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Review of Environmental Protection Agency Draft Guidance for Implementing Executive Order 13175, Consultation and Coordination With Indian Tribal Governments
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: April 19, 2006 (Volume 71, Number 75)]
[Notices]
[Page 20313-20329]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19ap06-174]
[[Page 20314]]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OA-2006-0248; FRL-8159-9]
Review of Environmental Protection Agency Draft Guidance for
Implementing Executive Order 13175, Consultation and Coordination With
Indian Tribal Governments
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice; request for public comment.
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SUMMARY: The Environmental Protection Agency (EPA) is seeking public
comment on its draft Guidance, Executive Order 13175: Consultation and
Coordination with Indian Tribal Governments (``Guidance''). This draft
Guidance addresses the provisions of Executive Order 13175 (``EO
13175'') and how EPA generally intends to implement EO 13175 in
connection with relevant EPA activities. EPA is seeking public comment
on this draft Guidance in order to provide EPA with a broad range of
experiences and perspectives as the draft Guidance is finalized.
DATES: Comments must be submitted on or before July 18, 2006.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OA-
2006-0248, by one of the following methods:
? http://www.regulations.gov: 
Follow the online
instructions for submitting comments.
? E-mail: OEI.Docket@epa.gov.
? Mail: OEI Docket, Environmental Protection Agency,
Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
? Hand Delivery: EPA Docket Center (EPA/DC), Room B102, EPA
West Building, 1301 Constitution Avenue, NW., Washington, DC 20460.
Attention Docket ID No. EPA-HQ-OA-2006-0248. Such deliveries are only
accepted during the Docket's normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OA-2006-
0248. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
http://www.regulations.gov, including any personal
information provided, unless the comment includes information claimed to
be Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov
or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address
will be automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at
http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the http://
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the EPA-HQ-OA
Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington,
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is (202) 566-1744, and the telephone number for the
EPA-HQ-OEI Docket is (202) 566-1752.
FOR FURTHER INFORMATION CONTACT: Joan Crawford, Office of Policy,
Economics and Innovation, Mail Code 1803A, Environmental Protection
Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone
number: (202) 564-6568; fax number: (202) 564-0965, e-mail:
crawford.joan@epa.gov or Jose Aguto, American Indian Environmental
Office, Mailcode 4104, Environmental Protection Agency, 1200
Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: (202)
564-0289; fax number: (202) 564-0298, e-mail: aguto.jose@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
This draft Guidance document is intended for EPA managers and staff
who are involved in planning and/or developing actions such as
regulations, legislative comments or proposed legislation, and other
policy statements or actions. While this draft Guidance is open for
public comment, this draft Guidance may be of particular interest to
Indian tribes, tribal officials, and those charged with the
responsibility of ensuring the protection of public health and the
environment in Indian country and elsewhere.
The statements in this draft document are intended solely to
provide internal EPA guidance. This document is designed to implement
EO 13175, Consultation and Coordination with Indian Tribal Governments.
The draft document does not, however, substitute for requirements in
federal statutes or regulations, nor is it a requirement itself. This
document is not intended, nor can it be relied upon, to create any
right or trust responsibility enforceable in any cause of action by any
party against the United States, its agencies, officers or any other
person. It does not impose legally binding requirements on EPA or
anyone else, and may not apply to a particular situation based upon the
circumstances. EPA may change this Guidance in the future, as needed or
appropriate, without public notice. In addition, EO 13175, by its
terms, is itself intended only to improve the internal management of
the executive branch and is not intended to create any right, benefit,
or trust responsibility, substantive or procedural, enforceable at law
by a party against the United States, its agencies, or any person.
B. How Can I Get Copies of the Draft EPA Guidance, Other Related
Documents, and Additional Information?
You may view copies of the draft Guidance, other related documents,
or request additional information by contacting:
1. By mail: Joan Crawford or Jose Aguto at the addresses listed
under FOR FURTHER INFORMATION CONTACT.
2. In person. Copies of the entire draft Guidance, together with
other related documents, may be examined during normal business hours
at the OA Docket, at the docket address listed under ADDRESSES.
[[Page 20315]]
3. http://www.regulations.gov/ Publicly available docket
materials are available electronically in http://www.regulations.gov.
by entering Docket ID No. EPA-HQ-OA-2006-0248. The electronic public docket
includes an index of all available documents associated with this
action as well as electronic versions of those documents.
C. What Should I Consider as I Prepare My Comments for EPA?
When submitting comments, remember to:
1. Identify the action by docket ID number and other identifying
information (subject heading, Federal Register date, and page number).
2. Follow directions. The Agency may ask you to respond to specific
questions or organize comments by referencing a specific chapter or
section number.
3. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
4. Describe any assumptions and provide any technical information
and/or data that you used.
5. Provide specific examples to illustrate your concerns, and
suggest alternatives.
6. Explain your views as clearly as possible, avoiding the use of
profanity, obscene language, or personal threats.
7. Make sure to submit your comments by the comment period deadline.
Background
EO 13175 was signed on November 6, 2000 and sets forth various
provisions regarding consultation and coordination between Federal
agencies undertaking ``policies that have tribal implications'' and
Indian tribal governments. This draft Guidance is intended to describe
EPA's policy views regarding the provisions and procedures of the EO
and to assist EPA personnel in implementing the EO as the Agency
undertakes its various actions. Although other federal and EPA policies
relating to Indian tribes and government-to-government consultation
between EPA and Indian tribes may be referenced in the draft Guidance,
the draft Guidance is not intended to define the scope of procedures
that may be called for under, or otherwise to implement, those separate
documents. Thus, where, for instance, the draft Guidance discusses
consultation between EPA and Indian tribal governments, such
consultation and related procedures are designed to relate specifically
to the EPA/tribal interaction called for by EO 13175.
In developing this draft Guidance, EPA considered the unique
relationship between the Federal government and Indian tribes and
attempted to address various complex issues as they arose to help
strengthen our efforts to work with tribes and establish regular and
meaningful consultation and collaboration with tribes as contemplated
by EO 13175. Prior to developing this draft Guidance document, EPA
convened an internal workgroup to consider the provisions of the EO and
potential procedures to implement the EO in the context of EPA
programs. During this early development stage, the EPA workgroup had
significant interaction with representatives of tribal governments
selected and designated for this purpose by the Tribal Caucuses of each
of the EPA Regional Tribal Operations Committees. This interaction
included active participation by the designated tribal representatives
in regularly scheduled teleconferences with EPA staff to exchange
ideas, insights and experiences, and to identify challenges related to
outreach, engagement and consultation between EPA and Indian tribal
governments as well as possible solutions and methods by which EPA and
tribal officials might improve the consultation process. EPA recognizes
the significance of this early tribal involvement in the process of
developing EPA's approach to implementation of EO 13175 and looks
forward to additional tribal input as part of this comment process.
EPA is seeking comment on the entire document but would appreciate
special consideration of the following issues at this time:
Section 1(a) of EO 13175 defines the term ``Policies that have
tribal implications.'' In addition to regulations, legislative comments
and proposed legislation, the EO includes a reference within the
definition of that term to ``other policy statements or actions'' that
have substantial direct effects on one or more Indian tribes, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes. EPA believes that the reference to such
``other policy statements or actions'' potentially includes issuance of
EPA policy statements, strategies, guidelines, guidance and
interpretive documents (collectively, ``guidance documents''). EPA's
position set forth in the draft Guidance is that guidance documents
generally do not create legally binding requirements and, therefore,
will not have ``substantial direct effects'' as described in the EO.
Thus, where there are no legally binding requirements being created,
such guidance documents generally will not have Tribal Implications and
will not trigger the various requirements of EO 13175. However, where a
document does create legally binding requirements, it may have Tribal
Implications. EPA is seeking comment on this issue, including
information regarding prior EPA guidances that commenters believe may
have had substantial direct effects as described in EO 13175. In
addition, EPA is specifically seeking comment on applicability of the
EO to certain other types of EPA actions as set forth in Chapter 5 of
the draft Guidance.
Comments received within the 90-day period designated in this
notice will be taken under consideration as the EPA workgroup continues
drafting the Guidance and the key attachments to the Guidance.
Dated: April 13, 2006.
Brian F. Mannix,
Associate Administrator, Office of Policy, Economics and Innovation.
Draft Guidance: Guidance, Executive Order 13175: Consultation and
Coordination With Indian Tribal Governments.
Table of Contents
List of Acronyms, Abbreviations, and Key Definitions
Executive Summary
What Is the Purpose of This Document?
What Is in This document?
1. Overview of chapters
2. A note about the development of this draft Guidance document
3. Scope and applicability of this draft Guidance document
4. How do the requirements of Executive Order13175 relate to
EPA's existing Tribal policy framework?
Chapter 1--Introduction to Executive Order 13175
1.1 What Is Executive Order 13175 and What Does It Require?
1.2 What Are Tribal Coordination and Consultation?
A. Coordination
B. Consultation
1.3 What Is the Federal Government's Relationship With Tribal
Governments and How May Tribal Interests be Distinct From Those of
State and Local Governments?
Chapter 2--Regulations (or ``Rules'')
2.1 How Will I Know If My Rule is Subject to Executive Order 13175?
2.2 What Resources and Tools Can I Access To Help Determine If My
Rule Has Tribal Implications?
2.3 What Do I Do If My Rule is Subject to the Executive Order?
A. Coordination
B. Consultation
C. Certification
2.4 What Do I Do If My Rule Does Not Have TribaI Implications?
[[Page 20316]]
2.5 What Do I Do If My Rule Has TribaI Implications
2.6 What Are the Types of Rules With TribaI Implications for Which I
Must Consult With Tribal Officials?
A. Rules With TribaI Implications That Impose Substantial Direct
Compliance Costs
B. Rules That Preempt Tribal Law
C. Federal standards
2.7 What Should I do If My Rule Has TribaI Implications and I Am
Required to Consult?
A. Consultation Plan Development
B. Complying With Section 5 of Executive Order
2.8 What Steps Do I Follow for My Rule?
2.9 What Help and Participation Can I Expect as I Develop My Rule?
2.10 How Do I Begin the Tribal Consultation Process?
A. Coordination and Outreach
B. Engaging Tribal Officials
C. Consultation With Tribal Officials
2.11 Process for Executive Order 13175 Certification
2.12 How Does EPA Track and Record Actions Affected the Executive Order?
Chapter 3--Legislative Comments or Proposed Legislation
3.1 How Does Executive Order 13175 Apply to Legislative Comments or
Proposed Legislation Submitted by EPA?
3.2 Does the Executive Order Apply When EPA Provides Comments to
Another Agency on Their Draft Legislation or Provides Technical
Assistance to Congressional Staff?
Chapter 4--Waivers
4.1 What Does the Executive Order Require Concerning Indian Tribes
Applying for Waivers of Statutory and Regulatory Requirements?
4.2 What Does the Executive Order Contain About Flexible Policy Approaches?
Chapter 5--Permits and Licenses
5.1 Do the Executive Order Requirements Apply to Permitting Activities?
Chapter 6--Policy Statements, Guidance Documents and Similar Actions
6.1 Are EPA's Policy Statements, Guidance Documents, and Similar
Actions Covered by Executive Order 13175?
