[Federal Register Volume 76, Number 174 (Thursday, September 8, 2011)]
[Notices]
[Pages 55678-55689]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-22825]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families


Tribal Consultation Policy

AGENCY: Administration for Children and Families.

ACTION: Final policy issuance.

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SUMMARY: This document contains the final Administration for Children 
and Families (ACF) Tribal Consultation Policy outlining the policy to 
engage in meaningful consultation with federally recognized tribes and 
the procedures and processes to be followed by tribes and the ACF 
bureaus and offices when the need for consultation is requested or 
required.

DATES: The effective date of this policy is the date of signature by 
the Acting Assistant Secretary for Children and Families.

ADDRESSES: You can download a copy of this policy at the following 
Internet address: http://www.acf.hhs.gov/tribal/index.html.

FOR FURTHER INFORMATION CONTACT: Lillian Sparks, Commissioner, 
Administration for Native Americans, 370 L'Enfant Promenade, SW., 
Washington, DC 20447. Telephone: 202-401-5590.

SUPPLEMENTARY INFORMATION: 

[[Page 55679]]

Background

    On November 5, 2009, President Obama signed the Memorandum for the 
Heads of Executive Departments and Agencies titled ``Tribal 
Consultations.'' The President stated that his Administration is 
committed to regular and meaningful consultation and collaboration with 
tribal officials in policy decisions that have tribal implications 
including, as an initial step, through complete and consistent 
implementation of Executive Order 13175. Accordingly, President Obama 
directed each agency head to submit to the Director of the Office of 
Management and Budget (OMB) within 90 days after the date of the 
memorandum, a detailed plan of actions the agency will take to 
implement the policies and directives of Executive Order 13175.
    The Department of Health and Human Services (HHS) has taken its 
responsibility to comply with Executive Order 13175 very seriously over 
the past decade, including the initial implementation of a Department-
wide policy on tribal consultation and coordination in 1997, and 
through multiple evaluations and revisions of that policy. The most 
recent version of the HHS Tribal Consultation Policy was signed by 
Secretary Kathleen Sebelius on December 14, 2010. As a result of the 
commitment to tribal consultation by President Obama and Secretary 
Sebelius, the Administration for Children and Families (ACF) convened a 
Tribal Federal Workgroup (TFWG) to develop a draft Tribal Consultation 
Policy for ACF. Below is a timeline of activities leading to the final 
ACF Tribal Consultation Policy that is published with this report.
     June 22, 2010, Principal Deputy Assistant Secretary David 
A. Hansell, on behalf of the Assistant Secretary for Children and 
Families Carmen R. Nazario, established the Native American Affairs 
Advisory Committee.
     July 23, 2010, Acting Assistant Secretary David A. Hansell 
sent a letter to all tribal leaders requesting nominations from each of 
the ten ACF regions to participate in an ACF TFWG.
     August 23-24, 2010, the TFWG met for the first time in 
Washington, DC, to develop the first draft of the ACF Tribal 
Consultation Policy.
     August 24, 2010, Acting Assistant Secretary David A. 
Hansell sent a letter to all tribal leaders announcing the 2010 ACF 
Tribal Consultation Session to be held in Washington, DC, to discuss 
the draft policy and ACF programs.
     September 2, 2010, ACF published a Federal Register (FR) 
notice formally announcing the 2010 ACF Tribal Consultation Session. 75 
FR 53975 (Sep. 2, 2010).
     September 16-17, 2010, the TFWG held a second workgroup 
meeting in Minneapolis, Minnesota, to continue development of the draft 
ACF Tribal Consultation Policy.
     September 28, 2010, ACF held a Tribal Resource Day in 
Washington, DC. This session focused on the interoperability of ACF's 
various programs. This event was attended by 150 registered 
participants.
     September 29, 2010, ACF held a Tribal Consultation Session 
in Washington, DC. This session focused on the draft ACF Tribal 
Consultation Policy and ACF program issues. This event was attended by 
150 registered participants.
     September 30, 2010, the ACF TFWG met in Washington, DC, to 
discuss and incorporate, where possible, suggestions to the draft 
Consultation Policy that were presented during the ACF Tribal 
Consultation Session.
     December 16, 2010, the revised ACF Tribal Consultation 
Policy was published in the FR seeking comments for 45 days. 75 FR 
78709 (Dec. 16, 2010). The comment period closed on January 31, 2011.
     March 7-8, 2011, the ACF TFWG met for a fourth and final 
time in Washington, DC, to review and incorporate, where possible, the 
recommendations to the ACF Tribal Consultation Policy.
    Explanation and Summary of Comments: Fourteen written comments were 
received from tribal leaders and tribal organizations in response to 
the FR notice published on December 16, 2010, requesting public comment 
on the draft ACF Tribal Consultation Policy.
    General comments on the policy included the following: (1) The 
draft policy should include urban Indian representation; (2) HHS and 
ACF must develop a self-governance compacting pilot program for tribes; 
(3) ACF should apply the HHS Tribal Consultation Policy by simply 
substituting ``ACF'' for ``HHS'' throughout the document; and (4) it is 
difficult to determine if the terms ``ACF'' and ``ACF program offices'' 
are meant to be used interchangeably. ACF's response to these comments 
are: (1) We will refer to the HHS policy that states government-to-
government as the basis for consultation; (2) the Department as a whole 
is looking at ways to expand self-governance and ACF is also looking 
closely at this issue; (3) there are directives under the HHS policy 
for each operating division to further refine their process and ACF is 
taking this opportunity to create a division-wide policy for all ACF 
programs; and (4) ``ACF'' and ``ACF program offices'' are 
interchangeable and a definition for ACF was added to the policy that 
specifically states this.

1. Introduction

    It was suggested that the first paragraph of the policy under the 
introduction section should be exchanged with the second paragraph, and 
the opening statement regarding President Obama's Executive Memorandum 
be moved to either the Background section or some sort of History 
section. ACF did not accept this comment as the Workgroup wanted to 
acknowledge the current directive by the current Administration as the 
impetus for the development of this consultation policy.

2. Purpose

    One comment suggested that the Purpose section might be an 
appropriate place to state clearly that this policy applies to all 
offices of ACF. This comment was accepted and the policy was revised 
accordingly in this section.
    Two comments recommended that a statement be added to the policy 
that ACF shall also abide by the HHS Consultation policy. This comment 
was accepted and the policy was revised accordingly in this section.
    A third comment stated that the policy needed to contain specific 
language requiring that consultation be more than a request for 
comments. This comment is addressed in Section 6. Consultation 
Principles, which addresses the meaning of consultation.

3. Background

    One comment stated that the language in the original HHS Tribal 
Consultation Policy was more respectful and protective of Indian 
sovereignty than the ACF language and recommended a change to use the 
language in the HHS policy. This comment was accepted and the language 
was incorporated in the policy under Section 3. Background.

4. Tribal Sovereignty

    One comment stated that under the Federal Trust Doctrine, the 
United States and its individual agencies of the Federal Government owe 
a duty of protection and a fiduciary duty to tribes. It was suggested 
that ACF address in its policy how it plans to meet its trust 
responsibility to protect tribal resources and treaty rights ``to the 
fullest extent possible.'' ACF added language that the policy does not 
diminish any rights and is using language consistent with the HHS 
Tribal Consultation Policy. The

[[Page 55680]]

Workgroup felt that the language ``to the fullest extent possible'' 
might be seen as limiting ACF's responsibility to tribes and therefore 
declined to accept the suggestion.

