# 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 ofCommerce, Room 5422 1401 ConstitutionAve., N.W. Washingtonj D.C. 

### 20230 [sent via fax to 

### 206-482-4420] Subject: DOC-2012-002, Consultation and COordination Policy ofthe US Department of Commetce
Dear Ms. Alexanderi Thank you for the opportunityto commenton the draft "Consultation and Coordination POIi,cy ofthe 

### US Department ofCommerce

.... Kawerak, Inc. 

### is a**non~profit** Tribal consortium of

### 20federally recognized Tribes in the Bering Strait regIon. Kawerak has reviewed the draft policy and would like to provide some comments and recommendations 

### aboutthe policy, and based on interactionswith Department of Commerce (DoC) agencies, includingformal Tribal consultations.



### 1. RecommendatIon: 

### Arilend the 

### policyto make Itapplicable to Fishery 

### Management**co~ncils** During the 

### 9/19/12 DoC webinar reviewingthe draft policy, participants were**informed~hat** the policy will not applyto 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 applyto FMCs, it Is our strong recOmmendation that the policy be amended in such a way that it will apply to FMCs. Kawerak and Bering StraitTribes have repeatedly notedto the 

### NPFMC, National Marine Fishery Service (NMFS) and DoC aboutthe difficulty of ensuring that Tribal concerns are addressed under the current protocols (i.e. NPFMC not participating in consultations). While NMFS maytechnically carry out and enforce NPFMC decisions, the NPFMCis responsible for directing and developing policy, regulation, fishery management plans and other actions which may significantly impactTribes and Tribal resources. FMCs{ IikeiNMFS, should be required to engage in Tribal consultation to ensure thatTribal 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 subjectto

### the policy, Duringthe 9/19/12 DoC webinar partidpants were informed that If

### tribes believe that an agency research activIty has the potential to ImpactTribes orTribal 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 policyto 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 thatthe DoC Tribal Consultation Official will periodically engage Tribal officials in discussion aboutthe 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 ofthe approved policy? Can Tribes request 

### a "dialogue"'? 4. 

### Recommendation: Develop traInIng and guidancefor DoC agencIes regardingTribal consultation Section 

### 6.01 ofthe 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 developTribal consultation guidance Section 

### 6.02 ofthe 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 notethat Bering Strait region and other Alaska Tribes 

### have provided specific gUidance and recommendations ofthis nature to NMFS inthe pastl.

. 

### 6. Comment: "reasonableeffort" and "'when practical" Section 7.01 ofthe draft policy notesthat "a reasonable effort" will be made to accommodate requests for consultation and section 7.02.d notes that "when practical" tribes will be given timeto prepare for consultation. 

### If

## a true consultation relationship exists between 

## atribe and an agenCY 

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

### a consultation reQuest could not 

### be accommodated, ortime to prepare for a consultation could not be provided. 

### 7. Recommendation: Include language aboutthe timing ofconsultation 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 thatthe draft policy be amended 

### to include Similar language (perhaps in section 

### 7.01). 

### 8. Recommendation: Encourage and facilitate thede\telopmentofTribal 

### liaison positions Section 7.02.a ofthe draft policy notes that ongoing and meaningful communication will be practiced by DoC agencies. While we hope thatthe policy 

### will further encourage such communications, Kawerak and Bering Strait region tribes have found this to be very difficult when attemptingto work with NMFS. We have recommended to NMFS for several years, and recommend again here, that a Tribal liaison position be created forthe Alaska region (almost halfofthe nation's federally recognized tribes are located in Alaska). We believe that having a consistent staffcontact, 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 

# SEP/28/2012/FRI 10: 12 AM 

## FAX No. 

## P. 003

! 9. RecommendatIon: Follow.up 

### on correspondence toTribes 

### andTrIbal entities Section 

### 7.02.e oftile draft policy states that "follow-up may be necessary" with Tribal officials. Communication to and from rural communities in Alaska can be difficultfor

## avariety 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 ofthe 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 partofthe official record on consultation activities maintained by the agency and DoC. We also recommend thatthese consultation reports be submitted to the 

### Office of Management and Budget (OMB) as 

### part ofthe required annual update to 

### OMSthat each agency must provide (OMB Memorandum 

### M-10-33, dated 

### 7/30/101 

### pages 

### 5,7). U. 

### Recommendation: Develop 

## a methodto determinewhich Tribesare most likely

### to desire consultation on a particular Issue This recommendation relates t!' section 

### 7 ofthe policy, in general.

.Kawerak recommends that NMFS and other DoC agencies develop methods bywhich 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 allocatefunding toTribal consultation Kawerak recommends that DoC encourage each of its agencies to allocate a portion ofits funding toward carrying outTribal consultation activities, including conSUltation itself, 

### stafftraining, and other associated activities.

Thank you for consideration ofour recommendations and comments. We lookforward to further engagement with the Department ofCOmmerce on this issue. Ifyou have any questions, please contact Julie Raymond-Yakoubian 

### at**907-443~4i73** 

### orjuliery@kawerak.org

. Sincerely,
KAWERAK 

### INCORPORATED

## lfrl~({L; Melanie Bahnke President

Cc: Bering Strait Region Tribes