Revision to Policy Statement on Consultation With Indian Tribes in Commission Proceedings
| Published date | 24 October 2019 |
| Citation | 84 FR 56940 |
| Record Number | 2019-23099 |
| Section | Rules and Regulations |
| Court | Federal Energy Regulatory Commission |
Federal Register, Volume 84 Issue 206 (Thursday, October 24, 2019)
[Federal Register Volume 84, Number 206 (Thursday, October 24, 2019)]
[Rules and Regulations]
[Pages 56940-56942]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-23099]
[[Page 56940]]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 2
[Docket No. PL20-1-000]
Revision to Policy Statement on Consultation With Indian Tribes
in Commission Proceedings
AGENCY: Federal Energy Regulatory Commission, Department of Energy.
ACTION: Final rule.
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SUMMARY: The Commission is revising its Policy Statement on
Consultation with Indian Tribes in Commission Proceedings by adding a
specific reference to treaty rights; a statement that the Commission
addresses tribal input in its NEPA documents and orders, and
consultation with Alaska Native Corporations.
DATES: Effective November 25, 2019.
FOR FURTHER INFORMATION CONTACT: Elizabeth Molloy, Office of the
General Counsel, 888 First Street NE, Washington, DC 20426; 202-502-
8771; [email protected].
SUPPLEMENTARY INFORMATION:
1. By this order, the Commission is amending its Policy Statement
on Consultation with Indian Tribes in Commission Proceedings (policy
statement) \1\ by adding a specific reference to treaty rights and
noting that the Commission addresses tribal input in its National
Environmental Policy Act (NEPA) documents and orders. In addition, the
Commission is adding consultation with Alaska Native Corporations to
the policy statement consistent with Congress' requirement that all
Federal agencies consult with Alaska Native corporations on the same
basis as Indian tribes under Executive Order No. 13175.
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\1\ Policy Statement on Consultation with Indian Tribes in
Commission Proceedings, Order No. 635, 104 FERC ] 61,108 (2003). The
policy statement is codified at 18 CFR 2.1c (2019).
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Background and Discussion
2. In 2003, the Commission issued its Policy Statement on
Consultation with Indian Tribes in Commission Proceedings. The 2003
policy statement recognizes the unique relationship between the Federal
government and Indian tribes as defined by treaties, statutes, and
judicial decisions and acknowledges the Commission's trust
responsibilities. It states that the Commission will endeavor to work
with the tribes on a government-to-government basis and will seek to
address the effects of proposed projects on tribal rights and resources
through consultation pursuant to trust responsibilities, the statutes
governing the Commission's authority,\2\ and in the Commission's
environmental and decisional documents. Noting that the Commission
functions as a neutral, quasi-judicial body and as such is bound by the
Administrative Procedure Act and Commission rules regarding off-the-
record communications,\3\ it states that the Commission will assure
tribal issues and interests are considered in making decisions. For the
hydroelectric program, it also states that the Commission will notify
tribes before or at the time the licensee files its notice of intent,
and will consider comprehensive plans prepared by tribes or intertribal
organizations.
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\2\ The policy statement notes that the statutes governing the
Commission's authority primarily consist of the Federal Power Act,
the Natural Gas Act, the Public Utilities Regulatory Policies Act of
1978, the Interstate Commerce Act, the Outer Continental Shelf Lands
Act, National Environmental Policy Act, and Section 106 of the
National Historic Preservation Act.
\3\ 18 CFR 385.2201 (2019).
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3. In March 2017, the U.S. Government Accountability Office (GAO)
commenced an engagement on tribal consultation practices, in which it
sought to review tribal consultation practices of 21 federal agencies
involved in permitting, review, or funding of infrastructure
projects.\4\ The engagement was focused on federal agencies' compliance
with government to government consultation and coordination
responsibilities under Executive Order 13175; tribal consultation
practices used by federal agencies during permitting and developmental
processes; definition and consistent application of ``meaningful tribal
consultations'' by federal agencies; opportunities for tribal input
into contiguous, off-reservation developments that may result in
pollution or other impacts on their land; and appeal options, if any,
available to tribes.
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\4\ The 21 federal agencies (which included 3 independent
regulatory agencies, 3 departments, and 15 component agencies) were:
The Department of Agriculture's Forest Service and Rural
Development; Department of Commerce's National Oceanic and
Atmospheric Administration (NMFS); Department of Defense's Army
Corps of Engineers (Corps); Department of Energy (DOE);
Environmental Protection Agency (EPA); Federal Communications
Commission (FCC); Federal Energy Regulatory Commission (FERC or
Commission); Department of Homeland Security's Coast Guard (Coast
Guard) and Federal Emergency Management Agency (FEMA); Department of
Housing and Urban Development (HUD); Department of the Interior's
Bureau of Land Management (BLM), Bureau of Ocean Energy Management
(BOEM), Bureau of Reclamation (Reclamation), Fish and Wildlife
Service (FWS), and National Park Service (NPS); Nuclear Regulatory
Commission (NRC); and Department of Transportation's Federal
Aviation Administration (FAA), Federal Highway Administration (FHA),
Federal Railroad Administration (FRA), and Federal Transit
Administration (FTA).
