will not be used to rationalize or justify decisions already made. 40 C.F.R. § 1502.5. Thus, NEPA
documents should be initiated as soon as the application is received.

One of the aims of NEPA is to provide for meaningful input from the public in order to
inform agency decision-making. See Committee to Preserve Boomer Lake Park y. Dept. of
Transportation, 4 F.3d 1543, 1554 (10" Cir. 1993). Thus public involvement is an important
aspect of EA preparation even if the regulations do not provide as formal or prescribed steps as for
an EIS. Further, the CEQ regulations enumerate the public responsibilities of agencies: (a) make
diligent efforts to involve the public in preparing and implementing NEPA procedures, (b) provide
public notice of NEPA-related hearings, public meetings, and availability of EAs and EISs in order
to inform interested or affected agencies or persons, (c) hold public hearings when appropriate,
(d) solicit appropriate information from the public, (e) explain where interested persons can get
information, and (f) make EISs available to the public. 40 C.F.R. § 1505.6.

Proposed Section 5.1 Public Participation has provided an abbreviated version of the CEQ
regulations. It does not detail out the necessary components as provided in the CEQ regulations,
and the SBGC recommends it do so. We also recommend that the regulation add the “NIGC will
invite the participation of any affected tribe in the scoping, EA and EIS process.” Additionally, do
the phrases “NEPA related hearings” and “NEPA related information” include all EA and EIS
documents and information? Section 5.1 also fails to provide that agencies must make EAs
available to the public and should provide notice to interested and affected parties. See CEQ, Forty
Questions, Q. 38. In direct contrast to Section 5.1, Section 5.2 on Scoping references and will
follow the regulations in 40 C.F.R. § 1501.7. The NIGC should adopt the CEQ regulations on
public involvement.

Scoping is an “early and open process for determining the scope of issues to be addressed
and for identifying the significant issues related to a proposed action.” 40 C.F.R. § 1501.7. We
support the NIGC’s use of the CEQ regulations for the scoping process, and urge that it be applied
in the EA and EIS process.

I. Proposed Buy Indian Act Regulations

The NIGC has proposed a rule for the procurement and services from Indian Economic
Enterprises as provided under the Buy Indian Act. We commend the NIGC on adopting these
policies and procedures and supporting tribal self-sufficiency. As we know, the Buy Indian Act

preference was “designed to promote Indian economic development and self-sufficiency.”

5


via a scanned letter sent via email? The section also covers untimely filed challenges. We
support the NIGC’s rule that it will challenge in a future review of an offeror. We also

recommend that the challenged offeror should be closely monitored for continued eligibility.

Awards. The rule also provides for awards to Indian economic enterprises. Under the
rule can the NIGC negotiate with an Indian economic enterprise on price if only one enterprise
responds to a Buy Indian solicitation? We read the provisions on when deviations are permitted
which state that receiving only one unreasonable offer is a basis for a deviation. We did not find
in the rule what happens if one reasonable offer is received. Also, how does a tribe know who

NIGC is awarding contracts to under this rule?
Ill. | NIGC’s Proposed Implementation of Privacy Act

This part implements the Privacy Act of 1974 (5 U.S.C. 552a) by establishing NIGC
policies and procedures that permit individuals to obtain access to and request amendment or
correction of information about themselves that is maintained in Agency systems of records. This
part also establishes policies and procedures for administrative appeals of requests for access to,
or correction or amendment of, records. The SBGC supports this rule.

The rule uses the phrase “Privacy Act Officer” as used in the Privacy Act. We
recommend that it be rephrased to state “NIGC Privacy Act Officer” that refers to the agency
person specifically responsible for record disclosures and appeals as opposed to the more generic
term.

Section 515.10 proposes a fee for copying of records. We recommend that it be revised
to state, “No fees will be charged for providing the first copy of a record or any portion of a record to
an individual to whom the record pertains.” A fee schedule for reproducing other records could be
adopted or the NIGC could rely upon the schedule set forth in 40 CFR 21.07.

Section 515.11 provides for the assessment of penalties for persons who make false
statements. What are the penalties in 18 U.S.C. 494 and 495? We recommend the penalties be set
out in clear lay terms.

In conclusion, the Shoshone-Bannock Tribes Gaming Commission generally supports the
three proposed rules. Our recommendations are set forth herein and ask that the NIGC consider the

suggestions. Thank you.


set forth under the federal Indian Gaming Regulatory Act, and there are no listed activities which

effect nonfederal activity relating to the human environment.

