[Federal Register Volume 74, Number 232 (Friday, December 4, 2009)]
[Notices]
[Pages 63765-63787]
From the Federal Register Online via the Government Publishing 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: [email protected]; or (5) online at http://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 http://www.nigc.gov/Portals/0/NIGC%20Uploads/EPHS/projectsapproved/MANUAL07.pdf.
    A copy of the Federal Register publication is available at http://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 http://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 
prepared to undertake all proposed mitigation measures. Upon completion 
of the internal review, the NIGC NEPA Compliance Officer will 
consolidate comments and forward them to the Tribe or the consultant 
with instructions to revise the EA.
    4.9.8 Following the internal review, preparation of the EA should 
be coordinated with other agencies when the action involves resources 
protected by special purpose laws or administrative directives. Those 
agencies that have special expertise should also be consulted, as 
necessary. Examples of special purpose laws or directives include, but 
are not limited to, actions involving: Section 404 of the Clean Water 
Act; Section 106 of the National Historic Preservation Act; Section 7 
of the Endangered Species Act; and Section 307 of the Coastal Zone 
Management Act. Examples of agencies with special expertise include, 
but are not limited to, the Federal Highway Administration, State 
transportation authorities, and local planning agencies with expertise 
in developing and building roads.
    4.9.9 The public, other Federal, Tribal, and State agencies, and 
other government entities shall be given an opportunity to review and 
comment on the draft EA. The review and comment period for the draft EA 
shall not be less than 30 days. During the comment period, it is 
recommended that a public meeting/workshop be held, no sooner than 
fifteen (15) days following the draft EA being circulated, to further 
explain the methodologies used in the analysis and conclusions reached 
in the document. Notice of the meeting/workshop must be published in a 
local newspaper with general circulation. At a minimum, the notice must 
contain the following information: (1) Date, time, place, and time 
period during which written comments will be accepted; (2) Description 
of the proposed action/project; (3) Location(s) where the document can 
be reviewed; (4) Contact information of the responsible NIGC official 
(NEPA Compliance Officer). Upon receipt of comments, the responsible 
NIGC official will determine whether the analyses used to evaluate the 
impacts on each environmental resource category in the EA are 
sufficient, or if additional environmental analysis is needed, and will 
have the final EA prepared accordingly.
    4.9.10 The final EA and FONSI will then be made available to the 
public, and Federal, Tribal, State and local agencies/organizations. 
This availability period shall not be less than 30 days. Notice of the 
final EA and FONSI's availability shall at a minimum be published via 
local media (e.g. local newspapers), but may in some cases be published 
in the Federal Register. The decision to publish the notice in the 
Federal Register is at the discretion of the NIGC.

              Figure 4-2--Environmental Assessment Content
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Purpose......................  Assist agency planning and decision-
                                making by summarizing environmental
                                impacts to determine need for:
                                An EIS.
                                Mitigation Measures.
Scope........................  Addresses the proposed action's and
                                reasonable alternatives' impacts on the
                                affected environmental resources.
Content......................  Describes and identifies:
                                Purpose and need for the
                                proposed action/project.
                                Proposed action/project.
                                Range of reasonable alternatives
                                considered (including a no-action
                                alternative), in accordance with Section
                                102(2)(E) of NEPA.
                                Affected environment (existing
                                conditions).
                                Environmental impacts of the
                                proposed action and alternatives.
                                Mitigation measures (if
                                necessary).
                                Federal, Tribal, State and local
                                agency/organizations consulted.
Public Participation.........  Provide opportunities for public
                                participation to the extent practicable.
------------------------------------------------------------------------

    4.10 Preferred Environmental Assessment Format. This section will 
provide information regarding the NIGC's preferred EA format. While CEQ 
does not specify what format should be used for an EA, use of the 
following format will aid the NIGC in its review of the EA and ensure 
integrated compliance with other environmental laws, regulations, and 
applicable Executive Orders with NEPA review. All preliminary, draft, 
and final EAs shall be submitted to the NIGC in both hardcopy and 
digital (e.g., compact disc) form.
    4.10.1 Cover Page: The cover should be clearly label 
``Environmental Assessment.'' It should also identify, where 
applicable, the subject Tribe, the name of the subject gaming facility, 
the location of the proposed project, all cooperating agencies, and the 
consultant, if one is preparing the EA. When an EA is prepared by a 
consultant, the cover page should also include ``This Environmental 
Assessment becomes a Federal document when evaluated and signed/dated 
by the responsible NIGC official.''

