Title II — Consultation Procedure

Scope— Agencies shall ensure meaningful and timely consultation with Indian Tribes and Tribal officials prior to undertaking any mineral activities that may have substantial direct, indirect, or cumulative impacts on—

Multiagency mineral activities— If more than one agency is involved in a mineral activity, some or all of the agencies may designate a lead agency, which shall be responsible for fulfilling the consultation required under subsection (a). an agency that does not designate a lead agency shall remain individually responsible for the consultation required under subsection (a). All agencies involved in the mineral activity shall remain involved in and engaged with the consultation process regardless of whether or not a lead agency has been designated.

Limitation— Nothing in this Act shall exempt an agency from additional consultation required under any other law or from taking any other consultative actions as required by any other law or agency prerogative in addition to those required by this Act. Nor does it preclude an agency from additional consultation that complies with agency regulations for consultation, advances agency consultation practices, or supports agency efforts to build or strengthen government-to-government relationships with an Indian Tribe.

Planning document— As early as possible in the planning stage of a mineral activity, the agency shall compile a draft of the scope of the project. The agency shall make a reasonable and good faith effort, consistent with section 800.4(b)(1) of title 36, Code of Federal Regulations, as such regulation was in effect on July 6, 2004, to identify areas that contain sites important to Indian Tribes whether or not such sites are explicitly known to the agency. The agency shall make a reasonable and good faith effort to identify any geographic areas important to Indian Tribes that might be affected and any other anticipated impacts to Tribal interests.

Initial consultation contact— The agency—

Consultation meeting arrangements— The agency shall negotiate with the affected Indian Tribes to determine the time, place, agenda, travel funds, facilitator, format, and goals of a consultation meeting. The agency shall keep thorough documentation of all steps taken to contact and engage the affected Indian Tribes in consultation. If, after a good faith effort, the agency fails to engage the affected Indian Tribes, it may terminate its scoping stage consultation efforts by providing all consultation partners with a written notification and explanation for its decision to end scoping stage consultation efforts, signed by the head of the agency, and proceed to the decision stage procedures described in section 204xreference. A good faith effort to consult must involve consistent and sustained efforts to contact and engage with the appropriate-level officials via the available channels of communication (United States mail, e-mail, and telephone).

Scoping stage consultation meeting— A scoping stage consultation meeting shall begin with confirmation of the format, facilitator, and agenda, with adequate time scheduled for introductions and for interaction throughout the meeting among participants. Whenever possible, Tribal stakeholders (such as allottees or interested Tribal members) shall be brought into the on-going planning process directly by forming ad hoc workgroups (including Tribal leaders or their designees) and, if appropriate, initiating a process for consensual development of regulations, such as negotiated rulemaking. A scoping stage consultation meeting shall conclude with planning for the next meeting, if necessary.

Termination of scoping stage consultation without a memorandum of agreement— The agency shall make a good faith effort through sustained interaction and collaboration to reach a consensus resulting in a memorandum of agreement. If, after a good faith effort and a reasonable amount of time given the nature and complexities of the proposed activity and potential impacts, the agency determines that further consultation will not be productive, it may terminate consultation by providing all consultation partners with a written notification and explanation for its decision, signed by the head of the agency, and proceed to the decision stage procedures described in section 204xreference. Any decision by an agency to terminate consultation must be supported by an adequate documentation and evidence of its good faith efforts and the basis for its decision. The affected Indian Tribes may at any point decide to terminate consultation. In case of termination by either party, the agency shall provide the affected Indian Tribes or other affected parties with the opportunity to submit a written statement, explanation, or comment on the consultation proceedings that will become part of the agency’s official consultation record.

Proposal document— The agency shall compile a document consisting of the plan for the activity, its anticipated impacts to Tribal interests, any memorandum of agreement, and any written statements made by consulting partners during the scoping stage as described in section 203xreference. The agency shall include sufficient supporting documentation to the extent permitted by law and within available funds to enable any reviewing parties to understand its basis. The agency may use documentation prepared to comply with other laws to fulfill the requirements of this provision to the extent that such documentation is sufficiently pertinent to and focused on the relevant issues as to allow reasonable ease of review. The agency shall mail and, if possible, email a copy of the Proposal Document to all affected Indian Tribes and stakeholders, including those that withdrew from the process. At a minimum, the document shall go to the Tribal leader, all members of any elected Tribal governing body, and stakeholders. The agency shall follow up to confirm receipt of the document. After these steps have been completed, the Proposal Document shall be published in the Federal Register, subject to the provisions of section 207xreference.

Public comment period— The agency shall provide a period of not less than 90 days after publication in the Federal Register for comments on the Proposal Document. A reasonable extension shall be granted upon request of not less than 30 days by any member of any of the affected Indian Tribal governing bodies or a stakeholder.

Preliminary decision— After expiration of the comment period, the agency shall prepare a preliminary decision letter, signed by the head of the agency. The letter shall state the decision to proceed or not proceed with the mineral activity, the decision’s rationale, any changes in the proposal made in response to comments, and any points where the decision conflicts with the expressed requests of any of the affected Indian Tribes or stakeholders. It shall particularly address why the decision was made to disregard any such requests. The agency shall mail and, if possible, email a copy of the letter to all affected Indian Tribes and stakeholders, including those that withdrew from the process. At a minimum, the letter shall go to the Tribal leader, all members of the Tribal governing body, and stakeholders. The agency shall follow up to confirm receipt of the letter.

Final decision— The agency shall provide a 60-day period following the issuance of the preliminary decision letter for response by the affected Indian Tribes and stakeholders. Thereafter, the agency shall notify in writing, signed by the head of the agency, the affected Indian Tribes and stakeholders, including those that withdrew from the process, of the agency’s final decision.

Official consultation record— The agency shall keep an official consultation record that allows accurate tracking of the process so that agencies and consulting parties can correct any errors or omissions, and provides an official record of the process that can be referred to in any litigation that may arise. The agency shall document all efforts to initiate consultation as well as documenting the process once it has begun. Such documentation, including correspondence, telephone logs, and emails, shall be included in the agency’s official consultation record. The agency shall also keep notes so that the consultation record documents the content of consultation meetings, site visits, and phone calls in addition to information about dates and who participated.

Payment for Tribal documentation work— If the agency asks an Indian Tribe for specific information or documentation regarding the location, nature, and condition of individual sites, to conduct a survey, or in any way fulfill the duties of the agency in a role similar to that of a consultant or contractor, then the agency must pay for such services, if so requested by the Indian Tribe, as it would for any private consultant or contractor. An Indian Tribe may select a contractor to perform such work on its behalf, to be paid for by the agency.

Report to Congress— Each agency shall on a biennial basis submit to Congress a report on its consultation activities.

Closed meetings— Notwithstanding any provision of the Administrative Procedures Act, consultation meetings shall be closed to the public at the request of the Indian Tribal Government.

Sensitive information— Notwithstanding any provision of section 552 of title 5, United States Code (commonly known as the Freedom of Information Act), the Administrative Procedures Act, or any other applicable laws or regulations, all information designated by the Indian Tribe as sensitive, such as the location of sacred sites or other details of cultural or religious practices, shall be deleted from any public publication made as part of the consultation process or in the process of carrying out the activity.

Limited information access— The agency, in consultation with the Indian Tribe or such Tribe’s designee, shall determine who may have access to the information for the purposes of carrying out the mineral activity.

Individual allotments— Instances where sacred sites are located on individual allotments or public domain allotments shall be addressed on a case-by-case basis and shall involve the allottees.

Sacred sites— The location and uses of a sacred site shall be protected in accordance with this provision and section 111.