[Federal Register Volume 86, Number 44 (Tuesday, March 9, 2021)]
[Notices]
[Pages 13605-13609]
[FR Doc No: 2021-04883]

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DEPARTMENT OF TRANSPORTATION

Office of the Secretary of Transportation

[Docket No. DOT-OST-2021-0023]

Notice of Tribal Consultation; Request for Comments

AGENCY: Office of the Secretary (OST), U.S. Department of
Transportation (DOT).

ACTION: Notice of Tribal consultation; request for comments.

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SUMMARY: The U.S. Department of Transportation (DOT or we) announces
that it is holding virtual Tribal consultation with American Indian and
Alaskan Native Tribes on its implementation of Executive Order 13175 of
November 6, 2000, consistent with the Presidential Memorandum of
January 26, 2021. We also announce the establishment of a docket to
receive comments on our Tribal consultation policies and practices.
Testimony presented at these Tribal consultations will be considered by
DOT in formulating its plan of actions in response to the Presidential
Memorandum of January 26, 2021. We will host a virtual Tribal
consultation on March 24, 2021.

DATES: Consistent with Executive Order 13175, Consultation and
Coordination with Indian Tribal Governments, we will hold a virtual
Tribal consultation meeting to take oral testimony. The Tribal
consultation meeting will be held on Wednesday, March 24, 2021 from
2:00 p.m. to 3:30 p.m. EDT. Participants can access the presentation by
logging into the following: https://www.transportation.gov/self-governance. Participants may submit written questions in advance of the
meeting to<EMAIL_ADDRESS>or provide written comments/questions
using the chat function during the presentation. Any questions or
comments to be considered must be received in writing via email to
<EMAIL_ADDRESS>by 5 p.m. EST, Wednesday, March 31, 2021.
Additional information about how to participate during the consultation
will be made available at https://www.transportation.gov/self-governance in advance of the consultation and announced at the
beginning of the consultation.
    Additional follow-on listening sessions with Tribal associations
may be scheduled. These listening sessions will be open to the public.
Please check https://www.transportation.gov/self-governance for
additional details.
    The closing date for comments on this notice is April 19, 2021. The
Department will consider late comments to the extent practicable.

ADDRESSES: You may submit comments by any of the following methods:
     Electronic mail: Send electronic mail to
<EMAIL_ADDRESS>and reference OST-2021-0023 in the subject line.
     Electronically through the Federal eRulemaking Portal:
www.regulations.gov. Follow the online instructions for submitting
comments;
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC 20590;
     Hand Delivery: U.S. Department of Transportation, Docket
Operations,

West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays; or
     Fax: 1-202-493-2251.
    All comment submissions must include the agency name, docket name,
and docket number (DOT-OST-2021-0023). DOT solicits comments from the
public to better inform its deliberations. DOT posts these comments,
without edit, including any personal information the commenter
provides, to www.regulations.gov, as described in the system of records
notice (DOT/ALL-14 FDMS), which can be viewed at www.dot.gov/privacy.
Physical access to the Docket is available at the Hand Delivery address
noted in this section.

FOR FURTHER INFORMATION CONTACT: Milo Booth, Director of Tribal
Affairs,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Purpose

    On January 26, 2021, President Biden issued a Presidential
Memorandum on Tribal consultation and Strengthening Nation-to-Nation
Relationships (Presidential Memorandum) \1\ reaffirming Executive Order
(E.O.) 13175 titled ``Consultation and Coordination With Indian Tribal
Governments'' \2\ and the policy announced in the 2009 Presidential
Memorandum titled ``Tribal Consultation'' (2009 Presidential
Memorandum).\3\ The Presidential Memorandum directs agencies to consult
with Indian Tribes to develop a detailed plan of actions to implement
E.O. 13175 and subsequently submit this plan to the Director of the
Office of Management and Budget (OMB) and the Assistant to the
President for Domestic Policy (APDP) within 90 days (April 26, 2021).
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    \1\ 86 FR 7491 (January 29, 2021).
    \2\ 65 FR 67249 (November 9, 2000).
    \3\ 74 FR 57879 (November 9, 2009).
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    Consistent with E.O. 13175 and the Presidential Memorandum, the
U.S. Department of Transportation (DOT or we) announces its intent to
engage in Tribal consultation on whether our existing consultation
policies and practices are effective in implementing E.O. 13175 and
ways we can improve our outreach and communication with Indian Tribes.
We also announce the establishment of a docket to receive comments from
Indian Tribal officials,\4\ tribal organizations, individual tribal
members and other interested persons on our communication and outreach
with Indian Tribes when we consider ``policies that have tribal
implications.'' \5\ In section II, below, we identify specific
questions to help us assess our implementation of E.O. 13175.
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    \4\ ``Tribal officials,'' as defined in Section I(d) of E.O.
13175, means elected or duly appointed officials of Indian tribal
governments or authorized intertribal organizations.
    \5\ ``Policies that have tribal implications,'' as defined in
Section l(a) of E.O. 13175, 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.
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II. Background