6.2 Do the Requirements of Executive Order 13175 Apply If My
Guidance Document Is Not Titled a ``Rule'' or ``Regulation'' But
Contains Legally Binding Requirements?
6.3 An Important Note About Guidance Documents and EPA's Policy On
Consulting With Tribal Governments
Attachments
A. Executive Order 13175: Consultation and Coordination with Indian
Tribal Governments
B. EPA's 1984 Policy for the Administration of Environmental
Programs on Indian Reservations
C. Stephen L. Johnson's September 26, 2005 Memorandum Reaffirming
EPA's 1984 Indian Policy
D. EPA's April 29, 1994 Memorandum on Government-to-Government
Relations With Native American Tribal Governments
E. EPA's Indian Program Infrastructure and Examples of Tribal
Partners (flowchart)
F. Executive Order 13175 Analysis for EPA Rules and Regulations (flowchart)
G. Recommendations for Developing Tribal Consultation Plans
H. Executive Order 13175 Preamble Template Language
I. Executive Order 13175 Compliance Certification Form
J. Agency Contacts
Note: Attachments A through D (as listed in the table of
contents) are available in the docket (EPA-HQ-OA-2006-0248) for this
draft Guidance. Attachments E through J are in the drafting stage
and not open for public comment. Those attachments therefore are not
provided in the docket for this draft Guidance document.
List of Acronyms, Abbreviations and Key Definitions
AIEO: American Indian Environmental Office of EPA (within the
Office of Water).
EO: Executive Order. When used alone, it refers to EO 13175.
FACA: Federal Advisory Committee Act.
OGC: Office of General Counsel.
OIA: Office of International Affairs.
OMB: Office of Management and Budget.
OPEI: Office of Policy, Economics and Innovation.
OPPTS: Office of Prevention, Pesticides and Toxic Substances.
ORC: Office of Regional Counsel.
PRA: Paperwork Reduction Act.
RIC: Regional Indian Coordinator.
RFA: Regulatory Flexibility Act.
RMD: Regulatory Management Division.
RRC: Regional Regulatory Contact.
RSC: Regulatory Steering Committee.
S/L/T: State, local, and Tribal governments.
UMRA: Unfunded Mandates Reform Act.
Key Definitions
Authorized Inter-Tribal Organization: For the purposes of this
draft Guidance, an ``authorized inter-tribal organization'' is an
organization that has been officially designated by the elected or
duly-appointed leader of a federally recognized Tribal government to
represent that Tribe on a particular issue. EPA would generally
recognize an inter-tribal organization as ``authorized'' after
receiving confirmation from an elected or duly-appointed Tribal leader
that organization is authorized to consult with EPA on the Tribe's
behalf. Consultation with intertribal organizations can enhance but
should not be an acceptable substitute for direct consultation with
Tribal governments, unless officially delegated the authority by the
Tribal government. EPA recommends that such confirmation be provided in
writing (e.g., letter, e-mail).
Duly Appointed Officials: For the purposes of this draft Guidance,
``duly appointed officials'' are representatives that have been
officially designated by elected or duly-appointed leaders of federally
recognized Tribal governments to represent their Tribes on a particular
issue. EPA would generally recognize a representative of a Tribal
government as a ``duly appointed official'' after receiving
confirmation from an elected or duly-appointed Tribal leader that the
representative is authorized to consult with EPA on the Tribe's behalf.
EPA recommends that such confirmation be provided in writing (e.g.,
letter, e-mail).
EPA's 1984 Indian Policy: The EPA Policy for the Administration of
Environmental Programs on Indian Reservations.
EPA's Indian Program: The phrase ``EPA's Indian Program'' generally
describes the composition of EPA's offices, internal workgroups and
employees across the Agency's specific environmental program offices
that work in whole or in part on Tribal environmental issues. EPA
offices devoted specifically to Tribal issues include the American
Indian Environmental Office (AIEO) and the Regional Tribal Offices.
Internal workgroups include the National Indian Workgroup (NIWG), the
Indian Policy Program Council (IPPC) and the National Indian Law
Workgroup (NILWG). Contact information is located at
http://www.epa.gov/indian/miss.htm.
Indian Tribe: `Indian Tribe' means an Indian or Alaskan Native
Tribe, band, nation, pueblo, village, or community that the Secretary
of the Interior acknowledges to exist as an Indian Tribe pursuant to
the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.\1\
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\1\ Executive Order 13175, section 1(b).
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Order: Executive Order 13175.
Tribal Coordination: For the purposes of this draft Guidance
document, coordination refers to the harmonization of EPA's Tribal
outreach and information dissemination/exchange activities to ensure
that Tribal governments are aware of EPA actions that might impact them
and afforded the opportunity to alert EPA that they wish to be
consulted according to the terms of Executive Order 13175 early in the
process of developing those actions.
Tribal Consultation: For the purposes of this draft Guidance
document, and to the extent practicable and permitted by
[[Page 20317]]
law, consultation consists of a meaningful and timely two-way exchange
with Tribal officials in developing Agency actions, providing for open
sharing of information, the full expression of Tribal and EPA views, a
commitment to consider Tribal views in decision-making, and respect for
Tribal self-government and sovereignty.
Tribal Implications: `Policies that have Tribal implications'
refers to regulations, legislative comments or proposed legislation,
and other policy statements or actions that have substantial direct
effects on one or more Indian Tribes, on the relationship between the
Federal Government and Indian Tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian Tribes.\2\
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\2\ Executive Order 13175, section 1(a).
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Tribal Officials: `Tribal officials' means elected or duly
appointed officials of Indian Tribal governments or authorized
intertribal organizations.\3\
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\3\ Executive Order 13175, section 1(d).
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Executive Summary
What Is the Purpose of This Document?
This draft Guidance document provides guidance to EPA staff on how
to meet requirements of Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments'', and recommends how EPA
staff should set about the consultation process when required.
What Is in This Document?
Chapter 1: Introduction to Executive Order 13175
This chapter discusses what is Executive Order 13175 and what EPA
is required to do under the Order, and, for purposes of this draft
Guidance, what are Tribal Coordination and Consultation. This chapter
also outlines the Federal Government's relationship with Tribal
Governments and how Tribal interests may be distinct from State and
Local Governments.
Chapter 2: EPA Regulations
This chapter provides EPA staff and managers guidance on how to
determine whether EPA regulations are subject to Executive Order 13175,
and what EPA staff should do if the regulation is subject to the Order.
Chapter 2 discusses how to determine whether a regulation has Tribal
implications, and what EPA should or must do if a rule is determined to
have (or not have) Tribal implications. This chapter describes whether
and how EPA should or must coordinate or consult with Tribal officials
on a regulation, and outlines steps EPA should follow to coordinate
with Tribal officials on a regulation. This chapter also discusses how
EPA should develop a consultation plan, and when and how to begin the
Tribal consultation process. In addition, this Chapter discusses
whether and how EPA's certification process under Executive Order 13175
applies to regulation activities, and how does EPA track and record
actions affected by the Order.
Chapter 3: Legislative Comments or Proposed Legislation
Chapter 3 discusses how Executive Order 13175 applies to
legislative comments or proposed legislation submitted by EPA, and
whether the Order applies when EPA provides comments to another Federal
agency on their draft legislation or provides technical assistance to
Congressional staff.
Chapter 4: Waivers
This chapter discusses Executive Order 13175 requirements that
apply to applications submitted to EPA by Tribal governments seeking to
waive some or all of the statutory or regulatory requirements that
apply to them. Chapter 4 also discusses the EPA's flexibility when
considering Tribal applications for waivers of statutory and regulatory
requirements.
Chapter 5: Permits
Chapter 5 discusses whether and how the requirements of Executive
Order 13175 apply to permitting activities.
Chapter 6: Policy Statements, Guidance Documents and Similar Actions
This chapter discusses whether and how Executive Order 13175
requirements apply to EPA's development of policy statements, guidance
documents, and similar actions. This chapter discusses under which
situations the requirements of the Executive Order may apply to these
statements, documents or actions, and when consultation is recommended
even if it is not required under the Executive Order.
Attachments
(a) Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments.
(b) EPA's 1984 Policy for the Administration of Environmental
Programs on Indian Reservations.
(c) Stephen L. Johnson's September 26, 2005 Memorandum Reaffirming
EPA's 1984 Indian Policy.
(d) EPA's April 29, 1994 Memorandum on Government-to-Government
Relations With Native American Tribal Governments.
(e) EPA's Indian Program Infrastructure and Examples of Tribal
Partners (flowchart).
(f) Executive Order 13175 Analysis for EPA Rules and Regulations
(flowchart).
(g) Recommendations for Developing Tribal Consultation Plans.
(h) Executive Order 13175 Preamble Template Language.
(i) Executive Order 13175 Compliance Certification Form.
(j) Agency Contacts.
A Note About the Development of This Draft Guidance Document
As with many guidance documents, this draft Guidance is a living
document. We acknowledge that, over time, we may need to revise and
improve this draft Guidance based on the consultation experiences of
EPA and Tribes. You should take advantage of the insight and knowledge
that Tribal governments will afford you in your consultation
opportunities when dealing with policies that have Tribal implications
and not merely because the Executive Order requires it. Incorporating
the views and concerns of Indian Tribal governments in the action
development process may help to bring about more effective
implementation and collaboration on actions that are beneficial to
public health and the environment in Indian country and elsewhere. As
such, the Agency's mission of protecting human health and the
environment is advanced by the Tribal consultation process.
Scope and Applicability of This Draft Guidance Document
A. Scope
This draft Guidance document summarizes the requirements under
Executive Order 13175, and recommends how EPA staff should set about
the consultation process when required. For some actions, separate EPA
policies relating to Indian Tribes (described later in this section in
``How Do the Requirements of Executive Order 13175 Relate to EPA's
Existing Tribal Policy Framework?'') may be broader than the Executive
Order, reflecting EPA's commitment to early and meaningful consultation
whenever possible. However, this draft Guidance document is in no way
intended to serve as a guide to EPA's implementation of any other
statute, executive or judicial order, memoranda on administration
policy, or internal EPA policy directive concerning Tribal governments
and the development and/or implementation of EPA policies. This
[[Page 20318]]
draft Guidance document is not a holistic guide to consultation with
Tribal governments and should not be interpreted as such.
B. Applicability
This draft Guidance document is intended for EPA managers and staff
who are responsible for planning and/or developing actions such as
regulations, legislative comments or proposed legislation, and other
policy statements or actions. The requirements of Executive Order 13175
will apply to your action if it will have substantial, direct effects
on Tribal governments. This draft Guidance document also describes when
consultation with Tribal officials is required under this Executive
Order, and how EPA staff should set about the consultation process when
required. What you should do to comply with the Order depends on the
type of action that you are developing. The following table tells you
where to continue reading, based on the type of your action:
------------------------------------------------------------------------
Then go here for more
information about whether
If your action is a . . . the Order applies and what
to do . . .