5. Background on ACF

    A comment suggested adding language that clearly binds ACF to 
follow the HHS Consultation Policy. This comment was accepted and is 
addressed under Section 2. Purpose; the ACF Tribal Consultation Policy 
will comply with the overall HHS Tribal Consultation Policy.
    Another comment suggested that the Native American Affairs Advisory 
Council (NAAAC) would be better served if there were a tribal component 
to it to advise ACF of specific priorities, the effect ACF programs 
have on the priorities, and to more effectively focus limited resources 
to respond to local tribal needs and priorities. ACF's response was the 
NAAAC serves as an internal working group to provide better 
coordination, collaboration and promote interoperability within ACF. 
ACF will continue to utilize TFWGs that incorporate tribal leadership 
to inform ACF leadership and develop ACF-wide policies, including the 
Tribal Consultation Policy.

6. Consultation Principles

    Again, a comment suggested adding language that clearly binds ACF 
to follow the HHS Tribal Consultation Policy to supplement and not 
repeat HHS policy. ACF's response to this comment was that ACF policy 
will comply with HHS policy and language has been added to Section 8. 
Consultation Process, to further clarify the steps necessary by either 
ACF or tribe(s) to initiate consultation. There is also a process to 
resolve an impasse in Section 11. ACF-Tribal Conflict Resolution. A 
similar comment recommended that a substantive, stand-alone paragraph 
be inserted stating: ``ACF is bound by the HHS Tribal Consultation 
Policy in full. Nothing in the ACF Tribal Consultation Policy shall be 
construed as diminishing any of the obligations imposed on ACF by the 
HHS Tribal Consultation Policy. When any provision of the ACF Tribal 
Consultation Policy conflicts with the HHS Tribal Consultation Policy, 
the HHS Tribal Consultation Policy controls.'' ACF's response to this 
comment was the Workgroup added a stand-alone paragraph to Section 2. 
Purpose.
    Another comment requested clarification on the meaning of an 
``enhanced form of communication'' because ``enhanced communication'' 
may be interpreted as simply requiring ACF to send a letter to a tribal 
official offering to initiate consultation without additional follow 
through or communication on actions that affect tribal interests. This 
ACF policy clarifies that either the U.S. Government or an Indian Tribe 
can initiate consultation, and the steps and timeline for an ACF 
response, as well as a reporting of outcomes is included in this 
policy.
    Another comment felt that the definition of ``consultation'' was 
too vague. It was recommended that the definition should incorporate 
more of the intergovernmental concepts of Executive Order 13175. ACF 
would like to refer the commenter to Section 7. Consultation Parties of 
the policy, wherein ACF outlines the parties to the consultation 
process and the government-to-government nature of the process.
    Another comment recommended that the ACF policy contain a clear 
statement, similar to the HHS policy, that consultation shall take 
place with Indian tribes. In the HHS Tribal Consultation Policy, 
Section 7. Consultation Participants and Roles, it states for Indian 
tribes, ``The government-to-government relationship between the U.S. 
and Federally recognized Indian Tribes dictates that the principle 
focus for HHS consultation is Indian tribes * * *'' This comment is 
addressed in the ACF policy under Section 2. Purpose.
    Several comments were received regarding the scope and duration of 
consultation. There was a recommendation to restore the foundational 
language from the HHS Tribal Consultation Policy as the core policy 
statement in the ACF Tribal Consultation Policy. ACF's response to the 
above comments is ACF will follow HHS policy that institutes a protocol 
for tribal officials (elected or designated authorized 
representatives). ACF also modified paragraph 2 of this section to 
further address these comments.

7. Consultation Parties

    A comment to this section stated that meaningful consultation 
requires consultation between tribal leaders and decision makers within 
ACF--both the administrative agency decision makers and the regional 
staff with decision-making authority over day-to-day issues. ACF's 
response to this comment was that ACF Regional Administrators will play 
a facilitative role and assist with resolving programmatic issues. 
Their responsibilities do not extend to policy making.

8. Consultation Process

    One comment to this section asked that ACF ensure the policy 
includes a spirit of interactive dialogue, concluded by a consensus of 
the decision between the tribe and agency representative to be 
implemented. ACF's response to this comment was that this is the intent 
of the policy and is included in the definition of consultation.
    Other comments centered on the possible limitation of actions 
(legislative proposal, new rule adoption, and other policy changes) 
that cause ACF to consult with the tribes. ACF's response to these 
comments was that the concerns have been addressed in this policy and 
have expanded the description of the process in this section. In 
addition, a definition of ``action'' has been added to Section 13. 
Definitions.
    Two comments addressed the parties who can initiate consultation 
and recommended that consultation can be initiated by either the 
tribe(s) or the agency, and appropriate information be provided to the 
other party(ies) when consultation is requested. ACF agreed with these 
comments and expanded the description of the process in this section.
    Another comment addressed the ACF definition of a tribe's 
representative for consultation and stated that this is a departure 
from the HHS Tribal Consultation Policy which makes designation of the 
tribal representative the tribe's choice. ACF points out that 
consultation parties are addressed in Section 7. Consultation Parties 
of the policy and includes elected or appointed leaders and authorized 
representatives as appropriate tribal representatives.
    One comment addressed the proper notification of consultation and 
method of consultation ``as determined by ACF'' as being restrictive to 
open dialogue. ACF removed ``as determined by ACF'' to meet the concern 
that ACF is the only determinant of need for or method of tribal 
consultation.
    Two comments addressed the need to provide sufficient notice for 
consultation to ensure meaningful consultation. ACF has addressed this 
concern and has committed to providing no less than a 30 day notice of 
subject, date, time, and location of meeting.
    Two comments addressed the methods of consultation ``as determined 
by the parties.'' It was recommended that ACF identify examples for the 
method of consultation. ACF accepted the comments and addressed them by 
revising the section to include examples of methods of consultation.

[[Page 55681]]

