82 FR 2402 - Tribal Policy Statement
NUCLEAR REGULATORY COMMISSION Federal Register Volume 82, Issue 5 (January 9, 2017)
Federal Register Volume 82, Issue 5 (January 9, 2017)
| Page Range | 2402-2417 | |
| FR Document | 2017-00091 |
[Federal Register Volume 82, Number 5 (Monday, January 9, 2017)] [Notices] [Pages 2402-2417] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-00091] ----------------------------------------------------------------------- NUCLEAR REGULATORY COMMISSION [NRC-2012-0235] Tribal Policy Statement AGENCY: Nuclear Regulatory Commission. ACTION: Policy statement; issuance. ----------------------------------------------------------------------- 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. ---------------------------------------------------------------------------------------------------------------- Comment Submission Commenter Name Affiliation ADAMS Accession No. Document ---------------------------------------------------------------------------------------------------------------- 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 ---------------------------------------------------------------------------------------------------------------- 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
![2402 Federal Register / Vol. 82, No. 5 / Monday, January 9, 2017 / Notices
Other Questions to the Federal Rulemaking Web site at Gallagher; telephone: 301–415–3463;
1. Should physical security www.regulations.gov under Docket ID email: Carol.Gallagher@nrc.gov. For
requirements for Category 1 and 2 NRC–2016–0276. The Federal technical questions, contact the
quantities of radioactive material be Rulemaking Web site allows you to individual listed in the FOR FURTHER
receive alerts when changes or additions INFORMATION CONTACT section of this
expanded to include Category 3
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(1) Navigate to the docket folder (NRC– • NRC’s Agencywide Documents
2. Some Category 3 sources are
2016–0276); (2) click the ‘‘Sign up for Access and Management System
covered under a general license (10 CFR
Email Alerts’’ link; and (3) enter your (ADAMS): You may obtain publicly-
31.5). Should the NRC consider available documents online in the
establishing maximum quantities in email address and select how frequently
you would like to receive emails (daily, ADAMS Public Documents collection at
general licensed devices, thereby http://www.nrc.gov/reading-rm/
reserving authorization to possess weekly, or monthly).
adams.html. To begin the search, select
Category 1, 2, and 3 quantities of Dated at Rockville, Maryland, this 30th day
of December 2016.
‘‘ADAMS Public Documents’’ and then
radioactive material to specific select ‘‘Begin Web-based ADAMS
licensees? For the Nuclear Regulatory Commission.
Search.’’ For problems with ADAMS,
Pamela J. Henderson, please contact the NRC’s Public
IV. Public Comments Process
Deputy Director, Division of Material Safety, Document Room (PDR) reference staff at
The NRC is committed to keeping the State, Tribal and Rulemaking Programs, 1–800–397–4209, 301–415–4737, or by
public informed and values public Office of Nuclear Material Safety and
email to pdr.resource@nrc.gov. The
involvement in its assessment effort. Safeguards.
ADAMS accession number for each
Responses to this solicitation will be [FR Doc. 2017–00169 Filed 1–6–17; 8:45 am]
document referenced in this document
considered by NRC in preparing a report BILLING CODE 7590–01–P
(if that document is available in
to the Committees on Appropriations of ADAMS) is provided the first time that
the House of Representatives and the a document is referenced. The Tribal
Senate, pursuant to Public Law 113– NUCLEAR REGULATORY
Policy Statement, in its entirety, is in
235, Section 403 and will inform staff COMMISSION
the attachment to this document.
consideration of the regulatory impacts [NRC–2012–0235] • NRC’s PDR: You may examine and
for any recommendations related to purchase copies of public documents at
Category 3 source security and Tribal Policy Statement the NRC’s PDR, Room O1–F21, One
accountability, which will be White Flint North, 11555 Rockville
documented in a paper to be provided AGENCY: Nuclear Regulatory
Commission. Pike, Rockville, Maryland 20852.
to the Commission in August 2017. The
FOR FURTHER INFORMATION CONTACT:
NRC, however, does not intend to ACTION: Policy statement; issuance.
Kevin O’Sullivan, Office of Nuclear
provide specific responses to comments
SUMMARY: The U.S. Nuclear Regulatory Material Safety and Safeguards, U.S.
or other information submitted in
Commission (NRC) is issuing this Nuclear Regulatory Commission,
response to this request.
Statement of Policy to set forth Washington, DC 20555–0001; telephone:
V. Public Meetings principles to be followed by the NRC 301–415–8112, email: Tribal_
The NRC plans to hold three public staff to promote effective government-to- Outreach.Resource@nrc.gov.
meetings and two webinars during the government interactions with American SUPPLEMENTARY INFORMATION:
Indian and Alaska Native Tribes, and to I. Background
public comment period for this action. II. Discussion
The first public meeting is scheduled for encourage and facilitate Tribal
involvement in the areas over which the III. Opportunity for Public Participation
January 31, 2017, at NRC Headquarters. IV. Procedural Requirements
The two other public meetings will be Commission has jurisdiction. It provides
held outside of the Washington DC area. agencywide guidelines that achieve I. Background
The webinars are scheduled for consistency, but also encourage custom- The purpose of the NRC Tribal Policy
February 21, 2017 and March 2, 2017. tailored approaches to consultation and Statement is to establish policy
The public meetings and webinars will coordination that reflect the principles to be followed by the NRC to
provide forums for the NRC staff to circumstances of each situation and the promote effective government-to-
discuss the issues and questions with preference of each Tribal government. It government interactions with Indian
members of the public. The information is the NRC’s expectation that all Tribes, and to encourage and facilitate
received will be used by NRC to develop program and regional office consultation Tribal involvement in the areas over
a report to the Commission. The NRC and coordination practices will be which the Commission has jurisdiction.
does not intend to provide any consistent with or adhere to the NRC The NRC licenses and regulates the
responses to comments submitted Tribal Policy Statement. Nation’s civilian use of radioactive
during the public meetings and DATES: This policy statement is effective materials to protect public health and
webinars. Each public meeting and on January 9, 2017. safety, common defense and security,
webinar will be noticed on the NRC’s ADDRESSES: Please refer to Docket ID and the environment under the Atomic
public meeting Web site at least 10 NRC–2012–0235 when contacting the Energy Act of 1954, as amended (AEA)
calendar days before the meeting. NRC about the availability of (42 U.S.C. 2011). Other statutory
Members of the public should monitor provisions such as the National Historic
sradovich on DSK3GMQ082PROD with NOTICES
information regarding this document.
the NRC’s public meeting Web site for You may obtain publicly-available Preservation Act (NHPA) (54 U.S.C.
additional information about the public information related to this document 300101) can require Tribal consultation
meetings at http://www.nrc.gov/public- using any of the following methods: as part of the NRC’s evaluation of
involve/public-meetings/index.cfm. The • Federal Rulemaking Web site: Go to agency activities during licensing
NRC will post the notices for the public http://www.regulations.gov and search actions, rulemaking, or policy
meetings and webinars and may post for Docket ID NRC–2012–0235. Address development. The NRC complies with
additional material related to this action questions about NRC dockets to Carol statutory provisions and NRC regulatory
VerDate Sep<11>2014 21:14 Jan 06, 2017 Jkt 241001 PO 00000 Frm 00094 Fmt 4703 Sfmt 4703 E:\FR\FM\09JAN1.SGM 09JAN1](https://thefederalregister.org/doc/82_FR_2407/page/1.svg)
![Federal Register / Vol. 82, No. 5 / Monday, January 9, 2017 / Notices 2403
provisions that require Tribal policies with potential Tribal representatives from the Prairie Island
consultation and interacts with Tribal implications: Dakota Indian Community including: (1)
governments accordingly. • The United States has a unique Entering into a Memorandum of
legal relationship with Indian Tribal Understanding with the NRC; 2)
A. NRC Previous Interactions with governments as set forth in the allowing Tribal representatives to
Indian Tribes Constitution of the United States, observe inspections at the Prairie Island
Historically, the NRC has had limited, treaties, statutes, EOs, and court Nuclear Generating Plant; and 3)
but significant, interactions with Indian decisions. The Federal government developing a formal policy on
Tribes. The Commission has upheld recognizes Indian Tribes as domestic cooperation with Federally recognized
statutory obligations to consult with dependent nations under its protection Tribes. In the Staff Requirements
Tribes under Federal law and acted in and has enacted statutes and Memorandum (SRM) dated November
a manner consistent with the spirit of promulgated regulations that establish 13, 1996, the Commission approved the
certain Presidential initiatives and define a trust relationship with staff’s recommendation not to develop a
pertaining to Tribal consultation and Indian Tribes. formal policy on cooperation with
coordination. However, the NRC has not • The Federal government has Federally recognized Tribal
previously formalized an agencywide recognized the right of Indian Tribes to governments at that time, but to
policy statement. self-government with inherent sovereign continue addressing Native American
Many Federally recognized Tribes powers over their members and issues on a case-by-case basis and
have an interest in public health and territory. The United States continues to operating with Tribal governments on a
safety and environmental protection work with Indian Tribes on a government-to-government basis
associated with NRC regulatory government-to-government basis to (ADAMS Accession No. ML16293A154).
