,i #aagth ,,congress #ast ,session ,h4 ,r4 #cehg ,,in ,,the ,,house ,,of ,,representatives ,may #bh1 #bjba ,mr4 ,grijalva 7for himself1 ,ms4 ,leger ,fernandez1 ,mr4 ,huffman1 ,mrs4 ,napolitano1 ,mr4 ,cohen1 ,ms4 ,tlaib1 ,mr4 ,soto1 ,mr4 ,garca of ,illinois1 and ,mr4 ,lowenthal7 introduced the following bill2 which was referred to the ,committee on the ,judiciary1 and in addition to the ,committee on ,natural ,resources1 for a period to be subsequently determined by the ,speaker1 in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned ,a ,,bill ,to prescribe procedures for effective consultation and coordination by ,federal agencies with federally recognized ,tribal ,governments regarding ,federal ,government actions that impact ,tribal lands and interests to ensure that meaningful ,tribal input is an integral part of the ,federal decision-making process4 #a4 ,short title 7a7 ,short title ,this ,act may be cited as the ,requirements1 ,expectations1 and ,standard ,procedures for ,effective ,consultation with ,tribes ,act or the ,,respect ,act4 #b4 ,table of contents ,the table of contents for this ,act is as follows3 ,sec4 #a4 ,short title4 ,sec4 #b4 ,table of contents4 ,sec4 #c4 ,findings and purposes4 ,sec4 #d4 ,sense of ,congress4 ,sec4 #e4 ,definitions4 ,title ,i--,standards for ,consultation ,sec4 #aja4 ,standards for consultation4 ,title ,,ii--,consultation ,procedures ,sec4 #bja4 ,assessing ,tribal impacts4 ,sec4 #bjb4 ,consultation stage4 ,sec4 #bjc4 ,decision stage for proposed activity4 ,sec4 #bjd4 ,decision stage for proposed regulatory action4 ,title ,,iii--,documentation and ,reporting ,sec4 #cja4 ,documentation and reporting4 ,title ,,iv--,implementation and ,training ,sec4 #dja4 ,designated agency official4 ,sec4 #djb4 ,consultation policy4 ,sec4 #djc4 ,training4 ,title ,v--,tribal ,sovereignty ,sec4 #eja4 ,tribal sovereignty4 ,sec4 #ejb4 ,sensitive ,tribal information4 ,title ,,vi--,judicial ,review ,sec4 #fja4 ,judicial review4 #c4 ,findings and purposes 7a7 ,findings ,congress finds that-- 7#a7 the ,united ,states has a unique1 legally affirmed government-to-government relationship with ,tribal ,governments1 as set forth in the ,constitution of the ,united ,states1 treaties1 statutes1 ,executive orders1 and court decisions2 7#b7 the ,united ,states recognizes the right of ,tribal ,governments to self-govern and supports ,tribal sovereignty and self-determination2 7#c7 the ,united ,states1 through treaties1 statutes1 and historical relations1 has defined a unique trust relationship and responsibility to protect and support ,tribal ,governments2 7#d7 owing to this trust relationship1 the ,united ,states has a responsibility to consult with ,tribal ,governments on a government-to-government basis when formulating policies and undertaking activities that may have impacts on ,tribal lands and interests2 7#e7 procedures for such consultation should be designed and structured to give ,tribal ,governments the opportunity to provide meaningful1 informed input throughout the development and decision-making processes2 7#f7 increasing ,federal and ,tribal capacities for effective consultation while building institutional knowledge fosters greater efficiency and will benefit future actions2 7#g7 the consultation process should be formalized according to best practices that are designed and administered by the agency and that fulfill the legal requirements mandated by this ,act2 7#h7 consulting with ,tribal ,governments during the formulation of long-term management plans reduces the likelihood of project delays and increases the efficiency of project implementations2 and 7#i7 effective consultation demands ongoing1 respectful communication between agencies and ,tribal ,governments4 7b7 ,purposes ,the purposes of this ,act are-- 7#a7 to establish and support a process of regular1 meaningful consultation and collaboration with ,tribal ,governments in the initiation of ,federal activities and the development of ,federal policies and regulations that impact ,tribal lands and interests2 7#b7 to strengthen the ,united ,states government-to-government relationship with ,tribal ,governments2 and 7#c7 to establish minimum standard procedures to ensure the above goals are achieved4 #d4 ,sense of ,congress ,it is the sense of ,congress that-- 7#a7 consultation constitutes more than simply notifying an ,tribal ,government about a planned undertaking2 7#b7 effective1 meaningful consultation requires a two-way exchange of information1 a willingness to listen1 an attempt to understand and to genuinely consider each other's opinions1 beliefs1 and desired outcomes1 and