[Federal Register Volume 68, Number 151 (Wednesday, August 6, 2003)]
[Rules and Regulations]
[Pages 46452-46456]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-19608]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 2

[Docket No. PL03-4-000; Order No. 635]


Policy Statement on Consultation With Indian Tribes in Commission 
Proceedings

Issued: July 23, 2003.
AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Final rule; policy statement.

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SUMMARY: The Federal Energy Regulatory Commission (Commission) is 
issuing this policy statement to articulate its commitment to promote a 
government-to-government relationship between itself and federally-
recognized Indian tribes. The policy statement recognizes the 
sovereignty of tribal nations and the Commission's trust responsibility 
to Indian tribes. The policy statement also establishes a tribal 
liaison position. Finally, the policy statement establishes certain 
actions specific to the hydroelectric program.

EFFECTIVE DATE: The rule will become effective September 5, 2003.

FOR FURTHER INFORMATION CONTACT: Elizabeth Molloy, Office of the 
General Counsel, Federal Energy Regulatory Commission, 888 First 
Street, NE., Washington, DC 20426, 202-502-8771.

SUPPLEMENTARY INFORMATION:
Before Commissioners: Pat Wood, III, Chairman; William L. Massey, and 
Nora Mead Brownell.

I. Introduction

    1. To encourage and facilitate involvement by Indian tribes in the 
areas over which the Commission has jurisdiction, the Commission is 
issuing this policy statement to articulate its

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commitment to promote a government-to-government relationship between 
itself and federally-recognized Indian tribes. The policy statement 
recognizes the sovereignty of tribal nations and the Commission's trust 
responsibility to Indian tribes. The policy statement also establishes 
a tribal liaison position. Finally, the policy statement establishes 
certain actions specific to the hydroelectric program. Part 2 of the 
Commission's regulations will be amended to implement the policy.