    Two other comments addressed meetings as acceptable methods of 
consultation and asked ACF to clarify by specifically identifying the 
meetings as consultation meetings. ACF accepted the comments and 
addressed this accordingly in the policy.
    One comment addressed using correspondence as an appropriate method 
of consultation and asked for further clarification to state that 
consultation may occur in the form of written communications. ACF 
accepted this comment and revised this section accordingly.
    Another comment regarding correspondence recommended language on 
how ACF should respond to tribes when using correspondence as the 
method of consultation. ACF felt this comment was directed more towards 
individual Bureau/Office required consultations which is addressed in 
Section 9. ACF Consultation and Communication Responsibilities, C. of 
the policy.
    Two comments were received on the use of the FR as an appropriate 
method of consultation and asked that this method be removed from the 
policy. ACF's response to this recommendation was tribal and Federal 
budgets may at times preclude face-to-face or teleconference meetings; 
therefore, a FR notice remains a method to communicate and receive 
input on issues. Also the FR is a useful tool for soliciting input for 
broad-based issues. However, the FR should be used in conjunction with 
other methods. The policy was revised accordingly to include language 
stating, ``The Federal Register will not be used as a sole method of 
communication for consultation.''
    Two comments were received on the ``Reporting of Outcome'' asking 
ACF to develop a process to report back to tribes on actions taken or 
to be taken to resolve issues/concerns such as sending out an email 
alert informing tribes that reports are available and specifically 
where they can be obtained on the Web site. ACF will widely distribute 
reports using all available methods of communication, including 
emailing and web hosting of documents. This issue is also addressed in 
Section 9. ACF Consultation and Communication Responsibilities, C., 4., 
5., and 8. of the policy.
    One comment addressed the issue of State compliance with ACF 
program requirements while serving Indian populations. The commenter 
recommended ACF provide an opportunity for nonbinding mediation between 
State and tribal officials. The commenter went on to state, ``If 
mediation results in an impasse, ACF should take tangible, constructive 
and/or disciplinary steps to enforce accountability.'' ACF's response 
was that the policy for noncompliance of States is outside the purview 
of this Tribal Consultation Policy.
    One comment was received about the provision at Section 8., J. 
Meaningful Outcomes, which was added after the September 29, 2010, 
consultation session. The commenter advised ACF that it believed the 
provision opposes the true objectives of tribal consultation. The 
commenter recommended that language from the HHS Tribal Consultation 
Policy be used in lieu of the ACF language in this section. ACF 
disagreed with this comment and advised that this section reflects that 
all parties have engaged in a meaningful dialogue regarding ACF 
policies.
    Comments were received regarding ACF facilitating consultations and 
outcomes between tribe(s) and States administering ACF programs. ACF 
accepted the comments and the revisions are reflected in this section, 
in Section 9. ACF Consultation and Communication Responsibilities, C. 
Individual Consultation Responsibilities. The TFWG also noted that the 
Office of Intergovernmental Affairs has the authority to facilitate 
consultations between States and HHS programs.
    A comment regarding waivers in this section recommended that the 
policy make it clear that this section applies to all agencies under 
ACF. ACF added language in Section 2. Purpose, to emphasize that this 
policy (including this section) applies to all ACF offices.
    A comment that the ACF policy omits ``consistent with the 
applicable Federal policy objectives'' (as included in E.O. 13175) and 
replaces it with, ``to achieve established ACF program objectives'' 
substantially diminishes tribal flexibility. ACF policy complies with 
HHS policy and is intended to supplement that policy and not repeat the 
HHS Tribal Consultation Policy verbatim. ACF is willing to provide 
waivers in compliance with Executive Order 13175, Consultation and 
Coordination With Indian Tribal Governments, and Executive Order 13272, 
Proper Consideration of Small Entities in Agency Rulemaking. However, 
ACF did not accept a recommendation to remove the language ``to the 
extent practicable and permitted by law.'' ACF believes this language 
ensures that ACF will not commit itself to consultation in situations 
where consultation is not practicable (e.g., in an emergency or 
disaster situation where human services needs must be expediently 
assessed).
    One comment stated that it is unclear under the current draft which 
party would bear the burden of proof when there is a dispute over a 
consultation outcome. The commenter strongly believes the program 
office should do so as it has the duty, in accordance with its trust 
responsibility to tribal nations, to ensure that its policies and 
programs meet the needs of tribal communities. A similar comment stated 
that the ACF policy places the ``elevation of issues'' under the waiver 
section and ``limits sovereign prerogatives'' that are recognized in 
the HHS Tribal Consultation Policy. The commenter recommended that the 
elevation of issues appear with the conflict resolution section and 
include the following statement from the HHS policy: ``Indian tribes 
may elevate an issue of importance to a higher or separate decision-
making authority.'' ACF agreed with both of the comments and has 
outlined the process to elevate an issue for conflict resolution in the 
policy.

9. ACF Consultation and Communication Responsibilities

    One comment asked ACF to clarify how the States and Regional 
Offices will be woven into the consultation policies. ACF would like to 
point the commenter to the revisions to Section 9., C. Individual 
Program Consultation Responsibilities, 7.
    Another comment asked ACF to set the annual date for an Annual 
Tribal Consultation session in a manner that provides plenty of notice 
to tribes for planning purposes. ACF accepted this comment and states 
there will be a minimum of 30 days notice for tribal consultation 
meetings.
    A comment regarding ``Individual Program Consultation 
Responsibilities'' asked ACF to provide regional consultations to 
afford as many affected tribes the opportunity to attend by directing 
Regional Office principals to arrange and initiate consultation. ACF's 
response was that ACF participates in the HHS Regional Consultations 
and encourages tribes to attend these events to address ACF issues.
    One comment asked ACF to provide a single point of contact (SPOC) 
for information to tribes and keep it current. ACF agreed with this 
comment and advises that this information will be kept current on the 
ACF Web site.
    One comment asked that all internal manuals, procedures, protocols, 
guidelines, and forms that set forth the processes by which HHS takes 
actions that affect tribes be amended to integrate

[[Page 55682]]

the tribal consultation requirements. ACF stated that the ACF 
consultation policy is a supplemental document that should be read in 
conjunction with ACF manuals and procedures. ACF will provide a 
briefing for staff on the ACF Tribal Consultation Policy once it is 
completed and reference the HHS Tribal Consultation Policy.
    One comment urged ACF to consider holding regional consultation 
sessions in addition to the agency-wide annual consultation sessions 
proposed by the consultation policy. The commenter believes that by 
conducting regional consultation sessions, ACF can develop priorities 
for the national meeting, as well as foresee the specific types of 
agency actions that will require tribal consultation in the future. 
ACF's response was that due to fiscal constraints, ACF will continue to 
participate in the HHS regional consultation meetings and encourage 
tribes to participate in these sessions to address ACF policy. In 
addition, tribes can request consultation following the process 
outlined in Section 8. Consultation Process.

10. ACF Performance and Accountability

    One comment supported the proposed use of ACF's Annual Performance 
Plan and suggested the creation of ACF TFWGs that ``will develop and 
discuss agency-wide policies that impact Indian tribes'' to gauge the 
efficacy of the policy. In addition to providing meetings with 
representatives from tribal organizations and forums for tribal 
viewpoints, the commenter proposed that these workgroups should also 
convene to monitor the success of the consultation policy. Further, as 
another means to ensure accountability, it is recommended that ACF 
strengthen its communication and coordination with HHS. For example, 
the commenter suggested that when ACF proposes legislation, new or 
amended regulations, or other policy initiatives, it should report to 
the Secretary about what the tribal implications may be and what 
consultation preceded the proposal. It was also recommended that in 
order to foster consistency within the Department, ACF should report to 
HHS its training activities and other programs intended to raise 
awareness of the unique situations faced by tribes. ACF agreed with 
these comments and will continue to put forth efforts in this regard.
    A comment was received to define ``various partners'' or remove it 
from paragraph of this section because it is unclear as to who the 
partners are. ACF agrees to remove the words because we are unable to 
clearly define who the partners may be.
    Another comment on this section was to elaborate in greater detail 
its compliance with Section 6. Objectives, of the HHS Tribal 
Consultation Policy on accountability--there should be more attention 
paid to outlining the process for determining whether compliance is 
happening. The commenter suggested if ACF program offices ``design 
indicators to ensure accountability * * *,'' that this be a topic 
specifically discussed with the tribes for ideas on how to measure 
performance. ACF would like to direct the commenter to Section 10. ACF 
Performance and Accountability, D., of the policy where the formulation 
of indicators is discussed.
    One comment referred to the HHS Tribal Consultation Policy, Section 
13. Evaluation, Recording of Meetings and Reporting, regarding 
measuring the level of satisfaction of the Indian tribes on an annual 
basis and noted that this language is missing from the ACF Tribal 
Consultation Policy. Although the ACF policy is meant to supplement the 
HHS policy, the commenter believed this language should be included in 
the ACF policy as well. ACF's response was that ACF works with the HHS 
Office of Intergovernmental Affairs (IGA) and will comply with HHS 
Tribal Consultation Policy, Section 13.
    One comment recommended that the ACF policy be enhanced by 
including a requirement for ACF to conduct at a minimum an annual 
satisfaction survey of the tribes to achieve the objectives of 
President Obama's memorandum of November 9, 2010. ACF's response was 
that ACF will be a part of the HHS Consultation Progress Report to the 
Office of Management and Budget.
    Another comment recommended that a mechanism be adopted for the 
tribes to report on agency compliance, including sanctions for non-
compliance or poor performance. ACF disagreed with this comment and 
stated that it is not feasible at this time.

