[Federal Register Volume 82, Number 5 (Monday, January 9, 2017)]
[Notices]
[Pages 2402-2417]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00091]
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NUCLEAR REGULATORY COMMISSION
[NRC-2012-0235]
Tribal Policy Statement
AGENCY: Nuclear Regulatory Commission.
ACTION: Policy statement; issuance.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is issuing this
Statement of Policy to set forth principles to be followed by the NRC
staff to promote 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. It provides agencywide guidelines that 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 with or adhere to the NRC
Tribal Policy Statement.
DATES: This policy statement is effective on January 9, 2017.
ADDRESSES: Please refer to Docket ID NRC-2012-0235 when contacting the
NRC about the availability of information regarding this document. You
may obtain publicly-available information related to this document
using any of the following methods:
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: 301-415-
3463; email: [email protected]. For technical questions, contact
the individual listed in the FOR FURTHER INFORMATION CONTACT section of
this document.
NRC's Agencywide Documents Access and Management System
(ADAMS): You may obtain publicly-available documents online in the
ADAMS Public Documents collection 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. The Tribal Policy Statement, in its
entirety, is in the attachment to this document.
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.
FOR FURTHER INFORMATION CONTACT: Kevin O'Sullivan, Office of Nuclear
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001; telephone: 301-415-8112, email:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Discussion
III. Opportunity for Public Participation
IV. Procedural Requirements
I. Background
The purpose of the NRC Tribal Policy Statement is to establish
policy principles to be followed by the NRC to promote 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) (54 U.S.C. 300101) can 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 and NRC regulatory
[[Page 2403]]
provisions that require Tribal consultation and interacts with Tribal
governments accordingly.
A. NRC Previous Interactions with Indian Tribes
Historically, the NRC has had limited, but significant,
interactions with Indian Tribes. The Commission has upheld statutory
obligations to consult with Tribes under Federal law and acted in a
manner consistent with the spirit of certain Presidential initiatives
pertaining to Tribal consultation and coordination. However, the NRC
has not previously formalized an agencywide policy statement.
Many Federally recognized Tribes have an interest in public health
and safety and environmental protection associated with NRC regulatory
activities that include uranium recovery, commercial nuclear power, and
nuclear waste transportation, disposal, and storage activities. The NRC
has exercised its Trust Responsibility in the context of its
authorizing statutes, including the AEA. The NRC Tribal Policy
Statement formally reflects the NRC's recognition of the Federal Trust
Responsibility and the NRC's commitment to a government-to-government
relationship, which is distinct from interactions with members of the
public, with Federally recognized Tribes. The NRC will make efforts to
consult in good faith with Indian Tribes on agency actions that have
substantial direct effects on one or more Indian Tribes as well as
those regulatory actions for which Tribal consultation is required
under Federal Statute. Under the NRC's policy, the NRC or Tribal
governments can request consultation on regulatory activities that have
Tribal implications. The NRC's policy is to consult on a government-to-
government basis with Tribal governments as soon as practicable on NRC
regulatory actions with Tribal implications.
On November 6, 2000, President Clinton issued Executive Order (EO)
13175, ``Consultation and Coordination with Indian Tribal Governments''
(65 FR 67249). Executive Order 13175 states, ```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.'' Executive Order 13175, established the
following principles 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, EOs, 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. 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.
The United States recognizes the right of Indian Tribes to
self-government and supports Tribal sovereignty and self-determination.
As an independent regulatory agency, the NRC is exempt from the
requirements of certain EOs, including EO 13175. However, on January
26, 2001, the Commission sent correspondence to the Office of
Management and Budget stating that ``. . . in exercising its regulatory
authority this agency [NRC] acts in a manner consistent with the
fundamental precepts expressed in the Order [EO 13175]'' (ADAMS
Accession No. ML010260297). To that end, the Commission has developed
agency practices for Tribal consultation consistent with the principles
articulated in EO 13175.
The NRC's past practice for government-to-government interaction
with Federally recognized Tribes has reflected the spirit of the
relevant EOs, without establishing a formal policy. The NRC has
interacted with Tribal governments on a case-by-case basis, allowing
the NRC and the Tribes to initiate communication and consultation. The
NRC staff has also maintained working relationships with Tribal
governments and Tribal organizations that have an interest in NRC
regulated activities.
B. Development of the Draft Tribal Policy Statement
In SECY-96-187, ``Policy Issues Raised in Meeting with Prairie
Island Dakota Indian Representatives'' (ADAMS Accession No.
ML16293A128), the NRC staff provided to the Commission an analysis of
Tribal issues. The paper centered on issues raised by representatives
from the Prairie Island Dakota Indian Community including: (1) Entering
into a Memorandum of Understanding with the NRC; 2) allowing Tribal
representatives to observe inspections at the Prairie Island Nuclear
Generating Plant; and 3) developing a formal policy on cooperation with
Federally recognized Tribes. In the Staff Requirements Memorandum (SRM)
dated November 13, 1996, the Commission approved the staff's
recommendation not to develop a formal policy on cooperation with
Federally recognized Tribal governments at that time, but to continue
addressing Native American issues on a case-by-case basis and operating
with Tribal governments on a government-to-government basis (ADAMS
Accession No. ML16293A154).
On January 8, 2009, the Commission issued SRM-M081211, from the
December 11, 2008, ``Briefing on Uranium Recovery,'' directing the NRC
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 (ADAMS Accession No. ML090080206). The Commission
also directed the NRC staff to assess what policies other Federal
agencies have for interactions with Native American Tribal Governments
and to report those findings, which could determine the efficacy of an
NRC Tribal Policy Statement, to the Commission. The NRC staff responded
to this Commission direction in SECY-09-0180, ``U.S. Nuclear Regulatory
Commission Interaction with Native American Tribes'' (ADAMS Accession
No. ML092920384). The staff communicated the determination that the
NRC's case-by-case approach to interaction was effective and met the
needs of the Commission and the Tribes. The staff concluded that Tribal
interactions would not benefit from a formal Tribal policy at that
time. The NRC staff also developed NUREG-2173, ``NRC Tribal Protocol
Manual: Guidance for NRC Employees,'' as an internal protocol for
interacting with Tribal governments (ADAMS Accession No. ML092990559).
On May 22, 2012, the Commission issued the SRM for 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 the NRC staff to do the following when
developing the proposed policy
[[Page 2404]]
statement: (1) Use the existing ``Tribal Protocol Manual: Guidance for
NRC Employees,'' and the NRC staff's ongoing efforts outlined in SECY-
09-0180 as a starting point and the basis for developing the proposed
policy statement and protocol; (2) seek input from the Tribes and the
public on how to improve the existing manual; (3) clearly articulate in
the policy statement and protocol that the NRC's actions must be in
accordance with its governing statutes and regulations; (4) respect and
reflect in the policy statement and protocol sensitivity to the
distinction made in executive orders and statutes between Indian Tribes
who are Federally recognized and those who are not; (5) indicate in the
policy statement and protocol that the NRC will conduct outreach to
State-recognized Tribes on a case-by-case basis; (6) explore additional
opportunities within our current regulatory processes for information
sharing and outreach to State-recognized Tribes; and (7) make the
protocol prominently publicly 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.
The NRC staff formed an agency working group to develop a proposed
NRC Tribal Policy Statement and to revise the NRC Tribal Protocol
Manual. On October 12, 2012 (77 FR 62269), the NRC requested public
comment on the NRC Tribal Protocol Manual and requested suggestions for
the development of a proposed NRC Tribal Policy Statement to establish
policy principles to be followed by the NRC to promote 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 a total of six comment letters
from two Tribal governments, two mining associations, one inter-Tribal
organization, and a Tribal college.
Informed by internal working group representatives, external
outreach, and review of similar policies at other Federal agencies, the
NRC developed the proposed NRC Tribal Policy Statement. The NRC engaged
with Tribal governments and other interested parties by: (1)
Collaborating with the National Congress of American Indians to conduct
mass mailings to Federally recognized Tribes; and (2) participating in
Tribal meetings hosted by Tribal organizations and other Federal
agencies (these meetings included attendees from Federally recognized
and State-recognized Tribes). Additionally, the NRC staff reviewed
Tribal policy statements of executive departments, their related
agencies, and other independent agencies and provided their findings to
the Commission.
The proposed NRC Tribal Policy Statement was consistent with the
language of EO 13175 and was intended to cover a broad range of Tribal
consultations, outreach, and interactions conducted by NRC staff. The
proposed NRC Tribal Policy Statement applied to Federally recognized
Indian Tribes as defined by the Federally Recognized Indian Tribe List
Act of 1994 (25 U.S.C. 479a). It also encouraged participation by
State-recognized Tribes in the NRC's regulatory process. On December 1,
2014, the NRC published the proposed NRC Tribal Policy Statement in the
Federal Register for public comment (79 FR 71136). (See Section III,
``Opportunity for Public Participation,'' of this document for
additional information.)
C. Development of the Final NRC Tribal Policy Statement
After the December 2014 publication of the proposed NRC Tribal
Policy Statement in the Federal Register, the NRC staff engaged in
internal and external collaboration and outreach to inform the final
NRC Tribal Policy Statement. The NRC staff also sought comments on the
final NRC Tribal Policy Statement through participation in external
conferences and presentations, periodic telephone calls,
teleconferences, and webinars. The NRC staff continued to participate
in standing Tribal meetings hosted by Federal partners and Tribal
organizations and initiated additional outreach to Tribal leadership
through various regional or affiliated Tribal leadership councils. A
list of all outreach efforts can be found in NRC Tribal Liaison Annual
Report Fiscal Year 2015 (ADAMS Accession No. ML15247A011).
The final NRC Tribal Policy Statement reflects responses to both
internal and external comments. The final NRC Tribal Policy Statement
applies to all NRC staff and activities within the NRC's regulatory
jurisdiction. The NRC Tribal Policy Statement is written at a high
level to cover a wide variety of interactions, consultation, and
outreach to Indian Tribes, including Federally recognized American
Indian and Alaska Native Tribes.