------------------------------------------------------------------------
Regulation (or ``Rule'').................. page (to be added in final).
Legislative Comment or Proposed page (to be added in final).
Legislation.
Waiver.................................... page (to be added in final).
Permits/License........................... page (to be added in final).
Policy Statement/Guidance Document........ page (to be added in final).
------------------------------------------------------------------------
While you should read carefully through this draft Guidance to
identify what, if anything, you should do to comply with the Executive
Order requirements, this draft document is not intended to prohibit any
alternative methods of complying with those requirements as they may
apply to your action.
How Do the Requirements of Executive Order 13175 Relate to EPA's
Existing Tribal Policy Framework?
In situations where your action does not have Tribal implications,
and thus does not trigger relevant requirements of the Executive Order,
it is still important to assess Tribal interests that may be affected
by your action and consider whether other Executive or EPA policies or
legal requirements call for the Agency to seek Tribal input or
otherwise address Tribal issues. At various places, this draft Guidance
may recommend seeking Tribal input and considering Tribal views and
interests regarding EPA actions that do not have Tribal implications
under Executive Order 13175. Where such recommendations are based
solely upon considerations apart from Executive Order, they should not
be interpreted as an indication of any EPA position regarding the scope
or implementation of Executive Order 13175. Any such recommendations
are only intended to help you address the separate legal and policy
considerations in a manner consistent with this Executive Order. When
developing a policy that has Tribal implications pertaining to a U.S.
border region and implements a binational/international treaty and/or
agreement, you should consult with the Office of International Affairs
(OIA) about any issues that warrant your consideration.
Consider, for instance, the EPA Policy for the Administration of
Environmental Programs on Indian Reservations (a.k.a. the ``Indian
Policy'') and the April 29, 1994 Presidential Memorandum regarding the
Government-to-Government Relations With Native American Tribal
Governments. Consistent with these and other policy statements and the
Federal government's trust responsibility to federally-recognized
Indian Tribes, EPA generally attempts to engage Tribes regarding Agency
actions that may affect Tribes through government-to-government
consultation and other means of outreach. It is important to note that
separate policies and considerations, such as the following, may have
different threshold standards than Executive Order 13175 that you might
need to consider even if you determined that your action would not have
Tribal implications as defined in the Executive Order.
A. EPA's Indian Policy
The EPA Indian Policy states that the ``keynote'' of EPA's effort
to protect human health and the environment on Indian reservations will be:
``* * * to give special consideration to Tribal interests in
making Agency policy, and to insure the close involvement of Tribal
Governments in making decisions and managing environmental programs
affecting reservation lands.''
EPA's Indian Policy goes on to recognize Tribes as the primary
parties for setting standards, making environmental policy decisions,
and managing programs for Indian reservations consistent with Agency
standards and regulations. The policy states that EPA will, consistent
with the Federal trust responsibility, assure that Tribal concerns and
interests are considered where EPA's actions and/or decisions may
affect reservation environments. Similarly, the guidance document for
implementing EPA's Indian Policy states, among other things, that:
"[w]here EPA manages Federal programs and/or makes decisions
relating directly or indirectly to reservation environments, full
consideration and weight should be given to the public policies,
priorities and concerns of the affected Indian Tribes as expressed
through their Tribal Governments. Agency managers should make a
special effort to inform Tribes of EPA decisions and activities
which can affect their reservations and solicit their input as we
have done with State Governments. Where necessary, this should
include providing the necessary information, explanation and/or
briefings needed to foster the informed participation of Tribal
Governments in the Agency's standard-setting and policy-making activities."
B. 1994 Presidential Memorandum
In addition, the April 29, 1994 Presidential Memorandum regarding
the Government-to-Government Relations With Native American Tribal
Governments sets forth various principles designed to clarify the
federal government's responsibility to:
(1) Operate within a government-to-government relationship with
federally-recognized Tribes and
(2) Build more effective working relationships respecting the
rights of such Tribes to self-government.
The Presidential Memorandum also requires agencies to consult, to
the greatest extent practicable and to the extent permitted by law,
with Tribal Governments prior to taking actions that affect federally-
recognized Tribal Governments and to assess the impact of Federal
plans, projects, programs, and activities on Tribal trust resources and
assure that Tribal Government rights and concerns are considered during
the development of such plans, projects, programs, and activities.
Chapter 1: Introduction to Executive Order 13175
1.1 What Is Executive Order 13175 and What Am I Required to Do?
On November 6, 2000, President Clinton issued Executive Order
13175, ``Consultation and Coordination with Indian Tribal
Governments,'' to establish regular and meaningful consultation and
collaboration with Tribal officials in the development of Federal
policies that have Tribal implications, to strengthen the United States
government-to-government relationships with Indian Tribes, and to
reduce the imposition of unfunded mandates upon Indian Tribes. The
Executive Order (the ``EO'' or ``Order'')
[[Page 20319]]
established specific requirements for agencies as they develop policies
with Tribal implications (TI) and emphasizes consultations with elected
and duly appointed Tribal officials of Tribal governments and
authorized intertribal organizations. For example, the Order directs
agencies to formalize practical and achievable procedures within their
decision-making systems to ensure that Tribal officials have the
opportunity to consult, as required by the Order, in a ``meaningful and
timely manner.''
The requirements of Executive Order 13175, as described throughout
this draft Guidance document, apply to policies that have Tribal
implications. The Executive Order describes these types of policies as
regulations, legislative comments or proposed legislation, and other
policy statements or actions that have substantial direct effects on:
? One or more Indian Tribes;
? The relationship between the Federal government and the
Indian Tribes; or
? The distribution of power and responsibilities between the
Federal government and Indian Tribes.
As the EO's description of policies that have Tribal implications
is rather broad, this draft Guidance document does not identify
specific EPA actions or types of EPA actions as examples of policies
that are definitely subject to the EO requirements. On the one hand, it
could be useful to understand that a specific type of action might be
more likely to have TI. However, on the other hand, it is important to
recognize not only that any identified types of actions may not always
have TI, but that identifying a specific action or types of actions
within these pages might have been construed by some managers and staff
to be the entirety of actions that are subject to the EO. Since a broad
array of actions are potentially subject to the EO, managers and staff
need to carefully consider whether a given action falls within the
scope of the EO. In this light, then, your action might have TI if it:
? Directly impacts Tribal interests, such as access to natural
resources, that are specifically recognized by treaty, statute, etc.
? Directly impacts Tribal natural resources and trust lands
that the Federal government has a responsibility to protect.
? Directly applies to lands of interest to Tribes, including
ceded land where Tribes retain usufructuary rights, reservation land,
dependent Indian communities, and allotments.
? Directly applies to the activities, or impacts the
authority, of Tribal governments.
1.2 What Are Tribal Coordination and Consultation?
[1.2] A. Coordination
For the purposes of this draft Guidance document, coordination
refers to the harmonization of EPA's tribal outreach and information
dissemination/exchange activities to ensure that Tribal governments are:
(1) Aware of EPA actions that might impact them and
(2) Afforded the opportunity to alert EPA's offices and officials
that they wish to be consulted with according to the requirements of
Executive Order 13175 early in the process of developing those actions.
The unique government-to-government relationship between EPA and
Tribes presents various complexities. As discussed in Part 2.10(a)
(Coordination and Outreach), Agency staff are encouraged to coordinate
with Tribal governments during the early stages of action development
to determine whether the action has potential TI that may call for
government-to-government consultation under the EO. The Office of
Policy, Economics and Innovation's (OPEI's) Regulatory Management
Division (RMD) works with the members of the Agency's Regulatory
Steering Committee (RSC) and the American Indian Environmental Office
(AIEO) to coordinate the development and dissemination of information
to Tribal governments regarding the Agency's regulatory activities. The
Agency anticipates that, in the spirit of collaboration, Tribal
governments will review the information and provide their views, in a
meaningful and timely fashion, on whether actions may have potential TI
and warrant further coordination or consultation with the Tribes. In
some cases, the coordination efforts described above may be adequate
for your action.
Good faith efforts to reach out to and coordinate with Tribes
should be undertaken in order to assist EPA in determining whether a
consultation obligation under the EO exists and as part of discharging
any duty to consult that is identified. The Agency has a Tribal affairs
infrastructure already in place that might be helpful to you as you
undertake these responsibilities. You may find it useful to seek the
help of EPA staff with expertise in Tribal affairs as you evaluate your
actions and coordinate with Tribal governments to determine if Tribal
consultation obligations under the EO exist. For instance, the help and
knowledge of the Indian program representatives in EPA's headquarters
and regional offices may be of great value.
AIEO Indian Coordinators and Indian program representatives are
often aware of Tribal organizations that have subject matter expertise
on the EPA action in question, and may be able to connect you with
those groups for further insight and feedback.\4\ For example, AIEO has
regularly scheduled conference calls with the Tribal Caucus of the
Tribal Operations Committee, which is composed of Tribal leaders and
Tribal environmental professionals. Most Regional Tribal Offices
interact with a Regional Tribal Caucus as well. In another example at
headquarters, Office of Prevention, Pesticides and Toxic Substances
(OPPTS) works regularly with the Tribal Pesticides Program Council
(TPPC) and the Tribal Assistance Project of Forum On State and Tribal
Toxics Action (FOSTTA). The TPPC and FOSTTA are both composed of
environmental directors with expertise on issues related to pesticides
and toxic substances.
---------------------------------------------------------------------------
\4\ Meetings with outside organizations may be subject to the
Federal Advisory Committee Act (FACA). Consult your Office of
General/Regional Counsel attorney to determine whether FACA applies
to your meeting.
---------------------------------------------------------------------------
AIEO Indian Coordinators and Indian program representatives are
also often aware of preferred Tribal consultation protocols and special
Tribal considerations. For example, many members of Alaska Native
Tribes spend the summer months engaged in subsistence activities. In
this example, non-responses to EPA inquiries during that time should
not automatically be construed as a lack of interest. Rather, EPA's
coordination and, as appropriate, consultation efforts should be
implemented, where possible, when active participation in the
development of policies likely to be of interest to these Alaska Native
Tribes and villages can be maximized.
[1.2] B. Consultation
The Agency generally defines Tribal consultation with Tribal
governments as a meaningful and timely government-to-government
dialogue with elected or duly appointed Tribal officials or authorized
intertribal organizations (Acronyms, Abbreviations and Key Definitions).
To the extent practicable and permitted by law, consultation
consists of a meaningful and timely two-way exchange with Tribal
officials in developing Agency actions, providing for open sharing of
information, the full expression of Tribal and EPA views, a commitment
to consider Tribal views in decision-making, and respect for Tribal
self-government and sovereignty. Where one or more Tribes and the Agency
[[Page 20320]]
explicitly or inherently share intergovernmental responsibilities or
administration, the Agency seeks mutually acceptable resolutions as
part of consultation, when feasible. However, the Tribal officials
being consulted do not have the power to stop Agency action by
withholding consent.