Categorical Exclusions. An agency’s proposal may be exempt or categorically excluded
from compliance with NEPA. 40 C.F.R. § 1501.4. “Categorical exclusion” means a category of
actions which do not individually or cumulatively have a significant effect on the human
environment and which have been found to have no such effect in procedures adopted by a federal
agency, and therefore do not require preparation of an Environmental Assessment (“EA”) or
Environmental Impact Statement. 40 C.F.R. § 1508.4. However, an agency may decide to prepare
an EA in its discretion, and must provide for extraordinary circumstances in which a normally
excluded action may have a significant environment effect. 40 C.F.R. § 1508.4.

The NIGC has proposed a number of Categorical Exclusions in Section 4. These include
Administrative and routine office activities (Category 1), Regulation, Monitoring and Oversight
of Indian Gaming activities (Category 2), and Management Contract and Agreement Review
Activities (Category 3). Additionally, the NIGC has provided in Section 4.3 the required
extraordinary circumstances provision to consider agency actions that may effect the human
environment. The SBGC believes the proposed exclusions are appropriate, and are consistent with
other agencies regulations lists of typically routine actions that are categorically excluded from
NEPA. For example, the Department of Interior has categorically excluded from NEPA, in the
absence of extraordinary circumstances, similar actions like nondestructive data collection and
inventory, educational activities, some hazardous fuels reduction activities, and some post-fire
rehabilitation activities. See Appendix 1 of 516 DOI Manual 2. The Department of Agriculture
has excluded similar categories of routine actions. 7 C.F.R. § 1b.3. In addition to excluding
routine administrative matters, the U.S. Army Corps of Engineers’ list of exclusions under its
permitting program is quite specific and includes fixed or floating small private piers and docks,
minor utility lines and boat launching ramps. 33 C.F.R. § 325 App. B(6). The SBGC supports the

NIGC’s proposed categorical exclusions in Section 4.

Public Participation and Scoping. The NEPA process, preparation of an Environmental
Assessment or Environmental Impact Statement, should be started as early as possible so that the

document can serve practically as an important contribution to the decision-making process and


Glover Construction Company v. Andrus, 591 F.2d 554, 566 (10" Cir. 1979), aff'd, 446 U.S. 608
(1980). “The purpose of these preferences [25 U.S.C. §§ 44, 45, 46, 47, and 274], as variously
expressed in the legislative history, has been to give Indians a greater participation in their own

self-government ....” Morton v. Mancari, 417 U.S. 535, 591 (1974).

2 6

The Buy Indian Act uses terms such as “self-sufficiency”, “participation”, and “manage”.
This language strongly indicates Congress intended for Indians and Indian tribes to more
involved with economic development through enterprises and to receive the preferences for
procurement and supplies from federal agencies such as the NIGC. The language used also
implies active involvement by Indians and Indian tribes in enterprises which may receive the
preference and not an Indian “straw man” in nominal control, placed there for the purpose of
obtaining for the enterprise or business contracts which it could not otherwise obtain, in direct

opposition to the legislative policy.

Preference to Indian economic enterprises. The NIGC proposes that the definition for
“Indian Economic Enterprise” be “combined Indian or Indian tribe ownership must constitute
less than 51 percent of the enterprise”. The SBGC supports this requirement provided there are
sufficient regulatory safeguards to protect the integrity of the majority Indian owner(s) of the
Indian economic enterprise, while promoting economic development. For example, this
minimum is flexible enough to provide an incentive for outside investors to partner with Indian

economic enterprises and contribute needed capital and seed money to Indian communities.

In addition, the rule defines Indian economic enterprise to include additional
qualifications beyond just 51 percent Indian ownership to help prevent companies “fronting” as
Indian economic enterprises. To be an Indian economic enterprise, Indian(s) or tribe(s) must
manage the contract, receive the majority of earnings from the contract, and control management
and daily business operations. To ensure actual control, the Indians must possess requisite
management or technical capabilities directly related to the primary industry in which the

enterprise conducts business.

Representation. The SBGC is deeply concerned about having contractors self-certify
that they qualify as “Indian economic enterprises” and that NIGC will accept the representation
without looking into financial statements of the enterprise. Moreover, the proposed rule fails to

detail what is required of the contractors seeking the status of Indian economic enterprises.