II. Discussion
Within the context of this discussion, the following definitions
will apply unless otherwise indicated:
Consultation means efforts to conduct meaningful and timely
discussions between the NRC and Tribal governments on the NRC's
regulatory actions that have substantial direct effects on one or more
Indian Tribes and those regulatory actions for which Tribal
consultation is required under Federal statute. The NRC's Tribal
consultation allows Indian Tribes the opportunity to provide input on
regulatory actions with Tribal implications and those where Tribal
consultation is required, and is different from the outreach and public
comment periods. The consultation process may include, but is not
limited to, providing for mutually-agreed protocols, timely
communication, coordination, cooperation, and collaboration. The
consultation process provides opportunities for appropriate Tribal
officials or representatives to meet with NRC management or staff to
achieve a mutual understanding between the NRC and the Tribes of their
respective interests and perspectives.
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).
Interaction means reciprocal actions involving the NRC and Indian
Tribes, and may include, but is not limited to, outreach, consultation,
coordination, training, and information exchanges. Interactions may be
oral or written and can take place remotely (through electronic media)
or in face-to-face meetings.
Outreach means NRC staff efforts to inform Indian Tribes about the
agency's actions and plans. Outreach includes sharing information and
encouraging Tribal governments to communicate their concerns and
interests to NRC staff.
Regulatory Actions with Tribal Implications refers to regulations,
legislative comments or proposed legislation, and other policy
statements or actions 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
[[Page 2405]]
employee of an Indian Tribe or authorized intertribal organization.
Trust Responsibility means a fiduciary duty, 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. The NRC exercises its Trust
Responsibility in the context of its authorizing statutes, which
include the AEA, the Energy Reorganization Act of 1974, the Nuclear
Waste Policy Act of 1982, the Low-Level Radioactive Waste Policy Act of
1985, and the Uranium Mill Tailings Radiation Control Act of 1978, as
amended. As an independent regulatory agency that does not hold in
trust Tribal lands or assets, or provide services to Federally
recognized Tribes, the NRC fulfills its Trust Responsibility through
implementation of the principles of the Tribal Policy Statement, by
providing protections under its implementing regulations, and through
recognition of additional obligations consistent with other applicable
treaties and statutory authorities.
III. Opportunity for Public Comment
On December 1, 2014 (79 FR 71136), the NRC published a Federal
Register notice requesting public comments on the proposed NRC Tribal
Policy Statement. The original 120-day comment period was extended to
180 days (ending on May 31, 2015) through an additional Federal
Register notice that was published on February 5, 2015 (80 FR 6553).
A. Overview of Public Comments
The NRC received nine comment submissions, including comments from
two representatives from Federally recognized Tribes, two
representatives from inter-Tribal organizations, a Federal agency, an
electric utility company, and three individuals who did not provide an
organizational affiliation.
Comments and responses related to the proposed NRC Tribal Policy
Statement are listed in this section, and comments are quoted directly
from comment submissions. The NRC Tribal Protocol Manual was published
concurrently with the proposed Policy Statement in the Federal Register
for public comment; comments and related responses will be published
separately, with the exception of overlapping comments that cover both
the NRC Tribal Policy Statement and the NRC Tribal Protocol Manual.
The following table lists the commenter's name and affiliation,
ADAMS accession number for the comment submission, and the document
related to each comment.
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Comment Submission
Commenter Name Affiliation ADAMS Accession No. Document
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Charlene Dwin Vaughn................. Advisory Council on ML15154A842............ Proposed Tribal Policy
Historic Preservation Statement
(ACHP).
R. Budd Haemer....................... Indiana Michigan Power. ML15155A564............ Proposed Tribal Policy
Statement and Tribal
Protocol Manual
Richard Arnold....................... National Transportation ML15175A161............ Proposed Tribal Policy
Stakeholders Forum Statement
Tribal Caucus.
Bill Thompson........................ National Tribal Air ML15124A013............ Proposed Tribal Policy
Association. Statement
Philip R. Mahowald................... Prairie Island Indian ML15159A181............ Proposed Tribal Policy
Community. Statement and Tribal
Protocol Manual
Heather Westra....................... Prairie Island Indian ML15065A219............ Proposed Tribal Policy
Community. Statement
Cassandra Bloedel.................... Private Citizen........ ML15159A179............ Proposed Tribal Policy
Statement
Doreen Dupont........................ Private Citizen........ ML15159A180............ Proposed Tribal Policy
Statement
Savannah Halleaux.................... Private Citizen........ ML14345A750............ Proposed Tribal Policy
Statement
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B. Public Comment Analysis
The NRC has reviewed every comment submission and has identified 42
unique comments requiring NRC consideration and response. Comments and
the NRC responses are presented in this section. The comments generally
fell within the following categories: NRC's Trust Responsibility as a
Federal agency; suggested changes to the language of the NRC Tribal
Policy Statement; NRC's Tribal outreach and consultation; and NRC's
government-to-government relationship with Tribes. Commenters provided
additional comments that did not fall within those categories as well
as comments that were out of scope of the NRC Tribal Policy Statement;
these comments have been included at the end of this section, along
with NRC responses.
1. NRC's Trust Responsibility as a Federal Agency
Multiple commenters provided input related to the NRC's Trust
Responsibility to Federally recognized Tribes as a Federal agency.
Comment 1.1. ``Politics should not come into play in the Trust
Relationship. The Trust Relationship requires more in terms of
interactions access, and voice.''
Response 1.1. The NRC agrees with this comment. The NRC upholds its
Trust Relationship with Federally recognized Tribes without
consideration of politics. In achieving its mission, the NRC adheres to
the principles of good regulation--independence, openness, efficiency,
clarity, and reliability. The NRC seeks to use the highest possible
standards of ethical performance and professionalism with regard to
regulatory activities. Tribal governments and others are encouraged to
participate in the regulatory process to provide relevant facts and
opinions pertaining to an action. The NRC considers many, and possibly
conflicting public interests, when making decisions that are based on
objective, unbiased assessments of all information, and must be
documented with reasons explicitly stated.
No change has been made to the NRC Tribal Policy Statement as a
result of the comment.
Comment 1.2. ``It is inconsistent to say that the Trust
Responsibility is met simply by meeting standards for the general
public. Need to recognize the uniqueness of Tribes and the Trust
Relationship. Trust relationship requires more than simply meeting what
is required.''
Response 1.2. The NRC agrees with this comment. Under the Federal
Trust Doctrine, the United States--and the individual agencies of the
Federal government--owe a fiduciary duty to Indian Tribes. The nature
of that duty depends on the underlying substantive laws (i.e.,
treaties, statutes, agreements) creating the duty. The NRC exercises
its Trust Responsibility under its authorizing statutes including the
AEA, the Energy Reorganization Act of 1974, the Nuclear Waste Policy
Act of 1982, the Low-Level Radioactive Waste Policy
[[Page 2406]]
Act of 1985, and the Uranium Mill Tailings Radiation Control Act of
1978, as amended. As an independent regulatory agency that does not
hold in trust Tribal lands or assets or provide services to Federally
recognized Tribes, the NRC fulfills its Trust Responsibility through
implementation of the principles of the Tribal Policy Statement, by
providing protections under its implementing regulations, and through
recognition of additional obligations consistent with other applicable
treaties and statutory authorities. The NRC Tribal Policy Statement
formally reflects the NRC's recognition of the Federal Trust
Responsibility and the NRC's commitment to a government-to-government
relationship with Federally recognized Tribes that is distinct from
interactions with members of the public. The NRC will consult in good
faith with Indian Tribes on agency actions that have substantial direct
effects on one or more Indian Tribes as well as those agency actions
for which Tribal consultation is required under Federal Statute.
The NRC Tribal Policy Statement has been revised to reflect the
comment, in part.
Comment 1.3. ``NRC has not historically met its Trust
Responsibilities. Tribal Advance Notification Rule and the requirement
for tribes to `opt-in' is inconsistent with the Tribal Policy
Statement. States do not have to opt-in, while Tribes have to. Tribes
should be given the opportunity to `opt-out.'''
Response 1.3. The NRC disagrees with the comment that the NRC has
not historically met its Trust Responsibility. Under the Federal Trust
Doctrine, the United States--and the individual agencies of the Federal
Government--owe a fiduciary duty to Indian Tribes. The nature of that
duty depends on the underlying substantive laws (i.e., treaties,
statutes, agreements) creating the duty. The NRC exercises its Trust
Responsibility under its authorizing statutes including the AEA, the
Energy Reorganization Act of 1974, the Nuclear Waste Policy Act of
1982, the Low-Level Radioactive Waste Policy Act of 1985, and the
Uranium Mill Tailings Radiation Control Act of 1978, as amended. As an
independent regulatory agency that does not hold in trust Tribal lands
or assets or provide services to Federally recognized Tribes, the NRC
fulfills its Trust Responsibility through implementation of the
principles of the Tribal Policy Statement, by providing protections
under its implementing regulations, and through recognition of
additional obligations consistent with other applicable treaties and
statutory authorities. The NRC Tribal Policy Statement formally
reflects the NRC's recognition of the Federal Trust Responsibility and
the NRC's commitment to a government-to-government relationship with
Federally recognized Tribes that is distinct from interactions with
members of the public. In addition to affording Tribal members
protections under its implementing regulations, the NRC will consult in
good faith with Indian Tribes on agency actions that have substantial
direct effects on one or more Indian Tribes as well as those agency
actions for which Tribal consultation is required under Federal
statute.
While the comment related to the Tribal Advance Notification Rule
is out of scope of the NRC Tribal Policy Statement, the NRC believes
the Tribal Advance Notification Rule is consistent with the NRC Tribal
Policy Statement because it requires Tribal governments to opt-in to
participate in the advanced notification program. The Advance
Notification to Native American Tribes of Transportation of Certain
Types of Nuclear Waste (Tribal Advance Notification Rule) amends NRC
rules to require licensees to provide advance notification to
participating Federally recognized Tribal governments regarding
shipments of irradiated reactor fuel and certain types of nuclear waste
for any shipment that passes within or across their reservations (77 FR
34194). After reviewing public comments received during the development
of the Tribal Advance Notification Rule, the NRC staff concluded that
Tribes should have the option of whether to opt into the program
because the program requires training, certain equipment, and has civil
and criminal penalties for non-compliance.