11. ACF-Tribal Conflict Resolution

    One comment recommended that effective tribal liaisons be hired 
within key ACF program divisions to advocate for tribes. ACF's response 
to this recommendation is the creation of new positions and subsequent 
hiring is a matter of budget/resources. ACF already has designated 
individuals within each program office who represent their office on an 
internal workgroup. A listing of the designated individuals can be 
found on the ACF Tribal webpage at http://www.acf.hhs.gov/tribal/index.html.
    One comment recommended that the policy include a Conflict 
Resolution section, and should discuss what process can be used to 
address any issues. ACF accepted this recommendation and this section 
has been expanded to detail the conflict resolution process.
    Another comment recommended that the policy include a stay of a 
proposed action until that consultation process has been completed in 
compliance with the policy. ACF's response was that Section 8. 
Consultation Process, requires consultation to occur prior to any 
action that will significantly impact a tribe or tribes. Section 11 
also incorporates the stay of a proposed action until the resolution of 
the conflict resolution process as well.

12. Workgroups and Advisory Committees

    One comment recommended a change to ``ACF may convene Tribal/
Federal Workgroups'' to ``ACF will convene Tribal/Federal Workgroups.'' 
The commenter also recommended adding a section stating ACF understands 
the workgroups and advisory committees do not take the place of formal 
tribal consultation. ACF accepted this recommendation and modified the 
wording in this section and also added that the convention of 
workgroups is subject to available funding.
    Another comment on this section asked that ACF seek input from the 
tribe(s) when the need to convene a TFWG is indicated. ACF accepted 
this recommendation and ACF will seek tribal nominations when convening 
a TFWG.
    One comment suggested that TFWGs be required to participate in any 
ACF new hire orientation training that addresses the government-to-
government relationship with tribes, with particular attention to the 
differences between American Indian tribes and Alaska Native tribes' 
structure of governance, land jurisdictions, and tribal-State 
relations. ACF stated that it will encourage all TFWG members to 
participate in the online training available at http://tribal.golearnportal.org/.
    Another comment addressed the language used to define tribal 
official. ACF removed language to clarify that ACF TFWG will comply 
with HHS and the Federal Advisory Committee Act (FACA).
    One comment wanted clarification on whether or not the need to 
include retaining ACF's ``right to meet with various representatives of 
organizations on an individual basis'' is necessary. The commenter 
asked that ACF clarify

[[Page 55683]]

this requirement by including language such as, ``ACF understands that 
organizations cannot and do not represent all tribes.'' A similar 
comment advised that these meetings have been construed by some ACF 
program offices as tribal consultation. This section should clearly 
state that ACF meetings with various associations, organizations, or 
committees are not to be construed as tribal consultation. ACF's 
response to all the above comments was that meetings in groups as 
described in this section, A-E, will not be construed as tribal 
consultation and a statement to that effect is added in Section 12. 
Workgroups and Advisory Committees, F.
    One comment asked ACF to emphasize the importance of holding States 
accountable for their actions when implementing ACF programs. ACF's 
response is that ACF will work to ensure States are fully compliant 
with ACF programs and serve all populations the State included in their 
application, see Section 9. ACF Consultation and Communication 
Responsibilities, C. Individual Program Consultation Responsibilities, 
7.

13. Definitions

    In response to a comment regarding the possible limitation of the 
definition for ``action,'' a new definition for ``action'' has been 
added to this section. Also in response to the comment regarding 
``ACF'' and ``ACF program office'' and their interchangeability, a 
definition for the ``Administration for Children and Families (ACF)'' 
has been added to clarify that the terms are interchangeable throughout 
the document.
    One comment asked ACF to delete the definition for ``consortia of 
tribes'' as it is not used in the body of the ACF policy. In response 
to this comment, ACF believes it is important for ACF to acknowledge 
that several tribes operate programs in consortia and have retained the 
definition.
    One comment recommended that ACF delete the definition of ``Indian 
Organization,'' stating this is a completely different definition from 
the one appearing in the HHS policy, it is not used in the body of the 
ACF policy, and the HHS definition makes an important point about their 
role that is omitted here: ``The government does not participate in 
government-to-government consultation with these entities; rather these 
organizations represent the interests of tribes when authorized by 
those tribes.'' ACF did not accept the recommendation to delete the 
definition; rather, it expanded the definition by adopting the HHS 
Tribal Consultation Policy definition.
    One commenter supported the inclusion of the definition of ``Indian 
tribe'' as articulated in Public Law 93-638 (25 U.S.C. 450b). They 
urged that the policy continue to utilize the definition of ``Indian 
tribe'' as articulated in Public Law 93-638 (25 U.S.C. 450b(e)) rather 
than the Federally Recognized Tribe List Act of 1994, (25 U.S.C. 479a). 
ACF accepted the suggestion to keep the definition from 25 U.S.C. 
450b(e) in the ACF Tribal Consultation Policy. Regarding the definition 
of ``Indian,'' one commenter mentioned that the definition of Indian as 
a member of a federally recognized tribe rather than a member of an 
Indian tribe, as defined under the Self-Determination Act definition, 
excludes many Alaska Native people who are not members of tribes, but 
who are shareholders in Alaska Native corporations. ACF agreed and has 
used the broadest definition for Indian and the concern is satisfied 
with using 25 U.S.C. 450b(d).
    A definition for ``Joint Tribal Federal Workgroups and/or Task 
Forces'' has been added to clarify that working with these workgroups 
does not constitute tribal consultation.
    One comment recommended the deletion of the term and definition of 
``Inter-Tribal Organization'' because it is not used in the body of the 
ACF policy, nor does it appear in the HHS policy. ACF accepted this 
recommendation and deleted the term and definition.
    One comment recommended the deletion of the term and definition of 
``Non-Recognized Tribe'' because it is not used in the body of the ACF 
policy, nor does it appear in the HHS policy. ACF accepted this 
recommendation and deleted the term and definition.
    One comment recommended the deletion of the term and definition of 
``Reservation'' because it is not used in the body of the ACF policy, 
nor does it appear in the HHS policy. ACF accepted this recommendation 
and deleted the term and definition.
    One comment recommended the deletion of the term and definition of 
``Self Government'' because it is not used in the body of the ACF 
policy, nor does it appear in the HHS policy. ACF accepted this 
recommendation and deleted the term and definition.
    One comment recommended the deletion of the term and definition of 
``Tribal Resolution'' because it is not used in the body of the ACF 
policy, nor does it appear in the HHS policy. ACF accepted this 
recommendation and deleted the term and definition.
    One comment recommended the deletion of the term and definition of 
``Tribal Self-Governance'' because it is not used in the body of the 
ACF policy, nor does it appear in the HHS policy. ACF accepted this 
recommendation and deleted the term and definition.

16. Retention of Executive Branch Authorities

    One comment regarding Section 16 discussed the absence of 
mechanisms to enforce agency compliance with this policy. Another 
comment was concerned by the lack of any right to enforce this 
consultation duty in court. ACF's response to both comments was that in 
the absence of statutory authority, there is no right of action against 
the Federal Government.
    Drafting information: The principal authors of this policy are 
Lillian Sparks, Commissioner, Administration for Native Americans, and 
the ACF Tribal Federal Workgroup composed of representatives from the 
10 Regional Offices and at-large Indian organizations. Other members of 
ACF, HHS, and federally recognized Indian tribes also participated in 
its development.

SUPPLEMENTARY INFORMATION: The final ACF Tribal Consultation Policy is 
provided below.

1. Introduction
2. Purpose
3. Background
4. Tribal Sovereignty
5. Background on ACF
6. Consultation Principles
7. Consultation Parties
8. Consultation Process
9. ACF Consultation and Communication Responsibilities
10. ACF Performance and Accountability
11. ACF-Tribal Conflict Resolution
12. Workgroups and Advisory Committees
13. Definitions
14. Acronyms
15. Policy Review
16. Retention of Executive Branch Authorities
17. Effective Date

1. Introduction

    On November 5, 2009, President Obama signed an Executive Memorandum 
reaffirming the government-to-government relationship between Indian 
tribes and the Federal Government, and directing each executive 
department and agency to consult with tribal governments prior to 
taking actions that affect this population. The importance of 
consultation with Indian tribes was affirmed through Presidential 
Memoranda in 1994, 2004, and 2009, and Executive Order 13175 in 2000.

