Revision to Policy Statement on Consultation with Indian Tribes in Commission Proceedings | Errata Notice

169 FERC ¶ 61,036

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

18 CFR Part 2

[Docket No. PL20-1-000; Order No. 863]

Revision to Policy Statement on Consultation with

Indian Tribes in Commission Proceedings

(Issued October 17, 2019)

AGENCY: Federal Energy Regulatory Commission.

ACTION: Policy, amendment.

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.

EFFECTIVE DATE: This policy is effective [insert 30 days after date of publication

in the Federal Register].

FOR FURTHER INFORMATION CONTACT:

Elizabeth Molloy

Office of the General Counsel

888 First Street, NE

Washington, DC 20426

202-502-8771

elizabeth.molloy@ferc.gov

SUPPLEMENTARY INFORMATION

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UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Before Commissioners: Neil Chatterjee, Chairman;

Richard Glick and Bernard L. McNamee.

Revision to Policy Statement on Consultation with

Indian Tribes in Commission Proceedings

Docket No. PL20-1-000

REVISED POLICY STATEMENT

ORDER NO. 863

(Issued October 17, 2019)

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

REVISED POLICY STATEMENT

ORDER NO. 863

(Issued October 17, 2019)

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).

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Background and Discussion

2.

In 2003, the Commission issued its Policy Statement on Consultation with Indian

Tribes in Commission Proceedings. The 2003 policy statement recognizes the unique

relationship between the Federal government and Indian tribes as defined by treaties,

statutes, and judicial decisions and acknowledges the Commission's trust responsibilities.

It states that the Commission will endeavor to work with the tribes on a government-to-

government basis and will seek to address the effects of proposed projects on tribal rights

and resources through consultation pursuant to trust responsibilities, the statutes

governing the Commission's authority,2 and in the Commission's environmental and

decisional documents. Noting that the Commission functions as a neutral, quasi-judicial

body and as such is bound by the Administrative Procedure Act and Commission rules

regarding off-the-record communications,3 it states that the Commission will assure tribal

issues and interests are considered in making decisions

erning 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

2 The policy statement notes that the statutes governing the Commission’s

authority primarily consist of the Federal Power Act, the Natural Gas Act, the Public

Utilities Regulatory Policies Act of 1978, the Interstate Commerce Act, the Outer

Continental Shelf Lands Act, National Environmental Policy Act, and Section 106 of the

National Historic Preservation Act.

3 18 CFR 385.2201 (2019).

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notice of intent, and will consider comprehensive plans prepared by tribes or intertribal

organizations.

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

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).

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gement (BOEM), Bureau of

Reclamation (Reclamation), Fish and Wildlife Service (FWS), and National Park Service

(NPS); Nuclear Regulatory Commission (NRC); and Department of Transportation’s

Federal Aviation Administration (FAA), Federal Highway Administration (FHA),

Federal Railroad Administration (FRA), and Federal Transit Administration (FTA).

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4.

In March 2019, GAO issued its final report entitled, “Tribal Consultation:

Additional Federal Actions Needed for Infrastructure Projects (GAO-19-22).”5 GAO

directed one of the 22 recommendations made in the report to the Commission.6

Specifically, the GAO recommendation stated that “[t]he Federal Energy Regulatory

Commission should document in its tribal consultation policy how agency officials are to

communicate with tribes about how their input from consultation was considered in

agency decisions on infrastructure projects.”7

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

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

5 Tribal Consultation: Additional Federal Actions Needed for Infrastructure

Projects (GAO-19-22), March 2019 (GAO Report).

6 The report made a similar recommendation regarding 13 of the other

21 agencies: the Department of Agriculture’s Rural Development; Corps; DOE;

FCC; DHS; FEMA; HUD; BOEM, Reclamation, FWS and NPS; NRC; and DOT.

7 GAO Report at 58.

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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 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

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.

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).

10 See e.g. Public Utility District No

uments,10 the Commission is taking this opportunity to clarify

that point by adding specific mention of treaty rights in the policy statement.

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).

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

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C.

Consultation with Alaska Native Corporations

8.

The policy statement addresses consultation with federally-recognized Indian

tribes (including Alaska Native tribes, villages, and communities) that the Secretary of

the Interior acknowledges to exist as an Indian tribe pursuant to the Federally Recognized

Indian Tribe List Act of 1994. 11 It does not, however, address consultation with

Corporations established pursuant to the Alaska Native Claims Settlement Act (ANCSA

Corporations).12

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

10.

To be consistent with Congress’ directive, the Commission is updating its policy

to include ANCSA Corporations. The Commission recognizes and respects the distinct,

¶ 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).

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

er 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).

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.

13 Consolidated Appropriations Act, 2004, Pub. L. No. 108-199, Div. II. Sec. 161,

118 Stat. 3, 452 (2004) as amended by Consolidated Appropriations Act, 2005, Pub. L.

No. 108-447, Div. H., Title V. Sec. 518, 118 Stat. 2809, 3267 (2004).

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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.

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

14 5 CFR 1320.12 (2019)

, and is therefore not

subject to OMB approval.

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

14 5 CFR 1320.12 (2019).

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).

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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

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.

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 18 CFR 380.4(a)(1) (2019).

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

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 18 CFR 380.4(a)(1) (2019).

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

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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 ferconlinesupport@ferc.gov, or the Public Reference Room

at (202) 502-8371, TTY (202) 502-8659. E-mail the Public Reference Room at

public.referenceroom@ferc.gov.

Effective Date and Congressional Notification

18.

This revised policy statement is effective [insert date 30 days after publication

in the FEDERAL REGISTER] 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.

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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.

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List of subjects

18 CFR Part 2

General policy and interpretations

By the Commission.

( S E A L )

Kimberly D. Bose,

Secretary.

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In consideration of the foregoing, the Commission is amending Part 2, Chapter I,

Title 18, Code of Federal Regulations, as follows.

PART 2 – GENERAL POLICY AND INTERPRETATIONS

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.

§ 2.1c [Amended]

In § 2.1c(a), add “and Alaska Native Claims Settlement Act (ANCSA)

Corporations” after “Indian tribes” in the first sentence.

In § 2.1c(c), add “and with ANCSA Corporations in a similar manner,” after

“government-to-government basis,” in the first sentence.

In § 2.1c(e), remove “or Indian trust resources.” and add, in its place “Indian trust

resources, or treaty rights. The Commission will use the agency’s environmental and

decisional documents to communicate how tribal input has been considered.”.

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Document Content(s)

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