A need for Tribal consultation under the EO for an agency action is
determined as a result of EPA evaluation, as described in 2.2 (for
regulations, 2.6 and 2.7), and coordination. In certain limited
circumstances as described in section 3c and section 5 of the EO and
elaborated upon in Parts 2.6 and 2.7 of this guidance, Tribal
consultation is required of the Agency. Where Tribal consultation is
recommended or required, this draft Guidance also provides assistance
on resources and personnel who can assist you in the implementation of
Tribal consultation.
1.3 What Is the Federal Government's Relationship With Tribal
Governments and How May Tribal Interests Be Distinct from Those of
State and Local Governments?
Indian Tribes are distinct entities, sometimes described as
domestic dependent nations, exercising attributes of sovereignty over
their members and territory. Among other things, the Federal government
has a trust responsibility to federally-recognized Tribes arising from
various documents, including the Constitution of the United States,
treaties, statutes, executive orders, and court decisions, as well as
the historical relations between the United States and the Tribes.
Although the precise legal contours of this trust responsibility
are not fully defined, it can be described as including general and
specific components providing for the Federal government to, among
other things, consult with and consider the views and interests of
Tribes when taking actions that may affect Tribes or their resources
and to ensure that its actions are consistent with the protection of
Tribal rights arising from treaties, statutes and Executive Orders.
Consistent with this responsibility and with its legal and political
relationship with Tribes, the Federal Government works with Tribes on a
government-to-government basis to address issues concerning Tribal
self-government, Tribal trust resources and Tribal treaty and other rights.
EO 13175 specifically recognizes the special relationship between
the Federal government and Indian Tribes and requires that agencies be
guided by certain fundamental principles in formulating or implementing
policies with Tribal implications. As outlined in section 2 of the EO,
these fundamental principles recognize that the United States has a
unique legal relationship with Indian Tribal governments as set forth
in the Constitution of the United States, treaties, statutes, executive
orders, and court decisions. They further acknowledge that the United
States recognizes Indian Tribes as domestic dependent nations under its
protection and that the Federal Government has enacted numerous
statutes and promulgated numerous regulations that establish and define
a trust relationship with Indian Tribes. In addition, the Executive
Order recognizes that Indian Tribes exercise certain inherent sovereign
powers over their members and territory, that they have the right to
self-government, and that the United States supports Tribal sovereignty
and self-determination and works with Indian Tribes on a government-to-
government basis.
In addition, understanding the Federal/Tribal relationship and the
unique and varied Tribal interests in lands and other natural resources
and in respecting their sovereign prerogatives will also help in
identifying policies that have Tribal implications in the first
instance and developing a constructive foundation for consultation
between the Agency and the Tribes.
It is important to note that Tribes are distinct from state and
local governments and that Agency actions may have unique political,
legal and resource implications for Tribes that are not encountered
with other governments. For instance, Tribes and Tribal members may
retain various hunting, fishing and gathering rights in areas, or may
attach religious and cultural significance to resources, located
outside and at a distance from the areas of Indian country they occupy.
In addition, economic conditions in Tribal communities may differ from
conditions outside of Indian country and thus may uniquely affect the
assessment of potential impacts on Tribes. Further, unlike state areas,
the histories of some areas of Indian country and the opening up of
some Indian reservations to settlement by non-Tribal members has
resulted in complex relationships between Tribal and state governments
and Tribes and non-Tribal owners of reservation land. It is important
to consider these relationships and the integrity of reservation
boundaries in assessing impacts of Agency actions on Tribes. For
further information on the relationship between the Federal government
and Tribal governments and on unique Tribal interests, contact your
AIEO liaison or Indian Program representative and/or refer to AIEO's
Working Effectively with Tribal Governments Guidance.
Chapter 2: Regulations (or ``Rules'')
2.1 How Will I Know If My Rule Is Subject to Executive Order 13175?
Executive Order 13175 applies to rules with Tribal implications. As
noted in the Chapter 1, this means a rule that has substantial direct
effects on:
(1) One or more Indian Tribes;
(2) The relationship between the Federal Government and the Tribes;
or
(3) The distribution of power and responsibilities between the
Federal Government and Indian Tribes.
2.2 What Resources and Tools Can I Access To Help Determine If My Rule
Has Tribal Implications?
There are several tools and resources you can use to help determine
whether your rule has Tribal implications. Some of them, used
individually, will not provide a clear determination, and therefore the
use of several at the same time is recommended.
Collaboration with EPA Employees
Because the guidelines are not clear, perhaps the most important
resource to access are relevant EPA employees, including:
? RSC representative in your program office--
http://intranet.epa.gov/adplibrary/rsc/index.htm.
? Tribal Liaison in your Program office--
http://www.epa.gov/indian/miss.htm.
? Regional Indian Coordinator (RIC)--
http://www.epa.gov/indian/region.htm.
? RMD representative--
http://intranet.epa.gov/adplibrary/contacts.htm#DO.
? AIEO representative--http://www.epa.gov/indian/
? Office of General Counsel (OGC) representative--
http://intranet.epa.gov/ogc/issues.htm#assign.
Sections 2 and 3 of the Executive Order
Sections 2 and 3 of the EO describe fundamental principles and
policy making criteria respectively that provide the initial context
that is unique to Tribes to assist in a TI determination. For example,
section 2(b) of the EO states ``The United States continues to work
with Indian Tribes on a government-to-government basis to address
issues concerning Indian Tribal self-government, Tribal trust
resources, and Indian Tribal treaty and other rights.'' ``Indian tribal
treaty and other rights'' may include Tribal interests on land and
waters outside formal reservation boundaries. A rulemaking
[[Page 20321]]
on such lands may have Tribal implications.
Existing Analytical Tools
EPA also has existing analytical tools that it applies to other
entities such as states, local governments and small entities, that may
be of some assistance when formulating your Tribal implications
determination. The analyses used under the Federalism Executive Order
and Unfunded Mandates Reform Act (UMRA) (See section 2.6 of the draft
Guidance) can assist you in determining whether your rule has an
economic impact upon a Tribe that is substantial and direct.
Preemption of Tribal Law
With the help of Agency counsel, you might determine that your rule
may preempt existing Tribal law, which may affect your Tribal
implications determination.
Other Tools
Rules that would apply directly to Indian country may be more
likely to have Tribal implications, such as when a regulation would be
expected to impose substantial direct compliance costs on one or more
Tribal governments. These rules do not have to be national in scope,
but are intended to be applied to a specific geographic area which
includes Tribes. A Tribal implications determination can be made even
if it does not impose substantial direct compliance costs or preempt
Tribal law. For example, you could determine that your rule might
directly impact Tribal interests (such as land rights and access to
natural resources) that are specifically recognized by treaty, statute
or federal court rulings and/or that fall within the Federal
government's trust responsibility. Other examples of the kinds of rules
that you should more closely scrutinize for possible Tribal
implications include those that might:
? Establish Federal standards that must be met and/or
implemented by Tribal governments.
? Establish or suggest safety levels or levels of protection
of, and/or access to, waterways and/or lands and/or other resources of
significance to Tribes or held in trust by the Federal government for
Tribes.
? Authorize or delegate state, local, and/or Tribal
authority over Federal environmental programs or projects in areas
where Tribes are located.
? Affect jurisdictional arrangements between the Federal,
state and Tribal governments.
? Establish rules in geographic areas that include Indian
Country or lands in which Tribes have an interest.
2.3 What Do I Do If My Rule Is Subject to the Executive Order?
The basic process that EPA follows to ensure that Agency actions
are developed in compliance with the Executive Order consists of
coordination, consultation, and certification to the extent that the EO
applies. Early evaluation of rules that may have Tribal implications is
recommended. In broad terms, the compliance assurance process for EO
13175 includes the following steps during each stage:
[2.3] A. Coordination
? RMD disseminates early information about new EPA actions
to Tribal Officials via the Unified Agenda of Regulatory and
Deregulatory Actions (``Regulatory Agenda'' or ``Reg Agenda'').
? Tribal Officials have the opportunity to respond to the
Regulatory Agenda and provide their views regarding whether actions may
potentially have Tribal implications.
? The rulewriting office works with AIEO/RICs and the OGC/
Office of Regional Counsel (ORC) attorney assigned to the rule to
consider Tribal views and to determine whether an action has Tribal
implications.
? For Tier 3 Region-specific rulemakings, offices will have
the opportunity to participate through the generic side-agreement.
? Coordination should at minimum include notification to all
affected Tribal governments with meaningful and timely opportunities
for elected Tribal Officials or duly appointed Tribal representatives
to consult with EPA.
? If you determine that your rule will have Tribal
implications and requires consultation, you should further coordinate
with the Tribes to determine which Tribes are interested in
participating in consultation (see ``Engaging Tribal Officials'' for
details).
[2.3] B. Consultation
? For a complete Agency definition of ``Tribal
consultation,'' see section titled ``What are Tribal coordination and
consultation: Consultation.''
? For actions that have Tribal implications and impose
substantial direct compliance costs, preempt Tribal law and/or
establish Federal standards, the rulewriter would adhere to the
consultation requirements of the Order.
? For actions subject to the consultation provisions of the
Order, the program office should work with AIEO (as well as other EPA
Indian Program and regional staff, as needed) to initiate and implement
a consultation plan in a manner appropriate for that action.
[2.3] C. Certification
? For actions with Tribal implications, if the action is
subject to Office of Management and Budget (OMB) review under EO 12866,
and after the rulewriting office has completed any needed Tribal
consultation activities, that office coordinates with AIEO to obtain
certification that the Agency has complied with the requirements of EO
13175 when transmitting the draft proposal or final rule to OMB.
What you should do depends on the type of action you have. In
general, EO 13175 puts a strong emphasis on consulting with Tribal
officials, which are defined as elected and/or duly appointed officials
of Indian Tribal governments (who may be different from your
professional counterparts in Tribal government) or their authorized
inter-tribal organizations. (Acronyms, Abbreviations and Key
Definitions) Of course, you should continue to work with your
professional Tribal government counterparts, but consulting with them
may not satisfy the consultation requirements of EO 13175.
2.4 What Do I Do If My Rule Does Not Have Tribal Implications?
If you have determined, using the guidelines in Chapter 2.2, that
your rule does not have Tribal implications, then there are no special
requirements under the EO that apply to your rule. You should discuss
briefly in the preamble to your rule why the Order did not apply.
Additionally, if you determine that there are no Tribal
implications, but Tribal consultation occurred nonetheless, you should
discuss briefly in the preamble to your rule any consultation that
occurred, the nature of the Tribal government's concerns, and how you
addressed those concerns or why EPA decided not to implement suggested
changes.
2.5 What Do I Do If My Rule has Tribal Implications?
If you determine that your rule has Tribal implications under any
of the guidelines that are summarized above in Chapter 2.2, then, in
addition to being guided by the fundamental principles set forth in
section 2 of the EO, the general policymaking criteria of section 3 of
the Order apply to your rule to the extent permitted by law. The
policymaking criteria for all rules with Tribal implications include:
[[Page 20322]]
? Respect Indian Tribal self-government and sovereignty,
honor Tribal treaty and other rights, and strive to meet the
responsibilities that arise from the unique legal relationship between
the Federal government and Indian Tribal governments;
? With respect to Federal statutes and regulations
administered by Indian Tribal governments, grant the Tribes the maximum
administrative discretion possible;
? Encourage Indian Tribes to develop their own policies to
achieve program objectives;
? Where possible, defer to Indian Tribes to establish standards; and
? In determining whether to establish Federal standards,
consult with Tribal officials as to the need for Federal standards and
any alternatives that would limit the scope of Federal standards or
otherwise preserve the prerogatives and authority of Indian Tribes.
