ML18180A371

Tpm Comment Resolution Table

ML18180A371
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Issue date:	06/29/2018
From:	Office of Nuclear Material Safety and Safeguards
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TPM Comment Resolution Table Comment Organizati Commen Comment Resolution No. on t Theme/

/Name Location in TPM 1 Carey TPM 2.4 Glad TPM being The NRC disagrees with MacCarthy created, but thinks the this comment. The TPM Chapter 1 historical account is includes summaries of not accurate by just each of the distinct eras of listing treaties without relations between the taking into account the United States and Native genocide, American Tribes displacement and mentioning the genocide, conversion/assimilatio displacement, conversion n of the Native People. and assimilation of the Native Americans. As a guidance document the scope of the discussion is limited, but provides references for further information. No changes were made to the TPM.

2 Carey TPM 2.4 Close collaboration We considered comments MacCarthy with actual Native received from Native Chapter 1 People in re-writing American commenters these documents, as when revising the TPM.

well as the future outreach and collaboration with Tribal Nations.

2 ACHP- TPM 1.1 Recodification of The NRC agrees and Charlene and 1.3 Section 106 of NHPA updated Section 2.C of the Dwin in December 2014 TPM under National Vaughan Chapter should be reflected in Historic Preservation Act of 2, Section TPM. 1966, as amended.

2.C.

3 ACHP- TPM 1.1 Include Alaska Natives The NRC agrees with this Charlene and 1.3 and Native Hawaiians comment. The TPM Dwin in the TPM. specifically discusses Vaughan Alaska Natives on page 9, and mentions the Native Hawaiian Organizations and Alaska Natives when discussing specific statutory provisions on page 16-18). No changes were made to TPM.

COMMENT THEME DESIGNATIONS: TRIBAL PROTOCOL MANUAL (TPM): 1. Discussion of NRCs Process for Engaging Tribes (1.1 Section 106 Process, 1.2 Cooperating Agency and MOUs, 1.3 Information Sharing) 2. Federal-Tribal Relations (2.1 History, 2.2 Sovereign Nations, 2.3 Cultural/Religious, 2.4 Treaties, 2.5 Federally-recognized Tribes, 2.6 Non-Federally Tribes, 2.7 State Relations (i.e. Alaska), 2.8 Socio-Economic Considerations) 3.

Terminology; 4. Summary of NRC Tribal Consultation Process; 5. NRC Tribal Resources; 6. Miscellaneous

TPM Comment Resolution Table Reference Native The NRC neither agrees American nor disagrees with the communities, not the comment. The terms Native American Native American community. Communities and the Native American Community are not used in the 2017 TPM.

4 ACHP- TPM 3 Recommends The NRC agrees. Changes Charlene replacing interested were made throughout the Dwin Chapter parties with TPM.

Vaughan 2, Section consulting parties.

2.C.

5 ACHP- TPM 3 Recommends The NRC agrees. Changes Charlene removing the word were made accordingly in Dwin Chapter extensive when Chapter 2, Section 2.C.

Vaughan 2, Section describing adverse 2.C. effects.

6 ACHP- TPM 3 Recommends stating The NRC agrees. Changes Charlene that government-to- were made accordingly in Dwin Chapter government Chapter 2, Section 2.D.

Vaughan 2, Section consultation with 2.D. Tribes is required for undertakings that occur on and off Tribal lands.

7 ACHP- TPM 2.3 Recommends adding The NRC agrees. Changes Charlene National Park Service were made accordingly in Dwin Chapter reference for Chapter 2, Section 2.D.

Vaughan 2, Section maintaining a list of 2.D. Tribes that have assumed the responsibility of the SHPO for 106 compliance on Tribal lands.

8 ACHP- TPM 3 Recommends The NRC agrees. Changes Charlene removing the phrase were made to the TPM to Dwin Chapter from a Native remove this phrase.

Vaughan 1, Section American 1.C. perspective.

9 ACHP- TPM 3 Recommends The NRC agrees. Changes Charlene replacing the word were made to the TPM to Dwin Chapter invite with the word address this comment.

Vaughan 2, Section ensure.

2.B.

COMMENT THEME DESIGNATIONS: TRIBAL PROTOCOL MANUAL (TPM): 1. Discussion of NRCs Process for Engaging Tribes (1.1 Section 106 Process, 1.2 Cooperating Agency and MOUs, 1.3 Information Sharing) 2. Federal-Tribal Relations (2.1 History, 2.2 Sovereign Nations, 2.3 Cultural/Religious, 2.4 Treaties, 2.5 Federally-recognized Tribes, 2.6 Non-Federally Tribes, 2.7 State Relations (i.e. Alaska), 2.8 Socio-Economic Considerations) 3.

