Protocol for Categorical Exclusions Supplementing the Council on Environmental Quality Regulations Implementing the Procedural Provisions of the National Environmental Policy Act for Certain National Indian Gaming Commission Actions and Activities, 35542-35545 [2017-15498]

Agencies

• National Indian Gaming Commission

[Federal Register Volume 82, Number 145 (Monday, July 31, 2017)]
[Notices]
[Pages 35542-35545]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-15498]


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NATIONAL INDIAN GAMING COMMISSION


Protocol for Categorical Exclusions Supplementing the Council on 
Environmental Quality Regulations Implementing the Procedural 
Provisions of the National Environmental Policy Act for Certain 
National Indian Gaming Commission Actions and Activities

AGENCY: The National Indian Gaming Commission.

ACTION: Notice of final action.

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SUMMARY: The National Indian Gaming Commission (NIGC or ``the 
Commission'') is amending its protocol for categorical exclusions under 
the National Environmental Policy Act of 1969 (NEPA), as amended, 
Executive Order 11514, as amended, and Council on Environmental Quality 
(CEQ) regulations for implementing the procedural provisions of NEPA 
for certain NIGC actions.

DATES: The NIGC will implement this protocol immediately upon 
publication.

ADDRESSES: Andrew Mendoza, Staff Attorney, National Indian Gaming 
Commission, 1849 C Street NW., Mailstop #1621, Washington, DC 20240; 
fax at (202) 632-7066; or by email to: andrew_mendoza@nigc.gov.

FOR FURTHER INFORMATION CONTACT: Andrew Mendoza, Staff Attorney at the 
National Indian Gaming Commission: 202-632-7003 (not a toll-free 
number).

SUPPLEMENTARY INFORMATION: 

I. Background

    On December 4, 2009, the Commission published a draft NEPA manual 
in the Federal Register (74 FR 63765). The purpose of the manual was to 
establish the Commission's NEPA-related policies and procedures and to 
integrate environmental considerations into the Commission's decision-
making processes. The draft manual identified one type of major federal 
action performed under the Indian Gaming Regulatory Act (IGRA) that 
triggered NEPA review, specifically, the approval of contracts for the 
management of Indian gaming facilities pursuant to 25 U.S.C. 2711. In 
addition to identifying major federal actions applicable to the 
Commission, the draft manual also established the Commission's NEPA-
related roles and responsibilities and created a framework for the 
preparation of NEPA documentation appropriate for each level of 
environmental review. The draft manual also identified three categories 
of actions taken by the NIGC that are categorically excluded from 
further NEPA review. Categorical

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exclusions (CATEX) are actions that do not normally require preparation 
of an Environmental Assessment (EA) or Environmental Impact Statement 
(EIS), absent extraordinary circumstances.
    On May 22, 2012, after reviewing the comments submitted on the 
draft NEPA manual, the Commission published a Protocol for Categorical 
Exclusions Supplementing the Council on Environmental Quality 
Regulations Implementing the Procedural Provisions of the National 
Environmental Policy Act for Certain National Indian Gaming Commissions 
Actions and Activities (77 FR 30315) and requested comments by June 30, 
2012. This publication formally adopted two of the three categorical 
exclusions listed in the draft NEPA manual.
    In 2015, after evaluating its past environmental reviews for 
management contract approvals and the comments received on the 2009 
draft NEPA manual, the Commission decided to revisit its policies and 
procedures for implementing NEPA. To obtain updated views from the 
regulated community, the Commission held several consultation sessions 
over a two-year period with tribal nations and solicited comments 
regarding the scope and extent of its NEPA responsibilities. Following 
consultation, the Commission evaluated the newly submitted comments in 
conjunction with those received in response to the 2009 draft manual 
and decided to amend the 2012 Protocol to include a third CATEX for 
Management Contract and Agreement Review Activities. This CATEX will 
apply to certain management contract approvals that are not associated 
with an application to take land into trust and do not provide for 
construction or expansion of existing structures. In identifying this 
category of actions, the NIGC relied on its past experience, several 
environmental professionals' opinions and comparisons with other 
Federal agency actions that are categorically excluded.

