Notice2023-14415
Final National Oceanic and Atmospheric Administration Tribal Consultation Policy and Procedures
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 7, 2023
Effective
June 28, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
On January 26, 2021, the White House issued a Presidential Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships that reaffirmed the Executive order on Consultation and Coordination with Indian Tribal Governments (2000). In response, NOAA sought review and comment on its Tribal consultation policy and procedures in November 2021. NOAA revised its Consultation Handbook describing procedures for government-to-government consultation with federally recognized Indian tribes, and updated an associated NOAA Administrative Order (NAO 218-8) and the Indigenous Knowledge (IK) guidance.
Full Text
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[Federal Register Volume 88, Number 129 (Friday, July 7, 2023)]
[Notices]
[Pages 43309-43320]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-14415]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XV194]
Final National Oceanic and Atmospheric Administration Tribal
Consultation Policy and Procedures
AGENCY: National Oceanic and Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice.
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SUMMARY: On January 26, 2021, the White House issued a Presidential
Memorandum on Tribal Consultation and Strengthening Nation-to-Nation
Relationships that reaffirmed the Executive order on Consultation and
Coordination with Indian Tribal Governments (2000). In response, NOAA
sought review and comment on its Tribal consultation policy and
procedures in November 2021. NOAA revised its Consultation Handbook
describing procedures for government-to-government consultation with
federally recognized Indian tribes, and updated an associated NOAA
Administrative Order (NAO 218-8) and the Indigenous Knowledge (IK)
guidance.
DATES: The policy and procedures took effect on June 28, 2023.
ADDRESSES: Requests for additional information or an electronic copy of
the revised Consultation Handbook, the associated NOAA Administrative
Order (NAO 218-8), and/or the Indigenous Knowledge (IK) guidance should
be
[[Page 43310]]
directed to Becky Cruz Lizama, NOAA Senior Tribal Liaison, NOAA Office
of Legislative and Intergovernmental Affairs, U.S. Department of
Commerce, NOAA, 1401 Constitution Ave. NW, Station Number 62006FB,
Washington, DC 20230.
FOR FURTHER INFORMATION CONTACT: Becky Cruz Lizama, NOAA Senior Tribal
Liaison, telephone (202) 482-0809; email at <a href="/cdn-cgi/l/email-protection#dd9291949cf389afb4bfbcb19db3b2bcbcf3bab2ab"><span class="__cf_email__" data-cfemail="89c6c5c0c8a7ddfbe0ebe8e5c9e7e6e8e8a7eee6ff">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: The revised Handbook is intended to assist
NOAA, including its regional and field staff, in conducting effective
government-to-government consultations and fulfill NOAA's obligations
under E.O. 13175 and associated Presidential memorandums, the
Department Administrative Order 218-8 on Consultation and Coordination
with Indian Tribal Governments, and the Department of Commerce Tribal
Consultation and Coordination Policy. The IK guidance will facilitate
inclusion of IK into the line offices' environmental science, policy
and decision making process, and build partnerships with Indigenous
peoples.
On January 26, 2021, the White House issued a Presidential
Memorandum on Tribal Consultation and Strengthening Nation-to-Nation
Relationships. The Memorandum requires the Secretary of Commerce to
submit to the Director of the Office of Management and Budget (OMB), a
detailed plan of actions the agency will take to implement the policies
and directives of E.O. 13175 (2000) and the Presidential Memorandum on
Tribal Consultation issued in November 2009.
NOAA's mission is to understand and predict changes in climate,
weather, oceans, and coasts, to share that knowledge and information
with others, and to conserve and manage coastal and marine ecosystems
and resources. NOAA has established policies and guidance to provide
for meaningful and timely input from federally recognized Indian tribes
into NOAA's decision-making process on policy matters that have tribal
implications. In addition, NOAA offers its employees training and other
guidance to support a consistent, effective, and proactive approach to
conducting government-to-government consultations with federally
recognized Indian tribes under E.O. 13175, the Department of Commerce
(DOC) Department Administrative Order 218-8 Consultation and
Coordination with Indian Tribal Governments (2014), and the DOC Tribal
Consultation and Coordination Policy (78 FR 33331, June 4, 2013).
While much of NOAA's existing policy and guidance has been
developed in consultation with federally recognized Indian tribes, NOAA
recognized that these documents could benefit from a review and update.
As part of its effort to implement the January 26, 2021 Presidential
Memorandum, NOAA requested comments from Tribal Nations, tribal
officials, members of the public, and other interested parties to help
identify appropriate updates or revisions to the following existing
NOAA policies and guidance documents, which facilitate NOAA's
implementation of E.O. 13175: (1) Tribal Consultation Handbook titled
NOAA Procedures for Government-to-Government Consultation With
Federally Recognized Indian Tribes and Alaska Native Corporations
(2013); (2) NOAA Administrative Order 218-8 titled Policy on
Government-to-Government Consultation with Federally Recognized Indian
Tribes and Alaska Native Corporations (Reaffirmed in 2018); and (3) a
traditional ecological knowledge (TEK) guidance currently titled NOAA
Fisheries and National Ocean Service Guidance and Best Practices for
Engaging and Incorporating Traditional Ecological Knowledge in
Decision-Making (2019). NOAA proposed revisions to its Tribal
Consultation Handbook reflect lessons learned and improved practices to
better facilitate meaningful and effective tribal consultations. NOAA
also proposed minor revisions to Administrative Order 218-8 to reflect
necessary updates since its issuance in 2014. We also sought comments
on the existing TEK Guidance, which had not been previously made
available for public comment. Though the TEK Guidance was originally
only implemented by NOAA Fisheries and the National Ocean Service, NOAA
is now extending the applicability of the TEK Guidance to all NOAA
Offices and renaming it the IK guidance. Based on written and oral
comments received, NOAA revised its Tribal Consultation Handbook,
Administrative Order, and IK guidance. All three documents can be found
on the NOAA website <a href="https://www.noaa.gov/legislative-and-intergovernmental-affairs/noaa-tribal-resources-updates">https://www.noaa.gov/legislative-and-intergovernmental-affairs/noaa-tribal-resources-updates</a>.
NOAA's revised Handbook and NAO also reflect the recent
Presidential Memorandum on Uniform Standards for Tribal Consultation
(November 30, 2022), which among things, commits agencies to conducting
government-to-government consultation in a manner that recognizes and
respects Tribal self-government and sovereignty; identifies and
considers Tribal treaty rights, reserved rights, and other rights;
respects and elevates IK, including cultural norms and practices
relevant to such consultations; and meets the responsibilities that
arise from the unique legal relationship between the Federal Government
and Tribal governments.
NOAA is also releasing guidance on the recognition and application
of IK to improve decision making for our partners and within NOAA.
Through the IK guidance, NOAA encourages the inclusion of IK, as
appropriate and to the extent practicable and permitted by law, in the
line offices' environmental science, policy and decision making
process, to better facilitate consultations, fulfill Federal trust
responsibilities, respect treaty rights, understand environmental
justice concerns as directed by E.O. 12898, inform agency decision
making, and to build partnerships with indigenous peoples.
The consultation policy and procedures are intended only for NOAA
internal management purposes and does not create any right or benefit,
substantive or procedural, enforceable against the United States, its
agencies, entities, or instrumentalities, its officers or employees, or
any other person.
Summary of Comments Received in Response to the Draft Policy and
Procedures
On November 24, 2021, NOAA published a notice and request for
information on NOAA's Tribal consultation draft policy and procedures
in the Federal Register (86 FR 67036). In response, NOAA received 18
written comments on the revised Tribal Consultation Handbook and the
updated IK guidance. A summary of comments received and NOAA's
responses to those comments are presented below.
Comments received, and responses thereto, from two national
consultation webinars held on January 10, 2022, and January 11, 2022,
are also included.
General Comments and Recommendations (Consultation Handbook and Policy)
Comment 1: The definition of consultation should include ``with a
goal of reaching consensus.''