address issues concerning Tribal self- On January 8, 2009, the Commission
activities that include uranium
government, Tribal trust resources, and issued SRM–M081211, from the
recovery, commercial nuclear power,
Indian Tribal treaty and other rights. December 11, 2008, ‘‘Briefing on
and nuclear waste transportation,
• The United States recognizes the Uranium Recovery,’’ directing the NRC
disposal, and storage activities. The
right of Indian Tribes to self-government staff to develop and implement an
NRC has exercised its Trust
and supports Tribal sovereignty and internal protocol for interaction with
Responsibility in the context of its
self-determination. Native American Tribal Governments
authorizing statutes, including the AEA. As an independent regulatory agency, that would allow for custom tailored
The NRC Tribal Policy Statement the NRC is exempt from the approaches to address both the NRC and
formally reflects the NRC’s recognition requirements of certain EOs, including Tribal interests on a case-by-case basis
of the Federal Trust Responsibility and EO 13175. However, on January 26, (ADAMS Accession No. ML090080206).
the NRC’s commitment to a government- 2001, the Commission sent The Commission also directed the NRC
to-government relationship, which is correspondence to the Office of staff to assess what policies other
distinct from interactions with members Management and Budget stating that Federal agencies have for interactions
of the public, with Federally recognized ‘‘. . . in exercising its regulatory with Native American Tribal
Tribes. The NRC will make efforts to authority this agency [NRC] acts in a Governments and to report those
consult in good faith with Indian Tribes manner consistent with the fundamental findings, which could determine the
on agency actions that have substantial precepts expressed in the Order [EO efficacy of an NRC Tribal Policy
direct effects on one or more Indian 13175]’’ (ADAMS Accession No. Statement, to the Commission. The NRC
Tribes as well as those regulatory ML010260297). To that end, the staff responded to this Commission
actions for which Tribal consultation is Commission has developed agency direction in SECY–09–0180, ‘‘U.S.
required under Federal Statute. Under practices for Tribal consultation Nuclear Regulatory Commission
the NRC’s policy, the NRC or Tribal consistent with the principles Interaction with Native American
governments can request consultation articulated in EO 13175. Tribes’’ (ADAMS Accession No.
on regulatory activities that have Tribal The NRC’s past practice for ML092920384). The staff communicated
implications. The NRC’s policy is to government-to-government interaction the determination that the NRC’s case-
consult on a government-to-government with Federally recognized Tribes has by-case approach to interaction was
basis with Tribal governments as soon reflected the spirit of the relevant EOs, effective and met the needs of the
as practicable on NRC regulatory actions without establishing a formal policy. Commission and the Tribes. The staff
with Tribal implications. The NRC has interacted with Tribal concluded that Tribal interactions
On November 6, 2000, President governments on a case-by-case basis, would not benefit from a formal Tribal
Clinton issued Executive Order (EO) allowing the NRC and the Tribes to policy at that time. The NRC staff also
13175, ‘‘Consultation and Coordination initiate communication and developed NUREG–2173, ‘‘NRC Tribal
with Indian Tribal Governments’’ (65 FR consultation. The NRC staff has also Protocol Manual: Guidance for NRC
67249). Executive Order 13175 states, maintained working relationships with Employees,’’ as an internal protocol for
‘‘‘Policies that have Tribal implications’ Tribal governments and Tribal interacting with Tribal governments
refers to regulations, legislative organizations that have an interest in (ADAMS Accession No. ML092990559).
comments or proposed legislation, and NRC regulated activities. On May 22, 2012, the Commission
other policy statements or actions that issued the SRM for COMWDM–12–
have substantial direct effects on one or B. Development of the Draft Tribal 0001, ‘‘Tribal Consultation Policy
more Indian Tribes, on the relationship Policy Statement
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Statement and Protocol’’ (ADAMS
between the Federal government and In SECY–96–187, ‘‘Policy Issues Accession No. ML121430233), directing
Indian Tribes, or on the distribution of Raised in Meeting with Prairie Island the NRC staff to provide a proposed
power and responsibilities between the Dakota Indian Representatives’’ Policy Statement and protocol on
Federal government and Indian Tribes.’’ (ADAMS Accession No. ML16293A128), consultation with Tribal governments.
Executive Order 13175, established the the NRC staff provided to the The Commission also directed the NRC
following principles to guide agencies Commission an analysis of Tribal issues. staff to do the following when
when forming and implementing The paper centered on issues raised by developing the proposed policy
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Act of 1985, and the Uranium Mill other applicable treaties and statutory United States—and the individual
Tailings Radiation Control Act of 1978, authorities. The NRC Tribal Policy agencies of the Federal Government—
as amended. As an independent Statement formally reflects the NRC’s owe a fiduciary duty to Indian Tribes.
regulatory agency that does not hold in recognition of the Federal Trust The nature of that duty depends on the
trust Tribal lands or assets or provide Responsibility and the NRC’s underlying substantive laws (i.e.,
services to Federally recognized Tribes, commitment to a government-to- treaties, statutes, agreements) creating
the NRC fulfills its Trust Responsibility government relationship with Federally the duty. The NRC exercises its Trust
through implementation of the recognized Tribes that is distinct from Responsibility in the context of its
principles of the Tribal Policy interactions with members of the public. authorizing statutes including the AEA,
Statement, by providing protections In addition to affording Tribal members the Energy Reorganization Act of 1974,
under its implementing regulations, and protections under its implementing the Nuclear Waste Policy Act of 1982,
through recognition of additional regulations, the NRC will consult in the Low-Level Radioactive Waste Policy
obligations consistent with other good faith with Indian Tribes on agency Act of 1985, and the Uranium Mill
applicable treaties and statutory actions that have substantial direct Tailings Radiation Control Act of 1978,
authorities. The NRC Tribal Policy effects on one or more Indian Tribes as as amended. As an independent
Statement formally reflects the NRC’s well as those agency actions for which regulatory agency that does not hold in
recognition of the Federal Trust Tribal consultation is required under trust Tribal lands or assets or provide
Responsibility and the NRC’s Federal statute. services to Federally recognized Tribes,
commitment to a government-to- While the comment related to the the NRC fulfills its Trust Responsibility
government relationship with Federally Tribal Advance Notification Rule is out through implementation of the
recognized Tribes that is distinct from of scope of the NRC Tribal Policy principles of the Tribal Policy
interactions with members of the public. Statement, the NRC believes the Tribal Statement, by providing protections
The NRC will consult in good faith with Advance Notification Rule is consistent under its implementing regulations, and
Indian Tribes on agency actions that with the NRC Tribal Policy Statement through recognition of additional
have substantial direct effects on one or because it requires Tribal governments obligations consistent with other
more Indian Tribes as well as those to opt-in to participate in the advanced applicable treaties and statutory
agency actions for which Tribal notification program. The Advance authorities. The NRC Tribal Policy
consultation is required under Federal Notification to Native American Tribes Statement formally recognizes the
Statute. of Transportation of Certain Types of unique relationship between the Federal
The NRC Tribal Policy Statement has Nuclear Waste (Tribal Advance Government and Indian Tribes and
been revised to reflect the comment, in Notification Rule) amends NRC rules to describes NRC’s continuing
part. require licensees to provide advance commitment to a government-to-
Comment 1.3. ‘‘NRC has not notification to participating Federally government relationship with Tribal
historically met its Trust recognized Tribal governments governments that is distinct from the
Responsibilities. Tribal Advance regarding shipments of irradiated interactions that the agency has with
Notification Rule and the requirement reactor fuel and certain types of nuclear members of the public. The discussion
for tribes to ‘opt-in’ is inconsistent with waste for any shipment that passes section of Policy Principle 1 has been
the Tribal Policy Statement. States do within or across their reservations (77 revised to provide further clarification
not have to opt-in, while Tribes have to. FR 34194). After reviewing public and acknowledgment of the NRC’s Trust
Tribes should be given the opportunity comments received during the Responsibility.
to ‘opt-out.’’’ development of the Tribal Advance The NRC Tribal Policy Statement has
Response 1.3. The NRC disagrees with Notification Rule, the NRC staff been revised to reflect the comment.
the comment that the NRC has not concluded that Tribes should have the Comment 1.5. ‘‘To Indian tribes,
historically met its Trust Responsibility. option of whether to opt into the upholding a Trust relationship with
Under the Federal Trust Doctrine, the program because the program requires Indian tribes means more to Indian
United States—and the individual training, certain equipment, and has tribes than just ensuring the tribal
agencies of the Federal Government— civil and criminal penalties for non- members receive the same protections
owe a fiduciary duty to Indian Tribes. compliance. that are available to other persons (i.e.,
The nature of that duty depends on the The NRC Tribal Policy Statement has the general public). In our view, the
underlying substantive laws (i.e., been revised to reflect the comment, in NRC is required to do more, not less.
treaties, statutes, agreements) creating part. ‘‘The ‘trust responsibility’ that the
the duty. The NRC exercises its Trust Comment 1.4. ‘‘The ACHP [Advisory federal government owes to Indian
Responsibility under its authorizing Council on Historic Preservation] tribes imposes both substantive and
statutes including the AEA, the Energy recommends expanding the discussion procedural duties on the federal
Reorganization Act of 1974, the Nuclear on trust responsibility [related to policy government.’’
Waste Policy Act of 1982, the Low-Level principle 2 on Trust Responsibility] and Response 1.5. The NRC agrees with
Radioactive Waste Policy Act of 1985, including an acknowledgement of trust the comment. Under the Federal Trust
and the Uranium Mill Tailings responsibility. For more information Doctrine, the United States—and the
Radiation Control Act of 1978, as about trust responsibility, please individual agencies of the Federal
amended. As an independent regulatory reference the Bureau of Indian Affairs Government—owe a fiduciary duty to
agency that does not hold in trust Tribal [BIA] definition of trust responsibility Indian Tribes. The nature of that duty
lands or assets or provide services to depends on the underlying substantive
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(http://www.bia.gov/FAQs/).’’
