SEP/28/2012/FRI 10: 11 AM 	 AX No, p, 001 

<!i?'" t!fiiI?"'" .t:!:- J!!:>. L> TEL: (907) 443-5231 • FAX; .(907) 443-4452 .:•• 

SEI<.VING THE 

VILLAGES OF: 

6RiW1G MISSION 

. COUNCil 

DIOMEDE 


ELIM 


GAMBELL 


GOLOVIN 


KiNG ISlAND 


KOYUK 


MARV'SIGLOO 


NOME 

SHAKTOOLIK 

SHiSHMAREF 

SOLOMON 

STESElINS 

ST. MICHAEL 

TELLER 

UNALAKLEE.T 

WALES 

WHITE MOUNTAIN 

September 26, 2012 

Dee Alexander; Senior Advisor on Native American Affairs 

Office of legislative and Intergovernmental Affairs 

us Department of Commerce, Room 5422 

1401 Constitution Ave., N.W. 

Washingtonj D.C. 20230 

[sent via fax to 206-482-4420] 

Subject: DOC-2012-002, Consultation and COordination Policy of the US Department of Commetce 

Dear Ms. Alexanderi 

Thank you for the opportunity to comment on the draft "Consultation and Coordination POIi,cy of the US 

Department of Commerce.... Kawerak, Inc. is a non~profit Tribal consortium of 20 federally recognized 

Tribes in the Bering Strait regIon. Kawerak has reviewed the draft policy and would like to provide some 

comments and recommendations about the policy, and based on interactions with Department of 

Commerce (DoC) agencies, including formal Tribal consultations. 

1. 	 RecommendatIon: Arilend the policy to make It applicable to Fishery Management co~ncils 

During the 9/19/12 DoC webinar reviewing the draft policy, participants were informed~hat the 

policy will not apply to the North Pacific Fishery Management Council (NPFMC), or any ofthe other 

Fishery Management Councils (FMCs), because the FMCs are not {'operating unitsN • If t~is is the 

case, and the draft potlcy will not apply to FMCs, it Is our strong recOmmendation that the policy be 

amended in such a way that it will apply to FMCs. Kawerak and Bering Strait Tribes have repeatedly 

noted to the NPFMC, National Marine Fishery Service (NMFS) and DoC about the difficulty of 

ensuring that Tribal concerns are addressed under the current protocols (i.e. NPFMC not 

participating in consultations). While NMFS may technically carry out and enforce NPFMC decisions, 

the NPFMCis responsible for directing and developing policy, regulation, fishery management plans 

and other actions which may significantly impact Tribes and Tribal resources. FMCs{ IikeiNMFS, 

should be required to engage in Tribal consultation to ensure that Tribal concerns and input can be 

considered, addressed and incorporated into FMCdecision making in a timely manner. 

. Z. Recommendation: Clarify that DoC agency research actIvities are subject to the policy, 

During the 9/19/12 DoC webinar partidpants were informed that If tribes believe that an agency 

research activIty has the potential to Impact Tribes or Tribal resources they may request a Tribal 

consultation with the agency. Kawerak strongly recommends that the draft pollcy clarify this point 

and specifically note that research activities are subject to the policy. Ten Bering Strait tribes have 
SEP/28/2012/FRI 10: 11 AM 	 FAX No. P. 002 

previously reqUested Tribal consultation on NOAA/NMFS research activities and these formal 

requests remain unanswered to this day. Clarifying your policy to state that it does apply to research 

activities will help ensure that Tribal requests are not Ignored in the future. 

3. 	 Recommendation: Provide additional guidance on "periodic dialogue" regarding the policy 

Section S.Ol.c ofthe draft policY indicates that the DoC Tribal Consultation Official will periodically 

engage Tribal officials in discussion about the policy. Kawerak recommends that additional guidance 

regarding "periodic dialogue" be included in the policy. How will the dialogue be carried out? When 

can we anticipate the first review of the approved policy? Can Tribes request a "dialogue"'? 

4. 	 Recommendation: Develop traInIng and guidance for DoC agencIes regarding Tribal consultation 

Section 6.01 of the draft policy indicates that DoC agency heads will ensure that staff will have Tribal 

consultation training. Kawerak recommends that the DoC office of Native American Affairs develop 

the training and make it availableto agency staff. This will ensure that materials and training are 

actually developed and will promote consistency across DoC agenCies. 