Response: NOAA's Handbook is designed to ensure that NOAA
implements a consistent and accountable process for meaningful and
timely consultation on policies with tribal implications. The Handbook
notes the Agency's commitment to working with the federally recognized
Indian
[[Page 43311]]
tribe(s) to reach agreement during the consultation process on a path
forward or course of action to the extent practicable. NOAA has
determined, however, that in some circumstances, it may not be possible
to reach consensus on actions subject to consultation. In such
circumstances, and as consistent with the Handbook, NOAA will provide
the consulted tribe(s) with notice of the course of action adopted by
the Agency and the rationale for that decision. This approach is
consistent with NOAA's long-standing implementation of E.O. 13175 and
the general approach to government-to-government consultation across
the Federal Government. See, e.g., Presidential Memorandum on Uniform
Standards for Tribal Consultation (November 30, 2022).
Comment 2: Delete ``Consultation is not necessarily a format for
consensus decision-making'' as it falls short of trust obligations.
Response: Partially accepted. As discussed in NOAA's Handbook,
consultation supports NOAA's efforts to fulfill its trust
responsibility to Indian tribes. There may, however, be situations
where reaching consensus on policies that have tribal implications is
not possible as discussed in the response to Comment 1 above. In such
situations, NOAA will comply with the policies described in the
Handbook to provide an explanation as to why NOAA will not or cannot
address the concern(s) raised by the tribe.
Comment 3: Explicitly state in policies and procedures that
meaningful consultation's goal should always be obtaining tribal
informed consent when a project would impact tribal land or resources
on or off a reservation.
Response: NOAA's Handbook describes the Agency's commitment to
working with the federally recognized Indian tribe(s) to reach
agreement during the consultation process on a path forward or course
of action to the extent practicable.
Comment 4: The current language in the Handbook indicates that the
goal of consultation is simply the exchange of information--essentially
that the goal is the process itself. We recommend that NOAA update this
section to align more closely with the Makah Ocean Policy: ``The goal
of early engagement and formal consultation is to enhance governing and
management efficiencies by avoiding, minimizing, or mitigating adverse
impacts a federal, state, or local decision may have on [Tribal] treaty
rights, resources, or interests. The ultimate goal is to engage
[Tribal] interests at the earliest development of scoping or planning
activities by identifying possible solutions that avoid any adverse
impact to the [delete tribe name] Tribe's treaty rights, resources, or
governing interests.'' The goal of consultation should go beyond the
process itself and include the protection of treaty rights, resources,
and interests.
Response: Accepted and modified slightly to include all tribes and
focus on Federal rule making. The following was added to the Handbook
``The goal of early engagement and formal consultation is to enhance
governing and management efficiencies by avoiding, minimizing, or
mitigating adverse impacts a federal decision may have on tribal treaty
rights, resources, or interests. The ultimate goal is to engage tribal
interests at the earliest stage of scoping or planning activities by
identifying possible solutions that avoid adverse impacts to the
tribe's treaty rights, resources, or governing interests.''
Comment 5: Ensure decisions are not made when consultation occurs.
Response: Accepted. Text added to pages 6-7 of the Handbook:
``Regardless of whether it is an informal engagement or a consultation,
such discussions should happen prior to a decision being made.'' In
addition, on page 12 the Handbook states ``it should always occur at
the earliest time practicable, well before a final policy or regulatory
decision with tribal implications is made.''
Comment 6: Training should also include training from tribes. In
addition, strike ``as financial resources allow'' as it is critically
important that all employees of Federal departments and agencies
receive comprehensive training on working with and communicating
effectively with Tribal Nations. Federal actions impact Tribal Nations
and our citizens.
Response: NOAA agrees that effective employee training is an
important component of successful implementation of the Handbook and
meeting NOAA's Tribal Trust Responsibilities. NOAA has established a
team of Tribal Liaisons within each Line Office to help facilitate
employee training. In addition, online and regional trainings are
available to staff. However, there are currently no specific funds
appropriated for tribal consultation training in NOAA's budget.
Therefore, we have retained ``as financial resources allow''.
Comment 7: NOAA personnel in the role of liaison need clear
guidance that their role is facilitation of communication. The position
of liaison should have guidance that articulates the breadth of the
role: ``Information exchange'' to ``Request to initiate Government-to-
Government.''
Response: The Position Description for the Senior NOAA Tribal
Liaison describes the responsibilities of this position, including
communications responsibilities. NOAA does not agree this information
is necessary to include in the Consultation Handbook.
Comment 8: Edit sentence as follows ``If a NOAA line office or
staff office deems necessary, or by request from a Tribal government,
they also may consider establishing a tribal liaison within a program
or region.''
Response: Accepted. Added ``or by request from a Tribal government.
. . .'' See Handbook Section IV.D.
Comment 9: NOAA line offices, staff offices, and Regional Teams
should designate more than one staff person in each department as a
tribal liaison. These liaison positions should be separate positions
from existing staff positions. Communicating, coordinating, and
consulting with tribes in culturally appropriate and meaningful ways is
year-round, full time work. Moreover, it is not possible for one
regional tribal liaison to adequately engage with all the tribes in
their region; for instance, consider that the NOAA Alaska Region has
229 federally recognized Indian Tribes with whom NOAA is directed to
consult.
Response: NOAA line offices, staff offices, and Regional Teams have
the ability to designate a Tribal Liaison and other staff to support
consultation efforts where there is a need and funding is available.
Comment 10: Include involvement of Tribes in the hiring process for
Tribal Liaisons wherever possible to ensure that they have the
appropriate experience and relationships. Given the important role of
Headquarters and Regional Tribal Liaisons in consultation processes,
engaging tribes in selecting and building relationships with these
important staff people will help facilitate effective consultation.
Response: No changes. Comments regarding Federal hiring processes
are beyond the scope of this Handbook.
Comment 11: NOAA's consultation policy should require an office of
tribal liaison be created. NOAA should have high level staff with
expertise in Indian law and policy. NOAA's institutional structure
should have Indian law and policy built into it.
Response: NOAA has a number of senior positions with responsibility
for tribal matters. These include a Senior Advisor to the Under
Secretary on Fisheries and Tribal Engagement, a Senior NOAA Tribal
Liaison, and each line office and relevant staff office has a
Headquarters Tribal Liaison which forms the NOAA Headquarters Tribal
[[Page 43312]]
Team. The NOAA Office of the General Counsel also maintains a Tribal
Team of Indian law practitioners. In addition, many line offices have
additional Tribal Liaisons. For example, every NOAA Fisheries Science
Center and National Marine Fisheries Service (NMFS) Regional Offices
and Science Centers have a Tribal Liaison, one of which is a full time
position (i.e., the NMFS West Coast Tribal Liaison).
Comment 12: We recommend that Tribal Liaison positions be
independent positions (i.e., not duties assigned to staff already
fulfilling other duties, such as fishery analysts) that are filled by
highly-qualified individuals with the specific training, expertise and
skillsets related to the tasks such a position is assigned to. Tribes
and Tribal organizations in Alaska have requested positions like these
be established at the NMFS Alaska Region and at Alaska Fisheries
Science Center (AFSC) for many years.
Response: As noted in response to Comment 11, NOAA employs a number
of staff with a specific focus on the Agency's work with tribes and
tribal organizations. These staff include a Senior Advisor to the Under
Secretary on Fisheries and Tribal Engagement, a NOAA Senior Tribal
Liaison, and a full time NMFS West Coast Tribal Liaison.
Comment 13: Provide more information on Tribal Tracker.
Response: The Tribal Tracker is an internal tracking system that
allows NOAA to collect summary information on consultations conducted
by the Agency. This system is used, in part, to support NOAA's tribal
engagement reporting obligations.
Comment 14: Strengthen the statement ``NOAA should provide
available information to the tribes in advance of the consultation to
allow the tribes to prepare: by changing it to ``NOAA must provide all
necessary and available information.''
Response: Accepted. Edit made: ``In order to have a meaningful
consultation, NOAA will provide available information to the tribes in
advance of the consultation to allow the tribes to prepare. NOAA will
work with tribes in an effort to ensure that the information is
provided to tribes in a format that tribes can access and use.'' See
Handbook Section V.A. In addition, NOAA added language that NOAA will
work with tribes to ensure that the information is provided to tribes
in a format that tribes can access and use. NOAA has received comments
previously that there are some constraints that might limit the ability
to access and use information, such as lack of internet access or
sufficient bandwidth to access or download materials, such as lengthy
PDFs. In light of these constraints, NOAA will endeavor to work with
tribes to make sure tribes can access and use the materials. For
example, in some cases, NOAA may mail materials in advance.