[[Page 55684]]

    The U.S. Department of Health and Human Services (HHS) and Indian 
tribes share the goal of eliminating health and human service 
disparities of American Indians and Alaska Natives (AI/AN) and ensuring 
that access to critical health and human services is maximized.

2. Purpose

    The Administration for Children and Families (ACF), as an Operating 
Division within HHS, hereby establishes a consultation policy with 
federally recognized Indian tribes. The purpose of the ACF Tribal 
Consultation Policy is to build meaningful relationships with federally 
recognized tribes by engaging in open, continuous, and meaningful 
consultation. True consultation leads to information exchange, mutual 
understanding, and informed decision-making.
    ACF is bound by the HHS Tribal Consultation Policy in full. Nothing 
in the ACF Tribal Consultation Policy shall be construed as diminishing 
or waiving the HHS Tribal Consultation Policy. The ACF Tribal 
Consultation Policy shall not conflict with the HHS Tribal Consultation 
Policy and applies to all offices of ACF.
    This ACF Tribal Consultation Policy document was developed based 
upon:
    1. Executive Memorandum ``Tribal Consultation,'' November 5, 2009;
    2. Executive Order 13175, reaffirmed in 2009;
    3. HHS Tribal Consultation Policy (established in 2005, and amended 
in 2010);
    4. Input from an ACF Tribal Federal Workgroup (TFWG) convened to 
develop the draft ACF Consultation Policy;
    5. Input from tribes to ensure a consultation policy that reflects 
the goals of all partners involved; and
    6. Input of all of the programs and regions within ACF, many of 
which already consult with AI/ANs.

3. Background

    Since the formation of the Union, the United States (U.S.) has 
recognized Indian tribes as sovereign nations. A unique government-to-
government relationship exists between AI/AN Indian tribes and the 
Federal Government. This relationship is grounded in the U.S. 
Constitution, numerous treaties, statutes, Federal case law, 
regulations and executive orders, as well as political, legal, moral, 
and ethical principles. This relationship is derived from the political 
relationship that Indian tribes have with the Federal Government.
    An integral element of this government-to-government relationship 
is that consultation occurs with Indian tribes. ACF program offices 
shall provide an opportunity for meaningful consultation between tribes 
and ACF in policy development, as set forth in this policy. The 
Executive Memorandum titled ``Tribal Consultation'' reaffirmed this 
government-to-government relationship with Indian tribes on November 5, 
2009. The implementation of this policy is in recognition of this 
special relationship.
    This special relationship is affirmed in statutes and various 
Presidential Executive Orders including, but not limited to:
     Older Americans Act, Public Law 89-73, as amended (42 
U.S.C. 3001 et seq.);
     Indian Self-Determination and Education Assistance Act, 
Public Law 93-638, as amended (25 U.S.C. 450 et seq.);
     Native American Programs Act, Public Law 93-644, as 
amended (42 U.S.C. 2991 et seq.);
     Indian Health Care Improvement Act, Public Law 94-437, as 
amended (25 U.S.C. 1601 et seq.);
     Personal Responsibility and Work Opportunity 
Reconciliation Act of 1996, Public Law 104-193 (42 U.S.C. 1305 et 
seq.);
     Head Start for School Readiness Act of 2007, Public Law 
110-134, as amended (42 U.S.C. 9801 et seq.);
     Patient Protection and Affordable Care Act (ACA), Public 
Law 111-148 (42 U.S.C. 18001 et seq.);
     Fostering Connections to Success and Increasing Adoptions 
Act of 2008, Public Law 110-351 (42 U.S.C. 1305 et seq.);
     Presidential Executive Memorandum to the Heads of 
Executive Departments dated April 29, 1994;
     Presidential Executive Order 13175, Consultation and 
Coordination With Indian Tribal Governments, November 6, 2000; and
     Presidential Memoranda, Government-to-Government 
Relationship with Tribal Governments, September 23, 2004; and Tribal 
Consultation, November 5, 2009.

4. Tribal Sovereignty

    This policy does not waive or diminish any tribal governmental 
rights, including treaty rights, sovereign immunities, or jurisdiction. 
Additionally, this policy does not diminish any rights or protections 
afforded other ai/an persons or entities under federal law.
    Our nation, under the law of the u.s. And in accordance with 
treaties, statutes, executive orders, and judicial decisions, has 
recognized the right of indian tribes to self-government and self-
determination. Indian tribes exercise inherent sovereign powers over 
their members and territory. The u.s. Continues to work with indian 
tribes on a government-to-government basis to address issues concerning 
tribal self-government, tribal trust resources, tribal treaties, and 
other rights.
    The constitutional relationship among sovereign governments is 
inherent in the very structure of the constitution, and is formalized 
in and protected by article i, section 8. Self-determination and 
meaningful involvement for indian tribes in federal decision-making 
through consultation in matters that affect indian tribes have been 
shown to result in improved program performance and positive outcomes 
for tribal communities. The involvement of indian tribes in the 
development of public health and human services policy allows for 
locally relevant and culturally appropriate approaches to public 
issues.
    Tribal self-government has been demonstrated to improve and 
perpetuate the government-to-government relationship and strengthen 
tribal control over federal funding that it receives, and its internal 
program management.

5. Background on ACF

    Acf provides national leadership and direction to plan, manage, and 
coordinate the nationwide administration of comprehensive and 
supportive programs for vulnerable and at-risk children and families. 
Acf oversees and finances a broad range of programs for children and 
families, including native americans, persons with developmental 
disabilities, refugees, and legal immigrants, to help them develop and 
grow toward a more independent, self-reliant life. These programs, 
carried out by state, county, city, and tribal governments, and public 
and private local agencies, are designed to promote stability, economic 
security, responsibility, and self-sufficiency.
    Acf coordinates development and implementation of family-centered 
strategies, policies, and linkages among its programs, and with other 
federal, tribal, and state programs serving children and families. 
Acf's programs assist families in financial crisis, emphasizing short-
term financial assistance, and education, training, and employment for 
the long term. Its programs for children and youth focus on those 
children and youth with special problems, including children of low-
income families, abused and

[[Page 55685]]

neglected children, those in institutions or requiring adoption or 
foster family services, runaway youth, children with disabilities, 
migrant children, and native american children. Acf promotes the 
development of comprehensive and integrated community and home-based 
modes of service delivery where possible. The following offices are 
located in acf:
[cir] Administration on children, youth and families (ACYF).
     Children's bureau (CB).
     Family and youth services bureau (FYSB).
[cir] Office of the deputy assistant secretary for early childhood 
development.
[cir] Administration on developmental disabilities (ADD):
     President's committee for people with intellectual 
disabilities (PCPID), an advisory committee to the president of the 
united states and health and human services secretary.
[cir] Administration for native americans (ANA).
[cir] Office of administration.
[cir] Office of community services (OCS).
[cir] Office of child care (OCC).
[cir] Office of child support enforcement (OCSE).
[cir] Office of family assistance (OFA):
     Temporary assistance for needy families bureau (TANF).
[cir] Office of head start (OHS).
[cir] Office of human services emergency preparedness and response 
(OHSEPR).
[cir] Office of legislative affairs and budget (OLAB).
[cir] Office of planning, research and evaluation (opre).
[cir] Office of refugee resettlement (ORR).
[cir] Office of regional operations (ORO).

