Sec. 203. Scoping stage consultation
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/bill/116/hr/2579/ih/section-203·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
As early as possible in the planning stage of a mineral activity, the agency shall compile a draft of the scope of the project, including any geographic areas important to Indian Tribes that might be affected and any other anticipated Tribal impacts. The agency shall make a good faith effort to include areas that contain sites important to Indian Tribes whether or not such sites are explicitly known to the agency. The agency— shall send, via United States mail and, if possible, email, a copy of the planning document and a letter requesting consultation meetings to the relevant Tribal Government officials, including the Tribal leader and all members of any elected Tribal governing body, relevant Tribal governmental agencies (including the Tribal Historic Preservation Officer or cultural resource manager), and relevant non-Tribal stakeholders (including the State Historic Preservation Officer and local governments that have jurisdiction on any affected land via agreement with the agency); at the request of an affected Indian Tribe, shall send, via United States mail and, if possible, email, a copy of the planning document and a letter requesting consultation meetings to nongovernmental Tribal stakeholders, such as elders councils and religious leaders; shall not request consultation with nongovernmental Tribal stakeholders without the written consent of the affected Indian Tribe; and shall follow up with phone calls to confirm receipt of the documents by all intended recipients.
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, signed by the head of the agency, and proceed to the decision stage procedures described in section 204 xreference .
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 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. Except as provided by subsection
(c)xreference , scoping stage consultation shall terminate upon the execution of a memorandum of agreement signed by the head of the agency and the affected Indian Tribal Governments. The affected Indian Tribal Governments and the agency may jointly invite additional parties to be signatories of the memorandum of agreement. The signatories have sole authority to execute, amend, or terminate the memorandum of agreement. If any signatory determines that the terms of the memorandum of agreement cannot be or are not being carried out, the signatories shall consult to seek amendment of the memorandum of agreement. If the memorandum of agreement is not amended, any signatory may terminate the agreement, with the option to return to scoping stage consultation. The agency shall provide all nonsignatory consulting partners with the opportunity to submit a written statement, explanation, or comment on the consultation proceedings that shall become part of the agency’s official consultation record. The memorandum of agreement— may address multiple activities if the activities are similar and repetitive or are multistate or regional in scope, or where routine management activities are undertaken at Federal installations, facilities, or other land management units; may establish standard processes for certain categories of activities determined through consultation and defined in the memorandum of agreement; shall include a provision for monitoring and reporting on its implementation; shall include provisions for termination or reconsideration if the activity has not been completed within a specified time; and shall include provisions to address new discoveries, which may include halting the activity and returning to scoping stage consultation. 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, 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 204 xreference . The affected Indian Tribal Governments may at any point decide to terminate consultation. In such case, the agency shall provide the affected Indian Tribal Governments 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.