The National Environmental Policy Act Procedures Manual, 63765-63787 [E9-28944]

Agencies

• DEPARTMENT OF THE INTERIOR
• National Indian Gaming Commission

[Federal Register Volume 74, Number 232 (Friday, December 4, 2009)]
[Notices]
[Pages 63765-63787]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-28944]


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DEPARTMENT OF THE INTERIOR

National Indian Gaming Commission


The National Environmental Policy Act Procedures Manual

AGENCY: The National Indian Gaming Commission, Interior.

ACTION: Notice.

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SUMMARY: The purpose of this notice is to provide an opportunity for 
public review and comment on the National Indian Gaming Commission 
(NIGC) draft manual containing policy and procedures for implementing 
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. 
Pursuant to CEQ regulations, the NIGC is soliciting comments on its 
proposed procedures from members of the interested public.

DATES: Comments and related material must be post marked no later than 
45 days after publication of this notice.

ADDRESSES: Please submit your comments by only one of the following 
means: (1) By mail to: Brad Mehaffy, National Indian Gaming Commission, 
1441 L Street, NW., Suite 9100, Washington, DC 20005; (2) by hand 
delivery to: National Indian Gaming Commission, 1441 L Street, NW., 
Suite 9100, Washington, DC 20005; (3) by facsimile to: (202) 632-7066; 
(4) by e-mail to: nepa_procedures@nigc.gov; or (5) online at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Bradley Mehaffy, NEPA Compliance 
Officer at the National Indian Gaming Commission: 202-632-7003 or by 
facsimile at 303-632-7066 (not toll-free numbers).

SUPPLEMENTARY INFORMATION: The NIGC encourages interested persons to 
submit written comments. Persons submitting information concerning the 
NEPA Procedures Manual 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 
[frac12] 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.

Background

    This manual will clarify policy and procedures to ensure the 
integration of environmental considerations into major Federal actions 
of the NIGC that trigger NEPA review. At present, the NIGC has 
identified only one type of major Federal action that it performs under 
the Indian Gaming Regulatory Act (IGRA) that triggers NEPA review--
approving contracts for the management of Indian gaming facilities 
pursuant to 25 U.S.C. 2711. This manual clarifies the NEPA-related 
roles and responsibilities and establishes a framework for the 
preparation and consideration of appropriate NEPA documentation, 
thereby ensuring a balanced and systematic consideration of 
environmental impacts in the decision-making process of the NIGC.
    The proposed manual includes processes for preparing Environmental 
Assessments, Findings of No Significant Impact, and Environmental 
Impact Statements. The NIGC proposes to use this manual in conjunction 
with NEPA, the CEQ regulations at 40 CFR 1500-1508, and other pertinent 
environmental regulations, Executive Orders, statutes, and laws 
developed for the consideration of environmental impacts of Federal 
actions.
    This manual identifies 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 several 
environmental professionals' opinions and comparisons with other 
Federal agency actions that are categorically excluded.
    A copy of this Federal Register publication, as well as the 
administrative record for the list of categorical exclusions, is 
available at https://www.nigc.gov/Portals/0/NIGC%20Uploads/EPHS/projectsapproved/MANUAL07.pdf.
    A copy of the Federal Register publication is available at https://www.regulations.gov. The NIGC solicits public review of its draft NEPA 
Procedures Manual and will review and consider those comments before 
the manual is finalized.

[[Page 63766]]

National Environmental Policy Act Procedures Manual Forward

    This manual was prepared and intended for use by the National 
Indian Gaming Commission (NIGC) and those parties who seek approval of 
the NIGC in undertaking actions pursuant to the Indian Gaming 
Regulatory Act (IGRA), 25 U.S.C. 2701-2721. Specifically, NIGC 
personnel, Indian gaming proponents (Tribes), their management or 
development contractors, and those contractors/consultants involved in 
the development of environmental review documents must use this manual 
in order to ensure compliance with the applicable requirements of the 
National Environmental Policy Act (NEPA), 42 U.S.C. 4321-4347. These 
procedures are adopted pursuant to the procedural and substantive 
requirements established by the White House Council on Environmental 
Quality (CEQ) in its NEPA implementing regulations, 40 CFR 1505.1 and 
1507.3.
    As of the publication date of this procedures manual, the NIGC has 
identified only one type of major Federal action it undertakes that 
requires review under NEPA--approving third-party management contracts 
for the operation of gaming activity under IGRA, 25 U.S.C. 2711, and 
the NIGC's implementing regulations, 25 CFR part 533. Depending on the 
nature of the subject contract and other circumstances, approval of 
such management contracts may be categorically excluded from NEPA 
review (See Chapter 3); it may require the preparation of an 
Environmental Assessment (EA) and Finding of No Significant Impact 
(FONSI) (See Chapter 4); or it may require the preparation of an 
Environmental Impact Statement (EIS) and Record of Decision (ROD) (See 
Chapter 5). In any case, the proponents of the management contract will 
be expected to assist the NIGC develop the required NEPA documentation, 
primarily by paying for environmental consultants to gather information 
and prepare the required documentation.
    The NIGC is aware that the preparation of NEPA documents can be 
expensive. By adopting this procedures manual, the NIGC hopes to reduce 
such costs by making clear its procedural and substantive requirements 
so that Indian Tribes and their management partners will know what is 
expected and can plan accordingly.

Acronym List

BIA Bureau of Indian Affairs
CADD Computer Aided Design and Drafting
CATEX Categorically Excluded
CEQ Council on Environmental Quality
CFR Code of Federal Regulations
CZMA Coastal Zone Management Act
EA Environmental Assessment
EIS Environmental Impact Statement
EMS Environmental Management System
EO Executive Order
EPA Environmental Protection Agency
ESA Endangered Species Act
FOIA Freedom of Information Act
FONSI Finding of No Significant Impact
GIS Geographic Information System
IGRA Indian Gaming Regulatory Act
LOS Level of Service
MOU Memorandum of Understanding
NEPA National Environmental Policy Act
NHPA National Historic Preservation Act
NIGC National Indian Gaming Commission
NOA Notice of Availability
NOI Notice of Intent
OGC Office of General Council
POC Point of Contact
ROD Record of Decision
SHPO State Historic Preservation Office(r)
SOW Scope of Work
THPO Tribal Historic Preservation Office(r)