II. Background

    2. This policy statement evolved out of the recent rulemaking 
proceeding to develop an improved process to prepare and review license 
applications for non-federal hydropower projects.\1\ To ensure that 
tribal issues were addressed in the rulemaking, the Commission held 
special tribal forums in October and November 2002. As a result of 
several requests at those forums, the Chairman appointed a tribal 
liaison for the rulemaking proceeding.\2\
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    \1\ Hydroelectric Licensing under the Federal Power Act, RM02-
16-000, 68 FR 13988 (Mar. 21, 2003); IV FERC Stats. & Regs. ] 32,568 
(Feb. 20, 2003).
    \2\ Letter dated January 10, 2003, to Tribal Leaders from 
Chairman Pat Wood, III.
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    3. After the Notice of Proposed Regulation (NOPR) was issued in 
February 2003, Commission staff held regional public and tribal 
outreach meetings in March and April 2003 to discuss the NOPR.\3\ The 
Commission also held drafting sessions, including a special tribal 
session (Tribal Group), to attempt to reach consensus on a number of 
issues raised in the NOPR. The final rule is being issued concurrently 
with this policy statement.\4\
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    \3\ These regional meetings were held in Portland, Oregon; 
Sacramento, California; Charlotte, North Carolina; Manchester, New 
Hampshire; and Milwaukee, Wisconsin.
    \4\ Hydroelectric Licensing under the Federal Power Act, Docket 
No. RM02-16-000; Final Rule.
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    4. In written comments and meetings on the hydro rule,\5\ Indian 
tribes discussed the Commission's trust responsibility as it relates to 
treaty rights, legislation, and executive orders. Several tribes stated 
that as sovereign entities, they have government-to-government 
consultation rights that differ from those applicable to agencies and 
the general public, because they must be determined by mutual agreement 
between the Commission and individual tribes in a case-specific and 
issue-specific context.\6\ However, the tribes also stated that the 
Commission should specifically establish its tribal consultation 
process in its regulations.\7\
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    \5\ A list of commenters and their abbreviations is attached as 
Appendix A.
    \6\ S-B, S-P, CRITFC, NW Indians, Nez Perce, Umatilla, GLIFWC, 
NF Rancheria.
    \7\ Nez Perce, Menominee, NF Rancheria, S-B, Maidu, NW Indians, 
CRITFC, S-P, NHA, and Interior agreed.
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    5. The Commission, in its NOPR, proposed to establish a tribal 
liaison for the hydroelectric licensing program. This proposal was 
supported by all of the commenting tribes and the Advisory Council on 
Historic Preservation.\8\ One commenter recommended that the liaison 
should be available not only for hydro matters, but also for other 
Commission programs.\9\ There was a consensus among the commenters that 
the liaison should not be a clerical position, but should be a staff 
person with substantive knowledge of the process that will be 
followed.\10\
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    \8\ S-P, Nez Perce, NW Indians, CRITFC, Umatilla, GLIFWC, HRC, 
ACHP, Menominee, Skokomish, Interior, NF Rancheria.
    \9\ NW Indians.
    \10\ S-P, Nez Perce, NW Indians, CRITFC, Umatilla, GLIFWC, 
Menominee, Tribal Group.
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    6. In addition, commenters suggested various roles and 
responsibilities for a Tribal Liaison. These include facilitating 
government-to-government consultation by directing tribes to the right 
person or persons to deal with substantive or policy issues; ensuring 
that communications are maintained between tribal representatives and 
Commission staff throughout the proceeding;\11\ assisting tribal 
knowledge of and participation in the Commission's processes;\12\ 
educating Commission staff about tribes and the trust responsibility 
and treaty obligations,\13\ assisting tribes in learning how to access 
and effectively use the informational resources of the Commission's Web 
site;\14\ and informing tribes of activities at a project during 
licensing and throughout the term of a license that may affect tribal 
resources on or off the reservation.\15\
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    \11\ NW Indians, Nez Perce, Umatilla, GLIFWC, Menominee. They 
indicate that the correct person would depend on the issues under 
consideration; e.g., a technical issue dealing with a fisheries 
study would be dealt with by a fishery biologist, while an issue 
concerning the appropriate elements of government-to-government 
consultation with the tribe might be directed to senior Commission 
staff. We agree.
    \12\ SCE.
    \13\ GLIFWC, Menominee.
    \14\ GLIFWC.
    \15\ Interior.
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    7. GLIFWC and Menominee stated that, because the process for 
government-to-government consultation needs to be developed in 
agreement with each tribe, the roles and responsibilities of the tribal 
liaison cannot be fully determined at the outset, but must evolve in 
response to the development of tribal-specific agreements.
    8. The Tribal Group essentially endorsed all of these proposed 
roles and added several others, including: coordinating with tribal 
liaisons at other agencies; becoming educated about the rights of 
Indians; assisting tribes in making known their issues and views on 
compliance with treaties; ensuring that tribes are informed of studies 
and information with cultural-resource or treaty-rights implications; 
managing communications between the Commission and tribes when the ex 
parte regulations are applicable; facilitating communications between 
applicants and tribes; facilitating informal dispute resolution between 
applicants and tribes; helping to determine which tribes may be 
affected by likely future hydropower relicensing applications or 
original license applications; and informing potentially affected 
tribes about potential future relicensing applications.
    9. While most commenters recommended that the tribal liaison should 
be non-decisional staff, Skokomish and NW Indians proposed that the 
tribal liaison should play an active role in the substantive resolution 
of licensing proceedings. NW Indians recommended that the tribal 
liaison or liaisons should be educated about individual tribes and 
their interests in specific proceedings and should act as their 
advocate within the Commission.
    10. Various commenters indicated that there are too many tribes and 
too many tribe-specific, case-specific, and interrelated regional or 
watershed issues for one person to understand and act upon. Some 
suggested appointing multiple liaisons based on regions of the country, 
watersheds or river basins, or sub-regions within a state.\16\ Pacific 
Legacy suggested that the efforts of the Commission's liaison should be 
complemented by a liaison from each tribe for each project, to be 
funded by the applicant. The Tribal Group stated that the tribal 
liaison should be a regional position, with an overall coordinator 
position at the Commission's headquarters.
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    \16\ Pacific Legacy, GLIFWC, Menominee, CRITFC, S-P, California, 
Interior.
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III. Discussion

    11. The Commission recognizes the unique relationship between the 
United States and Indian tribes as defined by treaties, statutes, and 
judicial decisions. Indian tribes have various sovereign authorities, 
including the power to make and enforce laws, administer justice, and 
manage and control their