Terminology; 4. Summary of NRC Tribal Consultation Process; 5. NRC Tribal Resources; 6. Miscellaneous

TPM Comment Resolution Table 10 Pokagon TPM 4 Recommends that the The NRC disagrees with Band of NRC take a broader this comment. The TPM is Potawatomi Chapter approach to Tribal consistent with the NRC

- John 1, Section consultation. Tribal Policy Statement and Warren 1.B. Recommends that the E.O. 13175, which state TPM be revised to Policies that have Tribal provide that the NRC implications refers to engage in Tribal regulations, legislative consultation when comments or proposed regulations, legislative legislation, and other policy comments or statements or actions that proposed legislation have substantial direct and other policy effects on one or more statements or actions Indian Tribes, on the of any nature have the relationship between the potential for direct Federal Government and effects on one or more Indian Tribes, or on the or Indian Tribes... distribution of power and responsibilities between the Federal Government and Indian Tribes. The suggested language could expand the scope of the NRCs obligations well beyond those established in E.O. 13175. As reflected in the Tribal Policy Statement and the TPM, the NRC is committed to maintaining a positive relationship with Federally-recognized Tribes and strives to ensure that these Tribes are appropriately engaged in NRCs activities. Further, if a Tribe believes that the NRC should engage in consultation, the NRC welcomes requests for 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 COMMENT THEME DESIGNATIONS: TRIBAL PROTOCOL MANUAL (TPM): 1. Discussion of NRCs Process for Engaging Tribes (1.1 Section 106 Process, 1.2 Cooperating Agency and MOUs, 1.3 Information Sharing) 2. Federal-Tribal Relations (2.1 History, 2.2 Sovereign Nations, 2.3 Cultural/Religious, 2.4 Treaties, 2.5 Federally-recognized Tribes, 2.6 Non-Federally Tribes, 2.7 State Relations (i.e. Alaska), 2.8 Socio-Economic Considerations) 3.

Terminology; 4. Summary of NRC Tribal Consultation Process; 5. NRC Tribal Resources; 6. Miscellaneous

TPM Comment Resolution Table changes were made to the TPM.

11 Pokagon TPM 2.5 Requests including the The NRC agrees with Band of and 5 Band as one of the comment. The TPM was Potawatomi Indian Tribes that has changed in Chapter 3,

- John Chapter trust Section 3.E to include an Warren 3, Section land within a 50-Mile updated map identifying 3.E. Radius of a Nuclear Tribes. The NRC used Pairie Power Plant. information from the U.S.

Island Additionally, the Band Census to update the map Indian recommends that the in Chapter 3, Section 3.E.

Community NRC consult with the

- Philip Bureau of Indian Mahowald Affairs to ensure that Section 3.E includes all Indian Tribes that have reservations or trust land within a 50-Mile Radius of a Nuclear Power Plant.

12 Pokagon TPM 1.3 The reference to the The NRC agrees with Band of Indian Reorganization comment. Changes were Potawatomi Chapter Act (IRA) granting made in Chapter 1, Section

- John 1, Section Indian Tribes certain 1.C to address this Warren 1.C. rights of home rule is a comment.

misstatement and should be revised. The IRA did not grant Indian Tribes such rights instead, it recognized that Indian Tribes, a[s] sovereign nations, possesses such rights by virtue of their inherent sovereign authority.

13 Indiana TPM 2.5 The Manual may need The NRC agrees with Michigan to be updated, as it comment. Changes were Power - R. Chapter does not list any made to the TPM to Budd 3, Section facilities in Michigan. address this comment.

Haemer, 3.E 14 Indiana TPM 4 Commenter stated Similar comments were Michigan that the TPM uses the made on the proposed Power - R. terms consult and Tribal Policy Statement.

COMMENT THEME DESIGNATIONS: TRIBAL PROTOCOL MANUAL (TPM): 1. Discussion of NRCs Process for Engaging Tribes (1.1 Section 106 Process, 1.2 Cooperating Agency and MOUs, 1.3 Information Sharing) 2. Federal-Tribal Relations (2.1 History, 2.2 Sovereign Nations, 2.3 Cultural/Religious, 2.4 Treaties, 2.5 Federally-recognized Tribes, 2.6 Non-Federally Tribes, 2.7 State Relations (i.e. Alaska), 2.8 Socio-Economic Considerations) 3.