S. 	 Recommendation: Require agencies to develop Tribal consultation guidance 

Section 6.02 of the draft policy notes that each agency can develop and issue Tribal consultation 

guidance. Kawerak recommends that each agency be required to do this. We also note that Bering 

Strait region and other Alaska Tribes have provided specific gUidance and recommendations of this 

nature to NMFS in the pastl. . 

6. 	 Comment: "reasonable effort" and "'when practical" 

Section 7.01 of the draft policy notes that "a reasonable effort" will be made to accommodate 

requests for consultation and section 7.02.d notes that "when practical" tribes will be given time to 

prepare for consultation. If a true consultation relationship exists between a tribe and an agenCY 

(i.e. regular, timely and meaningful contact), we foresee very few, if any, circumstances under which 

a consultation reQuest could not be accommodated, or time to prepare for a consultation could not 

be provided. 

7. 	 Recommendation: Include language about the timing of consultation 

The current DoC American Indian and Alaska Native Policy', which the draft policy under 

consideration will replace. directs DoC and its agencies to "work with tribal governments prior to 

implementing any action ..!' Kawerak recommends that the draft policy be amended to include 

Similar language (perhaps in section 7.01). 

8. 	 Recommendation: Encourage and facilitate thede\telopment of Tribal liaison positions 

Section 7.02.a of the draft policy notes that ongoing and meaningful communication will be 

practiced by DoC agencies. While we hope that the policy will further encourage such 

communications, Kawerak and Bering Strait region tribes have found this to be very difficult when 

attempting to work with NMFS. We have recommended to NMFS for several years, and recommend 

again here, that a Tribal liaison position be created for the Alaska region (almost half of the nation's 

federally recognized tribes are located in Alaska). We believe that having a consistent staff contact, 

trained in tribal consultation, will facilitate the Tribal~agency relationship and consultatIon activities. 

1 A full discussion ofthese recommendations was forwarded to your office via email on 7/27/12 (and 

previously to Don Chapman on 11/17/10). 
I 

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! 

9. 	 RecommendatIon: Follow .up on correspondence to Tribes and TrIbal entities 

Section 7.02.e of tile draft policy states that "follow-up may be necessary" with Tribal officials. 

Communication to and from rural communities in Alaska can be difficult for a variety of reasons. 

Kawerak would like to recommend that DoC officials always follow-up with Tribal officials, 

particularly in Alaska. 

10. Recommendation: Include Tribal responses In consultation summaries 

Section 7.02.e of the draft policy notes that agency officials will provide Tribal officials with a 

document that summarizes consultation activities, including hQW Tribal concerns were addressed. 

Kaw~ralc recommends that an official Tribal response be included with the agency document and 

that the combined document becomes part of the official record on consultation activities 

maintained by the agency and DoC. We also recommend that these consultation reports be 

submitted to the Office of Management and Budget (OMB) as part of the required annual update to 

OMS that each agency must provide (OMB Memorandum M-10-33, dated 7/30/101 pages 5,7). 

U. Recommendation: Develop a method to determine which Tribes are most likely to desire 

consultation on a particular Issue 

This recommendation relates t!' section 7 of the policy, in general. . Kawerak recommends that 

NMFS and other DoC agencies develop methods by which they can determine which Tribes are most 

likely to desire consultation on a particular isslie. This will allow agencies to focus their consultation 

efforts and follow-up activities. \ 

12. 	Recommendation: DoC should encourage ~gencles to allocate funding to Tribal consultation 

Kawerak recommends that DoC encourage each of its agencies to allocate a portion ofits funding 

toward carrying out Tribal consultation activities, including conSUltation itself, staff training, and 

other associated activities. 

Thank you for consideration of our recommendations and comments. We look forward to further 

engagement with the Department of COmmerce on this issue. If you have any questions, please contact 

Julie Raymond-Yakoubian at 907-443~4i73 or juliery@kawerak.org. 

Sincerely, 

KAWERAK INCORPORATED 

lfrl~({L; 

Melanie Bahnke 

President 

Cc: Bering Strait Region Tribes