Chapter 1: Introduction

    1.1 Purpose. This manual provides National Indian Gaming Commission 
(NIGC) policy and procedures to ensure agency compliance with the 
requirements set forth in the Council on Environmental Quality (CEQ) 
regulations for implementing the provisions of the National 
Environmental Policy Act of 1969, as amended, (NEPA), 42 U.S.C. 4321-
4347, 40 Code of Federal Regulations (CFR) parts 1500-1508 and other 
related statutes and directives.
    1.2 Distribution. Notice of adoption and availability of this 
manual is distributed to all NIGC Directors and the General Counsel for 
distribution to appropriate NIGC personnel. The manual is available to 
Indian Gaming proponents, environmental consultants, the public, and 
other interested parties in electronic form. The manual will be located 
for viewing and downloading at https://www.nigc.gov by clicking on the 
link to the Environmental, Public Health and Safety page. If the public 
does not have access to the Internet, they may obtain a computer disc 
containing the manual or a paper copy by contacting the NEPA Compliance 
Officer at (202) 632-7003 or in writing at 1441 L Street, NW., Suite 
9100, Washington, DC 20005. The NIGC reserves the right to charge a fee 
equal to the reproduction costs.
    1.3 Cancellation. (SECTION RESERVED)
    1.4 Authority. NEPA and its implementing regulations, promulgated 
by CEQ in accordance with Executive Order (E.O.) 11514, Protection and 
Enhancement of Environmental Quality, March 5, 1970, as amended by E.O. 
11991 (sections 2(g) and 3(h)), May 24, 1977, establish a broad 
national policy to protect and enhance the quality of the human 
environment, and develop programs and measures to meet national 
environmental goals. Section 101 of NEPA sets forth Federal policies 
and goals to encourage productive harmony between people and their 
environment. Section 102(2) provides specific direction to Federal 
agencies, sometimes called ``action-forcing'' provisions (40 CFR 
1500.1(a), 1500.3, and 1507) on how to implement the goals of NEPA. The 
major provisions include the requirement to use a systematic, 
interdisciplinary approach (section 102(2)(A)) and develop implementing 
methods and procedures (section 102(2)(B)). Section 102(2)(C) requires 
detailed analysis for proposed major Federal actions significantly 
affecting the quality of the human environment, providing authority to 
prepare environmental impact statements (EISs).
    1.5 Policy. It is the NIGC's policy to:
    1.5.1 Comply with the procedures and policies of NEPA and other 
related environmental laws, regulations, and orders applicable to NIGC 
actions. The NIGC furthermore shall provide guidance designed to 
enhance and protect the national, Tribal, State and local environmental 
quality that may be impacted by NIGC actions;
    1.5.2 Seek and develop partnerships and cooperative agreements with 
other Federal, Tribal, State and local organizations/departments/
agencies early in the NEPA process;
    1.5.3 Ensure that NEPA compliance and its documentation includes 
public involvement. Public involvement shall be sought during the 
appropriate stages of the NEPA process. Public involvement also 
includes disclosing information in a timely fashion to assist in the 
public's understanding of NIGC actions and impacts associated with 
those actions;
    1.5.4 Interpret and administer, to the fullest extent possible, the 
policies, regulations, and public laws of the United States 
administered by the NIGC, including IGRA, in accordance with sections 
101 and 102 of NEPA;
    1.5.5 Consider the environmental factors and potential impacts of 
Tribal proposals and NIGC actions;
    1.5.6 Consult and coordinate with, and consider policies and 
procedures of other Federal, tribal, State and local organizations/
departments/agencies;
    1.5.7 Employ a systematic and interdisciplinary approach to NEPA 
compliance and documentation prior to taking a major Federal action, 
such as approving a third-party management contract.
    1.6 General Responsibilities. All NIGC officials (including the 
NIGC

[[Page 63767]]

Chairman, NEPA Compliance Officer, and other NIGC staff) responsible 
for making decisions are also responsible for taking the requirements 
of NEPA into account in those decisions.
    1.7 Scope. The NEPA process evaluates, identifies, and addresses 
impacts of the NIGC's actions on the human environment, including but 
not limited to noise, socioeconomic factors, land uses, air quality, 
and water quality. Chapter 2 of this manual presents an overview of the 
NEPA process. Depending upon the context and potential impacts, NEPA 
processes can differ. Chapter 3 of this manual addresses those types of 
NIGC actions that do not normally require preparation of an 
Environmental Assessment (EA) or Environmental Impact Statement (EIS), 
called categorical exclusions, absent extraordinary circumstances. 
Chapters 4 and 5 of this manual outline the processes for preparing EAs 
and EISs. These procedures apply to classes of NIGC actions that have 
or may have a significant impact on the human environment. Appendix A, 
``Environmental Impact Categories,'' presents a list of environmental 
resource categories to be evaluated in all EAs or EISs prepared for or 
submitted to the NIGC. Appendix B contains a draft Memorandum of 
Understanding that outlines the roles and responsibilities of 
cooperating agencies. The draft shall be used as a template. Appendix C 
provides Third Party Contracting guidance.