Terminology; 4. Summary of NRC Tribal Consultation Process; 5. NRC Tribal Resources; 6. Miscellaneous

TPM Comment Resolution Table Budd outreach Those comments were Haemer, interchangeably, addressed for the Tribal which may create Policy Statement, 82 Fed.

unnecessary Reg. 2402 (Jan. 9, 2017).

confusion. The TPM Revisions throughout the should clearly TPM clarified the difference distinguish between between outlook and general agency consultation. Page 35 of outreach and the more the TPM also include the formal government-to- definitions of outreach government and consultation.

consultation.

Commenter provided specific suggests to minimize this ambiguity.

15 Indiana Commenter stated The NRC agrees in part Michigan that in Government- and disagrees in part with Power - R. to-Government the comment. The NRC Budd relations, usually has definition of consultation is Haemer, a specific meaning. contained on page 35 of When one the TPM. Consultation Government means efforts to conduct undertakes to consult meaningful and timely with another, a due discussions between the respect for the NRC and Tribal sovereignty of the governments on the NRCs consulted Government regulatory actions that have means that the substantial direct effects on position of the one or more Indian Tribes consulted and those regulatory Government, within actions for which Tribal the scope of the consultation is required consultation, should under Federal statute. The be adopted unless NRCs Tribal consultation there is a substantial allows Indian Tribes the reason not to do so. opportunity to provide input See E. 0. 13175, § on regulatory actions with 3(c)(2), Nov. 6,2000; Tribal implications and see generally, 25 USC those where Tribal

§ 201 l(b); 42 USC § consultation is required, 10137(b) (requiring and is different from the the written position of outreach and public a consulted Indian comment periods. The Tribe to be considered consultation process may to the "maximum include, but is not limited to, extent feasible"). providing for mutually-COMMENT THEME DESIGNATIONS: TRIBAL PROTOCOL MANUAL (TPM): 1. Discussion of NRCs Process for Engaging Tribes (1.1 Section 106 Process, 1.2 Cooperating Agency and MOUs, 1.3 Information Sharing) 2. Federal-Tribal Relations (2.1 History, 2.2 Sovereign Nations, 2.3 Cultural/Religious, 2.4 Treaties, 2.5 Federally-recognized Tribes, 2.6 Non-Federally Tribes, 2.7 State Relations (i.e. Alaska), 2.8 Socio-Economic Considerations) 3.

Terminology; 4. Summary of NRC Tribal Consultation Process; 5. NRC Tribal Resources; 6. Miscellaneous

TPM Comment Resolution Table While they can be agreed protocols, timely undertaken in many communication, forms and forums, coordination, cooperation, such consultations are and collaboration. The generally formal; consultation process reflecting that both provides opportunities for governments invest appropriate Tribal officials substantial resources or representatives to meet in the consultation. with NRC management or staff to achieve a mutual understanding between the NRC and the Tribes of their respective interests and perspectives. E.O.

16 Indiana TPM 3 In Section 1.F, under The NRC agrees in part Michigan and 4 Power Reactor and disagrees in part with Power - R. Inspections and this comment. The Budd Chapter License Renewal -- following sentence was Haemer 1, Section Prairie Island Indian added as the last sentence 1.F. Community, add a in the first paragraph on pg.

clarifying paragraph to 12 of the TPM, The above the end that explains, MOUs reflect effective These MOU reflect outreach, cooperation, and effective cooperation consultation between the and communication NRC and the PIIC.

outreach by the NRC to the PIIC. Such outreach would not be in lieu of formal consultation when appropriate."

17 Indiana TPM 3 In Section 1.F, under NRC disagrees with the Michigan and 4 Uranium Recovery commenters description of Power - R. and Legacy Waste the six projects. No Budd Chapter Associated with changes were made to the Haemer 1, Section Uranium Mining and TPM.

1.F. Milling -- Located in New Mexico, Wyoming, Nebraska, and South Dakota, add a clarifying paragraph to the end that states, Effective communications on COMMENT THEME DESIGNATIONS: TRIBAL PROTOCOL MANUAL (TPM): 1. Discussion of NRCs Process for Engaging Tribes (1.1 Section 106 Process, 1.2 Cooperating Agency and MOUs, 1.3 Information Sharing) 2. Federal-Tribal Relations (2.1 History, 2.2 Sovereign Nations, 2.3 Cultural/Religious, 2.4 Treaties, 2.5 Federally-recognized Tribes, 2.6 Non-Federally Tribes, 2.7 State Relations (i.e. Alaska), 2.8 Socio-Economic Considerations) 3.