6


Respectfully submitted,
a
Vee AR
inton Plentywounds, Chairman
Shoshone-Bannock Gaming Commission

Ce: file
Mark Phillips, NIGC Portland Area


FORT HALL INDIAN RESERVATION
PHONE: (208) 237-8778 Ext. 3024

‘AX: (208) 637-6623

‘AX: (208) 637-6622

June 17, 2015

Jonodev O. Chaudhuri, Chairman
National Indian Gaming Commission
1849 C Street, N.W.

Washington, DC 20240

Re: Comments on proposed rules under NEPA, Buy Indian Act and Privacy Act

Dear Mr. Chairman and Gaming Commissioners:

The Shoshone-Bannock Tribes Gaming Commission (SBGC) of the Fort Hall Reservation
in Idaho, is pleased to provide the following comments on the National Indian Gaming
Commission's (NIGC) proposed rules on implementing policies and procedures of the National

Environmental Policy Act, the Buy Indian Act and Privacy Act.

I. Proposed National Environmental Policy Act Compliance Rules

The NIGC has proposed certain rules to comply with the requirements of the National
Environmental Policy Act, 42 U.S.C. § 4321 et seq. (“NEPA”), and the Council on Environmental
Quality regulations. "NEPA has twin aims. First, it ‘places upon an agency the obligation to
consider every significant aspect of the environmental impact of a proposed action.’ Second, it
ensures that the agency will inform the public that it has indeed considered environmental concerns
in its decisionmaking process. NEPA is triggered and requires the inclusion of a detailed statement
“in every recommendation or report on proposals for legislation and other major Federal actions
significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C) (2005). The
federal act does not define the terms of “proposal” or “major Federal action significantly affecting
the quality of the human environment,” or what the “detailed statement” is to consist of.

Accordingly, the Council on Environmental Quality (“CEQ”) regulations and specific federal

GAMING COMMISSION
P.O. BOX 306
FORT HALL, IDAHO 83203


There needs to be more detail in this section. We recommend that contractors claiming to be
Indian economic enterprises provide an Indian preference form, up-front, as proof. For example,
the offeror should be required to state, “The offeror represents as part of its offer that it [ ] does [
] does not meet the definition of Indian economic enterprise as defined inrule___.” Also, the
rule should state and require that all solicitations state, “Under the Buy Indian Act, offers are
solicited only from Indian economic enterprises. NIGC will reject all offers received from
ineligible enterprises.” Such required statements may help deter ineligible contractors from

applying and lessen the number of challenges.

As part of the representation process, we recommend the NIGC accept a Tribal
Employment Rights Office certification for Indian contractors. Tribal Employment Rights laws
and regulations ensure that all entities awarding contracts give preference to Certified Indian

Preference Contractors for contract and subcontract work on the Reservation.

We note there are penalties for misrepresentation that should deter contractors from
falsely claiming to be an Indian economic enterprise. Misrepresentation of eligibility as an Indian
economic enterprise is a violation of Federal criminal statutes. (See 48 CFR 1480.802(c)).

The SBGC recommends that the NIGC establish a repository of Indian economic
enterprises, either by setting up a Web site similar to the Small Business Administration (SBA)
or working with the SBA to expand its Web site to identify Indian economic enterprises. Tribes

also maintain their own lists of native-owned businesses which could be utilized at a website.

Challenges. This rule establishes a challenge process that is consistent with the FAR but
specific to challenges to Indian economic enterprise representations. The self-certification
approach or representation as provided in Section 48 CFR __.114, seems to follows the FAR
approach for challenges to small-business set-asides. NIGC will look into financial statements
only if someone challenges the representation as an Indian economic enterprise. We think this
may be too restrictive and the NIGC should closely monitor the representation beyond the

challenge process.

Section 48 CFR __.117 provides a challenge may be in writing and lists several forms of

filing. Is it acceptable to challenge an Indian economic enterprise representation by email? Or


agency regulations, have attempted to fill in the gaps, and to define these terms as they apply to
the particular agency and federal laws applicable to the agency.