The NRC Tribal Policy Statement has been revised to reflect the
comment, in part.
Comment 1.4. ``The ACHP [Advisory Council on Historic Preservation]
recommends expanding the discussion on trust responsibility [related to
policy principle 2 on Trust Responsibility] and including an
acknowledgement of trust responsibility. For more information about
trust responsibility, please reference the Bureau of Indian Affairs
[BIA] definition of trust responsibility (http://www.bia.gov/FAQs/).''
Response 1.4. The NRC agrees with this comment. In comparison with
the BIA, the NRC is an independent regulatory agency and does not hold
in trust Tribal lands or assets or provide services to Federally
recognized Tribes. Under the Federal Trust Doctrine, the United
States--and the individual agencies of the Federal Government--owe a
fiduciary duty to Indian Tribes. The nature of that duty depends on the
underlying substantive laws (i.e., treaties, statutes, agreements)
creating the duty. The NRC exercises its Trust Responsibility in the
context of its authorizing statutes including the AEA, the Energy
Reorganization Act of 1974, the Nuclear Waste Policy Act of 1982, the
Low-Level Radioactive Waste Policy Act of 1985, and the Uranium Mill
Tailings Radiation Control Act of 1978, as amended. As an independent
regulatory agency that does not hold in trust Tribal lands or assets or
provide services to Federally recognized Tribes, the NRC fulfills its
Trust Responsibility through implementation of the principles of the
Tribal Policy Statement, by providing protections under its
implementing regulations, and through recognition of additional
obligations consistent with other applicable treaties and statutory
authorities. The NRC Tribal Policy Statement formally recognizes the
unique relationship between the Federal Government and Indian Tribes
and describes NRC's continuing commitment to a government-to-government
relationship with Tribal governments that is distinct from the
interactions that the agency has with members of the public. The
discussion section of Policy Principle 1 has been revised to provide
further clarification and acknowledgment of the NRC's Trust
Responsibility.
The NRC Tribal Policy Statement has been revised to reflect the
comment.
Comment 1.5. ``To Indian tribes, upholding a Trust relationship
with Indian tribes means more to Indian tribes than just ensuring the
tribal members receive the same protections that are available to other
persons (i.e., the general public). In our view, the NRC is required to
do more, not less.
``The `trust responsibility' that the federal government owes to
Indian tribes imposes both substantive and procedural duties on the
federal government.''
Response 1.5. The NRC agrees with the comment. Under the Federal
Trust Doctrine, the United States--and the individual agencies of the
Federal Government--owe a fiduciary duty to Indian Tribes. The nature
of that duty depends on the underlying substantive laws (i.e.,
treaties, statutes, agreements) creating the duty. The NRC exercises
its Trust Responsibility under its authorizing statutes including the
AEA, the Energy Reorganization Act of 1974, the Nuclear Waste Policy
Act of 1982, the Low-Level Radioactive Waste Policy
[[Page 2407]]
Act of 1985, and the Uranium Mill Tailings Radiation Control Act of
1978, as amended. As an independent regulatory agency that does not
hold in trust Tribal lands or assets or provide services to Federally
recognized Tribes, the NRC fulfills its Trust Responsibility through
implementation of the principles of the Tribal Policy Statement, by
providing protections under its implementing regulations, and through
recognition of additional obligations consistent with other applicable
treaties and statutory authorities. The NRC Tribal Policy Statement
formally reflects the NRC's recognition of the Federal Trust
Responsibility and the NRC's commitment to a government-to-government
relationship with Federally recognized Tribes that is distinct from
interactions with members of the public.
Other procedural components for carrying out interactions with
Tribal governments are articulated in the Tribal Protocol Manual and
specific agency regulations and guidance documents.
The NRC Tribal Policy Statement has been revised to reflect the
comment.
Comment 1.6. ``PIIC [Prairie Island Indian Community] believes that
the trust responsibility must mean more than solely complying with
existing statutes and regulations. Compliance of this type is no
different than what is owed to the general public. In order for the
trust responsibility to have any vitality, Federal agencies must
exercise a higher responsibility when taking action that may affect a
tribe. This is especially true when the issues concern lands held in
trust by the United States for a tribe and the tribal cultural and
historic resources and a tribe's ancestral homeland.''
Response 1.6. The NRC agrees with this comment. Under the Federal
Trust Doctrine, the United States--and the individual agencies of the
Federal Government--owe a fiduciary duty to Indian Tribes. The nature
of that duty depends on the underlying substantive laws (i.e.,
treaties, statutes, agreements) creating the duty. The NRC exercises
its Trust Responsibility under its authorizing statutes including the
AEA, the Energy Reorganization Act of 1974, the Nuclear Waste Policy
Act of 1982, the Low-Level Radioactive Waste Policy Act of 1985, and
the Uranium Mill Tailings Radiation Control Act of 1978, as amended. As
an independent regulatory agency that does not hold in trust Tribal
lands or assets or provide services to Federally recognized Tribes, the
NRC fulfills its Trust Responsibility through implementation of the
principles of the Tribal Policy Statement, by providing protections
under its implementing regulations, and through recognition of
additional obligations consistent with other applicable treaties and
statutory authorities. The NRC Tribal Policy Statement formally
reflects the NRC's recognition of the NRC's commitment to a government-
to-government relationship with Federally recognized Tribes with
respect to agency actions that have a substantial direct effect on one
or more Indian Tribes that is distinct from interactions with members
of the public. The NRC also upholds the statutory obligation to consult
with Federally recognized Tribes under Section 106 of the NHPA, which
is intended to protect historic properties that may be affected by a
Federal undertaking. The NHPA requirement to engage in Tribal
consultation applies regardless of the location of the historic
property and can include Tribal ancestral lands that are not part of
the Tribe's current reservation or trust lands.
The NRC Tribal Policy Statement has been revised to reflect the
comment.
2. Suggested changes to the language of the NRC Tribal Policy Statement
Multiple commenters proposed changes to the language of the NRC
Tribal Policy Statement or to the discussion section that defines terms
utilized throughout the NRC Tribal Policy Statement.
Comment 2.1. ``While the 6 principles [of the NRC Tribal Policy
Statement] originally proposed serve as foundation of which to build
upon, the [U.S. Department of Energy] DOE National Transportation
Stakeholders Forum Tribal Caucus believes the proposed principles
should be expanded to include an additional Principle Policy Statement
#7. Specifically, it is recommended that the existing policy statement
include:
PRINCIPLE POLICY STATEMENT #7
7. NRC is committed to collaborating with tribes in regulatory
activities that may have the potential of affecting tribal interests.''
Response 2.1. The NRC disagrees with this comment. The NRC Tribal
Policy Statement is consistent with EO 13175, which states ``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.'' The suggested language
could be interpreted to require the NRC to seek consultation and
collaboration on all of NRC's activities because they have the
potential to impact Tribal members even if the activity has no greater
potential effect on Tribal members than the general public. For
example, health and safety regulations relating to well-logging or
medical use of byproduct material could fall under this definition.
Therefore, the NRC limited the obligation for the NRC to specifically
seek Tribal consultation to activities defined in EO 13175 and those
for which Tribal consultation is required under Federal statute.
However, Tribes can always request consultation with the NRC regarding
``regulatory activities that may have the potential of affecting Tribal
interests.'' The NRC would evaluate such requests on a case-by-case
basis.
No change has been made to the NRC Tribal Policy Statement as a
result of the comment.
Comment 2.2. [The commenter suggested including the underlined text
in the discussion of policy principle 1.] ``The NRC shall respect
Indian Tribal self-government and sovereignty, will honor Tribal treaty
and other rights, and meet responsibilities that arise from the unique
relationship between the Federal government and Indian Tribal
governments. Further, the NRC shall encourage states to recognize the
Federal government's trust relationship with Tribes and incorporate
this recognition in their own practices.''
Response 2.2. The NRC disagrees with this comment. Our
understanding of the phrase ``Tribal rights'' would also cover ``tribal
treaty and other rights,'' so the change is unnecessary.
Section 274b. of the AEA authorizes the NRC to enter into
agreements with States so that the NRC relinquishes, and the State
assumes, regulatory authority over the radioactive material and
activities specified in the agreement. The NRC approves the agreement
if the NRC finds the State program adequate to protect public health
and safety and compatible with the NRC's regulatory program. The NRC
periodically reviews the State's program, but the NRC does not mandate
to the State how they should interact with Tribal governments when
implementing these regulatory requirements and the States apply their
own laws to implement their radiation control program for the specified
AEA radioactive materials covered in the Agreement.
No change has been made to the NRC Tribal Policy Statement as a
result of the comment.
[[Page 2408]]
Comment 2.3. [The commenter suggested including the underlined text
in the discussion of policy principle 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 with inherent sovereign powers over their members and
territory.''
Response 2.3. The NRC agrees with this comment. The second sentence
of the discussion related to Policy Principle 2 now reads, ``The NRC
recognizes Tribal governments as dependent domestic sovereign nations,
independent from State governments, with separate and distinct
authorities with inherent sovereign powers over their members and
territory, consistent with applicable statutes and authorities.''
The NRC Tribal Policy Statement has been revised to reflect the
comment.
Comment 2.4. [The Commenter suggested including the underlined text
in the discussion of policy principle 4, ``The NRC Will Engage in
Timely Consultation.''] ``The NRC will provide timely notice to, and
consult with, Tribal governments on NRC's regulatory and non-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 communication and begin
consultation at the earliest permissible stage, as appropriate. The NRC
will consult in good faith throughout the agency decisionmaking process
and develop and maintain regular and meaningful effective
communication, coordination, and cooperation with Indian Tribes. The
NRC representatives for consultations with Tribal officials or
representatives will be of an appropriate rank of NRC representatives
and level of interaction commensurate with the circumstances and who
shall have decision-making power. 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.''