Comments

    On January 11, 2017, the Commission published a notice of proposed 
action and request for comments on the amended protocol in the Federal 
Register (82 FR 3352). In response, it received only one comment. The 
commenter requested that the Native American Graves Protection and 
Repatriation Act (NAGPRA) 25 U.S.C. 3001-3013 be included within the 
list of examples of environmental laws with which parties seeking to 
apply the categorical exclusion must comply. The Commission agrees and 
updated the language accordingly.
    The same commenter also questioned how the Commission would 
interpret the term ``known'' with respect to the extraordinary 
circumstances involving ``known cultural or archaeological resources.'' 
Given the potential for confusion regarding this term, the Commission 
eliminated the term and, instead, references the Archaeological 
Resources Protection Act (ARPA) 16 U.S.C. 470aa-470mm, and NAGPRA. The 
Commission believes that referencing the particular statutes 
sufficiently demonstrates its intent to abide by the objective, legal 
definitions and processes set forth therein.
    After considering the comments, the Commission hereby adopts the 
amended protocol set forth below for determining whether a categorical 
exclusion applies to particular action as well as the categories of 
actions the Commission has determined are eligible for categorical 
exclusions.
    A copy of this Federal Register publication, as well as the 
administrative record for the newly established categorical exclusion, 
is available at https://www.nigc.gov. A copy of the Federal Register 
publication is available at https://www.regulations.gov.

Tribal Consultation

    The National Indian Gaming Commission is committed to fulfilling 
its tribal consultation obligations--whether directed by statute or 
administrative action such as Executive Order (EO) 13175 (Consultation 
and Coordination with Indian Tribal Governments)--by adhering to the 
consultation framework described in its Consultation Policy published 
July 15, 2013. Pursuant to the Order, the Commission engaged in 
extensive consultation on this topic.

Regulatory Flexibility Act

    This Protocol will not have a significant economic effect on a 
substantial number of small entities as defined under the Regulatory 
Flexibility Act, 5 U.S.C. 601 et seq. Indian tribes are not considered 
to be small entities for the purposes of the Regulatory Flexibility 
Act.

Small Business Regulatory Enforcement Fairness Act

    This Protocol is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This Protocol does not 
have an annual effect on the economy of $100 million or more. This rule 
will not cause a major increase in costs or prices for consumers, 
individual industries, Federal, state or local government agencies or 
geographic regions, and does not have a significant adverse effect on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises.

Unfunded Mandates Reform Act

    The Commission, as an independent regulatory agency within the 
Department of the Interior, is exempt from compliance with the Unfunded 
Mandates Reform Act. 2 U.S.C. 1502(1); 2 U.S.C. 658(1).

Takings

    In accordance with Executive Order 12630, the Commission has 
determined that this Protocol does not have significant takings 
implications. A takings implication assessment is not required.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of General 
Counsel has determined that the Protocol does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Executive Order.

National Environmental Policy Act

    This Protocol supplements CEQ regulations and provides guidance to 
NIGC employees regarding procedural requirements for the application of 
NEPA provisions to certain NIGC actions. The CEQ does not direct 
agencies to prepare a NEPA analysis or document before establishing 
agency procedures for implementing NEPA.
    For the reasons set out in the preamble, the National Indian Gaming 
Commission establishes the following Protocol:
Protocol for Categorical Exclusions (CATEX) of Certain Actions
    The use of a CATEX can only be applied to an action if all of the 
following criteria are met:
    1. The responsible NIGC official must determine that the entirety 
of the NIGC action is encompassed by one of the listed CATEXs.
    2. The responsible NIGC official must determine that the action has 
not been segmented in order for the NIGC action to meet the definition 
of an action that can qualify for a CATEX. Segmentation occurs when an 
action is broken into smaller parts in an effort to avoid properly 
documenting impacts associated with the complete action. Segmentation 
also occurs when the NIGC action is too narrowly defined and the 
potential impacts are minimized in order to avoid a higher level of 
NEPA documentation. Connected and