Federally recognized Tribes, the NRC Response 1.4. The NRC agrees with laws (i.e., treaties, statutes, agreements)
fulfills its Trust Responsibility through this comment. In comparison with the creating the duty. The NRC exercises its
implementation of the principles of the BIA, the NRC is an independent Trust Responsibility under its
Tribal Policy Statement, by providing regulatory agency and does not hold in authorizing statutes including the AEA,
protections under its implementing trust Tribal lands or assets or provide the Energy Reorganization Act of 1974,
regulations, and through recognition of services to Federally recognized Tribes. the Nuclear Waste Policy Act of 1982,
additional obligations consistent with Under the Federal Trust Doctrine, the the Low-Level Radioactive Waste Policy
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![Federal Register / Vol. 82, No. 5 / Monday, January 9, 2017 / Notices 2407
Act of 1985, and the Uranium Mill Statement, by providing protections Government and Indian Tribes.’’ The
Tailings Radiation Control Act of 1978, under its implementing regulations, and suggested language could be interpreted
as amended. As an independent through recognition of additional to require the NRC to seek consultation
regulatory agency that does not hold in obligations consistent with other and collaboration on all of NRC’s
trust Tribal lands or assets or provide applicable treaties and statutory activities because they have the
services to Federally recognized Tribes, authorities. The NRC Tribal Policy potential to impact Tribal members even
the NRC fulfills its Trust Responsibility Statement formally reflects the NRC’s if the activity has no greater potential
through implementation of the recognition of the NRC’s commitment to effect on Tribal members than the
principles of the Tribal Policy a government-to-government general public. For example, health and
Statement, by providing protections relationship with Federally recognized safety regulations relating to well-
under its implementing regulations, and Tribes with respect to agency actions logging or medical use of byproduct
through recognition of additional that have a substantial direct effect on material could fall under this definition.
obligations consistent with other one or more Indian Tribes that is Therefore, the NRC limited the
applicable treaties and statutory distinct from interactions with members obligation for the NRC to specifically
authorities. The NRC Tribal Policy of the public. The NRC also upholds the seek Tribal consultation to activities
Statement formally reflects the NRC’s statutory obligation to consult with defined in EO 13175 and those for
recognition of the Federal Trust Federally recognized Tribes under which Tribal consultation is required
Responsibility and the NRC’s Section 106 of the NHPA, which is under Federal statute. However, Tribes
commitment to a government-to- intended to protect historic properties can always request consultation with
government relationship with Federally that may be affected by a Federal the NRC regarding ‘‘regulatory activities
recognized Tribes that is distinct from undertaking. The NHPA requirement to that may have the potential of affecting
interactions with members of the public. engage in Tribal consultation applies Tribal interests.’’ The NRC would
Other procedural components for regardless of the location of the historic evaluate such requests on a case-by-case
carrying out interactions with Tribal property and can include Tribal basis.
governments are articulated in the ancestral lands that are not part of the No change has been made to the NRC
Tribal Protocol Manual and specific Tribe’s current reservation or trust Tribal Policy Statement as a result of the
agency regulations and guidance lands. comment.
documents. The NRC Tribal Policy Statement has Comment 2.2. [The commenter
The NRC Tribal Policy Statement has been revised to reflect the comment. suggested including the underlined text
been revised to reflect the comment. in the discussion of policy principle 1.]
Comment 1.6. ‘‘PIIC [Prairie Island 2. Suggested changes to the language of ‘‘The NRC shall respect Indian Tribal
Indian Community] believes that the the NRC Tribal Policy Statement self-government and sovereignty, will
trust responsibility must mean more Multiple commenters proposed honor Tribal treaty and other rights, and
than solely complying with existing changes to the language of the NRC meet responsibilities that arise from the
statutes and regulations. Compliance of Tribal Policy Statement or to the unique relationship between the Federal
this type is no different than what is discussion section that defines terms government and Indian Tribal
owed to the general public. In order for utilized throughout the NRC Tribal governments. Further, the NRC shall
the trust responsibility to have any Policy Statement. encourage states to recognize the
vitality, Federal agencies must exercise Comment 2.1. ‘‘While the 6 principles Federal government’s trust relationship
a higher responsibility when taking [of the NRC Tribal Policy Statement] with Tribes and incorporate this
action that may affect a tribe. This is originally proposed serve as foundation recognition in their own practices.’’
especially true when the issues concern of which to build upon, the [U.S. Response 2.2. The NRC disagrees with
lands held in trust by the United States Department of Energy] DOE National this comment. Our understanding of the
for a tribe and the tribal cultural and Transportation Stakeholders Forum phrase ‘‘Tribal rights’’ would also cover
historic resources and a tribe’s ancestral Tribal Caucus believes the proposed ‘‘tribal treaty and other rights,’’ so the
homeland.’’ principles should be expanded to change is unnecessary.
Response 1.6. The NRC agrees with include an additional Principle Policy Section 274b. of the AEA authorizes
this comment. Under the Federal Trust Statement #7. Specifically, it is the NRC to enter into agreements with
Doctrine, the United States—and the recommended that the existing policy States so that the NRC relinquishes, and
individual agencies of the Federal statement include: the State assumes, regulatory authority
Government—owe a fiduciary duty to over the radioactive material and
Indian Tribes. The nature of that duty PRINCIPLE POLICY STATEMENT #7 activities specified in the agreement.
depends on the underlying substantive 7. NRC is committed to collaborating The NRC approves the agreement if the
laws (i.e., treaties, statutes, agreements) with tribes in regulatory activities that NRC finds the State program adequate to
creating the duty. The NRC exercises its may have the potential of affecting protect public health and safety and
Trust Responsibility under its tribal interests.’’ compatible with the NRC’s regulatory
authorizing statutes including the AEA, Response 2.1. The NRC disagrees with program. The NRC periodically reviews
the Energy Reorganization Act of 1974, this comment. The NRC Tribal Policy the State’s program, but the NRC does
the Nuclear Waste Policy Act of 1982, Statement is consistent with EO 13175, not mandate to the State how they
the Low-Level Radioactive Waste Policy which states ‘‘Policies that have tribal should interact with Tribal governments
Act of 1985, and the Uranium Mill implications refers to regulations, when implementing these regulatory
Tailings Radiation Control Act of 1978, legislative comments or proposed
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requirements and the States apply their
as amended. As an independent legislation, and other policy statements own laws to implement their radiation
regulatory agency that does not hold in or actions that have substantial direct control program for the specified AEA
trust Tribal lands or assets or provide effects on one or more Indian Tribes, on radioactive materials covered in the
services to Federally recognized Tribes, the relationship between the Federal Agreement.
the NRC fulfills its Trust Responsibility Government and Indian Tribes, or on No change has been made to the NRC
through implementation of the the distribution of power and Tribal Policy Statement as a result of the
principles of the Tribal Policy responsibilities between the Federal comment.
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Comment 2.3. [The commenter dialogue between NRC and Tribal with more formal government to
suggested including the underlined text governments, and program office government consultations.’’
in the discussion of policy principle 2, consultation procedures.’’ Response 2.6. The NRC agrees with
‘‘The NRC Recognizes and Is Committed Response 2.4. The NRC agrees in part this comment. The definition of
to a Government-to-Government and disagrees in part with this interaction has been included in the
Relationship With Indian Tribes.’’] ‘‘The comment. The term ‘‘regulatory action’’ discussion section of the policy
NRC recognizes the right of each Indian is used to reflect the scope of the NRC’s statement to identify activities covered
Tribe to self-governance and supports mission as a regulatory agency, and no by the term ‘‘interaction.’’
Tribal sovereignty and self- change has been made to the existing The discussion section related to the
determination. The NRC recognizes text. ‘‘Effective communication’’ already NRC Tribal Policy Statement has been
Tribal governments as dependent reflects that communication should be revised as a result of the comment.
domestic sovereign nations, ongoing during the consultation Comment 2.7. ‘‘The ACHP
independent from State governments, process. The text has been revised to recommends defining substantial direct
with separate and distinct authorities reflect that ‘‘The NRC representatives effects in order to provide clarity to the
with inherent sovereign powers over for consultations with Tribal officials or NRC’s practices addressing Executive
their members and territory.’’ representatives will be of an appropriate Order 13175.’’
Response 2.3. The NRC agrees with rank and the level of interaction will be Response 2.7. The NRC disagrees with
this comment. The second sentence of commensurate with the circumstances. this comment. The use of ‘‘substantial
the discussion related to Policy The appropriate level of interaction will direct effects’’ is consistent with the
Principle 2 now reads, ‘‘The NRC be determined by a discussion between language used in EO 13175, which also
recognizes Tribal governments as the NRC and Tribal governments, and does not define the term. Since the
dependent domestic sovereign nations, program office consultation procedures Tribal Policy Statement covers a vast
independent from State governments, and guidance. Participating Tribal and range of regulatory activities, the NRC
with separate and distinct authorities NRC representatives will serve as has not defined ‘‘substantial direct
with inherent sovereign powers over respective decisionmakers, based on the effects’’ in the NRC Tribal Policy
their members and territory, consistent established agenda and to the extent Statement. The NRC will consider
with applicable statutes and possible.’’ including criteria in future guidance
authorities.’’ The NRC Tribal Policy Statement has documents to determine whether an
The NRC Tribal Policy Statement has been revised to reflect the comment. activity has a ‘‘substantial direct effect’’
been revised to reflect the comment. Comment 2.5. [The commenter on one or more Indian Tribes.