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lands and resources. Through several Executive Orders and a 
Presidential Memorandum,\17\ departments and agencies of the Executive 
Branch have been urged to consult with Federally-recognized Indian 
tribes in a manner that recognizes the government-to-government 
relationship between these agencies and tribes. In essence, this means 
that consultation should involve direct contact between agencies and 
tribes and should recognize the status of the tribes as governmental 
sovereigns.
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    \17\ Executive Order 13175, Consultation and Coordination with 
Indian Tribal Governments (issued November 6, 2000); Executive Order 
13084, Consultation and Coordination with Indian Tribal Governments 
(issued May 14, 1998); Presidential Memorandum, Government-to-
Government Relations with Native American Tribal Governments (issued 
April 29, 1994), reprinted at 59 FR 22,951; Executive Order 12875, 
Enhancing the Intergovernmental Partnership (issued October 26, 
1993).
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    12. We are including in Part 2 of the Commission's regulations, 
``General Policy and Interpretations,'' a statement of our policy on 
these matters.\18\ It applies to all of the Commission's program 
areas.\19\ For the hydroelectric licensing program, the policy applies 
to all licensing proceedings, regardless of which process is used. The 
policy statement was developed from our review of the written policies 
of other Federal agencies concerning the trust responsibility and 
government-to-government consultation.\20\
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    \18\ 18 CFR 2.1(c)(2003).
    \19\ The Commission's program areas include hydroelectric, oil 
pipeline, electric power, and natural gas programs. The Commission 
issues licenses and oversees compliance with those licenses for non-
federal hydroelectric projects pursuant to Part I of the Federal 
Power Act (FPA), the Public Utility Regulatory Policies Act (PURPA), 
and the Energy Policy Act of 1992 (EPAct). Under the Interstate 
Commerce Act and the EPAct, the Commission regulates the rates and 
practices of oil pipeline companies engaged in interstate 
transportation. The Commission's electric power authority is 
outlined by Part II of the FPA, the PURPA, and the EPAct. The 
Commission's electric power responsibilities include: approving 
rates for wholesale electric sales of electricity and transmission 
in interstate commerce for private utilities, power marketers, power 
pools, power exchanges and independent system operators; overseeing 
the issuance of certain stock and debt securities, assumption of 
obligations and liabilities, and mergers; reviewing the holding of 
officer and director positions between top officials in utilities 
and certain other firms they do business with; reviewing rates set 
by the federal power marketing administrations; conferring exempt 
wholesale generator status; and certifying qualifying small power 
production and cogeneration facilities. The Natural Gas Act (NGA) of 
1938, the Natural Gas Policy Act of 1978, the Outer Continental 
Shelf Lands Act, the Natural Gas Wellhead Decontrol Act of 1989, and 
the EPAct are the primary laws the Commission administers to oversee 
the natural gas pipeline industry. Under the NGA, the Commission 
regulates both the construction of pipeline facilities and the 
transportation of natural gas in interstate commerce.
    \20\ We reviewed the policies of other independent agencies, 
including the Federal Communications Commission, FCC No. 00-207 
(June 8, 2000), 16 FCC Rcd 4078; 2000 FCC LEXIS 3245; 20 Comm. Reg. 
(P&F) 1316; the Federal Emergency Management Agency, ``Final Agency 
Policy for Government-to-Government Relations with American Indian 
and Alaska Native Tribal Government'' (Sept. 25, 1998), 64 FR 2096 
(Jan. 12, 1999); the Environmental Protection Agency, Memorandum to 
all EPA Employees from Christine Todd Whitman, EPA Administrator, 
dated July 12, 2001; and the Nuclear Regulatory Commission, 
Memorandum to NRC Commissioners from William D. Travers, Executive 
Director for Operations, dated February 2, 2001. These documents may 
be found on FERRIS in Docket No. RM02-16-000.
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    13. The policy statement recognizes the unique relationship between 
the Federal government and Indian tribes as defined by treaties, 
statutes, and judicial decisions. It 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,\21\ and in the 
Commission's environmental and decisional documents. It notes 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.\22\ It states that the 
Commission will assure tribal issues and interests are considered in 
making decisions. The policy statement also establishes a tribal 
liaison position. For the hydroelectric program, it 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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    \21\ These are primarily 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.
    \22\ 18 CFR 385.2201 (2003).
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    14. The tribal liaison will seek to educate Commission staff about 
tribal governments and cultures and to educate tribes about the 
Commission's various statutory functions and programs. The tribal 
liaison will work with the tribes during Commission proceedings, to 
ensure that the tribes' views are appropriately considered at every 
step of the process. The tribal liaison will act as a guide for the 
tribes to Commission processes, and will strive to ensure that 
consultation requirements are met.