a seeking of agreement on how to proceed concerning the issues at hand2 and 7#c7 consultation can be considered effective and meaningful when each party demonstrates a genuine commitment to learn1 acknowledge1 and respect the positions1 perspectives1 and concerns of the other parties and when ,federal agencies accommodate ,tribal concerns to the extent feasible and consistent with applicable law4 #e4 ,definitions ,for the purposes of this ,act3 7#a7 ,activity ,the term activity means any plan1 project1 or program funded in whole or in part under the direct or indirect jurisdiction of a ,federal agency1 including-- 7,a7 those carried out by or on behalf of an agency2 7,b7 those carried out with ,federal financial assistance2 7,c7 those requiring a ,federal permit1 license1 or approval2 and 7,d7 those subject to state or local regulation administered pursuant to a delegation or approval by a ,federal agency4 7#b7 ,agency ,the term agency means any authority of the ,united ,states that is an agency under section #eea of title #e1 ,united ,states ,code4 7#c7 ,lead agency ,the term lead agency means a designated agency that will fulfill the collective consultation responsibilities under this ,act if more than one agency is involved in an activity or regulatory action4 ,any agency that does not designate a lead agency shall remain individually responsible for the consultation responsibilities of that agency under this ,act4 7#d7 ,memorandum of agreement ,the term memorandum of agreement means a document that records the terms and conditions agreed upon by an agency1 or lead agency1 and a ,tribal ,government or designated ,tribal ,leader ,task ,force through the consultation process regarding an activity or regulatory action4 7#e7 ,new discovery ,the term new discovery means any unexpected development that occurs during the course of an activity1 such as the discovery of a new archeological site1 unanticipated impacts on organisms or ecosystems1 or the realization of unintended consequences that may have impacts on ,tribal lands and interests4 7#f7 ,regulatory action ,the term regulatory action means any regulation1 policy1 guidance1 or grant funding formula change that is proposed by an agency4 7#g7 ,sacred site ,the term sacred site means any geophysical or geographical area or feature that is identified by a ,tribal ,government-- 7,a7 as sacred by virtue of its established religious significance to1 or ceremonial use by1 a ,tribal religion2 or 7,b7 to be of established cultural significance4 7#h7 ,standard method of communication ,the term standard method of communication means the mode of communication that the agency uses in the typical course of communicating with persons outside the ,federal ,government4 7#i7 ,standard process ,the term standard process means a process for ,federal agency and ,tribal ,government interactions agreed to by both parties through consultation and certified in a memorandum of agreement that applies to certain specified activities or regulatory actions1 or to limited categories of activities or regulatory actions4 7#aj7 ,tribal ,government ,the term ,tribal ,government means the governing body of any ,indian or ,alaska ,native ,tribe1 band1 nation1 pueblo1 village1 community1 component band or component reservation1 individually identified 7including parenthetically7 in the list published most recently as of the date of enactment of this ,act pursuant to section #ajd of the ,federally ,recognized ,indian ,tribe ,list ,act of #aiid 7#be ,u4,s4,c4 #eaca74 7#aa7 ,tribal impact ,the term ,tribal impact means any ,federal action that may have an impact on one or more ,tribal ,governments on matters1 including-- 7,a7 ,tribal cultural practices1 lands1 resources1 or access to traditional areas of cultural or religious importance2 7,b7 ,tribal treaty-protected rights2 7,c7 the ability of a ,tribal ,government to govern or provide services to its members2 7,d7 a ,tribal ,government's formal relationship with the ,federal ,government2 or 7,e7 the consideration of the ,federal ,government's trust responsibility to ,tribal ,governments4 7#ab7 ,tribal leader task force ,the term ,tribal ,leader ,task ,force means a task force that is collaboratively determined by affected ,tribal ,governments4 ,i ,standards for ,consultation #aja4 ,standards for consultation 7a7 ,scope ,consultation with ,tribal ,governments shall occur before undertaking any proposed ,federal activity or finalizing any ,federal regulatory action that may have ,tribal impacts4 ,additionally1 consultation with ,tribal ,governments shall occur for all activities that would affect