    In June 2010, ACF established the native american affairs advisory 
council (NAAAC). This council will function as an internal agency 
workgroup to support the assistant secretary for children and families, 
the commissioner of ana, and all acf program and regional offices that 
provide services to native americans. On behalf of the assistant 
secretary, administration for children and families, the commissioner 
of ANA is the chair of the NAAAC and ANA is the lead office to 
coordinate the activities.
    One of the responsibilities of NAAAC is to facilitate the 
development of the acf tribal consultation policy, in conjunction with 
the office of the assistant secretary for children and families and in 
consultation with tribes.
    The members of NAAAC are the acf program and regional offices that 
have native american constituents or work with native american 
communities. These offices include the administration on children, 
youth and families (children's bureau, and the family and youth 
services bureau); the administration on developmental disabilities; the 
administration for native americans; the office of child care; the 
office of child support enforcement; the office of community services; 
the office of family assistance (tribal temporary assistance for needy 
families (tribal tanf)); the office of head start; the office of 
planning, research and evaluation; and the office of regional 
operations. The following regions will be represented: region i, region 
ii, region iv, region v, region vi, region vii, region viii, region ix, 
and region x.

6. Consultation Principles

    Consultation is an enhanced form of communication that emphasizes 
trust, respect, and shared responsibility. It is an open and free 
exchange of information and opinions among parties, which leads to 
mutual understanding and comprehension. Consultation is integral to a 
deliberative process that results in effective collaboration and 
informed decision-making with the ultimate goal of reaching consensus 
on issues. ACF will consult, as defined in this document and as 
practicable and permitted by law, with indian tribes before taking 
action that will significantly affect indian tribes.
    The acf policy is to conduct timely, respectful, meaningful, and 
effective two-way communication and consultation with tribes wherein 
elected officials and other authorized representatives of the tribal 
governments provide input prior to any action that either acf or one or 
more tribes determines has or may have significantly affected one or 
more indian tribes, and before any such action or further action is 
taken. An action that triggers consultation is any legislative 
proposal, new rule adoption, or other policy change that either acf or 
a tribe determines may significantly affect indian tribes. Acf or a 
tribe may determine that an action may significantly affect one or more 
indian tribes and by appropriate communication initiate tribal 
consultation. An action is considered to significantly affect tribes if 
there exists a reasonable presumption that it has or may have 
substantial direct effects on one or more indian tribes, on the 
relationship between the federal government and indian tribes, on the 
amount or duration of acf program funding, on the delivery of acf 
program services to one or more tribes, or on the distribution of power 
and responsibilities between the federal government and indian tribes.

7. Consultation Parties

    Consultation parties are:
    A. The ACF assistant secretary, acf deputy assistant secretaries, 
ACF central office principals, or their designee; and
    B. Tribal president, tribal chair or tribal governor, or an elected 
or appointed tribal leader, or their authorized representative(s).
    Each party will identify their authorized representatives with 
delegated authorities to negotiate on their behalf.

8. Consultation Process

    A. A consultation is initiated:
    1. When either acf or one or more tribes makes a written request 
for a consultation.
    a. Either acf or a tribe may determine an action significantly 
affects or may affect one or more indian tribes.
    b. An action that triggers consultation is any legislative 
proposal, new rule adoption, or policy change that either acf or a 
tribe determines may significantly affect indian tribes.
    2. An action is considered to significantly affect tribes if there 
exists a reasonable presumption that it has or may have substantial 
direct effects on:
    a. One or more indian tribes;
    b. The amount or duration of acf program funding for one or more 
tribes;
    c. The delivery of acf program services to one or more tribes;
    d. The relationship between the federal government and indian 
tribes; or the distribution of power and responsibilities between the 
federal government and indian tribes.
    B. A consultation request by acf or tribe(s) should:
    1. Identify the subject issue(s) for resolution.
    2. Identify the applicable program(s), policy, rule, regulation, 
statute, and authorizing legislation.
    3. Identify the related concerns such as state-tribal relations, 
related programs, complexity, time constraints, funding and budget 
implications.
    4. Identify the affected and potentially affected indian tribe(s).
    C. ACF will acknowledge receipt of the tribal consultation request 
within 14 calendar days after receipt of the request.
    D. ACF shall have an accountable process to ensure meaningful and 
timely input by tribal officials in the development of policies that 
have tribal implications.

[[Page 55686]]

    E. To the extent practicable and permitted by law, acf shall not 
promulgate any regulation that has tribal implications, that imposes 
substantial direct compliance costs on indian tribes, or that is not 
required by statute, unless:
    1. Funds necessary to pay the direct costs incurred by the indian 
tribe in complying with the action are provided by the federal 
government; or
    2. Acf, prior to the formal promulgation of the regulation,
    a. Consulted with tribal officials early and throughout the process 
of developing the proposed regulation;
    b. Provided a tribal summary impact statement in a separately 
identified portion of the preamble to the regulation as it is to be 
issued in the Federal Register (FR), which consists of a description of 
the extent of acf's prior consultation with tribal officials, a summary 
of the nature of their concerns and ACF'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. Made available to the assistant secretary any written 
communications submitted to acf by tribal officials.
    F. To the extent practicable and permitted by law, ACF shall not 
promulgate any regulation that has tribal implications and that 
preempts tribal law unless ACF, prior to the formal promulgation of the 
regulation:
    1. Consulted with tribal officials early and throughout the process 
of developing the proposed regulation;
    2. Provided a tribal summary impact statement in a separately 
identified portion of the preamble to the regulation as it is to be 
issued in the fr, which consists of a description of the extent of 
acf's prior consultation with tribal officials, a summary of the nature 
of their concerns and acf'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. Made available to the assistant secretary any written 
communications submitted to acf by tribal officials.
    G. Proper notice of the tribal consultation and the level of 
consultation shall be communicated to all affected and all potentially 
affected indian tribes within 45 calendar days after receipt of the 
tribal request. Appropriate forms of notice include a ``dear tribal 
leader letter'' signed by the assistant secretary, broadcast e-mail, 
fr, and other outlets. The notice will provide at least 30 days notice 
of subject, location, date, and time.
    H. Consultation will occur through a combination of one or more 
methods, and will include additional actions and participants as 
determined by the parties. The following are examples of methods of 
consultation:
    1. Meeting(s): one or more meetings for consultation with affected 
and potentially affected indian tribes to discuss all pertinent issues 
related to the legislative proposal, new rule adoption, or other policy 
change that may significantly affect the tribe(s) using a single 
purpose meeting, or a national or regional forum, if appropriate, when 
the consultation is determined to include all tribes. Meetings can be 
face-to-face, by teleconference call, and other forms of new 
technologies.
    2. Correspondence: written communications for consultation 
exchanged between acf and the indian tribe(s) provide affected and 
potentially affected indian tribes an opportunity to identify concerns, 
potential impacts, proposed alternatives or flexibilities, and provide 
acf with the opportunity to identify resources and other considerations 
relevant to the issue(s) raised. All correspondence will identify the 
manner in which tribal comments will be solicited.
    3. Federal Register (FR): when one or more meetings are not 
practicable, notices in the fr may be used as the method of 
consultation to solicit comment from tribes about broad-based issues 
including concerns, potential impacts, proposed alternatives or 
flexibilities. Such notices will include clear and explicit 
instructions for the submission of comments that provide adequate time, 
a minimum of 45 days, for tribal responses. The fr will not be used as 
a sole method of communication for consultation.
    I. Reporting of outcome: all national and regional consultation 
meetings and recommended actions shall be recorded and made available 
to indian tribes.
    ACF program offices will provide a detailed report on their 
consultation sessions, which summarizes the discussions, specific 
recommendations, and responses, and solicits tribal feedback on the 
consultation process, within 45 calendar days of the conclusion of the 
consultation process. The acf report will be available on the program 
offices' Web sites.
    Once the consultation process is complete and a proposed policy is 
approved and issued, the final policy must be broadly distributed to 
all Indian tribes and it will be independently posted on the ACF 
webpage and also linked to several appropriate tribal and inter-tribal 
organization Web sites.
    J. Meaningful Outcomes: The consultation process and activities 
conducted within the scope of the ACF policy should result in a 
meaningful outcome for both ACF and tribes. Before any final policy 
decisions are adopted that significantly affect Indian tribes, the 
proposed outcome of a consultation shall be widely publicized and 
circulated for review and comment to affected Indian tribes, inter-
tribal organizations, and within HHS, when appropriate, practicable and 
permitted by law.
    Good faith implementation of ACF programs and a cooperative working 
relationship with tribes in support of ACF programs is the primary 
meaningful outcome. ACF will work with States to emphasize the 
importance of working cooperatively with tribes.
    ACF shall facilitate meaningful consultations and outcomes between 
tribe(s) and one or more States administering ACF programs, shall 
report the outcome of its efforts to affected tribes, and shall make a 
good faith effort to ensure all parties fully comply with ACF program 
requirements.
    K. Waivers: The intent of this policy is to provide increased 
ability to address issues impacting Indian tribes. ACF will, consistent 
with HHS Tribal Consultation Policy and as practicable and permitted by 
law, utilize flexible approaches to enable tribes to achieve 
established ACF program objectives, including consideration of waivers 
of statutory and regulatory requirements and other alternatives that 
preserve the prerogatives and authority of Indian tribes.
    L. Elevation of Issues: Indian tribes may elevate an issue of 
importance to a higher or separate decision-making authority, detailed 
in Section 11. ACF-Tribal Conflict Resolution.