Response 2.4. The NRC agrees in part and disagrees in part with
this comment. The term ``regulatory action'' is used to reflect the
scope of the NRC's mission as a regulatory agency, and no change has
been made to the existing text. ``Effective communication'' already
reflects that communication should be ongoing during the consultation
process. The text has been revised to reflect that ``The NRC
representatives for consultations with Tribal officials or
representatives will be of an appropriate rank and the level of
interaction will be commensurate with the circumstances. The
appropriate level of interaction will be determined by a discussion
between the NRC and Tribal governments, and program office consultation
procedures and guidance. Participating Tribal and NRC representatives
will serve as respective decisionmakers, based on the established
agenda and to the extent possible.''
The NRC Tribal Policy Statement has been revised to reflect the
comment.
Comment 2.5. [The commenter suggested including the underlined text
in the discussion of Policy Principle 5, ``The NRC Will Coordinate with
Other Federal Agencies.''] ``The NRC Will Coordinate With Other Federal
Agencies and States. When the Commission's action involves other
Federal agencies and States, the NRC will perform its Tribal
consultation jointly with other Federal agencies and States, as
appropriate.''
Response 2.5. The NRC agrees in part and disagrees in part with
this comment. The NRC coordinates with other Federal agencies and with
States, as appropriate, during consultations. For example, when
following the regulatory procedures related to the NHPA and National
Environmental Policy Act (NEPA) the NRC coordinates with the State by
communicating with the State Historic Preservation Officer, who is
included as a consulting party under the NHPA, or the State agency
regarding State listed species of concern for environmental impact
determinations on specific resource areas. The NRC disagrees that
Policy Principle 5 should be revised to include States since the
Principle is limited to Federal coordination.
No change has been made to the NRC Tribal Policy Statement as a
result of the comment.
Comment 2.6. ``The ACHP recommends defining interactions and using
interactions consistently throughout the document. In certain cases,
interactions could be confused with more formal government to
government consultations.''
Response 2.6. The NRC agrees with this comment. The definition of
interaction has been included in the discussion section of the policy
statement to identify activities covered by the term ``interaction.''
The discussion section related to the NRC Tribal Policy Statement
has been revised as a result of the comment.
Comment 2.7. ``The ACHP recommends defining substantial direct
effects in order to provide clarity to the NRC's practices addressing
Executive Order 13175.''
Response 2.7. The NRC disagrees with this comment. The use of
``substantial direct effects'' is consistent with the language used in
EO 13175, which also does not define the term. Since the Tribal Policy
Statement covers a vast range of regulatory activities, the NRC has not
defined ``substantial direct effects'' in the NRC Tribal Policy
Statement. The NRC will consider including criteria in future guidance
documents to determine whether an activity has a ``substantial direct
effect'' on one or more Indian Tribes.
No change has been made to the NRC Tribal Policy Statement as a
result of the comment.
Comment 2.8. ``The ACHP recommends specifying outreach should be
done in addition to formal government to government consultation with
Native Americans tribes and/or Native Hawaiian Organizations. Also, the
NRC should include a definition for outreach. Outreach and consultation
should be discussed as two separate activities conducted by the NRC.''
Response 2.8. The NRC agrees in part and disagrees in part with
this comment. The NRC agrees that outreach is distinct from government-
to-government consultation. The NRC Tribal Policy Statement reflects
the distinction between outreach and consultation by putting forth two
separate and distinct policy principles related to outreach and
consultation. In an effort to provide clarification regarding the
distinction between outreach and consultation, Policy Principle 3 has
been revised.
The NRC agrees that a definition of outreach should be included in
the Discussion Section in an effort to provide further clarification
The purpose of NRC's Tribal outreach can be broad, ranging from
participation in standing Tribal meetings hosted by Federal partners
and Tribal organizations, to conducting informational meetings related
to a licensing project or rulemaking, to an informational webinar. The
NRC Tribal
[[Page 2409]]
liaison team continues to seek new opportunities to engage Tribal
representatives.
The NRC disagrees that the NRC Tribal Policy Statement's discussion
of outreach should include Native Hawaiian Organizations. The Tribal
Policy Statement pertains to consultation with Tribal Governments
recognized by the Federally Recognized Indian Tribe List Act of 1994,
25 U.S.C. 479a. (See response to Comment 4.1 for additional information
regarding the Native Hawaiian Organizations.)
The NRC Tribal Policy Statement has been revised as a result of the
comment.
Comment 2.9. ``The ACHP recommends stating [in the discussion of
policy principle 4, ``The NRC Will Engage in Timely Consultation'']
that it is the federal agency's responsibility to engage in
consultation. It is not the tribe's responsibility to request
engagement in consultation.''
Response 2.9. The NRC agrees in part and disagrees in part with
this comment. The NRC agrees that it is its responsibility to initiate
consultation when Tribal consultation is required under Federal
statute. The discussion of Policy Principle 4 has been revised to
clarify that the NRC also engages in consultation when required under
Federal statute. However, the NRC disagrees with the suggestion to
state specifically in Policy Principle 4 that ``it is the federal
agency's responsibility to engage in consultation'' or that ``it is not
the tribe's responsibility to request engagement in consultation.'' As
stated in Policy Principle 4 the NRC will provide timely notice and
consult in good faith with Tribal Governments on NRC regulatory actions
that have substantial direct effects on one or more Indian Tribes as
well as those regulatory actions for which Tribal consultation is
required under Federal statute. In some circumstances, Federally
recognized Tribes may request to engage in consultation on matters that
have not been identified by the NRC as having substantial direct
effects on one or more Indian Tribes or for which Tribal consultation
is not required under Federal statute. The NRC can make a good faith
effort to invite Tribes to consult, but cannot mandate their
participation in the process.
The NRC Tribal Policy Statement has been revised to address this
comment, in part.
Comment 2.10. ``The Policy and Manual generally reflect the
differences between outreach and consultation. However, there are
several specific spots, discussed below, where the language is unclear
or the terms are used interchangeably. Confusion as to whether the NRC
is engaged in outreach or consultation or the scope of consultation can
result in confusion and delay. The Tribes may even get the impression
that the NRC is only pretending to consult; see, for example, the
eighth bullet on page 6 of the letter from the Seneca Nation of
Indians, dated April 1, 2013, in this docket.
``Principles 3 and 4 of the Policy are potentially confusing as
they use the terms `consult' and `outreach' interchangeably. In
addition, these Principles state that they apply to `regulatory
actions' without clarifying whether what is meant are policy setting,
rulemaking, issuing guidance, or a licensing action. As reflected in
Section 1.D and associated note 25 of the Manual, as a regulatory
agency, the NRC fulfills the fiduciary obligation to Tribes by ensuring
uniform treatment action in providing protection under its implementing
regulations. On the other hand, where the NRC is engaged in setting
policy, issuing rules, or providing guidance that directly impact
Tribes, consultation on subjects within the scope of the impact may be
appropriate where the impact is significant. To minimize confusing
ambiguity, the following clarifications are suggested:
A. The Policy
(1) In Principle 3, replace `consult' with `inform' in the first
sentence and replace `NRC regulatory actions that have substantial
direct impacts on one or more Indian Tribe' with `NRC regulatory
actions, including licensing actions, in which one or more Indian
Tribes have an interest.' This clarification ensures that outreach to
Indian Tribes will include any regulatory action of interest to a
Tribe.''
Response 2.10. The NRC disagrees in part and agrees in part with
this comment. The NRC recognizes that consultation and outreach are
distinct terms that should not be used interchangeably. The NRC
disagrees with the proposed changes to Policy Principle 3, but agrees
that Policy Principle 3 should be revised to provide greater clarity.
``Consult'' has been removed from the first sentence, but ``regulatory
actions that have substantial direct impacts on one or more Indian
Tribe'' remains. The NRC Tribal Policy Statement reflects the
distinction between outreach and consultation by setting forth two
separate and distinct policy principles related to outreach and
consultation. In an effort to provide clarification regarding the
distinction between outreach and consultation, Policy Principle 3 has
been revised. The purpose of NRC's Tribal outreach can be broad,
ranging from participation in standing Tribal meetings hosted by
Federal partners and Tribal organizations to conducting informational
meetings related to a licensing project or rulemaking to an
informational webinar. The NRC Tribal liaison team continues to seek
new opportunities to engage Tribal representatives.
The NRC Tribal Policy Statement has been revised as a result of the
comment.
Comment 2.11. ``In Principle 4, replace `on NRC's regulatory
actions' with `prior to the NRC issuing policies, rules, or guidance'
in the first sentence. This clarification reflects that consultation on
NRC licensing actions would generally not be consistent with the NRC's
statutory authority. This clarification also harmonizes the Policy with
the Presidential directive for agencies to consult on policies with
tribal implications, E.O. [Executive Order] 13175, Sec. I(a), Nov. 6,
2000.''
Response 2.11. The NRC agrees in part and disagrees in part with
this comment. The focus of E.O. 13175 is specifically related to
consultation on ``policies that have Tribal implications'' (i.e.,
``regulations, legislative comments on proposed legislation, and other
policy statements or actions that have substantial direct effects on
one or more Indian Tribes''). The revised text proposed by the
commenter would harmonize the Policy Statement with the E.O. by
replacing the term ``NRC's regulatory actions'' with a specific set of
activities that are consistent with the activities covered in the E.O.
However, the NRC Tribal Policy Statement covers a broader set of
activities than those covered in the EO. Not all NRC Tribal
consultation is related to ``policies, rules, or guidance'' as noted in
the comment. The NRC licensing actions may also trigger Tribal
consultation under other Federal statutes. Therefore, the discussion of
Policy Principle 4 has been revised to clarify the broader set of
activities covered by the Policy Statement.
The NRC Tribal Policy Statement has been revised to address the
comment, in part.
