DEPARTMENTAL REGULATION |
Number: 1350-001 |
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SUBJECT: Tribal Consultation |
DATE: September 11, 2008 |
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OPI: |
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1. PURPOSE
The United States Department of Agriculture (USDA) hereby establishes this policy requiring consultation and participation by and between Indian tribes on USDA policies and activities.
2. POLICY
It is in the public interest that USDA should, to the extent practicable and permitted by law, consult and coordinate with tribes on a government-to-government basis. Because tribes are affected by USDA policies, programs and actions, USDA should consult with tribes on matters that may affect their rights and interests in compliance with Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, prior to making a decision.
3. DEFINITIONS
a) 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.
b) Indian tribe – means an
Indian or Alaska Native tribe, band, nation, pueblo, village, or community that
the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant
to the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a or
any subsequent List.
c) Tribal officials – means elected or
duly appointed officials of Indian tribal governments or authorized intertribal
organizations.
d) USDA
– means the United States Department of Agriculture or any of its agencies.
4. FUNDAMENTAL PRINCIPLES
In formulating or implementing
policies that have tribal implications, USDA shall be guided by the following
fundamental principles:
a) The
b) Our Nation, under the law of the
c) The
5. POLICYMAKING CRITERIA
In addition to adhering to the
fundamental principles set forth in section 4, USDA shall adhere, to the extent
permitted by law, to the following criteria when formulating and implementing
policies that have tribal implications:
a) USDA 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.
b) With respect to Federal
statutes and regulations administered by Indian tribal governments, USDA shall
grant Indian tribal governments the maximum administrative discretion possible.
c) When undertaking to formulate and
implement policies that have tribal implications, USDA shall, to the extent
practicable:
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.
6. LEGISLATIVE PROPOSALS
USDA shall not submit to the Congress legislation that would be inconsistent with the policymaking criteria in Section 5.
7. CONSULTATION ON REGULATIONS
To the extent practicable and permitted by
law, USDA shall not promulgate any regulation that has tribal implications,
that imposes substantial direct compliance costs on Indian tribal governments,
and that is not required by statute, unless:
a) Funds necessary to pay the direct costs
incurred by the Indian tribal government or the tribe in complying with the
regulation are provided by the Federal Government; or
b) Prior to the formal
promulgation of the regulation, USDA will:
1. Consult with tribal officials
early in the process of developing the proposed regulation;
2. In a separately identified portion
of the preamble to the regulation as it is to be issued in the Federal Register,
provide to the Director of the Office of Management and Budget (OMB) 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 supporting the need to issue the regulation, and a statement
of the extent to which the concerns of tribal officials have been met; and
3. Make available to the Director of
OMB any written communications submitted to USDA by tribal officials.
8. PREEMPTING TRIBAL LAW
To the extent practicable and
permitted by law, USDA shall not promulgate any regulation that has tribal
implications and that preempts tribal law unless the Department, prior to the
formal promulgation of the regulation:
a) Consults with tribal officials early in
the process of developing the proposed regulation;
b) In a separately identified portion of
the preamble to the regulation as it is to be issued in the Federal Register,
provides to the Director of OMB 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 supporting
the need to issue the regulation, and a statement of the extent to which the
concerns of tribal officials have been met; and
c) Makes available to the Director of OMB
any written communications submitted to USDA by tribal officials.
9. OTHER CONSULTATION ISSUES
On issues relating to tribal self-government, tribal
trust resources, or Indian tribal treaty and other rights, each agency should
explore and, where appropriate, use consensual mechanisms for developing regulations,
including negotiated rulemaking.
10. RESPONSIBILITIES OF USDA
OFFICIALS
USDA officials should:
a) Designate an official
to perform the duties required in the Accountability section below.
b) Notify tribes of proposed policy, guidelines,
plans, projects or actions that it deems may substantially affect tribal rights
or interests in order to provide tribes
an opportunity for meaningful
dialogue on potential implications and effects.
c)
Fully consider the information, input and recommendations from tribes
and address tribal concerns as much as practicable on proposed decisions.
d)
Inform tribes how their information and recommendations were considered
in USDA decisions.
e)
Provide tribes with contact information for USDA officials and staff who
are responsible for making final decisions that may affect tribes and request
the same of tribes.
f)
Take other actions in furtherance of this Departmental Regulation as
deemed necessary.
11. WAIVERS
USDA shall, to the extent
practicable and permitted by law, consider any application by an Indian tribe
for a waiver of statutory or regulatory requirements in connection with any
program administered by it with a general view toward increasing opportunities
for utilizing flexible policy approaches at the Indian tribal level in cases in
which the proposed waiver is consistent with the applicable Federal policy
objectives and is otherwise appropriate.
a) USDA shall, to the extent
practicable and permitted by law, render a decision upon an application for a
waiver within 120 days of receipt of a complete application by USDA, or as
otherwise provided by law or regulation.
If the application for waiver is not granted, USDA shall provide the applicant
with timely written notice of the decision and the reasons therefore.
b) This section applies only to statutory or regulatory requirements that are discretionary and subject to waiver by USDA.
12. ACCOUNTABILITY
a) In transmitting any draft final
regulation that has tribal implications to OMB pursuant to Executive Order 12866 as amended, USDA shall include a certification
stating that the requirements of Executive Order 12866 have been met in a meaningful and timely manner.
b) In transmitting proposed legislation
that has tribal implications to OMB, USDA shall include a certification from an
official designated to ensure compliance with this order that all relevant requirements
of this order have been met.
13. JUDICIAL REVIEW
This Departmental Regulation is 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 USDA, its agencies, or any person.
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