[Federal Register Volume 79, Number 230 (Monday, December 1, 2014)]
[Notices]
[Pages 71136-71141]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-27325]
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NUCLEAR REGULATORY COMMISSION
[NRC-2012-0235]
Tribal Policy Statement
AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed policy statement; request for comment.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is making
available for public comment the proposed Policy Statement, ``NRC
Tribal Policy Statement.'' The proposed policy statement establishes
principles to be followed by the NRC to ensure effective government-to-
government interactions with American Indian and Alaska Native Tribes,
and to encourage and facilitate Tribal involvement in the areas over
which the Commission has jurisdiction. The NRC is committed to an open
and collaborative regulatory environment in the development and
implementation of activities that have Tribal implications and welcomes
comments as a means of fostering meaningful consultation and
coordination with Indian Tribes.
DATES: Submit comments on the proposed Tribal Policy Statement by March
31, 2015. Comments received after this date will be considered if it is
practical to do so, but the NRC is able to assure consideration only
for comments received on or before this date.
ADDRESSES: You may access information and submit comments related to
this document by any of the following methods (unless this document
describes a different method for submitting comments on a specific
subject):
Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID: NRC-2012-0235. Address
questions about NRC dockets to Carol Gallagher; telephone: 301-287-
3442; email: [email protected]. For technical questions, contact
the individuals listed in the FOR FURTHER INFORMATION CONTACT section
of this document.
Mail comments to: Cindy Bladey, Chief, Rules,
Announcements, and Directives Branch, Office of Administration, Mail
Stop: 3WFN-06-44M, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001.
For additional direction on accessing information and submitting
comments, see ``Accessing Information and Submitting Comments'' in the
SUPPLEMENTARY INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Michelle Ryan, telephone: 630-829-
9724, email: [email protected]; or Haimanot Yilma, telephone: 301-
415-8029, email: [email protected]; both of the Office of Nuclear
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001.
SUPPLEMENTARY INFORMATION:
I. Accessing Information and Submitting Comments
II. Background
III. Discussion
IV. Summary of Public Comments on the Proposed Policy Statement and
NRC Staff Responses to the Comments
V. Proposed Tribal Policy Statement
I. Accessing Information and Submitting Comments
A. Accessing Information
Please refer to Docket ID: NRC-2012-0235 when contacting the NRC
about the availability of information regarding this document. You may
access publicly-available information related to this document by any
of the following methods:
Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID: NRC-2012-0235.
NRC's Agencywide Documents Access and Management System
(ADAMS): You may access publicly available documents online in the NRC
Library at: http://www.nrc.gov/reading-rm/adams.html. To begin the
search, select ``ADAMS Public Documents'' and then select ``Begin Web-
based ADAMS Search.'' For problems with ADAMS, please contact the NRC's
Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-
4737, or by email to [email protected]. The ADAMS accession number
for each document referenced in this document (if that document is
available in ADAMS) is provided the first time that a document is
referenced. NRC's PDR: You may examine and purchase copies of public
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555
Rockville Pike, Rockville, Maryland 20852.
B. Submitting Comments
Please include Docket ID: NRC-2012-0235 in the subject line of your
comment submission in order to ensure that the NRC is able to make your
comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact
information that you do not want to be publicly disclosed in your
comment submission. The NRC will post all comment submissions at http://www.regulations.gov as well as enter the comment submissions into
ADAMS. The NRC does not routinely edit comment submissions to remove
identifying or contact information.
If you are requesting or aggregating comments from other persons
for submission to the NRC, then you should inform those persons not to
include
[[Page 71137]]
identifying or contact information that they do not want to be publicly
disclosed in their comment submission. Your request should state that
the NRC does not routinely edit comment submissions to remove such
information before making the comment submissions available to the
public or entering the comment submissions into ADAMS.
