[Code of Federal Regulations]
[Title 18, Volume 1]
[Revised as of April 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 18CFR2.1c]

[Page 17-18]
 
           TITLE 18--CONSERVATION OF POWER AND WATER RESOURCES
 
  CHAPTER I--FEDERAL ENERGY REGULATORY COMMISSION, DEPARTMENT OF ENERGY
 
PART 2_GENERAL POLICY AND INTERPRETATIONS--Table of Contents
 
Sec. 2.1c  Policy statement on consultation with Indian tribes in 
Commission proceedings.

    (a) The Commission recognizes the unique relationship between the 
United States and Indian tribes as defined by treaties, statutes, and 
judicial decisions. Indian tribes have various sovereign authorities, 
including the power to make and enforce laws, administer justice, and 
manage and control their lands and resources. Through several Executive 
Orders and a Presidential Memorandum, departments and agencies of the 
Executive Branch have been urged to consult with federally-recognized 
Indian tribes in a manner that recognizes the government-to-government 
relationship between these agencies and tribes. In essence, this means 
that consultation should involve direct contact between agencies and 
tribes and should recognize the status of the tribes as governmental 
sovereigns.
    (b) The Commission acknowledges that, as an independent agency of 
the federal government, it has a trust responsibility to Indian tribes 
and this historic relationship requires it to adhere to certain 
fiduciary standards in its dealings with Indian tribes.
    (c) The Commission will endeavor to work with Indian tribes on a 
government-to-government basis, and will seek to address the effects of 
proposed projects on tribal rights and resources through consultation 
pursuant to the Commission's trust responsibility, the Federal Power 
Act, the Natural Gas Act, the Public Utility Regulatory Policies Act, 
section 32 of the Public Utility Holding Company Act, the Interstate 
Commerce Act, the Outer Continental Shelf Lands Act, section 106 of the 
National Historic Preservation Act, and in the Commission's 
environmental and decisional documents.
    (d) As an independent regulatory agency, the Commission functions as 
a neutral, quasi-judicial body, rendering decisions on applications 
filed with it, and resolving issues among parties appearing before it, 
including Indian tribes. Therefore, the provisions of the

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Administrative Procedure Act and the Commission's rules concerning off-
the-record communications, as well as the nature of the Commission's 
licensing and certificating processes and of the Commission's review of 
jurisdictional rates, terms and conditions, place some limitations on 
the nature and type of consultation that the Commission may engage in 
with any party in a contested case. Nevertheless, the Commission will 
endeavor, to the extent authorized by law, to reduce procedural 
impediments to working directly and effectively with tribal governments.
    (e) The Commission, in keeping with its trust responsibility, will 
assure that tribal concerns and interests are considered whenever the 
Commission's actions or decisions have the potential to adversely affect 
Indian tribes or Indian trust resources.
    (f) The Commission will seek to engage tribes in high-level meetings 
to discuss general matters of importance, such as those that uniquely 
affect the tribes. Where appropriate, these meetings may be arranged for 
particular tribes, by region, or in some proceedings involving 
hydroelectric projects, by river basins.
    (g) The Commission will strive to develop working relationships with 
tribes and will seek to establish procedures to educate Commission staff 
about tribal governments and cultures and to educate tribes about the 
Commission's various statutory functions and programs. To assist in this 
effort, the Commission is establishing the position of tribal liaison. 
The tribal liaison will provide a point of contact and a resource for 
tribes for any proceeding at the Commission.
    (h) Concurrently with this policy statement, the Commission is 
issuing certain new regulations regarding the licensing of hydroelectric 
projects. In this connection, the Commission sets forth the following 
additional policies for the hydroelectric licensing process.
    (i) The Commission believes that the hydroelectric licensing process 
will benefit by more direct and substantial consultation between the 
Commission staff and Indian tribes. Because of the unique status of 
Indian tribes in relation to the Federal government, the Commission will 
endeavor to increase direct communications with tribal representatives 
in appropriate circumstances, recognizing that different issues and 
stages of a proceeding may call for different approaches, and there are 
some limitations that must be observed.
    (j) The Commission will seek to notify potentially-affected tribes 
about upcoming hydroelectric licensing processes, to discuss the 
consultation process and the importance of tribal participation, to 
learn more about each tribe's culture, and to establish case-by-case 
consultation procedures consistent with our ex parte rules.
    (k) In evaluating a proposed hydroelectric project, the Commission 
will consider any comprehensive plans prepared by Indian tribes or 
inter-tribal organizations for improving, developing, or conserving a 
waterway or waterways affected by a proposed project. The Commission 
will treat as a comprehensive plan, a plan that:
    (1) Is a comprehensive study of one or more of the beneficial uses 
of a waterway or waterways;
    (2) Includes a description of the standards applied, the data relied 
upon, and the methodology used in preparing the plan; and
    (3) Is filed with the Secretary of the Commission. See generally 18 
CFR 2.19.

[Order 635, 68 FR 46455, Aug. 6, 2003]

Statements of General Policy and Interpretations Under the Federal Power 
                                   Act

    Authority: Sections 2.2 through 2.13, issued under sec. 309, 49 
Stat. 858; 16 U.S.C. 825h, unless otherwise noted.