The “human environment” impacts which trigger the NEPA process, is a broad term that
is “interpreted comprehensively to include the natural and physical environment and the
relationship of people with the environment.” 40 C.F.R. § 1508.14. Economic and social affects
will not, themselves trigger NEPA. 40 C.F.R. § 1508.14. Despite the term “human environment”
being interpreted broadly, it still does not encompass the primary role and duties of the NIGC, its
actions, and its day-to-day operations in the area of Indian gaming. The NIGC, as a federal agency,
may at some point be a participant in a NEPA process, relating to a construction of gaming facility,
but ordinarily it will not be the lead federal agency or primary federal decision-maker for approval
of an environmental assessment or environmental impact statement. Given the unique obligations
and responsibilities of the NIGC as provided under the Indian Gaming Regulatory Act, and its role
in area of Indian gaming, we support the NIGC’s efforts in issuing these NEPA rules that seek to
clarify and fill in the gaps in the NEPA process as applied to the NIGC, and exclude certain NIGC

actions from NEPA coverage.

No Federal Action. The most common major Federal actions subject to NEPA are
construction projects, initiated or implemented by Federal agencies, such public housing, civil
works, public roads, and like; projects that require Federal permits, such as use of public lands or
for impacts to resources such as waters of the United States under 404 of the Clean Water Act;
rights of way and easements across Indian lands and public lands; implementation of management
plans such as Forest Management plans; and approvals of Federal funding or assistance for
projects. Additionally, impacts to endangered species and National Register eligible historic or
cultural resource sites, are common NEPA triggers. Certainly, these types of federal actions
relating to the environment are not common or “federal actions” undertaken by the NIGC in its
general oversight of Indian gaming.

The need for NEPA study hinges on the presence of major federal action, a term which
NEPA does not define. The Council on Environmental Quality (CEQ), however, has issued
regulations defining the term, and, as the Supreme Court has stated, "CEQ's interpretation of
NEPA is entitled to substantial deference." Andrus v. Sierra Club, 442 U.S. 347 (1979). These

regulations establish that major federal action encompasses not only actions by the federal


government but also actions by nonfederal actors "with effects that may be major and which are
potentially subject to Federal control and responsibility." 40 C.F.R. Sec. 1508.18 (emphasis
added). "Nonfederal" major federal action refers, inter alia, to activities "regulated or approved by
federal agencies," id. at Sec. 1508.18(a), including "[a]pproval of specific projects such as
construction ... activities located in a defined geographic area," Id. at Sec. 1508.18(b)(4). Such
approval may occur through "permit or other regulatory decision as well as federal and federally
assisted activites." Id. A leading commentator has observed: "[T]he distinguishing feature of
‘federal’ involvement is the ability to influence or control the outcome in material respects, The
EIS process is supposed to inform the decision-maker. This presupposes he has judgment to
exercise. Cases finding ‘federal’ action emphasize authority to exercise discretion over the
outcome." W. Rodgers, Environmental Law 763 (1977).

The touchstone of major federal action is an agency's authority to influence significant
nonfederal activity. This influence must be more than the power to give nonbinding advice to the
nonfederal actor. See, e.g., Almond Hill School v. United States Department of Agriculture, 768
F.2d 1030, 1039 (9th Cir.1985) (no federal action where federal officials constituted minority of
state advisory board which had power to recommend but not to act); Atlanta Coalition on the
Transportation Crisis, Inc. v. Atlanta Regional Commission, 599 F.2d 1333, 1344-47 (5th
Cir.1979) (federal funding assistance for local planning process does not constitute major federal
action, where all "decisions are entrusted to the state and local agencies"). Rather, the federal
agency must possess actual power to control the nonfederal activity. The Tenth Circuit, has found
major federal action in nonfederal activities, such as the filing of documents with a federal agency,
when the filing is a necessary but insufficient step to gain eligibility to apply for federal funds for
a nonfederal project, Scenic Rivers Association v. Lynn, 520 F.2d 240, 243-44 (10th Cir.1975),
rev'd on other grounds, 426 U.S. 776 (1976), and the BIA’s approval of an Indian tribe's lease of
its lands to nonfederal lessees, Davis v. Morton, 469 F.2d 593, 596-98 (10th Cir.1972).

The NIGC has proposed in Section 3 that certain NIGC activities are not subject to NEPA.
These NIGC activities include Advisory Actions, Enforcement Actions, and Emergency Actions.
We are persuaded that these activities, standing alone, do not constitute major federal action as
interpreted by the court decisions. These non-federal action activities are consistent with NIGC’s
duty to insure that the tribal gaming activities are in compliance with the tribal laws, Indian

Gaming Regulatory Act, and Tribal-State Gaming Compacts. Moreover, the role of the NIGC is