[[Page 63775]]

    4.10.2 Proposed Action/Project: The beginning of the document 
should briefly describe the proposed Tribal project (e.g., construction 
and management/operation of a gaming facility) and the proposed Federal 
action (e.g., approval of a management contract between ABC and XYZ). 
It should contain enough information so as to be understandable to 
individuals who are not familiar with the proposed action/project.
    4.10.3 Purpose and Need: This section should clearly identify the 
problem facing the Tribe proposing the action (that is, what is the 
need for the proposed action/project), the purpose of the action/
project (that is, how will the proposed action/project solve the 
problem of Tribe). A timeframe for implementation of the proposed 
action/project should also be included, if known. The purpose and need 
for the proposed action should be justified and defined in terms that 
are understandable to individuals who are not familiar with needs of 
Native American Tribes. Any references to supporting data, studies, or 
other analyses can be incorporated by reference, so long as they meet 
the requirements established in Section 4.9.6.
    4.10.4 Alternatives: The alternatives evaluated in the EA are those 
that will be considered by the NIGC approving official. The 
alternatives have to provide the NIGC approving official sufficient 
information to make a reasoned decision. At a minimum, the alternatives 
section should contain the following:
    4.10.4.1 A list of all alternatives considered, including the 
proposed action, the no-action alternative, other reasonable 
alternatives, and alternatives that were considered but not retained 
for further evaluation. For each alternative evaluated, any connected 
actions or cumulative impacts should be considered. The number of 
reasonable alternatives evaluated will be determined by the number of 
alternatives that can meet the purpose and need statement for the 
project and Section 102(2)(E) of NEPA.
    4.10.4.2 A statement identifying the Tribe's preferred alternative, 
and the NIGC's preferred alternative (if one has been identified).
    4.10.4.3 A statement explaining why any alternatives were 
considered and eliminated from further study. Alternatives that were 
considered but not fully evaluated are those alternatives that either 
do not meet the purpose and need or are unreasonable from an 
implementation stand-point. Examples of alternatives that are 
unreasonable from an implementation stand-point include, but are not 
limited to, those for which construction costs are unreasonable, 
proposals on lands that do not, and cannot reasonably be made to, 
qualify for Indian gaming, and those for which preliminary 
environmental screening has identified an insurmountable barrier (e.g. 
Corps of Engineers' unwillingness to issue a Clean Water Act Sec.  404 
permit). Discussions of these alternatives should articulate why each 
alternative was considered and eliminated from further analysis.
    4.10.4.4 If appropriate to aid understanding, a visual depiction 
(using photos, Geographic Information System (GIS), other sources) of 
each alternative evaluated. This should include, but is not limited to, 
aerial photos and/or maps showing project locations, GIS figures 
showing detailed information, and Computer Aided Design and Drafting 
(CADD) depictions showing project site layouts.
    4.10.5 Affected Environment: The ``Affected Environment'' section 
should succinctly describe the existing environmental conditions of the 
potentially affected geographic areas. The geographic areas described 
in this section may vary depending on the anticipated impacts (e.g. the 
socioeconomic geographic area may be larger than the geographic area 
described for noise impacts). The descriptions provided in this section 
should be commensurate with the potential for impact and importance of 
that aspect of the environment. Where appropriate, the use of GIS and 
other mapping tools should be used to avoid superfluous written 
descriptions. Examples of items included in this section follow:
    4.10.5.1 Location map, vicinity map, project layout plan, and 
photographs.
    4.10.5.2 Existing and planned land uses and zoning, including: 
Descriptions of industrial and commercial growth characteristics in the 
affected area; affected residential areas, schools, churches, 
hospitals, public parks and recreational areas, wildlife/waterfowl 
refuges; areas with known or suspected Federal or State threatened or 
endangered species or critical habitat; wetlands; floodplains; 
farmlands; coastal zones/barriers; Federal or State wild and scenic 
rivers; and historic/cultural/archeological sites listed or eligible 
for listing on the National Register of Historic Places.
    4.10.5.3 Political jurisdictions that may be affected by the 
proposed action.
    4.10.5.4 Population estimates and other demographic information.
    4.10.6 Environmental Consequences: The EA must evaluate the 
environmental consequences that will be the result of the no-action 
alternative, the proposed action, and any other reasonable alternatives 
that were retained for further analysis. The evaluation must provide 
enough information on and evidence of the environmental consequences 
for each alternative being evaluated so as to allow the NIGC to 
determine whether to prepare an EIS or a FONSI. The environmental 
consequences section must provide analysis that the NIGC determines to 
be sufficient to address the significance factors (See 40 CFR 1508.27). 
The analysis should focus on those resource categories that will be 
directly, indirectly, and cumulatively impacted by the proposed action. 
The EA should note any resource categories that will not be impacted by 
the proposed action, the no-action, and other alternatives retained for 
further analysis. It is appropriate to incorporate by reference 
background data to support the environmental consequences analysis.
    4.10.6.1 The results of the analysis must include the adverse 
effects that cannot be avoided and mitigation measures necessary to 
reduce the environmental consequences to a level below the significance 
threshold if the proposed action is implemented. This section should 
not duplicate the information contained in the Alternatives section. 
Information in this section should contain the following for each 
alternative retained for further analysis:
    4.10.6.1.1 Direct effects and their significance;
    4.10.6.1.2 Indirect effects and their significance;
    4.10.6.1.3 Cumulative effects and their significance (this analysis 
should evaluate the effects of the proposed action when combined with 
other past, present, and reasonably foreseeable actions taken by either 
another Federal, Tribal, State, local, or private entity. For 
additional information on properly analyzing the cumulative effects, 
refer to CEQ guidance ``Considering Cumulative Effects Under the 
National Environmental Policy Act,'' issued January 1997 and ``Guidance 
on the Consideration of Past Actions in Cumulative Effects Analysis,'' 
issued June 2005)
    4.10.6.1.4 Any possible conflicts between the proposed action and 
the objectives of Federal/State/local and other Tribal plans, policies, 
and controls in the affected area.
    4.10.6.2 The proposed action, the no-action alternative and each 
alternative retained for further study must be analyzed for 
environmental