    A. Agency Mission. Our mission is to ensure America has the safest,
most efficient and modern transportation system in the world, which
boosts our economic productivity and global competitiveness and
enhances the quality of life in communities both rural and urban. The
Department and its Operating Administrations (OAs) implement a diverse
set of funding and safety programs. We are interested in any general
comments or concerns that would help us improve our communication and
outreach with Indian Tribes on ``policies that have tribal
implications,'' as we strive to achieve our mission.
    B. Existing Policies Regarding Interactions with Indian Tribes. We
previously have issued two policy statements that set forth principles
to promote effective government-to-government interactions with
American Indian and Alaska Native Tribes, and to encourage and
facilitate Tribal involvement in areas over which the DOT has
jurisdiction. DOT Order 5301.1, ``Department of Transportation
Programs, Policies, and Procedures Affecting American Indians, Alaska
Natives, and Tribes'' (November 16, 1999). (https://www.transportation.gov/sites/dot.gov/files/docs/DOT%205301.1.pdf) and a
Consultation Plan issued in response to the 2009 Presidential
Memorandum (https://www.transportation.gov/sites/dot.gov/files/docs/Tribal%20Consultation%20Plan.pdf) comprise these policy statements.
These policy statements provide Department-wide guidelines to achieve
consistency, but also encourage tailored approaches to consultation and
coordination that reflect the circumstances of each situation and the
preference of each Tribal government. It is our expectation that all
program and OA consultation and coordination practices will be
consistent with or adhere to the Department's Tribal consultation
policies.

1. Consultation Plan

    The U.S. Department of Transportation Tribal Consultation Plan
(Consultation Plan) (https://www.transportation.gov/sites/dot.gov/files/docs/Tribal%20Consultation%20Plan.pdf) summarized E.O. 13175, the
2009 Presidential Memorandum, and DOT Order 5301.1. The Consultation
Plan did not cancel or displace DOT Order 5301.1. Rather, we read the
two documents jointly. The Consultation Plan identified seven goals and
specific actions associated with each goal that we would continue to
take to support the principles of self-governance, self-determination,
and tribal sovereignty identified in E.O. 13175. These goals and
actions include the following:
    Goal 1: Foster meaningful government-to-government relations by:
     Ensuring participation by Department officials at national
tribal conferences, tribal/State meetings, summits, and conferences
discussing tribal issues.
     Establishing direct contact with Indian tribal
governments, including visiting tribal governments at reservations,
Native Villages, and communities.
     Seeking tribal government representation in meetings,
conferences, summits, advisory committees, and review boards concerning
issues with tribal implications.
    Goal 2: Improve existing tribal programs by:
     Seeking tribal input when the DOT develops or revises
regulations with tribal implications and providing adequate time to
allow for comment.
     Notifying tribes of grant opportunities through multiple
means, including direct letters and emails whenever appropriate, as
well as announcements on the DOT website and in the Federal Register.
     Providing timely technical assistance on changes to
legislation, regulations, programs, and grants.
    Goal 3: Ensure meaningful tribal input into future tribal
transportation programs by:
     Developing policy and programs using input, guidance, and
recommendations from tribal leaders.
     Seeking and responding to comments from tribal
governments.
     Soliciting tribal comments in the development of the DOT's
surface transportation reauthorization proposal.
     Conducting meetings throughout the country after the
passage of the next surface transportation authorization legislation to
discuss impacts on and