any part of any ,federal land that shares a border with ,indian ,country1 as defined in section #aaea of title #ah1 ,united ,states ,code1 but is not limited to activities on such lands4 7b7 ,limitation ,nothing in this ,act shall-- 7#a7 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 ,act2 or 7#b7 preclude an agency from additional consultation that complies with agency regulations for consultation1 advances agency consultation practices1 or supports agency efforts to build or strengthen government-to-government relationships with ,tribal ,governments4 ,,ii ,consultation ,procedures #bja4 ,assessing ,tribal impacts ,as early as possible in the planning stage of an activity or a regulatory action1 the agency1 or lead agency1 shall-- 7#a7 prepare a ,tribal ,impact ,statement that identifies any potential ,tribal impacts of the proposed activity or regulatory action4 ,at a minimum1 the ,tribal ,impact ,statement shall include the scope of the activity or regulatory action being considered1 including any geographic areas important to ,tribal ,governments that might be affected1 as well as a list of all affected ,tribal ,governments2 7#b7 make a good faith effort to identify areas that contain sacred sites important to ,tribal ,governments1 whether such sacred sites are explicitly known to an agency or not2 and 7#c7 publish the completed ,tribal ,impact ,statement in the ,federal ,register1 excluding all information designated as sensitive by a ,tribal ,government pursuant to section #ejb1 before any further action on the proposed activity or regulatory action4 #bjb4 ,consultation stage 7a7 ,initial consultation outreach ,the agency1 or lead agency1 shall-- 7#a7 transmit1 via the agency's standard method of communication1 a formal request for a consultation meeting1 along with along with a copy of the proposed activity or regulatory action as well as copy of the ,tribal ,impact ,statement as prepared according to section #bja1 to each affected ,tribal ,government identified in the ,tribal ,impact ,statement4 ,in the case of a proposed activity1 the documents shall also be transmitted to relevant ,tribal governmental agencies 7including the ,tribal ,historic ,preservation ,officer or cultural resource manager71 and relevant non-,tribal stakeholders 7including the ,state ,historic ,preservation ,officer and local governments that have jurisdiction on any affected land via agreement with the agency72 7#b7 at the request of an affected ,tribal ,government1 transmit1 via the agency's standard method of communication1 a copy of the ,tribal ,impact ,statement and the letter requesting a consultation meeting to non-governmental ,tribal stakeholders2 7#c7 not request consultation with non-governmental ,tribal stakeholders without the written consent of the affected ,tribal ,government2 7#d7 follow up within #e business days to ensure receipt of the documents by all intended recipients2 and 7#e7 if the documents were not received by any of the intended recipients1 retransmit all materials via a form of communication that is suitable to the recipient4 7b7 ,non-,response to consultation outreach ,if1 after a good faith effort1 the agency1 or lead agency1 fails to engage an affected ,tribal ,government in the consultation process1 the agency1 or lead agency1 may conclude its consultation efforts by providing the ,tribal ,government with a written notification and explanation for its decision1 signed by the head of the agency1 or lead agency1 which shall be made part of the official consultation record as described in section #cja7;a74 7c7 ,meeting arrangements 7#a7 ,the agency1 or lead agency1 shall negotiate with each affected ,tribal ,government to determine the format1 agenda1 and goals of a consultation meeting1 and shall keep thorough documentation of all steps taken to engage the affected ,tribal ,government in consultation meetings4 7#b7 ,in appropriate circumstances1 affected ,tribal ,governments may elect to form a ,tribal ,leader ,task ,force1 to aid in consultation on activities that are regional in scope or that affect multiple ,tribal ,governments4 ,to the maximum extent possible1 the ,tribal ,leader ,task ,force shall represent a cross-section of ,tribal interests with respect to the proposed activity or regulatory action4 ,affected ,tribal ,governments that do not elect to join a ,tribal ,leader ,task ,force shall be consulted separately4 7d7 ,consultation meeting requirements ,a consultation meeting shall-- 7#a7 begin with confirmation of the format1 agenda1 and goals of the meeting1 with adequate time scheduled for introductions and any ceremonial