[[Page 63776]]

consequences to each of the resource categories contained in Appendix 
A, ``Environmental Resource Categories.'' If required and as a matter 
of practice, the NIGC supports the issuance of permits and approvals 
for a proposed action with or shortly after the issuance of the Final 
EA and FONSI. In order to facilitate this, the responsible NIGC 
official may: (1) Participate in coordination efforts with other 
Federal, Tribal, State and/or local agencies or organizations, (2) 
identify information needed by other Federal, Tribal, State and/or 
local agencies or organizations, and (3) integrate items (1) and (2) 
into the EA process.
    4.10.7 Mitigation: Any mitigation measures included in the EA must 
be reasonable and should contain enough detail to describe the benefits 
of the proposed mitigation measure. Mitigation measures should only be 
included after consultation with the Federal, Tribal, State or local 
agency or organization that has jurisdiction over the resource being 
impacted. Mitigation measures should be considered when they will 
avoid, minimize, rectify, reduce, eliminate, or compensate for 
significant impacts. Any proposed mitigation measure should describe 
how it will reduce or eliminate the impact(s) and if the resulting 
impacts are significant. If mitigation is proposed to reduce impacts 
below the appropriate level of significance, an EIS is not required, 
provided that:
    4.10.7.1 The agency took a ``hard look'' at the environmental 
impacts.
    4.10.7.2 The agency identified the relevant areas of environmental 
concern.
    4.10.7.3 The EA supports the agency's determination that potential 
impacts are not significant.
    4.10.7.4 The agency has identified mitigation measures that will be 
sufficient to reduce potential impacts below the threshold of 
significance and has obtained commitments from the Tribe to implement 
those measures.
    4.10.8 List of Preparers: The EA shall contain a list of names and 
qualifications of personnel (NIGC, Cooperating Agency, Tribal 
representatives, consultants and sub-consultants) who prepared the EA. 
The list should include individuals responsible for analysis, review 
and comment, and other background information that is included or 
referenced.
    4.10.9 List of Agencies and Persons Consulted: The EA shall include 
at a minimum those Federal, Tribal, State and local agencies and 
organizations with whom the consultation or coordination was done.
    4.10.10 Appendices: The EA should include the following appendices, 
as appropriate:
    4.10.10.1 Documentation that supports or evidences conclusions, 
references, and methodologies.
    4.10.10.2 Documentation that supports or evidences consultation 
and/or coordination with Federal, Tribal, State and/or local agencies 
and organizations. This documentation may take the form of comments 
provided on the EA, letters/other correspondence, and/or meeting 
minutes.
    4.10.10.3 Documentation that supports or evidences the public's 
opportunity to participate in the development of the EA. This 
documentation may include, but is not limited to, published notices for 
public hearings or workshops, transcripts of public hearings, sign-in 
sheets from public workshops, and comment letters received during the 
public's review period.

