
gathering.
    The Department recognizes the time and resources required for one 
tribe to participate in simultaneous consultation sessions and notes 
that the WHCNAA and National Congress of American Indians (NCAI) have 
created websites to post tribal consultations and briefing sessions to 
ensure overlap does not occur. DOL looks for opportunities to 
participate in tribal consultations hosted by other Federal agencies 
and will participate in tribal consultation during conferences and 
summits with tribal leaders.

B. Section II--Definitions

    Several commenters would like the definition of consultation to be 
updated in accordance with E.O. 13175 and the U.N. Declaration on the 
Rights of Indigenous Peoples (UNDRIP). They suggested implementing a 
requirement of obtaining ``free, prior, and informed consent'' from 
tribes in accordance with Article 19 of UNDRIP. Also, they ask that any 
stated purpose has wide consensus among tribal nations before making 
the policy official.
    The Department follows the definition of consultation specified in 
Section 5 of E.O. 13175 and Section 1 of the Presidential Memorandum on 
Tribal Consultation and Strengthening Nation-to-Nation relationships.

C. Section III--Inclusion and Expectations of Involved Parties

    A commenter suggested also doing consultations with national 
organizations that advocate on behalf of tribes on native workforce 
development, such as the Native American Employment and Training 
Council and NCAI. However, another commenter noted that consultation 
with official Tribal Governments should not replace consultation with 
national organizations since many organizations advocate on behalf of 
Indian Country, but they do not represent all tribes.

[[Page 89469]]

    The Department determines the audience prior to any session that 
has tribal implications. DOL agrees that consultation with tribal 
officials is the preferred method when policies or guidance require 
input on the impact it has on tribes. DOL regularly meets with its 
Native American Employment and Training Council Advisory Committee and 
considers such advisory committee meetings as additions to, rather than 
replacements for, consultation with Tribal Governments. From time-to-
time, DOL may invite tribal officials and national organizations to 
participate in meetings and in consultations but will defer to tribal 
officials for formal comment.
    A commenter would like the option for authorized proxies to speak 
on behalf of tribal leaders during tribal consultations. Another 
commenter would like tribal leaders to have the ability to include and 
confer with their expert staff during every consultation. The 
Department values the input from tribal leaders, and we will defer to 
them to determine who is authorized to speak on their behalf. Tribal 
leaders are encouraged to invite subject matter experts to consultation 
sessions to confer with them as needed. If requested, we will offer 
time during the session for tribal leaders to deliberate with their 
experts.
    A commenter advised against delegating consultations to third party 
entities (e.g., nonprofits, corporations, hired consultants and 
contractors, non-tribal archaeologists and anthropologists) in order to 
ensure that tribal interests are not adversely impacted. The Department 
agrees with this comment as our priority is to consult with tribal 
officials.
    A commenter asks that DOL ensure that consultation includes all the 
Alaska Native entities that provide services to the Alaska Native and 
American Indian people of Alaska. The Department uses the definition of 
``Indian Tribes'' which includes Alaska Native Tribes and includes 
Alaska Native leaders when invites are dispersed.
    Several commenters would like Federal officials at all levels of 
the consultation process to undergo training on U.S.-Tribal relations 
and the Federal trust obligation. The training should be designed in 
consultation with tribal nations. The commenters suggested hiring staff 
who have worked in Indian Country, engaging tribal members to help 
train additional staff, ensuring additional training for Federal 
officials most commonly involved in Tribal Government consultation, and 
making training materials public so that tribal nations can comment on 
them and offer suggestions for their improvement.
    The Department notes that Section 8 of the November 30, 2022, 
Presidential Memorandum provides that the head of each agency must 
require annual training of agency employees who work with tribal 
nations or who work on matters with tribal implications. The new 
Presidential Memorandum also directs the Secretary of the Interior and 
the Director of the Office of Personnel Management, in consultation 
with tribal nations, to establish training modules regarding Tribal 
consultation. These modules will be available to all government 
employees who work with tribal nations, including agency decisionmakers 
who work on any policies or programs with tribal implications. DOL will 
provide training and make these modules available to agency 
decisionmakers and staff who work with tribal nations on policies or 
programs with tribal implications.
    Several commenters requested that high-level officials, not junior 
staff be involved in all consultations.
    The Department makes every effort to include high-level officials 
(Secretary, Deputy Secretary, Assistant Secretaries, and Deputy 
Assistant Secretaries), and career staff who are subject matter experts 
to participate in tribal consultation.
    Several commenters recommended creating a mechanism to ensure that 
tribal nations can allege violations of DOL's consultation procedures 
and remedies for possible violations. The Tribes would like the right 
to seek judicial review of consultation when Federal Government has 
failed to consult appropriately.
    The Department is committed to making a good faith effort to 
following tribal consultation procedures outlined in E.O. 13175 and the 
2021 Presidential Memorandum.

D. Section IV--Logistical Amendments to Tribal Consultation Process

    One commenter recommended formalizing the notice and comment 
period, timeline, and process in the tribal consultation plan. 
Specifically, they suggested publishing notice of tribal consultations 
in the Federal Register and transmitting official letters from Federal 
agencies to tribal leadership informing each Tribal Government of the 
date of tribal consultation, deadlines for submitting written comments, 
and the meeting agenda and questions to be addressed during 
consultation. They would like this information to be shared once the 
notice for tribal consultation is published, not days or hours before 
consultation. Another commenter requested that they are provided no 
less than a 30-day deadline to submit written comments after the last 
consultation is held.
    The Department will follow the guidance outlined in E.O. 13175, the 
2021 Presidential Memorandum, OMB, and the Federal Register guidance.
    A commenter suggested increasing the time allotted for consultation 
(both the duration of sessions and number of days available in the 
consultation window) and initiating the process as early as possible.
    The Department will determine the duration of consultation sessions 
based on the complexity of the proposed rule and implications the rule 
has on tribes. Several commenters requested that a report be sent to 
all Tribal Governments at the conclusion of each tribal consultation, 
sharing a summary of what took place, how Tribal Government input was 
considered in reaching decisions, and what next steps in the 
consultation process look like. Justifications should be provided when 
Tribal Government feedback is not incorporated into the final response.
    If formal consultation is based on a Notice of Proposed Rulemaking, 
the Department is required to have a record of tribal consultation, the 
written comments it received, and a response to the issues raised in 
written comments. The issues raised in comments will be addressed in 
the agency's rationale for its final rule, which will be published in 
the Federal Register and included in the rulemaking docket on 
Regulations.gov.
    A commenter requested that Federal agencies sponsor at least one 
annual tribal consultation and recommends working with Tribal 
Governments at the local level when possible (i.e., regional offices of 
Federal agencies regularly engaging with tribes so issues can be 
resolved locally with individual tribes). Another commenter suggested 
holding periodic check-in consultations, in addition to the annual 
consultations, budget consultation, and planning meetings prior to 
consultations.
    The Department recognizes tribal officials have limited resources 
to participate in the numerous tribal consultations by Federal 
agencies. To be mindful of the time needed to participate, the 
Department will conduct tribal consultation on any proposed rule with 
tribal implications. Most of the Department's programs have regional 
and district staff who engage with tribes, and OSHA agrees that 
addressing local issues through local or regional engagement can be 
useful. Agency leadership is regularly informed

