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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Lynch J
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TPM Comment Resolution Table 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 Comment No.

Organizati on

/Name Commen t Theme/

Location in TPM Comment Resolution 1

Carey MacCarthy TPM 2.4 Chapter 1 Glad TPM being created, but thinks the historical account is not accurate by just listing treaties without taking into account the

genocide, displacement and conversion/assimilatio n of the Native People.

The NRC disagrees with this comment. The TPM includes summaries of each of the distinct eras of relations between the United States and Native American Tribes mentioning the genocide, displacement, conversion 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 MacCarthy TPM 2.4 Chapter 1 Close collaboration with actual Native People in re-writing these documents, as well as the future outreach and collaboration with Tribal Nations.

We considered comments received from Native American commenters when revising the TPM.

2 ACHP-Charlene Dwin Vaughan TPM 1.1 and 1.3 Chapter 2, Section 2.C.

Recodification of Section 106 of NHPA in December 2014 should be reflected in TPM.

The NRC agrees and updated Section 2.C of the TPM under National Historic Preservation Act of 1966, as amended.

3 ACHP-Charlene Dwin Vaughan TPM 1.1 and 1.3 Include Alaska Natives and Native Hawaiians in the TPM.

The NRC agrees with this comment. The TPM specifically discusses 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.

TPM Comment Resolution Table 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 Reference Native American communities, not the Native American community.

The NRC neither agrees nor disagrees with the comment. The terms Native American Communities and the Native American Community are not used in the 2017 TPM.

4 ACHP-Charlene Dwin Vaughan TPM 3 Chapter 2, Section 2.C.

Recommends replacing interested parties with consulting parties.

The NRC agrees. Changes were made throughout the TPM.

5 ACHP-Charlene Dwin Vaughan TPM 3 Chapter 2, Section 2.C.

Recommends removing the word extensive when describing adverse effects.

The NRC agrees. Changes were made accordingly in Chapter 2, Section 2.C.

6 ACHP-Charlene Dwin Vaughan TPM 3 Chapter 2, Section 2.D.

Recommends stating that government-to-government consultation with Tribes is required for undertakings that occur on and off Tribal lands.

The NRC agrees. Changes were made accordingly in Chapter 2, Section 2.D.

7 ACHP-Charlene Dwin Vaughan TPM 2.3 Chapter 2, Section 2.D.

Recommends adding National Park Service reference for maintaining a list of Tribes that have assumed the responsibility of the SHPO for 106 compliance on Tribal lands.

The NRC agrees. Changes were made accordingly in Chapter 2, Section 2.D.

8 ACHP-Charlene Dwin Vaughan TPM 3 Chapter 1, Section 1.C.

Recommends removing the phrase from a Native American perspective.

The NRC agrees. Changes were made to the TPM to remove this phrase.

9 ACHP-Charlene Dwin Vaughan TPM 3 Chapter 2, Section 2.B.

Recommends replacing the word invite with the word ensure.

The NRC agrees. Changes were made to the TPM to address this comment.

TPM Comment Resolution Table 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 10 Pokagon Band of Potawatomi

- John Warren TPM 4 Chapter 1, Section 1.B.

Recommends that the NRC take a broader approach to Tribal consultation.

Recommends that the TPM be revised to provide that the NRC engage in Tribal consultation when regulations, legislative comments or proposed legislation and other policy statements or actions of any nature have the potential for direct effects on one or more or Indian Tribes...

The NRC disagrees with this comment. The TPM is consistent with the NRC Tribal Policy Statement and E.O. 13175, which state 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 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

TPM Comment Resolution Table 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 changes were made to the TPM.

11 Pokagon Band of Potawatomi

- John Warren Pairie Island Indian Community

- Philip Mahowald TPM 2.5 and 5 Chapter 3, Section 3.E.

Requests including the Band as one of the Indian Tribes that has trust land within a 50-Mile Radius of a Nuclear Power Plant.

Additionally, the Band recommends that the NRC consult with the Bureau of Indian 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.

The NRC agrees with comment. The TPM was changed in Chapter 3, Section 3.E to include an updated map identifying Tribes. The NRC used information from the U.S.

Census to update the map in Chapter 3, Section 3.E.

12 Pokagon Band of Potawatomi

- John Warren TPM 1.3 Chapter 1, Section 1.C.

The reference to the Indian Reorganization Act (IRA) granting Indian Tribes certain rights of home rule is a 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.

The NRC agrees with comment. Changes were made in Chapter 1, Section 1.C to address this comment.

13 Indiana Michigan Power - R.

Budd

Haemer, TPM 2.5 Chapter 3, Section 3.E The Manual may need to be updated, as it does not list any facilities in Michigan.

The NRC agrees with comment. Changes were made to the TPM to address this comment.

14 Indiana Michigan Power - R.

TPM 4 Commenter stated that the TPM uses the terms consult and Similar comments were made on the proposed Tribal Policy Statement.

TPM Comment Resolution Table 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 Budd

Haemer, outreach interchangeably, which may create unnecessary confusion. The TPM should clearly distinguish between general agency outreach and the more formal government-to-government consultation.

Commenter provided specific suggests to minimize this ambiguity.

Those comments were addressed for the Tribal Policy Statement, 82 Fed.

Reg. 2402 (Jan. 9, 2017).