4.11 Finding of No Significant Impact (FONSI)

    4.11.1 Purpose: The purpose of an EA is to support the NIGC's 
determination that the proposed action does or does not have the 
potential to create significant impacts. If none of the potential 
impacts are likely to be significant, the responsible NIGC official 
shall prepare or have prepared a ``finding of no significant impact'' 
(FONSI), which will briefly present, in writing, the reasons why the 
proposed action will not have a significant impact on the human 
environment. The NIGC Chairman shall make the final decision whether to 
approve the FONSI. Approval of a FONSI signifies that the NIGC will not 
prepare an EIS and has completed its NEPA documentation for the 
proposed action. Approval of a FONSI does not mean that the NIGC has 
decided to take the proposed Federal action. Instead, it only means 
that the NIGC found the proposed action, if taken, will not have a 
significant impact on the environment (See Section 4.10.6).
    4.11.2 Scope: While there is no particular format for a FONSI, it 
must contain all the information noted in 40 CFR 1508.13.
    4.11.2.1 The FONSI must be combined with the final EA to create a 
single document. The FONSI must include a brief description of the 
proposed action, the purpose and need, a reference to the alternatives 
considered, those impacts for which mitigation is proposed, and the 
NIGC's findings that resulted from the EA. The FONSI shall document or 
reference relevant material necessary to support the conclusion that 
the action is not a major Federal action significantly affecting the 
human environment.
    4.11.2.2 The FONSI should determine the proposed action's 
consistency or inconsistency with community planning, and should 
document or reference the basis for the determination.
    4.11.2.3 The FONSI shall present any measures required to mitigate 
adverse impacts on the environment and which are a condition of the 
decision to forego the preparation of an EIS. The FONSI should also 
reflect coordination of proposed mitigation commitments with, and 
consent and commitment from, those with the authority to implement 
specific mitigation measures committed to in the EA and FONSI.
    4.11.2.4 The FONSI should reflect compliance with applicable 
environmental laws and requirements, including interagency and 
intergovernmental coordination and consultation, public involvement, 
and documentation. The FONSI should also contain findings and 
determinations required under special purpose environmental laws, 
regulations, and executive orders, if not made in the EA.

