Sec. 203. Scoping stage consultation
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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.
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), owners of individual allotments, other stakeholders identified by the Tribe, 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); 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 to end scoping stage consultation efforts, signed by the head of the agency, and proceed to the decision stage procedures described in section 204 xreference .
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). 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. 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 Tribes. The affected Indian Tribes 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 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, and the process will 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; and the scope of the activities is clearly delineated; 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; shall include provisions to address new discoveries, which may include halting the activity and returning to scoping stage consultation; shall include provisions to address changes or modifications to the scope or nature of the activity, impacts or conditions of the project or site; may incorporate relevant Tribal laws, standards, regulations, or policies; may include provisions for the protection of culturally sensitive information; and shall include provisions to address and resolve disputes. 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 204 xreference . 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.