[Federal Register Volume 77, Number 99 (Tuesday, May 22, 2012)]
[Notices]
[Pages 30315-30317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12176]
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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 and request for comments.
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SUMMARY: The National Indian Gaming Commission (NIGC or ``the
Commission'') has established a protocol that provides for categorical
exclusions under the National
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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: Submit comments on or before June 30, 2012. This Protocol is
immediately effective upon publication. All comments will be reviewed
and considered to determine whether there is a need for potential
amendment to the protocol.
ADDRESSES: John R. Hay, Senior Attorney, National Indian Gaming
Commission, 1441 L Street NW., Suite 9100, Washington, DC 20005; fax at
(202) 632-7066; or by electronic mail at [email protected].
FOR FURTHER INFORMATION CONTACT: John Hay, Senior Attorney at the
National Indian Gaming Commission: 202-632-7003 (not a toll-free
number).
SUPPLEMENTARY INFORMATION:
On December 4, 2009, the Commission published a draft NEPA manual
in the Federal Register (74 FR 63765) and requested comments by January
18, 2010. On March 4, 2010 the comment period was extended to April 15,
2010 (75 FR 3756). The purpose of the manual was to clarify policy and
procedures to ensure the integration of environmental considerations
into major federal actions of the NIGC that trigger NEPA review. The
draft manual identified only one type of major federal action performed
under the Indian Gaming Regulatory Act (IGRA) that triggered NEPA
review--approving contracts for the management of Indian gaming
facilities pursuant to 25 U.S.C. 2711. The draft manual sought to
clarify the NEPA-related roles and responsibilities and established a
framework for the preparation and consideration of appropriate NEPA
documentation.
The draft manual also identified several categories of actions
taken by the NIGC that are categorically excluded from further NEPA
review. In identifying these categories of actions, the NIGC relied on
its past experience, several environmental professionals' opinions and
comparisons with other Federal agency actions that are categorically
excluded. A copy of the administrative record for the list of
categorical exclusions is available at http://www.nigc.gov/Reading_Room/Environment_Public_Health_Safety/NEPA_Compliance.aspx.
After considering the comments received, the Commission has decided
to establish a protocol that provides for two of the three categories
of categorical exemptions contained in the draft manual and to continue
to review comments received on the remainder of the manual. Categorical
exclusions are actions that do not normally require preparation of an
Environmental Assessment (EA) or Environmental Impact Statement (EIS),
absent extraordinary circumstances. None of the public comments on the
draft manual expressed any concerns or objection to the two categories
of categorical exclusions set forth below. The Commission hereby adopts
the protocol set forth 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.
Regulatory Matters
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 of 1996
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 of 1995
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
The Council on Environmental Quality regulations do not direct
agencies to prepare a NEPA analysis or document before establishing
Agency procedures that supplement the CEQ regulations for implementing
NEPA. Agencies are required to adopt NEPA procedures that establish
specific criteria for, and identification of, three classes of actions:
those that normally require preparation of an environmental impact
statement; those that normally require preparation of an environmental
assessment; and those that are categorically excluded from further NEPA
review (40 CFR 1507.3(b)). Categorical exclusions are one part of those
agency procedures, and therefore establishing categorical exclusions
does not require preparation of a NEPA analysis or document. Agency
NEPA procedures are procedural guidance to assist agencies in the
fulfillment of agency responsibilities under NEPA, but are not the
agency's final determination of what level of NEPA analysis is required
for a particular proposed action. The requirements for establishing
agency NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3. The
determination that establishing categorical exclusions does not require
NEPA analysis and documentation has been upheld in Heartwood, Inc. v.
U.S. Forest Service, 73 F. Supp. 2d 962, 972-73 (S.D. Ill. 1999),
aff'd, 230 F.3d 947, 954-55 (7th Cir. 2000).
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 a listed CATEX.
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
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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. The federal actions listed under
Category 1 and 2 below, 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 existing 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 necessary for NICG's oversight of Indian Gaming
Facilities and intra-agency operations at existing facilitates.
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.
Extraordinary Circumstances for Categorical Exclusions
Some types of actions that would normally be categorically excluded
may not qualify for a CATEX because an extraordinary circumstance
exists (See 40 CFR 1508.4). The responsible NIGC official must evaluate
each proposed action and use best professional judgment to determine if
it meets the CATEX requirements described above and does not have any
extraordinary circumstances. If the proposed action has one or more of
the following conditions, extraordinary circumstances exist and the
action cannot be categorically excluded:
A. There is a reasonable likelihood the proposed action/project
will have a significant impact on public health or safety.
B. There is a reasonable likelihood the proposed action/project
would involve effects on the environment that involve risks that are
highly uncertain, unique, or are scientifically controversial.
C. There is a reasonable likelihood the proposed action/project
would violate one or more federal, tribal, state, or local
environmental laws/regulations/orders.
D. There is a potential that the proposed action/project will have
an adverse effect on a property or structure eligible for listing or
listed on the National Register of Historical Places, including
degradation of scientific, cultural, or historic resources protected by
the National Historic Preservation Act of 1966, as amended, requiring
consultation.
E. There is a potential that the proposed action/project will have
a significant impact on natural, ecological, or scenic resources of
federal, tribal, state and/or local significance. These resources
include federal or state listed endangered, threatened, or candidate
species or designated or proposed critical habitat under the Endangered
Species Act (ESA); resources protected by Costal Zone Management Act
(CZMA); resources protected by the Fish and Wildlife Coordination Act;
prime, unique, tribal, state or locally important farmlands; and
federal or state listed wild or scenic rivers, requiring consultation.
F. There is a reasonable likelihood the proposed action/project
will have 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:
[ssquf] A complete description of the proposed action/project.
[ssquf] The CATEX relied upon, including a brief discussion of why
there are no extraordinary circumstances.
[ssquf] 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.
[ssquf] The following statement: I certify that, to the best of my
knowledge, the information provided is the best available information
and is accurate.
[ssquf] A signature from an environmental professional with a
signature block that includes the professional's credentials.
Dated: May 1, 2012.
Tracie Stevens,
Chairwoman.
Steffani Cochran,
Vice-Chairwoman.
Daniel Little,
Commissioner.
[FR Doc. 2012-12176 Filed 5-21-12; 8:45 am]
BILLING CODE 7565-02-P