4.11.3 Internal Review Process and Approval

    4.11.3.1 The responsible NIGC official will coordinate the review 
of the FONSI with the NIGC's Office of General Counsel. The FONSI may 
be reviewed by other NIGC personnel, when necessary.
    4.11.3.2 Each FONSI shall include the following at the end of the 
document:
Recommendations/Approvals
    After careful and thorough consideration of the facts contained 
herein, the undersigned finds that the proposed Federal action is 
consistent with existing national environmental policies and objectives 
as set forth in Section 101 of the NEPA and other applicable 
environmental requirements and will not significantly affect the 
quality of the human environment.
    Environmental Assessment and FONSI reviewed and recommended by:

------------------------
NIGC NEPA Compliance Officer

------------------------
Date

    Approved by:

------------------------
NIGC Chairman

------------------------
Date

    4.11.4 Agency Distribution: A copy of the FONSI and EA shall be 
sent to

[[Page 63777]]

reviewing agencies and organizations or individuals that made 
substantive comments or specifically requested copies. When a project 
impacts a resource protected under a special purpose law or 
administrative directive (e.g. Section 7 of the Endangered Species 
Act), the responsible NIGC official shall send a signed copy of the 
FONSI and the EA supporting it to the agency(ies) with whom the NIGC 
consulted to comply with the applicable law or directive.
    4.11.5 Public review: In some cases, it may be appropriate to give 
the public an opportunity to review the FONSI before the agency takes 
its action (See 40 CFR 1501.4(c)(2) and CEQ's ``40 Most Asked 
Questions,'' number 37b). When one of the following circumstances 
exists, the final EA/FONSI will be made available to the public for a 
minimum of 30 days:
    4.11.5.1 The proposed action is, or is closely similar to, one 
normally requiring the preparation of an EIS;
    4.11.5.2 The nature of the purposed action is one without 
precedence; or
    4.11.5.3 A special purpose environmental law, regulation, or 
executive order requires public notice of specific findings or 
determinations apart from the FONSI.
    4.11.6 Internal Distribution: The FONSI and EA shall be kept on 
file with the NIGC and sent to the National Records Center in 
accordance with the NIGC records retention policy.
    4.11.7 Public Availability: In accordance with CEQ regulations, the 
NIGC shall make the FONSI available to interested or affected persons 
or agencies (See 40 CFR 1506.6). When the FONSI is made available, a 
notice of availability shall be made public using the appropriate 
method, as defined by 40 CFR 1506.6(b). The announcement will identify 
the location(s) where the FONSI and final EA may be reviewed. Copies of 
the FONSI and final EA will be provided upon request, free of charge or 
at a fee commensurate with the cost of reproduction.

4.12 Monitoring Mitigation

    4.12.1 In accordance with 25 CFR 531.1(b)(16), a pending management 
contract will assign either the Tribe or casino manager the 
responsibility to supply the NIGC with all information necessary for 
the NIGC to comply with NEPA. This shall include documentation that all 
mitigation and other conditions established in the final EA and FONSI, 
or in agreements with State/local agencies or organizations, and 
included as a condition of the project approval, have been implemented.

4.13 Decision Documents for Findings of No Significant Impact

    4.13.1 Immediately following the approval of a FONSI, except in the 
circumstances identified in Section 4.11.5, the NIGC decisionmaker may 
decide whether to take the proposed action. Mitigation measures that 
were made a condition of the approved FONSI and the steps taken to 
assure appropriate commitment and follow-up shall be incorporated in 
the decision to implement the action.

4.14 Programmatic Environmental Assessments

    4.14.1 The concept of programmatic EISs may also be applied to EAs. 
The responsible NIGC official may elect to prepare a tiered document 
from a completed EA or EIS if the official finds that the selected EA 
or EIS is current and meets NIGC requirements. Permitting and review 
agencies may have independent requirements for review of the previously 
prepared documents.

4.15 Written Re-Evaluations

    4.15.1 The NIGC will prepare or have prepared a written re-
evaluation of an EA or EA/FONSI when there are substantial or 
significant new circumstances or information related to the proposed 
action or to the environmental concerns of the proposed action, which 
may have a bearing on the proposed action or its impacts. The re-
evaluation will assist the responsible NIGC official in determining 
whether the preparation of a supplemental EA or EA/FONSI is necessary. 
The preparation of a supplemental EA or EA/FONSI is not necessary when 
it can be documented that:
    4.15.1.1 The proposed action generally conforms in scope to plans 
or projects for which a prior FONSI has been issued;
    4.15.1.2 The data and analyses contained in the previous EA and 
FONSI are still substantially valid and applicable; and
    4.15.1.3 All material conditions and requirements of the prior 
approval(s) have been, or will be, met in the current action.
    4.15.2 An evaluation, signed by the responsible NIGC official, or a 
letter documenting the evaluation, will either conclude that the 
contents of the previously prepared environmental document(s) remain 
valid or that significant changes require the preparation of a 
supplemental or new EA or EA/FONSI.
    4.15.3 The written re-evaluation will be reviewed by the NIGC's 
Office of General Counsel.