Terminology; 4. Summary of NRC Tribal Consultation Process; 5. NRC Tribal Resources; 6. Miscellaneous

TPM Comment Resolution Table these six projects were hampered by confusion and delays arising in part from inadequate definition of the scope of formal consultations. Both to reflect the requirement under the National Historic Preservation Act to consult with affected Tribes and to respond when outreach identified historic preservation issues of potential significant impact to the Tribes, the NRC should have initiated formal consultations with a clearly defined scope that described the subjects of such impacts. The NRC could have performed its consultation in parallel with continuing its outreach activities but minimized the associated confusion and resulting delays by more clearly defining the scope of the consultation.

Explaining how the scope of consultation could be better defined would capture lessons learned from these consultations where the consultation focused on historic properties, but the outreach was broader to cover the licensing action in general.

COMMENT THEME DESIGNATIONS: TRIBAL PROTOCOL MANUAL (TPM): 1. Discussion of NRCs Process for Engaging Tribes (1.1 Section 106 Process, 1.2 Cooperating Agency and MOUs, 1.3 Information Sharing) 2. Federal-Tribal Relations (2.1 History, 2.2 Sovereign Nations, 2.3 Cultural/Religious, 2.4 Treaties, 2.5 Federally-recognized Tribes, 2.6 Non-Federally Tribes, 2.7 State Relations (i.e. Alaska), 2.8 Socio-Economic Considerations) 3.

Terminology; 4. Summary of NRC Tribal Consultation Process; 5. NRC Tribal Resources; 6. Miscellaneous

TPM Comment Resolution Table 18 Indiana TPM 3 In Section 2.B, in the NRC agrees in part and Michigan and 4 penultimate [2017 disagrees in part with this Power - R. TPN page 15, fifth] comment. Revisions Budd Chapter paragraph, replace throughout the TPM Haemer 2, Section Through consultation, clarified the difference 2.B. the NRC obtains Tribal between outlook and views on proposed consultation. Page 35 of NRC actions and the TPM also include the policies that have a definitions of outreach direct substantial and consultation.

effect on one or more Indian Tribes with Through consultation, the NRC obtains Tribal written input on matters within the scope of the consultation and implements that input unless there is a substantial reason not to do so. The scope of such consultations are defined in writing in advance and specify the aspects of the proposed NRC policies, rules and guidance that have a direct substantial effect on one or more Indian Tribes. The current sentence seems to confuse the objectives of outreach, such as obtaining views, with the objectives of consultation, such as obtaining agreement on decisions.

19 Indiana TPM 3 In Section 2.D, NRC agrees with the Michigan and 4 replace consultation comment. Chapter 2, Power - R. with dialogue, Section 2.D of the TPM Budd Chapter reflecting that was revised to address this Haemer 2, Section consultation is not comment.

2.D.

COMMENT THEME DESIGNATIONS: TRIBAL PROTOCOL MANUAL (TPM): 1. Discussion of NRCs Process for Engaging Tribes (1.1 Section 106 Process, 1.2 Cooperating Agency and MOUs, 1.3 Information Sharing) 2. Federal-Tribal Relations (2.1 History, 2.2 Sovereign Nations, 2.3 Cultural/Religious, 2.4 Treaties, 2.5 Federally-recognized Tribes, 2.6 Non-Federally Tribes, 2.7 State Relations (i.e. Alaska), 2.8 Socio-Economic Considerations) 3.

Terminology; 4. Summary of NRC Tribal Consultation Process; 5. NRC Tribal Resources; 6. Miscellaneous

TPM Comment Resolution Table generally applicable to a licensing action.

20 Indiana TPM 2.3 Suggests altering The NRC agrees in part Michigan and 2.6 language about using and disagrees in part with Power - R. Federal funds for food the comment. The NRC Budd and drink since some must abide by Federal Haemer federal agencies have guidelines related to budgetary exceptions providing food and to provide [fund] food beverage during meetings.

and drink at meetings. The current language Before offering food or refreshment at an NRC hosted meeting, the NRC staff should seek guidance from the Office of the General Counsel.allows the NRC staff to consider whether an exception could apply on a case-by-case basis. No changes were made to the TPM.

21 Prairie TPM 2 Taken together, both The NRC agrees with the Island the Tribal Protocol comment. No changes Indian Manual and the NRC were made to the TPM.

Community Tribal Policy

- Philip Statement (and their Mahowald 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.