[[Page 89470]]

of issues with tribal implications, including regional or more local 
issues.
    Several commenters recommended that DOL budget requests include 
funding to support tribal consultation, so that tribal nations can use 
funds to fully participate in consultations. This means remunerating 
tribes for the costs of providing access to technical expertise, 
attending consultations, conducting studies, and producing reports.
    The Department notes that tribal consultation sessions are 
conducted virtually or in person, and all technical assistance requests 
received by the Department from tribal officials are free of charge.
    Several commenters requested that all information be provided in 
Federal Register notices and that notices are ensured to reach tribal 
leaders at every affected tribe. When an agency sends notice to a tribe 
for consultation, it should provide sufficient background information 
about the proposed action, outline the process by which the agency will 
consult with tribes, and include a timeline.
    The Department appreciates this comment and plans to announce 
future tribal consultation meetings in the Federal Register.
    A commenter proposed allowing tribes to initiate consultation 
rather than making them wait for agencies to initiate.
    The Department agrees with this comment and welcomes tribes to 
initiate consultation with the Department by directing all inquiries 
related to tribal consultation to [email protected].
    Several commenters recommended providing various communication 
options for consultation, including face-to-face dialogue, written 
communication, telephonic communication, and video teleconferences to 
allow tribal leaders with a wide array of opportunities to participate 
in the consultation process. A commenter suggested including live-
stream of in-person consultations or holding separate in-person 
consultations and virtual consultations and giving tribes the option to 
attend whichever format they prefer. The commenter also requested 
recording consultations and making transcripts available so if tribes 
are unable to attend, they can refer to recordings.
    Depending on the nature of the tribal engagement or consultation, 
meaning it has implications for all tribes, tribes in a certain region, 
or is comprised of a small group of tribal grantees, the Department 
will determine the most efficient method for conducting engagement and 
consultation. In most cases, DOL will conduct a hybrid meeting to 
ensure options for attending virtually or in person. The Department 
will also accommodate all individuals who need assistance in 
participating. Advanced notice will be given if the Department plans to 
record an engagement or consultation session.
    A commenter proposed implementing a certification process at 
completion of consultation whereby both parties agree that meaningful 
consultation occurred.
    The Department notes that are no requirements in E.O. 13175 or the 
2021 Presidential Memorandum for certifying a consultation session. The 
Department will create a record of the consultation session, including 
the tribal officials, their input, and the Department's response.

E. Section V--Amendments to Specific Acts, Laws, or Programs

    Several commenters asked that DOL, and the Employee Benefits 
Security Administration (EBSA) in particular, work in good faith with 
tribes instead of effectively regulating by conducting enforcement 
actions without tribal input. DOL should not use the ``enforcement 
exception'' in its current policy to render the entire policy optional. 
The commenters requested a review of DOL's litigation position in White 
Mountain Apache Tribe v. EBSA, CV 20-1409, in which EBSA has posted 
that there is no need to consult with tribes in defining essential 
governmental functions or tribal commercial activities.
    The Department believes is a matter that is outside the scope of 
revising the tribal consultation policy.
    A commenter asked that the current Memorandum of Agreement (MOA) be 
amended to comply with statutory provisions of Public Law 115-93 Indian 
Employment, Training and Related Services Consolidation Act of 2017. 
Additionally, the commenter would like funding for tribes to build 
tribal capacity on DOL programs with the MOA provision.
    The Department notes that since the time of this comment, the 
Department of Interior's Bureau of Indian Affairs initiated discussions 
with tribes and Federal agencies, and renegotiated the MOA that 
implements the Indian Employment, Training and Related Services 
Consolidation Act of 2017. See https://www.bia.gov/sites/default/files/dup/inline-files/477_moa_signed.pdf.
    A commenter would like consultation to be a procedural guarantee 
for tribes, where there should be a dispute resolution process other 
than litigation.
    The Department will follow the guidance outlined in E.O. 13175, the 
2021 Presidential Memorandum, OMB, and the Federal Register guidance.
    A commenter suggested looking to other DOL programs in addition to 
DINAP that can be included in DOI's 477 Plan.
    The Department notes that tribes may currently request the 
inclusion of other DOL programs in the Department of Interior's ``477 
Plan'' under the Indian Employment, Training and Related Services 
Consolidation Act of 2017. The Department of Interior's Bureau of 
Indian Affairs led discussions with Tribes and Federal agencies to 
reconsider the MOA that implements that Act. The revised MOA 
streamlines plan approval procedures and re-affirms the decisional 
authority of the Secretary of the Interior in approving plans and is 
available at https://www.bia.gov/sites/default/files/dup/inline-files/477_moa_signed.pdf.
    A commenter requested that agencies respect the Division of Indian 
and Native American Programs (DINAP) structure and give weight to 
policy recommendations that arise from it.
    The Department notes that as a part of DOL, DINAP regularly 
provides information to senior officials within the Department where 
necessary and applicable.
    Several commenters asked DOL to consider how E.O. 13175, Section 3 
can be better operationalized and consistently applied throughout the 
Federal Government. They would like any ambiguities in law to be 
interpreted in favor of tribal nations.
    The Department's Tribal consultation policy addresses how DOL 
implements E.O. 13175, but DOL also participates in the White House 
Council on Native Affairs which includes as one of its goals consistent 
interactions with tribal nations across the Federal Government.
    A commenter suggested revisiting E.O. 13175, Section 6, which 
encourages the Federal Government to facilitate and streamline tribal 
applications for waivers of statutory and regulatory requirements. This 
section should be more actively implemented across the Federal 
Government.
    The Department will promptly review any waiver request submitted by 
a Tribal Nation where the relevant statute or regulation allows for 
such waivers. Certain laws that DOL administers, such as the Workforce 
Innovation and Opportunity Act, include a specific waiver provision.
    A commenter requested the modification of requirements of the Youth 
Build program to allow grantees to focus on target populations within

[[Page 89471]]

geographies, rather than on geography demographics as a factor. The 
current requirements have limited their tribe's ability to deploy the 
program in their community because the people they serve are spread out 
throughout the geography, which may or may not meet economic 
guidelines.
    The Department will take this into consideration, alongside the 
statutory and regulatory requirements for the Youth Build program 
including work sites and supervision. All grant requirements for Youth 
Build are described in Funding Opportunity Announcements published on 
www.grants.gov.
    A commenter would like increased assistance with developing pre-
apprentice & apprenticeship programs for in-demand jobs, e.g., growing 
fields in health care and home care for aging populations.
    The Department's Office of Apprenticeship (OA) has been working 
with tribes throughout the United States to expand apprenticeship 
opportunities for Native Americans. OA also held a listening session 
for tribes on registered apprenticeships in 2021. OA encourages tribes 
and Tribal Organizations to contact our office and to visit 
apprenticeship.gov for assistance and information with setting up pre-
apprenticeships and apprenticeships programs for health care and other 
industries. ETA has also announced plans to issue a Funding Opportunity 
Announcement (FOA) this year that includes a focus on youth 
apprenticeship, equity/pre-apprenticeship partnerships, and 
apprenticeship HUBs that provide an opportunity for tribes and Tribal 
Organizations to seek funding for pre-apprenticeship and Registered 
Apprenticeship programs.