Comment 2.4. [The Commenter suggested including the underlined text No change has been made to the NRC
suggested including the underlined text in the discussion of Policy Principle 5, Tribal Policy Statement as a result of the
in the discussion of policy principle 4, ‘‘The NRC Will Coordinate with Other comment.
‘‘The NRC Will Engage in Timely Federal Agencies.’’] ‘‘The NRC Will Comment 2.8. ‘‘The ACHP
Consultation.’’] ‘‘The NRC will provide Coordinate With Other Federal Agencies recommends specifying outreach should
timely notice to, and consult with, and States. When the Commission’s be done in addition to formal
Tribal governments on NRC’s regulatory action involves other Federal agencies government to government consultation
and non-regulatory actions that have and States, the NRC will perform its with Native Americans tribes and/or
substantial direct effects on one or more Tribal consultation jointly with other Native Hawaiian Organizations. Also,
Indian Tribes. Tribal officials may Federal agencies and States, as the NRC should include a definition for
request that the NRC engage in appropriate.’’ outreach. Outreach and consultation
government-to-government consultation Response 2.5. The NRC agrees in part should be discussed as two separate
with them on matters that have not been and disagrees in part with this activities conducted by the NRC.’’
identified by the NRC to have comment. The NRC coordinates with Response 2.8. The NRC agrees in part
substantial direct effects on one or more other Federal agencies and with States, and disagrees in part with this
Indian Tribes. The NRC will make as appropriate, during consultations. comment. The NRC agrees that outreach
efforts to honor such requests, taking For example, when following the is distinct from government-to-
into consideration the nature of the regulatory procedures related to the government consultation. The NRC
activity at issue, past consultation NHPA and National Environmental Tribal Policy Statement reflects the
efforts, available resources, timing Policy Act (NEPA) the NRC coordinates distinction between outreach and
issues, and other relevant factors. The with the State by communicating with consultation by putting forth two
NRC will establish early communication the State Historic Preservation Officer, separate and distinct policy principles
and begin consultation at the earliest who is included as a consulting party related to outreach and consultation. In
permissible stage, as appropriate. The under the NHPA, or the State agency an effort to provide clarification
NRC will consult in good faith regarding State listed species of concern regarding the distinction between
throughout the agency decisionmaking for environmental impact outreach and consultation, Policy
process and develop and maintain determinations on specific resource Principle 3 has been revised.
regular and meaningful effective areas. The NRC disagrees that Policy The NRC agrees that a definition of
communication, coordination, and Principle 5 should be revised to include outreach should be included in the
cooperation with Indian Tribes. The States since the Principle is limited to Discussion Section in an effort to
NRC representatives for consultations Federal coordination. provide further clarification The
with Tribal officials or representatives purpose of NRC’s Tribal outreach can be
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No change has been made to the NRC
will be of an appropriate rank of NRC Tribal Policy Statement as a result of the broad, ranging from participation in
representatives and level of interaction comment. standing Tribal meetings hosted by
commensurate with the circumstances Comment 2.6. ‘‘The ACHP Federal partners and Tribal
and who shall have decision-making recommends defining interactions and organizations, to conducting
power. The appropriate level of using interactions consistently informational meetings related to a
interaction will be determined by past throughout the document. In certain licensing project or rulemaking, to an
and current practices, continuing cases, interactions could be confused informational webinar. The NRC Tribal
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![Federal Register / Vol. 82, No. 5 / Monday, January 9, 2017 / Notices 2409
liaison team continues to seek new whether the NRC is engaged in outreach broad, ranging from participation in
opportunities to engage Tribal or consultation or the scope of standing Tribal meetings hosted by
representatives. consultation can result in confusion and Federal partners and Tribal
The NRC disagrees that the NRC delay. The Tribes may even get the organizations to conducting
Tribal Policy Statement’s discussion of impression that the NRC is only informational meetings related to a
outreach should include Native pretending to consult; see, for example, licensing project or rulemaking to an
Hawaiian Organizations. The Tribal the eighth bullet on page 6 of the letter informational webinar. The NRC Tribal
Policy Statement pertains to from the Seneca Nation of Indians, liaison team continues to seek new
consultation with Tribal Governments dated April 1, 2013, in this docket. opportunities to engage Tribal
recognized by the Federally Recognized ‘‘Principles 3 and 4 of the Policy are representatives.
Indian Tribe List Act of 1994, 25 U.S.C. potentially confusing as they use the The NRC Tribal Policy Statement has
479a. (See response to Comment 4.1 for terms ‘consult’ and ‘outreach’ been revised as a result of the comment.
additional information regarding the interchangeably. In addition, these Comment 2.11. ‘‘In Principle 4,
Native Hawaiian Organizations.) Principles state that they apply to replace ‘on NRC’s regulatory actions’
The NRC Tribal Policy Statement has ‘regulatory actions’ without clarifying with ‘prior to the NRC issuing policies,
been revised as a result of the comment. whether what is meant are policy rules, or guidance’ in the first sentence.
Comment 2.9. ‘‘The ACHP setting, rulemaking, issuing guidance, or This clarification reflects that
recommends stating [in the discussion a licensing action. As reflected in consultation on NRC licensing actions
of policy principle 4, ‘‘The NRC Will Section 1.D and associated note 25 of would generally not be consistent with
Engage in Timely Consultation’’] that it the Manual, as a regulatory agency, the the NRC’s statutory authority. This
is the federal agency’s responsibility to NRC fulfills the fiduciary obligation to clarification also harmonizes the Policy
engage in consultation. It is not the Tribes by ensuring uniform treatment with the Presidential directive for
tribe’s responsibility to request action in providing protection under its agencies to consult on policies with
engagement in consultation.’’ implementing regulations. On the other tribal implications, E.O. [Executive
Response 2.9. The NRC agrees in part hand, where the NRC is engaged in Order] 13175, § I(a), Nov. 6, 2000.’’
and disagrees in part with this setting policy, issuing rules, or Response 2.11. The NRC agrees in
comment. The NRC agrees that it is its providing guidance that directly impact part and disagrees in part with this
responsibility to initiate consultation Tribes, consultation on subjects within comment. The focus of E.O. 13175 is
when Tribal consultation is required the scope of the impact may be specifically related to consultation on
under Federal statute. The discussion of appropriate where the impact is ‘‘policies that have Tribal implications’’
Policy Principle 4 has been revised to significant. To minimize confusing (i.e., ‘‘regulations, legislative comments
clarify that the NRC also engages in ambiguity, the following clarifications on proposed legislation, and other
consultation when required under are suggested: policy statements or actions that have
Federal statute. However, the NRC substantial direct effects on one or more
disagrees with the suggestion to state A. The Policy Indian Tribes’’). The revised text
specifically in Policy Principle 4 that ‘‘it (1) In Principle 3, replace ‘consult’ proposed by the commenter would
is the federal agency’s responsibility to with ‘inform’ in the first sentence and harmonize the Policy Statement with
engage in consultation’’ or that ‘‘it is not replace ‘NRC regulatory actions that the E.O. by replacing the term ‘‘NRC’s
the tribe’s responsibility to request have substantial direct impacts on one regulatory actions’’ with a specific set of
engagement in consultation.’’ As stated or more Indian Tribe’ with ‘NRC activities that are consistent with the
in Policy Principle 4 the NRC will regulatory actions, including licensing activities covered in the E.O. However,
provide timely notice and consult in actions, in which one or more Indian the NRC Tribal Policy Statement covers
good faith with Tribal Governments on Tribes have an interest.’ This a broader set of activities than those
NRC regulatory actions that have clarification ensures that outreach to covered in the EO. Not all NRC Tribal
substantial direct effects on one or more Indian Tribes will include any consultation is related to ‘‘policies,
Indian Tribes as well as those regulatory regulatory action of interest to a Tribe.’’ rules, or guidance’’ as noted in the
actions for which Tribal consultation is Response 2.10. The NRC disagrees in comment. The NRC licensing actions
required under Federal statute. In some part and agrees in part with this may also trigger Tribal consultation
circumstances, Federally recognized comment. The NRC recognizes that under other Federal statutes. Therefore,
Tribes may request to engage in consultation and outreach are distinct the discussion of Policy Principle 4 has
consultation on matters that have not terms that should not be used been revised to clarify the broader set of
been identified by the NRC as having interchangeably. The NRC disagrees activities covered by the Policy
substantial direct effects on one or more with the proposed changes to Policy Statement.
Indian Tribes or for which Tribal Principle 3, but agrees that Policy The NRC Tribal Policy Statement has
consultation is not required under Principle 3 should be revised to provide been revised to address the comment, in
Federal statute. The NRC can make a greater clarity. ‘‘Consult’’ has been part.
good faith effort to invite Tribes to removed from the first sentence, but Comment 2.12. ‘‘Consistent with the
consult, but cannot mandate their ‘‘regulatory actions that have substantial practices of other agencies, the Policy
participation in the process. direct impacts on one or more Indian designates an official to facilitate
The NRC Tribal Policy Statement has Tribe’’ remains. The NRC Tribal Policy meaningful and timely consultations
been revised to address this comment, Statement reflects the distinction with Indian Tribes. See generally, E.O.
between outreach and consultation by [Executive Order] 13175, § 5(a), Nov. 6,
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in part.
