Revision to Policy Statement on Consultation With Indian Tribes in Commission Proceedings, 56940-56942 [2019-23099]

Download as PDF 56940 Federal Register / Vol. 84, No. 206 / Thursday, October 24, 2019 / Rules and Regulations DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 2 [Docket No. PL20–1–000] Revision to Policy Statement on Consultation With Indian Tribes in Commission Proceedings Federal Energy Regulatory Commission, Department of Energy. ACTION: Final rule. AGENCY: The Commission is revising its Policy Statement on Consultation with Indian Tribes in Commission Proceedings by adding a specific reference to treaty rights; a statement that the Commission addresses tribal input in its NEPA documents and orders, and consultation with Alaska Native Corporations. DATES: Effective November 25, 2019. FOR FURTHER INFORMATION CONTACT: Elizabeth Molloy, Office of the General Counsel, 888 First Street NE, Washington, DC 20426; 202–502–8771; elizabeth.molloy@ferc.gov. SUPPLEMENTARY INFORMATION: 1. By this order, the Commission is amending its Policy Statement on Consultation with Indian Tribes in Commission Proceedings (policy statement) 1 by adding a specific reference to treaty rights and noting that the Commission addresses tribal input in its National Environmental Policy Act (NEPA) documents and orders. In addition, the Commission is adding consultation with Alaska Native Corporations to the policy statement consistent with Congress’ requirement that all Federal agencies consult with Alaska Native corporations on the same basis as Indian tribes under Executive Order No. 13175. SUMMARY: khammond on DSKJM1Z7X2PROD with RULES Background and Discussion 2. In 2003, the Commission issued its Policy Statement on Consultation with Indian Tribes in Commission Proceedings. The 2003 policy statement recognizes the unique relationship between the Federal government and Indian tribes as defined by treaties, statutes, and judicial decisions and acknowledges the Commission’s trust responsibilities. It states that the Commission will endeavor to work with the tribes on a government-togovernment basis and will seek to 1 Policy Statement on Consultation with Indian Tribes in Commission Proceedings, Order No. 635, 104 FERC ¶ 61,108 (2003). The policy statement is codified at 18 CFR 2.1c (2019). VerDate Sep<11>2014 15:51 Oct 23, 2019 Jkt 250001 address the effects of proposed projects on tribal rights and resources through consultation pursuant to trust responsibilities, the statutes governing the Commission’s authority,2 and in the Commission’s environmental and decisional documents. Noting that the Commission functions as a neutral, quasi-judicial body and as such is bound by the Administrative Procedure Act and Commission rules regarding offthe-record communications,3 it states that the Commission will assure tribal issues and interests are considered in making decisions. For the hydroelectric program, it also states that the Commission will notify tribes before or at the time the licensee files its notice of intent, and will consider comprehensive plans prepared by tribes or intertribal organizations. 3. In March 2017, the U.S. Government Accountability Office (GAO) commenced an engagement on tribal consultation practices, in which it sought to review tribal consultation practices of 21 federal agencies involved in permitting, review, or funding of infrastructure projects.4 The engagement was focused on federal agencies’ compliance with government to government consultation and coordination responsibilities under Executive Order 13175; tribal consultation practices used by federal agencies during permitting and developmental processes; definition and consistent application of ‘‘meaningful tribal consultations’’ by federal agencies; opportunities for tribal input 2 The policy statement notes that the statutes governing the Commission’s authority primarily consist of the Federal Power Act, the Natural Gas Act, the Public Utilities Regulatory Policies Act of 1978, the Interstate Commerce Act, the Outer Continental Shelf Lands Act, National Environmental Policy Act, and Section 106 of the National Historic Preservation Act. 3 18 CFR 385.2201 (2019). 