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cumulative actions must be considered (See 40 CFR 1508.25).
    3. The responsible NIGC official must determine if the NIGC action 
will involve any extraordinary circumstances that would prevent the use 
of a categorical exclusion.
Categorical Exclusions
    The NIGC, based on past experience with similar actions, has 
determined that the following types of actions are categorically 
excluded and do not require the preparation of an EA or EIS because 
they will not individually or cumulatively result in a significant 
impact on the human environment. These types of federal actions meet 
the criteria established in 40 CFR 1508.4.
Category 1--Administrative and Routine Office Activities
    A. Normal personnel, fiscal, and administrative activities 
involving personnel (recruiting, hiring, detailing, processing, paying, 
supervising and records keeping).
    B. Preparation of administrative or personnel-related studies, 
reports, or investigations.
    C. Routine procurement of goods and services to support operations 
and infrastructure, including routine utility services and contracts, 
conducted in accordance with applicable procurement regulations, 
executive orders, and policies (e.g. Executive Order 13101).
    D. Normal administrative office functions (record keeping; 
inspecting, examining, and auditing papers, books, and records; 
processing correspondence; developing and approving budgets; setting 
fee payments; responding to request for information).
    E. Routine activities and operations conducted on or in an existing 
structure that are within the scope and compatibility of the present 
functional use of the building, will not result in a substantial 
increase in waste discharge to the environment, will not result in 
substantially different waste discharges from current or previous 
activities, and will not result in emissions that exceed established 
permit limits, if any. In these cases, a Record of Environmental 
Consideration (REC), documentation is required.
    F. NIGC training in classrooms, meeting rooms, gaming facilities, 
or via the internet.
Category 2--Regulation, Monitoring and Oversight of Indian Gaming 
Activities
    A. Promulgation or publication of regulations, procedures, manuals, 
and guidance documents.
    B. Support of compliance and enforcement functions by conducting 
compliance training for tribal gaming regulators and managers in 
classrooms, meeting rooms, gaming facilities, or via the internet.
    C. Preparing and issuing subpoenas, holding hearings, and taking 
depositions for informational gathering purposes, not associated with 
administrative enforcement actions.
Category 3--Management Contract and Agreement Review Activities
    A. Approval or disapproval of management contracts, management 
contract amendments and collateral agreements that meet the following 
criteria: (1) Are not associated with an application to take land into 
trust; (2) does not provide for construction or expansion of existing 
facilities; (3) ensures compliance with all federal, state, local and 
tribal environmental laws (e.g. Clean Air Act, Clean Water Act, 
Endangered Species Act, National Historic Preservation Act, Native 
American Graves Protection and Repatriation Act, etc.), regulations, 
and permit requirements; and (4) ensures adequate provision of 
utilities, law enforcement, fire protection, and other emergency 
service coverage without effects on neighboring areas. In these cases, 
a Record of Environmental Consideration (REC), documentation is 
required.
    B. Conducting background investigations in connection with a 
management contract or management contract amendment.
Extraordinary Circumstances
    Actions that can normally be categorically excluded may not qualify 
for a CATEX because an extraordinary circumstance exists (See 40 CFR 
1508.4). If the proposed action has one or more of the following 
conditions, extraordinary circumstances exist and the action cannot be 
categorically excluded:
    A. The proposed action/project would threaten a violation of 
applicable federal, state, local or tribal statutory, regulatory, or 
permit requirements with regard to public health and safety.
    B. The proposed action/project has effects on the environment that 
involve risks that are highly uncertain, unique, or are scientifically 
controversial.
    C. The proposed action/project violates one or more federal, 
tribal, state, or local environmental laws, regulations, permit 
requirements, or Executive Order.
    D. The proposed action/project has an adverse effect on a property 
or structure eligible for listing or listed on the National Register of 
Historical Places as determined by-the Commission, the State Historic 
Preservation Officer, the Tribal Historic Preservation Officer, the 
Advisory Council on Historic Preservation, or a consulting party under 
36 CFR 800. Adverse effects include the degradation, loss, or 
destruction of (1) scientific, cultural, or historical resources 
protected by the National Historic Preservation Act of 1966, as 
amended; (2) on World Heritage properties; or (3) other significant 
scientific, cultural, or historical resources.
    E. The proposed action/project has adverse effects on natural, 
ecological, or scenic resources of federal, tribal, state and/or local 
significance. These resources include: (1) Resources protected by 
Coastal Zone Management Act (CZMA); (2) resources protected by the Fish 
and Wildlife Coordination Act; (3) prime, unique, tribal, state or 
locally important farmlands; (4) cultural items or archaeological 
resources as defined by the Archaeological Resources Protection Act 
and/or Native American Graves Protection and Repatriation Act; (5) park 
lands; (6) federal or state listed wild or scenic rivers; and/or (7) 
other ecologically critical areas.
    F. The proposed action/project is related to other actions that 
may, when considered cumulatively, have significant adverse effects.
    G. The proposed action/project may adversely affect (1) a federal 
or state listed endangered, threatened, or candidate species; or (2) 
designated or proposed critical habitat under the Endangered Species 
Act (ESA).
    H. The proposed action/project has effects which will impact 
floodplains and/or wetlands on Federal property.
    I. The proposed action/project has effects that will cause a 
criteria pollutant listed under the Clean Air Act to exceed the 
threshold level of one or more of the National Ambient Air Quality 
Standards for the surrounding geographical area.
    J. The proposed action/project has effects that may cause 
disproportionately high adverse environmental or health impacts 
specific to children, minorities, or low-income populations.
    K. The proposed action/project is likely to have adverse effects on 
migratory bird populations.
    L. The proposed action/project has the potential to disturb 
hazardous substances, pollutants, contaminants, or CERCLA-excluded 
petroleum and natural gas products that preexist in the environment 
such that there would be uncontrolled or unpermitted releases.