opportunities for the tribes and their transportation systems.
     Consulting with tribal governments on making
transportation services available to improve mobility, employment
opportunities, and access to community services for people who have
disabilities, are elderly, or low-income.
    Goal 4: Ensure the DOT's uniform and effective delivery of tribal
programs throughout the country by:
     Reviewing existing tribal policies in DOT's OAs to ensure
consistency with this action plan and each other.
     Assessing the resource needs of the tribal transportation
programs at DOT.
     Developing training modules for DOT employees on tribal
transit and highway programs.
     Developing a training program for DOT employees regarding
tribes, the sovereignty of tribal governments, and the unique
government-to-government relationship between tribes and the Federal
Government.
     Reaffirming DOT's commitment to working with the Bureau of
Indian Affairs on the administration of tribal highway safety grants.
     Continuing to support the tribal Technical Assistance
Program (TTAP).
     Addressing tribal transportation issues in DOT Strategic
Plans.
     Enhancing support for tribal Liaisons in the Federal
Transit Administration, the Federal Highway Administration, the Federal
Aviation Administration, and other staff throughout the Department
working with tribal governments.
     Coordinating efforts among DOT's OAs by establishing a
Department-wide working group tasked with making specific
recommendations to the Secretary of Transportation.
    Goal 5: Assist in implementing tribal infrastructure projects by:
     Building capacity of tribes on DOT Programs and processes,
including the Indian Reservation Roads Program and the Tribal Transit
Program.
     Initiating a review of the grant process for the Tribal
Transit Program in consultation with the tribes.
     Working with tribal governments to develop case studies
and best practices in transportation planning and highway safety.
     Developing a highway Safety Management System (SMS) for
tribal governments and forming a Steering Committee that includes
tribal representatives to advise on the SMS.
     Identifying and communicating to tribal leaders emerging
issues that could impact tribal transportation programs.
     Publishing guidance on DOT's programs with potential
benefits to tribal governments.
    Goal 6: Assist tribal members in developing transportation
capacities by:
     Increasing internships for American Indians and Alaska
Natives at DOT through outreach to tribal colleges and universities.
     Creating a web page for tribes on the DOT website.
     Increasing the representation of American Indians and
Alaska Natives in the DOT workforce, within merit principles and
consistent with the application of appropriate veterans' preference
criteria.
    Goal 7: Assist efforts to coordinate national tribal infrastructure
policy and programs within the Federal Government by:
     Working with the U.S. Department of Agriculture, the
Indian Health Service, and the Bureau of Indian Affairs to coordinate
Federal tribal infrastructure programs and incorporating livability
principles as adopted by the Department's Sustainability Partnership
with the U.S. Department of Housing and Urban Development and the U.S.
Environmental Protection Agency.
    We seek your input on these seven goals, which the Department
identified in the Consultation Plan developed in 2010 to guide the
actions we will take to support the principles set forth in E.O. 13175.
Should we revise any of these goals or incorporate new goals? Please
explain your recommendation. If a new goal is proposed, what actions
should we take, to the extent practicable and consistent with law, to
support the principles set forth in E.O. 13175? Please explain why
these actions are appropriate and how they are consistent with law.

2. DOT Order 5301.1

    The Department issued DOT Order 5301.1 (https://www.transportation.gov/sites/dot.gov/files/docs/DOT%205301.1.pdf) to
ensure that programs, policies, and procedures administered by the
Department are responsive to the needs and concerns of American
Indians, Alaska Natives, and tribes. DOT Order 5301.1 predates E.O.
13175. It affirms the Department's and the OAs' unique legal
relationship with Indian tribes; establishes the Department's
consultation and coordination process with Indian tribes for any action
that may ``significantly or uniquely affect'' them; and, lists goals
and requirements for OAs carrying out policies, programs, and
activities affecting American Indians, Alaska Natives, and tribes.
These requirements were designed to recognize Indian statutory
preferences in employment, Federal financial assistance arrangements,
and contracting; respond to the transportation concerns of Indian
tribes related to environmental justice, children's safety and
environmental health risks, occupational health and safety, and
environmental matters; foster opportunities for hiring tribal members
and increasing participation in Federal training activities; include
tribal colleges and universities in Departmental educational, research,
and program activities; and treat correspondence from leaders of Indian
tribes in the same manner as Congressional correspondence.
    In developing our detailed plan of action for consideration by OMB
and the APDP, we have identified a need to review DOT Order 5301.1.
    E.O. 13175 requires agencies to ensure meaningful and timely input
from Tribal government representatives in the development of rules that
have substantial direct effects. What additional or different steps can
we take to ``ensure meaningful and timely input'' in the development of
``policies that have tribal implications''? Please explain why these
actions are appropriate.
    What steps should we continue to take to ensure meaningful and
timely input by tribal officials in the development of regulatory
``policies that have tribal implications?''
    Are there recommendations for ways the accountability of our
consultation process can be improved?
    DOT Order 5301.1 defines consultation, in relevant part, as a
``meaningful and timely discussion . . . during the development of
regulations, policies, programs, plans or matters that significantly or
uniquely affect'' Tribal communities. DOT Order 5301.1 references
implementing instructions found in OMB Memorandum M-95-20 and the 1994
Presidential Memorandum titled ``Government-to-Government Consultations
with Native American Tribal Governments.'' How do you recommend that we
revise DOT Order 5301.1 to align it with E.O 13175? Please explain your
recommendation.
    E.O. 13175 requires agencies to consult with Tribal governments in
the development of rules that impose ``substantial direct compliance
costs'' or ``substantial direct effects'' on Tribal communities or the
relationship and distribution of power between the Federal Government
and Tribes. Please identify actions we have taken that, in your view,
impose ``substantial direct compliance costs'' or ``substantial direct
effects'' on Tribes or the distribution of power between the Federal
Government and Tribes. Please explain why, in your view, these actions
have a substantial