4 The 21 federal agencies (which included 3 independent regulatory agencies, 3 departments, and 15 component agencies) were: The Department of Agriculture’s Forest Service and Rural Development; Department of Commerce’s National Oceanic and Atmospheric Administration (NMFS); Department of Defense’s Army Corps of Engineers (Corps); Department of Energy (DOE); Environmental Protection Agency (EPA); Federal Communications Commission (FCC); Federal Energy Regulatory Commission (FERC or Commission); Department of Homeland Security’s Coast Guard (Coast Guard) and Federal Emergency Management Agency (FEMA); Department of Housing and Urban Development (HUD); Department of the Interior’s Bureau of Land Management (BLM), Bureau of Ocean Energy Management (BOEM), Bureau of Reclamation (Reclamation), Fish and Wildlife Service (FWS), and National Park Service (NPS); Nuclear Regulatory Commission (NRC); and Department of Transportation’s Federal Aviation Administration (FAA), Federal Highway Administration (FHA), Federal Railroad Administration (FRA), and Federal Transit Administration (FTA). PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 into contiguous, off-reservation developments that may result in pollution or other impacts on their land; and appeal options, if any, available to tribes. 4. In March 2019, GAO issued its final report entitled, ‘‘Tribal Consultation: Additional Federal Actions Needed for Infrastructure Projects (GAO–19–22).’’ 5 GAO directed one of the 22 recommendations made in the report to the Commission.6 Specifically, the GAO recommendation stated that ‘‘[t]he Federal Energy Regulatory Commission should document in its tribal consultation policy how agency officials are to communicate with tribes about how their input from consultation was considered in agency decisions on infrastructure projects.’’ 7 A. Communication 5. As noted above, the Commission functions as a neutral, quasi-judicial body and as such is bound by the Administrative Procedure Act and Commission rules regarding off-therecord communications. In order to comply with the requirements that decisions be on the record, it has been the Commission’s practice to address tribal input and concerns in its environmental documents and decisions. However, the Commission’s policy statement does not expressly include language to that effect. Therefore, the Commission is adding language stating that the Commission will set forth in its environmental documents and orders how tribe’s input from consultation was considered in agency decisions on infrastructure projects. B. Treaty Rights 6. The Commission, in its final rule on Hydroelectric Licensing under the Federal Power Act issued contemporaneously with the policy statement, stated that, ‘‘tribal consultation pursuant to our trust responsibility encompasses more than implementation of [National Historic Preservation Act] Section 106. It includes every issue of concern to an Indian tribe related to a treaty, statute, or executive order where the Commission can, through the exercise of its authorities under the FPA, fulfill its 5 Tribal Consultation: Additional Federal Actions Needed for Infrastructure Projects (GAO–19–22), March 2019 (GAO Report). 6 The report made a similar recommendation regarding 13 of the other 21 agencies: the Department of Agriculture’s Rural Development; Corps; DOE; FCC; DHS; FEMA; HUD; BOEM, Reclamation, FWS and NPS; NRC; and DOT. 7 GAO Report at 58. E:\FR\FM\24OCR1.SGM 24OCR1 Federal Register / Vol. 84, No. 206 / Thursday, October 24, 2019 / Rules and Regulations trust responsibility.’’ 8 The policy statement states that the ‘‘Commission, in keeping with its trust responsibility, will assure that tribal concerns and interests are considered whenever the Commission’s actions or decisions have the potential to adversely affect Indian tribes or Indian trust resources.’’ 