Comment 2.10. ‘‘The Policy and setting forth two separate and distinct 2000. The designated official is to work
Manual generally reflect the differences policy principles related to outreach with other NRC personnel to ensure
between outreach and consultation. and consultation. In an effort to provide Tribal implications have been
However, there are several specific clarification regarding the distinction considered. The conclusions from these
spots, discussed below, where the between outreach and consultation, intra-agency considerations should be
language is unclear or the terms are Policy Principle 3 has been revised. The documented in the papers provided to
used interchangeably. Confusion as to purpose of NRC’s Tribal outreach can be the Commission (SECY papers), much
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![2410 Federal Register / Vol. 82, No. 5 / Monday, January 9, 2017 / Notices
the way the conclusions of the Chief Programs as the ‘‘designated official’’ for training sessions at multiple Tribal
Financial Officer or legal office are purposes of the NRC Tribal Policy Colleges and Universities to inform
reflected now. Such documentation Statement, and not pursuant to E.O. Tribes regarding NRC’s mission, basic
would serve to provide timely feedback 13175, as noted by the commenter. The health physics, radiation safety, and
to the Commission, to be mindful with NRC agrees that the second sentence of environmental review. The NRC will
the resource implications associated the section titled, ‘‘Designated Officials continue to provide training, as needed,
with formal Tribal consultations, and to and Tribal Liaisons,’’ referenced by the to Tribes who are affected by regulated
show respect for the solemnity of commenter should be restructured and activities and will seek outreach
conducting Tribal consultations on a has divided it into two sentences. opportunities.
Government-to-Government basis. Also, The NRC Tribal Policy Statement has No change has been made to the NRC
the second sentence of the first been revised to reflect part of the Tribal Policy Statement as a result of the
paragraph under ‘Designated Official comment. comment.
and Tribal Liaisons’ is an ambiguous, Comment 3.2. ‘‘Principle No. 4:
3. Outreach and Consultation Development of a Consultation Plan.
run-on sentence that does not clarify
that where the NRC is engaged in setting Multiple commenters provided input The NTAA recommends that Principle
policy, issuing rules, or providing related to the use of the terms No. 4 require the NRC to also develop
guidance that directly impact Tribes, ‘‘outreach’’ and ‘‘consultation’’ in the a comprehensive Tribal consultation
consultation on subjects within the policy principles of the NRC Tribal plan for NRC regulatory and non-
scope of the impact may be appropriate Policy Statement. regulatory actions having potentially
Comment 3.1. ‘‘The NTAA [National substantial direct effects on one or more
where the impact is significant as
Tribal Air Association] supports Indian Tribes. Although Tribes consider
reflected in Comment 2, above. It is
Principle No. 3 which provides: consultation to be very important,
suggested that sentence be split into The NRC Will Conduct Outreach to
four sentences that read: Tribes have limited resources and time
Indian Tribes. to expend on it. The NRC must be
The designated Official shall ensure that The NRC will consult and coordinate sensitive to this fact and make every
agency program personnel have considered with Indian Tribes, as appropriate, effort to provide Tribes with any
the Tribal implications related to their related to its regulatory actions with
responsibilities within the NRC’s scope of additional resources and assistance that
Tribal implications and will seek they might require to engage in effective
jurisdiction. Where programs, policies,
rulemaking or guidance are proposed to the additional opportunities for general consultation. Some recommendations to
Commission, the conclusions from review of outreach. The NRC will participate in help the NRC to conduct effective
these considerations shall be briefly national and regional Tribal conferences consultation with Tribes include:
discussed; specifically whether or not there and summits hosted by Federal agencies 1. Develop guidance on how the NRC
potentially are direct effects on one or more and Tribal organizations, and will seek intends to assure that consultation
Indian Tribes. The designated official shall Tribal representation in NRC meetings meetings result in meaningful dialogue
facilitate meaningful and timely consultation and advisory committees concerning rather than simply pro forma
concerning the development, administration, NRC regulatory actions that have
and enforcement of NRC’s policy,
consultation;
rulemaking, or guidance actions that have a
substantial direct effects on one or more 2. Assign a Tribal liaison to the
substantial direct effect on one or more Indian Tribes. specific NRC action who has extensively
Indian Tribes, including obtaining While the NTAA supports Principle worked with Tribes on similar issues;
Commission approval to initiate formal No. 3, it does not find that current NRC and
consultation with one or more Indian Tribes outreach to Indian Tribes is being done 3. Provide adequate time to Tribes to
on subjects within the scope of such or happening in a timely manner. For review and provide comments
substantial direct effects. Prior Commission example, apart from some local efforts, concerning proposed NRC actions well
approval to initiate consultation is not the NTAA is unaware of any venue beyond the 30- to 60-day periods
required where consultation is required by a where Tribes are being brought together provided to the public to make its
Federal statute.’’ to discuss radiation issues and air comments.’’
Response 2.12. The NRC agrees in quality impacts from the nuclear Response 3.2. The NRC disagrees in
part and disagrees in part with this program. The NTAA finds that NRC part and agrees in part with this
comment. The NRC agrees that the must be more diligent in conducting comment. The NRC staff has developed
‘‘designated official’’ should be involved outreach on all issues as they are an implementation plan that will be
in regulatory actions that have Tribal brought to the attention of the NRC by revised to reflect the final NRC Tribal
implications, but disagrees with the Tribes, the NTAA, or other Tribal Policy Statement. The NRC disagrees
commenter’s suggested edits and related organizations.’’ that Policy Principle 4 should state
implications. Some of the commenter’s Response 3.1. The NRC agrees in part specifically that the NRC has to develop
proposed language would introduce and disagrees in part with this a comprehensive Tribal consultation
procedures that are not appropriate for comment. The NRC agrees with the plan for NRC regulatory and non-
a high-level policy statement. The NRC commenter’s support of the NRC Tribal regulatory actions having potentially
would consider developing specific Policy Principle 3. The NRC disagrees substantial direct effects on one or more
procedures in a future guidance that the NRC has not conducted Indian Tribes. The NRC agrees that the
document. Regulatory actions involving outreach to Indian Tribes in a timely NRC should consider development of
Tribal consultation, would be reviewed manner. While the NRC has not hosted consultation plans for actions that have
by the Office of the Executive Director particular meetings to bring Tribes substantial direct effects on one or more
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for Operations, including the designated together to discuss radiation issues and Indian Tribes as well as those regulatory
official, before being sent to the air quality impacts from the nuclear actions for which Tribal consultation is
Commission. The NRC Tribal Policy program, the NRC has participated in required under Federal statute, in an
Statement identifies the Deputy national and regional Tribal conferences effort to promote more effective
Executive Director for Materials, Waste, and summits hosted by Federal agencies consultations. The NRC Tribal liaison
Research, State, Tribal, Compliance, and Tribal organizations. Additionally, staff will continue to work in
Administration, and Human Capital the NRC has provided instructor-led conjunction with program office staff
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during licensing and other regulatory Tribal conferences and summits hosted Response 3.5. The NRC agrees with
actions, and may be assigned to specific by Federal agencies and Tribal this comment. The definition of
sites or actions, as resources and staffing organizations, and will seek Tribal ‘‘consultation’’ and Policy Principle 4
permit. The NRC strives to establish an representation in NRC meetings and have been revised to provide further
effective consultation process and will advisory committees concerning NRC clarification. The revisions clarify that
consider time allowed for Tribal regulatory actions that have substantial consultation is a process and may
engagement, including Tribal review direct effects on one or more Indian include, but is not limited to, providing
and comment of relevant documents, on Tribes. for mutually-agreed protocols, timely
a case by case basis, as appropriate, ‘‘Attending major tribal conferences communication, coordination,
during the regulatory process. and meetings is an excellent way of cooperation, and collaboration and
No change has been made to the NRC interacting with Indian tribes. As well, provides opportunities for appropriate
Tribal Policy Statement as a result of the NRC staff should endeavor to attend Tribal officials or representatives to
comment. meetings of other federal agencies that meet with NRC management or staff to
Comment 3.3. ‘‘Further, the NRC must attract tribal representatives. achieve a mutual understanding
engage in government-to-government ‘‘. . . [I]t is important to recognize between the NRC and the Tribes of their
consultation with individual Tribes and that while there might not be delineated respective interests and perspectives.
not groups of Tribes which might occur reservation or Trust lands in a given No change has been made to the NRC
as part of an outreach session at a area that does not necessarily mean that Tribal Policy Statement as a result of the
conference or other similar gathering. there are no tribes interested in or comment.
Such a consultation approach is impacted by NRC regulatory actions.
necessary for a number of reasons. First, Many tribes were forcibly removed from 4. NRC’s Government-to-Government
it provides for more candid their ancestral lands or ceded vast tracts Relationship With Tribes
conversations between the individual of land to the federal government Comment 4.1. ‘‘The ACHP
Tribe and NRC than would occur through treaties and have retained or recommends including Alaska Natives
otherwise during a group meeting. reserved rights (fishing, hunting, and Native Hawaiians in the NRC Tribal
Second, each Tribe’s circumstances are gathering) for these lands or these lands Policy Statement and the Tribal Protocol
unique and must be treated as such by contain archaeological, cultural or Manual. The NRC is responsible for
the NRC. A group meeting of Tribes historical resources, including licensing materials in Alaska and
would only give short shrift to these important sacred sites.’’ Hawaii. Additionally, the NRC should
circumstances. Third, most cultural Response 3.4. The NRC agrees with avoid homogenizing Native American
resources information is protected from this comment. The NRC agrees that tribes and reference Native American
release under statutory exemptions to attending conferences and meetings is communities [in the Tribal Protocol
the Freedom of Information Act. an effective way of engaging Tribes and Manual], not the Native American
Discussion of such information by an that the NRC staff should attend community.’’
individual Tribe as part a group meeting meetings held by other Federal agencies Response 4.1. The NRC disagrees in
of Tribes risks its release to the general that attract Tribal representatives. The part and agrees in part with this
public and potentially endangers Tribal NRC staff participates in Tribal meetings comment. The NRC disagrees that the
cultural sites and practices. Finally, the hosted by other Federal agencies, NRC Tribal Policy Statement should
subject matter may be so unique that including conferences hosted by the include Native Hawaiian Organizations.