direct effect on Tribal communities and how these actions impose
substantial direct compliance costs or on Tribes.
    Would it be helpful to define the meaning of the terms
``substantial direct compliance costs'' and ``substantial direct
effects?'' How do you define these terms when determining whether to
consult with DOT?

3. Consultation With ANCSA Corporations

    Our policies address consultation with federally-recognized Indian
tribes (including Alaska Native tribes, villages, and communities) that
the Secretary of the Interior acknowledges to exist as an Indian tribe
pursuant to the Federally Recognized Indian Tribe List Act of 1994.11
It does not, however, address consultation with corporations
established pursuant to the Alaska Native Claims Settlement Act (ANCSA
Corporations). In 2004, through two consolidated appropriations acts,
Congress required Federal agencies to consult with Alaska Native
Corporations \6\ on the same basis as Federally recognized Indian
Tribes under E.O. 13175. (Pub. L. 108-199, 118 Stat. 452, as amended by
Pub. L. 108-447,118 Stat. 3267.) DOT interprets the term ``Alaska
Native Corporations'' in this requirement to mean ``Native
Corporations'' as that term is defined under the Alaska Native Claims
Settlement Act (ANCSA) of 1971. DOT is considering adding to the DOT
Consultation Policy the requirement to consult with Alaska Native
Corporations on the same basis as Indian Tribes under E.O. 13175. The
Department requests comments on the requirement to consult with Alaska
Native Corporations that would help us improve our policy while
recognizing the important differences between them and sovereign tribal
governments, the Federal trust responsibility to those Tribal
governments and corporations obligated to maximize financial returns to
shareholders, and that Alaska Native Corporations may not necessarily
represent the same perspective or interests as Tribal nations.
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    \6\ ``Alaska Native Corporation,'' pursuant to 43 U.S.C. 1602 et
seq., is any Regional Corporation, any Village Corporation, any
Urban Corporation, and any Group Corporation as defined in, or
established pursuant to, the Alaska Native Claims Settlement Act.
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4. Consultation With Native Hawaiians and State-Recognized Tribes

    Our policies currently include references to non-Federally
recognized groups of Indigenous people, such as State-recognized
Tribes, but not Native Hawaiians and Native Hawaiian organizations. The
intent of our Tribal consultation policies is to outline how DOT will
engage and conduct consultation with Federally recognized Tribal
Governments in accordance with E.O. 13175 and applicable requirements.
To be consistent with the definition of an ``Indian tribe'' in E.O.
13175, the Department is considering removing from our policies
implementing E.O. 13175 references to non-Federally recognized Tribes.
Please comment on whether you would agree with removing references to
non-Federally recognized Tribes.

5. Communicating Agency Disposition of Tribal Input

    DOT and its OAs describe tribal input and concerns regarding
specific projects in its environmental documents and decision
documents. DOT similarly addresses tribal input and concerns in its
rulemaking documents by describing any Tribal consultations or concerns
that were identified in the course of developing the rulemaking. We are
interested in any general comments or concerns that would help us
improve our process for communicating with Tribes how their input was
considered by agency decision makers. How could we improve our post-
consultation communication? Are there best practices of which we should
be aware to ensure that tribal concerns are heard and addressed?