9 7. While the Commission already considers the effect of actions on treaty rights in its NEPA and decision documents,10 the Commission is taking this opportunity to clarify that point by adding specific mention of treaty rights in the policy statement. khammond on DSKJM1Z7X2PROD with RULES C. Consultation With Alaska Native Corporations 8. The policy statement addresses consultation with federally-recognized Indian tribes (including Alaska Native tribes, villages, and communities) that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to the Federally Recognized Indian Tribe List Act of 1994.11 It does not, however, address consultation with Corporations established pursuant to the Alaska Native Claims Settlement Act (ANCSA Corporations).12 9. After the Commission issued its policy statement, Congress directed that ‘‘[t]he Director of the Office of Management and Budget [and all Federal agencies] shall hereafter consult with Alaska Native corporations on the same basis as Indian tribes under Executive Order No. 13175.’’ 13 10. To be consistent with Congress’ directive, the Commission is updating its policy to include ANCSA Corporations. The Commission recognizes and respects the distinct, unique, and individual cultural traditions and values of Alaska Native peoples and the statutory relationship between ANCSA Corporations and the Federal Government. 11. The Commission distinguishes the Federal relationship to ANCSA 8 Hydroelectric Licensing under the Federal Power Act, Order No. 2002, 104 FERC ¶ 61,109, at P 279 (2003), order on reh’g, 106 FERC ¶ 61,037 (2004). 9 18 CFR 2.1c(e). 10 See e.g. Public Utility District No. 1 of Snohomish County, Washington, 146 FERC ¶ 61,197, reh’g denied, 149 FERC ¶ 61,206 (2014); PacifiCorp, 133 FERC ¶ 61,232 (2010), order on reh’g, 135 FERC ¶ 61,064 (2011); and Bradwood Landing LLC, 124 FERC ¶ 61,257 (2008), order on reh’g, 129 FERC ¶ 61,245 (2009). 11 25 U.S.C. 479a. 12 43 U.S.C. 1601, et seq. An ANCSA Corporation is defined as any Alaska Native village corporation, urban corporation, or regional corporation as defined in, or established pursuant to, the Alaska Native Claims Settlement Act. 43 U.S.C. 1602. 13 Consolidated Appropriations Act, 2004, Pub. L. 108–199, Div. II. Sec. 161, 118 Stat. 3, 452 (2004) as amended by Consolidated Appropriations Act, 2005, Pub. L. 108–447, Div. H., Title V. Sec. 518, 118 Stat. 2809, 3267 (2004). VerDate Sep<11>2014 15:51 Oct 23, 2019 Jkt 250001 Corporations from the government-togovernment relationship between the Federal Government and federally recognized Indian Tribes in Alaska and elsewhere, and the update to the policy will not diminish in any way that relationship and the consultation obligations towards federally recognized Indian Tribes. Information Collection Statement 12. The Paperwork Reduction Act and implementing regulations of the Office of Management and Budget (OMB) require OMB to approve certain information collection requirements imposed by agency rule.14 However, this Revised Policy Statement does not contain or modify any information collection requirements, and is therefore not subject to OMB approval. Environmental Analysis 13. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.15 Part 380 of the Commission’s regulations lists exemptions to the requirement to draft an Environmental Assessment or Environmental Impact Statement, and this revised policy statement qualifies under the exemption for procedural, ministerial or internal administrative actions.16 Regulatory Flexibility Act 14. The Regulatory Flexibility Act of 1980 (RFA) 17 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. Rules that are exempt from the notice and comment requirements of section 553(b) of the Administrative Procedure Act are exempt from the RFA requirements. This revised policy statement concerns matters of internal agency procedure and, therefore, an analysis under the RFA is not required. Document Availability 15. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the internet through the Commission’s Home Page (http:// 14 5 CFR 1320.12 (2019). Implementing the National Environmental Policy Act of 1969, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. ¶ 30,783 (1987).) (cross-referenced at 41 FERC ¶ 61,284). 16 18 CFR 380.4(a)(1) (2019). 17 5 U.S.C. 601–612 (2018). 15 Regulations PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 56941 www.ferc.gov) and in the Commission’s Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE, Room 2A, Washington, DC 20426. 16. From the Commission’s Home Page on the internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field. 17. User assistance is available for eLibrary and the Commission’s website during normal business hours from FERC Online Support at (202) 502–6652 (toll free at 1–866–208–3676) or email at ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502– 8371, TTY (202) 502–8659. Email the Public Reference Room at public.referenceroom@ferc.gov. Effective Date and Congressional Notification 18. This revised policy statement is effective November 25, 2019 without a period for public comment. Under 5 U.S.C. 533(b), notice and comment procedures are unnecessary where a rulemaking concerns only agency procedure or practice, or where the agency finds that notice and comment is unnecessary. This revised policy statement concerns only matters of agency procedure, and will not significantly affect regulated entities or the general public. 19. The Revised Policy Statement will be provided to the Congress and Government Accountability Office. List of Subjects in 18 CFR Part 2 General policy and interpretations. By the Commission. Issued: October 17, 2019. Kimberly D. Bose, Secretary. In consideration of the foregoing, the Commission is amending part 2, chapter I, title 18, Code of Federal Regulations, as follows. PART 2—GENERAL POLICY AND INTERPRETATIONS 1. The authority citation for part 2 continues to read as follows: ■ Authority: 5 U.S.C. 601; 15 U.S.C. 717– 717z, 3301–3432; 16 U.S.C. 792–828c, 2601– 2645; 42 U.S.C. 4321–4370h, 7101–7352. 2. In § 2.1c: a. In paragraph (a), add ‘‘and Alaska Native Claims Settlement Act (ANCSA) ■ ■ E:\FR\FM\24OCR1.SGM 24OCR1 56942 Federal Register / Vol. 84, No. 206 / Thursday, October 24, 2019 / Rules and Regulations RIN 1205–AB96 Heidi M. Casta, Deputy Administrator, Office of Policy Development and Research, U.S. Department of Labor, 200 Constitution Avenue NW, Room N– 5641, Washington, DC 20210; telephone (202) 693–3700 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1–800–877–8339. SUPPLEMENTARY INFORMATION: In the DFR, the Department stated that if a significant adverse comment was submitted by September 30, 2019, the agency would publish a timely withdrawal in the Federal Register informing the public that this DFR will not take effect. The Department received two significant adverse comments prior to the close of the comment period and, therefore, is withdrawing the direct final rule. The Department will address the comments in a subsequent final action based upon the proposed action also published in the Federal Register on August 29, 2019 (84 FR 45449). Accordingly, effective October 24, 2019, the amendment to 20 CFR part 686 published in the Federal Register on August 29, 2019 (84 FR 45449) is withdrawn. Procurement Roles and Responsibilities for Job Corps Contracts John P. Pallasch, Assistant Secretary for Employment and Training, Labor. remanded to EPA by the Court of Appeals for the Fourth Circuit. This action is exempt from notice-andcomment rulemaking because it is ministerial in nature. DATES: This final rule is effective on October 24, 2019. ADDRESSES: EPA has established a docket for this action under Docket ID Number EPA–R03–OAR–2017–0382. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through https:// www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information. FOR FURTHER INFORMATION CONTACT: Sara Calcinore, Planning & Implementation Branch (3AD30), Air & Radiation Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. The telephone number is (215) 814–2043. Ms. Calcinore can also be reached via electronic mail at calcinore.sara@ epa.gov. [FR Doc. 2019–23238 Filed 10–23–19; 8:45 am] SUPPLEMENTARY INFORMATION: Corporations’’ after ‘‘Indian tribes’’ in the first sentence. ■ b. In paragraph (c), add ‘‘and with ANCSA Corporations in a similar manner,’’ after ‘‘government-togovernment basis,’’ in the first sentence. ■ c. In paragraph (e), remove ‘‘or Indian trust resources’’ and add in its place ‘‘Indian trust resources, or treaty rights’’. ■ d. Add a sentence to the end of paragraph (e). The addition reads as follows: § 2.1c Policy statement on consultation with Indian tribes in Commission proceedings. * * * * * (e) * * * The Commission will use the agency’s environmental and decisional documents to communicate how tribal input has been considered. * * * * * [FR Doc. 2019–23099 Filed 10–23–19; 8:45 am] BILLING CODE 6717–01–P DEPARTMENT OF LABOR Employment and Training Administration 20 CFR Part 686 [DOL Docket No. ETA–2019–0006] Employment and Training Administration, Labor. ACTION: Withdrawal of direct final rule. AGENCY: Due to the receipt of two significant adverse comments, the Department of Labor (Department) is withdrawing the August 29, 2019, direct final rule (DFR) that would have made two procedural changes to its Workforce Innovation and Opportunity Act (WIOA) Job Corps regulations. The changes would have enabled the Secretary of Labor to delegate procurement authority as it relates to the development and issuance of requests for proposals for the operation of Job Corps centers, outreach and admissions, career transitional services, and other operational support services. This action would have aligned regulatory provisions with the relevant WIOA statutory language to provide greater flexibility for internal operations and management of the Job Corps program. DATES: Effective October 24, 2019, the direct final rule published at 84 FR 45403 on August 29, 2019, is withdrawn. khammond on DSKJM1Z7X2PROD with RULES SUMMARY: VerDate Sep<11>2014 15:51 Oct 23, 2019 Jkt 250001 FOR FURTHER INFORMATION CONTACT: BILLING CODE 4510–FT–P I. Background and Rationale for This Action ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R03–OAR–2017–0382; FRL–10001– 45–Region 3] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Correction Due to Vacatur of Revisions To Implement the Revocation of the 1997 Ozone National Ambient Air Quality Standards Final Rule Environmental Protection Agency (EPA). ACTION: Final rule; correction. AGENCY: The Environmental Protection Agency (EPA) is correcting the state implementation plan (SIP) for the Commonwealth of Virginia to remove from the Code of Federal Regulations (CFR) revisions to the Virginia SIP that were initially incorporated into the SIP in a February 22, 2018 final action that was subsequently vacated and SUMMARY: PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 Under the Clean Air Act (CAA or the Act), EPA establishes National Ambient Air Quality Standards (NAAQS) for criteria pollutants 1 in order to protect human health and the environment. In response to scientific evidence linking ozone exposure to adverse health effects, EPA promulgated the first ozone NAAQS, the 0.12 part per million (ppm) 1-hour ozone NAAQS, in 1979. See 44 FR 8202 (February 8, 1979). The CAA requires EPA to review and reevaluate the NAAQS every five years in order to consider updated information regarding the effects of the criteria pollutants on human health and the environment. On July 18, 1997, EPA promulgated a revised ozone NAAQS, referred to as the 1997 ozone NAAQS, of 0.08 ppm averaged over eight hours. 62 FR 38855. This 8-hour ozone NAAQS was determined to be more protective of 1 The ‘‘criteria pollutants’’ include ozone (O ), 3 particulate matter (PM), sulfur dioxide (SO2), nitrogen dioxide (NO2), carbon monoxide (CO), and lead (Pb). E:\FR\FM\24OCR1.SGM 24OCR1