F. Section VI--Other Demands

    Several commenters would like a Tribal Advisory Committee to be 
established at the Secretariat level, tasked with ensuring that Federal 
agencies properly incorporate considerations of Indian Country as they 
execute their duties. This committee should advise the head of agency 
on how agency activities impact Tribal Governments and ensure inclusion 
of Tribal Governments in relevant policy proposals. Committee should 
consist of representatives from each region of the United States so the 
agency understands the unique needs of different tribes. The names and 
contacts of the individuals on this Advisory Council should be 
published.
    The Department notes that in November 2022, the Department of the 
Interior Secretary announced the launch of its Secretary's Tribal 
Advisory Committee.
    One commenter requested that data on Alaska Native and American 
Indian labor force participation and unemployment be presented monthly 
to the President, Congress, and Federal agencies and released to the 
public as part of the same document DOL releases for all other ethnic 
groups.
    The Department notes that the Bureau of Labor Statistics publishes 
monthly labor force data from the Current Population Survey by races 
and ethnicity where sample sizes are large enough to produce 
statistically accurate estimates. Effective with the release of 
January, 2022, date in February, 2022, employment status data on 
American Indians and Alaska Natives were produced on a monthly and 
quarterly basis. BLS produces a more detailed race and ethnicity report 
yearly based on a larger or aggregated sample.
    A commenter recommended preparing for consultation that must be 
accelerated due to emergency legislation.
    The Department makes every effort to provide sufficient time for 
consultation and recognizes there are situations when consultation 
sessions must be scheduled with short notice.
    A commenter would like DOL to allow tribes the opportunity to 
discuss how DOL intends to carry out the American Jobs Plan.
    The Department notes that since the time of this comment, Congress 
passed the Bipartisan Infrastructure Act, the CHIPS and Science Act, 
and the Inflation Reduction Act, all of which invest in U.S. 
infrastructure, manufacturing, and the economy. The Department of Labor 
has collaborated with other Federal agencies to set clear priorities 
for the good jobs created by these investments to benefit all 
Americans, particularly historically marginalized populations. The 
Departments of Labor and Commerce developed Good Jobs Principles that 
are shaping Federal investments and their implementation; see https://www.dol.gov/general/good-jobs/principles.
    A commenter would like DOL to advise tribes of upcoming funding 
opportunities that may benefit them and provide technical assistance in 
completing the application process, e.g., a Federal-Tribal partnership 
on data quality to publish an Indian Labor Force Report, a Youth Build 
funding opportunity.
    The Department launched a new website for Grant opportunities at 
https://www.dol.gov/grants that advises the public of upcoming funding 
opportunities. The Department also held a webinar on April 13, 2023, 
Preview of DOL Grants--Spring 2023: Learn What is Available to Tribes 
and Tips for Applying.
    A commenter requested that the Native American Employment and 
Training Council be elevated to the Secretary's Office, as is the case 
with the Secretary's Tribal Advisory Committee at HHS.
    The Department notes that the Native American Employment and 
Training Council, like all committees organized under the Federal 
Advisory Committee Act, currently reports to the Secretary of Labor. 
Pursuant to Workforce Innovation and Opportunity Act Section 
166(i)(4)(C), the purpose of the Council is to advise the Secretary on 
the operation and administration of the Indian and Native American 
programs authorized under Section 166 of WIOA. In addition, the Council 
advises the Secretary on the implementation of other programs providing 
services to Indian and Native American youth and adults under WIOA.
    A commenter requested that Federal contractors notify tribes of 
upcoming projects and employment opportunities for tribal members that 
are within their usual and accustomed boundaries.
    The Department notes that the Office of Federal Contract Compliance 
Programs (OFCCP) holds those who do business with the Federal 
Government (contractors and subcontractors) responsible for complying 
with the legal requirement to take affirmative action and not 
discriminate on the basis of race, color, sex, sexual orientation, 
gender identity, religion, national origin, disability, or status as a 
protected veteran. Prime contractors should notify tribes of the 
upcoming projects during the pre-construction bid process.

G. Section VII--Comments Beyond the Scope of the E.O. and Tribal 
Consultation Policy

    DOL values the input from tribal representatives and will address 
comments and suggestions outside the scope of the revised DOL Tribal 
Consultation Policy in this section.
    A commenter suggested modernizing treatment of tribes and tribal 
programs authorized under the Workforce Innovation and Opportunity Act. 
Specifically, agencies should request full funding needs for tribal 
programs rather than relying on outdated numbers and streamline 
reporting requirements for non-477 tribal grantees.
    The Department believes this is beyond the scope of the E.O. and 
the tribal consultation policy. However, the

[[Page 89472]]

Department requested increased funding from Congress in the FY 2022, 
2023, and 2024 Budgets for the Workforce Innovation and Opportunity Act 
Indian and Native American (INA) Program.
    A commenter asked that DOL inform tribes of the appropriations plan 
for the Workforce Innovation and Opportunity Act for fiscal years that 
start in 2022 and DOL's plan to update the funding formula for 
appropriations based on the most recent census.
    The Department believes this is beyond the scope of the E.O. and 
the tribal consultation policy. The Administration informs all members 
of the public on requested levels of appropriation annually in the 
Congressional Budget Justification, available at www.dol.gov/budget/. 
The Department is also working with the Bureau of the Census to obtain 
updated population information for calculating the INA formula, in 
consultation with the Native American Employment and Training Council. 
The Department is also working with the Bureau of the Census to obtain 
updated population information for calculating the INA formula, in 
consultation with the Native American Employment and Training Council.
    A commenter suggested coordinating among agencies to ensure that 
multiple tribal consultations are not scheduled at the same time. 
Consider holding consultations during tribal gatherings like 
conferences and summits when large number of tribal representatives are 
gathering.
    The Department recognizes the time and resources required for one 
tribe to participate in simultaneous consultation sessions. The WHCNAA 
and NCAI have created websites to post tribal consultations and 
briefing sessions to ensure overlap does not occur. DOL is also looking 
for opportunities to participate in Tribal consultations hosted by 
other Federal agencies, and the American Indian Higher Education 
Consortium.