In addition, the EO may impose certain requirements to consult with
Tribal officials regarding your rule. Those requirements are discussed
below in Chapter 2.6 and 2.7.
2.6 What Are the Types of Rules With Tribal Implications for Which I
Must Consult With Tribal Officials?
The guidelines for each type of rule with Tribal implications that
requires consultation are outlined below in paragraphs A, B, and C.
EO 13175 identifies requirements to consult to the extent
practicable and permitted by law, for rules:
A. That have TI and impose substantial direct compliance costs on
Indian Tribal governments, unless they are required by statute or
Federal funds are provided to cover the direct costs of compliance
incurred by the Indian Tribal government or the Tribe (EO section
5(b)); and for rules
B. That have TI and preempt Tribal law (EO section 5(c)); and for rules
C. That have TI and that establish Federal standards. In
determining whether to establish Federal standards, consultation with
Tribal officials shall include consultations as to the need for Federal
standards and any alternatives that would limit the scope of Federal
standards or otherwise preserve the prerogatives and authority of
Indian Tribes (EO section 3(c)(3)).
Even if your rule has TI but does not impose substantial direct
compliance costs, preempt Tribal law, or establish Federal standards,
it still may be appropriate to provide an opportunity for meaningful
and timely input by Tribal officials under separate Agency policy.
[2.6] A. Rules With Tribal Implications That Impose Substantial Direct
Compliance Costs
The regulatory analysis under UMRA, sections 202 and 203 may help
you determine whether your EPA rule places substantial direct
compliance costs upon Tribal governments. An explanation of the UMRA
analysis follows below.
However, these UMRA analyses are not determinative due to the
economic hardships that some Tribes endure. The Census Bureau reported
in 1999 that ``the percentage of American Indians and Alaska Natives
living below the poverty level (25.7%) was over two times greater than
for all other people in the United States (12.4%).'' \5\ Many Tribes do
not have a reliable stream of revenue, and no tax base. Additionally,
many Tribes depend heavily upon federal funding to administer Tribal
environmental programs. Therefore, seemingly innocuous direct
compliance costs may be substantial for some Tribes.
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\5\ See http://www.census.gov/prod/cen2000/phc-5-pt1.pdf
Characteristics of American Indian and Alaska Native by Tribe and
Language: 2000, Table 13: Poverty Status in 1999 for Selected
American Indian and Alaska Native Tribes.
---------------------------------------------------------------------------
[2.6-A]
1. Significant Federal intergovernmental mandate under UMRA
Section 202. If your rule contains a significant federal
intergovernmental mandate within the meaning of section 202 of UMRA--
i.e., it is likely to result in the expenditure by State, local, and
Tribal (SLT) governments \6\ in the aggregate of $100 million or more
in any one year--then EPA should conclude the rule also has TI and
imposes substantial direct compliance costs thus triggering the
requirements of section 5(b) of the EO, unless:
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\6\ The UMRA section 202 Federal intergovernmental mandate
trigger is based on the aggregate expenditures by State, Tribal and
local governments. Although the definition of TI does not include
effects on State and local (S/L) governments, we nonetheless use the
UMRA section 202 trigger with minor modification to make the test
easy to apply. If you believe your rule primarily affects S/L
governments and only has minimal impacts on Tribes, consult with
your Regulatory Steering Committee Representative and the attorney
assigned to your rule to determine whether it is appropriate to
conclude your rule has TI.
---------------------------------------------------------------------------
? The rule is required by statute,
? Federal funds are provided to cover the Tribal
Governments' or Tribe's compliance costs of the rule, or
? You can demonstrate that the costs to Tribes are minimal.
We interpret the phrase, ``required by statute,'' to mean that the
action is specifically and explicitly compelled by statute without the
use of any discretion by EPA. While our rules are authorized by
statute, most are not specifically and explicitly compelled by statute
without the exercise of our discretion.
[2.6-A]
2. Impact on Small Governments under UMRA Section 203.
While UMRA defines ``small government'' to include Tribal governments,
we recognize that economic data for small governments is available only
for local governments and generally does not include Tribal
governments. As described above, Tribal revenues may be less than that
of other small governments. With this recognition in mind, if your rule
will significantly or uniquely impact small governments (e.g., the cost
of the rule is likely to equal or exceed 1% of their revenues), then as
a policy matter, EPA should conclude the rule also has TI and imposes
substantial direct compliance costs thus triggering the requirements of
section 5(b) of the EO, unless:
? The rule is expressly required by statute without the use
of any discretion by EPA,
? Federal funds are provided to cover the Tribal
governments' or Tribes' compliance costs for the rule, or
? You can demonstrate that no Tribes are directly regulated
or that the costs are minimal.
Tip for combining consultation under UMRA and EO 13175: If your
rule contains a significant Federal intergovernmental mandate under
UMRA section 202, then section 204 requires you to consult with elected
officers of State, local, and Tribal governments or their designated
employees with authority to act on their behalf. Likewise, if your rule
has a significant or unique impact on small governments under UMRA
section 203, you must allow officials of affected small governments
(including Tribes) to provide meaningful and timely input into the
development of your rule. Thus, consultation under UMRA does not have
to be with elected officials. However, where consultation is called for
under EO 13175, the consultation must be with ``Tribal Officials,''
which is defined as elected or duly appointed officials of Indian
Tribal governments or authorized interTribal organizations. Thus,
unless consultation under UMRA is conducted with Tribal representative
that also qualify as ``Tribal Officials'' under the EO, the
consultation under UMRA will not satisfy consultation requirements
under EO 13175.
[2.6] B. Rules With Tribal Implications That Preempt Tribal Law
Generally, preemption is the doctrine that holds that certain
matters are of such a national, as opposed to local,
[[Page 20323]]
character that Federal laws take precedence over non-Federal laws. When
preemption occurs, a Tribal government may not pass a law that is
inconsistent with the Federal law. There are generally three types of
preemption:
? Express preemption: Congress' intent to preempt non-
Federal law is stated expressly in the Federal statute.
? Field preemption: Occurs where Congress' creation of a
pervasive system of Federal regulation makes reasonable the inference
that Congress left no room for other governments to supplement it, or
where an Act of Congress touches a field in which the Federal interest
is so dominant that the Federal system is assumed to preclude
enforcement of non-Federal laws on the same subject.
? Conflict preemption: Occurs when Federal law is in direct
conflict with non-Federal law or where non-Federal law stands as an
obstacle to the achievement of Federal objectives.
In general, minor amendments to an existing preemptive program
probably will not trigger the consultation and other requirements of
section 5(c) of the EO which relates to rules with TI that preempt
Tribal law. [Note: Such rules could still have TI for other reasons
even if they don't preempt Tribal law or trigger 5(c).] On the other
hand, a significant new preemptive program may create TI and preempt
Tribal law for purposes of section 5(c).
Application of the principles of preemption in the context of
Federal and Tribal laws may raise significant and complex issues.
Consult with the AIEO, OGC/ORC attorney assigned to your rule, your RIC
(if applicable) and your RSC/RRC Representative to determine whether
your rule has TI and preempts Tribal law.
[2.6] C. Federal Standards
Section 3(c) of EO 13175 states:
(c) When undertaking to formulate and implement policies that have
Tribal implications, agencies shall:
(1) Encourage Indian Tribes to develop their own policies to
achieve program objectives;
(2) Where possible, defer to Indian Tribes to establish standards;
and
(3) In determining whether to establish Federal standards consult
with Tribal officials as to the need for Federal standards and any
alternatives that would limit the scope of Federal standards or
otherwise preserve the prerogatives and authority of Indian Tribes.
2.7 What Should I Do if My Rule Has Tribal Implications and I Am
Required To Consult?
? There are three possible scenarios under which you would
decide to consult with Tribal officials:
? You have determined there are no Tribal implications but
EPA should consult for some reason,
? You have determined there are Tribal implications and that
consultation is not required, but EPA should consult for some reason,
and
? You have determined there are Tribal implications and that
consultation is required.
[2.7] A. Consultation Plan Development
If you decide that consultation is either recommended or required
under any of the above three possible scenarios, you should develop a
Tribal Consultation Plan for your action. The consultation plan should
outline an appropriate mix and sequence of Tribal consultation
activities that will occur in a timely manner as you develop your
action, and be tailored to the estimated impacts on Tribal Governments,
complexity and controversy of issues involved, and other specific
circumstances surrounding the rule. A description of issues to consider
as you develop your consultation plan is provided in the document
Recommendations for Developing Tribal Consultation Plans.
Your consultation plan should be developed to synchronize with
steps outlined in EPA's ``Action Development Process'' \7\, which
identifies the steps that you will follow as you develop your action.
As you create and implement your Consultation Plan, you should be
guided and informed by the Fundamental Principles set forth in section
2 of the EO and Policymaking Criteria in section 3 of the EO. For
example, as stated in section 2,
---------------------------------------------------------------------------
\7\ The Action Development Guidance is available at
(http://intranet.epa.gov/adplibrary).
The United States has a unique legal relationship with Indian
Tribal governments * * *. Since the formation of the Union, the
United States has recognized Indian Tribes as domestic dependent
nations under its protection. The Federal Government has enacted
numerous statutes and promulgated numerous regulations that
establish and define a trust relationship with Indian Tribes.
* * * The United States continues to work with Indian Tribes on
a government-to-government basis to address issues concerning Indian
Tribal self-government, Tribal trust resources, and Indian Tribal
treaty and other rights.
EO Sec. 3(a) in part states:
Agencies shall respect Indian Tribal self-government and
sovereignty, honor Tribal treaty and other rights, and strive to
meet the responsibilities that arise from the unique legal
relationship between the Federal Government and Indian Tribal governments.
As you create and implement your Consultation Plan, it is
recommended that you obtain input and views from the following resources:
? Tribal Liaison in your Program office
(http://www.epa.gov/indian/miss.htm);
? RSC representative and Regional Regulatory Contact (RRC)
(http://intranet.epa.gov/adplibrary/rsc/index.htm);
? AIEO representative (http://www.epa.gov/indian/); and
? RIC (http://www.epa.gov/indian/region.htm).
[2.7] B. If I Am Required To Consult With Tribal Officials Under
Section 5 of the Executive Order Because My Rule Has Tribal
Implications and Imposes Substantial Direct Compliance Costs and/or
Preempts Tribal Law, Are There Certain Requirements in Section 5 of the
Executive Order With Which I Must Comply?