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4. In March 2019, GAO issued its final report entitled, ``Tribal
Consultation: Additional Federal Actions Needed for Infrastructure
Projects (GAO-19-22).'' \5\ GAO directed one of the 22 recommendations
made in the report to the Commission.\6\ Specifically, the GAO
recommendation stated that ``[t]he Federal Energy Regulatory Commission
should document in its tribal consultation policy how agency officials
are to communicate with tribes about how their input from consultation
was considered in agency decisions on infrastructure projects.'' \7\
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\5\ Tribal Consultation: Additional Federal Actions Needed for
Infrastructure Projects (GAO-19-22), March 2019 (GAO Report).
\6\ The report made a similar recommendation regarding 13 of the
other 21 agencies: the Department of Agriculture's Rural
Development; Corps; DOE; FCC; DHS; FEMA; HUD; BOEM, Reclamation, FWS
and NPS; NRC; and DOT.
\7\ GAO Report at 58.
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A. Communication
5. As noted above, the Commission functions as a neutral, quasi-
judicial body and as such is bound by the Administrative Procedure Act
and Commission rules regarding off-the-record communications. In order
to comply with the requirements that decisions be on the record, it has
been the Commission's practice to address tribal input and concerns in
its environmental documents and decisions. However, the Commission's
policy statement does not expressly include language to that effect.
Therefore, the Commission is adding language stating that the
Commission will set forth in its environmental documents and orders how
tribe's input from consultation was considered in agency decisions on
infrastructure projects.
B. Treaty Rights
6. The Commission, in its final rule on Hydroelectric Licensing
under the Federal Power Act issued contemporaneously with the policy
statement, stated that, ``tribal consultation pursuant to our trust
responsibility encompasses more than implementation of [National
Historic Preservation Act] Section 106. It includes every issue of
concern to an Indian tribe related to a treaty, statute, or executive
order where the Commission can, through the exercise of its authorities
under the FPA, fulfill its
[[Page 56941]]
trust responsibility.'' \8\ The policy statement states that the
``Commission, in keeping with its trust responsibility, will assure
that tribal concerns and interests are considered whenever the
Commission's actions or decisions have the potential to adversely
affect Indian tribes or Indian trust resources.'' \9\
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\8\ Hydroelectric Licensing under the Federal Power Act, Order
No. 2002, 104 FERC ] 61,109, at P 279 (2003), order on reh'g, 106
FERC ] 61,037 (2004).
\9\ 18 CFR 2.1c(e).
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7. While the Commission already considers the effect of actions on
treaty rights in its NEPA and decision documents,\10\ the Commission is
taking this opportunity to clarify that point by adding specific
mention of treaty rights in the policy statement.
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\10\ See e.g. Public Utility District No. 1 of Snohomish County,
Washington, 146 FERC ] 61,197, reh'g denied, 149 FERC ] 61,206
(2014); PacifiCorp, 133 FERC ] 61,232 (2010), order on reh'g, 135
FERC ] 61,064 (2011); and Bradwood Landing LLC, 124 FERC ] 61,257
(2008), order on reh'g, 129 FERC ] 61,245 (2009).
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C. Consultation With Alaska Native Corporations
8. The policy statement addresses consultation with federally-
recognized Indian tribes (including Alaska Native tribes, villages, and
communities) that the Secretary of the Interior acknowledges to exist
as an Indian tribe pursuant to the Federally Recognized Indian Tribe
List Act of 1994.\11\ It does not, however, address consultation with
Corporations established pursuant to the Alaska Native Claims
Settlement Act (ANCSA Corporations).\12\
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\11\ 25 U.S.C. 479a.
\12\ 43 U.S.C. 1601, et seq. An ANCSA Corporation is defined as
any Alaska Native village corporation, urban corporation, or
regional corporation as defined in, or established pursuant to, the
Alaska Native Claims Settlement Act. 43 U.S.C. 1602.
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9. After the Commission issued its policy statement, Congress
directed that ``[t]he Director of the Office of Management and Budget
[and all Federal agencies] shall hereafter consult with Alaska Native
corporations on the same basis as Indian tribes under Executive Order
No. 13175.'' \13\
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\13\ Consolidated Appropriations Act, 2004, Pub. L. 108-199,
Div. II. Sec. 161, 118 Stat. 3, 452 (2004) as amended by
Consolidated Appropriations Act, 2005, Pub. L. 108-447, Div. H.,
Title V. Sec. 518, 118 Stat. 2809, 3267 (2004).