II. Final Tribal Consultation Policy

U.S. Department of Labor

Tribal Consultation Policy

I. Background and Purpose
    A. Executive Order 13175 and the Department of Labor's 
Relationship With Indian Tribes
    B. Referenced Authorities
II. Guiding Principles
    A. Government-to-Government Relationship and Tribal Self-
Determination
    B. Open Communications and Respect for Cultural Values and 
Traditions
    C. Ensuring Consultation Is Meaningful
III. Policy Statement
    A. Departmental Consultation Policy Generally
    B. Implementation Responsibilities of DOL Operating Agencies
IV. Regulations
V. Unfunded Mandates
VI. Flexibility and Waivers
VII. Consultation Process Guidelines
VIII. Performance and Accountability
IX. Designated Officials and Points of Contact
    A. Designated Departmental Official
    B. Point of Contact for Each DOL Agency
X. Definitions
XI. Supplemental Terms and Effective Date
Appendix A--Executive Order 13175

I. Background and Purpose

A. Executive Order 13175 and DOL's Relationship with Indian Tribes

    The United States has a unique legal and political relationship 
with Indian Tribal Governments, established through and confirmed by 
the Constitution of the United States, treaties, statutes, Executive 
orders, and judicial decisions. In recognition of that special 
relationship, pursuant to Executive Order 13175 of November 6, 2000, 
executive departments and agencies are charged with engaging in regular 
and meaningful consultation and collaboration with tribal officials in 
the development of Federal policies that have tribal implications and 
are responsible for strengthening the government-to-government 
relationship between the United States and Indian Tribes.
    The Department of Labor (DOL) has collaborated extensively with 
American Indians and Alaska Natives (AI/AN) for many years in advancing 
its mission of fostering job opportunities, improving working 
conditions, and assuring work-related benefits and rights of workers 
and retirees in the United States. In recent years, senior DOL 
officials have conducted many site visits in Indian country and 
regularly engage with Indian tribes and their representatives, 
including the National Congress of American Indians. The Department's 
collaboration with Indian tribes encompasses a broad range of DOL 
matters affecting tribes, including joint efforts to improve tribal 
program management, rulemaking, regulations, policies, waivers and 
flexibility, grant programs, contracting opportunities, and regulatory 
guidance.
    The Department's Employment and Training Administration (ETA), for 
example, regularly includes Indian and Native American entities as 
eligible for employment and training programs, which can improve tribal 
economic self-sufficiency by ensuring that tribal workers have the 
skills to build and operate new infrastructure and facilities at the 
tribal community level and facilitate the creation of new business 
opportunities in Indian country. ETA's Division of Indian and Native 
American Programs (DINAP) administers employment and training services 
grants to tribal communities in ways that are consistent with the 
traditional cultural values and beliefs of the people they are designed 
to serve, including youth and at-risk populations facing employment 
barriers. ETA works closely with the Native American Employment and 
Training Council (NAETC), a Federal advisory committee comprised of 
representatives of Indian tribes, tribal organizations, Alaska Native 
entities, Indian-controlled organizations serving Indians, or Native 
Hawaiian organizations appointed by the Secretary of Labor. The NAETC 
provides advice to the Secretary regarding the overall operation and 
administration of tribal programs authorized under section 166 of the 
Workforce Innovation and Opportunity Act, as well as the implementation 
of other DOL Tribal programs and services.
    The Department's Women's Bureau (WB) develops policies and 
standards and conducts inquiries to safeguard the interests of working 
women; to advocate for their equality and economic security for 
themselves and their families; and to promote quality work 
environments. It has ongoing relationships with organizations that 
represent Native American women. The WB is also part of a network of 
Native American women organizations that collaborate on finding ways to 
end domestic violence and abuse.
    The Department's Office of Federal Contract Compliance Programs 
(OFCCP) works with Federal contractors to expand recruitment and 
employment opportunities to AI/ANs by linking contractors with tribal 
workforce development and Tribal Employment Rights Organizations 
(TERO).
    The Department's Office of Disability Employment Policy (ODEP) 
provides national leadership on disability employment policy by 
developing and influencing the use of evidence-based disability 
employment policies and practices, building collaborative partnerships, 
and delivering credible data designed to improve the employment 
outcomes for people with disabilities. It has partnered with tribal 
colleges and universities to advance the rights of individuals with 
disabilities. ODEP has partnered with OFCCP to develop a series of 
webinars focused on providing resources and tools to boost recruitment, 
hiring, and retention of underrepresented groups, including people with 
disabilities in employment. The targeted audience includes tribal

[[Page 89473]]

entities, Federal contractors, employers, workforce boards, community-
based organizations, and related stakeholder groups. The ODEP-sponsored 
technical assistance provider, ``National Center on Leadership for the 
Employment and Economic Advancement of People with Disabilities'' (LEAD 
Center), in collaboration with the Employment Training Administration's 
(ETA) Division of Indian and Native American Programs (DINAP), will 
host two webinars focused on promising practices to assist DINAP 
grantees better serve program participants with disabilities.
    The Department's Wage and Hour Division (WHD) regularly engages 
with Tribal Governments, tribal communities, and other tribal 
stakeholders, including, recently, as a part of the Essential Worker, 
Essential Protections initiative. WHD's past experiences make clear 
that outreach to tribal officials and tribal stakeholder's play an 
important role in WHD policy initiatives. Many of WHD's regulatory and 
sub regulatory actions affect the public at large without a 
particularized impact on Tribal governments; nonetheless, WHD 
recognizes the importance of engaging Tribal Governments and other 
tribal entities and stakeholders in these processes. Additionally, WHD 
welcomes tribal officials to submit input and engage in dialogue with 
staff on policies they believe may have tribal implications. WHD 
anticipates conducting outreach to tribal officials and other 
stakeholders on a variety of regulations, sub regulatory guidance, and 
other polices, including, for example, the modernization of the Davis-
Bacon and Related Acts, overtime regulations, misclassification, and 
the implementation of the Bipartisan Infrastructure Law, as well as the 
CHIPS and Science Act. As WHD works towards its goal of promoting 
equity and reducing barriers to accessing WHD resources for 
historically marginalized groups, including Native Americans, WHD will 
continue to work with Tribal Governments and stakeholders to ensure 
that their concerns over preserving their culture, traditions, lands, 
and sovereignty are addressed in an inclusive manner.
    The Department's Occupational Safety and Health Administration 
(OSHA) has interacted with tribal communities mostly through 
enforcement operations. However, efforts are underway to provide 
training, compliance assistance and consultative services with tribal 
entities that are interested in learning about the laws OSHA enforces. 
OSHA is also looking forward to designating compliance assistance staff 
members to work directly with tribes. The goal is to have a dedicated 
point of contact for tribes, to share more on OSHA's compliance 
assistance and cooperative programs, and to develop a good working 
relationship with tribal leaders before any enforcement action may 
occur. OSHA's cooperative engagements to promote safety and health in 
tribal workplaces and communities could serve as models for other OSHA 
regions to replicate over the next year. For example, the Arizona OTI 
Ed Center has had a longstanding relationship with the Navajo Nation 
and has received Harwood grant funding in the past to develop safety 
and health trainings geared towards tribal workers and employers. The 
Navajo Nation's Safety and Health division has used the Ed Center as a 
technical resource, taking classes offered and collaborating on 
providing 10- and 30-hour OSHA certification trainings to interested 
workers and employers. In Nebraska, OSHA engages with tribal 
communities through its On-Site Consultation program and a partnership 
with the Wichita Area Office. Nebraska's Department of Labor 
administers OSHA's On-Site Consultation program and has engaged with 
TCUs to provide consultation services. Before the COVID-19 pandemic, 
OSHA's Wichita Area Office participated in local Tribal Safety and 
Health Fairs.
    The Department's Mine Safety Health Administration (MSHA) created 
specific bilingual positions in (English/Spanish and English/Navajo) to 
enhance mining community's safety and health needs through improved 
outreach and communication. This will be standard hiring policy for all 
future hires (FY 2022 -FY 2023) in specific regions such as the Western 
U.S. where there is a predominantly Hispanic and American Indian mining 
community. In FY 2021, MSHA participated in outreach to minority 
serving higher education institutions (HBCUs, HSIs and TCUs) for hiring 
and it also participated in DOL WebEx activities to teach individuals 
how to apply for Federal jobs. Further, MSHA hosted virtual 
informational events with DOL focusing on Q&A sessions to attract 
individuals from HBCUs, HSIs and TCUs to learn more about MSHA. 
Additionally, MSHA is working on an outreach plan for the Navajo Nation 
on the topic of non-miner related Black Lung cases, which are extremely 
high in the population.
    The Department's Veterans' Employment and Training Service (VETS) 
top priorities are (1) getting the military-to-civilian transition 
right, (2) leveraging the right strategic partnerships to maximize 
employment outcomes, and (3) advancing equity and inclusion in our 
underserved veteran communities. VETS is taking a new and proactive 
approach by reaching out to underserved communities, especially Native 
American and Alaska Native veterans, who have not traditionally engaged 
with DOL and other segments of the Federal Government at the same rate 
as other veteran communities. By engaging with new partners, we will 
increase awareness of VETS programs and work towards removing barriers 
to equitable access. VETS is also continuing to improve its data 
maturity to strengthen the analytical capabilities needed to better 
serve and publicly report outcomes for historically excluded and 
underserved veterans. While excellent work has been done to support 
transitioning service members, veterans, and military spouses within 
tribal communities, VETS recognizes that there is always more work to 
do. VETS is consistently reviewing its programs to determine areas 
where the Agency can improve customers' experiences and employment 
outcomes and ensure that Native American and Alaska Native veterans are 
able to access our services.
    These are among many of DOL's ongoing actions to engage with tribes 
and support the efforts of Tribal Governments to have sustainable 
tribal communities and achieve our mutual goals of ensuring fair wages, 
employee rights, and workplace safety while working to alleviate the 
high unemployment found on tribal lands. The Department is committed to 
building on these efforts to engage in regular and meaningful 
consultation and collaboration with tribal officials on policies and 
actions that have tribal implications, including the development of 
this formal tribal consultation policy. Accordingly, this policy has 
been developed in consultation with Indian tribes and tribal officials 
as set forth in Executive Order 13175.
    Implementation of this tribal consultation policy will facilitate 
greater consistency across the DOL in carrying out tribal consultations 
and will improve collaboration with Indian tribes at all levels of 
departmental organizations and offices. This policy will also ensure 
that a reporting structure and process is in place so that all 
departmental tribal consultation work will be transparent and 
accountable. DOL employees having responsibility for the outcomes of 
consultation and collaborative activities will be better able to assess 
effectiveness and coordinate their efforts with other