4.16 Supplemental Environmental Assessments or EA/FONSIs

    4.16.1 The NIGC will prepare or have prepared a supplement to an EA 
or EA/FONSI when there are substantial or significant new circumstances 
or information related to the proposed action or to the environmental 
concerns of the proposed action, which bear on the proposed action or 
its impacts. Substantial or significant new circumstances/information 
means information showing dramatic changes to the impacts of the 
proposed project compared to those identified in the original EA or 
FONSI. The agency may also prepare or have prepared a supplement when 
the purposes of NEPA will be furthered by doing so.
    4.16.2 Supplemental documents will be prepared and circulated in 
accordance with the procedures of this chapter.
    4.16.3 When a supplemental EA is prepared, a new FONSI must be 
issued.

4.17 Review/Comments on EAs

    Federal, Tribal, State, local agencies/organizations, and the 
public may review and comment on a draft EA. When comments are 
submitted to the NIGC, they should be specific in nature and organized 
in a manner consistent with the structure of the draft EA and may 
identify modifications that might enhance environmental quality or 
avoid or minimize adverse environmental impacts, and will correct 
inaccuracies or omissions. Comments must be submitted within the time 
limits set forth in the request for comments, unless the commentor 
seeks and receives an extension from the responsible NIGC official.

4.18 Review/Comments on EAs Prepared by Other Agencies

    If the NIGC is commenting as a cooperating agency, the responsible 
NIGC official shall specify in his or her comments whether any 
additional information is needed or describe the mitigation measures 
the NIGC considers necessary to adopt or concur with the other agency's 
findings.

Chapter 5: Environmental Impact Statements and Records of Decision

    5.1 Introduction. The purpose of this chapter is to provide 
guidance on the process and preparation of an Environmental Impact 
Statement (EIS) and Record of Decision (ROD). The EIS shall provide 
environmental impact information, including required or agreed to 
mitigation measures, to the decisionmaker and the public. The two main 
differences between an EIS and an EA are the level of analysis 
conducted

[[Page 63778]]