II. Background
The purpose of this proposed Tribal Policy Statement is to
establish principles to be followed by the NRC to ensure effective
government-to-government interactions with Indian Tribes and to
encourage and facilitate Tribal involvement in the areas over which the
Commission has jurisdiction. The NRC licenses and regulates the
Nation's civilian use of radioactive materials to protect public health
and safety, common defense and security, and the environment under the
Atomic Energy Act of 1954, as amended (AEA) (42 U.S.C. 2011). Other
statutory provisions, such as the National Historic Preservation Act
(NHPA) (16 U.S.C. 470) and National Environmental Policy Act (NEPA) (42
U.S.C. 4321), require Tribal consultation as part of the NRC's
evaluation of agency activities during licensing actions, rulemaking,
or policy development. The NRC complies with statutory provisions that
require Tribal consultation, and interacts with Tribal governments on a
case-by-case basis.
In November of 2000, President Clinton issued Executive
Order (E.O.) 13175, ``Consultation and Coordination with Indian Tribal
Governments,'' (65 FR 67249). The Order established the legal
principles below to guide agencies when forming and implementing
policies with potential Tribal implications.
The United States has a unique legal relationship with
Indian Tribal governments as set forth in the Constitution of the
United States, treaties, statutes, E.O.s, and court decisions. The
Federal Government recognizes Indian Tribes as domestic dependent
nations under its protection and has enacted statutes and promulgated
regulations that establish and define a trust relationship with Indian
Tribes.
The Federal Government has recognized the right of Indian
Tribes to self-government with inherent sovereign powers over their
members and territory and supports Tribal sovereignty and self-
determination. The United States continues to work with Indian Tribes
on a government-to-government basis to address issues concerning Tribal
self-government, Tribal trust resources, and Indian Tribal treaty and
other rights.
E.O. 13175 states that `` `Policies that have tribal implications'
refers to regulations, legislative comments, or proposed legislation,
and other policy statements or actions that have substantial direct
effects on one or more Indian Tribes, on the relationship between the
Federal Government and Indian Tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian
Tribes.''
As an independent regulatory agency, the NRC is exempt from the
requirements of EO 13175. However, in January 2001, the Commission sent
correspondence to the Office of Management and Budget stating that ``in
exercising its regulatory authority, this agency acts in a manner
consistent with the fundamental precepts expressed in the Order [(EO
13175)].'' To that end, the Commission has adopted agency practices
that ensure consultation and cooperation with Indian Tribal governments
fully consistent with both President Clinton's 1994 guidance and with
EO 13175'' (ADAMS Accession No. ML010260297).
In January of 2009, the Commission directed the staff to develop
and implement an internal protocol for interaction with Native American
Tribal Governments that would allow for custom tailored approaches to
address both the NRC and Tribal interests on a case-by-case basis in a
Staff Requirements Memorandum (SRM) for the December 2008 ``Briefing on
Uranium Recovery,'' SRM-M081211 (ADAMS Accession No. ML090080206). The
Commission also tasked the staff with preparing an assessment of the
policies that other Federal agencies have developed for interactions
with Tribal governments. The staff responded to this Commission
direction in SECY-09-0180, ``U.S. Nuclear Regulatory Commission
Interaction with Native American Tribes'' (ADAMS Accession No.
ML092920384). In this document, the staff provided a protocol for NRC
Tribal interaction, assessed other Federal agency Tribal policies, and
examined the effectiveness of the NRC's case-by-case approach to Tribal
interaction. The staff also developed the NRC Tribal Protocol Manual as
an internal protocol for interacting with Tribal governments (ADAMS
Accession No. ML092990559). At that time, the staff concluded that
formalizing the NRC's practices would not enhance its interactions with
Tribal governments.
