[Federal Register Volume 84, Number 206 (Thursday, October 24, 2019)]
[Rules and Regulations]
[Pages 56940-56942]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-23099]

[[Page 56940]]



Federal Energy Regulatory Commission

18 CFR Part 2

[Docket No. PL20-1-000]

Revision to Policy Statement on Consultation With Indian Tribes 
in Commission Proceedings

AGENCY: Federal Energy Regulatory Commission, Department of Energy.

ACTION: Final rule.


SUMMARY: The Commission is revising its Policy Statement on 
Consultation with Indian Tribes in Commission Proceedings by adding a 
specific reference to treaty rights; a statement that the Commission 
addresses tribal input in its NEPA documents and orders, and 
consultation with Alaska Native Corporations.

DATES: Effective November 25, 2019.

FOR FURTHER INFORMATION CONTACT: Elizabeth Molloy, Office of the 
General Counsel, 888 First Street NE, Washington, DC 20426; 202-502-
8771; [email protected].

    1. By this order, the Commission is amending its Policy Statement 
on Consultation with Indian Tribes in Commission Proceedings (policy 
statement) \1\ by adding a specific reference to treaty rights and 
noting that the Commission addresses tribal input in its National 
Environmental Policy Act (NEPA) documents and orders. In addition, the 
Commission is adding consultation with Alaska Native Corporations to 
the policy statement consistent with Congress' requirement that all 
Federal agencies consult with Alaska Native corporations on the same 
basis as Indian tribes under Executive Order No. 13175.

    \1\ Policy Statement on Consultation with Indian Tribes in 
Commission Proceedings, Order No. 635, 104 FERC ] 61,108 (2003). The 
policy statement is codified at 18 CFR 2.1c (2019).

Background and Discussion

    2. In 2003, the Commission issued its Policy Statement on 
Consultation with Indian Tribes in Commission Proceedings. The 2003 
policy statement recognizes the unique relationship between the Federal 
government and Indian tribes as defined by treaties, statutes, and 
judicial decisions and acknowledges the Commission's trust 
responsibilities. It states that the Commission will endeavor to work 
with the tribes on a government-to-government basis and will seek to 
address the effects of proposed projects on tribal rights and resources 
through consultation pursuant to trust responsibilities, the statutes 
governing the Commission's authority,\2\ and in the Commission's 
environmental and decisional documents. Noting that the Commission 
functions as a neutral, quasi-judicial body and as such is bound by the 
Administrative Procedure Act and Commission rules regarding off-the-
record communications,\3\ it states that the Commission will assure 
tribal issues and interests are considered in making decisions. For the 
hydroelectric program, it also states that the Commission will notify 
tribes before or at the time the licensee files its notice of intent, 
and will consider comprehensive plans prepared by tribes or intertribal 

    \2\ The policy statement notes that the statutes governing the 
Commission's authority primarily consist of the Federal Power Act, 
the Natural Gas Act, the Public Utilities Regulatory Policies Act of 
1978, the Interstate Commerce Act, the Outer Continental Shelf Lands 
Act, National Environmental Policy Act, and Section 106 of the 
National Historic Preservation Act.
    \3\ 18 CFR 385.2201 (2019).

    3. In March 2017, the U.S. Government Accountability Office (GAO) 
commenced an engagement on tribal consultation practices, in which it 
sought to review tribal consultation practices of 21 federal agencies 
involved in permitting, review, or funding of infrastructure 
projects.\4\ The engagement was focused on federal agencies' compliance 
with government to government consultation and coordination 
responsibilities under Executive Order 13175; tribal consultation 
practices used by federal agencies during permitting and developmental 
processes; definition and consistent application of ``meaningful tribal 
consultations'' by federal agencies; opportunities for tribal input 
into contiguous, off-reservation developments that may result in 
pollution or other impacts on their land; and appeal options, if any, 
available to tribes.

    \4\ The 21 federal agencies (which included 3 independent 
regulatory agencies, 3 departments, and 15 component agencies) were: 
The Department of Agriculture's Forest Service and Rural 
Development; Department of Commerce's National Oceanic and 
Atmospheric Administration (NMFS); Department of Defense's Army 
Corps of Engineers (Corps); Department of Energy (DOE); 
Environmental Protection Agency (EPA); Federal Communications 
Commission (FCC); Federal Energy Regulatory Commission (FERC or 
Commission); Department of Homeland Security's Coast Guard (Coast 
Guard) and Federal Emergency Management Agency (FEMA); Department of 
Housing and Urban Development (HUD); Department of the Interior's 
Bureau of Land Management (BLM), Bureau of Ocean Energy Management 
(BOEM), Bureau of Reclamation (Reclamation), Fish and Wildlife 
Service (FWS), and National Park Service (NPS); Nuclear Regulatory 
Commission (NRC); and Department of Transportation's Federal 
Aviation Administration (FAA), Federal Highway Administration (FHA), 
Federal Railroad Administration (FRA), and Federal Transit 
Administration (FTA).