IV. Environmental Analysis

    15. The Commission is required to prepare an Environmental 
Assessment or an Environmental Impact Statement for any action that may 
have significant adverse effect on the human environment.\23\ The 
Commission has categorically excluded certain actions from this 
requirement because they would have no significant effect on the human 
environment.\24\ Included among the exclusions are rules that are 
clarifying, corrective, or procedural, or that do not substantively 
change the effect of the regulations being amended.\25\ This policy 
statement is procedural in nature and therefore falls under this 
exception. Consequently, no environmental analysis is necessary.
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    \23\ National Environmental Policy Act, 42 U.S.C. 4321-4370a, 
7101-7352.
    \24\ 18 CFR 380.1, et seq.
    \25\ 18 CFR 380.4(a)(2)(ii).
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V. Regulatory Flexibility Act

    16. The Regulatory Flexibility Act of 1980 (RFA)\26\ generally 
requires a description and analysis of final rules that will have a 
significant economic impact on a substantial number of small 
entities.\27\ Pursuant to section 605(b) of the RFA, the Commission 
hereby certifies that this policy statement will not have a significant 
economic impact on a substantial number of small entities.
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    \26\ 5 U.S.C. 601-612 (2000).
    \27\ Section 601(c) of the RFA defines a ``small entity'' as a 
small business, a small not-for-profit enterprise, or a small 
governmental jurisdiction. A ``small business'' is defined by 
reference to Section 3 of the Small Business Act as an enterprise 
which is ``independently owned and operated and which is not 
dominant in its field of operation'' 15 U.S.C. 632(a).
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VI. Information Collection Statement

    17. The OMB requirements require that OMB approve certain 
information collection requirements imposed by agency rules.\28\ 
However, this policy statement contains no information reporting 
requirements, and therefore is not subject to OMB approval.
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    \28\ 5 CFR 1320.
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VII. Document Availability

    18. In addition to publishing the full text of this document in the 
Federal Register, the Commission also 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 regular business 
hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 
2A, Washington, DC 20426.
    19. From the Commission's Home Page on the Internet, this 
information is available in the Federal Energy Regulatory Records 
Information System (FERRIS). The full text of this document

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is available on FERRIS in PDF and WordPerfect format for viewing, 
printing, and/or downloading. To access this document in FERRIS, type 
the docket number of this docket, excluding the last three digits, in 
the docket number field. User assistance is available for FERRIS and 
the Commission's Web site during regular business hours. For 
assistance, contact FERC Online Support at [email protected] 
or toll-free at (866) 208-3676, or for TTY, contact (202) 502-8659.

VIII. Effective Date

    20. These regulations are effective September 5, 2003. The 
provisions of 5 U.S.C. 801 regarding Congressional review of final 
rules does not apply to this final rule, because the rule concerns 
agency procedure and practice and will not substantially affect the 
rights of non-agency parties.

List of Subjects in 18 CFR Part 2

    General policy and interpretation.

    By the Commission.
Magalie R. Salas,
Secretary.

0
In consideration of the foregoing, the Commission amends part 2, 
Chapter I, Title 18, Code of Federal Regulations, as follows:

PART 2--GENERAL POLICY AND INTERPRETATIONS

0
The authority citation for part 2 continues to read as follows:

    Authority: 5 U.S.C. 601; 15 U.S.C. 717-717w, 3301-3432; 16 
U.S.C. 792-825y, 2601-2645; 42 U.S.C. 4321-4361, 7101-7352.

    Section 2.1c is added to read as follows:


Sec.  2.1c  Policy statement on consultation with Indian tribes in 
Commission proceedings