Current NRC Practices for Interactions With Tribes
Numerous Federally recognized Tribes have an interest in public
health and safety and environmental protection associated with NRC
regulatory activities that include uranium recovery and nuclear power
plant licensing, and radioactive material transportation and disposal,
and spent fuel storage. The NRC exercises its trust relationship or
fiduciary duty in the context of its authorizing statutes, including
the AEA, and implements its responsibilities through assuring that
Tribal members receive the same protections under regulations that are
available to other persons. Under the NRC's case-by-case approach to
Tribal interaction, the NRC or Tribal governments can request
consultation on regulatory activities that have substantial direct
Tribal implications. The NRC's policy is to consult on a government-to-
government basis with Tribal governments consistent with its
obligations under law and regulation \1\ at the earliest stage possible
in NRC regulatory actions with Tribal implications.
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\1\ The NRC's proposed policy statement is intended only to
improve the internal management of the Commission, and is not
intended to, and does not, grant, expand, create, or diminish any
rights, benefits, or trust responsibilities, substantive or
procedural, enforceable at law or in equity in any cause of action
by any party against the United States, the Commission, or any
person. This Tribal Policy Statement does not alter, amend, repeal,
interpret, or modify Tribal sovereignty, any treaty rights of any
Indian Tribes, or preempt, modify, or limit the exercise of such
rights. Nothing herein shall be interpreted as amending or changing
the Commission's regulations.
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III. Discussion
Within the context of this discussion, the following definitions
will apply unless otherwise indicated:
Consultation refers to meaningful and timely discussion with Tribal
governments on NRC regulatory actions that have substantial direct
effects on one or more Indian Tribes. The Consultation process may
include, but is not limited to, providing for mutually agreed
protocols, timely communication, coordination, cooperation, and
collaboration to provide opportunities for appropriate Tribal officials
or representatives to meet with NRC management or staff.
Indian Tribe means any American Indian or Alaska Native Tribe,
Band, Nation, Pueblo or other organized group or community that the
Secretary of the Interior acknowledges to exist as an Indian Tribe
pursuant to the Federally Recognized Indian Tribe List Act of 1994 (25
U.S.C. 479a).
[[Page 71138]]
Regulatory Actions with Tribal Implications refers to regulations,
legislative comments or proposed legislation, and other policy
statements or actions including licensing and permitting that have
substantial direct effect on one or more Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes.
Tribal Official means an elected, appointed, or designated official
or employee of an Indian Tribe or authorized intertribal organization.
Trust Responsibility refers to a fiduciary obligation on the part
of the United States to protect Tribal treaty rights, lands, assets,
and resources, as well as a duty to carry out the mandates of Federal
law with respect to Indian Tribes. In several cases discussing the
trust responsibility, the Supreme Court has used language suggesting
that it entails legal duties, moral obligations, and the fulfillment of
understandings and expectations that have arisen over the entire course
of the relationship between the United States and the Federally
recognized Tribes. The NRC exercises its fiduciary duty in the context
of its authorizing statutes including AEA, the Energy Reorganization
Act of 1974, as amended, the Nuclear Waste Policy Act of 1982, as
amended, the Low-Level Radioactive Waste Policy Act of 1985, the
Uranium Mill Tailings Radiation Control Act of 1978, as amended, and
the Energy Policy Act of 2005, as amended, and implements its
responsibility by assuring that Tribal members receive the same
protections under its implementing regulations that are available to
other persons.
In May 2012, the Commission issued SRM-COMWDM-12-0001, ``Tribal
Consultation Policy Statement and Protocol'' (ADAMS Accession No.