government-to-government consultation U.S. Environmental Protection Agency, The NRC Tribal Policy Statement and
between the individual Tribe and NRC the U.S. Department of Energy, and the Tribal Protocol Manual pertain to
provides the best opportunity for a U.S. Department of Transportation, consultation with Tribal governments
resolution to the situation versus a along with meetings hosted by inter- recognized by the Federally Recognized
group meeting of Tribes where any Tribal organizations, including the Indian Tribe List Act of 1994, 25 U.S.C.
number of Tribal issues could be National Congress of American Indians. 479a. The definition of Indian Tribe
discussed in a finite period of time.’’ The NRC also agrees that Tribes may includes Alaska Native Tribes. The
Response 3.3. The NRC agrees with have an interest in areas that do not United States has recognized and
this comment. The NRC does not have current reservation or trust lands. implemented a special political and
consider outreach during a conference The current location and geographic Trust Responsibility with the Native
to be consultation. The NRC will make proximity to NRC regulated sites is not Hawaiian community through programs
an effort to engage Tribes on a the sole consideration of the NRC when and services that are, in many respects,
government-to-government basis, and engaging in outreach with Tribes. The analogous to, but separate from the
will consider whether it is more NRC also considers whether there are programs and services enacted for
appropriate to consult individually or Tribes that have historic and cultural Federally recognized Indian Tribes.
simultaneously with multiple Tribes, on ties to the land in question. However, Native Hawaiian
a case-by-case basis, taking into No change has been made to the NRC Organizations are not governmental
consideration site-specific facts, Tribal Policy Statement as a result of the entities. As a result, Native Hawaiian
resource limitations, and preference of comment. Organizations are not covered by the
consulting Tribes. Comment 3.5. [The Commenter NRC Tribal Policy Statement. The NRC
No change has been made to the NRC provided input specific to policy does comply with statutory obligations
Tribal Policy Statement as a result of the principle 4, ‘‘The NRC Will Engage in to consult with Native Hawaiian
Timely Consultation.’’] ‘‘Early and
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comment. Organizations. For example, the NRC
Comment 3.4. ‘‘The NRC will consult frequent consultation must be the consults with Native Hawaiian
and coordinate with Indian Tribes, as cornerstone of the government-to- Organizations, as appropriate, under
appropriate, related to its regulatory government relationship. Publishing a Section 106 of the NHPA.
actions with Tribal implications and notice in the Federal Register is not The NRC agrees with the comment,
will seek additional opportunities for consultation. It should be noted that ‘‘the NRC should avoid homogenizing
general outreach. The NRC will sometime the consultative process can Native American Tribes’’ and recognizes
participate in national and regional take time.’’ distinctions between Federally
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recognized Tribes, as noted in the Tribal ‘‘standard process’’ for interacting with No change has been made to the NRC
Protocol Manual. The Tribal Protocol Tribes. Instead, it identifies policy Tribal Policy Statement as a result of the
Manual has been revised to reflect the principles that guide the NRC’s comment.
suggested change from ‘‘community’’ to interactions with Indian Tribes. Comment 5.4. ‘‘As subject-matter
‘‘communities.’’ No changes were made to the NRC experts, the NRC will invite tribal
No change has been made to the NRC Tribal Policy Statement as a result of the representatives to participate on
Tribal Policy Statement as a result of the comment. working groups developed for those
comment. activities that have the potential of
Comment 4.2. ‘‘Taken together, both 5. Additional Comments impacting tribal interests, including but
the Tribal Protocol Manual and the NRC Comment 5.1. ‘‘The Nuclear not limited to: Integrated Performance
Tribal Policy Statement (and their Regulatory Commission should look to Evaluation Program [(IMPEP)] Reviews,
respective Federal Register notices) the policies and practices of the Rule-making and other related activities
provide important historical Environmental Protection Agency [EPA] impacting our tribal governments.’’
information, such as various treaties, in developing its relationship with tribal Response 5.4. The NRC disagrees in
Congressional Acts affecting Indian governments. In particular, the EPA part and agrees in part with this
tribes and rights, and a discussion of the identified certain tribal governments to comment. The NRC disagrees with the
Federal Trust Responsibility. This be granted with the same treatment as threshold for Tribal working group
information provides the proper states, allowing the tribes to have participation set by the commenter’s
historical context critical to primacy in civil jurisdiction with language, ‘‘for those activities that have
understanding the unique relationship regards to enforcement of EPA the potential of impacting Tribal
federally recognized Indian Tribes have regulations on tribal lands. The NRC interests.’’ The NRC agrees that it may
with the Federal Government. This should consider implementing a similar invite Tribal representatives to
point is underscored in the Tribal policy with some or all tribal participate on working groups on
Protocol Manual, which notes that governments.’’ matters that have substantial direct
Indian tribes are not the public or Response 5.1. The NRC disagrees with effects on one or more Indian Tribes, as
special interest groups, but are, in fact, this comment. Unlike States, the AEA appropriate. This is consistent with
governments. This point is important in does not authorize Tribal governments Policy Principle 3 on the NRC outreach
understanding why tribes desire to have to assume regulatory authority over to Indian Tribes, which states ‘‘The NRC
a government-to-government AEA radioactive material. However, the will encourage Tribal governments to
relationship with the NRC and do not NRC has treated Federally recognized communicate their preferences to NRC
wish to be considered ‘stakeholders’.’’ Tribes in a similar manner to States in staff during outreach activities and will
Response 4.2. The NRC agrees with some instances. For example, Tribal seek to provide information about
this comment. The NRC Tribal Policy governments can participate in a opportunities for Tribal participation in
Statement and Tribal Protocol Manual program to receive advance notification NRC meetings and advisory committees
underscore the NRC’s commitment to a of shipments of certain types of concerning NRC regulatory actions that
government-to-government relationship radioactive material and spent nuclear have substantial direct effects on one or
with Indian Tribes. The NRC Tribal fuel under the Tribal Advance more Indian Tribes, as appropriate.’’
Policy Statement formalizes the NRC’s Notification Rule. Because the NRC does not have
commitment to engaging Indian Tribes No change has been made to the NRC statutory authority to enter into
on a government-to-government basis, Tribal Policy Statement as a result of the agreements with Tribes like it does with
providing opportunities for comment. States, Tribal government employees
participation in the NRC’s regulatory Comment 5.2. ‘‘NRC needs to be cannot participate in IMPEP Reviews as
process beyond those available to committed to the Tribal Policy a review team member in the same
members of the general public or Statement. If not, policies can be easily manner as an Agreement State
interested stakeholders, consistent with side-stepped. NRC needs to implement government employee. However, IMPEP
the principles articulated in E.O. 13175. these policies.’’ reports are publically available and
No changes were made to the NRC Response 5.2. The NRC agrees with meetings are open to the public.
Tribal Policy Statement or Tribal this comment. The Commission No change has been made to the NRC
Protocol Manual as a result of the approved a Tribal Policy Statement Tribal Policy Statement as a result of the
comment. Implementation Plan in March 2015 comment.
Comment 4.3. [The commenter (ADAMS Accession No. ML15078A039), Comment 5.5. ‘‘Further, the NRC will
provided input on policy principle 2, which aligns the agency’s Tribal present a yearly report to tribal
‘‘The NRC Recognizes and Is Committed activities with policy principles in the organizations describing all agency
to a Government-to-Government NRC Tribal Policy Statement. The NRC undertakings involving or relating to
Relationship with Indian Tribes.’’] staff will utilize the plan to implement Indian Tribes.’’
‘‘It should be noted that there are the NRC Tribal Policy Statement, and Response 5.5. The NRC disagrees with
differences among tribes and that there will update it, as appropriate. this comment. The NRC has no current
is no ‘one size, fits all’ approach when No change has been made to the NRC plans to present an annual report
it comes to interacting with and Tribal Policy Statement as a result of describing ‘‘all agency undertakings
understanding Indian tribes. Each tribe this comment. involving or relating to Indian Tribes.’’
is unique and should be treated as such. Comment 5.3. ‘‘The NRC should As part of the NRC Tribal Policy
implementation Plan, the NRC staff
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There should not be a ‘standard process’ encourage tribal participation on
as recommended by some commenters.’’ working groups.’’ prepares an annual report of the
Response 4.3. The NRC agrees with Response 5.3. The NRC agrees with agency’s implementation of the NRC
this comment. The NRC recognizes this comment. The NRC will consider Tribal Policy Statement, including some
distinctions between Federally inviting Tribes to participate on working of the agency’s Tribal-related
recognized Tribes, as noted in the Tribal groups related to regulatory actions that interactions. While the report is
Protocol Manual. The NRC Tribal Policy have substantial direct effects on one or intended for internal use, it will be
Statement does not prescribe a more Indian Tribes, as appropriate. available on the NRC’s public Web site.
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It will also be available in hardcopy, continuity of staff are also key elements The NRC has an obligation under the
upon request. of an effective tribal program.’’ NHPA to ensure that its actions do not
No change has been made to the NRC Response 5.8. The first part of this have adverse impacts. The NRC also has
Tribal Policy Statement as a result of the comment related to Indian land tenure an obligation to federally recognized
comment. is out of scope of the NRC Policy Indian tribes.