    4. In March 2019, GAO issued its final report entitled, ``Tribal 
Consultation: Additional Federal Actions Needed for Infrastructure 
Projects (GAO-19-22).'' \5\ GAO directed one of the 22 recommendations 
made in the report to the Commission.\6\ Specifically, the GAO 
recommendation stated that ``[t]he Federal Energy Regulatory Commission 
should document in its tribal consultation policy how agency officials 
are to communicate with tribes about how their input from consultation 
was considered in agency decisions on infrastructure projects.'' \7\

    \5\ Tribal Consultation: Additional Federal Actions Needed for 
Infrastructure Projects (GAO-19-22), March 2019 (GAO Report).
    \6\ The report made a similar recommendation regarding 13 of the 
other 21 agencies: the Department of Agriculture's Rural 
Development; Corps; DOE; FCC; DHS; FEMA; HUD; BOEM, Reclamation, FWS 
and NPS; NRC; and DOT.
    \7\ GAO Report at 58.

A. Communication

    5. As noted above, the Commission functions as a neutral, quasi-
judicial body and as such is bound by the Administrative Procedure Act 
and Commission rules regarding off-the-record communications. In order 
to comply with the requirements that decisions be on the record, it has 
been the Commission's practice to address tribal input and concerns in 
its environmental documents and decisions. However, the Commission's 
policy statement does not expressly include language to that effect. 
Therefore, the Commission is adding language stating that the 
Commission will set forth in its environmental documents and orders how 
tribe's input from consultation was considered in agency decisions on 
infrastructure projects.

B. Treaty Rights

    6. The Commission, in its final rule on Hydroelectric Licensing 
under the Federal Power Act issued contemporaneously with the policy 
statement, stated that, ``tribal consultation pursuant to our trust 
responsibility encompasses more than implementation of [National 
Historic Preservation Act] Section 106. It includes every issue of 
concern to an Indian tribe related to a treaty, statute, or executive 
order where the Commission can, through the exercise of its authorities 
under the FPA, fulfill its

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trust responsibility.'' \8\ The policy statement states that the 
``Commission, in keeping with its trust responsibility, will assure 
that tribal concerns and interests are considered whenever the 
Commission's actions or decisions have the potential to adversely 
affect Indian tribes or Indian trust resources.'' \9\

    \8\ Hydroelectric Licensing under the Federal Power Act, Order 
No. 2002, 104 FERC ] 61,109, at P 279 (2003), order on reh'g, 106 
FERC ] 61,037 (2004).
    \9\ 18 CFR 2.1c(e).

    7. While the Commission already considers the effect of actions on 
treaty rights in its NEPA and decision documents,\10\ the Commission is 
taking this opportunity to clarify that point by adding specific 
mention of treaty rights in the policy statement.

    \10\ See e.g. Public Utility District No. 1 of Snohomish County, 
Washington, 146 FERC ] 61,197, reh'g denied, 149 FERC ] 61,206 
(2014); PacifiCorp, 133 FERC ] 61,232 (2010), order on reh'g, 135 
FERC ] 61,064 (2011); and Bradwood Landing LLC, 124 FERC ] 61,257 
(2008), order on reh'g, 129 FERC ] 61,245 (2009).

C. Consultation With Alaska Native Corporations

    8. The policy statement addresses consultation with federally-
recognized Indian tribes (including Alaska Native tribes, villages, and 
communities) that the Secretary of the Interior acknowledges to exist 
as an Indian tribe pursuant to the Federally Recognized Indian Tribe 
List Act of 1994.\11\ It does not, however, address consultation with 
Corporations established pursuant to the Alaska Native Claims 
Settlement Act (ANCSA Corporations).\12\

    \11\ 25 U.S.C. 479a.
    \12\ 43 U.S.C. 1601, et seq. An ANCSA Corporation is defined as 
any Alaska Native village corporation, urban corporation, or 
regional corporation as defined in, or established pursuant to, the 
Alaska Native Claims Settlement Act. 43 U.S.C. 1602.

    9. After the Commission issued its policy statement, Congress 
directed that ``[t]he Director of the Office of Management and Budget 
[and all Federal agencies] shall hereafter consult with Alaska Native 
corporations on the same basis as Indian tribes under Executive Order 
No. 13175.'' \13\

    \13\ Consolidated Appropriations Act, 2004, Pub. L. 108-199, 
Div. II. Sec. 161, 118 Stat. 3, 452 (2004) as amended by 
Consolidated Appropriations Act, 2005, Pub. L. 108-447, Div. H., 
Title V. Sec. 518, 118 Stat. 2809, 3267 (2004).