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10. To be consistent with Congress' directive, the Commission is
updating its policy to include ANCSA Corporations. The Commission
recognizes and respects the distinct, unique, and individual cultural
traditions and values of Alaska Native peoples and the statutory
relationship between ANCSA Corporations and the Federal Government.
11. The Commission distinguishes the Federal relationship to ANCSA
Corporations from the government-to-government relationship between the
Federal Government and federally recognized Indian Tribes in Alaska and
elsewhere, and the update to the policy will not diminish in any way
that relationship and the consultation obligations towards federally
recognized Indian Tribes.
Information Collection Statement
12. The Paperwork Reduction Act and implementing regulations of the
Office of Management and Budget (OMB) require OMB to approve certain
information collection requirements imposed by agency rule.\14\
However, this Revised Policy Statement does not contain or modify any
information collection requirements, and is therefore not subject to
OMB approval.
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\14\ 5 CFR 1320.12 (2019).
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Environmental Analysis
13. The Commission is required to prepare an Environmental
Assessment or an Environmental Impact Statement for any action that may
have a significant adverse effect on the human environment.\15\ Part
380 of the Commission's regulations lists exemptions to the requirement
to draft an Environmental Assessment or Environmental Impact Statement,
and this revised policy statement qualifies under the exemption for
procedural, ministerial or internal administrative actions.\16\
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\15\ Regulations Implementing the National Environmental Policy
Act of 1969, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats.
& Regs. ] 30,783 (1987).) (cross-referenced at 41 FERC ] 61,284).
\16\ 18 CFR 380.4(a)(1) (2019).
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Regulatory Flexibility Act
14. The Regulatory Flexibility Act of 1980 (RFA) \17\ generally
requires a description and analysis of final rules that will have
significant economic impact on a substantial number of small entities.
Rules that are exempt from the notice and comment requirements of
section 553(b) of the Administrative Procedure Act are exempt from the
RFA requirements. This revised policy statement concerns matters of
internal agency procedure and, therefore, an analysis under the RFA is
not required.
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\17\ 5 U.S.C. 601-612 (2018).
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Document Availability
15. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
internet through the Commission's Home Page (http://www.ferc.gov) and
in the Commission's Public Reference Room during normal business hours
(8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE, Room 2A,
Washington, DC 20426.
16. From the Commission's Home Page on the internet, this
information is available on eLibrary. The full text of this document is
available on eLibrary in PDF and Microsoft Word format for viewing,
printing, and/or downloading. To access this document in eLibrary, type
the docket number excluding the last three digits of this document in
the docket number field.
17. User assistance is available for eLibrary and the Commission's
website during normal business hours from FERC Online Support at (202)
502-6652 (toll free at 1-866-208-3676) or email at
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at
[email protected].
Effective Date and Congressional Notification
18. This revised policy statement is effective November 25, 2019
without a period for public comment. Under 5 U.S.C. 533(b), notice and
comment procedures are unnecessary where a rulemaking concerns only
agency procedure or practice, or where the agency finds that notice and
comment is unnecessary. This revised policy statement concerns only
matters of agency procedure, and will not significantly affect
regulated entities or the general public.
19. The Revised Policy Statement will be provided to the Congress
and Government Accountability Office.
List of Subjects in 18 CFR Part 2
General policy and interpretations.
By the Commission.
Issued: October 17, 2019.
Kimberly D. Bose,
Secretary.
In consideration of the foregoing, the Commission is amending part
2, chapter I, title 18, Code of Federal Regulations, as follows.
PART 2--GENERAL POLICY AND INTERPRETATIONS
0
1. The authority citation for part 2 continues to read as follows:
Authority: 5 U.S.C. 601; 15 U.S.C. 717-717z, 3301-3432; 16
U.S.C. 792-828c, 2601-2645; 42 U.S.C. 4321-4370h, 7101-7352.
0
2. In Sec. 2.1c:
0
a. In paragraph (a), add ``and Alaska Native Claims Settlement Act
(ANCSA)
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Corporations'' after ``Indian tribes'' in the first sentence.
0
b. In paragraph (c), add ``and with ANCSA Corporations in a similar
manner,'' after ``government-to-government basis,'' in the first
sentence.
0
c. In paragraph (e), remove ``or Indian trust resources'' and add in
its place ``Indian trust resources, or treaty rights''.
0
d. Add a sentence to the end of paragraph (e).
The addition reads as follows:
Sec. 2.1c Policy statement on consultation with Indian tribes in
Commission proceedings.
* * * * *
(e) * * * The Commission will use the agency's environmental and
decisional documents to communicate how tribal input has been
considered.
* * * * *
[FR Doc. 2019-23099 Filed 10-23-19; 8:45 am]
BILLING CODE 6717-01-P