Comment 5.6. ‘‘Yes, extend the Statement. The NRC Tribal Policy With regard to tribes delaying the
comment period.’’ Statement is an agencywide, high-level process or lacking incentive to work
Response 5.6. The NRC agrees with document that encompasses a broad with the NRC, it should be noted that it
this comment. The comment period was range of NRC Tribal interactions, can be a burden (financially and
extended for the NRC Tribal Policy consultation, and outreach. NRC technically) to effectively participate in
Statement from 120 days to 180 days. disagrees in part and agrees in part with NRC proceedings.’’
The NRC considers comments received the remainder of the comment. The NRC Response 6.1. This comment is out of
after the end of the comment period if is in the process of finalizing NHPA scope of the NRC Tribal Policy
it is practical to do so, but the NRC is Section 106 guidance for uranium Statement because the comment centers
able to assure consideration only for recovery licensing. The NRC sought on specific statutory requirements to
comments received on or before the input from NRC Staff, ACHP, Tribal consult with Tribes under NHPA. The
comment period closes. governments, industry representatives, NRC Tribal Policy Statement is an
No changes were made to the NRC and members of the public. The NRC agencywide, high-level document that
Tribal Policy Statement as a result of the published the draft Interim Staff encompasses a broad range of NRC
comment. Guidance, FSME–ISG–02, ‘‘Guidance for Tribal interactions, consultation, and
Conducting the Section 106 Process of outreach. It does not prescribe
Comment 5.7. ‘‘We believe that the
procedural requirements for fulfilling
key to effectively implementing the the National Historic Preservation Act
NHPA consultation requirements. The
Tribal Policy Statement is via actions for Uranium Recovery Licensing
NRC upholds all statutory obligations to
that will protect Indian people, lands, Actions,’’ for public review and
consult with Federally recognized
and resources. Toward that end, an comment on June 18, 2014 (79 FR
Tribes, including consultation
evaluation of existing staff guidance is 34792). On September 3, 2014, the NRC
responsibilities under the NHPA and
a strong start. This evaluation should extended the comment period (79 FR
NEPA.
not be limited to the Tribal Protocol 52374). The NRC staff is in the process No change has been made to the NRC
Manual, but all NRC staff guidance.’’ of developing the final program specific Tribal Policy Statement as a result of the
Response 5.7. The NRC agrees with guidance. The NRC staff has reviewed comment.
this comment. The NRC staff has staff guidance documents and Comment 6.2. ‘‘The NEPA process (for
reviewed numerous agency and office- concluded that no guidance documents either [an] EA [environmental
level guidance documents to determine directly contradict the NRC Tribal assessment] or EIS [environmental
if changes were necessary before the Policy Statement. The NRC staff review impact statement]) does not ensure that
Commission approves the final NRC identified documents that will need to environmental issues and concerns
Tribal Policy Statement, ensuring that be revised to be consistent with the final identified by the impacted tribes will be
the guidance documents are consistent NRC Tribal Policy Statement. Guidance addressed adequately, as EA’s or EIS’s
with policy principles in the NRC Tribal will be updated as scheduled, and will are disclosure tools that do not and
Policy Statement. The NRC will revise incorporate the final NRC Tribal Policy cannot offer remedies or mitigation. It is
guidance, as needed, to reflect the Statement, as appropriate. The NRC staff through the NRC’s Atomic Safety and
policy principles of the final NRC Tribal has also developed and implemented a Licensing Board (ASLB) adjudicatory
Policy Statement. Tribal cultural sensitivity training that process that identified issues can be
No change has been made to the NRC is available agencywide. addressed (if the Board admits the
Tribal Policy Statement as a result of the No change has been made to the NRC affected tribe as an intervener because
comment. Tribal Policy Statement as a result of the the tribe has articulated a deficiency
Comment 5.8. ‘‘We suggest that the comment. with an application before the NRC).
NRC work with a number of tribes, Achieving intervener status is a difficult
6. Out of Scope Comments
representing a cross-section of NRC and costly undertaking, given the high
regulatory activities, as well as the Comment 6.1. ‘‘We have reviewed the legal and regulatory standards to be met.
Bureau of Indian Affairs (BIA) to gain a comment letters submitted in 2013 by Nevertheless, this is a huge barrier that
better understanding of Indian land other entities on the Tribal Protocol many tribes cannot overcome and this
tenure and the potential consequences Manual (most notably those should be recognized a severe limitation
of contamination to Indian lands. representing the uranium mining to effective participation by any tribes
‘‘We understand that the NRC may industry) and found the comments to be impacted by NRC licensing actions.’’
possibly be developing a guidance self-serving, ill-informed and insensitive Response 6.2. This comment is out of
document pertaining to the National [to] tribal history, culture and tradition. scope of the NRC Tribal Policy
Historic Preservation Act (NHPA) These commenters complained that the Statement. The NRC Tribal Policy
Section 106 consultation. We applaud Section 106 process was ‘too Statement is an agency-wide, high-level
this effort. We recommend that the NRC cumbersome, time consuming, and document that encompasses a broad
work with tribes, the Advisory Council costly for the uranium recovery range of NRC Tribal interactions,
on Historic Preservation (ACHP), industry’ and that the pace of the consultation, and outreach. It does not
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industry (limited participation), and consultation should be accelerated and prescribe procedural requirements for
possibly other federal agencies to standardized. Moreover, the fulfilling NEPA Tribal consultations.
develop this guidance document. commenters suggested that the NRC The process for achieving intervenor
‘‘Finalizing and fully implementing should not be making an exhaustive status before an NRC Atomic Safety and
the Tribal Protocol Manual will also effort to identify all potentially Licensing Board (or other NRC
help NRC staff to be informed on tribal impacted Indian tribes. In other words, adjudicator) is outside the scope of the
issues. Training, awareness, and hurry up and get it done! NRC Tribal Policy Statement. Under the
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listed activities do not cover the ‘‘First seems there is a communication barrier, Response 6.8. This comment is out of
Nations [of Canada]’’ referenced by the and updated cleanups by site is missing, scope of the NRC Tribal Policy
commenter. especially with transport of radioactive Statement. The NRC Tribal Policy
No change has been made to the NRC sludge from holding/evaporation ponds. Statement is an agencywide, high-level
Tribal Policy Statement as a result of the ‘‘Many transport routes go through document that encompasses a broad
comment. Native communities, and are not part of range of NRC Tribal interactions,
Comment 6.6. ‘‘Lastly, the NRC will the DOE–EM START [Stakeholder Tool consultation, and outreach. The NRC
ensure there are mechanisms in place to for Assessing Radioactive currently coordinates with other Federal
prevent an unfunded mandate upon any Transportation] programming. It may be agencies, as appropriate, on issues
tribe, including but not limited to missing out of other regulatory within its regulatory jurisdiction,
requirements of acquiring GSA safe or components as 108(c) under DOE for including the shipment of spent nuclear
other supplies or materials as stipulated transport. Consideration for links for the fuel and licensing and regulation of
in the in the advance notification rule.’’ public with RECA [Radiation Exposure uranium recovery facilities. Currently,
Response 6.6. This comment is out of Compensation Act] benefits and there is neither a Federal repository for
scope of the NRC Tribal Policy DownWinder Web sites under NRC is spent nuclear fuel nor an interim storage
Statement. The NRC Tribal Policy important as many suffer the health facility but the NRC will follow the
Statement is an agencywide, high-level devastation of cancer due to radiation.’’ Tribal Policy Statement and appropriate
document that encompasses a broad regulations when processing any
Response 6.7. This comment is out of
range of NRC Tribal interactions, applications for these facilities. The
scope of the NRC Tribal Policy
consultation, and outreach. The Tribal NRC does have regulations that govern
Statement. The NRC Tribal Policy
Advance Notification Rule amended the transport of spent nuclear fuel and
Statement is an agencywide, high-level
NRC regulations to require licensees to implements them in coordination with
document that encompasses a broad
provide advance notification to relevant Federal agencies, including the
range of NRC Tribal interactions,
participating Federally recognized DOE and the DOT. The NRC does not
consultation, and outreach. Previously
Tribal governments regarding shipments have regulatory authority over uranium
of irradiated reactor fuel and certain the NRC staff received similar feedback
on the inclusion of non-English mining facilities. However, the NRC
types of nuclear waste for any shipment
speakers in the NRC’s Tribal Training does have regulatory authority over
that passes within or across their
Program. The NRC will consider the uranium recovery and uranium milling
reservations (June 11, 2012; 77 FR
inclusion of Native speakers when facilities and coordinates with other
34194). After reviewing public
arranging future training sessions for Federal agencies, as appropriate,
comments received during the
Tribes. DOE–EM START programming including the Bureau of Land
development of the Tribal Advance
is not administered by the NRC, and Management and EPA, during the
Notification Rule, the NRC staff
therefore is not covered by the NRC consultation process.
concluded that Tribes should have the No change has been made to the NRC
option of whether to opt into the Tribal Policy Statement. The RECA
benefits are administered by the Tribal Policy Statement as a result of the
program because the program requires
Department of Justice’s program for comment.
training, certain equipment, and has
civil and criminal penalties for non- claims relating to atmospheric nuclear V. Procedural Requirements
compliance. The NRC is committed to testing and claims relating to uranium
industry employment. The NRC does Congressional Review Act Statement
ensuring that Tribal Nations are
informed of the requirements for not oversee the program, make related This final NRC Tribal Policy
receiving Safeguards Information and determinations, or administer payment Statement is a rule as defined in the
sensitive information. It is the of claims. The Downwinder Web sites Congressional Review Act (5 U.S.C.