Comment 15: NOAA must make the utmost effort to protect TEK and
other sensitive cultural information from public disclosure and ensure
Tribal Nations have the ability to control what is shared by the
Agency, including through Freedom of Information Act (FOIA) requests.
Response: While information shared between NOAA and a tribe may be
beneficial for the consultation process, it is generally not protected
from disclosure under FOIA, especially if this information is used in
the decision-making process and becomes part of the administrative
record. As such, the Handbook notes the importance of advance
notification to tribes of the limited capacity of NOAA to protect the
confidentiality of information provided by the tribe consistent with
the requirements of FOIA or litigation.
Comment 16: Language should be added to the FOIA section to protect
information shared by tribal religious and cultural leaders as well as
tribal government officials such as Tribal Historic Preservation
Officers and environmental, cultural, and natural resource managers.
Response: While information shared between NOAA and a tribe may be
beneficial for the consultation process, it is generally not protected
from disclosure under FOIA, especially if this information is used in
the decision-making process and becomes part of the administrative
record. As such, the Handbook notes the importance of advance
notification to tribes of the limited capacity of NOAA to protect the
confidentiality of information provided by the tribe consistent with
the requirements of FOIA or litigation. The applicable requirements for
disclosure of information subject to FOIA are not modified by the
internal procedures identified in this Handbook. While NOAA does make
efforts to safeguard sensitive information submitted by tribes, it must
comply with applicable Federal information disclosure requirements.
Comment 17: Make this sentence stronger ``NOAA will make reasonable
efforts to provide adequate information about its actions and policies
at the earliest practical time,'' by changing it to ``NOAA will provide
adequate information about its actions and policies at the earliest
practical time in advance of consultation to provide the tribe adequate
time to review and reflect on it.''
Response: Accepted in part. Edit made: NOAA will provide available
information about its actions and policies at the earliest practical
time. See Handbook Section V.A.
Comment 18: NOAA recommends that line offices and regions establish
consultation protocols with tribal governments consistent with this
Handbook as necessary. Consultation protocols should not just be made
when NOAA deems necessary.
Response: No changes made. The Handbook provides that ``it may be
useful and expeditious for those tribes and NOAA offices to develop
protocols reflecting their mutually preferred timeline for and means of
communication and exchange of information'' and authorizes such
protocols consistent with the Handbook.
Comment 19: The Federal Government must also recognize that it has
become the norm in recent years that tribes and other community
organizations are faced with having to engage with multiple agencies
regarding multiple major projects almost continuously. NOAA must
acknowledge, and actively work to reduce, this extraordinary burden on
our people.
Response: The Handbook acknowledges this issue and includes a new
Section V.C., which directs staff to coordinate and cooperate with
interested Federal agencies to ensure the most efficient and
expeditious manner of consultation with tribes on a particular matter.
Comment 20: Our experience and observations, consultations are
usually scheduled for certain dates and times that prioritize the needs
of the Federal regulatory process over those of Native communities, and
those appointments rarely consider or appreciate the often competing,
conflicting, and overriding obligations associated with sustaining our
communities.
Response: Accepted. Added the following sentence ``Timelines should
reflect that tribal members often have competing, conflicting and
overriding obligations associated with sustaining tribal communities.''
See Handbook Section VI.D.
Comment 21: Document is missing the direct recognition of the
unique role, and often multiple roles, that tribal officials and other
local leaders play in their communities, and how that reality can
significantly impact engagement with Federal agencies and others. It is
critical to understand that often for these leaders, and particularly
for Alaskan Tribal leaders, their leadership
[[Page 43313]]
activities are not their primary employment. Beyond that employment,
virtually all of them also contribute significant time and energy to
the demands inherent to a subsistence lifestyle.
Response: Accepted. Added the following sentence: ``Timelines
should reflect that tribal members often have competing, conflicting
and overriding obligations associated with sustaining tribal
communities.'' See Handbook Section VI.D.
Comment 22: Better recognize the difference and mandates of Treaty
Tribes in documents including case law.
Response: As noted above, NOAA has added additional content to
explain the need to account for tribal treaty rights, reserved rights,
and similar rights when considering actions that may have tribal
implications. See Handbook Section VI.A. Discussion has also been added
to note the importance of NOAA staff becoming familiar with relevant
treaties and other sources of reserved and similar rights. The new
discussion also includes a resource for assisting with the
identification of relevant treaties. See Handbook Section VI.A.
Comment 23: We recommend that NOAA construe the consultation
mandate broadly. If NOAA is unsure whether an action may have tribal
implications, the appropriate approach would be for NOAA to communicate
with the tribe and determine, based on an informed exchange of views
with the tribe, whether the action affects the tribe.
Response: The Handbook provides that an invitation to consult on a
proposed policy should be sent to the appropriate representative of the
governing body of the tribe for NOAA actions ``that may have tribal
implications.'' See Handbook at Section VII.A. NOAA believes this
directive provides adequate direction for NOAA staff to invite
consultation on actions for which there may be tribal implications.
Comment 24: In the list of examples of policies where consultation
with tribes is appropriate, NOAA should amend the first bullet point to
include the text: ``A policy or action that will have effects within or
near a reservation or Alaska Native Village.''
Response: Accepted in part. However, this statement should be
broader than AK Natives. The third bullet was changed to read ``[a]
policy or action affecting a tribal entity, or facility, land, or
resources owned or operated by a tribal government, or held in trust
for a federally recognized tribe.'' See Handbook Section VII.A.
Comment 25: Move this sentence ``While books and other documents
may serve as useful secondary references for understanding the
political and cultural history of an indigenous people, agency staff
should remember that the tribal members themselves are the best source
of knowledge about their particular tribe'' to the beginning of the
consultation section and emphasize the importance of reaching out to a
tribe for this information first.
Response: Accepted. Text moved to the beginning of the consultation
section.
Comment 26: Make clear that consultation should be early and often.
Response: The Handbook states that consultation ``should always
occur at the earliest time practicable, well before a final policy or
regulatory decision with tribal implications is made.'' See Handbook
Section VII.
Comment 27: Not enough detail on the consultation process to ensure
it is not a ``check the box'' effort. For example the Handbook does not
provide guidance or elaboration on how NOAA offices should address and
incorporate the substantive elements of consultation in order to inform
Federal policy and regulatory development. Instead, the Handbook
identifies a range of factors that can either enhance or inhibit
effective consultation, and provides detailed guidance on the
procedural elements of consultation.
Response: The Handbook is a process document designed to provide--
per E.O. 13175--an accountable process to ensure meaningful and timely
input by tribal officials in the development of regulatory policies
that have tribal implications. The Handbook is designed to address
procedural aspects of this obligation and not necessarily the
substantive points suggested by the commenter.
Comment 28: There may be two phases in a consultation: Tribal
Consultation and Tribal G2G Consultation. Tribal Consultation is viewed
as a process of sharing information, coordination, dialogue, and
considering the tribal viewpoint. This occurs before an agency commits
to a path of action and provides for a tribe to identify if an action
will affect tribal rights, lands, governance, resources, or interests.
Often the completion of a Tribal Consultation can ensure that should a
Tribal G2G Consultation between decision makers be necessary, it is
meaningful and productive. We encourage NOAA to review: ``Guidance and
Responsibilities for Effective Tribal Consultation, Communication, and
Engagement'': A guide for Agencies Working with West Coast Tribes on
Ocean & Coastal Issues developed by members of the West Coast Tribal
Caucus of the West Coast Ocean Alliance.
Response: In the Handbook we have distinguished the first phase as
``engagement'' and the second and formal phase as ``consultation''.
Comment 29: Timeline: Often tribal decisions are two and sometimes
three tiered in structure, this allows for our leadership access to
available expertise both within staff and within its community. To
provide for multiple discussions could easily occupy a 90 days or more
timeline.
Response: Agree. NOAA believes the Handbook addresses this concern.