and the formalities regarding public participation.
    5.2 Roles and Responsibilities of the EIS Team. The EIS team has 
several key personnel. The following section will outline the roles and 
responsibilities of each member of the team.
    5.2.1 Lead Federal Agency: The Lead Federal Agency for Indian 
gaming projects will either be the National Indian Gaming Commission 
(NIGC) or the Bureau of Indian Affairs (BIA). When the NIGC is the Lead 
Federal Agency, the NIGC shall assume the following roles and 
responsibilities:
    5.2.1.1 Serve as the Project Manager for the preparation of the EIS 
and ROD;
    5.2.1.2 Select an EIS consultant (See Appendix C);
    5.2.1.3 Prepare, or direct an EIS consultant to prepare, the EIS/
ROD and all supporting documents;
    5.2.1.4 Consult with agencies responsible for special purpose laws 
or administrative directives; and
    5.2.1.5 Ensure that the analysis contained in the EIS/ROD complies 
with NEPA.
    5.2.2 Cooperating Agency(ies): A cooperating agency is ``any 
Federal agency * * * which has jurisdiction by law or special expertise 
with respect to any environmental impact * * *'' (40 CFR 1508.5). This 
definition also goes on to say that ``a State or local agency of 
similar qualifications or, when the effects are on a reservation, an 
Indian Tribe'' may be a cooperating agency. When cooperating agencies 
are identified, a Memorandum of Understanding will be prepared to 
outline their roles and responsibilities (See MOU Example in Appendix 
B). In addition to those roles and responsibilities, each cooperating 
agency shall be responsible for ensuring the content of the EIS meets 
its own NEPA compliance procedures.
    5.2.3 EIS Consultant: The EIS consultant will be responsible for 
the preparation of the EIS. The EIS consultant will prepare the EIS at 
the direction of the Lead Federal Agency (for the purposes of this 
Manual, the NIGC).
    5.2.4 Tribe: The individual Tribe proposing a project will be 
responsible for providing information and funding needed for the 
preparation of the EIS in accordance with Section 2.7.6. Information 
shall include, but is not limited to, a detailed description of the 
proposed project and potential alternatives to the proposed project. In 
addition, the Tribe should appoint a Tribal Point of Contact (POC). The 
POC shall serve as a liaison between the Tribe and the rest of the EIS 
team. When appropriate, the Tribe may also act as a Cooperating Agency.
    5.3 Actions Normally Requiring an Environmental Impact Statement. 
An EIS is required when a major Federal action will significantly 
affect the quality of the human environment.
    5.3.1 Significance is defined in terms of context and intensity 
(See 40 CFR 1508.27).
    5.3.2 If an EA was prepared for a proposed action, and based on 
that analysis, it was determined that one or more of its impacts would 
be significant, an EIS must be prepared. The EA that was prepared 
should then be used in the scoping process described below.
    5.3.3 If the responsible NIGC official, based on his or her 
professional judgment, has determined that a proposed action has the 
potential to cause significant impacts, he or she may elect to prepare 
an EIS without first preparing an EA.
    5.3.4 The addition of mitigation to reduce impacts below 
significance may avoid the requirement to prepare an EIS. If mitigation 
is integrated into the design of the proposed action, or if through 
scoping or the EA process the proposed action is redefined to include 
mitigation, or if all potentially significant impacts are mitigated 
below the appropriate thresholds of significance, then the responsible 
NIGC official may rely on the mitigation measures in determining that 
the overall effects would not be significant and prepare an EA/FONSI. 
(See Section 4.11.5).
    5.3.5 Following the preparation of an EA or if a decision has been 
made to prepare an EIS without first preparing an EA, an EIS must be 
prepared when the Federal action has the potential to cause:
    5.3.5.1 A significant adverse effect on cultural or historic 
resources pursuant to the National Historic Preservation Act of 1966, 
as amended;
    5.3.5.2 A significant impact on natural, ecological, or scenic 
resources of Federal, Tribal, State or local significance (e.g., 
Federally listed or proposed endangered, threatened, or candidate 
species, or designated or proposed critical habitat); resources 
protected by the Fish and Wildlife Coordination Act; wetlands; 
floodplains; coastal zones; prime or unique State or locally important 
farmlands; energy supply and natural resources; or wild and scenic 
rivers;
    5.3.5.3 A substantial division or disruption of an established 
community or planned development, or is likely not to be reasonably 
consistent with plans or goals that have been adopted by the community 
in which the proposed project is to be located;
    5.3.5.4 A significant increase in congestion from surface 
transportation (by causing a decrease in the Level of Service (LOS) 
below acceptable levels determined by an appropriate transportation 
agency, such as a highway agency);
    5.3.5.5 A significant increase in noise levels on noise-sensitive 
areas, as defined by Federal Highway Administration or State 
transportation department;
    5.3.5.6 A significant impact on air quality or a violation of 
Federal, Tribal, State or local air quality standards under the Clean 
Air Act, as amended;
    5.3.5.7 A significant impact on water quality or sole source 
aquifers, or contamination of a public water supply system, or a 
violation of State or Tribal water quality standards established under 
the Clean Water Act and the Safe Drinking Water Act;
    5.3.5.8 A violation of any Federal, Tribal, State, or local law 
relating to the environmental aspects of the proposed action; or
    5.3.5.9 A significant impact on the human environment, including, 
but not limited to, actions likely to cause a significant lighting 
impact on residential areas or business properties, or likely to cause 
a significant impact on the visual nature of surrounding land uses.
    5.4 Resource Categories. Appendix A of this manual identifies the 
environmental resource categories that may be impacted. 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.
    5.5 Environmental Impact Statement Process Overview. When a 
determination has been made to prepare an EIS, the following Figure 
provides an overview on the EIS process.