responsibility of all Tribal governments are maintained by the U.S. Department 801–808). However, the Office of
that volunteer to participate in the of Health and Human Services and do Management and Budget has not found
Tribal Advance Notification program to not fall under the NRC’s jurisdiction. it to be a major rule as defined in the
ensure that the information is secure No change has been made to the NRC Congressional Review Act.
and used in a manner that will provide Tribal Policy Statement as a result of the
Paperwork Reduction Act Statement
for the protection of the public health comment.
and the environment. Comment 6.8. [The commenter quoted This Policy Statement does not
No change has been made to the NRC policy principle 5, ‘‘The NRC Will contain new or amended information
Tribal Policy Statement as a result of the Coordinate with Other Federal collection requirements and, therefore,
comment. Agencies,’’ stating ‘‘When the is not subject to the Paperwork
Comment 6.7. ‘‘It is important to note, Commission’s action involves other Reduction Act of 1995 (44 U.S.C. 3501
even though NRC has expanded Federal agencies, the NRC will perform et seq.).
educational tools for Radiation its Tribal consultation jointly with other Dated at Rockville, Maryland, this 3rd day
Workshops as open communication Federal agencies, as appropriate.’’] of January, 2017.
protocol, there is a need for Native ‘‘This will be especially important if/ For the Nuclear Regulatory Commission.
speakers to provide the information. when shipments of spent nuclear fuel to Annette L. Vietti-Cook,
Non-English speakers attend the a federal repository or an interim storage Secretary of the Commission.
workshops and do not comprehend the facility commence. Shipments of spent
contents. More workshops related to nuclear fuel will involve the NRC, the Tribal Policy Statement
sradovich on DSK3GMQ082PROD with NOTICES
DOE Radiation site locations throughout US Department of Energy (DOE) and the The purpose of this Tribal Policy
Indian Country is strongly urged that US Department of Transportation Statement is to set forth principles to be
NRC has oversight. Many of these sites (DOT). Equally important is the followed by the U.S. Nuclear Regulatory
are under DOE–LM [DOE Office of engagement of federal agencies involved Commission (NRC) to promote effective
Legacy Management] and not in the uranium mining regulation (i.e., government-to-government interactions
necessarily under DOE–EM [DOE Office the Bureau of Indian Affairs or the with Federally recognized American
of Environmental Management] as it Bureau of Land Management).’’ Indian and Alaska Native Tribes, and to
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![Federal Register / Vol. 82, No. 5 / Monday, January 9, 2017 / Notices 2417
regarding programmatic inquiries, and Firms 6 (collectively, ‘‘OTPs’’) to submit to be able to submit QCC Orders through
will facilitate the appropriate level of QCC Orders to the Exchange. According the use of a third-party front end order
communication and exchange of to the Exchange, OTPs currently send management system, or by telephone, as
information between Tribal officials and QCC Orders to the Exchange through the they currently do.12 The Exchange notes
the NRC staff. The Tribal liaisons will use of third-party front end order that use of OptX to send QCC Orders to
also educate the NRC staff about Tribal management systems or by calling Floor the Exchange is optional and
issues including cultural sensitivity and Brokers and relaying their orders by voluntary.13
the Federal Trust Responsibility. The telephone.7 The Exchange stated that it will
designated official will have the According to the Exchange, NYSE announce the effective date of NYSE
authority to delegate tasks to the NRC OptX is an order entry platform that will OptX in a Trader Update to be
Tribal liaisons as he/she deems fit. utilize a combination of Instant published no later than 90 days
[FR Doc. 2017–00091 Filed 1–6–17; 8:45 am]
Messaging (‘‘IM’’) and browser-based following approval of this proposal, and
technology to allow OTPs to submit that such effective date will be no later
BILLING CODE 7590–01–P
QCC Orders for execution on the than 270 days following publication of
Exchange’s trading system.8 To execute the Trader Update.14
a QCC Order through NYSE OptX, an
SECURITIES AND EXCHANGE OTP will send the order in plain text to III. Discussion and Commission
COMMISSION NYSE OptX,9 which will then translate Findings
[Release No. 34–79719; File No. SR– the message into a pre-populated order After careful review, the Commission
NYSEArca–2016–143] ticket with details of the order and finds that the proposed rule change is
return the order ticket to the OTP in a consistent with the requirements of
Self-Regulatory Organizations; NYSE browser-based URL. The OTP will then Section 6 of the Act 15 and the rules and
Arca, Inc.; Order Approving Proposed confirm the order ticket and submit the regulations thereunder applicable to a
Rule Change, as Modified by order to the Exchange for execution, or national securities exchange.16 In
Amendment No. 1 Thereto, Introducing send the order to a Floor Broker for particular, the Commission finds that
NYSE OptX execution. After an order is executed on the proposed rule change is consistent
the Exchange, NYSE OptX will remit with Section 6(b)(5) of the Act,17 which
January 3, 2017. details of the execution back to the OTP. requires, among other things, that the
I. Introduction According to the Exchange, NYSE rules of a national securities exchange
OptX is designed as an alternative to be designed to prevent fraudulent and
On November 3, 2016, NYSE Arca, front end order management systems
Inc. (the ‘‘Exchange’’) filed with the manipulative acts and practices, to
and the use of telephones for the promote just and equitable principles of
Securities and Exchange Commission sending of QCC Orders to the
(‘‘Commission’’) pursuant to Section trade, to foster cooperation and
Exchange.10 The Exchange notes that coordination with persons engaged in
19(b)(1) of the Securities Exchange Act NYSE OptX will not provide OTPs with
of 1934 (‘‘Act’’) 1 and Rule 19b–4 regulating, clearing, settling, processing
the capability to send any other type of information with respect to, and
thereunder,2 a proposed rule change to orders or the capability to send QCC
introduce NYSE OptX, an order entry facilitating transactions in securities, to
Orders for execution to other options remove impediments to and perfect the
platform that will allow for the markets.11 Further, OTPs will continue
submission of Qualified Contingent mechanism of a free and open market
Cross orders (‘‘QCC Orders’’) by OTP and a national market system, and, in
OTP, or has been named as a Nominee. An OTP
Holders and OTP Firms. On November Holder must be a registered broker or dealer general, to protect investors and the
15, 2016, the Exchange filed pursuant to Section 15 of the Act, or a nominee or public interest and that the rules not be
Amendment No. 1 to the proposal.3 The an associated person of a registered broker or dealer designed to permit unfair
that has been approved by the Exchange to conduct discrimination between customers,
proposed rule change, as modified by business on the Exchange’s Trading Facilities. See
Amendment No. 1, was published for Exchange Rule 1.1(q). issuers, brokers, or dealers.
comment in the Federal Register on 6 The term ‘‘OTP Firm’’ refers to a sole In particular, the Commission notes
November 22, 2016.4 The Commission proprietorship, partnership, corporation, limited that, according to the Exchange, NYSE
liability company, or other organization in good OptX will provide OTPs an alternative
received no comment letters on the standing that holds an OTP or upon which an
proposed rule change. This order individual OTP Holder has conferred trading
to third-party front end order
approves the proposed rule change, as privileges on the Exchange’s Trading Facilities management systems and the use of
modified by Amendment No. 1. pursuant to and in compliance with Exchange telephones to send QCC Orders to the
Rules. An OTP Firm must be a registered broker or Exchange.18 Such an alternative may
II. Description of the Proposed Rule dealer pursuant to Section 15 of the Act. See
Exchange Rule 1.1(r).
help protect the interests of investors by
Change 7 See Notice, supra note 4, at 83891.
12 See id.
The Exchange proposes to introduce 8 See id. The Exchange represents that NYSE
13 See
OptX will not require any changes to the id.
NYSE OptX, an order entry platform 14 See id.
Exchange’s communication or surveillance rules.
that will allow OTP Holders 5 and OTP Id. at 83891, n.9. 15 15 U.S.C. 78f.
9 The Exchange states that OTPs will be required 16 In approving this proposed rule change, the
1 15 U.S.C. 78s(b)(1). to provide all the essential information regarding Commission has considered the proposed rule’s
2 17 CFR 240.19b–4. the QCC Order when sending it to NYSE OptX, impact on efficiency, competition, and capital
3 In Amendment No. 1, the Exchange clarified including the price of the option and the stock, the formation. See 15 U.S.C. 78c(f).
sradovich on DSK3GMQ082PROD with NOTICES
that QCC Orders sent through NYSE OptX to the size and side of the order, and delta. The Exchange 17 15 U.S.C. 78f(b)(5).
Exchange for execution will comply with the order further represents that QCC Orders sent to the 18 See Notice, supra note 4, at 83891. As stated
format and EOC entry requirements established by Exchange for execution will comply with the order above, the Exchange represented that OTPs will be
the Exchange, which are set forth in Exchange Rule format and EOC entry requirements established by required to provide all the essential information
6.67. the Exchange. See Notice, supra note 4, at 83891, regarding the QCC Order when sending the order
4 See Securities Exchange Act Release No. 79327 n.11. See also Exchange Rule 6.67—Order Format to NYSE OptX and QCC Orders sent to the
(November 16, 2016), 81 FR 83890 (‘‘Notice’’). and System Entry Requirements. Exchange for execution will comply with the order
5 The term ‘‘OTP Holder’’ refers to a natural 10 See Notice, supra note 4, at 83891.
format and EOC entry requirements established by
person, in good standing, who has been issued an 11 See id. the Exchange. Id. at 83891, n.11.
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Document Created: 2018-10-24 11:09:13
Document Modified: 2018-10-24 11:09:13
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Policy statement; issuance. | |
| Dates | This policy statement is effective on January 9, 2017. | |
| 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] | |
| FR Citation | 82 FR 2402 |
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