The Handbook provides that NOAA staff should be knowledgeable and
respectful of the decision-making practices of the tribe. This may
require a departure from highly-structured agendas and timeframes. It
further provides that consultation should be initiated at the earliest
practicable time and that an explanation of any time constraints known
to the Agency, such as statutory deadlines, should be disclosed at the
initiation of the consultation. See Handbook at Section VII.
Comment 30: Should include an appeals process if NOAA determines
that a formal consultation is not needed due to an action not having
tribal implications.
Response: Section VI.H. added to address dispute resolution
procedures.
Comment 31: If the scope changes, consultation is required.
``Although consultation need not occur at every step of the Federal
decision-making process, it should always occur at the earliest time
practicable, well before a final policy or regulatory decision with
tribal implications is made.''
Response: The following sentence was added: ``If the scope of
action changes, that change should be addressed as part of the ongoing
consultation.'' See Handbook Section VII.A.
Comment 32: Revise bullet in Section VII.A., to read: ``A policy or
action affecting a facility or entity land or resources owned or
operated by a tribal government'' to account for those areas that may
affect lands that are tribal lands.
Response: Accepted. Added ``land or resources'' to the bullet.
Comment 33: Under ``[e]xamples of policies where consultation with
tribes is appropriate include but are not limited to'', there should be
an inclusion of ``a policy or action that impacts Treaty areas'' under
the bullet points listed.
Response: Accepted. A new paragraph was added to this section on
treaty rights.
[[Page 43314]]
Comment 34: Page 14, Section B mentions instances and factors NOAA
takes into consideration when responding to a request for consultation.
NOAA should amend the second sentence to include ``change in tribal
government'' as a factor to be considered.
Response: Accepted. Added ``change in tribal government'' to the
second sentence. See Section VII.B.
Comment 35: We request that NOAA clarify what circumstances would
lead NOAA to make the determination to decline to consult.
Response: Accepted in part. Added the following sentence ``NOAA may
only decline a consultation if it is determined that an issue of
interest does not have tribal implications.'' Given the unique aspects
of each determination, providing an exhaustive list in the Handbook is
not feasible.
Comment 36: NOAA should invite inter-tribal bodies to consultation
along with the tribes they represent. Excluding tribal bodies only
hinders NOAA's attempts to meaningfully include tribal participation
and promote environmental justice in its work, as directed by Executive
Order 13175.
Response: Information regarding the permissible role of tribal
organizations in consultations can be found on page 14 at Section
VII.E., of the Handbook. NOAA notes that, where expressly authorized by
a tribe, such an organization may represent or conduct consultation on
behalf of an authorizing tribe.
Comment 37: If a Tribe does not respond to an initiation of Tribal
Consultation within the requested time frame, NOAA should consider
reaching out to the tribe at least once more and extending the response
time period. It is likely that the tribe has many pressing matters to
attend to within their community and/or is participating in subsistence
fishing, hunting, and gathering seasons. This underscores the need for
NOAA to reach out to tribes regularly and well before any deadlines to
include tribal input in policy decisions.
Response: Accepted. The following sentence was added ``[i]t may be
that the tribe has pressing matters to attend to within their community
and/or is participating in subsistence fishing, hunting, and gathering
seasons. This underscores the importance for NOAA to reach out to
tribes regularly and well before any deadlines to include tribal input
in policy decisions.''
Comment 38: Include a vetting process for Tribal Organizations that
includes reaching out to affective tribes.
Response: The Handbook includes the following statement ``If a
tribe wants to authorize a tribal organization to represent it or
conduct consultation on its behalf, NOAA should confirm that in writing
with the appropriate tribal officials and with the tribal organization.
NOAA should also confirm in writing the scope of that representation
(e.g., which tribes are represented by the tribal organization) and the
role that the tribal organization will fulfill during the consultation
process.'' See Handbook Section VII.E.
Comment 39: This requirement should be mandatory ``if NOAA believes
its action will have substantial direct effects on that tribe, NOAA
staff should consider following the written invitation with a phone
call, site visit, and/or an email/fax (assuming those forms of
communication are available to the tribal points of contact).''
Response: Accepted. Replaced ``should consider'' with ``will''.
Comment 40: Ensure adequate funding for consultations (e.g., travel
for tribes).
Response: NOAA does not have a standing appropriation available for
tribal consultations. Where appropriate, and consistent with federal
law, individual NOAA program offices may consider requests for funding
activities associated with consultations.
Comment 41: ``If it becomes clear that NOAA and the tribe have
divergent views about the issues and topics appropriate for the
consultation, effort should be made by both parties to agree upon a
single statement of the issues. If the parties cannot reach an
agreement, the record of the consultation should reflect the different
view'' and reiterate we should aim for consensus and differing views
should be last resort.
Response: Agree. As previously noted, the NOAA 13175 Handbook
describes the Agency's commitment to working with the federally
recognized Indian tribe(s) to reach agreement during the consultation
process on a path forward or course of action to the extent practicable
and consistent with NOAA's legal requirements. There may, however, be
situations where reaching consensus on policies that have tribal
implications is not possible. In such situations, NOAA will comply with
the policies described in the Handbook to provide an explanation as to
why NOAA will not or cannot address the concern(s) raised by the tribe.
Comment 42: We strongly disagree that a tribe's choice of
participants necessarily indicates how important the issues and
consultation are to the tribe, as many other considerations (capacity,
expertise, availability, etc.) all may play into the decision as to who
participates. If a tribe has decided to engage in Consultation on an
issue, NOAA should consider the issue of utmost importance unless the
tribe states otherwise.
Response: Accepted. Deleted: ``will indicate how important the
issues and consultation are to the tribe.''
Comment 43: True consultation should occur at a Leader-to-Leader
level. Duly elected or appointed Tribal Leaders must be afforded the
respect and opportunity to directly voice Tribal Nation concerns to
those Federal officials with actual decision-making authority. In
addition, the Federal Government must not delegate its consultation
obligation to third party (e.g., non-profit organizations, industries/
corporations, hired consultants and contractors); the Federal
Government must exercise appropriate oversight in ensuring tribal
interests are not adversely impacted.
Response: Accepted in part. In response to this comment, NOAA
updated Handbook Section VII.F.2., to provide that: ``if the tribe
designates its leader or members of the tribal council as
representatives in the consultation, it is important that a NOAA
official with decision-making authority participate in the
consultation. The Handbook further provides that NOAA should ``identify
and prepare consultation participants who are able to fully address the
concerns and issues articulated for discussion through government-to-
government consultation.'' Handbook at Section VII.F.2.
Comment 44: In the sentence that states NOAA ``should acknowledge
and discuss the limited capacity of NOAA to protect the confidentiality
of information provided by the tribe consistent with the requirements
of [FOIA] or litigation[,]'' the use of the term ``limited'' should be
struck from this section since it could be interpreted by NOAA staff
that the Agency will not make the utmost effort to protect the
confidentiality of sensitive Tribal government and cultural
information. Upon removal of the term 'limited', this language should
also be referenced under Section IV(A).
Response: Accepted. Sentence revised to: ``NOAA should, however, in
advance notify tribes of the information disclosure requirements that
may apply to information shared by tribes with the Federal Government
(examples include FOIA and litigation discovery). Although NOAA will
endeavor to comply with a tribe's request that information be kept
confidential, there may be applicable Federal disclosure requirements
that compel its release.''
[[Page 43315]]
Comment 45: Modify sentence to read ``5) reach agreement with
tribes on the method of recordkeeping and documentation of the
consultation. . . .''
Response: Accepted. Added ``and reach agreement on'' to Handbook
Section VII.F.5.
Comment 46: The draft consultation handbook provides one way of
closing a consultation with a one-way-response letter that does not
meet a trust responsibility. Edit to read ``written notice from NOAA
and consent from affected tribes or the absence of any tribal
objections by a predetermined time.''
Response: NOAA agrees that transparency is an important aspect of
government-to-government consultation. In response to this comment,
NOAA added the following sentence Handbook Section VII.G.: ``As a best
practice, NOAA should share a draft of the closing record for review
and comment with the tribe before it is finalized.''