1.8 Definitions

    1.8.1 The terminology used in the CEQ regulations (See 40 CFR part 
1508) and title 49 of the United States Code is applicable.
    1.8.2 Controversial means a substantial dispute exists as to the 
size, nature, or effect of the proposed action. The effects of an 
action are considered highly controversial when a reasonable 
disagreement exists over the proposed action's/project's risk of 
causing environmental effects. Opposition of this nature from Federal, 
tribal, State, or local agencies/organizations or by a substantial 
number of persons affected by the proposed action should be considered 
in determining whether or not a reasonable disagreement exists.
    1.8.3 Human environment shall be interpreted comprehensively to 
include the natural and physical environment and the relationship of 
people with that environment. This means that economic or social 
effects are not intended by themselves to require preparation of an 
environmental impact statement. When an environmental impact statement 
is prepared and economic or social and natural or physical 
environmental effects are interrelated, then the environmental impact 
statement will discuss all of these effects on the human environment.
    1.8.4 Reasonable alternatives means those alternatives that meet 
the purpose and need statement. In some cases, where there is a 
consensus among all interested parties regarding the proposed action, 
other alternatives are not necessary. (See CEQ Guidance Memo, 
``Emergency Actions and NEPA,'' dated September 8, 2005, and Section 
102(2)(E) of NEPA). The NIGC may consider economics, technical 
feasibility, and agency statutory missions when establishing the range 
of reasonable alternatives studied in an EA or EIS (See 40 CFR 
1505.2(b)).
    1.8.5 Proposed action(s) can take two different forms. The first 
are proposed actions that the NIGC is initiating and will undertake on 
its own. These are actions where the NIGC will be solely responsible 
for analyses and documentation of the environmental impacts. The second 
are actions where a tribe is requesting the NIGC take some action. In 
cases where the tribe is requesting the NIGC take an action, the tribe 
will be involved in the analyses and documentation of the environmental 
impacts.
    1.8.6 Scoping is a process used to determine the extent of analyses 
to be contained within an environmental impact statement or 
environmental assessment (See 40 CFR 1508.25). The process shall 
include gathering information on the range of alternatives to be 
studied, impacts associated with those alternatives, and information 
regarding the methodologies used to identify the impacts, from other 
Federal agencies, State/local/tribal agencies, other interested parties 
and the public. This definition and process does not apply to the scope 
(size, capacity, or scale) of the project being proposed by a Tribe.
    1.9 Applicability. The provisions of this manual and the CEQ 
regulations apply to major Federal actions by the NIGC that may affect 
the quality of the human environment. These actions may be directly 
undertaken by the NIGC or where the NIGC has sufficient control and 
responsibility to condition approvals of a non-Federal entity.
    As of the publication date of this procedures manual, the NIGC has 
identified only one type of major Federal action it undertakes that 
requires review under NEPA--approving third-party management contracts 
for the operation of gaming activity under IGRA, 25 U.S.C. 2711, and 
the NIGC's implementing regulations, 25 CFR part 533. Depending on the 
nature of the subject contract and other circumstances, approval of 
such management contracts may be categorically excluded from NEPA 
review (See chapter 3); it may require the preparation of an 
Environmental Assessment (EA) and Finding of No Significant Impact 
(FONSI) (See chapter 4); or it may require the preparation of an 
Environmental Impact Statement (EIS) and Record of Decision (ROD) (See 
chapter 5). In any case, the proponents of the management contract will 
be expected to assist the NIGC develop the required NEPA documentation, 
primarily by paying for environmental consultants to gather information 
and prepare the required documentation. The procedures in this manual 
shall apply to the fullest extent practicable to ongoing activities and 
environmental documents begun before the effective date, except that 
this manual does not apply to decisions made and draft or final 
environmental documents issued prior to the effective date of this 
manual.

1.10 Section Reserved

Chapter 2: The NEPA Process

    2.1 Introduction. This chapter will provide guidance to the 
responsible NIGC official (NEPA Compliance Officer), approving official 
(NIGC Chairman), and other NIGC decision makers in the NEPA process.
    2.2 The relationship between the NIGC and NEPA. It is the 
responsibility of the NIGC to regulate Indian gaming in accordance with 
the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2701-2721. It is 
important that the NIGC comply with NEPA and other environmental laws/
regulations/orders during its administration of these responsibilities. 
Compliance with NEPA and other environmental laws/regulations/orders 
will ensure that the NIGC makes informed decisions prior to taking an 
action. It also goes to the furtherance of the NIGC's policies outlined 
in chapter 1.
    2.3 Application of NEPA to NIGC decisions/actions. In accordance 
with NEPA, environmental issues shall be identified and considered 
early in the process for reviewing a proposed management contract or 
other applicable action. The NIGC shall use a systematic, 
interdisciplinary approach. As appropriate, NIGC shall also involve 
local communities and coordinate with agencies and governmental 
organizations. Environmental permits and other forms of approval, 
concurrence, or consultation may be required, often from other 
agencies.

[[Page 63768]]

Awareness of any applicable permit application and other review process 
requirements should be included in the planning process to ensure that 
necessary information is collected and provided to the permitting or 
reviewing agencies in a timely manner. This is especially true if 
applicable laws, regulations, or executive orders specify timeframes 
for these processes. Tribes/contractors or consultants should prepare a 
list noting all obvious environmental resources the Tribe's proposed 
action and alternatives would affect, including specially protected 
resources. Tribes/contractors or consultants should complete these 
tasks at the earliest possible time during project planning to ensure 
full consideration of all environmental resources and facilitate NIGC's 
NEPA process.

2.4 Levels of NEPA Review

    2.4.1 There are three (3) levels of NEPA review. The level of NEPA 
review will be dependent on the type and potential impacts of the 
action being taken. The types of actions taken by the NIGC will be:
    2.4.1.1 An action that ``normally requires an environmental impact 
statement [EIS]'' (40 CFR 1501.4(a)(1));
    2.4.1.1.1 An EIS is required when an Environmental Assessment (EA) 
has been done for a proposed action and the impacts of that action will 
exceed the applicable threshold of significance for any resource 
category and those impacts cannot be mitigated to a level below the 
threshold of significance. The threshold of significance for any 
resource category must be clearly identified within the EA. If the NIGC 
anticipates that significant impacts will result from a proposed 
action, it can elect to prepare an EIS without first developing an EA. 
The NIGC may issue its Record of Decision (ROD) 30 days following the 
EPA's publication in the Federal Register of the NOA of the Final EIS. 
The ROD represents the agency's official decision on the proposed 
action. The ROD must include all appropriate mitigation measures, as 
discussed in the Final EIS. (See also Section 5.12 of this manual).
    2.4.1.2 An action that is subject to NEPA but does not qualify for 
a CATEX (See Chapter 3) or warrant the preparation of an EIS requires 
the preparation of an Environmental Assessment (EA).
    2.4.1.2.1 An EA is not required if the NIGC has elected to prepare 
an EIS on the proposed action. An EA is appropriate when the NIGC 
believes that impacts of the proposed action will not result in impacts 
that meet or exceed the threshold of significance for any impacted 
resource category. When an EA is prepared and it is determined that the 
proposed action's impacts will not exceed the threshold of 
significance, the responsible NIGC official will prepare a Finding Of 
No Significant Impact (FONSI) to be issued by the NIGC Chairman. The 
FONSI must include all mitigation measures identified in the EA and 
required to avoid, eliminate, or reduce the impacts of the proposed 
action. The FONSI is the official NIGC determination that the proposed 
action will not result in any significant impacts to the human 
environment. It does not represent the agency's decision to implement 
or approve the proposed action.
    2.4.1.3 An action that ``normally does not require either an 
environmental impact statement or an environmental assessment is 
categorically excluded'' (40 CFR 1501.4(a)(2));
    2.4.1.3.1 A categorical exclusion (CATEX) identifies a group of 
actions that typically will not have a significant individual or 
cumulative impact on the human environment. Unless the proposed action 
involves an extraordinary circumstance (See Section 2.1.3.1.4 of this 
manual), an EIS or EA is not required.
    2.4.1.3.2 An action that is typically categorically excluded may or 
may not have to be documented. The NIGC has determined which types of 
CATEX actions will be documented and which will not (See Chapter 3).