ML121430233), directing the NRC staff to provide a proposed Policy
Statement and protocol on consultation with Tribal governments. The
Commission also directed staff to do the following: (1) Use the
existing, ``Tribal Protocol Manual: Guidance for NRC Employees,'' and
the staff's ongoing efforts outlined in SECY-09-0180 as a starting
point; (2) seek input on how to improve the existing manual from the
Tribes and the public; (3) ensure that the policy statement clearly
articulates that the NRC's actions must be in accordance with its
governing statutes and regulations; (4) ensure that the policy
statement and protocol respect and reflect sensitivity between Indian
Tribes who are Federally recognized and those who are not; (5) ensure
that the policy statement and protocol indicate that the NRC will
outreach to State-recognized Tribes on a case-by-case basis; (6)
explore additional opportunities for State-recognized Tribes to
participate in the NRC regulatory process; and (7) make the protocol
prominently available on the NRC's public Web site. The Commission also
specified that the proposed policy statement should serve as a high-
level foundation for the protocol and should echo the language and
spirit of the relevant Presidential Memoranda and EOs.
On October 12, 2012 (77 FR 62269), the NRC solicited public comment
on its existing revised Tribal Protocol Manual and requested
suggestions for the development of a proposed Policy Statement that
will establish principles to be followed by the NRC to ensure effective
government-to-government interactions with Indian Tribes and to
encourage and facilitate involvement by Indian Tribes in the areas over
which the Commission has jurisdiction. The public comment period was
open for 180 days; and the NRC received six comment letters from two
Tribal governments, two mining associations, one inter-Tribal
organization, and a Tribal college. The staff has developed a proposed
Tribal Policy Statement and revised the NRC Tribal Protocol Manual
considering those comments. The Commission is currently seeking public
comments on the proposed Tribal Policy Statement. The NRC is also
seeking public comment on the Tribal Protocol Manual in a separate
notice published concurrently in this issue of the Federal Register.
In 2014, the NRC intends to publish the revised Tribal Protocol
Manual along with the public comments received on the prior version of
that document. Once the Commission approves the final Tribal Policy
Statement, the NRC will make conforming changes to the Tribal Protocol
Manual, as appropriate, and reissue the Manual concurrently with the
final Policy Statement. The summary of public comments to the proposed
Tribal Policy Statement and the NRC responses to those comments are
provided below.
IV. Summary of Public Comments and Responses to Comments
The NRC solicited suggestions regarding the development of the
proposed Tribal Policy Statement by posing the following questions: (1)
How can the NRC strengthen government-to-government relationships with
Native American Tribes? (2) What practices have the NRC or other
Federal agencies employed that have been effective in identifying
Tribal interests and resolving Tribal concerns about proposed agency
actions? (3) Are there specific Tribal Policy Statements from other
Federal agencies that could serve as a starting point for the NRC's
efforts? (4) What unique Tribal issues should the NRC be aware of as a
non-landholding, regulatory agency that issues licenses under the
Atomic Energy Act? Comments and responses related to these questions
are listed below. Comments submitted that related to the Tribal
Protocol Manual, but were useful to the development of the proposed
Tribal Policy Statement, were also considered.
1. How can NRC strengthen government-to-government relationships with
Native American Tribes?
Comment 1.1. Commenters suggested that the NRC may improve its
government-to-government relationship with Tribes by developing a
Tribal policy statement and engaging in regular dialogue with Tribes.
Response 1.1. The NRC agrees with this comment. Current staff
efforts have centered on revising the NRC's Tribal Protocol Manual and
developing an agency-wide Tribal Policy Statement for Commission
approval.
The proposed Tribal Policy Statement recognizes the need for the
NRC to seek out opportunities to engage Tribal officials regarding
specific regulatory actions. The Policy Statement also recognizes that
general outreach may be accomplished through NRC participation in
Tribal meetings that are held by the NRC's governmental partners and
through other fora. The proposed Tribal Policy Statement also
underscores the NRC's commitment to its government-to-government
relationship with Indian Tribes and reinforces the commitment through
outreach and consultation. The proposed Tribal Policy Statement further
underscores the NRC's commitment to its relationship with Indian Tribes
by identifying NRC management and staff members responsible for
overseeing Tribal consultation efforts.