Comment 47: Add ``6) Prior to beginning consultation inform the
Tribe of NOAA's obligations under FOIA.''
Response: Accepted. Added the following: ``NOAA and tribes should
not create or share recorded information, such as summaries,
transcripts or recordings, without first discussing the government's
obligations under applicable law, including the Federal Records Act,
FOIA and the Privacy Act, as well as in response to litigation
obligations or as required by court order. This discussion should occur
prior to beginning consultation.''
Comment 48: NOAA agencies do not abide by the close out guidance
which is disrespectful to the tribe.
Response: NOAA appreciates the comment. The Handbook Section
VII.G., describes the process for closing out government-to-government
consultations. It states that government-to-government consultation is
closed through a formal, written communication from the lead NOAA
official to the most senior tribal official.
Comment 49: This title should be amended to state: ``Completing and
recording the government-to-government consultation.'' Consultation
process should include a follow-up phase. Consultation is an on-going
process, and ``closing'' carries a connotation that prompts the
consultation process to come to an end once formal, written
communication has recounted the agreed-upon issues. Follow-up and
follow-through are key components for a healthy government-to-
government relationship. Follow-up and follow-though will also provide
validation for the record that the consultation was engaging and
meaningful.
Response: Accepted. NOAA changed the title of Section VII.G., to
include the term ``completing.''
Comment 50: Recognize the unique status of Native land tenure in
Alaska and the value of the unique and diverse systems of Native
governance in Alaska.
Response: Accepted in part. NOAA included additional language
requested concerning the unique system of Native governance and Native
land tenure in Alaska. The following paragraph was added to the
Handbook Section: There is a unique system of Native governance in
Alaska, and a variety of entities represent the interests of Alaska
Native communities, including Alaska Tribes and governments, Alaska
Native corporations, Alaska Native non-profits, and Alaska Native
organizations. The purpose and structure of some of these entities is
dictated in part by Federal law, such as the Alaska Native Claims
Settlement Act (ANCSA) and the Marine Mammal Protection Act (MMPA).
Moreover, the status of land ownership in Alaska is similarly defined
in part by Federal law, including ANCSA. Pursuant to ANCSA, Alaska
native corporations hold title to land in Alaska; as such, ANCSA lands
are not held in trust by the United States and do not qualify as Indian
Country. There is one reservation located in Alaska, the Annette
Islands Reserve of the Metlakatla Indian Community. However, the lands
and reservation defined under Federal law may not represent the
traditional homelands of Alaska Native tribes.
In response to this comment, NOAA added clarification to the
following existing sentence: ``NOAA recognizes the distinct and
individual cultural traditions and values of Alaska native peoples and
their representative tribal governments'' Handbook Section IV.B.
(Emphasis added). Commenter requested that NOAA include additional
information about ANCSA. We added an explanation of how ANCSA altered
land ownership in Alaska, with corporations holding land, and we added
a reference to the statute and a website with more information about
ANCSA; however, additional details about ANSCA are beyond the scope of
this Handbook. Handbook Section IX.D.
Comment 51: Tribal Consultation should not occur after a Fishery
Management Council has taken Action. Tribes should inform
recommendations. Previsions in the Magnuson-Stevens Fishery
Conservation and Management Act (MSA) do not supersede tribal trust
responsibilities.
Response: Accepted. Handbook Section IX.F., was revised to include:
``NOAA and the tribes should continue to work together to develop
specific, proactive, and effective processes and procedures to better
integrate the outcomes from tribal consultation between NOAA Fisheries
and tribes with the appropriate Council process(es), with the goal that
consultation outcomes would be shared with the appropriate Council
before the Council takes action. Consultation should always occur at
the earliest time practicable, well before a final policy or regulatory
decision with tribal implications is made.''
Comment 52: Agencies have increasingly moved to the electronic
distribution of documents. With internet connectivity often a challenge
in small remote Alaskan communities, the digital transfer of documents,
and particularly large complex documents featuring many maps, is
impossible. Zoom and comparable virtual meetings are also often not an
option given the extremely limited availability of broadband in rural
Alaska. Accommodations must be made, and appropriate time must be
allowed, for the distribution and review of all materials necessary for
meaningful consultation to occur.
Response: NOAA appreciates the concerns expressed in this comment.
There are a number of flexibilities in the Handbook for this reason.
Specifically, the Handbook states ``[t[he Department and operating
units' consultation processes may include one or more of the following:
meetings, letters, conference calls, webinars, on-site visits, or
participation in regional and national events.'' In addition, NOAA
added language that NOAA will work with tribes to ensure that the
information is provided to tribes in a format that tribes can access
and use. As this comment reflects, there are some constraints that
might limit the ability to access and use information, such as lack of
internet access or sufficient internet bandwidth to access or download
materials, such as lengthy PDFs.
In light of these constraints, NOAA will endeavor to work with
tribes to make sure tribes can access and use the materials. For
example, in some cases, NOAA may mail materials in advance. In response
to this comment, NOAA made the following edits to the Handbook at
Section V.A.: In order to have a meaningful consultation, NOAA will
provide available information to the tribes in advance of the
consultation to allow the tribes to prepare. NOAA will work with tribes
in an effort to ensure that the information is provided to
[[Page 43316]]
tribes in a format that tribes can access and use.
Comment 53: Add The United Nations Declaration on Rights of
Indigenous Peoples to Appendix to emphasize consent in consultation.
Response: This is outside the scope of NOAA's consultation
procedures. As noted in the ``Announcement of U.S. Support for the
United Nations Declaration on the Rights of Indigenous Peoples,'' the
United States recognizes the significance of the Declaration's
provisions on free, prior and informed consent, which the United States
``understands to call for a process of meaningful consultation with
tribal leaders, but not necessarily the agreement of those leaders,
before the actions addressed in those consultations are taken.'' NOAA's
13175 Handbook reflects this view, and as such, the Agency does not
believe inclusion of the Declaration as an appendix to the Handbook is
necessary or appropriate.
Comment 54: NOAA Fisheries and National Ocean Service (NOS) are
obligated, among other things, to follow Federal statutes regarding
tribal resources, lands, and waters. This includes the Alaska National
Interest Lands Conservation Act (ANILCA) of 1980; specifically, NOAA
must adhere to Title VIII of ANILCA, which designates that subsistence
fish, wildlife, and other resources used by Alaska Natives and non-
Natives must be federally protected and prioritized when experiencing a
conservation threat. The subsistence uses of these resources are
prioritized during conservation closures and shortages means NOAA
Fisheries and NOS management bodies must prioritize Alaska Native and
non-Native subsistence users before commercial interests when multi-use
fisheries are in decline, such as Western Alaska salmon populations.
Response: No edits made. This comment is beyond the scope of the
Handbook.
Comment 55: Add Religious Freedom Act.
Response: This comment is outside the scope of the Handbook.
Although relevant to Tribal Rights, NOAA does not believe inclusion of
the Religious Freedom Act as an appendix to the Handbook is necessary
or appropriate.
Comment 56: Mass Dear Tribal letters are not ideal for
consultations.
Response: Noted for implementation. NOAA values direct
correspondence. Frequently in regional consultations individual letters
are sent, however, for National Policies that may have tribal
implications for hundreds of federally recognized Indian tribes, direct
correspondence is not always feasible.
Comment 57: NOAA must recognize the authority of Tribal Nations to
designate cultural resources and landscapes for protection similar to
those guaranteed by treaty, statute, judicial decisions, and executive
orders.
Response: This comment is outside the scope of the Handbook.
Comment 58: NOAA's consultation policy should explicitly affirm and
differentiate treaty rights issues and the government-to-government
process from the public and administrative process.
Response: NOAA has added additional language to the Handbook to
highlight the need to account for tribal treaty rights, reserved
rights, and similar rights when considering actions that may have
tribal implications. See Handbook Section VI.A. In addition, the
Handbook notes that ``Consultation recognizes and distinguishes the
views and policies of tribes from those of the general public and
considers those views in the context of the responsibilities of
federally recognized tribes to their people and tribal members.''
Consultation Handbook Section VI.
Comment 59: Provide a redline of document in the future.