    (a) The Commission recognizes the unique relationship between the 
United States and Indian tribes as defined by treaties, statutes, and 
judicial decisions. Indian tribes have various sovereign authorities, 
including the power to make and enforce laws, administer justice, and 
manage and control their lands and resources. Through several Executive 
Orders and a Presidential Memorandum, departments and agencies of the 
Executive Branch have been urged to consult with federally-recognized 
Indian tribes in a manner that recognizes the government-to-government 
relationship between these agencies and tribes. In essence, this means 
that consultation should involve direct contact between agencies and 
tribes and should recognize the status of the tribes as governmental 
sovereigns.
    (b) The Commission acknowledges that, as an independent agency of 
the federal government, it has a trust responsibility to Indian tribes 
and this historic relationship requires it to adhere to certain 
fiduciary standards in its dealings with Indian tribes.
    (c) The Commission will endeavor to work with Indian 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 the Commission's trust responsibility, the Federal Power 
Act, the Natural Gas Act, the Public Utility Regulatory Policies Act, 
section 32 of the Public Utility Holding Company Act, the Interstate 
Commerce Act, the Outer Continental Shelf Lands Act, section 106 of the 
National Historic Preservation Act, and in the Commission's 
environmental and decisional documents.
    (d) As an independent regulatory agency, the Commission functions 
as a neutral, quasi-judicial body, rendering decisions on applications 
filed with it, and resolving issues among parties appearing before it, 
including Indian tribes. Therefore, the provisions of the 
Administrative Procedure Act and the Commission's rules concerning off-
the-record communications, as well as the nature of the Commission's 
licensing and certificating processes and of the Commission's review of 
jurisdictional rates, terms and conditions, place some limitations on 
the nature and type of consultation that the Commission may engage in 
with any party in a contested case. Nevertheless, the Commission will 
endeavor, to the extent authorized by law, to reduce procedural 
impediments to working directly and effectively with tribal 
governments.
    (e) 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.
    (f) The Commission will seek to engage tribes in high-level 
meetings to discuss general matters of importance, such as those that 
uniquely affect the tribes. Where appropriate, these meetings may be 
arranged for particular tribes, by region, or in some proceedings 
involving hydroelectric projects, by river basins.
    (g) The Commission will strive to develop working relationships 
with tribes and will seek to establish procedures to educate Commission 
staff about tribal governments and cultures and to educate tribes about 
the Commission's various statutory functions and programs. To assist in 
this effort, the Commission is establishing the position of tribal 
liaison. The tribal liaison will provide a point of contact and a 
resource for tribes for any proceeding at the Commission.
    (h) Concurrently with this policy statement, the Commission is 
issuing certain new regulations regarding the licensing of 
hydroelectric projects. In this connection, the Commission sets forth 
the following additional policies for the hydroelectric licensing 
process.
    (i) The Commission believes that the hydroelectric licensing 
process will benefit by more direct and substantial consultation 
between the Commission staff and Indian tribes. Because of the unique 
status of Indian tribes in relation to the Federal government, the 
Commission will endeavor to increase direct communications with tribal 
representatives in appropriate circumstances, recognizing that 
different issues and stages of a proceeding may call for different 
approaches, and there are some limitations that must be observed.
    (j) The Commission will seek to notify potentially-affected tribes 
about upcoming hydroelectric licensing processes, to discuss the 
consultation process and the importance of tribal participation, to 
learn more about each tribe's culture, and to establish case-by-case 
consultation procedures consistent with our ex parte rules.
    (k) In evaluating a proposed hydroelectric project, the Commission 
will consider any comprehensive plans prepared by Indian tribes or 
inter-tribal organizations for improving, developing, or conserving a 
waterway or waterways affected by a proposed project. The Commission 
will treat as a comprehensive plan, a plan that:
    (1) Is a comprehensive study of one or more of the beneficial uses 
of a waterway or waterways;
    (2) Includes a description of the standards applied, the data 
relied upon, and the methodology used in preparing the plan; and
    (3) Is filed with the Secretary of the Commission. See generally 18 
CFR 2.19.

    Note: The following Appendix will not be published in the Code 
of Federal Regulations.

Appendix A

List of Commenters

Indian Tribes

Affiliated Tribes of Northwest Indians--Economic Development 
Corporation (NW Indians)
Confederated Tribes of the Umatilla Indian Reservation (Umatilla)

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Columbia River Inter-Tribal Fish Commission (CRITFC)
Shoshone-Paiute Tribes of Nevada and Idaho, Duck Valley Reservation 
(S-P)
Shoshone-Bannock (S-B)
Great Lakes Indian Fish and Wildlife Commission (GLIFWC)
Maidu-Enterprise Tribe (Maidu)
Menominee Tribe of Wisconsin (Menominee)
Nez Perce Tribe
North Fork Rancheria of Mono Indians of California (NF Rancheria)
Skokomish Indian Tribe (Skokomish)

Licensees

National Hydropower Association (NHA)
Southern California Edison Company (SCE)

Non-governmental Organizations

Hydropower Reform Coalition (HRC)

Federal Agencies

Advisory Council on Historic Preservation (Advisory Council)
Dept. of the Interior (Interior)

States/State Agencies

California Resources Agency, California EPA, State Water Resources 
Control Board, Department of Fish and Game, State of California 
Office of the Attorney General (California)

Other

Pacific Legacy

[FR Doc. 03-19608 Filed 8-5-03; 8:45 am]
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