2.5 Activities Not Subject to NEPA

    2.5.1 There are some NIGC activities that for NEPA purposes do not 
meet the traditional meaning of ``Federal actions'' and therefore are 
not subject to NEPA review:
    2.5.2 Advisory Actions: When the NIGC takes an action that is 
advisory in nature, the requirement to comply with NEPA does not apply. 
As a result, a CATEX, EA or EIS is not required. However, if the NIGC 
knows or anticipates that a subsequent Federal action that is subject 
to NEPA might occur, it must point that fact out in the advisory 
action. The following are typical actions taken by the NIGC that are 
advisory in nature:
    2.5.2.1 NIGC's Office of General Counsel issuance of Indian Lands 
opinions;
    2.5.2.2 NIGC's Office of General Counsel issuance of game 
classification opinions;
    2.5.2.3 NIGC's Office of General Counsel issuance of advisory 
opinions regarding whether a contract is a management contract 
requiring the NIGC Chairman's approval or violates IGRA's sole 
proprietary interest requirement.
    2.5.3 Enforcement Actions: The following NIGC actions are 
administrative enforcement actions that are not considered to be 
``Federal actions'' and are not subject to review under NEPA (40 CFR 
1508.18(a)). As a result, a CATEX, EA or EIS is not required.
    2.5.3.1 Issuance of orders of temporary closure of gaming 
activities as provided in Sec.  2713(b) of IGRA;
    2.5.3.2 Levying and collecting civil fines as provided in Sec.  
2713(a) of IGRA;
    2.5.3.3 Making permanent a temporary order of the NIGC Chairman 
closing a gaming activity as provided in Sec.  2713(b)(2) of IGRA;
    2.5.3.4 Issuance of subpoenas pursuant to an enforcement action as 
authorized in Sec.  2715 of IGRA;
    2.5.3.5 Holding such hearings, sit and act at such times and 
places, take such testimony, receive such evidence, and render such 
decisions as the Commission deems appropriate, when done pursuant to an 
enforcement action, as authorized in Sec.  2706(b)(8) of IGRA;
    2.5.3.6 Administering oaths or affirmations to witnesses appearing 
before the Commission, when done pursuant to an enforcement action, as 
authorized in Sec.  2706(b)(9) of IGRA;
    2.5.3.7 Issuance of warning letters, notices of violation, civil 
fine assessments, closure orders, or any other action consistent with 
the Commission's authority to enforce IGRA, the NIGCs regulations, and 
approved Tribal gaming ordinances.
    2.5.4 Emergency Actions: In the event of an emergency situation, 
the NIGC may be required to take an action to prevent or reduce the 
risk to the environment, public health, or safety that may impact the 
human environment without evaluating those impacts under NEPA. Upon 
learning of the emergency situation, the NIGC NEPA Compliance Officer 
will immediately inform CEQ of the emergency situation when the 
proposed NIGC action is expected to result in significant impacts on 
the human environment. In some cases, the emergency action may be 
covered by an existing NEPA analysis or an exemption. In other cases, 
it may not be covered. In these cases, the NIGC NEPA Compliance Officer 
(in consultation with CEQ) will obtain guidance on NEPA compliance. The 
NIGC NEPA Compliance Officer will provide continued follow-up 
consultation with CEQ throughout the duration of the emergency 
situation. The provisions of this section do not apply to actions

[[Page 63769]]

taken after the emergency situation has been resolved or those related 
to recovery operations.
    In cases where the NIGC proposed action is not expected to result 
in significant impacts on the human environment, the NIGC NEPA 
Compliance Officer shall ensure the appropriate NEPA documentation 
(CATEX or EA) is prepared following the actions required to control the 
emergency and before any follow-up actions are taken.
    2.5.5 Statutory Conflict: In some cases, the NIGC's statutory 
requirements are inconsistent with NEPA. The following NIGC action(s) 
have been determined to fit into this category:
    2.5.5.1 Approval of Tribal gaming ordinances or resolutions as 
provided in Sec.  2710 of the IGRA, which must be completed within 
ninety (90) days of submission to the NIGC.

2.6 Early Application of NEPA

    2.6.1 Before a Tribe submits a proposed action to the NIGC, it 
should consult with the NIGC's NEPA Compliance Officer at 1441 L 
Street, NW., Washington, DC 20005 or (202) 632-7003. The Tribe should 
notify the NEPA Compliance Officer as early in the Tribal planning 
process as possible. The NEPA Compliance Officer will assist the Tribe 
by identifying the studies and information required for the NIGC action 
and initiating consultation with Federal, State, and local agencies and 
other Tribal governments, if necessary. The consultation should 
informally present the proposed action as the Tribe has planned it. The 
NEPA Compliance Officer will then assist the Tribe to identify the 
action's potential environmental impacts. This will help ensure that 
there will be an evaluation of a suitable range of alternatives. It 
will also allow the NIGC to ensure that the appropriate level NEPA 
review has been selected.
    2.6.2 Early consultation with the NIGC's NEPA Compliance Officer 
and the Cooperating Agency environmental personnel will help determine 
which agency will be ``Lead Federal Agency.''
    2.6.3 Consultation with other Federal, Tribal, State and local 
agencies will ensure the analysis of environmental impacts for 
individual resource categories is sufficient for approval, concurrence, 
or permitting by another agency.
    2.6.4 Early and frequent involvement of the public will ensure the 
public is provided with the most accurate information regarding the 
proposed action and meets the NEPA policy to ``Encourage and facilitate 
public involvement in decisions which affect the quality of the human 
environment'' (40 CFR 1500.2(d)).