Yes. In particular, section 5 of the EO directs you, to the extent
practicable and permitted by law, to do the following:
1. Consult with Tribal officials;
2. Your consultation must be ``meaningful and timely.'' Generally,
we interpret ``meaningful and timely'' as beginning consultation with
appropriate Tribal representatives as early as practicable in the
development of the proposed action. It also means that you should
strive to provide Tribal officials with information, to the extent that
it is available, that will enable them to assess (and subsequently
describe) potential Tribal impacts and views.
This consultation and information exchange should continue as you
develop the proposed rule to give appropriate Tribal representatives an
opportunity to consider and comment on our proposed approach for the
issues that are of concern to them. If EPA substantially changes its
selected approach on these issues after the proposed rule's comment
period, you should let those you consulted know about the change and
why we made it, as appropriate.
3. In a separately identified portion of the preamble to the
regulation, provide a Tribal summary impact statement, which consists of:
? A description of the extent of the Agency's prior
consultation with Tribal officials,
? A summary of the nature of their concerns and the Agency's position
[[Page 20324]]
supporting the need to issue the regulation, and
? A statement of the extent to which the concerns of Tribal
officials have been met.\8\
---------------------------------------------------------------------------
\8\ As a matter of policy, we recommend that you include the
Tribal summary impact statement in the preamble to the proposal, as
it helps alert Tribes to their potential interests, as well as in
the final rule. The EO calls for consultation early in the process
of developing the proposed regulation so consultation should predate
both the proposed and final rules.
---------------------------------------------------------------------------
4. If your draft final rule has TI and is subject to OMB review
under EO 12866, section 7(a) of EO 13175 states that you must include,
in the package you send to OMB, an ``EO 13175 Compliance
Certification'' signed by EPA's Designated EO 13175 Compliance
Official, the Director of AIEO, certifying that the Agency has met the
requirements of the Order in a meaningful and timely manner in
promulgating the rule. The EO 13175 Compliance Certification should be
prepared after the rulewriting office has completed any needed Tribal
consultation activities, and included in the draft proposal or final
rule package that you will transmit to OMB. See section 2.11 for more
information on how the certification form will be processed.
5. In addition, under section 5 of the EO you must make available to
OMB any written communications submitted to the Agency by Tribal officials.
2.8 What Steps Do I Follow for My Rule?
In the broad sense, EPA's ``Action Development Process'' \9\ will
serve as the vehicle for coordinating with Tribes to identify Tribal
implications and complying with the Order.
---------------------------------------------------------------------------
\9\ The Action Development Guidance can be found at
http://intranet.epa.gov/adplibrary.
---------------------------------------------------------------------------
2.9 What Help and Participation Can I Expect as I Develop My Rule?
The AIEO oversees and coordinates the Agency-wide effort to
strengthen public health and environmental protection in Indian country
and oversees development and implementation of EPA's Indian Policy,
including implementation of the EO, across the Agency. EPA's Indian
Program staff can help you with your efforts to comply with Executive
Order 13175. Contact information for AIEO, Headquarters and Regional
staff, is available at http://www.epa.gov/indian/miss.htm.
EPA's RSC coordinates the Agency's rulemaking process and includes
representatives for each Assistant Administrator (AA) and each Regional
Administrator (RA). As part of the Office of Water (OW), the interests
of AIEO are represented on EPA's RSC by the OW committee member. Like
other members of the RSC, the OW representative reviews tiering forms,
Regulatory Agenda entries, and other reports to identify rules under
development that warrant or necessitate the AA-ship's participation.
For Tier 1 and Tier 2 rules, OW, like each of the other AA-ships
and Regional offices, has an opportunity to confirm their participation
in a formal role as a workgroup participant as well as the option to
concur or non-concur that the Agency should issue a regulation as drafted.
The preliminary TI determination should preferably be made before
the action is tiered. If TI is determined and consultation is
determined to be necessary, the Tiering form should reflect that
determination and note that OW/AIEO is requested to be a workgroup
member or have a side agreement. As described in the above paragraph,
AIEO or OW on AIEO's behalf would then reply in the affirmative to the
tiering request to confirm that they will participate in a formal role
as a workgroup participant or that they will request a side agreement.
You are encouraged to contact your RSC representative or RRC about
any help they can give you as you plan or conduct your consultation. If
you determine that your rule has TI after it has been tiered, alert
your AA-ship's RSC representative as soon as possible in order to
arrange for any appropriate formal workgroup participation by OW/AIEO.
It is important that you provide the AIEO workgroup member with
timely information, such as drafts of requested consultation plans or
Tribal summary impact statements, and that you carefully consider and
respond, as appropriate, to their comments at the earliest stages of
rulemaking. The following chart provides a summary of the stages in the
rulemaking process where you may interact with OW/AIEO:
------------------------------------------------------------------------
OW/AIEO participation on rules with
Step tribal implications
------------------------------------------------------------------------
Tiering........................... You should consult with AIEO before
making your initial TI
determination. AIEO participates on
all rules that have TI. If you
determine that your rule has TI,
AIEO should participate on your
workgroup either as an active
member or through a ``side
agreement'' between the lead office
and OW to forward your consultation
plan to AIEO. OW/AIEO may also have
side agreements on Tier 1 and Tier
2 rules. If you cannot make a TI
determination at the tiering stage
(and for many rules, you may not be
able to), alert your AA-ship's RSC
representative to arrange for any
appropriate formal workgroup
participation by OW/AIEO as soon
you as you determine that your rule
has TI.
Analytic Blueprint/Consultation You should work with AIEO in
Plan. developing your analytic blueprint/
consultation plan.
Final Agency Review (Tier 1 and 2 If OW/AIEO participates on your Tier
rules only). 1 or Tier 2 workgroup, they should
participate in Final Agency Review
of your rule. Like all
participating offices, OW (in
representation of AIEO and its
other program offices) is asked to
concur, concur with comment, or non-
concur on the draft rule and
preamble. You should alert the OW
RSC representative if your rule has
TI. If they non-concur, you should
include their comments in the
Action Memo sent by your AA to the
Administrator, or in the memo to
your AA requesting his or her
signature on your rule.
OMB Review under EO 12866......... Under EO 13175, EPA's Designated EO
13175 Compliance Official (the
Director of AIEO) must certify each
final rule with TI that will be
reviewed by OMB under EO 12866. RMD
will coordinate certification of
your rule by the Designated EO
13175 Compliance Official.
------------------------------------------------------------------------
[[Page 20325]]
2.10 How Do I Begin the ``Tribal Consultation'' Process?
A. Coordination and Outreach
Coordination and outreach provide the key building blocks that lead
to full-blown consultation. Coordination and outreach allow for early
information exchange, issue education, problem identification, and the
eventual establishment of consultation protocols. Early coordination
with Tribes and Tribal interests can help to inform the final
determination that the rule does or does not have TI.
[2.10-A]
1. Outreach through regulatory reports. The Agency has a
number of routine means to alert the public, including Tribal
officials, that EPA is developing regulations. For example, EPA
publishes the Regulatory Agenda twice each year. The Regulatory Agenda
describes EPA's planned rulemakings, identifies anticipated schedules
for proposed and final rules, and indicates which rules are likely to
have impacts on State, local, and Tribal Governments.
OPEI intends to send a copy of the Regulatory Agenda to each
federally recognized Tribe upon publication bi-annually. This
information is made available via the Internet
(http://www.epa.gov/regagenda).
When the Regulatory Agenda is disseminated to the Tribes, EPA
should also specifically request that the Tribal governments review the
regulatory information and respond to the EPA program offices with an
indication of actions that may have potential Tribal implications and
information to help the Agency understand such implications. The Agency
should also strive to make this information available electronically
through AIEO's Internet site (http://www.epa.gov/indian) and the Federal
government's interagency Web site, Codetalk
(http://www.hud.gov/offices/pih/ih/codetalk/index.cfm). This
information exchange helps ensure that Tribal Officials are afforded early
and meaningful opportunities to provide input on regulations that may
require consultation.
Your determination of whether an action has TI should be made with
the help of AIEO and the OGC/ORC attorney assigned to your rule. You
should carefully assess the feedback of Tribal governments before
making your TI determination. The sections above explain how you should
generally proceed within the rulemaking process after you make the
determination that your rule does or does not have TI. You should still
continue to work with your RSC representative to provide periodic
updated regulatory information to Tribes. As stated earlier, a lack of
Tribal responses to EPA inquiries during a time period should not
automatically be construed as lack of interest, nor should you
immediately infer that the lack of feedback regarding the potential
impacts on Tribes means that the rule will not have TI. However, if
after a meaningful and timely effort at consultation, there is no
response from any Tribal Officials, these efforts will be sufficient to
satisfy the EO with respect to your action's promulgation.
[2.10-A]
2. Outreach through forums for hearing Tribal concerns and
perspectives. We also strongly encourage you to take advantage of
existing EPA resources, contacts within your AA-ship's Lead Region, and
the Agency's existing relationships with Tribal entities, be they EPA
Indian program staff, advisory committees, and/or Tribal organizations.
Your program office's Indian Coordinator/RIC and AIEO staff have
developed relationships with Tribes and are well versed in areas of
particular concern to Tribes. Your work with organizations representing
Tribal interests may not satisfy the consultation requirements of the
EO because representatives of these bodies are not necessarily
authorized to speak officially on behalf of their respective Tribes.
However, these organizations may provide you with valuable information
and perspectives, as well as help you identify whether your rule has
the potential to have more than a minimal impact on Tribes. They may
also be able to recommend with whom you should/may consult.
In addition to the attorney assigned to your rule and your RSC/RRC
Representative, your program office's Tribal coordinator/RIC, and EPA's
Indian Program staff are the most appropriate internal contacts to help
evaluate Agency actions for Tribal implications, identify the
appropriate Tribal representatives and organizations, and facilitate
contacts with those Tribal representatives and organizations. For a
list of those contacts, see 2.10-C.
You should also consider soliciting input on the potential impact
of your rule from EPA's TOC and RTOC, respectively. These committees
are composed of EPA's senior leadership, Tribal leaders and/or their
Tribal environmental program managers.
Engaging the TOC and RTOCs to discuss your rule, inviting input and
comment from Tribes, and providing further outreach, if needed, may
help bring about important insights and perspectives. Again, while the
TOC and RTOCs are important and effective vehicles for enhancing
communications between EPA and the Tribes, your work with them may not
a substitute for Agency consultation with Tribal Officials under the
EO. However, the TOCs or ROTCs may be able to identify Tribal Officials
with whom you should consult.
You may also consider soliciting input on the potential impact of
your rule by publishing articles in EPA or other newsletters that reach
Indian country, through electronic forums such as EPA Web sites,
through e-mails directly to Tribal governments/environmental staff, or
through other forums.
[2.10] B. Engaging Tribal Officials
If you determine that your rule will have TI and requires
consultation, you should further coordinate with the Tribes to
determine which Tribes are interested in participating in consultation.
You should prepare a letter from your senior program manager or AA to
Tribal leaders that:
? Extends an opportunity to consult on the rule, and
? Requests that the Tribal leader identify the manner in
which he or she wishes to be consulted, if at all, and/or identify a
Tribal official, employee or inter-Tribal organization that is duly
authorized to consult with the Agency on the Tribal leader's behalf.