Comment 1.2. Multiple comments centered on the importance of
recognizing Tribal sovereignty and the unique legal status of Tribes as
well as the Federal Trust relationship during the NRC's interaction
with Tribes. Commenters noted that Tribes retain inherent sovereignty
and should be considered to be governmental partners rather than
``stakeholders.'' Commenters suggested that the NRC should recognize
that Tribal governments have
[[Page 71139]]
primary authority and responsibility for the protection of the health,
safety, and welfare of their citizens and should be part of the
government-to-government consultation process with respect to agency
actions that may impact the citizens or lands of Indian Tribes.
Response 1.2. The NRC agrees with this comment. The Commission
recognizes Tribal sovereignty and demonstrates a commitment to
government-to-government relations with Federally recognized Tribes,
upholding the spirit of EO 13175. Congress authorized the Federal
government to regulate specified radioactive materials to protect
public health and safety and common defense and security in the Atomic
Energy Act of 1954. The NRC has regulatory authority over these
radioactive materials in areas of exclusive Federal jurisdiction
including Tribal reservations. However, the NRC exercises this
regulatory authority in a manner consistent with the fundamental
precepts expressed in EO 13175 and supports establishing regular and
meaningful consultation and collaboration with Tribal officials in the
development of Federal policies that have substantial direct effects on
one or more Indian Tribes.
Comment 1.3. One comment suggested that the NRC should formally
define the Federal Trust responsibility in detail.
Response 1.3. The NRC agrees with this comment with respect to
defining the NRC's Federal Trust responsibility towards Indian Tribes.
The proposed Tribal Policy Statement reflects the NRC's recognition of
the Federal Trust relationship and the NRC's commitment to a
government-to-government relationship with Federally recognized Tribes
with respect to agency actions that have substantial direct effects on
one or more Indian Tribes.
The NRC exercises its fiduciary duty in the context of its
authorizing statutes, including the AEA, and implements any fiduciary
responsibility by assuring that Tribal members receive the same
protections under regulations implemented by the NRC that are available
to other persons. The NRC will seek to consult with Indian Tribes on
agency actions that have substantial direct effects on one or more
Indian Tribes. Related staff guidance can be found in NRC Management
Directive 5.1, ``Intergovernmental Consultation,'' which ensures that
major interagency agreements, major organizational changes, significant
rules and regulations, statements of policy, guides and standards, and
major studies developed by the NRC that significantly impact Indian
Tribes are prepared with appropriate involvement and meaningful
consultation with Indian Tribes at the earliest possible stage (ADAMS
Accession No. ML041770442).
Comment 1.4. One comment noted that the NRC should provide
refreshments during meetings with Tribes.
Response 1.4. The NRC recognizes that providing refreshments during
gatherings or meetings may be customary in some Native American
cultures. Under Federal law, however, food and refreshments are
generally considered to be personal expenses that cannot be purchased
using Federal funds. The Commission must comply with Federal law
pertaining to the provision of food or refreshments at meetings.
2. What practices have the NRC or other Federal agencies employed that
have been effective in identifying Tribal interests and resolving
Tribal concerns about proposed agency actions?
Comment 2.1. One commenter suggested that the NRC should utilize
other Federal agencies in developing shared information tools to better
communicate with Indian Tribes.
Response 2.1. The NRC agrees with this comment and works closely
with other Federal agencies and interagency working groups on Tribal
initiatives. The NRC routinely collaborates with other Federal agencies
regarding Tribal consultations and has a related Memorandum of
Understanding with the U.S. Bureau of Land Management. Additionally,
NRC staff examined Tribal policies in place at other Federal agencies
during the development of the proposed Tribal Policy Statement. The
proposed Tribal Policy Statement recognizes the importance of
coordinating our Tribal consultation efforts with other Federal
partners.
3. Are there specific Tribal Policy Statements in other Federal
agencies that could serve as a starting point for the NRC's efforts?
No commenters identified specific Federal agency policy statements
that should serve as a starting point for the NRC Policy Statement.