proceedings2 7#b7 be structured to allow for meaningful and respectful interaction throughout the meeting among all meeting participants2 and 7#c7 conclude with planning for the next meeting1 if necessary1 as well as confirmation of the method of any potential interim communications between all parties participating in the consultation4 7e7 ,conclusion of consultation with a memorandum of agreement 7#a7 ,except as provided by subsection 7b71 subsection 7f71 and subsection 7g71 consultation shall conclude only upon the execution of a memorandum of agreement signed by the head of the agency1 or lead agency1 and the head of the affected ,tribal ,government or the members of the designated ,tribal ,leader ,task ,force4 7#b7 ,the memorandum of agreement-- 7,a7 may address multiple activities or regulatory actions if the activities or regulatory actions are similar and repetitive in nature1 or are multistate or regional in scope1 or where routine management activities are undertaken at ,federal installations1 facilities1 or other land management units2 7,b7 may establish standard processes for certain categories of activities and regulatory actions determined through consultation and defined in the memorandum of agreement2 7,c7 shall1 in the case of a proposed activity-- 7i7 include a provision for monitoring and reporting on the implementation of the activity2 7ii7 include provisions for reconsideration if the activity has not been completed within a specified time2 and 7iii7 include provisions to address new discoveries1 which may include halting the activity and returning to the consultation stage4 7#c7 ,the signed memorandum of agreement may be amended at any time by the joint approval of all signatories4 7f7 ,conclusion of consultation without a memorandum of agreement 7#a7 ,the agency1 or lead agency1 shall make a good faith effort through sustained interaction and collaboration to reach a consensus resulting in a memorandum of agreement4 7#b7 ,if1 after a good faith effort1 the agency1 or lead agency1 determines that further consultation will not be productive1 it may conclude consultation by providing the ,tribal ,government with a written notification and explanation for its decision1 including identification of any legal1 policy1 or factual barriers that prevented the agency from reaching agreement with the affected ,tribal ,government1 signed by the head of the agency1 or lead agency1 which shall be made part of the official consultation record as described in section #cja7;a74 7g7 ,tribal withdrawal from consultation ,an affected ,tribal ,government may at any point decide to withdraw from the consultation process4 ,in such case1 the agency1 or lead agency1 shall provide the affected ,tribal ,government with the opportunity to submit a written statement1 explanation1 or comment on the consultation proceedings that will become part of the official consultation record as described in section #cja7;a74 #bjc4 ,decision stage for proposed activity 7a7 ,proposal document ,upon completion of the consultation stage pursuant to section #bjb1 the agency1 or lead agency1 shall-- 7#a7 compile a proposal document consisting of the plan for the proposed activity1 its anticipated ,tribal impacts1 and any signed memorandum of agreement2 7#b7 include sufficient supporting documentation to the extent permitted by law to enable any reviewing parties to understand its basis2 7#c7 transmit1 via the agency's standard method of communication1 a copy of the proposal document to the affected ,tribal ,governments1 including those that withdrew from the process2 7#d7 follow up within #e business days to ensure receipt of the proposal document by all intended recipients2 7#e7 if the proposal document was not received by an intended recipient1 retransmit all material via a form of communication that is suitable to the recipient2 and 7#f7 after the verified receipt of the proposal document by all intended recipients1 the proposal document shall be published in the ,federal ,register1 excluding all information designated as sensitive by a ,tribal ,government pursuant to section #ejb4 7b7 ,public comment period ,the agency1 or lead agency1 shall provide a period of not less than #ij days after publication of the proposal document in the ,federal ,register for public comment4 ,a #cj-;day extension of the #ij-;day period shall be automatically granted upon request by an affected ,tribal ,government4 7c7 ,preliminary decision document ,after expiration of the public comment period pursuant to subsection 7b71 the agency1 or lead agency1 shall prepare a preliminary decision letter1 signed