[Federal Register Volume 82, Number 7 (Wednesday, January 11, 2017)]
[Notices]
[Pages 3352-3355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00364]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
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, Department of the
Interior.
ACTION: Notice of proposed action and request for comments.
-----------------------------------------------------------------------
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
(40 CFR parts 1500-1508) for certain NIGC actions.
DATES: Comments and related material must be post marked no later than
60 days after publication of this notice.
ADDRESSES: Please submit your comments by only one of the following
means: (1) By mail to: NIGC Attn: Andrew Mendoza, Staff Attorney, C/O
Department of the Interior, 1849 C Street NW., Mailstop #1621,
Washington, DC 20240; (2) by facsimile to: (202) 632-7066; (3) by email
to: [email protected].
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. Comments Invited
The NIGC encourages interested persons to submit written comments.
Persons submitting information concerning the Protocol should include
their name, address, and other appropriate contact information. You may
submit your information by one of the means listed under ADDRESSES. If
you submit information by mail or hand delivery, submit them in an
unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit information by mail and
would like to know it was received, please enclose a stamped, self-
addressed postcard or envelope. The NIGC will consider all comments
received during the comment period.
[[Page 3353]]
II. 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 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.
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 http://www.nigc.gov. A copy of the Federal Register
publication is available at http://www.regulations.gov.
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 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
[[Page 3354]]
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
structures; (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, 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.
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, or permit
requirements.
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, including 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) known cultural or archaeological
resources; (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.
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
[[Page 3355]]
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: December 22, 2016.
Jonodev Chaudhuri,
Chairman.
Kathryn Isom-Clause,
Vice-Chair.
Sequoyah Simermeyer,
Commissioner.
[FR Doc. 2017-00364 Filed 1-10-17; 8:45 am]
BILLING CODE 7565-01-P