[[Page 89474]]

related departmental initiatives. Through these efforts, the Department 
anticipates an even stronger relationship with Indian tribes and 
improved program delivery to meet the needs of Indian tribes and 
communities.

B. Referenced Authorities

    This Tribal consultation policy document was developed based upon:
    1. Indian Self-Determination and Education Assistance Act, Public 
Law 93-638, as amended (25 U.S.C. 5301-5310).
    2. Native American Programs Act of 1974, (42 U.S.C. 2991-2992, as 
amended).
    3. Consolidated Appropriations Act of 2005, Public Law 108-447.
    4. Executive Order (E.O.) 12866, Regulatory Planning and Review, 
September 30, 1993.
    5. Presidential Memorandum, Government-to-Government Relations with 
Native American Tribal Governments, April 29, 1994.
    6. Executive Order 13175, Consultation and Coordination with Indian 
Tribal Governments, November 6, 2000.
    7. Presidential Memorandum, Government-to-Government Relationship 
with Tribal Governments, September 23, 2004.
    8. Presidential Memorandum, Tribal Consultation, November 5, 2009.
    9. OMB Memorandum M-10-33, Guidance for Implementing Executive 
Order 13175, July 30, 2010.
    10. Presidential Memorandum, Tribal Consultation and Strengthening 
Nation-to-Nation Relationships, January 26, 2021.
    11. Presidential Memorandum, Uniform Standards for Tribal 
Consultation, November 30, 2023.

II. Guiding Principles

A. Government-to-Government Relationship and Tribal Self-Determination

    The United States, in accordance with treaties, statutes, Executive 
orders, and judicial decisions, has recognized the right of Indian 
tribes to self-government and maintains a government-to-government 
relationship with federally recognized tribes. Indian tribes exercise 
inherent sovereign powers over their members and territory. The Federal 
Government has enacted numerous statutes and promulgated numerous 
regulations that establish and define a trust relationship with Indian 
tribes. Based on this government-to-government relationship, DOL will 
continue to work with Indian tribes on its programs involving tribes in 
a manner that respects tribal self-government and sovereignty, honors 
tribal treaty and other rights, and meets the Federal Government's 
tribal trust responsibilities.

B. Open Communications and Respect for Cultural Values and Traditions

    Communication and the exchange of ideas will be open and 
transparent. Department officials will respect the cultural values and 
traditions of the tribes. To ensure efficiency and avoid duplicative 
efforts, DOL will work with other Federal departments to enlist their 
interest and support in cooperative efforts to assist tribes to 
accomplish their goals within the context of all DOL programs.

C. Ensuring Consultation Is Meaningful

    The Department is committed to ongoing and continuous dialogue with 
Indian tribes, both formally and informally, on matters affecting 
tribal communities. Consultation is a critical ingredient of a sound 
and productive Federal-tribal relationship that emphasizes trust, 
respect, and shared responsibility. Engaging with tribes and building 
relationships with tribal officials have improved the Department's 
policy toward Indian tribes on a broad range of DOL matters. The 
Department is committed to further improving its collaboration with 
Indian tribes and creating additional opportunities for input from all 
affected tribal communities. Consultation that is meaningful, 
effective, and conducted in good faith makes the Department's 
operation, decision making, and governance practices more efficient.

III. Policy Statement

A. Departmental Consultation Policy Generally

    In accordance with Executive Order 13175, when formulating and 
implementing policies that will have tribal implications, it is the 
Department's policy that, to the extent practicable and permitted by 
law, consultation with affected Indian tribes will occur. As stated in 
the Executive order, this refers to proposed legislation, regulations, 
policies, or actions that have substantial direct effects on one or 
more Indian tribes, on the relationship between the Federal Government 
and Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.

B. Implementation Responsibilities of DOL Operating Agencies

    Each DOL operating agency will have an accountable process to 
ensure meaningful and timely input by Indian tribes on policies or 
actions that have tribal implications. With respect to DOL programs 
administered by Indian Tribal Governments, operating agencies will 
grant Indian Tribal Governments the maximum administrative discretion 
permissible consistent with applicable law, contracting requirements, 
and grant agreements, and will defer to Indian tribes to develop their 
own policies and standards where legally permissible. The Department's 
operating agencies will review their existing tribal consultation and/
or program administration practices, including those of their regional 
offices, and revise them as needed to comply with the Department's 
policy as set forth in this document. If DOL agencies require technical 
assistance in conducting consultations, the designated departmental 
official's office (see section IX below) can provide and/or coordinate 
such assistance.