2.7 Responsibilities

2.7.1 NIGC Responsibilities

    2.7.1.1 NIGC Chairman (Chairman): The Chairman shall approve and 
sign all NEPA decision documents (FONSI, ROD).
    2.7.1.2 NIGC Director of Contracts (Director): The Director will 
supervise the day-to-day activities of the NEPA Compliance Officer. The 
Director will ensure that all matters raised by the NEPA Compliance 
Officer will get the attention due from the appropriate NIGC personnel.
    2.7.1.3 NIGC NEPA Compliance Officer (Officer): The Officer shall 
be responsible for providing the NIGC with the most up-to-date 
environmental information that could affect NIGC actions. The Officer 
shall develop and propose NIGC policy as it relates to NEPA. The 
Officer will be responsible for the technical review of all CATEX 
documentation, EAs and EISs. The Officer shall consult and work with 
Tribes requesting an NIGC action to prepare and develop the appropriate 
NEPA documentation (a CATEX or an EA). The Officer shall independently 
review and evaluate the CATEX or Draft/Final EA to ensure the NIGC's 
decision is made objectively and no conflict of interest exists. The 
Officer will then make recommendations regarding the decision to 
prepare an EIS. When an EIS is required, the Officer shall review the 
qualifications and select the third-party contractor. The Officer will 
be the NIGC's Project Manager and direct all work being done for 
inclusion in the EIS. The Officer will prepare or have prepared NEPA 
decision documents (FONSIs or RODs) for proposed actions. The Officer 
may also be referred to in this manual as the ``responsible NIGC 
official.''
    2.7.1.4 NIGC Office of General Counsel (OGC): The OGC shall be 
responsible for reviewing all EISs and providing a determination 
regarding the EISs' legal sufficiency. The OGC shall be consulted on 
legal matters that arise during the preparation of any NEPA compliance 
document.
    2.7.2 Lead/Cooperating Agencies responsibilities: The roles of lead 
and cooperating agencies can be found in CEQ regulations Sec.  1501.5 
through Sec.  1501.6. In addition to the rights and responsibilities 
found in the CEQ regulations, a Memorandum of Understanding (MOU) 
should be executed to document each agency's rights and 
responsibilities that are specific to a particular proposed action. 
When other Federal, Tribal, State and local agencies/organizations 
request cooperating agency status, the NIGC's decision regarding their 
status should be documented by entering into a Memorandum of 
Understanding (MOU) (See Appendix B).
    2.7.3 Tribal responsibilities: The Tribe, after consultation with 
the NIGC NEPA Compliance Officer, shall be responsible for assisting in 
the preparation of the CATEX or EA documentation for its proposed 
action. The Tribe is also responsible for correcting deficiencies in 
the documentation to the satisfaction of the NIGC. During the 
preparation of an EIS, the Tribe's role will be limited to providing 
planning information and other environmental information, as 
appropriate. The Tribe or its proposed management contractor also will 
be responsible for funding the preparation of the appropriate NEPA 
documentation (See Section 2.7.6).
    2.7.4 Contractors/Consultants (Consultants) responsibilities: 
Consultants that prepare NEPA review documents for the NIGC or for a 
non-NIGC party seeking NIGC approval must comply with this manual. 
Consultants preparing EISs are required to sign a disclosure statement 
in accordance with 40 CFR 1506.5(c). Consultants shall keep and 
maintain an administrative record for all EA/EIS(s) prepared for 
proposed NIGC action(s).
    2.7.5 Public involvement: NEPA is a process that requires public 
involvement. It not only requires an agency to consider environmental 
information when it makes a decision, but also requires that the agency 
consider the public's views concerning that environmental information. 
At appropriate times in the NEPA process, the NIGC and Tribe shall take 
necessary steps to ensure the public is made aware of the environmental 
information concerning a proposed action and will be given an 
opportunity to provide their views to the NIGC. In addition, the NIGC 
shall ensure the public is provided an opportunity to participate 
before the NIGC makes substantial changes to this manual.
    2.7.5.1 The NIGC or Tribe should involve the public early in the 
NEPA process. In most cases, the public's first involvement will be 
during scoping. The extent to which the public is involved in scoping 
will be dependent on the complexity and context of the proposed action.
    2.7.5.2 The public must also be involved during the draft and final 
EA/EIS stages. The public must be given an opportunity to review and 
provide comments on the NEPA document.

[[Page 63770]]

Comments received on a draft EIS and the NIGC's responses will be 
contained in an appendix to the final document. Final EAs should 
document that public comments on the draft were considered before the 
final EA was published.
    2.7.5.3 When possible, the public process used to satisfy NEPA 
should also be used to meet the other statutory requirements that 
require public involvement (e.g., Section 106 of the National Historic 
Preservation Act, Executive Order 12898, etc.).
    2.7.6 Funding responsibilities: When a Tribe requests NIGC approval 
of a management contract, the Tribe or its proposed management 
contractor will be responsible for funding the preparation of the 
appropriate NEPA documentation, as determined by the NIGC. If the NIGC 
is proposing an action subject to NEPA compliance, the NIGC will be 
responsible for funding the preparation of the appropriate NEPA 
documentation. When an EIS is required, the NIGC must maintain the 
authority to direct the work of the environmental contractor/consultant 
hired to prepare the EIS, even if a Tribe or management company is 
paying for the environmental contractor's services (See Sections 
2.7.1.3 and 5.2).

2.8 Public Hearings, Workshops and Meetings

    2.8.1 The environmental information presented to the public can 
occur in one or more types of forums (e.g. a public hearing, workshop 
or meeting) and will greatly contribute to the success of the NEPA 
process. In determining which is the appropriate forum to disclose 
environmental information about the proposed project, the complexity 
and potential magnitude of environmental impacts must be considered. 
Also consider the degree of interest that is exhibited by other 
Federal, Tribal, State and local authorities and the public.
    2.8.1.1 When the NIGC plans to hold a public hearing, workshop or 
meeting for the purposes of obtaining public comments on a draft EA or 
EIS, the draft document should be available to the public for at least 
15 days before the hearing/workshop/meeting occurs. A public 
announcement regarding the hearing/workshop/meeting on a draft NEPA 
document should appear in local newspapers that have general 
circulation. For a draft EIS, a Notice of Availability (NOA) will also 
be published in the Federal Register by EPA. The content of notices 
announcing a hearing, workshop or meeting will vary depending on the 
type of NEPA document being prepared. See sections 4 and 5 of this 
manual for content of notices announcing a draft, final EA and/or FONSI 
or a draft, final EIS and/or ROD, respectively.

2.9 Plain Language and Geographic Information

    2.9.1 Information contained in a NEPA document prepared in 
accordance with this manual must be disclosed in a manner in which the 
public will be able to participate in the NEPA process. The written 
language within a NEPA document shall comply with 40 CFR 1502.9. In 
addition, preparation of NEPA documents by or for the NIGC must comply 
with Executive Order 12906, Coordinating Geographic Data Acquisition 
and Access.

