ACUS committee accepts staff edits to consultation recommendations amid debate on tribal/federalism officials, funding and indigenous knowledge

The Administrative Conference of the United States’ rulemaking committee met to review staff revisions to a set of recommendations on federalism, state/local, and tribal consultation.

Committee members accepted staff edits to several recommendations by consensus after line‑by‑line review, while raising substantive drafting and scope issues that staff and the consultants will revise for the next meeting. The committee’s work focused on where a "federalism consultation official" or "tribal consultation official" should be designated, whether the recommendations should apply to all agencies or only to agencies whose regulatory policies or actions "may have implications," how to incorporate indigenous knowledge and consultation practices, the adequacy of funding for meaningful consultation, and what role OMB (and the Office of Intergovernmental Affairs) should play.

Dan Rodriguez, one of the consultants supporting the project, said the study envisions the consultation official as managing an agency’s consultation efforts, drafting consultation protocols, and overseeing when consultation is appropriate. Rodriguez told the committee the report did not identify a single, agency‑wide home for the position and left placement intentionally open to reflect agency variation.

Seth Davis, another consultant, said the team’s review of 21 agency policies found that "all but one" already designate an official with responsibilities similar to those proposed, a finding he offered as context for drafting the recommendations. That empirical observation shaped discussion about whether to require every agency to designate such an official or to limit the requirement to agencies whose actions may implicate federalism or tribal interests.

Bill Funk and others argued for limiting the designation to agencies with regulatory policies or actions that "may have implications," saying the narrower language would avoid implying a temporal trigger (for example, waiting until an issue arises) and would better focus obligations on actions that plausibly affect state, local, or tribal governments. Several committee members said they favored parallel language for tribal and federalism officials but differed on how prescriptive the recommendation should be.

Members also debated how to treat indigenous knowledge and tribal consultation practices. Several speakers urged the draft avoid equating indigenous knowledge with treaty or reserved rights, suggesting either carving indigenous knowledge into a separate clause or using phrasing such as "respectfully consider" or "take into account." The consultants proposed treating indigenous knowledge and consultation practices as procedures or practices agencies should follow where relevant.

On statutory context, committee members agreed to add an explicit reference to the Unfunded Mandates Reform Act (UMRA) alongside relevant executive orders in the recommendations and to flag related language for the preamble. The committee also discussed existing statutory tools and recent congressional actions — including the STOP Act and FOIA amendments that address protection of sensitive tribal information — and agreed to ask Congress to consider targeted statutory changes to protect certain categories of information disclosed in tribal consultations.

Resource concerns featured in public comments and committee discussion. Jim Tozzi, speaking as a non‑committee ACUS member, urged the committee to acknowledge resource limits at OMB/OIRA and recommended including language that OMB’s actions may be implemented "in accord with available resources." Members and consultants discussed whether OMB should be assigned new operational responsibilities for maintaining centralized resource lists, with some suggesting that an EOP office or another appropriate entity might be better situated to maintain such lists given OMB staffing constraints.

On funding, the committee agreed to a redraft asking Congress to "consider whether available funding is sufficient for effective consultation" and whether to appropriate additional funding where necessary. The change was intended to emphasize meaningful, not merely perfunctory, consultation.

The meeting included numerous drafting decisions: shifting words such as "matters" to "policies and actions," clarifying that coordination applies when federal regulatory policymaking or implementation may affect state, local, or tribal governments (with examples such as permits and licensing), and tightening footnote citations. Staff were asked to double‑check statute and public‑law citations in the preamble and to bring revised language to a committee‑on‑style subgroup before the next full meeting.

No formal roll‑call votes were recorded during the session; several edits and acceptance of staff changes were adopted by general consent. The committee asked staff and the consultants to return revised recommendation text and a revised preamble at the next meeting, scheduled for Monday at 10:00.

The discussion will inform the consultants’ final report and the recommended ACUS text, including (a) guidance on the design and functions of agency consultation officials; (b) recommended criteria for when consultation is required or appropriate; (c) suggested statutory clarifications for protecting sensitive consultation information; and (d) suggested options for where responsibility for centralized resources might sit given OMB resource constraints.

Outgoing developments: staff will (1) incorporate the committee’s drafting suggestions, (2) check and correct statutory citations and footnotes identified as problematic, (3) prepare alternate wording options (for example, narrower "when actions may have implications" vs broader "all agencies" language), and (4) coordinate with the committee on style to finalize language on indigenous knowledge and consultation practices before the next full committee meeting.