9. ACF Consultation and Communication Responsibilities

    ACF will conduct an annual agency-wide tribal consultation each 
year, in addition to the tribal consultations required by several ACF 
program offices. The following will guide ACF's coordination of the 
various sessions. NAAAC will work with the program offices to 
coordinate ACF required consultations, on required topics and in 
required regions, to maximize the time and resources of Indian tribes 
and program offices.

A. ACF Annual Tribal Consultation Session

    1. ACF will hold, at a minimum, an agency-wide annual tribal 
consultation session to discuss ACF budget, programs and policies 
impacting tribal programs. ANA, working through

[[Page 55687]]

NAAAC, will be the lead agency to coordinate the annual tribal 
consultation session.
    2. Every ACF program office Principal, or their designee, will be 
required to participate in the annual ACF tribal consultation.
    3. NAAAC will coordinate with the program offices to prepare and 
disseminate a written report within 45 calendar days of the conclusion 
of the annual ACF tribal consultation.
    4. ACF will post this report on its Web site within 7 days of the 
final report completion.
    5. The annual ACF tribal consultation session will not supplant any 
tribal consultation sessions that are required by law to be conducted 
by ACF program offices.

B. Special Statutory Consultation Requirements

    1. The following ACF Offices have programs that require 
consultation with Indian tribes in accordance with their authorizing 
statutes.
     Office of Head Start.
     Children's Bureau.
     Family and Youth Services Bureau.
    2. ACF program offices will conduct tribal consultation sessions 
that are required by law, including in conjunction with the Annual ACF 
Tribal Consultation Session.

C. Individual Program Consultation Responsibilities

    1. Each individual program office will meet with Indian tribes and 
AI/AN grantees regarding programmatic concerns at the request of the 
Indian tribe or AI/AN grantee.
    2. An official staff contact will be designated as responsible for 
the initial coordination and facilitation of the program office 
interaction with tribes and Native American organizations and to serve 
as the program single point of contact for interaction with offices and 
workgroups within HHS on AI/AN issues. This contact will be kept 
current on the ACF Web site.
    3. ACF program offices will acknowledge requests for consultation 
within 14 calendar days of receipt of the request.
    4. ACF program offices will acknowledge and report on unresolved 
issues with the tribe in a timely manner. ACF program offices will 
acknowledge issues within 14 calendar days after the conclusion of the 
consultation.
    5. Feedback will be provided by ACF program offices to tribes on 
the resolution of issues for which consultation has been requested 
within 45 calendar days of the conclusion of the consultation.
    6. ACF program offices will ensure intra-agency coordination with 
Regional Offices to facilitate communication and outreach on 
consultations held in the Region. Regional Offices will facilitate 
State participation as appropriate.
    7. ACF program offices and Regional Offices will provide assistance 
in efforts to resolve tribal-State issues.
    8. ACF program offices will provide a written report on the 
consultations, which summarizes the discussions, recommendations, and 
responses, within 45 calendar days after the conclusion of the last 
consultation.

D. HHS Tribal Consultations

    ACF will participate in the Annual Budget Consultation Session and 
Annual Regional Tribal Consultations.

10. ACF Performance and Accountability

    A. Implementation of this policy shall be made part of the Annual 
Performance Plan for ACF Senior Management as a critical performance 
element in those offices where there are specific tribal activities.
    B. ACF program offices will design indicators to ensure 
accountability among program managers, and central office and Regional 
Office staff in carrying out the HHS and ACF tribal consultation 
policies.
    C. ACF will ensure that all personnel working with Indian tribes 
receive appropriate training on consultation, this policy, and working 
with tribal governments.
    D. As part of the Department's annual measurement of the level of 
satisfaction of Indian tribes with the consultation process and the 
activities conducted under this policy, Indian tribes' satisfaction 
with ACF will be recorded and evaluated to determine whether the 
intended results were achieved and to solicit recommendations for 
improvement from tribes.

11. ACF-Tribal Conflict Resolution

    A. Should an impasse arise between ACF and a tribe(s) concerning 
ACF compliance with the consultation policy or outcome of consultation, 
a tribe may invoke the conflict resolution process by filing a written 
notice of conflict resolution and any action that is the subject of an 
impasse will be stayed until the conflict resolution process with ACF 
is complete to the extent practicable and permitted by law. Authorized 
tribal representatives shall have the opportunity to meet with the 
Assistant Secretary for Children and Families, and/or a Deputy 
Assistant Secretary, and/or the Commissioner for the Administration for 
Native Americans, and/or the ACF Regional Administrator(s) for the 
Regional Offices that provide services to the affected tribes. The goal 
is to accomplish the following:
    1. Clarify all aspects of the issue(s) at an impasse;
    2. Explore the alternative position(s) available to resolve the 
impasse;
    3. Clearly state the issue(s) that the parties can accept on the 
record;
    4. Form acceptance of recommended actions; and
    5. Facilitate coordination of resolution(s) for parties.
    B. In cases where a tribe(s) is not satisfied with the resolution 
of an issue or issues after consultation with ACF, a tribe(s), 
consistent with the government-to-government relationship, may elevate 
an issue of importance to the Secretary of the Department of Health and 
Human Services, through the Office of Intergovernmental Affairs (IGA), 
for decision.

12. Workgroups and Advisory Committees

    A. To maximize the expertise and knowledge of individuals working 
in tribal communities, ACF will convene TFWGs, subject to available 
funding, to develop and discuss agency-wide policies that impact Indian 
tribes, prior to formal tribal consultation sessions on the policies.
    The TFWG will work in accordance with the HHS policy on tribal 
workgroups and will follow procedures to ensure compliance with the 
Federal Advisory Committee Act (FACA). See the HHS Tribal Consultation 
Policy, Addendum 1, for further explanation of TFWG.
    B. ACF has a standing internal working group made up of staff 
representatives from each ACF program office. This Native American 
Affairs Workgroup meets once a month to work on tribal issues at the 
program, ACF, and HHS level.
    C. ACF retains the right to meet with various representatives of 
organizations on an individual basis.
    D. For policies that impact more than federally recognized Indian 
tribes,\1\ ACF will develop forums to provide opportunities for input 
and dialogue for State-recognized tribes; Native American 
organizations, including Native Hawaiians and Native American Pacific 
Islanders; urban Indian centers; tribally controlled community colleges

[[Page 55688]]

and universities; Alaska Region Corporations; and others as defined in 
program office guidance.
---------------------------------------------------------------------------

    \1\ These groups, while not federally recognized tribes, are 
eligible to receive funding under certain ACF programs in the same 
manner as federally recognized tribes. ACF will make every effort to 
seek the input of these groups when changes to policy impact these 
groups as well.
---------------------------------------------------------------------------

    E. Program offices may still convene their individual working 
groups to work on program specific policies. Program offices will 
ensure that these working groups operate within the FACA guidelines and 
requirements.
    F. ACF does not participate in government-to-government 
consultation with entities described in Section 12., A-E, and these 
meetings do not take the place of tribal consultation.