Comment 2.12. ``Consistent with the practices of other agencies,
the Policy designates an official to facilitate meaningful and timely
consultations with Indian Tribes. See generally, E.O. [Executive Order]
13175, Sec. 5(a), Nov. 6, 2000. The designated official is to work
with other NRC personnel to ensure Tribal implications have been
considered. The conclusions from these intra-agency considerations
should be documented in the papers provided to the Commission (SECY
papers), much
[[Page 2410]]
the way the conclusions of the Chief Financial Officer or legal office
are reflected now. Such documentation would serve to provide timely
feedback to the Commission, to be mindful with the resource
implications associated with formal Tribal consultations, and to show
respect for the solemnity of conducting Tribal consultations on a
Government-to-Government basis. Also, the second sentence of the first
paragraph under `Designated Official and Tribal Liaisons' is an
ambiguous, run-on sentence that does not clarify that where the NRC is
engaged in setting policy, issuing rules, or providing guidance that
directly impact Tribes, consultation on subjects within the scope of
the impact may be appropriate where the impact is significant as
reflected in Comment 2, above. It is suggested that sentence be split
into four sentences that read:
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. Where
programs, policies, rulemaking or guidance are proposed to the
Commission, the conclusions from review of these considerations
shall be briefly discussed; specifically whether or not there
potentially are direct effects on one or more Indian Tribes. The
designated official shall facilitate meaningful and timely
consultation concerning the development, administration, and
enforcement of NRC's policy, rulemaking, or guidance actions that
have a substantial direct effect on one or more Indian Tribes,
including obtaining Commission approval to initiate formal
consultation with one or more Indian Tribes on subjects within the
scope of such substantial direct effects. Prior Commission approval
to initiate consultation is not required where consultation is
required by a Federal statute.''
Response 2.12. The NRC agrees in part and disagrees in part with
this comment. The NRC agrees that the ``designated official'' should be
involved in regulatory actions that have Tribal implications, but
disagrees with the commenter's suggested edits and related
implications. Some of the commenter's proposed language would introduce
procedures that are not appropriate for a high-level policy statement.
The NRC would consider developing specific procedures in a future
guidance document. Regulatory actions involving Tribal consultation,
would be reviewed by the Office of the Executive Director for
Operations, including the designated official, before being sent to the
Commission. The NRC Tribal Policy Statement identifies the Deputy
Executive Director for Materials, Waste, Research, State, Tribal,
Compliance, Administration, and Human Capital Programs as the
``designated official'' for purposes of the NRC Tribal Policy
Statement, and not pursuant to E.O. 13175, as noted by the commenter.
The NRC agrees that the second sentence of the section titled,
``Designated Officials and Tribal Liaisons,'' referenced by the
commenter should be restructured and has divided it into two sentences.
The NRC Tribal Policy Statement has been revised to reflect part of
the comment.
3. Outreach and Consultation
Multiple commenters provided input related to the use of the terms
``outreach'' and ``consultation'' in the policy principles of the NRC
Tribal Policy Statement.
Comment 3.1. ``The NTAA [National Tribal Air Association] supports
Principle No. 3 which provides:
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.
While the NTAA supports Principle No. 3, it does not find that
current NRC outreach to Indian Tribes is being done or happening in a
timely manner. For example, apart from some local efforts, the NTAA is
unaware of any venue where Tribes are being brought together to discuss
radiation issues and air quality impacts from the nuclear program. The
NTAA finds that NRC must be more diligent in conducting outreach on all
issues as they are brought to the attention of the NRC by Tribes, the
NTAA, or other Tribal organizations.''
Response 3.1. The NRC agrees in part and disagrees in part with
this comment. The NRC agrees with the commenter's support of the NRC
Tribal Policy Principle 3. The NRC disagrees that the NRC has not
conducted outreach to Indian Tribes in a timely manner. While the NRC
has not hosted particular meetings to bring Tribes together to discuss
radiation issues and air quality impacts from the nuclear program, the
NRC has participated in national and regional Tribal conferences and
summits hosted by Federal agencies and Tribal organizations.
Additionally, the NRC has provided instructor-led training sessions at
multiple Tribal Colleges and Universities to inform Tribes regarding
NRC's mission, basic health physics, radiation safety, and
environmental review. The NRC will continue to provide training, as
needed, to Tribes who are affected by regulated activities and will
seek outreach opportunities.
No change has been made to the NRC Tribal Policy Statement as a
result of the comment.
Comment 3.2. ``Principle No. 4: Development of a Consultation Plan.
The NTAA recommends that Principle No. 4 require the NRC to also
develop a comprehensive Tribal consultation plan for NRC regulatory and
non-regulatory actions having potentially substantial direct effects on
one or more Indian Tribes. Although Tribes consider consultation to be
very important, Tribes have limited resources and time to expend on it.
The NRC must be sensitive to this fact and make every effort to provide
Tribes with any additional resources and assistance that they might
require to engage in effective consultation. Some recommendations to
help the NRC to conduct effective consultation with Tribes include:
1. Develop guidance on how the NRC intends to assure that
consultation meetings result in meaningful dialogue rather than simply
pro forma consultation;
2. Assign a Tribal liaison to the specific NRC action who has
extensively worked with Tribes on similar issues; and
3. Provide adequate time to Tribes to review and provide comments
concerning proposed NRC actions well beyond the 30- to 60-day periods
provided to the public to make its comments.''
Response 3.2. The NRC disagrees in part and agrees in part with
this comment. The NRC staff has developed an implementation plan that
will be revised to reflect the final NRC Tribal Policy Statement. The
NRC disagrees that Policy Principle 4 should state specifically that
the NRC has to develop a comprehensive Tribal consultation plan for NRC
regulatory and non-regulatory actions having potentially substantial
direct effects on one or more Indian Tribes. The NRC agrees that the
NRC should consider development of consultation plans for actions that
have substantial direct effects on one or more Indian Tribes as well as
those regulatory actions for which Tribal consultation is required
under Federal statute, in an effort to promote more effective
consultations. The NRC Tribal liaison staff will continue to work in
conjunction with program office staff
[[Page 2411]]
during licensing and other regulatory actions, and may be assigned to
specific sites or actions, as resources and staffing permit. The NRC
strives to establish an effective consultation process and will
consider time allowed for Tribal engagement, including Tribal review
and comment of relevant documents, on a case by case basis, as
appropriate, during the regulatory process.
No change has been made to the NRC Tribal Policy Statement as a
result of the comment.
Comment 3.3. ``Further, the NRC must engage in government-to-
government consultation with individual Tribes and not groups of Tribes
which might occur as part of an outreach session at a conference or
other similar gathering. Such a consultation approach is necessary for
a number of reasons. First, it provides for more candid conversations
between the individual Tribe and NRC than would occur otherwise during
a group meeting. Second, each Tribe's circumstances are unique and must
be treated as such by the NRC. A group meeting of Tribes would only
give short shrift to these circumstances. Third, most cultural
resources information is protected from release under statutory
exemptions to the Freedom of Information Act. Discussion of such
information by an individual Tribe as part a group meeting of Tribes
risks its release to the general public and potentially endangers
Tribal cultural sites and practices. Finally, the subject matter may be
so unique that government-to-government consultation between the
individual Tribe and NRC provides the best opportunity for a resolution
to the situation versus a group meeting of Tribes where any number of
Tribal issues could be discussed in a finite period of time.''
Response 3.3. The NRC agrees with this comment. The NRC does not
consider outreach during a conference to be consultation. The NRC will
make an effort to engage Tribes on a government-to-government basis,
and will consider whether it is more appropriate to consult
individually or simultaneously with multiple Tribes, on a case-by-case
basis, taking into consideration site-specific facts, resource
limitations, and preference of consulting Tribes.
No change has been made to the NRC Tribal Policy Statement as a
result of the comment.
Comment 3.4. ``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.
``Attending major tribal conferences and meetings is an excellent
way of interacting with Indian tribes. As well, NRC staff should
endeavor to attend meetings of other federal agencies that attract
tribal representatives.
``. . . [I]t is important to recognize that while there might not
be delineated reservation or Trust lands in a given area that does not
necessarily mean that there are no tribes interested in or impacted by
NRC regulatory actions. Many tribes were forcibly removed from their
ancestral lands or ceded vast tracts of land to the federal government
through treaties and have retained or reserved rights (fishing,
hunting, gathering) for these lands or these lands contain
archaeological, cultural or historical resources, including important
sacred sites.''
Response 3.4. The NRC agrees with this comment. The NRC agrees that
attending conferences and meetings is an effective way of engaging
Tribes and that the NRC staff should attend meetings held by other
Federal agencies that attract Tribal representatives. The NRC staff
participates in Tribal meetings hosted by other Federal agencies,
including conferences hosted by the U.S. Environmental Protection
Agency, the U.S. Department of Energy, and the U.S. Department of
Transportation, along with meetings hosted by inter-Tribal
organizations, including the National Congress of American Indians. The
NRC also agrees that Tribes may have an interest in areas that do not
have current reservation or trust lands. The current location and
geographic proximity to NRC regulated sites is not the sole
consideration of the NRC when engaging in outreach with Tribes. The NRC
also considers whether there are Tribes that have historic and cultural
ties to the land in question.
No change has been made to the NRC Tribal Policy Statement as a
result of the comment.
Comment 3.5. [The Commenter provided input specific to policy
principle 4, ``The NRC Will Engage in Timely Consultation.''] ``Early
and frequent consultation must be the cornerstone of the government-to-
government relationship. Publishing a notice in the Federal Register is
not consultation. It should be noted that sometime the consultative
process can take time.''
Response 3.5. The NRC agrees with this comment. The definition of
``consultation'' and Policy Principle 4 have been revised to provide
further clarification. The revisions clarify that consultation is a
process and may include, but is not limited to, providing for mutually-
agreed protocols, timely communication, coordination, cooperation, and
collaboration and provides opportunities for appropriate Tribal
officials or representatives to meet with NRC management or staff to
achieve a mutual understanding between the NRC and the Tribes of their
respective interests and perspectives.
No change has been made to the NRC Tribal Policy Statement as a
result of the comment.
4. NRC's Government-to-Government Relationship With Tribes
Comment 4.1. ``The ACHP recommends including Alaska Natives and
Native Hawaiians in the NRC Tribal Policy Statement and the Tribal
Protocol Manual. The NRC is responsible for licensing materials in
Alaska and Hawaii. Additionally, the NRC should avoid homogenizing
Native American tribes and reference Native American communities [in
the Tribal Protocol Manual], not the Native American community.''