Response: Accepted. A redline version of the revisions included
with the final version of the Handbook is available at: <a href="https://www.noaa.gov/legislative-and-intergovernmental-affairs/noaa-tribal-resources-updates">https://www.noaa.gov/legislative-and-intergovernmental-affairs/noaa-tribal-resources-updates</a>.
Comment 60: Policy was not provided for review.
Response: The NOAA Policy on Government-to-Government Consultations
with Federally Recognized Indian Tribes and Alaska Native Corporations
is included as Appendix F to the Consultation Handbook.
Comment 61: This request should have been put in the Federal
Register.
Response: The request was published in the Federal Register on
November 24, 2021, at 86 FR 67036 and the comment period extended in a
notice published on January 21, 2022, at 87 FR 3280.
Comment 62: Please capitalize Alaska Native throughout.
Response: Capitalization is based on Federal style guides.
Including: <a href="https://www.archives.gov/files/federalregister/write/handbook/ddh.pdf">https://www.archives.gov/files/federalregister/write/handbook/ddh.pdf</a>.
Comment 63: It may be useful to add a section on threats (e.g.,
plastics, dead zones, climate change) to the documents.
Response: This suggested addition is outside the scope of the
Handbook.
Comment 64: Federal Government should standardize and codify
consultation requirements. For far too long, Tribal Nations have
experienced inconsistencies in consultation policies, the violation of
consultation policies, and mere notification of Federal action as
opposed to a solicitation of input.
Response: NOAA's goal for the Handbook, consistent with the
requirements of E.O. 13175, is to develop an accountable process to
ensure meaningful and timely input by tribal officials in the
development of regulatory policies that have tribal implications. The
revisions to the Handbook are designed to further enhance NOAA's
consultation process.
Comment 65: Because the U.S. is engaged in a diplomatic
relationship with each federally recognized Tribal Nation, greater
effort must be made to consult with Tribal Nations on an individual
basis.
Response: See response to Comment 57 above.
Comment 66: Do not use the number of tribes to consult with as a
reason not to consult. Many tribes are willing to meet as a group or by
video.
Response: Noted, NOAA will endeavor to engage and consult tribes
using methods that work best for each party.
Comment 67: E.O. 13175, Section 3 lays out a set of policy making
criteria that have been implemented unevenly over the last two decades.
In particular, this includes directives to extend ``maximum
administrative discretion'' to Tribal Nations by encouraging Tribal
Nations to develop our own policies and standards to achieve objectives
as well as consult with those Tribal Nations on the necessity of any
Federal standards. Commenter urges NOAA and the Biden Administration to
consider how this section can be better operationalized and
consistently applied throughout the Federal Government.
Response: The aspects of this comment related to the consultation
processes occurring outside of NOAA are beyond the scope of the
Handbook. NOAA appreciates commenter's suggestions regarding better
operationalization of the consultation process.
Comment 68: E.O. 13175, Section 6 encourages the Federal Government
to facilitate and streamline tribal applications for waivers of
statutory and regulatory requirements. With some notable exceptions,
this section does not appear to be actively implemented across the
Federal Government.
Response: This comment regarding the implementation of E.O. 13175
across the Federal Government is beyond the scope of the Handbook. NOAA
considers any tribal application for a waiver or statutory and
regulatory requirements on a case-by-case basis,
[[Page 43317]]
and as such, we do not believe it is necessary or appropriate to
address waivers within the Handbook.
Comment 69: NOAA does not correctly quote the consultation
provision. In both NOAA Administrative Order 218-8 and the Handbook,
NOAA states that ``[a]s defined in Section 5 of E.O. 13175,
[consultation] refers to an accountable process ensuring meaningful and
timely input from tribal officials on NOAA policies that have tribal
implications.'' E.O. 13175 states that ``[e]ach agency shall have an
accountable process to ensure meaningful and timely input by tribal
officials in the development of regulatory policies that have tribal
implications.'' By omitting the phrase ``in the development of,'' NOAA
appears to be discounting both the role and substance of consultation
with respect to the Federal decision-making process.
Response: NOAA's Handbook notes the Agency's commitment to having
an accountable process with the federally recognized Indian tribe(s)
for development of policies and guidance. It is not NOAA's intent to
discount the role or substance of consultation for the Federal
decision-making process.
Comment 70: There is a need for a robust communication strategy
with tribes.
Response: Noted, however the need for a robust communication
strategy is beyond the scope of the Handbook.
Comment 71: NOAA should form a permanent Tribal Advisory Committee
to advise on decision-making, policy development, and effective
consultation; and support the institutionalization of education about
tribes and treaty rights at the Federal level. The Tribal Advisory
Committee would represent a permanent investment in NOAA's commitment
to tribes that would persist beyond administration changes.
Response: Noted, however the recommendation to form a Tribal
Advisory Committee is beyond the scope of the Handbook.
Comment 72: The ``NOAA Tribal Team'' on NOAA's website should
include Regional roles to provide context, email and phone information
would be most useful.
Response: This comment regarding the context of NOAA's website is
beyond the scope of the Handbook. However, NOAA is updating its tribal
website and will consider this comment through that process.
General Comments and Recommendations (IK Guidance)
Comment 1: It is the sole authority of Tribal Nations and cultural
and religious leaders to determine how TEK can and should be used to
inform these processes and NOAA must make every effort to protect the
confidentiality of this sensitive cultural and religious information.
Commenter requested that the recommendations provided in these comments
on the 2021 draft Tribal Consultation Handbook regarding FOIA requests
also be referenced in the TEK Guidance to ensure that NOAA staff
understand that these documents are inextricably connected.
Response: The current Guidance references the Handbook and vice
versa, establishing the connections between these two documents. While
information shared between NOAA and a tribe may be beneficial for the
consultation process, it is generally not exempt from disclosure under
FOIA, especially if this information is used in the decision-making
process and becomes part of the administrative record. As such, the
Guidance notes the importance of advance notification to tribes of the
limited capacity of NOAA to protect the confidentiality of information
provided by the tribe consistent with the requirements of FOIA or other
applicable legal obligations.
Comment 2: We also support expanding the TEK Guidance to be
implemented agency-wide at NOAA.
Response: NOAA agrees that the Guidance should be implemented
agency-wide. This change is reflected in the finalized TEK Guidance.
Comment 3: Commenter recommends the inclusion of language in the
TEK Guidance to require NOAA offices to promote the incorporation and
use of TEK to inform policy and decision-making processes when
collaborating with other Federal departments and agencies on projects
that may have direct or indirect implications for Tribal Nations.
Response: NOAA agrees that a discussion of interagency coordination
should be included in the TEK Guidance. A new section on Interagency
Coordination was added to TEK Guidance on page 13.
Comment 4: TEK must be respected and protected as Tribal
proprietary knowledge, as Tribal Nations and cultures carry the
responsibility of its application for the well-being of our
communities, homelands, and seascapes. NOAA must make the utmost effort
to protect TEK and other sensitive cultural information from public
disclosure and ensure Tribal Nations have the ability to control what
is shared by the Agency, including through FOIA requests.
Response: Accepted in part. NOAA added in the ``Guidance'' section,
1st paragraph: ``IK should be respected as belonging to the IK
holder(s).'' Under Data Confidentiality, first paragraph, added, ``NOAA
employees should not begin collecting IK without establishing mutual
trust, respect, and recognition of knowledge sovereignty.'' NOAA
acknowledges that IK holders may not support public disclosure of this
information, however, the Agency has limited ability under existing
public disclosure obligations to prevent disclosure of information
shared with NOAA. For this reason, the IK Guidance describes the need
to clearly disclose any constraints or limitations regarding the
ability to protect sensitive or confidential information before NOAA
seeks access to IK.
Comment 5: Currently NOAA is largely unequipped to collect and
engage TEK in a meaningful way. Fixing this will involve more than
revision to the TEK Guidance, it will involve continuous employee
training, extensive tribal engagement, and a change in the culture at
NOAA and other Federal agencies.
Response: Accepted. NOAA agrees that guidance should reference NOAA
capacity. A new section was added on, ``Building Capacity Within
NOAA.''