IV. Regulations

    In accordance with Executive Order 13175, to the extent practicable 
and permitted by law, prior to the promulgation of any regulation that 
has tribal implications and preempts tribal law, the DOL agency 
involved will:
    1. Notify and consult with affected Indian tribes early in the 
process of developing the proposed regulation consistent with the 
Administrative Procedure Act (5 U.S.C. 551 et seq.), Executive Order 
12866, and Executive Order 13563, and ensure that the tribes are 
informed about opportunities to participate in stakeholder meetings and 
public forums about which they might not otherwise be aware;
    2. Provide a tribal summary impact statement in a separately 
identified portion of the preamble to the regulation as it is to be 
issued in the Federal Register, which consists of a description of the 
extent of the agency's prior consultation with Indian tribes, a summary 
of the nature of their concerns and the agency's position supporting 
the need to issue the regulation, and a statement of the extent to 
which tribal concerns have been met; and
    3. Make available to the Secretary any written communications 
submitted to the agency on behalf of a tribe.
    On issues relating to tribal self-governance, tribal self-
determination, and implementation or administration of tribal programs, 
each DOL agency will make all practicable attempts where appropriate to 
use consensual mechanisms for developing regulations.
    For any draft final regulation that has tribal implications that is 
submitted to the Office of Information and Regulatory Affairs for 
review under E.O. 12866, the

[[Page 89475]]

agency will certify that the requirements of Executive Order 13175 have 
been met.

V. Unfunded Mandates

    In accordance with Executive Order 13175, no DOL agency shall 
promulgate any regulation that is not required by statute and imposes 
substantial direct compliance costs on tribal communities, unless:
    1. Funds necessary to pay the direct costs incurred by Indian 
tribes in complying with the regulation are provided by the Federal 
Government; or
    2. Prior to the formal promulgation of the regulation, the agency:
    a. Consulted with Indian tribes early in the process of developing 
the proposed regulation;
    b. In a separately identified portion of the preamble to the 
regulation as it is to be issued in the Federal Register, provides to 
the Director of the Office of Management and Budget a description of 
the extent of the agency's prior consultation with representatives of 
affected Indian tribes, a summary of the nature of their concerns and 
DOL's position supporting the need to issue the regulation; and
    c. Makes available to the Director of the Office of Management and 
Budget any written communications submitted to DOL by such Indian 
tribes.

VI. Flexibility and Waivers

    With respect to statutory or regulatory requirements that are 
discretionary and subject to waiver by DOL, each DOL agency will review 
the processes under which Indian tribes apply for waivers and take 
appropriate steps to streamline those processes as necessary.
    When reviewing any application by an Indian tribe for a waiver of 
regulatory requirements in connection with any program administered by 
a DOL agency, the agency will consider the relevant factors with a 
general view toward increasing opportunities for utilizing flexible 
policy approaches at the Indian tribal level in cases in which the 
proposed waiver is not inconsistent with the applicable Federal policy 
objectives and is otherwise appropriate as determined by the agency.
    Each DOL agency will promptly render a decision upon a complete 
application for a waiver. The agency will provide the applicant with 
timely written notice of the decision and, if the application for a 
waiver is not granted, the reasons for such denial, including a 
citation to any relevant legal authority that provides a basis for the 
denial.

VII. Consultation Process Guidelines

    1. Notification. When a DOL agency or regional office determines 
that a proposed policy or action will have tribal implications, whether 
for an individual tribe, regionally, or nationally, the DOL agency will 
have an affirmative responsibility to provide advance notice to the 
potentially affected Indian tribes at the earliest practicable time, 
but not less than 60 days prior to DOL's proposal, either through 
individual notice, established networks of communication, or Federal 
Register publication. An Indian tribe may initiate a request for 
consultation with DOL or a DOL agency on a DOL matter that it believes 
has tribal implications at any time by contacting that agency or the 
designated departmental official (see section IX), and the tribe should 
disseminate any DOL-provided information to its members by the 
method(s) it deems appropriate (e.g., U.S. mail, electronic mail, hard-
copy handouts). With respect to rulemaking proceedings of general 
applicability that have no particularized impact on Indian tribes, DOL 
agencies may use the existing Federal Register notice and comment 
process to provide notice but should supplement this process with 
targeted outreach where appropriate.
    2. Subjects of Consultation. To the extent consistent with 
applicable laws and administrative requirements, consultation can 
involve any DOL matter having Tribal implications, including but not 
limited to: Tribal program management, rulemaking, regulations, 
policies, waivers, and flexibility; grant programs; contracting 
opportunities; regulatory guidance; and other matters of Tribal 
interest. At the same time, DOL agencies should not create undue 
burdens on Tribes with respect to regulations or other matters that do 
not have Tribal implications. Routine matters, including normal DOL 
interactions with direct grantees such as monitoring, selecting 
grantees, and reporting requirements do not trigger further 
consultation processes under this policy. Enforcement policy, planning, 
investigations, cases, and proceedings are not appropriate subjects for 
consultation under this policy.
    3. Initial Planning and Scoping. Following notification to affected 
Tribes that policies or actions have Tribal implications, the DOL 
agency or regional office, in conjunction with the designated 
departmental official's office, should engage with those Tribes on 
initial planning and the appropriate scope of the consultation. Initial 
planning and scoping should include describing the nature and extent of 
the expected Tribal implications; identifying any time constraints or 
deadlines, relevant existing policies, and potential resource issues; 
and making a determination as to the most useful and appropriate 
consultation mechanism.
    4. Consultation Mechanisms. The manner of consultation should be 
appropriate to the nature and complexity of the matter and can occur 
via mailings (e.g., for remote Tribes that may not have internet 
access), one or more face-to-face meetings or meetings via 
teleconference, roundtables, or other appropriate means and may include 
the use of electronic media and messaging and website portals.
    5. Conducting Consultations. When a consultation commences, DOL 
will solicit the views of the Indian tribes involved on the relevant 
subjects and issues. Consultation should involve a thorough examination 
of the subject at issue, including discussion of cultural, economic, 
and other impacts on tribal programs, services, functions, and 
activities; compliance guidance; programmatic and funding issues if 
relevant; any external constraints such as executive, judicial, or 
legislative actions; and any relevant technical or other regulatory 
issues as they affect tribes.
    6. Frequency of Consultation Meetings. Consultation meetings may be 
scheduled on a regular basis or on an as needed basis except that at 
least one national tribal consultation meeting will be held by DOL each 
calendar year. For example, DOL agencies may establish a quarterly or 
semi-annual conference call with the tribes to consult with them on the 
regulatory proposals being considered by the agency and inform them 
about opportunities to participate in stakeholder meetings and public 
forums. To reduce costs, tribes and DOL agencies will make their best 
efforts to coordinate in person consultation meetings to coincide with 
other regularly scheduled meetings (such as multi-agency and 
association meetings and regional tribal meetings).
    7. Submissions of Tribal Comments. The DOL agency involved in the 
consultation will communicate clear and explicit instructions on the 
means and time frames for Indian tribes to submit comments to DOL on 
the matter, whether in person, by teleconference, and/or in writing, 
and if appropriate will allow a reasonable period of time following a 
consultation meeting for tribes to submit additional materials. A 
written communication on the correspondence of the highest elected 
official, appointed tribal official, or