Response 4.1. The NRC disagrees in part and agrees in part with
this comment. The NRC disagrees that the NRC Tribal Policy Statement
should include Native Hawaiian Organizations. The NRC Tribal Policy
Statement and Tribal Protocol Manual pertain to consultation with
Tribal governments recognized by the Federally Recognized Indian Tribe
List Act of 1994, 25 U.S.C. 479a. The definition of Indian Tribe
includes Alaska Native Tribes. The United States has recognized and
implemented a special political and Trust Responsibility with the
Native Hawaiian community through programs and services that are, in
many respects, analogous to, but separate from the programs and
services enacted for Federally recognized Indian Tribes. However,
Native Hawaiian Organizations are not governmental entities. As a
result, Native Hawaiian Organizations are not covered by the NRC Tribal
Policy Statement. The NRC does comply with statutory obligations to
consult with Native Hawaiian Organizations. For example, the NRC
consults with Native Hawaiian Organizations, as appropriate, under
Section 106 of the NHPA.
The NRC agrees with the comment, ``the NRC should avoid
homogenizing Native American Tribes'' and recognizes distinctions
between Federally
[[Page 2412]]
recognized Tribes, as noted in the Tribal Protocol Manual. The Tribal
Protocol Manual has been revised to reflect the suggested change from
``community'' to ``communities.''
No change has been made to the NRC Tribal Policy Statement as a
result of the comment.
Comment 4.2. ``Taken together, both the Tribal Protocol Manual and
the NRC Tribal Policy Statement (and their respective Federal Register
notices) provide important historical information, such as various
treaties, Congressional Acts affecting Indian tribes and rights, and a
discussion of the Federal Trust Responsibility. This information
provides the proper historical context critical to understanding the
unique relationship federally recognized Indian Tribes have with the
Federal Government. This point is underscored in the Tribal Protocol
Manual, which notes that Indian tribes are not the public or special
interest groups, but are, in fact, governments. This point is important
in understanding why tribes desire to have a government-to-government
relationship with the NRC and do not wish to be considered
`stakeholders'.''
Response 4.2. The NRC agrees with this comment. The NRC Tribal
Policy Statement and Tribal Protocol Manual underscore the NRC's
commitment to a government-to-government relationship with Indian
Tribes. The NRC Tribal Policy Statement formalizes the NRC's commitment
to engaging Indian Tribes on a government-to-government basis,
providing opportunities for participation in the NRC's regulatory
process beyond those available to members of the general public or
interested stakeholders, consistent with the principles articulated in
E.O. 13175.
No changes were made to the NRC Tribal Policy Statement or Tribal
Protocol Manual as a result of the comment.
Comment 4.3. [The commenter provided input on policy principle 2,
``The NRC Recognizes and Is Committed to a Government-to-Government
Relationship with Indian Tribes.'']
``It should be noted that there are differences among tribes and
that there is no `one size, fits all' approach when it comes to
interacting with and understanding Indian tribes. Each tribe is unique
and should be treated as such. There should not be a `standard process'
as recommended by some commenters.''
Response 4.3. The NRC agrees with this comment. The NRC recognizes
distinctions between Federally recognized Tribes, as noted in the
Tribal Protocol Manual. The NRC Tribal Policy Statement does not
prescribe a ``standard process'' for interacting with Tribes. Instead,
it identifies policy principles that guide the NRC's interactions with
Indian Tribes.
No changes were made to the NRC Tribal Policy Statement as a result
of the comment.
5. Additional Comments
Comment 5.1. ``The Nuclear Regulatory Commission should look to the
policies and practices of the Environmental Protection Agency [EPA] in
developing its relationship with tribal governments. In particular, the
EPA identified certain tribal governments to be granted with the same
treatment as states, allowing the tribes to have primacy in civil
jurisdiction with regards to enforcement of EPA regulations on tribal
lands. The NRC should consider implementing a similar policy with some
or all tribal governments.''
Response 5.1. The NRC disagrees with this comment. Unlike States,
the AEA does not authorize Tribal governments to assume regulatory
authority over AEA radioactive material. However, the NRC has treated
Federally recognized Tribes in a similar manner to States in some
instances. For example, Tribal governments can participate in a program
to receive advance notification of shipments of certain types of
radioactive material and spent nuclear fuel under the Tribal Advance
Notification Rule.
No change has been made to the NRC Tribal Policy Statement as a
result of the comment.
Comment 5.2. ``NRC needs to be committed to the Tribal Policy
Statement. If not, policies can be easily side-stepped. NRC needs to
implement these policies.''
Response 5.2. The NRC agrees with this comment. The Commission
approved a Tribal Policy Statement Implementation Plan in March 2015
(ADAMS Accession No. ML15078A039), which aligns the agency's Tribal
activities with policy principles in the NRC Tribal Policy Statement.
The NRC staff will utilize the plan to implement the NRC Tribal Policy
Statement, and will update it, as appropriate.
No change has been made to the NRC Tribal Policy Statement as a
result of this comment.
Comment 5.3. ``The NRC should encourage tribal participation on
working groups.''
Response 5.3. The NRC agrees with this comment. The NRC will
consider inviting Tribes to participate on working groups related to
regulatory actions that have substantial direct effects on one or more
Indian Tribes, as appropriate.
No change has been made to the NRC Tribal Policy Statement as a
result of the comment.
Comment 5.4. ``As subject-matter experts, the NRC will invite
tribal representatives to participate on working groups developed for
those activities that have the potential of impacting tribal interests,
including but not limited to: Integrated Performance Evaluation Program
[(IMPEP)] Reviews, Rule-making and other related activities impacting
our tribal governments.''
Response 5.4. The NRC disagrees in part and agrees in part with
this comment. The NRC disagrees with the threshold for Tribal working
group participation set by the commenter's language, ``for those
activities that have the potential of impacting Tribal interests.'' The
NRC agrees that it may invite Tribal representatives to participate on
working groups on matters that have substantial direct effects on one
or more Indian Tribes, as appropriate. This is consistent with Policy
Principle 3 on the NRC outreach to Indian Tribes, which states ``The
NRC will encourage Tribal governments to communicate their preferences
to NRC staff during outreach activities and will seek to provide
information about opportunities for Tribal participation in NRC
meetings and advisory committees concerning NRC regulatory actions that
have substantial direct effects on one or more Indian Tribes, as
appropriate.'' Because the NRC does not have statutory authority to
enter into agreements with Tribes like it does with States, Tribal
government employees cannot participate in IMPEP Reviews as a review
team member in the same manner as an Agreement State government
employee. However, IMPEP reports are publically available and meetings
are open to the public.
No change has been made to the NRC Tribal Policy Statement as a
result of the comment.
Comment 5.5. ``Further, the NRC will present a yearly report to
tribal organizations describing all agency undertakings involving or
relating to Indian Tribes.''
Response 5.5. The NRC disagrees with this comment. The NRC has no
current plans to present an annual report describing ``all agency
undertakings involving or relating to Indian Tribes.'' As part of the
NRC Tribal Policy implementation Plan, the NRC staff prepares an annual
report of the agency's implementation of the NRC Tribal Policy
Statement, including some of the agency's Tribal-related interactions.
While the report is intended for internal use, it will be available on
the NRC's public Web site.
[[Page 2413]]
It will also be available in hardcopy, upon request.
No change has been made to the NRC Tribal Policy Statement as a
result of the comment.
Comment 5.6. ``Yes, extend the comment period.''
Response 5.6. The NRC agrees with this comment. The comment period
was extended for the NRC Tribal Policy Statement from 120 days to 180
days. The NRC considers comments received after the end of the comment
period if it is practical to do so, but the NRC is able to assure
consideration only for comments received on or before the comment
period closes.
No changes were made to the NRC Tribal Policy Statement as a result
of the comment.
Comment 5.7. ``We believe that the key to effectively implementing
the Tribal Policy Statement is via actions that will protect Indian
people, lands, and resources. Toward that end, an evaluation of
existing staff guidance is a strong start. This evaluation should not
be limited to the Tribal Protocol Manual, but all NRC staff guidance.''
Response 5.7. The NRC agrees with this comment. The NRC staff has
reviewed numerous agency and office-level guidance documents to
determine if changes were necessary before the Commission approves the
final NRC Tribal Policy Statement, ensuring that the guidance documents
are consistent with policy principles in the NRC Tribal Policy
Statement. The NRC will revise guidance, as needed, to reflect the
policy principles of the final NRC Tribal Policy Statement.
No change has been made to the NRC Tribal Policy Statement as a
result of the comment.
Comment 5.8. ``We suggest that the NRC work with a number of
tribes, representing a cross-section of NRC regulatory activities, as
well as the Bureau of Indian Affairs (BIA) to gain a better
understanding of Indian land tenure and the potential consequences of
contamination to Indian lands.
``We understand that the NRC may possibly be developing a guidance
document pertaining to the National Historic Preservation Act (NHPA)
Section 106 consultation. We applaud this effort. We recommend that the
NRC work with tribes, the Advisory Council on Historic Preservation
(ACHP), industry (limited participation), and possibly other federal
agencies to develop this guidance document.
``Finalizing and fully implementing the Tribal Protocol Manual will
also help NRC staff to be informed on tribal issues. Training,
awareness, and continuity of staff are also key elements of an
effective tribal program.''
Response 5.8. The first part of this comment related to Indian land
tenure is out of scope of the NRC Policy Statement. The NRC Tribal
Policy Statement is an agencywide, high-level document that encompasses
a broad range of NRC Tribal interactions, consultation, and outreach.
NRC disagrees in part and agrees in part with the remainder of the
comment. The NRC is in the process of finalizing NHPA Section 106
guidance for uranium recovery licensing. The NRC sought input from NRC
Staff, ACHP, Tribal governments, industry representatives, and members
of the public. The NRC published the draft Interim Staff Guidance,
FSME-ISG-02, ``Guidance for Conducting the Section 106 Process of the
National Historic Preservation Act for Uranium Recovery Licensing
Actions,'' for public review and comment on June 18, 2014 (79 FR
34792). On September 3, 2014, the NRC extended the comment period (79
FR 52374). The NRC staff is in the process of developing the final
program specific guidance. The NRC staff has reviewed staff guidance
documents and concluded that no guidance documents directly contradict
the NRC Tribal Policy Statement. The NRC staff review identified
documents that will need to be revised to be consistent with the final
NRC Tribal Policy Statement. Guidance will be updated as scheduled, and
will incorporate the final NRC Tribal Policy Statement, as appropriate.