    10. To be consistent with Congress' directive, the Commission is 
updating its policy to include ANCSA Corporations. The Commission 
recognizes and respects the distinct, unique, and individual cultural 
traditions and values of Alaska Native peoples and the statutory 
relationship between ANCSA Corporations and the Federal Government.
    11. The Commission distinguishes the Federal relationship to ANCSA 
Corporations from the government-to-government relationship between the 
Federal Government and federally recognized Indian Tribes in Alaska and 
elsewhere, and the update to the policy will not diminish in any way 
that relationship and the consultation obligations towards federally 
recognized Indian Tribes.

Information Collection Statement

    12. The Paperwork Reduction Act and implementing regulations of the 
Office of Management and Budget (OMB) require OMB to approve certain 
information collection requirements imposed by agency rule.\14\ 
However, this Revised Policy Statement does not contain or modify any 
information collection requirements, and is therefore not subject to 
OMB approval.

    \14\ 5 CFR 1320.12 (2019).

Environmental Analysis

    13. The Commission is required to prepare an Environmental 
Assessment or an Environmental Impact Statement for any action that may 
have a significant adverse effect on the human environment.\15\ Part 
380 of the Commission's regulations lists exemptions to the requirement 
to draft an Environmental Assessment or Environmental Impact Statement, 
and this revised policy statement qualifies under the exemption for 
procedural, ministerial or internal administrative actions.\16\

    \15\ Regulations Implementing the National Environmental Policy 
Act of 1969, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. 
& Regs. ] 30,783 (1987).) (cross-referenced at 41 FERC ] 61,284).
    \16\ 18 CFR 380.4(a)(1) (2019).

Regulatory Flexibility Act

    14. The Regulatory Flexibility Act of 1980 (RFA) \17\ generally 
requires a description and analysis of final rules that will have 
significant economic impact on a substantial number of small entities. 
Rules that are exempt from the notice and comment requirements of 
section 553(b) of the Administrative Procedure Act are exempt from the 
RFA requirements. This revised policy statement concerns matters of 
internal agency procedure and, therefore, an analysis under the RFA is 
not required.

    \17\ 5 U.S.C. 601-612 (2018).

Document Availability

    15. In addition to publishing the full text of this document in the 
Federal Register, the Commission provides all interested persons an 
opportunity to view and/or print the contents of this document via the 
internet through the Commission's Home Page (http://www.ferc.gov) and 
in the Commission's Public Reference Room during normal business hours 
(8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE, Room 2A, 
Washington, DC 20426.
    16. From the Commission's Home Page on the internet, this 
information is available on eLibrary. The full text of this document is 
available on eLibrary in PDF and Microsoft Word format for viewing, 
printing, and/or downloading. To access this document in eLibrary, type 
the docket number excluding the last three digits of this document in 
the docket number field.
    17. User assistance is available for eLibrary and the Commission's 
website during normal business hours from FERC Online Support at (202) 
502-6652 (toll free at 1-866-208-3676) or email at 
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at 
[email protected].

Effective Date and Congressional Notification

    18. This revised policy statement is effective November 25, 2019 
without a period for public comment. Under 5 U.S.C. 533(b), notice and 
comment procedures are unnecessary where a rulemaking concerns only 
agency procedure or practice, or where the agency finds that notice and 
comment is unnecessary. This revised policy statement concerns only 
matters of agency procedure, and will not significantly affect 
regulated entities or the general public.
    19. The Revised Policy Statement will be provided to the Congress 
and Government Accountability Office.

List of Subjects in 18 CFR Part 2

    General policy and interpretations.

    By the Commission.

    Issued: October 17, 2019.
Kimberly D. Bose,

    In consideration of the foregoing, the Commission is amending part 
2, chapter I, title 18, Code of Federal Regulations, as follows.


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

    Authority:  5 U.S.C. 601; 15 U.S.C. 717-717z, 3301-3432; 16 
U.S.C. 792-828c, 2601-2645; 42 U.S.C. 4321-4370h, 7101-7352.

2. In Sec.  2.1c:
a. In paragraph (a), add ``and Alaska Native Claims Settlement Act 

[[Page 56942]]

Corporations'' after ``Indian tribes'' in the first sentence.
b. In paragraph (c), add ``and with ANCSA Corporations in a similar 
manner,'' after ``government-to-government basis,'' in the first 
c. In paragraph (e), remove ``or Indian trust resources'' and add in 
its place ``Indian trust resources, or treaty rights''.
d. Add a sentence to the end of paragraph (e).
    The addition reads as follows:

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

* * * * *
    (e) * * * The Commission will use the agency's environmental and 
decisional documents to communicate how tribal input has been 
* * * * *
[FR Doc. 2019-23099 Filed 10-23-19; 8:45 am]