. increase economic activity in tribal communities and provide greater employment opportunities for

tribal members.

* * * * *

In closing, the SCOGC would like to thank the Commission for this opportunity to submit
comments on the proposals and drafts issued in connection with the February 26, 2015 Notice of
Consultation. The SCOGC appreciates the Commission’s ongoing outreach efforts and looks
forward to continuing the dialogue on these important regulatory matters.

Sincerely,

wa, AV C06 Lobo

eneva Fletcher
Interim Gaming Commissioner
Seneca-Cayuga Office of the Gaming Commissioner

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NATION

23701 South 655 Road Grove, Oklahoma 74344 | P: 918-787-5452 | F: 918-787-5521 | www-sctribe.com
May 4, 2015

Jonodev O. Chaudhuri, Chairman
Daniel J. Little, Associate Commissioner
1849 C Street NW

Mail Stop #1621

Washington, DC 20240

Re: Comments in Response to February 26, 2015 Notice of Consultation

Dear Commissioners:

The Seneca-Cayuga Office of the Gaming Commissioner (the “SCOGC”) appreciates the opportunity to
submit comments in response to the National Indian Gaming Commission's (“Commission”) Notice of
Consultation issued on February 26, 2015. The SCOGC commends members of the Commission for reaching
out and engaging with tribal governments during the early planning stages of the proposals outlined in the
Notice of Consultation. To be meaningful, consultation must happen early and frequently to ensure that both
the Commission and tribes have sufficient time to review the issues, consider alternatives, and develop a
consensus on the best available approach.

In the comments below, we offer our comments on the proposals and drafts issued in connection with
the Notice of Consultation. It is our hope that the discussion below proves helpful to the Commission in its
deliberations on these matters of mutual importance. *

1. THE PROPOSED NEPA MANUAL

The Commission is seeking to adopt a policies and procedures manual (“Draft Manual”) that includes a
Categorical Exclusion (“CATEX”) for its management contract approval activities. The Draft Manual defines
the extraordinary circumstances under which a CATEX would not be appropriate, which includes situations
where the effects of the proposed project may be highly “controversial” on environmental grounds.

Overall, the Draft Manual is a positive development that helps clarify the NEPA-related role and
responsibilities of the Commission, particularly in relation to its management contract activities. Unlike the
previous version published in the Federal Register in 2009, the Draft Manual presents a more simplified
approach reflective of the minimal responsibilities arising under NEPA and the limited review required for
Commission actions. In reviewing the Draft Manual, we were pleased to find that many of the unnecessarily
detailed and extensive procedures in the previous version had been removed.

We were also pleased by the Commission’s decision to expand the CATEX to cover all management contracts,
regardless of the underlying activity taking place under the contract. This is a significant improvement from
the previous draft, which limited the CATEX to contracts that did not involve any physical construction or
plans to increase patronage. These changes will provide greater


cbrtainty to the NEPA process and help minimize implementation and compliance costs for both the
Commission and tribes.

We note, however, that the Draft Manual could have gone further in clarifying that
management contract approvals do not rise to the level of a “major federal action” and are thus
exempt from NEPA review altogether. Close examination of the approval process shows that the
federal interest in a management contract, other than for enforcement of its terms, is slim. Even
when a management contract incidentally involves construction activity, the Commission has no
ability to control or regulate the size, design, or construction of the project. Nevertheless, in spite of
our views, we conclude that the policy and procedures in the Draft Manual are favorable and will
have a positive impact by clearing up the uncertainty surrounding NEPA review requirements.

We further note that there are a couple of areas in the Draft Manual that would benefit from
further revision, One of the key provisions in the Draft Manual pertains to the “extraordinary
circumstances” under which a CATEX would not apply. According to Section 4.3.6 of the Draft
Manual, actions that would normally be categorically excluded’ will not qualify for the CATEX if
“[t}here is a reasonable likelihood the proposed action/project will have effects that are highly
controversial on environmental grounds.”

The Draft Manual defines “controversial” to include situations where “a substantial dispute
exists as to the environmental consequences of the proposed action.” Our concern is that this
definition is too broad and could be interpreted to cover disagreements between members of the
general public with little to no scientific background. The definition should clarify that the
substantial dispute must exist between members of the scientific community who are qualified to
make science-based judgments regarding the potential environmental impacts of a proposed project.

