Notice2023-28493
Revised Final Tribal Consultation Policy
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 27, 2023
Effective
October 10, 2023
Issuing agencies
Labor Department
Abstract
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.
Full Text
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<title>Federal Register, Volume 88 Issue 247 (Wednesday, December 27, 2023)</title>
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[Federal Register Volume 88, Number 247 (Wednesday, December 27, 2023)]
[Notices]
[Pages 89467-89478]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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,
<a href="/cdn-cgi/l/email-protection#347e55575f475b5a1a7e55575f1a7774505b581a535b42"><span class="__cf_email__" data-cfemail="410b20222a322e2f6f0b20222a6f0201252e2d6f262e37">[email protected]</span></a>, (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 <a href="https://www.careeronestop.org/">https://www.careeronestop.org/</a> 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
<a href="http://Regulations.gov">Regulations.gov</a>.
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 <a href="/cdn-cgi/l/email-protection#3763455e55565b74585944425b4356435e58597753585b19505841"><span class="__cf_email__" data-cfemail="82d6f0ebe0e3eec1edecf1f7eef6e3f6ebedecc2e6edeeace5edf4">[email protected]</span></a>.
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 <a href="https://www.bia.gov/sites/default/files/dup/inline-files/477_moa_signed.pdf">https://www.bia.gov/sites/default/files/dup/inline-files/477_moa_signed.pdf</a>.
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 <a href="https://www.bia.gov/sites/default/files/dup/inline-files/477_moa_signed.pdf">https://www.bia.gov/sites/default/files/dup/inline-files/477_moa_signed.pdf</a>.
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
<a href="http://www.grants.gov">www.grants.gov</a>.
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
<a href="http://apprenticeship.gov">apprenticeship.gov</a> 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 <a href="https://www.dol.gov/general/good-jobs/principles">https://www.dol.gov/general/good-jobs/principles</a>.
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
<a href="https://www.dol.gov/grants">https://www.dol.gov/grants</a> 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 <a href="http://www.dol.gov/budget/">www.dol.gov/budget/</a>.
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
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</html>Indexed from Federal Register on December 27, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.