The NRC staff has also developed and implemented a Tribal cultural
sensitivity training that is available agencywide.
No change has been made to the NRC Tribal Policy Statement as a
result of the comment.
6. Out of Scope Comments
Comment 6.1. ``We have reviewed the comment letters submitted in
2013 by other entities on the Tribal Protocol Manual (most notably
those representing the uranium mining industry) and found the comments
to be self-serving, ill-informed and insensitive [to] tribal history,
culture and tradition. These commenters complained that the Section 106
process was `too cumbersome, time consuming, and costly for the uranium
recovery industry' and that the pace of the consultation should be
accelerated and standardized. Moreover, the commenters suggested that
the NRC should not be making an exhaustive effort to identify all
potentially impacted Indian tribes. In other words, hurry up and get it
done!
The NRC has an obligation under the NHPA to ensure that its actions
do not have adverse impacts. The NRC also has an obligation to
federally recognized Indian tribes.
With regard to tribes delaying the process or lacking incentive to
work with the NRC, it should be noted that it can be a burden
(financially and technically) to effectively participate in NRC
proceedings.''
Response 6.1. This comment is out of scope of the NRC Tribal Policy
Statement because the comment centers on specific statutory
requirements to consult with Tribes under NHPA. The NRC Tribal Policy
Statement is an agencywide, high-level document that encompasses a
broad range of NRC Tribal interactions, consultation, and outreach. It
does not prescribe procedural requirements for fulfilling NHPA
consultation requirements. The NRC upholds all statutory obligations to
consult with Federally recognized Tribes, including consultation
responsibilities under the NHPA and NEPA.
No change has been made to the NRC Tribal Policy Statement as a
result of the comment.
Comment 6.2. ``The NEPA process (for either [an] EA [environmental
assessment] or EIS [environmental impact statement]) does not ensure
that environmental issues and concerns identified by the impacted
tribes will be addressed adequately, as EA's or EIS's are disclosure
tools that do not and cannot offer remedies or mitigation. It is
through the NRC's Atomic Safety and Licensing Board (ASLB) adjudicatory
process that identified issues can be addressed (if the Board admits
the affected tribe as an intervener because the tribe has articulated a
deficiency with an application before the NRC). Achieving intervener
status is a difficult and costly undertaking, given the high legal and
regulatory standards to be met. Nevertheless, this is a huge barrier
that many tribes cannot overcome and this should be recognized a severe
limitation to effective participation by any tribes impacted by NRC
licensing actions.''
Response 6.2. This comment is out of scope of the NRC Tribal Policy
Statement. The NRC Tribal Policy Statement is an agency-wide, high-
level document that encompasses a broad range of NRC Tribal
interactions, consultation, and outreach. It does not prescribe
procedural requirements for fulfilling NEPA Tribal consultations. The
process for achieving intervenor status before an NRC Atomic Safety and
Licensing Board (or other NRC adjudicator) is outside the scope of the
NRC Tribal Policy Statement. Under the
[[Page 2414]]
NRC Tribal Policy Statement, the NRC will provide timely notice and
consult in good faith with Tribal governments on NRC's regulatory
actions that have substantial direct effects on one or more Indian
Tribes. In addition, Tribes will have the opportunity to raise
environmental, historic, and cultural issues during the NEPA
environmental review and NHPA process. This process provides an
additional opportunity to address the Tribe's concerns with a proposed
licensing action. Good faith efforts to consult with Indian Tribes
under the NRC Tribal Policy Statement or during the NEPA and NHPA
review process may also have the potential to resolve issues outside
the hearing process.
No change has been made to the NRC Tribal Policy Statement as a
result of the comment.
Comment 6.3. ``In 2013, the NRC finalized its advance notification
rule (10 CFR 71.97) that allows Indian tribes to receive advance
notification of shipments of irradiated reactor fuel through
reservation land (not Trust lands). To participate, interested tribes
must `opt in' and complete safeguards training. Although the NRC was
very flexible with some of the prerequisites, the fact that no tribe is
currently participating in this pre-notification program should cause
the NRC to pause and ask why. It could be that it is just too
cumbersome for the tribes to participate, due to a lack of resources
(staff, financial, etc.) or competing priorities for resources.''
Response 6.3. This comment is out of scope of the NRC Tribal Policy
Statement. The NRC Tribal Policy Statement is an agencywide, high-level
document that encompasses a broad range of NRC Tribal interactions,
consultation, and outreach. The Tribal Advance Notification Rule
amended NRC regulations to require licensees to provide advance
notification to participating Federally recognized Tribal governments
regarding shipments of irradiated reactor fuel and certain types of
nuclear waste for any shipment that passes within or across their
reservations (77 FR 34194). After reviewing public comments received
during the development of the Tribal Advance Notification Rule, the NRC
staff concluded that Tribes should have the option of whether to opt
into the program because the program requires training, certain
equipment, and has civil and criminal penalties for non-compliance. As
of July of 2016, one Indian Tribe completed the process of enrolling in
the Tribal Advance Notification Program. A list of participating Tribes
is maintained on the NRC Web site at http://www.nrc.gov/about-nrc/state-tribal/tribal-advance-notification.html#tribes.
No change has been made to the NRC Tribal Policy Statement as a
result of the comment.
Comment 6.4. ``Principle No. 4: An Example of Lack of
Implementation. In 2012, the NRC proposed an Advance Notification Rule,
by which Indian Tribes would receive advance notification of shipments
of irradiated reactor fuel and other nuclear wastes transported across
their reservations. (``Tribal Advance Notification'' at http://www.nrc.gov/about-nrc/state-tribal/tribal-advance-notification.html#def
(last visited on April 12, 2015).)
``Yet, the NRC claims that `there are no tribes that have the
prerequisite required to receive advance notifications.' (``Tribal
Advance Notification'' at http://www.nrc.gov/about-nrc/state-tribal/tribal-advance-notification.html#def_ (last visited on April 12,
2015).)
``Nuclear waste is being transported through a number of
reservations weekly by unmarked trucks (e.g., missing placards) and
Indian Tribes of these reservations have not been made privy to the
transportation schedules for the waste. Knowing the schedule would
enable Tribes to protect their reservation environments by having
emergency response teams in place in case of any accidental waste
releases. Regardless of whether Tribes meet the aforementioned
prerequisite, the NRC should still be actively consulting with Tribes
on shipments across their reservations and other NRC actions having
potentially substantial air quality and other direct effects on one or
more Tribes.
``The NTAA has also seen several inconsistencies in the reporting
of the number of regulated facilities in Indian Country. The NTAA finds
that, an update of NRC's maps or inventories of regulated facilities,
would help the NRC to more effectively contact and identify Tribes
about NRC regulatory and non-regulatory actions having substantial air
quality and other direct effects on one or more Tribes.''
Response 6.4. This comment is out of scope of the NRC Tribal Policy
Statement in part. The NRC Tribal Policy Statement is an agencywide,
high-level document that encompasses a broad range of NRC Tribal
interactions, consultation, and outreach. The Tribal Advance
Notification Rule amended NRC regulations to require licensees to
provide advance notification to participating Federally recognized
Tribal governments regarding shipments of irradiated reactor fuel and
certain types of nuclear waste for any shipment that passes within or
across their reservations (77 FR 34194). After reviewing public
comments received during the development of the Tribal Advance
Notification Rule, the NRC staff concluded that Tribes should have the
option of whether to opt into the program because the program requires
training, certain equipment, and has civil and criminal penalties for
non-compliance. As of July of 2016, one Indian Tribe completed the
process of enrolling in the Tribal Advance Notification Program. A list
of participating Tribes is maintained on the NRC Web site at: http://www.nrc.gov/about-nrc/state-tribal/tribal-advance-notification.html#tribes. The NRC continues to update maps of Tribal
reservation and trust lands within a 50-mile radius of NRC-regulated
nuclear power plants. The NRC staff is developing tools that they may
utilize to identify Tribal lands near other NRC-regulated facilities.
No change has been made to the NRC Tribal Policy Statement as a
result of the comment.
Comment 6.5. ``Hire natives to be liaisons with our own people.
Create trust, transparency and rapport. These people have been deceived
and betrayed since the white man stepped foot on this land. It's very
important to really reach the native people and it's high time they got
many seats at the round table. Thank you for your work and hope it can
improve to genuinely include First Nation's peoples.''
Response 6.5. This comment is out of scope of the NRC Tribal Policy
Statement. The NRC Tribal Policy Statement is an agencywide, high-level
document that encompasses a broad range of NRC Tribal interactions,
consultation, and outreach. However, the NRC does seek to foster a
diverse workplace. The Office of the Chief Human Capital Officer
participates in extensive recruitment, including the American Indian
Science and Engineering Society's annual conference. Additionally, the
NRC's Office of Small Business and Civil Rights promotes diversity by
sponsoring Equal Employment Opportunity Advisory Committees, including
the Native American Advisory Committee (NAAC). The NAAC recommends
initiatives and approaches to attract qualified Native Americans and
Alaskan Natives to the NRC and to support and retain the Native
American and Alaskan Native employees of the NRC. The Committee has
also forged a working relationship with the American Indian Science and
Engineering Society through a memorandum of understanding. For
clarification, the
[[Page 2415]]
listed activities do not cover the ``First Nations [of Canada]''
referenced by the commenter.
No change has been made to the NRC Tribal Policy Statement as a
result of the comment.
Comment 6.6. ``Lastly, the NRC will ensure there are mechanisms in
place to prevent an unfunded mandate upon any tribe, including but not
limited to requirements of acquiring GSA safe or other supplies or
materials as stipulated in the in the advance notification rule.''