The definition should also be revised to clarify that “controversial” does not refer to a
preference among alternative approaches. In determining whether an extraordinary circumstance is
present, the relevant question is whether there is significant disagreement as to the environmental
consequences of a project, not on the preferred approach.

Taken together, these two revisions would result in an updated definition that reads as
follows (proposed new language in italics):

1.2.7 Controversial: Meaning a substantial dispute exists within the scientific
community as to the environmental consequences of the proposed action
and does not refer to the mere existence of opposition to a proposed
action or a preference among the alternatives.

I. PROPOSED WITHDRAWAL OF 25 C.F.R. PART 542 (CLASS IIL MICS)

We applaud the Commission for taking the initiative to consult with tribes in the early
planning stages of its proposal to withdraw 25 C.F.R. Part 542 and issue the Class III MICS as non-
mandatory guidance. We appreciate and welcome the Commission’s efforts to engage with tribes
before undertaking any rulemaking activity or even developing any new drafts. The Commission’s
commitment to early and meaningful consultation will go far in helping both tribes and the
Commission better understand the underlying concepts and potential consequences behind the
proposed changes.

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Generally speaking, we support the idea of adopting a more flexible regulaiory approach that
will allow tribes to establish controls and procedures that are appropriate to their specific needs and
level of resources. However, before committing to a decision to move forward with the proposed
withdrawal, we ask the Commission to consider some of the possible implications and consequences.
Specifically, we ask the Commission to consider the potential effects on tribal-state compacts, in
particular, those that reference and require compliance with the Class III MICS, as set forth in 25
CFR. Part 542.

For instance, our own tribal-state gaming compact with the State of Oklahoma contains a
requirement to adopt standards no less stringent than those set forth in 25 C.F.R. Part 542. If the
Commission proceeds with its proposed withdrawal, questions may be raised by the State as to
whether and how we can continue complying with this MICS provision. If the State perceives a void
in this area of regulation, it may find it necessary to increase its compliance oversight and
enforcement efforts. Even more troubling, the State may raise the possibility of promulgating and
enforcing its own Class III MICS to replace the withdrawn federal regulation.

It may be the case that the regulation will have to be left in place for those tribes whose
compacts reference and require compliance with 25 C.F.R. Part 542. For this reason, more
consultation and engagement with tribes is needed to ensure that the final outcome is fair, reasonable,
and supportive of tribal interests and concerns.

Il. | AMENDMENTS TO PRIVACY ACT REGULATIONS

The proposed amendments to the Privacy Act regulations set forth in 25 C.F.R. Part 515 are
aimed at updating and streamlining the Commission’s Privacy Act procedures, as well as
incorporating a new exemption for Management Contract Individuals Records System. As a general
matter, we do not have any objections to the proposed technical changes to bring the regulation into
full compliance with statutory requirements. Furthermore, we understand that the proposed
exemption for management contract records is not a new policy to the extent that it codifies the
exemption announced in the Commission’s Notice of a New System of Records. 69 Fed. Reg.
12,182 (March 15, 2004),

Nevertheless, we believe more information and consultation is needed to better understand
the need and purpose of the stated exemptions. As a tribal gaming regulator, we understand the
importance of ensuring the proper collection, maintenance, use, and dissemination of personally
identifiable information about individuals subject to our regulatory jurisdiction. Although there may
be instances in which an exemption to the Act’s disclosure requirements is appropriate, these
exemptions must be narrowly construed and consistent with the purposes for which the Privacy Act
was enacted. We look forward to continued dialogue on this important issue and providing further
comments at a future time.

IV. Proprosep Buy INDIAN ACT POLICY

We support the Commission’s initiative to develop policy and procedures to implement the
Buy Indian Act. Under the Buy Indian Act and pursuant to the general contracting authority in 25
U.S.C. § 2706(b)(6), (b)(7), the Commission has the authority to set aside procurement contracts for
Indian-owned and controlled businesses. We believe this is a long overdue and important policy that
will not only encourage procurement relationships with eligible tribal businesses, but also help

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