by the head of the agency1 or lead agency1 that shall-- 7#a7 state the decision to proceed or not proceed with the activity2 7#b7 state the rationale for the decision2 7#c7 list any changes to the proposed activity made in response to the comments filed pursuant to subsection 7b72 7#d7 specifically address any points where the decision conflicts with the request of an affected ,tribal ,government1 including a detailed explanation of why the request was disregarded2 7#e7 transmit1 via the agency's standard method of communication1 a copy of the preliminary decision letter to the affected ,tribal ,governments1 including those that withdrew from the process2 7#f7 follow up within #e business days to ensure receipt of the preliminary decision letter by all intended recipients2 and 7#g7 if the preliminary decision letter was not received by an intended recipient1 retransmit the material via a form of communication that is suitable to the recipient4 7d7 ,tribal response period ,the agency1 or lead agency1 shall provide a period of no less than #de days after issuance of the preliminary decision letter for a response by an affected ,tribal ,government4 7e7 ,final decision document ,after expiration of the ,tribal ,response ,period pursuant to subsection 7d71 the agency1 or lead agency1 shall prepare a letter stating the final decision of the agency1 signed by the head of the agency1 or lead agency1 that shall-- 7#a7 state the decision to proceed or not proceed with the activity2 7#b7 state the rationale for the decision2 7#c7 list any changes to the preliminary decision in response to comments received from an affected ,tribal ,government pursuant to subsection 7d72 7#d7 specifically address any points where the final decision conflicts with the request of an affected ,tribal ,government1 including a detailed explanation of why the request was disregarded2 7#e7 transmit1 via the agency's standard method of communication1 a copy of the final decision letter to the affected ,tribal ,governments1 including those that withdrew from the process2 7#f7 follow up after #e business days to ensure receipt of the final decision letter by all intended recipients2 and 7#g7 if the final decision letter was not received by an intended recipient1 retransmit the material via a form of communication that is suitable to the recipient4 7f7 ,publication of letter ,the agency shall make public the final decision letter1 excluding all information designated as sensitive by a ,tribal ,government pursuant to section #ejb4 #bjd4 ,decision stage for proposed regulatory action 7a7 ,decision document ,upon completion of the consultation stage pursuant to section #bjb1 the agency1 or lead agency1 shall prepare a decision letter1 signed by the head of the agency1 or lead agency1 that shall-- 7#a7 state the decision to proceed or not proceed with the proposed regulatory action2 7#b7 state the rationale for the decision2 7#c7 list any changes to the proposed regulatory action made at the request of an affected ,tribal ,government during the consultation process as outlined in section #bjb2 7#d7 specifically address any points where the decision conflicts with the request of an affected ,tribal ,government1 along with a detailed explanation of why the request was disregarded2 7#e7 transmit1 via the agency's standard method of communication1 a copy of the decision letter to the affected ,tribal ,governments1 including those that withdrew from the process2 7#f7 follow up within #e business days to ensure receipt of the decision letter by all intended recipients2 and 7#g7 if the decision letter was not received by an intended recipient1 retransmit the material via a form of communication that is suitable to the recipient4 7b7 ,publication in ,federal ,register ,the decision letter shall be published in the ,federal ,register alongside the final decision on the regulatory action1 excluding all information designated as sensitive by a ,tribal ,government pursuant to section #ejb4 ,,iii ,documentation and ,reporting #cja4 ,documentation and reporting 7a7 ,official consultation record ,the agency1 or lead agency1 shall-- 7#a7 keep an official consultation record that allows accurate tracking of the process so that the agency and all consulting parties can correct any errors or omissions1 and provides an official record of the process that can be referred to in any litigation that may arise2 7#b7 document all efforts to initiate consultation as well as documenting the process once it has begun1 such as correspondence1 telephone logs1 and emails2 7#c7 keep notes so that the consultation record documents the