2.10 Reducing Paperwork

    2.10.1 CEQ regulation 40 CFR 1500.4 encourages the reduction of 
paperwork. Without compromising the administrative record for a 
proposed action, the NIGC should, to the greatest extent possible, 
combine NEPA requirements with other applicable environmental laws and 
regulations. The NIGC will also have joint documents prepared whenever 
possible. In addition, information may be incorporated by reference 
when appropriate.

2.11 Reducing Delay

    2.11.1 CEQ regulations require agencies to reduce delay (See 40 CFR 
1500.5). The responsible NIGC official shall reduce delay by doing the 
following:
    2.11.1.1 Integrating other environmental requirements (e.g. 
permitting and approvals) early in the NEPA process. In some cases, 
integration may require NEPA and other environmental requirements to be 
addressed concurrently.
    2.11.1.2 Develop and maintain relationships with other Federal, 
Tribal, State and local agencies/organizations. As a part of 
maintaining a relationship, the responsible NIGC official shall ensure 
prompt resolution of disputes under 40 CFR 1501.5.
    2.11.1.3 Ensure the Tribes and consultants develop reasonable and 
achievable goals and milestones as part of the NEPA process.
    2.11.1.4 Use the NEPA documentation to fulfill other environmental 
documentation requirements.

2.12 Intergovernmental and Interagency Coordination and Consultation

    The NIGC official or the Tribe, when appropriate, will consult with 
other Federal, Tribal, State and local agencies/organizations early and 
often in the NEPA process. During the NEPA process, consultation will 
include scoping, commenting on the environmental impacts of the 
proposed action, reviewing draft and final NEPA documents, providing 
input on the preparation of NIGC findings, and developing appropriate 
mitigation strategies. In addition to these agencies' input during the 
NEPA process, these agencies may also be consulted regarding other 
environmental requirements (e.g. permitting and approvals).
    2.12.1 Tribal Consultation shall be conducted in accordance with 
the NIGC's Government-to-Government Tribal Consultation Policy, as may 
be amended.

Chapter 3: Categorical Exclusions (CATEX) and Extraordinary 
Circumstances

    3.1 Introduction. This chapter will explain the types of NIGC 
actions that must comply with NEPA but are typically categorically 
excluded. This chapter will also discuss the circumstances in which 
those actions will not be categorically excluded and will require the 
preparation of an EA or EIS. The responsible NIGC official shall be 
consulted if there is a question regarding the applicability of a CATEX 
or possible extraordinary circumstances to a proposed action/project.

3.2 Categorical Exclusion (CATEX) Screening

    The use of a CATEX can only be applied to an action if all of the 
following criteria are met:
    3.2.1 The responsible NIGC official must determine that the NIGC 
action is encompassed by one of the listed CATEXs in Section 3.3 of 
this manual.
    3.2.2 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).
    3.2.3 The responsible NIGC official must determine if the NIGC 
action will involve any of the extraordinary circumstances as defined 
in Section 3.4 of this manual.

[[Page 63771]]

3.3 Categorical Exclusions

    In accordance with Chapter 2, Section 2.4.1.3, 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.
    3.3.1 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 (recordkeeping; 
inspecting, examining, and auditing papers, books, and records; 
processing correspondence; developing and approving budgets; setting 
fee payments; responding to requests for information).
    E. Routine activities and operations conducted in an existing non-
historic 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.
    3.3.2 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. (NOTE: Activities associated with 
administrative enforcement actions are not subject to NEPA review, See 
Section 2.5.3 of this manual.)
    3.3.3 Category 3--Management Contract and Agreement Review 
Activities:
    A. Approval of management contracts and collateral agreements (e.g. 
development, construction, or financial agreements) or management 
contract amendments that meet the following criteria: (1) Involve no 
physical construction, other than interior renovations and minor 
exterior work on or in structures that are not listed or eligible for 
listing on the National Register of Historic Places; and (2) are not 
associated with plans to considerably increase patronage.
    B. Conducting background investigations in connection with a 
management contract amendment that only changes the persons or entities 
with a financial interest in or management responsibilities for the 
contract.

3.4 Extraordinary Circumstances

    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 in Section 3.2.1 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:
    3.4.1 There is a reasonable likelihood the proposed action/project 
will have a significant impact on public health or safety.
    3.4.2 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.
    3.4.3 There is a reasonable likelihood the proposed action/project 
would violate one or more Federal, Tribal, State, or local 
environmental laws/regulations/orders.
    3.4.4 There is a reasonable likelihood 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.
    3.4.5 There is a reasonable likelihood the proposed action/project 
will have an 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 Coastal 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.
    3.4.6 There is a reasonable likelihood the proposed action/project 
will cause a division or disruption of an established community, 
planned development, or is inconsistent with existing community goals/
plans.
    3.4.7 There is a reasonable likelihood the proposed action/project 
will cause an increase in surface transportation congestion that will 
decrease the level of service below acceptable levels, as defined by 
the appropriate Federal, Tribal, State, or local agency with 
jurisdiction for that portion of the transportation system.
    3.4.8 There is a reasonable likelihood the proposed action/project 
will impact air quality or violate Federal, Tribal, State, or local air 
quality standards under the Clean Air Act Amendments of 1990.
    3.4.9 There is a reasonable likelihood the proposed action/project 
will impact water quality, sole source aquifers, public water supply 
systems or Tribal, State, or local water quality standards established 
under the Clean Water Act and the Safe Drinking Water Act.
    3.4.10 There is a reasonable likelihood the proposed action/project 
will have effects that are likely to be highly controversial on 
environmental grounds.

3.5 Categorical Exclusion Documentation

    3.5.1 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)). This also allows NIGC 
environmental resources to focus on proposed actions that require an EA 
or EIS.
    3.5.2 In some cases, the NIGC will document its decision to treat a 
particular action as categorically

[[Page 63772]]

excluded from further NEPA review. In those cases, a Record of 
Environmental Consideration (REC) will include:
     A complete description of the proposed action/project.
     The CATEX relied upon, including a brief discussion of why 
there are no extraordinary circumstances.
     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 SHPO/THPO may be required.
     The following statement: I certify that, to the best of my 
knowledge, the information provided is the best available information 
and is accurate.
     A signature from an environmental professional with a 
signature block that includes the professional's credentials.