Comment 6: When approaching tribes regarding TEK, NOAA officials
must view tribes as knowledge co-producers and co-owners and engage
tribes as true partners in acquiring the information necessary for
informed decision-making. NOAA must inform tribes of the specific,
tangible benefits of such information sharing and refrain from making
only broad claims that it will ``inform policy.''
Response: NOAA appreciates the views expressed in this comment.
Comment 7: The TEK Guidance should also cite to Article 31 of the
United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
that relates specifically to traditional knowledge: Indigenous peoples
have the right to maintain, control, protect and develop their cultural
heritage, traditional knowledge and traditional cultural expressions,
as well as the manifestations of their sciences, technologies and
cultures, including human and genetic resources, seeds, medicines,
knowledge of the properties of fauna and flora, oral traditions,
literatures, designs, sports and traditional games, and visual and
performing arts. They also have the right
[[Page 43318]]
to maintain, control, protect and develop their intellectual property
over such cultural heritage, traditional knowledge, and traditional
cultural expressions. In conjunction with indigenous peoples, states
shall take effective measures to recognize and protect the exercise of
these rights.
Response: Accepted. NOAA added a reference to Knowledge Sovereignty
and UNDRIP language from Article 31 in a renamed ``Principles''
section.
Comment 8: Tribes should have an opportunity to review and object
to any use or recitation of TEK by NOAA. Provision needs to be stronger
by removing ``should'' and replacing it with ``must.''
Response: Disagree. While the Guidance is premised on the principle
of ``Free, Prior and Informed Consent,'' it is designed to provide best
practices to help ensure that the sharing and application of IK is
responsible, effective, and mutually beneficial. It does not create
binding or enforceable rights, and as such, NOAA does not believe
inclusion of mandatory directives such as ``must'' is appropriate.
Comment 9: TEK must come directly from tribes. On page 4 of the TEK
Guidance, ``literature review'' is listed as the first method of
identifying and collecting TEK. If NOAA officials utilize this method,
tribes need to guide the literature review to ensure that the right
sources are being reviewed. Further, literature review should always be
used in conjunction with outreach to tribes to identify and collect
TEK.
Response: Accepted. Added to ``literature review'' section:
``Researchers should work with IK holder(s) to share information about
the project and seek their guidance on sources.''
Comment 10: Confidentiality is important in order for tribes to
candidly share TEK. In some cases, anonymity may be appropriate to
prevent resource damage, backlash, enforcement action, legal risk, or
other harms. Before any information is shared, NOAA and tribes should
fully understand how such information will be shared. NOAA personnel
should also explain to tribes if any of that information is subject to
disclosure under the FOIA. NOAA should not approach individual tribal
members for TEK without first receiving consent from the tribe through
its formal, identified institutions. The qualifier ``Ideally'' should
be removed, since collection outside a method established by a tribe
does not amount to free, prior, and informed consent from the tribe to
provide such TEK.
Response: Accepted. Removed word ``ideally'' from ``Identifying
and/or collect IK'' section. The section now includes the following
sentence: ``No data should be collected until a preferred method is
established with indigenous group leaders and, through them or previous
fieldwork, with IK holder(s).''
Comment 11: The TEK Guidance provides one example of successful use
of TEK in decision-making. Providing additional examples in more detail
may help NOAA personnel and tribes understand the benefits of sharing
TEK and what TEK may be useful for NOAA decision-makers.
Response: Accepted. NOAA has included four examples of the benefits
of using IK in decision making.
Comment 12: NOAA should include TEK as the best available science.
NOAA should be more forthright in its TEK Guidance and state that the
``best available science shall incorporate TEK and other related
indigenous practices.''
Response: Partly accepted. Under Guidance, the first paragraph has
been changed to substitute the word ``should'' for ``can.'' Under the
new Interagency Coordination section, the second sentence reads: ``When
conducting formal or informal consultations with other Federal agencies
on issues with implications for tribes and indigenous communities, NOAA
should include and acknowledge IK as part of best available science and
as part of the administrative record.'' As noted in the response to IK
Comment 8, NOAA does not believe inclusion of mandatory directives such
as ``shall'' is appropriate in this Guidance document.
Comment 13: NOAA should ensure that TEK is properly incorporated
into decision-making. One impediment to the sharing of TEK is that
knowledge holders frequently do not understand or observe how their
information or data are incorporated into Federal decision-making.
Final results used to inform Federal decision making and policy
development should also be shared. We urge NOAA to adhere to these
provisions in the TEK Guidance and foster true scientific collaboration
with TEK holders.
Response: Accepted. NOAA will undertake training and outreach to
ensure that staff are aware of the guidance. In addition, a section on
``Building Capacity within NOAA'' was added.
Comment 14: We encourage NOAA to conduct additional engagement
directly with tribes, Alaska Native corporations, and other holders of
Indigenous knowledge to further develop substantive guidance addressing
the incorporation and consideration of TEK along with other scientific
information.
Response: NOAA appreciates the recommendation provided in this
comment. NOAA conducted tribal consultation on this guidance in January
2022, and does not believe additional consultation is needed at this
time to finalize the IK Guidance, particularly given the additional
consultation conducted by the White House Council on Environmental
Quality (CEQ) in developing its interagency guidance on IK. As noted,
the IK Guidance is intended to be a living document that will be
updated and improved over time. NOAA anticipates continued engagement
with tribes on this document as it continues to mature.
Comment 15: We request that the agency, through regulation or other
means, more formally recognize indigenous knowledge in its definition
of ``best available science'' under the Endangered Species Act, 16
U.S.C. 1531 et seq., and other applicable laws.
Response: Guidance updated to note that Indigenous Knowledge should
be included in the definition of ``best available science'' where
possible, but does not specifically reference the Endangered Species
Act. Under Guidance, the first paragraph has been changed to substitute
the word ``should'' for ``can.'' New text reads: ``Best available
science should incorporate IK and other related indigenous practices.''
Comment 16: Commenter requests that NOAA revise its ``Guidance and
Best Practices for Engaging and Incorporating Traditional Ecological
Knowledge in Decision-Making'' to reflect an acceptance of indigenous
knowledge on their own terms.
Response: Addressed in new ``Context'' section.
Comment 17: NOAA also should repudiate any perceived need to
integrate or assimilate indigenous knowledge into a Western science
format. What is needed instead is a multiple evidence base approach
that recognizes and respects the inherent value and worth of indigenous
knowledge systems. We encourage NOAA to review and integrate Two-Eyed
Seeing into its tribal policies and procedures.
Response: Reference to, and discussion of, ``Two-Eyed Seeing'' has
been added to the Guidance section.
Comment 18: To the extent the Agency has questions about the best
way to do this, we suggest that NOAA invite indigenous community
members to help craft the Agency's policies and guidance documents.
[[Page 43319]]
Response: Accepted. NOAA held tribal consultation on this guidance,
and incorporated most of the tribal input into the revised version.
Added the Guidance section on co-production of knowledge. NOAA is
interested in building partnerships with tribes to recognize and
include IK.
Comment 19: Not all environmental concerns faced by Indigenous
peoples are mere Environmental Justice concerns, but instead rise to
the level of adverting cultural genocide from robbing of Environmental
Sovereignty from the Indigenous population. By not clearly defining
that the purpose of this document is to foster partnership and not
disenfranchisement of Indigenous lifeways, this document leaves it open
for industry to circumvent the Federal regulators and other Federal
entities who have the fiduciary trust responsibilities to the tribes
and other Indigenous peoples of the United States.
Response: In response to this comment, NOAA added ``fulfill Federal
trust responsibilities'' to the purposes addressed by the inclusion of
IK.
Comment 20: Commenter notes that the guidance leaves a big hole in
this portrayal of what NOAA can do by neglecting to affirm that NOAA
with its science-based objectivity have the ability to act as an
advocate for the Indigenous peoples when speaking with other Federal
agencies who do have the ability to ensure enforceability of rights or
the ability to cause action under the law.
Response: Accepted. NOAA agrees that IK can be a relevant and
valuable element of interagency coordination. In response to this
section, NOAA has added a section on ``Interagency Coordination'' to
acknowledge this concept and provide guidance to NOAA staff.