However, the NRC staff examined 15 other Federal agencies' Tribal
policies and used them as a basis for developing the proposed NRC
Tribal Policy Statement.
4. What unique Tribal issues should the NRC be aware of as a non-
landholding, regulatory agency that issues licenses under the Atomic
Energy Act?
Comment 4.1. Commenters submitted suggestions related to unique
Tribal issues that the NRC should consider during the development of
the proposed Tribal Policy Statement. Commenters indicated that the NRC
should recognize the distinction between Federally recognized and non-
Federally recognized State Tribes and noted that the NRC should
consider State Tribes and other means for identifying Tribes that
ratified treaties. Additionally, commenters noted that the NRC should
consider the dynamics of the State and Tribal relationship, including
the application of State regulations and policies to Tribal
communities.
Response 4.1. The NRC agrees with this comment in part,
acknowledges the unique relationship that exists between the Federal
government and Federally recognized Tribes, and recognizes that this
relationship is independent of any State recognition of Tribal
sovereignty. The proposed Policy Statement identifies the distinction
between Federal and State-recognized Tribes. This distinction is also
reflected in the revised NRC Tribal Protocol Manual. However, the NRC
cannot confer Federal recognition on non-Federally recognized State
Tribes and defers to the Department of the Interior for such actions.
With regard to State regulation and policies, typically land within the
boundaries of Federally recognized Indian Tribe's Reservations is an
area of exclusive Federal jurisdiction for NRC regulatory purposes.
Comment 4.2. Several comments stated the need for the NRC to
understand the distinction between Tribal and Non-Tribal cultures,
especially as they relate to energy development in Indian Country.
Commenters suggested that the NRC should recognize that Tribal cultures
vary from Tribe to Tribe and that some may place more emphasis than
others on natural resources. Comments also suggested that the NRC
should account for differences in culture related to the decision-
making process on energy development issues, allowing for flexibility
in scheduling and input from members of Indian Tribes. Commenters noted
that the NRC should not only recognize Tribal laws and spiritual
beliefs pertaining to the environment and natural resources but should
also include discussions of risk assessment. Commenters suggested that
the NRC should respect Tribal moratoriums and explicit concerns related
to natural resource extraction on reservations or lands nearby.
Commenters also suggested that the NRC should work with other local
agencies and institutions to gain a better understanding of the
complexities and uniqueness of each Indian Tribe.
[[Page 71140]]
Response 4.2. The NRC agrees with this comment and acknowledges
that significant cultural differences may exist between Tribal and non-
Tribal cultures and between the different Tribal cultures. This is
reflected in staff guidance provided in the Tribal Protocol Manual,
which identifies examples of cultural differences between Tribal and
non-Tribal cultures and considerations for the NRC staff, including a
recommendation to research Tribal history and current Tribal issues and
concerns.
The NRC recognizes the importance that some Indian Tribes may place
on natural resources. This is reinforced in the proposed Policy
Statement, which notes that the NRC will engage in consultation with
Indian Tribes on NRC regulatory actions that have substantial direct
effects on one or more Indian Tribes.
The NRC recognizes that there may be differences in how the NRC
staff and Tribes approach time and schedules during the decision-making
process. The revised Tribal Protocol Manual has been updated to better
reflect potential cultural differences with respect to agenda planning
and scheduling. The NRC recognizes that Tribal elders and others
knowledgeable about religious and cultural traditions can play an
important role in the Tribal community during the decision-making
process related to energy development and other important decisions.
Chapter 2 of the Tribal Protocol Manual recognizes, ``Tribal
sovereignty includes the Tribe's right to reach decisions and conduct
meetings however they wish,'' and notes, ``Elders are highly respected
in Tribal communities, whether or not they hold an official position.''
When the NRC engages in government-to-government consultations, it does
so with designated representatives of the Tribal government, but the
NRC's regulatory process allows additional opportunities for members of
the Tribal community at large, along with other members of the public,
to contribute comments and attend meetings.