Chapter 4: Environmental Assessments (EA) and Findings of No 
Significant Impacts (FONSI)

    This chapter will provide information regarding the preparation of 
an EA and FONSI. The EA must provide all pertinent information to aid 
the NIGC in its decision-making process. If the information contained 
in the EA demonstrates that the proposed action will not have 
significant impact on the human environment, the NIGC can then issue 
such a finding of no significant impact, otherwise known as a FONSI.
    4.1 When to prepare an EA. An EA will be prepared when a proposed 
action meets the following conditions:
    4.1.1 The proposed action is not categorically excluded in 
accordance with Chapter 3;
    4.1.2 The proposed action is normally categorically excluded, but 
extraordinary circumstances exist in accordance with Chapter 3; or
    4.1.3 The proposed action is not one that requires the preparation 
of an EIS in accordance with Chapter 5;
    4.2 Proposed action not causing a significant environmental impact. 
When the NIGC, upon reviewing the EA, has determined that the proposed 
action will not cause a significant environmental impact, the NIGC NEPA 
Compliance Officer will prepare or have prepared a Finding of No 
Significant Impact (FONSI) for review and signature by the NIGC 
Chairman.
    4.3 Proposed action causing a significant environmental impact. 
When the NIGC, upon reviewing the EA, has determined that the proposed 
action will cause a significant environmental impact, and mitigation 
measures will not reduce the impact below the appropriate threshold of 
significance, the NIGC NEPA Compliance Officer will prepare and issue a 
Notice of Intent (NOI) to prepare an EIS (See Chapter 5). If it is 
anticipated that the proposed project will result in a significant 
environmental impact that cannot be mitigated, the NIGC can decide to 
prepare an EIS without first developing an EA.

4.4 Content of an EA

    4.4.1 Any EA prepared for the NIGC must contain a brief discussion 
of the proposed action, the need for the proposed action, a range of 
reasonable alternatives (as required by Section 102(2)(E) of NEPA), the 
environmental impacts of the proposed action and alternatives, a list 
of alternatives eliminated from further analysis with an explanation of 
why they were eliminated, mitigation measures needed to reduce 
environmental impacts to below the level of significance, and a list of 
the agencies and persons consulted.
    4.4.2 The level of detail and depth of impact analysis should 
normally be limited to the minimum needed to determine whether the 
proposed action or alternatives retained for further analysis would 
result in any significant environmental impacts.
    4.4.3 The EA will contain objective analyses to support its 
environmental impact conclusions. The EA must not draw any conclusions 
regarding the decision to prepare an EIS. The decision whether to 
prepare an EIS will be made by the responsible NIGC official and 
documented in either an NOI or a FONSI.
    4.4.4 Previous NEPA analyses should be used in a tiered analysis or 
transferred and used in a subsequent analysis to enhance the content of 
an EA whenever possible. The use of previous NEPA analyses can be 
incorporated by reference or may be adopted, as per Section 4.7 of this 
manual.
    4.5 Actions normally requiring an Environmental Assessment (EA). 
The following are examples of actions that normally will require the 
preparation of an EA. When a proposed project involves multiple actions 
by the NIGC, Cooperating Agency and/or other Federal agencies, the 
overall significance of these actions, when viewed together, governs 
whether an EA or an EIS is required. Consultation with the other 
agencies or organizations may be required to ensure all Federal actions 
are adequately covered by the NEPA document prepared.
    4.5.1 Approval of a new management contract, or a modification of 
an existing management contract that involves, either directly or 
through a collateral agreement, development of a new Indian gaming 
facility, and after a preliminary review, the potential environmental 
impacts are not expected to exceed, or can be mitigated to a level 
below, the appropriate level(s) of significance.
    4.5.2 Approval of a new management contract, or a modification of 
an existing management contract, that involves, either directly or 
through a collateral agreement, a physical expansion of an existing 
facility, and after a preliminary review, the potential environmental 
impacts are not expected to exceed, or can be mitigated to a level 
below, the appropriate level(s) of significance.
    4.5.3 Approval of a new management contract, or a modification of 
an existing management contract, that does not involve a physical 
expansion of the facility, but where the management contractor plans to 
considerably increase patronage, and after a preliminary review, the 
potential environmental impacts of the increased patronage are not 
expected to exceed, or can be mitigated to a level below, the 
appropriate level(s) of significance.
    4.6 Time limits for EAs. The information contained in an EA is only 
valid for a finite period of time. This section will outline when an 
EA's information must be updated.
    4.6.1 A draft EA is normally valid for a period of three (3) years 
unless there are substantial changes in the proposed action or there 
are significant new circumstances or information relevant to 
environmental concerns regarding the proposed action or its impacts. In 
cases where there is significant new circumstances or information, a 
written re-evaluation must be undertaken. (See Section 4.15). If the 
NIGC has not issued a FONSI within three (3) years of receipt of the 
Final EA, a written re-evaluation (See Section 4.15) must be prepared 
and submitted to the responsible NIGC official for consideration and 
determination if the alternatives, impacts, existing environment, and 
mitigation measures in the EA remain applicable, accurate, and valid. 
If there has been a significant change in these factors from that which 
was originally considered in the EA, a supplement to the EA (See 
Section 4.16) or a new EA

[[Page 63773]]