Agencies

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



[[Page 56940]]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 2

[Docket No. PL20-1-000]


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

AGENCY: Federal Energy Regulatory Commission, Department of Energy.

ACTION: Final rule.

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

DATES: Effective November 25, 2019.

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

SUPPLEMENTARY INFORMATION:
    1. By this order, the Commission is amending its Policy Statement 
on Consultation with Indian Tribes in Commission Proceedings (policy 
statement) \1\ by adding a specific reference to treaty rights and 
noting that the Commission addresses tribal input in its National 
Environmental Policy Act (NEPA) documents and orders. In addition, the 
Commission is adding consultation with Alaska Native Corporations to 
the policy statement consistent with Congress' requirement that all 
Federal agencies consult with Alaska Native corporations on the same 
basis as Indian tribes under Executive Order No. 13175.
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    \1\ Policy Statement on Consultation with Indian Tribes in 
Commission Proceedings, Order No. 635, 104 FERC ] 61,108 (2003). The 
policy statement is codified at 18 CFR 2.1c (2019).
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Background and Discussion

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

    \2\ The policy statement notes that the statutes governing the 
Commission's authority primarily consist of the Federal Power Act, 
the Natural Gas Act, the Public Utilities Regulatory Policies Act of 
1978, the Interstate Commerce Act, the Outer Continental Shelf Lands 
Act, National Environmental Policy Act, and Section 106 of the 
National Historic Preservation Act.
    \3\ 18 CFR 385.2201 (2019).
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    3. In March 2017, the U.S. Government Accountability Office (GAO) 
commenced an engagement on tribal consultation practices, in which it 
sought to review tribal consultation practices of 21 federal agencies 
involved in permitting, review, or funding of infrastructure 
projects.\4\ The engagement was focused on federal agencies' compliance 
with government to government consultation and coordination 
responsibilities under Executive Order 13175; tribal consultation 
practices used by federal agencies during permitting and developmental 
processes; definition and consistent application of ``meaningful tribal 
consultations'' by federal agencies; opportunities for tribal input 
into contiguous, off-reservation developments that may result in 
pollution or other impacts on their land; and appeal options, if any, 
available to tribes.
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    \4\ The 21 federal agencies (which included 3 independent 
regulatory agencies, 3 departments, and 15 component agencies) were: 
The Department of Agriculture's Forest Service and Rural 
Development; Department of Commerce's National Oceanic and 
Atmospheric Administration (NMFS); Department of Defense's Army 
Corps of Engineers (Corps); Department of Energy (DOE); 
Environmental Protection Agency (EPA); Federal Communications 
Commission (FCC); Federal Energy Regulatory Commission (FERC or 
Commission); Department of Homeland Security's Coast Guard (Coast 
Guard) and Federal Emergency Management Agency (FEMA); Department of 
Housing and Urban Development (HUD); Department of the Interior's 
Bureau of Land Management (BLM), Bureau of Ocean Energy Management 
(BOEM), Bureau of Reclamation (Reclamation), Fish and Wildlife 
Service (FWS), and National Park Service (NPS); Nuclear Regulatory 
Commission (NRC); and Department of Transportation's Federal 
Aviation Administration (FAA), Federal Highway Administration (FHA), 
Federal Railroad Administration (FRA), and Federal Transit 
Administration (FTA).
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    4. In March 2019, GAO issued its final report entitled, ``Tribal 
Consultation: Additional Federal Actions Needed for Infrastructure 
Projects (GAO-19-22).'' \5\ GAO directed one of the 22 recommendations 
made in the report to the Commission.\6\ Specifically, the GAO 
recommendation stated that ``[t]he Federal Energy Regulatory Commission 
should document in its tribal consultation policy how agency officials 
are to communicate with tribes about how their input from consultation 
was considered in agency decisions on infrastructure projects.'' \7\
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    \5\ Tribal Consultation: Additional Federal Actions Needed for 
Infrastructure Projects (GAO-19-22), March 2019 (GAO Report).
    \6\ The report made a similar recommendation regarding 13 of the 
other 21 agencies: the Department of Agriculture's Rural 
Development; Corps; DOE; FCC; DHS; FEMA; HUD; BOEM, Reclamation, FWS 
and NPS; NRC; and DOT.
    \7\ GAO Report at 58.
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A. Communication

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

B. Treaty Rights

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

[[Page 56941]]

trust responsibility.'' \8\ The policy statement states that the 
``Commission, in keeping with its trust responsibility, will assure 
that tribal concerns and interests are considered whenever the 
Commission's actions or decisions have the potential to adversely 
affect Indian tribes or Indian trust resources.'' \9\
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    \8\ Hydroelectric Licensing under the Federal Power Act, Order 
No. 2002, 104 FERC ] 61,109, at P 279 (2003), order on reh'g, 106 
FERC ] 61,037 (2004).
    \9\ 18 CFR 2.1c(e).
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    7. While the Commission already considers the effect of actions on 
treaty rights in its NEPA and decision documents,\10\ the Commission is 
taking this opportunity to clarify that point by adding specific 
mention of treaty rights in the policy statement.
---------------------------------------------------------------------------