COMMENT THEME DESIGNATIONS: TRIBAL PROTOCOL MANUAL (TPM): 1. Discussion of NRCs Process for Engaging Tribes (1.1 Section 106 Process, 1.2 Cooperating Agency and MOUs, 1.3 Information Sharing) 2. Federal-Tribal Relations (2.1 History, 2.2 Sovereign Nations, 2.3 Cultural/Religious, 2.4 Treaties, 2.5 Federally-recognized Tribes, 2.6 Non-Federally Tribes, 2.7 State Relations (i.e. Alaska), 2.8 Socio-Economic Considerations) 3.

Terminology; 4. Summary of NRC Tribal Consultation Process; 5. NRC Tribal Resources; 6. Miscellaneous

TPM Comment Resolution Table 22 Prairie TPM 2 This point is The NRC agrees with the Island underscored in the comment. No changes Indian Tribal Protocol were made to the TPM.

Community Manual, which notes

- Philip that Indian Tribes are Mahowald 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.

23 Prairie TPM 2.4 Commenter notes that NRC agrees with the Island upholding a Trust comment. Similar Indian Preface relationship with comments were addressed Community Chapter Indian Tribes means in Responses 1.1 through

- Phillip 1.D more to Indian Tribes 1.6 for the Tribal Policy Mahowald than just ensuring the Statement, 82 Fed. Reg.

tribal members receive 2402 (Jan. 9, 2017). The the same protections Tribal Policy Statement and that are available to TPM Preface and Section other persons (i.e., the 1.D were revised to general public.) In our address these comments.

view, the NRC is The TPM Preface says, As required to do more, an independent regulatory not less. agency that does not hold in trust Tribal lands or assets or provide services to Federally recognized Tribes, the NRC fulfills its Trust Responsibility by implementing the principles of the Tribal Policy Statement, providing protections under its implementing regulations, and recognizing additional obligations consistent with other applicable treaties and statutory authorities. A similar sentence was added COMMENT THEME DESIGNATIONS: TRIBAL PROTOCOL MANUAL (TPM): 1. Discussion of NRCs Process for Engaging Tribes (1.1 Section 106 Process, 1.2 Cooperating Agency and MOUs, 1.3 Information Sharing) 2. Federal-Tribal Relations (2.1 History, 2.2 Sovereign Nations, 2.3 Cultural/Religious, 2.4 Treaties, 2.5 Federally-recognized Tribes, 2.6 Non-Federally Tribes, 2.7 State Relations (i.e. Alaska), 2.8 Socio-Economic Considerations) 3.

Terminology; 4. Summary of NRC Tribal Consultation Process; 5. NRC Tribal Resources; 6. Miscellaneous

TPM Comment Resolution Table to the last paragraph in Section 1.D.

24 National Comment Comments regarding Comment is out of scope Tribal Air is out of the Advanced for the TPM and similar Association scope Notification Rule, by comments were addressed

- Bill which Indian Tribes in Comment Responses 6.3 Thompson would receive and 6.4 for the Tribal Policy advance notification of Statement, 82 Fed. Reg.

Prairie shipments of irradiated 2402 (Jan. 9, 2017). No Island reactor fuel and other changes were made to the Indian nuclear wastes TPM.

Community transported across

- Phillip their reservations.

Mahowald 25 Prairie Comment Comment on Comment is out of scope Island is out of comments (mostly for the TPM. A similar Indian scope from representatives comment was addressed in Community of the uranium Comment response 6.1 for

- Phillip industry) submitted to the Tribal Policy Statement, Mahowald NRC in 2013 82 Fed. Reg. 2402 (Jan. 9, concerning the NHPA 2017). No changes were Section 106 process. made to the TPM.

26 Carey Comment NRC should hire Comment is out of scope MacCarthy is out of Native Americans to for the TPM.

scope be liaisons.

COMMENT THEME DESIGNATIONS: TRIBAL PROTOCOL MANUAL (TPM): 1. Discussion of NRCs Process for Engaging Tribes (1.1 Section 106 Process, 1.2 Cooperating Agency and MOUs, 1.3 Information Sharing) 2. Federal-Tribal Relations (2.1 History, 2.2 Sovereign Nations, 2.3 Cultural/Religious, 2.4 Treaties, 2.5 Federally-recognized Tribes, 2.6 Non-Federally Tribes, 2.7 State Relations (i.e. Alaska), 2.8 Socio-Economic Considerations) 3.

Terminology; 4. Summary of NRC Tribal Consultation Process; 5. NRC Tribal Resources; 6. Miscellaneous