The NRC recognizes the Tribal views of natural resources and land
impact decision-making related to energy development. Chapter 3 of the
revised Tribal Protocol Manual notes that, ``Some Native Americans
believe that all living things are interconnected and that the
spiritual and natural worlds are one. Because of this, perceived
threats to their environment may be viewed as direct threats to their
health, culture, and spiritual well-being.'' The Manual encourages the
NRC staff to practice open communications, adaptability, and open-
mindedness during interactions with Tribal members, including during
risk assessment activities. With regard to Tribal moratoriums or
concerns related to natural resource extraction, the NRC respects
Tribal sovereignty and the Tribe's right to control the lands that are
within their regulatory jurisdiction. The NRC licensees must obtain
necessary permits or licenses from Federal, State, local or Tribal
governments, as applicable, before operating under a NRC license. It is
the NRC's practice to work closely with the Tribes, other Federal
agencies and interagency working groups on Tribal initiatives to gain
knowledge of Tribal cultures, beliefs, and environmental concerns.
V. Proposed Tribal Policy Statement
This section includes the proposed language in its entirety for the
proposed Tribal Policy Statement, as follows.
The purpose of this proposed Tribal Policy Statement is to set
forth principles to be followed by the U.S. Nuclear Regulatory
Commission (NRC) to ensure effective
government-to-government interactions with American Indian and
Alaska Native Tribes and to encourage and facilitate Tribal involvement
in the areas over which the NRC has jurisdiction. It seeks to provide
agency-wide principles to achieve consistency but also encourage
custom-tailored approaches to consultation and coordination that
reflect the circumstances of each situation and the preference of each
Tribal government. It is the NRC's expectation that all program and
regional office consultation and coordination practices will be
consistent and adhere to the Tribal Policy Statement. This Tribal
Policy Statement is based on the United States Constitution, treaties,
statutes, Executive Orders (EOs), judicial decisions, and the unique
relationship between Indian Tribes and the Federal government.\2\
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\2\ This Tribal Policy Statement is intended only to improve the
internal management of the Commission, and is not intended to, and
does not, grant, expand, create, or diminish any rights, benefits,
or trust responsibilities, substantive or procedural, enforceable at
law or in equity in any cause of action by any party against the
United States, the Commission, or any person. This Tribal Policy
Statement does not alter, amend, repeal, interpret, or modify Tribal
sovereignty, any treaty rights of any Indian Tribes, or preempt,
modify, or limit the exercise of such rights. Nothing herein shall
be interpreted as amending or changing the Commission's regulations.
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The following principles shall guide the NRC's interaction with
Indian Tribes:
1. The NRC Recognizes the Federal Trust Relationship and Will Uphold
Its Trust Relationship With Indian Tribes
As an independent agency of the Federal government, the NRC shares
the unique trust relationship with, and responsibility to, Indian
Tribes. At the same time, the NRC's actions must be in accordance with
its authorizing statutes and regulations. The NRC shall respect Indian
Tribal self-government and sovereignty, will honor Tribal rights, and
meet responsibilities that arise from the unique relationship between
the Federal government and Indian Tribal governments.
2. The NRC Recognizes and Is Committed to a Government-to-Government
Relationship With Indian Tribes
The NRC recognizes the right of each Indian Tribe to self-
governance and supports Tribal sovereignty and self-determination. The
NRC recognizes Tribal governments as dependent domestic sovereign
nations, independent from State governments, with separate and distinct
authorities.
3. The NRC Will Conduct Outreach to Indian Tribes
The NRC will consult and coordinate with Indian Tribes, as
appropriate, related to its regulatory actions with Tribal implications
and will seek additional opportunities for general outreach. The NRC
will participate in national and regional Tribal conferences and
summits hosted by Federal agencies and Tribal organizations, and will
seek Tribal representation in NRC meetings and advisory committees
concerning NRC regulatory actions that have substantial direct effects
on one or more Indian Tribes.