must be prepared in accordance with the procedures of this chapter.
    4.6.2 For EAs where the NIGC has approved and issued a FONSI, the 
EA's information must be reviewed and updated when the following 
conditions have been established:
    4.6.2.1 If major steps toward implementation of the project (such 
as the start of construction, substantial acquisition, or relocation 
activities) have not commenced within three (3) years from the date of 
issuance of the FONSI, a written re-evaluation (See Section 4.15) of 
the continued adequacy, accuracy, and validity of the EA will be 
prepared and submitted to the responsible NIGC official. If there have 
been significant changes in the project, the affected environment, 
anticipated environmental impacts, or proposed mitigation measures, as 
appropriate, a new or supplemental EA (See Section 4.16) will be 
required.
    4.6.2.2 If the proposed project is to be implemented in stages or 
requires successive Federal approvals, a written re-evaluation (See 
Section 4.15) of the adequacy, accuracy, and validity of the EA will be 
made at major approval points that occur more than three (3) years 
after issuance of the FONSI, and a new or supplemental EA may be 
required.
    4.7 Adoption. In some cases, the NIGC may adopt, in whole or in 
part, a draft or final EA or the EA portion of an EA/FONSI prepared for 
another Federal, Tribal, State or local agency/organization if it meets 
the requirements of this chapter. As part of the adoption process:
    4.7.1 Prior to adoption of another agency/organization's EA, the 
NIGC must complete an independent evaluation of the information 
contained in the EA, take full responsibility for scope and content 
that addresses NIGC actions, and issue its own FONSI. If the EA is 
found to comply with this chapter and relevant provisions of CEQ 
regulations, the responsible NIGC official will recommend adoption and 
signature to the NIGC Chairman.
    4.7.2 When appropriate and efficient, the responsible NIGC official 
may augment such an EA when it is essentially, but not entirely, in 
compliance with this chapter and/or relevant provisions of CEQ 
regulations, in order to make it compliant.
    4.7.3 Adoption or augmentation of an EA shall receive the same 
public participation that the EA would have received if it had 
originated with the NIGC.
    4.7.4 If the NIGC decides to adopt, in whole or in part, a draft or 
final EA or the EA portion of an EA/FONSI prepared for another Federal, 
Tribal, State or local agency/organization, the time requirements 
established in Section 4.6 shall apply.
    4.8 Impact Categories. Appendix A of this manual identifies 
resource categories that the NIGC examines for its actions under NEPA. 
It should be noted that the list of resource categories in Appendix A 
is not exhaustive. In some circumstances, additional resource 
categories may need to be added. It is recommended that prior to 
conducting analysis under any of these categories, the responsible NIGC 
official be consulted regarding methodologies, thresholds of 
significance, mitigation measures, and permitting.
    4.9 Environmental Assessment (EA) Process. This section shall apply 
when the responsible NIGC official has determined that the proposed 
action cannot be categorically excluded and the anticipated 
environmental impacts do not warrant preparation of an EIS.
    4.9.1 The EA process begins with the responsible NIGC official or 
Tribe requesting an NIGC action, gathering background data, and 
coordinating/consulting with other agencies. This information will be 
used to formulate the proposed action and reasonable alternatives to 
achieve the project's purpose and need.
    4.9.2 If a Tribe is proposing an action, the Tribe will draft a 
purpose and need statement for the proposed project and the responsible 
NIGC official will determine its adequacy. If the NIGC is proposing an 
action, the responsible NIGC official will develop a purpose and need 
statement for the proposed project.
    4.9.3 While not required by CEQ regulations, the responsible NIGC 
official and Tribe proposing the action may elect to initiate scoping. 
If it is determined to conduct scoping, the public will be notified of 
how they can participate in the scoping process.
    4.9.4 The responsible NIGC official or Tribe proposing the action 
will have the EA document prepared with a level of analysis sufficient 
to:
    4.9.4.1 Understand the purpose and need for the proposed action, 
identify a range of reasonable alternatives (including the no-action 
alternative), and assess potential environmental impacts.
    4.9.4.2 Determine if potential environmental impacts are 
significant enough to require the preparation of an EIS or if a FONSI 
can be issued.
    4.9.4.3 Identify any permits, licenses, other approvals, or reviews 
that apply to the proposed action.
    4.9.4.4 Identify agencies, including cooperating agencies, 
consulted or to be consulted.
    4.9.4.5 Identify all public involvement activities (e.g. scoping or 
public workshops).

     Figure 4-1--Environmental Assessment Process for an NIGC Action
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Step 1.......................   The responsible NIGC official or
                                Tribe proposing the action formulates
                                the proposed action and a range of
                                reasonable alternatives, in accordance
                                with Section 102(2)(E) of NEPA, to
                                achieve the project's purpose and need.
Step 2.......................   Responsible NIGC official or
                                Tribe proposing the action collects
                                background data.
Step 3.......................   Responsible NIGC official
                                determines the need for an EA.
Step 4.......................   Initiate scoping, if
                                appropriate, and determine issues and
                                alternatives to be addressed.
Step 5.......................   Prepare preliminary draft EA.
Step 6.......................   Responsible NIGC official and
                                other cooperating agencies review
                                preliminary draft EA.
Step 7.......................   Prepare a revised draft EA in
                                accordance with appropriate comments
                                from the responsible NIGC official and
                                other cooperating agencies.
Step 8.......................   Circulate the revised draft EA
                                to the public and other Federal, Tribal,
                                State and local agencies/organizations
                                for comment.
Step 9.......................   Prepare final EA based on
                                comments received.
Step 10......................   Responsible NIGC official
                                determines significance of impacts.
Step 10a.....................   If impacts are NOT significant,
                                responsible NIGC official prepares or
                                has prepared a FONSI for the NIGC
                                Chairman's review and decision.
Step 10b.....................   If impacts ARE significant,
                                responsible NIGC official proceeds with
                                an EIS (See Chapter 5). Do not go to
                                Step 11.
Step 11......................   Publish the final EA and FONSI.
Step 12......................   NIGC proceeds with action, and
                                if applicable, mitigation and
                                monitoring.
------------------------------------------------------------------------


[[Page 63774]]

    4.9.5 The EA should present detailed analysis, commensurate with 
the level of impact of the proposed action and alternatives, to 
determine whether any impacts will be significant. If the proposed 
action and its alternatives will not cause significant impacts within 
the applicable resource categories (See Appendix A), a brief statement 
describing the factual basis for the conclusion that the action is not 
likely to cause significant environmental impacts is sufficient. If the 
NIGC or Tribe has experience with an environmental management system 
(EMS) that includes monitoring of the implementation of actions similar 
to the proposed action and alternatives, the EMS may provide a factual 
basis for an assessment of the potential impacts.
    4.9.6 To ensure that the EA is concise and clear about the basis 
for its conclusions, the NIGC may incorporate by reference other 
documents and analyses. Referenced material must be reasonably 
available to the public, either in existing NEPA documents or in 
general background information, documents or studies prepared for other 
purposes.
    4.9.7 Internal review of a preliminary draft EA is conducted by the 
NIGC NEPA Compliance Officer, any cooperating agency's NEPA points of 
contact, and the Tribe proposing the action. The NEPA Compliance 
Officer is responsible for reviewing the EA and ensuring technical 
requirements have been meet. Cooperating agency NEPA points of contact 
are responsible for ensuring the EA meets their agency's NEPA 
requirements. The Tribe shall review the EA to ensure it fully 
encompasses the project that it has proposed and that the Tribe is 
prepar