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    M. The proposed action/project has effects that are highly 
controversial on environmental grounds.
Categorical Exclusion Documentation
    The purpose of categorical exclusions is to reduce paperwork and 
delay. The NIGC is not required to repeatedly document actions that 
qualify for a categorical exclusion and do not involve an extraordinary 
circumstance (See 40 CFR 1500.4(p)). The NIGC will document its 
decision to treat a particular action as categorically excluded from 
further NEPA review, when the CATEX applied specifically requires the 
preparation of a REC. In those cases, a REC will include:
    A. A complete description of the proposed action/project;
    B. The CATEX relied upon, including a brief discussion of why there 
are no extraordinary circumstances;
    C. Supplemental documentation that supports the conclusions in the 
narrative. Examples include exhibit(s) showing boundaries of historical 
or archeological site(s) previously identified near the proposed 
project, documentation from the U.S. Fish and Wildlife Service noting 
that no endangered species or habitat is present near the proposed 
project, evidence that the proposed project site is located outside any 
non-attainment area(s), etc. In some cases, a ``no effect'' 
determination from the State Historic Preservation Office or Tribal 
Historic Preservation Office may be required;
    D. The following statement: I certify that, to the best of my 
knowledge, the information provided is the best available information 
and is accurate;
    E. A signature from an environmental professional with a signature 
block that includes the professional's credentials.

    Dated: July 14, 2017.
Jonodev O. Chaudhuri,
Chairman.
Kathryn Isom-Clause,
Vice Chair.
E. Sequoyah Simermeyer,
Commissioner.
[FR Doc. 2017-15498 Filed 7-28-17; 8:45 am]
 BILLING CODE 7565-01-P