13. Definitions

    A. Action--Any legislative proposal, new rule adoption, or policy 
change that either ACF or a tribe(s) determines may significantly 
affect an Indian tribe(s).
    B. Agency--Any authority of the United States that is an ``agency'' 
under 44 U.S.C. 3502(1) other than those considered to be independent 
regulatory agencies, as defined in 44 U.S.C. 3502(5).
    C. Administration for Children and Families (ACF)--All the offices 
that make up the organization of ACF. The acronyms ``ACF'' and ``ACF 
program offices'' are used interchangeably.
    D. Communication--The exchange of ideas, messages, or information 
by speech, signals, writing, or other means.
    E. Consortia of tribes--Two or more federally recognized Indian 
tribes.
    F. Consultation--An enhanced form of communication, which 
emphasizes trust, respect, and shared responsibility. It is an open and 
free exchange of information and opinion among parties, which leads to 
mutual understanding and comprehension. Consultation is integral to a 
deliberative process, which results in effective collaboration and 
informed decision-making with the ultimate goal of reaching consensus 
on issues.
    G. Coordination and Collaboration--Working and communicating 
together in a meaningful government-to-government effort to create a 
positive outcome.
    H. Critical Event--Planned or unplanned event that has or may have 
a substantial impact on Indian tribe(s), e.g. issues, policies, or 
budgets which may come from any level within HHS.
    I. Deliberative Process Privilege--Privilege exempting the 
government from disclosure of government-agency materials containing 
opinions, recommendations, and other communications that are part of 
the decision-making process within the agency.
    J. Executive Order--An order issued by the government's executive 
on the basis of authority specifically granted to the Executive Branch 
(as by the U.S. Constitution or a Congressional Act).
    K. Federally recognized tribal governments--Indian tribes with whom 
the Federal Government maintains an official government-to-government 
relationship, usually established by a Federal treaty, statute, 
executive order, court order, or a Federal Administrative Action. The 
Bureau of Indian Affairs (BIA) maintains and regularly publishes the 
list of federally recognized Indian tribes.
    L. Indian--A person who is a member of an Indian tribe (25 U.S.C. 
450b(d)). Throughout this policy, Indian is synonymous with American 
Indian/Alaska Native.
    M. Indian Organization--(1) Those federally recognized, tribally 
constituted entities that have been designated by their governing body 
to facilitate HHS communications and consultation activities. (2) Any 
regional or national organizations whose board is comprised of 
federally recognized tribes and elected/appointed tribal leaders. The 
Government does not participate in government-to-government 
consultation with these entities; rather, these organizations represent 
the interests of tribes when authorized by those tribes.
    N. Indian tribe--An Indian tribe, band, nation, or other organized 
group or community, including any Alaska Native village, or regional or 
village corporation, as defined in or established pursuant to the 
Alaska Native Claims Settlement Act (85 Stat. 688) (43 U.S.C. 1601 et 
seq.), which is recognized as eligible for the special programs and 
services provided by the United States to Indians because of their 
status as Indians (25 U.S.C. 450b(e)).
    O. Joint Tribal Federal Workgroups and/or Task Forces--A group 
composed of individuals who are elected tribal officials, appointed by 
federally recognized tribal governments and/or Federal agencies to 
represent their interests while working on a particular policy, 
practice, issue, and/or concern.
    P. Native American (NA)--Broadly describes the people considered 
indigenous to North America.
    Q. Native American Affairs Advisory Council (NAAAC)--An internal 
agency work group established to support the Assistant Secretary for 
Children and Families, the Commissioner of the Administration for 
Native Americans, and all ACF program and Regional Offices that provide 
services to Native Americans.
    R. Native Hawaiian--Any individual whose ancestors were natives of 
the area, which consists of the Hawaiian Islands prior to 1778 (42 
U.S.C. 3057k).
    S. Policies that have tribal implications--Refers to regulations, 
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.
    T. Sovereignty--The ultimate source of political power from which 
all specific political powers are derived.
    U. State recognized tribes--Tribes that maintain a special 
relationship with the State government and whose lands and rights are 
usually recognized by the State. State recognized tribes may or may not 
be federally recognized.
    V. Substantial Direct Compliance Costs--Those costs incurred 
directly from implementation of changes necessary to meet the 
requirements of a Federal regulation. Because of the large variation in 
tribes, ``substantial costs'' is also variable by Indian tribe. Each 
Indian tribe and the Assistant Secretary shall mutually determine the 
level of costs that represent ``substantial costs'' in the context of 
the Indian tribe's resource base.
    W. To the Extent Practicable and Permitted by Law--Refers to 
situations where the opportunity for consultation is limited because of 
constraints of time, budget, legal authority, etc.
    X. Treaty--A legally binding and written agreement that affirms the 
government-to-government relationship between two or more nations.
    Y. Tribal Government--An American 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).
    Z. Tribal Officials--Elected or duly appointed officials of Indian 
tribes or authorized Indian organizations.
    AA. Tribal Organization--The recognized governing body of any 
Indian tribe; any legally established organization of American Indians 
and Alaska Natives which is controlled, sanctioned, or chartered by 
such governing body or which is democratically elected by the adult 
members of the community to be served by such organization and which 
includes the maximum participation of Indian tribe members in all 
phases of its activities (25 U.S.C. 450b).

14. Acronyms

ACF Administration for Children and Families
AI/AN American Indian/Alaska Native

[[Page 55689]]

AI/AN/NA American Indian/Alaska Native/Native American
ANA Administration for Native Americans
BIA Bureau of Indian Affairs
Division Staff Division and/or Operating Division
EO Executive Order
FACA Federal Advisory Committee Act
FR Federal Register
HHS U.S. Department of Health and Human Services
NAAAC Native American Affairs Advisory Council
OPDIV Operating Divisions of HHS
SPOC Single Point of Contact
TFWG Tribal/Federal Workgroup
U.S. United States
U.S.C. United States Code

15. Policy Review

    ACF shall review and, if necessary, revise its Tribal Consultation 
Policy no less than every 2 years. Should ACF determine that the policy 
requires revision, the TFWG will be convened to develop the revisions.

16. Retention of Executive Branch Authorities

    Nothing in this policy waives the Government's deliberative process 
privilege, including when the Department is specifically requested by 
Members of Congress to respond to or report on proposed legislation. 
The development of such responses and related policy documents is a 
part of the deliberative process by the Executive Branch and should 
remain confidential.
    Nothing in the Policy creates a right of action against the 
Department for failure to comply with this Policy nor creates any 
right, substantive or procedural, enforceable at law by a party against 
the United States, its agencies, or any individual.

17. Effective Date

    This policy is effective on the date of signature by the Assistant 
Secretary for Children and Families and shall apply to all ACF program 
offices.

    Dated: August 18, 2011.
George H. Sheldon,
Acting Assistant Secretary for Children and Families.
[FR Doc. 2011-22825 Filed 9-7-11; 8:45 am]
BILLING CODE 4184-34-P