Comment 21: NOAA Fisheries should recognize generally, and in the
subject documents specifically, the distinct, unique feature or
attribute that distinguishes the tribe and its members from most other
Americans (such as those commonly identified among ``Environmental
Justice'' communities). We have Treaty Rights, and derived from that
fact, the Federal Government has a Trust Responsibility to us.
Response: Accepted. A reference to treaty rights and trust
responsibilities has been added to the Introduction section.
Comment 22: Given that ``Ecology'' is a relationship between an
organism (or being) and its environment, NOAA needs to understand that
the tribe has developed an applied First Foods management mission, and
applied River and Upland Visions to guide restoration and management of
First Foods (water, native fish, wildlife, plants), that are based on
the ecology between and among First Foods, the ecology of the tribe and
our Foods, and our relationship to the landscapes and waters that
provide the Foods. Our management visions should be recognized as high
level, applied ``Traditional Ecological Knowledge,'' and given at least
equal weight to Federal agency management guidance. Where our
management goals or priorities differ, we can consult to address those
differences.
Response: NOAA appreciates the views expressed in this comment.
Comment 23: Infringement on Treaty Rights and Trust
Irresponsibility have occurred in the Pacific Northwest, too often
under active Federal oversight, or from the lack of it. A fundamental
objective of the subject documents should be to facilitate the
correction of these past and continuing injustices.
Response: A reference to treaty rights and trust responsibilities
has been added to the Introduction section.
Comment 24: In developing and revising the documents, it may be
helpful and informative to refer to the Environmental Protection
Agency's (EPA) 2016 Guidance, ``EPA Policy on Consultation and
Coordination with Indian Tribes: Guidance for Discussing Tribal Treaty
Rights.''
Response: NOAA appreciates the recommendation provided in this
comment. As noted above, a reference to treaty rights and trust
responsibilities has been added to the Introduction.
Comment 25: NOAA Fisheries' response to our petition thus far has
not only completely ignored the tribe's TEK and any sense of a
meaningful Government-to-Government relationship but has also
misrepresented Western science.
Response: This fact-specific concern is beyond the scope of the IK
Guidance.
Comment 26: We request NOAA Fisheries' leadership team to
immediately convene a Government-to-Government meeting with the [tribe]
and relevant NOAA staff to revisit this issue and appropriately engage
in consultation and integration of our TEK into decision making to
ensure Executive Order 13175 is carried out appropriately.
Response: See response to IK Guidance Comment 25.
Comment 27: We recommend that NOAA integrate the best available
Western science with Indigenous Knowledge provided by tribes to inform
decision-making and management.
Response: NOAA appreciates the recommendation included with this
comment.
Comment 28: We also recommend that the TEK guidance document
includes robust protective measures that ensure that sensitive
information that may be shared with NOAA in the course of our work
together is not made publicly available. We encourage NOAA to develop
specific data-sharing agreements with tribes regarding the use of TEK
that outline intellectual property and data ownership, privacy, and
use.
Response: Accepted. Added the following to Data Confidentiality
section, first paragraph: ``NOAA employees should not begin collecting
IK without establishing mutual trust, respect, and recognition of
knowledge sovereignty, preferably in the form of a jointly developed
agreement. The agreement should outline the purpose of the data
collection, intellectual property and data ownership, privacy, and
use.''
Comment 29: We further recommend that NOAA support TEK integration
into management approaches by increasing dedicated and long-term
capacity funding for natural and cultural research staff, including
Tribal Historic Preservation Offices, to support coordinated engagement
across tribal organizations. NOAA should integrate and fund
opportunities for research and planning, training and capacity
building, and implementation programs for the safe resumption of
traditional management approaches, as these efforts would also support
the integration of TEK into management.
Response: Comments regarding Federal funding allocation decisions
are beyond the scope of the IK Guidance.
Comment 30: We would look forward to engaging with the NMFS Alaska
Region to discuss the implementation of this guidance with Alaska
Tribes, and urge you to encourage the Alaska Region to outreach to
tribes and tribal organizations to engage in such discussions.
Response: NOAA appreciates the views expressed in this comment.
Comment 31: The NOAA TEK Guidance document constitutes an excellent
baseline document on this topic and we encourage NOAA staff working
with tribes to be familiar with it.
Response: Accepted. A new section on ``Building Capacity Within
NOAA'' has been added to the IK Guidance.
Comment 32: As noted above with regard to the Tribal Consultation
Handbook, it is important to bear in mind that there are other aspects
of Alaska Native and tribal knowledge other than TEK which are valuable
and
[[Page 43320]]
should be engaged in NOAA's work. This includes the aspects of
Traditional Knowledge (TK) outside those which are strictly considered
`ecological,' understanding the interlinkages between the `ecological'
and `other' aspects of TK, and crucially important forms of Indigenous
Knowledge other than TK.
Response: NOAA appreciates the views expressed in this comment, and
notes that the terminology of the IK Guidance has been revised from TEK
to IK in the final document, in part, to address considerations noted
in this comment.
Comment 33: We encourage NOAA to look at the work on Knowledge
Sovereignty and Indigenization in which the tribe has been engaged.
Response: NOAA appreciates the recommendation provided in this
comment. Discussion of knowledge sovereignty has been added to the
Principles section of the IK Guidance.
Comment 34: We encourage NOAA to work with tribes via a co-
productive framework as pertains to knowledge-related, as well as other
(e.g., policy), activities.
Response: Accepted. Discussion of knowledge sovereignty has been
added to the Principles section of the IK Guidance. NOAA has also added
the following text to the Guidance section: ``NOAA staff should
consider ways to co-develop and include IK for decision-making through
multiple programs and approaches.''
Comment 35: Commenter emphasizes that ``it may be inappropriate to
suggest that TEK should be `validated,' '' and, ``rather, indigenous
peoples' own internal methods of defining, valuing, and validating
their own knowledge/knowledge systems should be respected.'' See NOAA
Handbook (Section IV) regarding the unnecessary validation of TEK by
Western science.
Response: Accepted. In the Guidance section of the IK Guidance,
NOAA states: ``Depending on the situation, it may be inappropriate to
suggest that IK should be ``validated''. Rather, Indigenous Peoples'
own internal methods of defining, valuing, and validating their own
knowledge/knowledge systems should be respected and trusted.''
Comment 36: TEK holders and communities have the right to review
documents that include their TEK as well as the right to redact,
remove, or reject how their TEK is included. Commenter requests that
NOAA add a section in the TEK Guidance explicitly guiding NOAA
Fisheries and NOS to let TEK holders and communities review the TEK
collected and how it is included in the work and research of NOAA
Fisheries and NOS before it is used or distributed.
Response: NOAA appreciates the views expressed in this comment and
has added to the Best Practices for Identifying and Considering IK
section in the IK Guidance the following addition: ``NOAA should work
to share and archive any data collected in cooperation with IK
holder(s) and communities. IK holder(s) and communities should review
NOAA products that include IK before publication. Any confidential or
proprietary data that has been provided for public release solely in
the aggregate form must not be shared in disaggregated form--except
under any legal requirement (e.g., Freedom of Information Act) and
never without prior notification of the provider of that particular
IK.'' NOAA also notes that the applicability of the IK Guidance now
extends to all of NOAA.
Comment 37: Our only suggestion is to follow the lead of the White
House Office of Science and Technology Policy (OSTP) and the White
House Council on Environmental Quality (CEQ) which recently released a
Memorandum for the Heads of Departments and Agencies on the subject of
Indigenous Traditional Ecological Knowledge and Federal Decision
Making. Not only in substance, but also including the use of Indigenous
Knowledge and/or Indigenous Traditional Ecological Knowledge, instead
of the archaic ambiguous term TEK, both of which are a more accurate
descriptor of the body of knowledge we are all referring to.
Response: Accepted. As noted above, the NOAA IK Guidance now uses
the term ``Indigenous Knowledge'' in lieu of TEK.
Richard W. Spinrad,
Under Secretary of Commerce for Oceans and Atmosphere, NOAA
Administrator, National Oceanic and Atmospheric Administration.
[FR Doc. 2023-14415 Filed 7-6-23; 8:45 am]
BILLING CODE 3510-12-P
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