Response 6.6. This comment is out of scope of the NRC Tribal Policy
Statement. The NRC Tribal Policy Statement is an agencywide, high-level
document that encompasses a broad range of NRC Tribal interactions,
consultation, and outreach. The Tribal Advance Notification Rule
amended NRC regulations to require licensees to provide advance
notification to participating Federally recognized Tribal governments
regarding shipments of irradiated reactor fuel and certain types of
nuclear waste for any shipment that passes within or across their
reservations (June 11, 2012; 77 FR 34194). After reviewing public
comments received during the development of the Tribal Advance
Notification Rule, the NRC staff concluded that Tribes should have the
option of whether to opt into the program because the program requires
training, certain equipment, and has civil and criminal penalties for
non-compliance. The NRC is committed to ensuring that Tribal Nations
are informed of the requirements for receiving Safeguards Information
and sensitive information. It is the responsibility of all Tribal
governments that volunteer to participate in the Tribal Advance
Notification program to ensure that the information is secure and used
in a manner that will provide for the protection of the public health
and the environment.
No change has been made to the NRC Tribal Policy Statement as a
result of the comment.
Comment 6.7. ``It is important to note, even though NRC has
expanded educational tools for Radiation Workshops as open
communication protocol, there is a need for Native speakers to provide
the information. Non-English speakers attend the workshops and do not
comprehend the contents. More workshops related to DOE Radiation site
locations throughout Indian Country is strongly urged that NRC has
oversight. Many of these sites are under DOE-LM [DOE Office of Legacy
Management] and not necessarily under DOE-EM [DOE Office of
Environmental Management] as it seems there is a communication barrier,
and updated cleanups by site is missing, especially with transport of
radioactive sludge from holding/evaporation ponds.
``Many transport routes go through Native communities, and are not
part of the DOE-EM START [Stakeholder Tool for Assessing Radioactive
Transportation] programming. It may be missing out of other regulatory
components as 108(c) under DOE for transport. Consideration for links
for the public with RECA [Radiation Exposure Compensation Act] benefits
and DownWinder Web sites under NRC is important as many suffer the
health devastation of cancer due to radiation.''
Response 6.7. This comment is out of scope of the NRC Tribal Policy
Statement. The NRC Tribal Policy Statement is an agencywide, high-level
document that encompasses a broad range of NRC Tribal interactions,
consultation, and outreach. Previously the NRC staff received similar
feedback on the inclusion of non-English speakers in the NRC's Tribal
Training Program. The NRC will consider the inclusion of Native
speakers when arranging future training sessions for Tribes. DOE-EM
START programming is not administered by the NRC, and therefore is not
covered by the NRC Tribal Policy Statement. The RECA benefits are
administered by the Department of Justice's program for claims relating
to atmospheric nuclear testing and claims relating to uranium industry
employment. The NRC does not oversee the program, make related
determinations, or administer payment of claims. The Downwinder Web
sites are maintained by the U.S. Department of Health and Human
Services and do not fall under the NRC's jurisdiction.
No change has been made to the NRC Tribal Policy Statement as a
result of the comment.
Comment 6.8. [The commenter quoted policy principle 5, ``The NRC
Will Coordinate with Other Federal Agencies,'' stating ``When the
Commission's action involves other Federal agencies, the NRC will
perform its Tribal consultation jointly with other Federal agencies, as
appropriate.''] ``This will be especially important if/when shipments
of spent nuclear fuel to a federal repository or an interim storage
facility commence. Shipments of spent nuclear fuel will involve the
NRC, the US Department of Energy (DOE) and the US Department of
Transportation (DOT). Equally important is the engagement of federal
agencies involved in the uranium mining regulation (i.e., the Bureau of
Indian Affairs or the Bureau of Land Management).''
Response 6.8. This comment is out of scope of the NRC Tribal Policy
Statement. The NRC Tribal Policy Statement is an agencywide, high-level
document that encompasses a broad range of NRC Tribal interactions,
consultation, and outreach. The NRC currently coordinates with other
Federal agencies, as appropriate, on issues within its regulatory
jurisdiction, including the shipment of spent nuclear fuel and
licensing and regulation of uranium recovery facilities. Currently,
there is neither a Federal repository for spent nuclear fuel nor an
interim storage facility but the NRC will follow the Tribal Policy
Statement and appropriate regulations when processing any applications
for these facilities. The NRC does have regulations that govern the
transport of spent nuclear fuel and implements them in coordination
with relevant Federal agencies, including the DOE and the DOT. The NRC
does not have regulatory authority over uranium mining facilities.
However, the NRC does have regulatory authority over uranium recovery
and uranium milling facilities and coordinates with other Federal
agencies, as appropriate, including the Bureau of Land Management and
EPA, during the consultation process.
No change has been made to the NRC Tribal Policy Statement as a
result of the comment.
V. Procedural Requirements
Congressional Review Act Statement
This final NRC Tribal Policy Statement is a rule as defined in the
Congressional Review Act (5 U.S.C. 801-808). However, the Office of
Management and Budget has not found it to be a major rule as defined in
the Congressional Review Act.
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.).
Dated at Rockville, Maryland, this 3rd day of January, 2017.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
Tribal Policy Statement
The purpose of this Tribal Policy Statement is to set forth
principles to be followed by the U.S. Nuclear Regulatory Commission
(NRC) to promote effective government-to-government interactions with
Federally recognized American Indian and Alaska Native Tribes, and to
[[Page 2416]]
encourage and facilitate Tribal involvement in the areas that the NRC
has jurisdiction. It seeks to provide agencywide 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 with or adhere to the NRC
Tribal Policy Statement. This NRC Tribal Policy Statement is based on
the United States Constitution, treaties, statutes, Executive Orders,
judicial decisions, and the unique relationship between Indian Tribes
and the Federal government.\1\
---------------------------------------------------------------------------
\1\ This Tribal Policy Statement 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.
---------------------------------------------------------------------------
The following principles will guide the NRC's interaction with
Indian Tribes:
1. The NRC Recognizes the Federal Trust Relationship With and Will
Uphold Its Trust Responsibility to Indian Tribes
The NRC shares the Federal government's unique Trust Relationship
with, and Trust Responsibility to, Indian Tribes. Under the Federal
Trust Doctrine, the United States--and the individual agencies of the
Federal government--owe a fiduciary duty to Indian Tribes. The nature
of that duty depends on the underlying substantive laws (i.e.,
treaties, statutes, agreements) creating the duty. The NRC exercises
its Trust Responsibility in the context of its authorizing statutes
including the Atomic Energy Act, the Energy Reorganization Act of 1974,
the Nuclear Waste Policy Act of 1982, the Low-Level Radioactive Waste
Policy Act of 1985, and the Uranium Mill Tailings Radiation Control Act
of 1978, as amended. As an independent regulatory agency that does not
hold in trust Tribal lands or assets or provide services to Federally
recognized Tribes, the NRC fulfills its Trust Responsibility through
implementation of the principles of the Tribal Policy Statement, by
providing protections under its implementing regulations, and through
recognition of additional obligations consistent with other applicable
treaties and statutory authorities.
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 with inherent sovereign powers over their members and
territory, consistent with applicable statutes and authorities.
3. The NRC Will Conduct Outreach to Indian Tribes
The NRC will conduct outreach to keep Indian Tribes informed about
the agency's actions and plans, as appropriate, related to its
regulatory actions that have substantial direct effects on one or more
Indian Tribes. The NRC will participate in national and regional Tribal
conferences and summits hosted by Federal agencies, Tribal governments,
and Tribal organizations, as appropriate. The NRC will encourage Tribal
governments to communicate their preferences to NRC staff during
outreach activities and will seek to provide information about
opportunities for Tribal participation in NRC meetings and advisory
committees concerning NRC regulatory actions that have substantial
direct effects on one or more Indian Tribes, as appropriate.
4. The NRC Will Engage in Timely Consultation
The NRC will provide timely notice and consult in good faith with
Tribal governments on NRC's regulatory actions that have substantial
direct effects on one or more Indian Tribes as well as those regulatory
actions for which Tribal consultation is required under Federal
statute.
Tribal officials may also request that the NRC engage in
consultation with them on matters that have not been identified by the
NRC to have substantial direct effects on one or more Indian Tribes as
well as those regulatory actions for which Tribal consultation is not
required under Federal statute. The NRC will make efforts to grant 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
as soon as practicable. The NRC will consult in good faith throughout
the agency decisionmaking process and develop and maintain effective
communication, coordination, and cooperation with Indian Tribes. The
NRC representatives for consultations with Tribal officials or
representatives will be of an appropriate rank and the level of
interaction will be commensurate with the circumstances. The
appropriate level of interaction will be determined by a discussion
between the NRC and Tribal governments, and program office consultation
procedures and guidance. Participating Tribal and NRC representatives
will serve as respective decisionmakers, based on the established
agenda and to the extent possible.
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 and to the extent possible.
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 reach out to
States to identify the appropriate State-recognized Tribes to invite to
participate in its regulatory process, including opportunities related
to rulemaking, licensing and decommissioning.
Designated Official and Tribal Liaisons
The Deputy Executive Director for Materials, Waste, Research,
State, Tribal, Compliance, Administration, and Human Capital Programs
serves as the NRC's designated official for Tribal consultations. The
designated official will ensure that the agency program personnel have
considered the Tribal implications related to their responsibilities
within the NRC's jurisdiction. The designated official will also make
efforts to facilitate meaningful and timely consultation and
coordination regarding NRC's regulatory actions that have substantial
direct effects on one or more Indian Tribes as well as those regulatory
actions for which Tribal consultation is required under Federal
statute.
The designated official will be supported by staff who have
functional responsibility to serve as intergovernmental liaisons to
Indian Tribes. 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
[[Page 2417]]
regarding programmatic inquiries, and will facilitate the appropriate
level of communication and exchange of information between Tribal
officials and the NRC staff. The Tribal liaisons will also educate the
NRC staff about Tribal issues including cultural sensitivity and the
Federal Trust Responsibility. The designated official will have the
authority to delegate tasks to the NRC Tribal liaisons as he/she deems
fit.
[FR Doc. 2017-00091 Filed 1-6-17; 8:45 am]
BILLING CODE 7590-01-P