[[Page 89476]]

other third-party designee of such authority (according to the 
procedures set forth under the definition of ``Indian Tribes'' in 
section X), will be considered by DOL to be the official position of 
the tribe on the subject at issue. If the DOL agency determines that 
the Administrative Procedure Act or other Federal law or regulation 
prohibits continued discussion at a specified point in the decision-
making process, the agency will so inform the Indian tribes. With 
respect to rulemaking proceedings of general applicability that will 
have no unique impacts on Indian tribes, DOL agencies may use existing 
Federal Register notices, dockets, and comment periods to obtain tribal 
comments, but should supplement them with additional means of obtaining 
tribal input where appropriate.
    8. Time Frames. Time frames for the consultation process will 
depend on the nature and complexity of the consultation and the need to 
act quickly. Suggested guidelines are as follows:
    a. The initial planning and scoping should normally take place at 
least 30 days before the date of the issuance of the notice of the 
proposed action;
    b. If a consultation meeting will occur, the meeting should 
normally be scheduled within 30 days of the completion of the planning 
and scoping;
    c. For consultations involving one or more meetings, the 
consultation process should normally be concluded within 60 days of the 
final consultation meeting; for consultations not involving meetings 
the consultation process should normally be concluded within 60 days of 
the planning and scoping.
    Shorter time frames may be more appropriate in exigent situations, 
such as when a critical deadline is involved, or expanded as necessary 
for novel or highly complex matters.
    9. Reporting of Outcome of Consultation to Tribes. The DOL agency 
involved in the consultation will report the status or outcome of the 
issue involved to the affected Indian tribes. And, to the extent that 
tribal input was not adopted, the agency will provide a written 
explanation for why such input was not adopted or incorporated.
    10. Formation of Tribal Committees, Task Forces, or Work Groups. 
Based on the government-to-government relationship, consultation under 
this policy is generally with one or more individual Tribal 
Governments. In some cases, it may become necessary for DOL to form a 
tribal committee, task force, or work group to study a particular 
policy, practice, issue, or concern. Members of such committees or work 
groups will include representatives of federally recognized Tribal 
Governments or their designees with authority to represent their 
interests or act on their behalf. Tribal representation on such 
committees or work groups should consist of geographically diverse 
small, medium, and large tribes, whenever possible. Members of these 
committees or work groups shall make good faith attempts to attend all 
meetings which shall be open to the public and may establish member 
roles and protocols for producing their work and obtaining input and 
comment on it. All final work group products or recommendations will be 
given serious consideration by the Department. [See Section XI below on 
the Federal Advisory Committee Act (FACA) exemption for consultations 
undertaken with officials of federally recognized Tribal Governments 
pursuant to this Tribal consultation policy.]
    11. Use of Existing Statutory Advisory Committees. DOL agencies may 
also use existing Tribal advisory committees such as the NAETC as part 
of meeting their consultation responsibilities under this policy to the 
extent otherwise permitted by law. If such an advisory committee is 
required by law to be used exclusively for a particular function or 
purpose, consultation shall take place in accordance with the 
requirements of such committee and nothing in this policy requires any 
further consultation (see, e.g., 29 U.S.C. 2911(h)).
    12. Submission of Comments by Other AI/AN Organizations. The 
primary focus of formal consultation activities under this policy is 
with representatives of federally recognized Indian tribes. DOL 
recognizes, however, that in some cases the consultation process would 
be negatively affected if other (non-federally recognized) AI/AN 
organizations lacking the government-to-government relationship were 
excluded. Accordingly, nothing in this policy prohibits other AI/AN 
organizations that are not representatives of Indian tribes from 
providing their views to the Department.

VIII. Performance and Accountability

    The consultation process and activities conducted under this policy 
should be accountable, transparent, and result in a meaningful outcome 
for the Department and for the affected Indian tribes. To enable the 
Department and the Indian tribes to effectively evaluate the 
implementation and results of this consultation policy:
    1. DOL agencies will maintain records of each consultation and will 
document the status or outcome of each subject of consultation.
    2. DOL agencies will, with input from Indian tribes, develop and 
utilize appropriate evaluation measures to assess their efforts to 
determine whether their overall consultation process is effective over 
time.
    3. DOL agencies will report annually to the office of the 
designated Departmental official on the frequency, scope, and 
effectiveness of their consultation activities including any 
recommendations received from Indian tribes on ways to improve the 
consultation process.
    4. The designated Departmental official's office will compile the 
reports of the agencies and prepare an annual DOL consultation report 
evaluating the overall effectiveness of this policy which will be made 
available to the Indian tribes. The office will seek tribal feedback on 
the annual consultation report and consider any comments from Indian 
Tribes and Federal participants to determine whether DOL should make 
any amendments to this policy.
    5. The designated departmental official's office will prepare and 
submit any reports required to be submitted to the Office of Management 
and Budget under Executive Order 13175 and the November 5, 2009, 
Presidential Memorandum.

IX. Designated Officials and Points of Contact

A. Designated Departmental Official

    The designated departmental official to coordinate the 
implementation of this policy will be the Tribal Liaison within the 
Office of Congressional and Intergovernmental Affairs, or other 
departmental officials as designated by the Secretary.
    The duties and responsibilities of the designated departmental 
official include: Serving as the Secretary's expert informational 
resource on Tribal matters; maintaining an overall understanding of 
Tribal concerns and issues as they relate to DOL programs and 
coordinating and managing the Secretary's policies for Indian Tribes; 
coordination of Tribal site visits for DOL executive leadership; 
serving as DOL's representative on interdepartmental working groups on 
Tribal matters; conducting periodic intradepartmental meetings and 
otherwise overseeing the implementation of the Department's Tribal 
consultation policy by DOL operating agencies; providing advice and 
assistance to DOL agencies and regional field offices on Tribal 
matters; and conducting outreach to national Tribal Government 
organizations.

[[Page 89477]]

B. Point of Contact for Each DOL Operating Agency

    Each DOL operating agency will designate a senior official as 
having primary responsibility for Tribal matters. The designated 
departmental official's office will maintain an up-to-date list clearly 
identifying the agency Tribal officials and their contact information 
and this information will be made available to Indian Tribes. DOL 
agencies should also designate an alternate official to serve in the 
absence of the primary official. The duties of the agency officials 
having responsibility for Tribal matters include: Having and 
maintaining knowledge of this policy and the government-to-government 
relationships and sovereign status of Indian Tribes; serving as the 
primary liaison with Indian Tribes for their agency; ensuring the 
consultation responsibilities of their agencies are carried out, 
including those of their regional offices; and reporting to the 
administration in their respective agencies, as well as the designated 
Departmental official. Unless otherwise approved by the designated 
Departmental official, these responsibilities shall not be placed 
within the agency Offices of Civil Rights, as Tribal relations and 
consultations are treaty, trust, and government-to-government based, 
and are not a function of civil rights based on race.