(Note: Meetings with inter-Tribal organizations may be subject to FACA.)
As part of that mailing, we recommend that you include your
appropriate contact information and options for Tribes to recommend and
return in order to simplify the response process. Once the consultation
options have been identified, the Program office will develop a
consultation plan in concert with AIEO.
[2.10] C. Consultation With Tribal Officials
As discussed in sections 2.6 and 2.7, sections 3(c)(3) and 5 of the
Order create requirements for EPA to consult with Tribal officials
under certain circumstances on rules with Tribal implications and
substantial direct compliance costs or that pre-empt Tribal law or that
establish Federal standards. Such consultation should involve AIEO,
rulewriters, and high-level program office representatives. Senior
program managers should be involved because the Agency may be
consulting with high-level officials in Tribal government. Given the
government-to-government relationship between the Federal government
and the Tribes, your AA/RA would optimally be involved in the
consultation activity, or
[[Page 20326]]
at a minimum, delegate that responsibility to a senior program manager.
The key to successful consultation is early notice and early
initiation of contact with elected Tribal officials to promote adequate
input during the regulatory development process. Important to the
process is a willingness to go to the Tribes openly without
preconceived outcomes, and to listen to the concerns and issues the
Tribes bring to the process. It is in this climate of mutual respect and
sharing of information that the concept of consultation can be realized.
It is also important to identify opportunities to engage the Tribes
in outreach activities, such as scheduling special or separate sessions
for Tribes at public hearings, attending National Tribal Forums, and
other such meetings as circumstances warrant. This helps to ensure that
Tribes continue to be informed of any actions with potential Tribal
implications. Each rule may call for a different approach to
consultation, and flexibility in this process will be a hallmark of
successful collaboration.
[2.10-C]
1. How much consultation is appropriate? The amount and
type of outreach and consultation for a rule should be commensurate
with its estimated impacts on Tribal governments, its complexity, and
controversy over the issues involved. This approach focuses the most
extensive outreach and intensive consultation efforts on those
regulations of greatest interest to, and potential effect on, Tribal
governments. Recognizing that Tribal officials are often in a better
position than EPA to identify the potential political and resource
implications of regulations EPA is considering, you are strongly
encouraged to coordinate with potentially affected Tribal leaders
before deciding how much consultation would be appropriate and before
preparing a final consultation plan. Consultation is especially
important at key points in the process, such as options selection. AIEO
can help you to determine appropriate levels of consultation.
Tribal consultation for rules with TI that are expected to preempt
Tribal law and/or impose substantial direct compliance costs should
begin early in the process of developing the proposed regulation.
Proposed regulations that have benefitted from Tribal involvement in
their development inherently have greater support from the regulated
entities, and the possibility of poor reception to a proposed rule from
those affected is diminished.
[2.10-C]
2. How do I communicate with Tribal officials? Because of
the large number of Tribal governments that you may potentially
consult, there is no one-size-fits-all approach to Tribal consultation.
You should tailor the consultation process, using the approach
described above in C.1, to the regulation that you are developing.
However, it is very important that a senior manager sign correspondence
between EPA and the Tribes, and be present at conference calls and in-
person meetings, especially during initial contact. Authority may be
delegated--by both EPA and the Tribes--as appropriate, keeping in mind
the government-to-government relationship and the importance of
choosing appropriate personnel for these sensitive dialogues.
Once the consultation plan has been developed, confirm the time-
line and provide the Tribes with enough information so that meaningful
dialogue is promoted. Whether through teleconferences or face-to-face
meetings, it is important to continue the dialogue, obtain input from
the Tribes, and provide feedback.
You should carefully consider what information to prepare and provide
to Tribal government representatives. Information can serve two purposes:
(a) To promote understanding of what EPA is planning and why, and
(b) To foster participation of these officials in the rulemaking
process.
To consult with Tribal officials, you should design information
specifically for their needs and interests. Materials designed for
Tribal government officials should be in plain language and, to the
extent such information is available:
? Describe clearly the problem the rule is intended to address.
? Explain the basis for determining there is a problem.
? Point out whether the problem is regional or national in scope.
? Explain how the rule will improve on present conditions.
? Identify who will benefit from the rule.
? Identify what facilities or operations will be subject to
the requirements.
? Explain whether and how the benefits of the rule can be measured.
? Identify who will pay for the rule.
? Provide information on potential costs and benefits.
? Explain any flexibility in the rule that would allow for
adjustments to Tribal conditions or circumstances.
Some of this information may not be available until later in
developing a proposed rule. You may, however, begin your consultations
without full information and provide further information as it becomes
available.
[2.10-C]
3. What types of consultation should I consider? You
should explore a variety of alternative approaches to consulting with
Tribal government officials when developing a regulation--including
one-on-one discussions, public meetings, Tribal summits, workshops,
policy dialogues in formal advisory committees, written correspondence
and regulatory negotiations.\10\ You can also work with the TOC and
RTOC to identify possible avenues for consulting with Tribal officials
and via consortia, as appropriate or agreed upon. Remember, Tribes may
not want or need to consult face-to-face but they should be offered the
opportunity to consult if a proposed rule has TI and preempts Tribal
law or imposes substantial direct compliance costs. Regardless, you
should involve AIEO and the OGC/ORC attorney assigned to your rule when
discussing these approaches, for example, in your consultation plan.
You will need to be aware of any legal requirements that may apply to
your approach (including, for instance, requirements of the Paperwork
Reduction Act) and ensure your outreach and consultation activities are
consistent with the law.
---------------------------------------------------------------------------
\10\ Meetings with outside organizations may be subject to the
Federal Advisory Committee Act (FACA). Consult your Office of
General/Regional Counsel attorney to determine whether FACA applies
to your meeting.
---------------------------------------------------------------------------
[2.10-C]
4. Does the Federal Advisory Committee Act (FACA) apply to
consultations with Tribal government representatives? Under UMRA's FACA
exemption, FACA does not apply to meetings that are ``exclusively
between Federal officials and elected officers of State, local, and
Tribal governments (or their designated employees with authority to act
on their behalf) acting in their official capacities, [provided that
the]
meetings are solely for the purposes of exchanging views,
information, or advice relating to the management or implementation of
Federal programs established pursuant to public law that explicitly or
inherently share intergovernmental responsibilities or
administration.'' [UMRA 204(b), 2 U.S.C. 1534(b)]. OMB construes the
UMRA exemption broadly \11\ to facilitate intergovernmental communications.
---------------------------------------------------------------------------
\11\ Guidelines and Instructions for Implementing section 204,
``State, Local, and Tribal Government Input,'' of Title II of Public
Law 104-4, Alice M. Rivlin, Director, Office of Management and
Budget, September 21, 1995, pages 6-7.
---------------------------------------------------------------------------
Caution!! UMRA's exemption to FACA might not apply to your meeting!
While OMB construes the exemption broadly, it applies only to
meetings convened solely to discuss matters
[[Page 20327]]
relating to intergovernmental responsibilities or administration.
Meetings relating to situations in which the Tribe is a regulated party
likely are not exempt from FACA. Even if your meeting is not covered by
the UMRA exemption, other statutes may still govern whether and how you
are to consult with Tribal governments.\12\
---------------------------------------------------------------------------
\12\ Mandatory consultation provisions with Tribes (and other
affected entities) may exist in statutes and regulations that may
not be directly administered by EPA, but which may nevertheless
obligate the Agency to consult. E.g., the National Historic
Preservation Act (NHPA) and the Native American Graves Protection
and Repatriation Act (NAGPRA) are not directly administered by EPA;
however, circumstances may exist which require consultation under
these statutes. Check with OGC and/or ORC for legal interpretations
of the consultation-related provisions in the various statutory and
regulatory schemes.
---------------------------------------------------------------------------
[2.10-C]
5. Should I keep records of Tribal consultations? In
general, yes. It is generally recommended to keep records of
consultation activities that you undertake related to the Order, and
place them in the docket of the rulemaking. This helps to readily
document compliance in the event of questions, either from EPA's
Designated EO 13175 Compliance Official or from OMB. However, it is
also important to promote a full and frank exchange of views during
government-to-government consultation with Tribes, which may include
discussions relating to issues of unique sensitivity to Tribes such as
Tribal cultural practices and uses of environmental resources,
locations of Tribal cultural resources, Tribal relationships with
surrounding States, jurisdictional issues, etc. In preparing any
records memorializing consultations with Tribes, you should consider
these potential sensitivities in determining the level of detail to
include. You should also consider and, as appropriate, consult with the
Tribes regarding the fact that memorializations of consultations (or
other documents) exchanged between EPA and Tribes may not necessarily
be privileged or otherwise protected from disclosure under the Freedom
of Information Act. You should consult with your OGC/ORC contact in
evaluating these issues.
2.11 Process for Executive Order 13175 Certification
If a draft final regulation has substantial, direct effects on
Tribal governments (i.e., Tribal implications), a designated agency
official must certify that EPA has complied with the relevant
requirements of EO 13175, pursuant to section 7(a) of the Order.
If the draft final regulation will be reviewed by OMB pursuant to
Executive Order (EO) 12866 and it has Tribal implications, complete the
form and submit it to OPEI's RMD with your EO 12866 submission package.
OPEI will transmit this form to OMB when submitting the final rule to
OMB pursuant to EO 12866.
For Tier 1 and 2 rules, OPEI's RMD will generate the EO 13175
Compliance Certification in preparation for the Final Agency Review
meeting and coordinate signature by the Designated EO 13175 Compliance
Official.
For Tier 3 rules, the RSC representative or RRC will send the rule
and an unsigned certification form to RMD when the rule is ready for
certification and submission to OMB. RMD will coordinate signature by
the Designated EO 13175 Compliance Official.
Program offices place the EO 13175 Compliance Certification form in
the docket of the rulemaking.
2.12 How Does EPA Track and Record Actions That May Be Affected by the
Executive Order?
OPEI gathers a listing of all rules that will have any effect on
Tribal governments in order to prepare EPA's semi-annual Regulatory Agenda.
The status of Tribal consultation plans (e.g., under development,
consulting with AIEO, outreach initiatives) is monitored throughout the
action development process.
For draft final regulations that are reviewed by OMB pursuant to
Executive Order (EO) 12866 and have Tribal implications, the EO 13175
Compliance Certification forms will be placed in the docket for the
particular rulemaking.
Chapter 3--Legislative Comments or Proposed Legislation
3.1 How Does Executive Order 13175 Apply to Legislative Comments or
Proposed Legislation Submitted by EPA?
The Order defines ``policies that have Tribal implications'' as
including legislative comments or proposed legislation 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.
Accordingly, if EPA is submitting official Agency legislative
comments or proposed legislation to Congress or OMB, and the comments
or proposed legislation have TI, the principles of section 2 and the
general policymaking criteria provided in section 3 of the Order would
apply (see Chapter 2.5).
In addition, section 4 of EO 13175 contains ``Special Requirements
for Legislative Proposals.'' The Order states that agencies shall not
submit to the Congress legislation that would be inconsistent with the
section 3 policymaking criteria.