6. Recognition of Federal Trust and Treaty Obligations

    As set forth in the U.S. Constitution, treaties, U.S. Supreme Court
decisions, Federal statutes and regulations, and Executive Orders, the
United States has a unique legal relationship with Indian tribes and a
special relationship with Alaska Native entities. Based on treaties
with Indian tribes, the U.S. Supreme Court shortly after the founding
of the United States established the concept of a Federal trust to
define the relationship between the Federal and tribal governments.
This trust relationship continues to guide and interpret the
responsibility of the United States to Indian tribes. The Department
acknowledges that the Federal trust doctrine is a cornerstone of
Federal Indian law and that it is the responsibility of the U.S.
government to faithfully carry out its treaty promises and trust
obligations to Indian tribes.
    To ensure that the Department is meeting its treaty obligations and
trust responsibilities, we are therefore seeking comments on what
actions you think the Department should conduct or not conduct
regarding its programs and activities with Indian tribes. Please
explain your recommendation.
    What treaty or other source do you consider creates an obligation
that the Department should carry out? Please explain your response.
    What treaty or other source do you consider creates a trust
obligation for the Department?
    In addition to carrying out consultations with tribes on ``policies
that have tribal implications,'' what other specific trust obligations
should be carried out by the Department? Please explain your
recommendation.

III. Tribal Consultation Meeting

    This Tribal consultation meeting and any listening sessions hosted
by Tribal associations are intended to provide interested parties with
an opportunity to discuss their views on the issues; and for us to
obtain the views of Federally recognized Tribes, in accordance with
E.O. 13175 and the Presidential Memorandum, on ways we can improve our
outreach and communication with Indian Tribes when we develop policies
with Tribal implications. We consider Tribal consultation meetings a
valuable component of our deliberations and believe that these meetings
will allow for constructive dialogue with the Tribal community, Tribal
officials, Tribal Elders, elected members of Alaska Native Villages or
their appointed representatives, and principals of tribally-owned and
Alaska Native Corporation-owned firms. Testimony received at these
Tribal consultations will guide our review process of our Tribal
consultation policies and practice and may be used to develop new
policies and strategies for consultation.
    Respondents. The Consultation will prioritize the Government-to-
Government discussion and will provide elected or appointed leaders of
Tribal governments or their designated representatives first
opportunity to comment. Other representatives of Tribal governments,
Tribal organizations, and members of the public may offer comment after
official Tribal representatives. The order of comments will be as
follows: First, elected or appointed leaders of Tribal governments or
their designated representatives who requested to provide testimony in
advance of the meeting; second, elected or appointed leaders of Tribal
governments or their designated representatives who requested to
provide testimony via a chat function during the consultation; third,
other representatives of Tribal governments who request to provide oral
testimony in advance of the meeting or via the chat function; fourth,

representatives of Tribal organizations, who request to provide oral
testimony in advance of the meeting or via the chat function; fifth,
other members of the public who request to provide oral testimony in
advance of the meeting or via the chat function; and sixth, all other
members of the public who identify themselves orally.
    Adjournment. We will adjourn Tribal consultation meetings early if
all attendees who requested to provide oral testimony in advance of and
during the consultation have delivered their comments. We may provide
additional or alternate opportunities to comment, including in virtual
listening sessions hosted by Tribal transportation associations with
Departmental officials. Additional information regarding additional
opportunities to provide oral comment will be made available at https://www.transportation.gov/self-governance. We will summarize in a letter
to Tribal governments the comments received and indicate how Tribal
input was considered in the final action. The letter will constitute
formal follow-up notification and will be entered as the date Tribal
consultation ended.

IV. Request for Comments

    We request public comment from Indian Tribes on the Department's
implementation of E.O. 13175 and its Tribal consultation policies and
practice. Your comments may relate to, but should not be limited to,
the questions identified above. All comments will be accepted. The
virtual Tribal consultation meetings and listening sessions are not the
only opportunity you have to comment on this matter. In addition to, or
in place of, attending a virtual meeting, we encourage you to submit
comments in accordance with the instructions in ADDRESSES, above.
Public comment submissions should include the Docket number OST-2021-
0023.
    DOT solicits comments from the public to better inform its
deliberations. The DOT posts these comments, without edit, including
any personal information the commenter provides, to
www.regulations.gov, as described in the system of records notice (DOT/
ALL-14 FDMS), which can be viewed at www.dot.gov/privacy.

    Issued in Washington, DC, on or about March 4, 2021.
Peter Paul Montgomery Buttigieg,
Secretary of Transportation.
[FR Doc. 2021-04883 Filed 3-8-21; 8:45 am]
BILLING CODE 4910-9X-P