X. Definitions

    For the purposes of this policy, the following definitions apply:
    American Indian and Alaska Native (AI/AN)--A member of an American 
Indian or Alaska Native tribe, band, nation, pueblo, village, or 
community of indigenous peoples in the United States, as membership is 
defined by the Tribal community, including Native Hawaiians.
    AI/AN Organization--An AI/AN organization or group having members 
that are not representatives of federally recognized Indian Tribal 
governments, such as state Tribes and members of urban AI/AN groups 
that are not located on Indian Tribal lands.
    Consultation--An enhanced form of communication consisting of an 
open and free exchange of information and opinion among parties which 
emphasizes trust, respect, and shared responsibility. The consultation 
process enables mutual understanding, facilitates the effort to reach 
consensus on issues, and contributes to informed decision making.
    Deliberative Process Privilege--A privilege exempting the Federal 
Government from disclosure of government agency materials containing 
opinions, recommendations, and other internal communications that are 
part of the deliberative process within the Department or agency.
    Department--Means the U.S. Department of Labor.
    DOL Operating Agency--A Department of Labor administration, agency, 
bureau, office, or division that: (1) Has operational responsibility 
for a Departmental program that has Tribal implications; or (2) has 
been designated by the Secretary to participate in this policy.
    Executive order--An order issued by the Federal Government's 
executive on the basis of authority specifically granted to the 
executive branch (as by the U.S. Constitution or a Congressional Act).
    Indian Tribe--An Indian or Alaska Native tribe that the Secretary 
of the Interior acknowledges to exist as an Indian tribe pursuant to 
the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 
5130), and with whom the Federal Government maintains a government-to-
government relationship, including any Alaska Native village or 
regional or village corporation as defined in or established pursuant 
to the Alaska Native Claims Settlement Act (43 U.S.C. 1601-1613a). The 
Department of the Interior's Bureau of Indian Affairs maintains and 
regularly publishes the official list of federally recognized Indian 
Tribes which are generally established pursuant to a Federal treaty, 
statute, Executive order, court order, or a Federal administrative 
action making these Tribes eligible for certain Federal programs and 
benefits because of their status as Indians. A federally recognized 
Indian tribe may expressly delegate a third party to represent the 
tribe in all Tribal consultations with the Department of Labor, 
provided the Department is notified of such delegation in writing prior 
to the consultation. An Indian tribe may rescind its delegation at any 
time, but the rescission should occur in writing, if practicable.
    Policies or Actions with Tribal Implications--Refers to proposed 
legislation, regulations, policies, and actions that have substantial 
direct effects on one or more Indian Tribes, on the relationship 
between the Federal Government and the Indian Tribes, or on the 
distribution of power and responsibilities between the Federal 
Government and Indian Tribes. This encompasses a broad range of DOL 
programs and activities targeted at Tribal Governments or having AI/ANs 
as participants including, but not limited to, Tribal program 
management, rulemaking, regulations, policies, waivers and flexibility; 
grant programs; contracting opportunities; regulatory guidance; or 
other DOL activities that would have a substantial direct effect on a 
tribe's traditional way of life, Tribal lands, Tribal resources, or the 
ability of the tribe to govern its members or to provide services to 
its members. This term does not include matters that are the subject of 
litigation or that are undertaken in accordance with an administrative 
or judicial order.
    Secretary--Means the Secretary of Labor.
    Substantial Direct Compliance Costs--Those costs incurred directly 
from implementation of changes necessary to meet the requirements of a 
Federal mandate. Because of the large variation in resources among 
Tribes, ``substantial costs'' will vary by Indian tribe. Where 
necessary and appropriate, the Secretary will determine the level of 
costs that represent ``substantial costs'' in the context of an Indian 
tribe's resource base.
    To the Extent Practicable and Permitted by Law--Refers to 
situations where the opportunity for consultation is limited due to 
practical constraints including time, budget, or other such reason, and 
situations where other legal requirements take precedence.
    Tribal Committee, Task Force, or Work Group--A group composed of 
Indian Tribal officials or their designees with authority to represent 
their interests or act on their behalf that is formed to work on a 
particular policy, practice, issue, or concern. This can include 
representatives of existing organizations representing federally 
recognized Tribes, such as the NCAI.
    Tribal Officials--Tribal council members and delegates, 
chairpersons, or other elected or duly appointed officials of the 
governing bodies of Indian Tribes or authorized inter-Tribal 
organizations or their designees with authority to represent them or 
act on their behalf.

XI. Supplemental Terms and Effective Date

    1. Inapplicability of the Federal Advisory Committee Act (FACA). In 
accordance with section 204(b) of the Unfunded Mandates Reform Act of 
1995 (Pub. L. 104-4), the provisions of FACA are not applicable to 
consultations between the Federal Government and elected officers of 
Tribal Governments or their designated employees with authority to act 
on their behalf. Therefore, FACA is generally not applicable to 
consultations undertaken pursuant to this Tribal consultation policy. 
As the Office of Management

[[Page 89478]]

and Budget stated in its guidelines implementing section 204(b):
    2. This exemption applies to meetings between Federal officials and 
employees and Tribal Governments acting through their elected officers, 
officials, employees, and Washington representatives, at which `views, 
information, or advice' are exchanged concerning the implementation of 
intergovernmental responsibilities or administration, including those 
that arise explicitly or implicitly under statute, regulation, or 
Executive order. The scope of meetings covered by this exemption should 
be construed broadly to include meetings called for any purpose 
relating to intergovernmental responsibilities or administration. Such 
meetings include, but are not limited to, meetings called for the 
purpose of seeking consensus, exchanging views, information, advice, 
and/or recommendations; or facilitating any other interaction relating 
to intergovernmental responsibilities or administration. (OMB 
Memorandum 95-20 (September 21, 1995), pp. 6-7, published at 60 FR 
50651, 50653 (September 29, 1995)).
    3. If, however, DOL were to form an advisory committee consisting 
of (non-federally recognized) AI/AN organizations or groups lacking the 
government-to-government relationship, the section 204(b) exception 
would not apply and all FACA requirements would need to be followed.
    4. Reservation of Authorities. Nothing in this policy waives or 
diminishes the U.S. Government's rights, authorities, immunities, or 
privileges, including the deliberative process privilege. Among other 
things, internal communications on the development of proposed 
legislation, enforcement policy, and other internal policy matters are 
part of the deliberative process by the Executive Branch and will 
remain confidential. Nothing in this policy waives or diminishes any 
Tribal rights, authorities, immunities, or privileges including treaty 
rights and sovereign immunities, and this policy does not diminish any 
rights or protections afforded to individual AI/ANs under Federal law.
    5. Disclaimer. This document is intended to improve the 
Department's management of its relations and cooperative activities 
with Indian Tribes. DOL has no obligation to engage in any consultation 
activities under this policy unless they are practicable and permitted 
by law. Nothing in this policy requires any budgetary obligation or 
creates a right of action against the Department for failure to comply 
with this policy nor creates any right, substantive or procedural, 
enforceable at law by a party against the United States, its agencies, 
or any person.
    6. Effective Date. The Tribal Consultation Policy is effective 
October 10, 2023, and shall apply to all prospective actions taken by 
the Department as described herein.

Julie A. Su,
Acting Secretary, Department of Labor.
[FR Doc. 2023-28493 Filed 12-26-23; 8:45 am]
BILLING CODE 4510-23-P