EPA interprets the EO as applying to proposed legislation or
legislative comments that are official Agency positions with
Administration clearance. At EPA, the Office of Congressional and
Intergovernmental Relations (OCIR) within the Office of the
Administrator is the Agency's principal point of contact with Congress,
and has responsibility for developing and implementing the legislative
agenda of the Agency.
Legislative comments or proposals that would fall within the scope
of the Order are typically those on which OCIR has worked with all
Agency offices to develop and/or draft; has worked with other
departments and agencies within the Executive Branch to obtain
Administration-wide concurrence and clearance through OMB; and has
communicated to Congress.
For example, if a member of Congress or the Senate has draft
legislation to introduce and sends a letter to the Administrator or the
Associate Administrator asking for the Agency's position on that
legislation, our legislative comments on that bill potentially would be
subject to the requirements of sections 2, 3 and 4 of the Order.
Similarly, if a member of Congress or the Senate asks EPA to submit
draft legislation to him or her for consideration, this potentially
would be subject to the Order.
As with draft final rules that are subject to OMB review under EO
12866, when OCIR transmits to OMB for clearance any proposed
legislation that has TI, OCIR must include an EO 13175 Compliance
Certification Form signed by the Designated EO 13175 Compliance
Official that states that EPA has met the requirements of the Order. In
this case, the certification would state we have met the ``Special
Requirements for Legislative Proposals'' contained in the Order.
Within EPA, the responsibility for determining whether there are TI
and following the Order's requirements falls on the program office that
has the lead for drafting the substance of the draft legislation or
legislative comments. The lead office should work closely with its OGC
or ORC attorneys and AIEO staff.
[[Page 20328]]
3.2 Does the Executive Order Apply When EPA Provides Comments to
Another Agency on Their Draft Legislation or Provides Technical
Assistance to Congressional Staff?
No. Responding to another agency's request for comments on their
draft legislation or testimony would not be subject to the Order, as
these are not comments submitted by EPA to Congress. The duty to
determine whether there are any Tribal implications for the draft bill
or legislative comments falls upon the agency that is submitting the
bill or comments.
Similarly, responding to a request from Congressional staff for
technical assistance on how to craft or word a bill would not be
subject to the Order, as EPA is merely responding to the request for
technical assistance, not submitting to Congress draft legislation or
official agency legislative comments.
Chapter 4--Waivers
4.1 What Does the Executive Order Require Concerning Indian Tribes
Applying for Waivers of Statutory and Regulatory Requirements?
Section 6 of EO 13175 contains requirements that apply to
applications submitted to EPA by Tribal governments seeking to waive
some or all of the statutory or regulatory requirements that apply to them.
Specifically, if the authorizing statute gives EPA discretion to
waive some or all of the statutory or regulatory requirements as
applied to the Tribal government(s), EO 13175 requires EPA, to the
extent practicable and permitted by law, to:
? Streamline the process for Tribal waiver applications.
? Increase opportunities for utilizing flexible policy
approaches where the proposed waiver is consistent with Federal policy
objectives and is otherwise appropriate.
? Render a decision within 120 days or as otherwise provided
by law or regulation.
? Provide timely written notice and reasons therefor if the
waiver is not granted.
4.2 What Does the Executive Order Contain About Flexible Policy Approaches?
As described above, the Order directs agencies, to the extent
practicable and permitted by law, to consider Tribal applications for
waivers of statutory and regulatory requirements with a general view
toward increasing opportunities for use of flexible policy approaches.
To this end, we encourage you to encourage Tribes to develop their own
policies to achieve program objectives, and where possible, to defer to
Indian Tribes to establish standards. At a minimum, under the EO you
would be required, to the extent permitted by law, to consult with
Tribal officials as to the need for Federal standards and to explore
any alternatives that would limit the scope of Federal standards or
preserve the prerogatives and authority of Indian Tribes.
Chapter 5--Permits and Licenses
5.1 Do the Requirements of Executive Order 13175 Apply to Permitting
Activities?
As noted throughout this draft document, EO 13175 applies to
``policies that have Tribal implications.'' In addition to regulations
and legislative comments/proposed legislation, which are discussed,
respectively, in Parts 2 and 3 of this draft document, ``policies that
have Tribal implications'' may also include other policy statements and
actions that have substantial direct effects as described in the EO.
EPA's position with respect to such other actions, including permitting
actions, is that, to the extent they do not in and of themselves
require any action or compliance by Tribal governments, these actions
will not have direct effects on such governments and thus will not have
Tribal implications. Permits typically apply directly to named parties
(i.e., permittees), and it is those named parties that realize any
direct impacts. For example, a water treatment facility applying for a
discharge permit will be directly responsible for compliance with the
permit and the underlying environmental statute and regulations, as
well as the associated compliance costs. Such a facility would be the
entity that may be directly affected by the permitting action. Any
additional effects (for instance, on users of the water or local
communities) would necessarily be indirect in nature. Thus, permits
issued to non-Tribal facilities would generally be considered as not
having Tribal implications even if the facility is located in or near
Indian country or some other area of interest to a Tribal government
since any effect on the Tribe would be indirect in nature. However,
where a permit would require action or compliance by a Tribal
government (e.g., where a Tribe or a Tribal facility is the applicant/
permittee), it is possible that the permitting action will have
substantial direct effects as described in the EO, and EPA should
consider whether the threshold for Tribal implications has been met.
For permitting actions that do meet the threshold for Tribal
implications, EPA should apply all applicable provisions of the EO for
this type of action. Because permits are not rules and because they do
not establish Federal standards (which, for purposes of EPA actions,
would generally be accomplished through rulemaking), EPA's view is that
the specific requirements, including consultation requirements, of
sections 3(c)(3) and 5 of EO 13175 generally do not apply to permits.
Permits typically apply directly to named parties, and therefore it
is those named parties that receive a permit which realize any direct
impacts. For example, a water treatment facility holding a discharge
permit is directly responsible for compliance with the permit and the
underlying environmental statute and regulations, as well as the
associated compliance costs. If EPA issues a permit to a non-Tribal
facility that is located near, but not in, Indian country, the permit
would generally be considered to have no Tribal implications. In such a
case, while a Tribe may in fact be impacted, it is the facility that
realizes any direct effects of the permit. Where a Tribe is the
recipient of a permit, then the tribe is the directly impacted, named
party subject to compliance with the permit, the statute, and
regulations. In these situations, a permit could have substantial,
direct effects on a tribe. However, for permitting actions with Tribal
implications, you must still adhere to the fundamental principles and
federal policymaking criteria expressed in sections 2 and 3
(respectively) of the EO. As always, you should work with the OGC/ORC
attorney assigned to your action to address any questions about the
applicability of EO 13175 to your action.
Lastly and importantly, even though you may not be required to
consult with Tribal governments on individual permitting/licensing
actions under the terms of EO 13175, consultation with Tribal
governments may be called for under other Federal and/or EPA-specific
policies and/or directives. The Executive Memorandum of April 29, 1994,
on Government-to-Government Relations with Native American Tribal
Governments, which EO 13175 intended to supplement, and EPA's Policy
for the Administration of Environmental Programs on Indian Reservations
both set forth further criteria for appropriately consulting/
interacting with Tribal governments.
[[Page 20329]]
Chapter 6--Policy Statements, Guidance Documents and Similar Actions
6.1 Are EPA's Policy Statements, Guidance Documents, and Similar
Actions Covered by Executive Order 13175?
In addition to those actions described in Chapters 2 through 5 of
this draft document, EO 13175 also applies to ``other policy statements
and actions'' that have substantial direct effects. These other
policies may include policy statements, strategies, guidelines,
guidance and interpretive documents (collectively, ``guidance
documents''). EPA's position is that guidance documents generally do
not create legally binding requirements and, therefore, will not 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.'' Thus, where there are no legally
binding requirements being created, such guidance documents generally
will not have TI and will not trigger the various relevant requirements
of the EO. Nonetheless, other policies relating to consultation with
Tribal governments and consideration of Tribal views may be relevant to
your guidance document.
6.2 Do the Requirements of Executive Order 13175 Apply If My Guidance
Document Is Not Titled a ``Rule'' or ``Regulation'' But Creates Legally
Binding Requirements?
Regardless of what it is called, if your guidance document does
create any legally binding requirements (e.g., grant guidelines/
conditions--including application deadlines--upon which EPA will base
its award decisions), the requirements of the EO may apply, and you
should determine in consultation with your program's RSC representative
and the attorney assigned to your action whether it has TI.\13\
Documents that contain legally binding requirements are generally
subject to the TI analysis and consultation provisions in the same
manner as rules, as discussed in Chapter 2 of this draft Guidance. As
described in that Chapter, if your document has TI, you should consider
whether consultation requirements of the EO are triggered by analyzing
whether your document imposes substantial direct compliance costs on
Tribal governments (including consideration of whether your action has
either an UMRA intergovernmental mandate or will impact small
governments at or above 1% of their revenues)\14\. Similarly, you
should coordinate with OGC/ORC in analyzing whether the document would
have preemptive effects.
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\13\ Under the APA section 551(4), `` 'rule' means the whole or
a part of an agency statement of general or particular applicability
and future effect designed to implement, interpret, or prescribe law
or policy or describing the organization, procedure, or practice
requirements of an agency and includes the approval or prescription
for the future of rates, wages, corporate or financial structures or
reorganizations thereof, prices, facilities, appliances, services or
allowances therefor or of valuations, costs, or accounting, or
practices bearing on any of the foregoing;''.
\14\ In general, grant guidelines don't have TI under the
substantial cost threshold (see part [2.6-A]1) because conditions of
federal assistance are excluded from the definition of Federal
intergovernmental mandate under UMRA, 2 U.S.C. 658(5). But you still
must determine whether your guideline meets any of the other
thresholds for TI (see part 2.6A and C).
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6.3 An Important Note about Guidance Documents and EPA's Internal
Policy on Consulting With Tribal Governments
As noted above, EPA's guidance documents generally do not create
legally binding requirements and most will not have Tribal
implications. However, Tribal governments may have--or you may expect
them to have--a heightened level of interest in certain non-binding
guidance documents. For example, a policy statement might announce for
the first time how EPA is planning to address a significant
environmental problem nationally. In some circumstances, you might know
or expect that the problem at hand is one of particular significance to
Tribal governments, and that the policy statement would have
significant implications for those governments.
Even if the consultation requirements of EO 13175 and the
considerations of other EPA and/or government-wide policies do not
apply to your guidance document, you are nonetheless encouraged to
engage Tribal officials--in the spirit of EO 13175 and consistent with
EPA's objective of promoting communication between EPA and Tribal
governments--on those guidance documents that you expect to be of
interest to Tribal governments by:
? Consulting early, to the extent practicable given the
nature and the timing of the action, with appropriate Tribal government
representatives, including your professional counterparts, if they so
desire; and
? Discussing briefly in your document any consultation that
occurred, the nature of the Tribal government representative's
concerns, and how you addressed those concerns or why EPA decided not
to implement suggested changes.
[FR Doc. 06-3741 Filed 4-18-06; 8:45 am]
BILLING CODE 6560-50-P