content of consultation meetings1 site visits1 and phone calls in addition to information about dates and who participated2 7#d7 include all documentation in the official consultation record2 and 7#e7 ensure that all information designated as sensitive by a ,tribal ,government pursuant to section #ejb is kept confidential4 7b7 ,payment for ,tribal documentation work ,if the agency1 or lead agency1 asks a ,tribal ,government for specific information or documentation that in any way fulfills the duties of the agency in a role similar to that of a consultant or contractor1 then the agency1 or lead agency1 must pay for such services1 if so requested by the ,tribal ,government1 as it would for any private consultant or contractor4 7c7 ,report to congress ,each agency shall submit a biennial report on its consultation activities to ,congress1 including outcomes4 ,,iv ,implementation and ,training #dja4 ,designated agency official ,no later than #ij days after the date of the enactment of this ,act-- 7#a7 the head of each agency shall designate an official with principal responsibility for the agency's implementation of this ,act2 and 7#b7 each bureau or office within the agency shall designate one or more officials with the responsibility to work with the principal agency official on implementation of this ,act4 #djb4 ,consultation policy ,no later than #ahj days after enactment of this ,act1 the designated agency official shall submit to the ,office of ,management and ,budget a description of the agency's consultation policy1 including all designated agency officials1 in conformity with this ,act4 #djc4 ,training ,each agency shall design training for staff aimed at improving the agency's capacity for interacting with ,tribal ,governments and executing the consultation process4 ,the training shall-- 7#a7 promote consultation1 communication1 collaboration1 and other interactions with ,tribal ,governments2 7#b7 outline and reinforce the agency duties concerning ,tribal interests2 and 7#c7 strengthen the understanding of the ,united ,states government-to-government relationship with ,tribal ,governments4 ,v ,tribal ,sovereignty #eja4 ,tribal sovereignty 7a7 ,in general ,agencies shall recognize and respect ,tribal self-government and sovereignty1 honor ,tribal treaty and other rights1 and strive to meet the responsibilities that arise from the unique legal relationship between the ,federal ,government and ,tribal ,governments4 7b7 ,maximum ,tribal administrative discretion ,with respect to ,federal statutes and regulations administered by ,tribal ,governments1 the ,federal ,government shall grant ,tribal ,governments the maximum administrative discretion possible4 7c7 ,alternatives to ,federal regulation ,with respect to the formulation and implementation of policies that have an impact on ,tribal matters1 agencies shall-- 7#a7 encourage ,tribal ,governments to develop their own policies to achieve program objectives2 7#b7 when possible1 defer to ,tribal ,governments to establish standards2 and 7#c7 in determining whether to establish ,federal standards1 consult with ,tribal ,governments as to the need for ,federal standards and any alternatives that would limit the scope of ,federal standards or otherwise preserve the prerogatives and authority of ,tribal ,governments4 #ejb4 ,sensitive ,tribal information ,notwithstanding chapter #g of title #e1 ,united ,states ,code 7commonly known as the ,administrative ,procedure ,act71 consultation meetings shall be closed to the public at the request of the ,tribal ,government4 ,notwithstanding section #eeb of title #e1 ,united ,states ,code 7commonly known as the ,freedom of ,information ,act71 all information designated by the ,tribal ,government as sensitive1 such as the location of sacred sites or other details of cultural or religious practices1 shall be deleted from any public publication made as part of the consultation process or in the process of carrying out the activity4 ,once information has been designated as sensitive1 the agency will determine in consultation with the ,tribal ,government who may have access to the information for the purposes of carrying out the activity4 ,,vi ,judicial ,review #fja4 ,judicial review ,a ,tribal ,government may seek judicial review of a determination of an agency under this ,act in accordance with subchapter ,,ii of chapter #e of title #e1 ,united ,states ,code1 and chapter #g of title #e1 ,united ,states ,code 7commonly known as the ,administrative ,procedure ,act71 if the ,tribal ,government has exhausted all other administrative remedies available to the ,tribal ,government4