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

    8. The policy statement addresses consultation with federally-
recognized Indian tribes (including Alaska Native tribes, villages, and 
communities) that the Secretary of the Interior acknowledges to exist 
as an Indian tribe pursuant to the Federally Recognized Indian Tribe 
List Act of 1994.\11\ It does not, however, address consultation with 
Corporations established pursuant to the Alaska Native Claims 
Settlement Act (ANCSA Corporations).\12\
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    \11\ 25 U.S.C. 479a.
    \12\ 43 U.S.C. 1601, et seq. An ANCSA Corporation is defined as 
any Alaska Native village corporation, urban corporation, or 
regional corporation as defined in, or established pursuant to, the 
Alaska Native Claims Settlement Act. 43 U.S.C. 1602.
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    9. After the Commission issued its policy statement, Congress 
directed that ``[t]he Director of the Office of Management and Budget 
[and all Federal agencies] shall hereafter consult with Alaska Native 
corporations on the same basis as Indian tribes under Executive Order 
No. 13175.'' \13\
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    \13\ Consolidated Appropriations Act, 2004, Pub. L. 108-199, 
Div. II. Sec. 161, 118 Stat. 3, 452 (2004) as amended by 
Consolidated Appropriations Act, 2005, Pub. L. 108-447, Div. H., 
Title V. Sec. 518, 118 Stat. 2809, 3267 (2004).
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    10. To be consistent with Congress' directive, the Commission is 
updating its policy to include ANCSA Corporations. The Commission 
recognizes and respects the distinct, unique, and individual cultural 
traditions and values of Alaska Native peoples and the statutory 
relationship between ANCSA Corporations and the Federal Government.
    11. The Commission distinguishes the Federal relationship to ANCSA 
Corporations from the government-to-government relationship between the 
Federal Government and federally recognized Indian Tribes in Alaska and 
elsewhere, and the update to the policy will not diminish in any way 
that relationship and the consultation obligations towards federally 
recognized Indian Tribes.

Information Collection Statement

    12. The Paperwork Reduction Act and implementing regulations of the 
Office of Management and Budget (OMB) require OMB to approve certain 
information collection requirements imposed by agency rule.\14\ 
However, this Revised Policy Statement does not contain or modify any 
information collection requirements, and is therefore not subject to 
OMB approval.
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    \14\ 5 CFR 1320.12 (2019).
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Environmental Analysis

    13. The Commission is required to prepare an Environmental 
Assessment or an Environmental Impact Statement for any action that may 
have a significant adverse effect on the human environment.\15\ Part 
380 of the Commission's regulations lists exemptions to the requirement 
to draft an Environmental Assessment or Environmental Impact Statement, 
and this revised policy statement qualifies under the exemption for 
procedural, ministerial or internal administrative actions.\16\
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    \15\ Regulations Implementing the National Environmental Policy 
Act of 1969, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. 
& Regs. ] 30,783 (1987).) (cross-referenced at 41 FERC ] 61,284).
    \16\ 18 CFR 380.4(a)(1) (2019).
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Regulatory Flexibility Act

    14. The Regulatory Flexibility Act of 1980 (RFA) \17\ generally 
requires a description and analysis of final rules that will have 
significant economic impact on a substantial number of small entities. 
Rules that are exempt from the notice and comment requirements of 
section 553(b) of the Administrative Procedure Act are exempt from the 
RFA requirements. This revised policy statement concerns matters of 
internal agency procedure and, therefore, an analysis under the RFA is 
not required.
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    \17\ 5 U.S.C. 601-612 (2018).
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Document Availability

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

Effective Date and Congressional Notification

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

List of Subjects in 18 CFR Part 2

    General policy and interpretations.

    By the Commission.

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

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

PART 2--GENERAL POLICY AND INTERPRETATIONS

0
1. The authority citation for part 2 continues to read as follows:

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


0
2. In Sec.  2.1c:
0
a. In paragraph (a), add ``and Alaska Native Claims Settlement Act 
(ANCSA)

[[Page 56942]]

Corporations'' after ``Indian tribes'' in the first sentence.
0
b. In paragraph (c), add ``and with ANCSA Corporations in a similar 
manner,'' after ``government-to-government basis,'' in the first 
sentence.
0
c. In paragraph (e), remove ``or Indian trust resources'' and add in 
its place ``Indian trust resources, or treaty rights''.
0
d. Add a sentence to the end of paragraph (e).
    The addition reads as follows:


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

* * * * *
    (e) * * * The Commission will use the agency's environmental and 
decisional documents to communicate how tribal input has been 
considered.
* * * * *
[FR Doc. 2019-23099 Filed 10-23-19; 8:45 am]
 BILLING CODE 6717-01-P