Revisions throughout the TPM clarified the difference between outlook and consultation. Page 35 of the TPM also include the definitions of outreach and consultation.

15 Indiana Michigan Power - R.

Budd

Haemer, Commenter stated that in Government-to-Government relations, usually has a specific meaning.

When one Government undertakes to consult with another, a due respect for the sovereignty of the consulted Government means that the position of the consulted Government, within the scope of the consultation, should be adopted unless there is a substantial reason not to do so.

See E. 0. 13175, § 3(c)(2), Nov. 6,2000; see generally, 25 USC

§ 201 l(b); 42 USC § 10137(b) (requiring the written position of a consulted Indian Tribe to be considered to the "maximum extent feasible").

The NRC agrees in part and disagrees in part with the comment. The NRC definition of consultation is contained on page 35 of the TPM. Consultation means efforts to conduct meaningful and timely discussions between the NRC and Tribal governments on the NRCs 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 NRCs 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-

TPM Comment Resolution Table 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 While they can be undertaken in many forms and forums, such consultations are generally formal; reflecting that both governments invest substantial resources in the consultation.

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. E.O.

16 Indiana Michigan Power - R.

Budd Haemer TPM 3 and 4 Chapter 1, Section 1.F.

In Section 1.F, under Power Reactor Inspections and License Renewal --

Prairie Island Indian Community, add a clarifying paragraph to the end that explains, These MOU reflect effective cooperation and communication outreach by the NRC to the PIIC. Such outreach would not be in lieu of formal consultation when appropriate."

The NRC agrees in part and disagrees in part with this comment. The following sentence was added as the last sentence in the first paragraph on pg.

12 of the TPM, The above MOUs reflect effective outreach, cooperation, and consultation between the NRC and the PIIC.

17 Indiana Michigan Power - R.

Budd Haemer TPM 3 and 4 Chapter 1, Section 1.F.

In Section 1.F, under Uranium Recovery and Legacy Waste Associated with Uranium Mining and Milling -- Located in New Mexico, Wyoming, Nebraska, and South Dakota, add a clarifying paragraph to the end that states, Effective communications on NRC disagrees with the commenters description of the six projects. No changes were made to the TPM.

TPM Comment Resolution Table 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 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.

TPM Comment Resolution Table 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 18 Indiana Michigan Power - R.

Budd Haemer TPM 3 and 4 Chapter 2, Section 2.B.

In Section 2.B, in the penultimate [2017 TPN page 15, fifth]

paragraph, replace Through consultation, the NRC obtains Tribal views on proposed NRC actions and policies that have a direct substantial 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.

NRC agrees in part and disagrees in part with this comment. Revisions throughout the TPM clarified the difference between outlook and consultation. Page 35 of the TPM also include the definitions of outreach and consultation.

19 Indiana Michigan Power - R.

Budd Haemer TPM 3 and 4 Chapter 2, Section 2.D.

In Section 2.D, replace consultation with dialogue, reflecting that consultation is not NRC agrees with the comment. Chapter 2, Section 2.D of the TPM was revised to address this comment.

TPM Comment Resolution Table 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 generally applicable to a licensing action.

20 Indiana Michigan Power - R.

Budd Haemer TPM 2.3 and 2.6 Suggests altering language about using Federal funds for food and drink since some federal agencies have budgetary exceptions to provide [fund] food and drink at meetings.

The NRC agrees in part and disagrees in part with the comment. The NRC must abide by Federal guidelines related to providing food and beverage during 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 Island Indian Community

- Philip Mahowald TPM 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.

The NRC agrees with the comment. No changes were made to the TPM.

TPM Comment Resolution Table 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 22 Prairie Island Indian Community

- Philip Mahowald TPM 2 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.

The NRC agrees with the comment. No changes were made to the TPM.

23 Prairie Island Indian Community

- Phillip Mahowald TPM 2.4 Preface Chapter 1.D Commenter notes that 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.

NRC agrees with the comment. Similar comments were addressed in Responses 1.1 through 1.6 for the Tribal Policy Statement, 82 Fed. Reg. 2402 (Jan. 9, 2017). The Tribal Policy Statement and TPM Preface and Section 1.D were revised to address these comments.

The TPM Preface says, 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 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

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

24 National Tribal Air Association

- Bill Thompson Prairie Island Indian Community

- Phillip Mahowald Comment is out of scope Comments regarding the Advanced Notification Rule, by which Indian Tribes would receive advance notification of shipments of irradiated reactor fuel and other nuclear wastes transported across their reservations.

Comment is out of scope for the TPM and similar comments were addressed in Comment Responses 6.3 and 6.4 for the Tribal Policy Statement, 82 Fed. Reg. 2402 (Jan. 9, 2017). No changes were made to the TPM.

25 Prairie Island Indian Community

- Phillip Mahowald Comment is out of scope Comment on comments (mostly from representatives of the uranium industry) submitted to NRC in 2013 concerning the NHPA Section 106 process.

Comment is out of scope for the TPM. A similar comment was addressed in Comment response 6.1 for the Tribal Policy Statement, 82 Fed. Reg. 2402 (Jan. 9, 2017). No changes were made to the TPM.

26 Carey MacCarthy Comment is out of scope NRC should hire Native Americans to be liaisons.

Comment is out of scope for the TPM.