4. The NRC Will Engage in Timely Consultation
The NRC will provide timely notice to, and consult with, Tribal
governments on NRC's regulatory actions that have substantial direct
effects on one or more Indian Tribes. Tribal officials may request that
the NRC engage in government-to-government consultation with them on
matters that have not been identified by the NRC to have substantial
direct effects on one or more Indian Tribes. The NRC will make efforts
to honor such requests, taking into consideration the nature of the
activity at issue, past consultation efforts, available resources,
timing issues, and other relevant factors.
The NRC will establish early communications and begin consultation
at the earliest permissible stage, as appropriate. The NRC will consult
in
[[Page 71141]]
good faith throughout the agency decision-making process and develop
and maintain effective communication, coordination, and cooperation
with Indian Tribes. The NRC representative for consultations with
Tribal officials or representatives will be of an appropriate rank of
NRC representatives and level of interaction commensurate with the
circumstances. The appropriate level of interaction will be determined
by past and current practices, continuing dialogue between NRC and
Tribal governments, and program office consultation procedures.
5. The NRC Will Coordinate With Other Federal Agencies
When the Commission's action involves other Federal agencies, the
NRC will perform its Tribal consultation jointly with other Federal
agencies, as appropriate.
6. The NRC Will Encourage Participation by State-Recognized Tribes
The NRC recognizes the distinction between Indian Tribes who are
Federally recognized and those who are not. The NRC will outreach to
States to identify the appropriate State-recognized Tribes to invite to
participate in its regulatory process, including opportunities related
to rulemaking, hearings, licensing, decommissioning, and enforcement.
Designated Official and Tribal Liaisons
The Deputy Executive Director for Materials, Waste, Research,
State, Tribal and Compliance Programs serves as the NRC's designated
official for Tribal consultations.\3\ The designated official shall
ensure that agency program personnel have considered the Tribal
implications related to their responsibilities within the NRC's scope
of jurisdiction and shall facilitate meaningful and timely consultation
and coordination concerning the development, administration, and
enforcement of NRC's regulatory actions that have substantial direct
effects on one or more Indian Tribes.
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\3\ In 2006, the Commission created the position of Deputy
Executive Director for Materials, Waste, Research, State, Tribal and
Compliance Programs (SECY-06-0125, ``Proposed Reorganization of the
Offices of Nuclear Material Safety and Safeguards and State and
Tribal Programs'' (ADAMS Accession No. ML061950452)). The position
includes different responsibilities, including that of the
Commission's designated official for Tribal consultations.
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The designated official shall be supported by staff who have
functional responsibility to serve as intergovernmental liaisons to
Indian Tribes, under NRC Management Directive 5.1. These NRC Tribal
liaisons will facilitate government-to-government consultation by
serving as the agency's primary points of contact for Indian Tribes,
coordinating with the appropriate office or personnel regarding
programmatic inquiries, and facilitating the appropriate level of
communication and exchange of information between Tribal officials and
NRC staff. The Tribal liaisons shall also educate NRC staff about
Tribal issues including cultural sensitivity and the Federal Trust
Relationship. The designated official shall have the authority to
delegate tasks to NRC Tribal liaisons as he/she deems fit.
VI. Procedural Requirements
Paperwork Reduction Act Statement
This Policy Statement does not contain new or amended information
collection requirements and, therefore, is not subject to the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a request protocol for information or an information
collection requirement unless the requesting document displays a
currently valid OMB control number.
Dated at Rockville, Maryland, this 10th day of November, 2014.
For the Nuclear Regulatory Commission.
Rochelle C. Bavol,
Acting, Secretary of the Commission.
[FR Doc. 2014-27325 Filed 11-28-14; 8:45 am]
BILLING CODE 7590-01-P