[[Page 63779]]



                             Figure 5-1--The Environmental Impact Statement Overview
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Step 1..........................  Responsible NIGC official or applicant formulates a proposed action, purpose
                                   and need, and a range of preliminary alternatives.
Step 2..........................  Responsible NIGC official or applicant collects background data and the
                                   responsible NIGC official analyzes the information.
Step 3..........................  Responsible NIGC official determines the need for an EIS (anticipated
                                   significant impact).
Step 4..........................  Notice of Intent (NOI) published in Federal Register and local press.
Step 5..........................  Initiate scoping activities, inviting participation of affected agencies and
                                   interested persons to aid in determining issues and alternatives to be
                                   addressed.
Step 6..........................  Perform the environmental analyses.
Step 7..........................  Prepare a draft EIS.
Step 8..........................  Circulate copies of draft EIS to the public and other Federal, Tribal, State
                                   and local agencies/organizations for review and comment.
Step 9..........................  File draft EIS with EPA (EPA will publish a Notice of Availability (NOA)). The
                                   responsible NIGC official may choose to publish a separate NOA under the NIGC
                                   heading in the Federal Register.
Step 10.........................  Provide a public comment period for the draft EIS (60 days minimum from the
                                   EPA NOA date).
Step 11.........................  Responsible NIGC official receives and evaluates comments. Comment periods may
                                   be extended (See Section 5.7.1).
Step 12.........................  Revise draft EIS after consideration of public comments.
Step 13.........................  Make copies of final EIS available to public, to include commenters.
Step 14.........................  File final EIS with EPA (EPA will publish an NOA). The responsible NIGC
                                   official may choose to publish a separate NOA under the NIGC heading in the
                                   Federal Register.
Step 15.........................  Responsible NIGC official must wait a minimum of 30 days from the EPA NOA date
                                   to allow for review, or allow for requests of reconsideration or technical
                                   corrections.
Step 16.........................  Responsible NIGC official prepares, or directs to be prepared, a Record of
                                   Decision (ROD).
Step 17.........................  NIGC approving official signs the ROD, takes or approves the Federal action,
                                   and has the ROD published in accordance with Section 5.12.6 of this manual.
----------------------------------------------------------------------------------------------------------------

5.6 Additional EIS Process Information

    5.6.1 Notice of Intent and Notice of Availability: A Notice of 
Intent (NOI) must be prepared when it has been determined that an EIS 
must be prepared. The information that must be included in an NOI can 
be found in Figure 5-2. If a scoping hearing or meeting is planned and 
sufficient information is available at the time, the NOI should also 
announce the hearing or meeting, including the time and place of the 
hearing or meeting. The scoping hearing or meeting can also be 
announced separately. If the scoping hearing or meeting is being used 
to satisfy requirements of another environmental law/regulation, or 
executive order in addition to NEPA, the NOI should include a statement 
to that effect with a reference to the specific law, regulation, or 
executive order. Other forms of publication (other than the Federal 
Register) shall be sought out to publish the NOI (40 CFR 1506.6).
    5.6.1.1 The responsible NIGC official shall prepare the NOI in 
accordance with Federal Register Document Drafting Handbook. Once the 
NOI has been reviewed by the appropriate OGC attorney and the NIGC's 
Director of Contracts, three copies of the NOI will be sent to the 
Chairman for his signature. Upon receipt of the signed copies, the 
responsible NIGC official will send a cover letter, the three signed 
copies and a copy on a computer disc to: Director, Office of the 
Federal Register, National Archives & Records Administration, 800 North 
Capitol St., NW., Suite 700, Washington DC 20001.
    5.6.1.2 While preparing the NOI for publication in the Federal 
Register, the responsible NIGC official will begin working with the 
consultant selected to prepare the EIS and the Tribe proposing the 
action to establish an interdisciplinary approach to the preparation of 
the EIS (see 40 CFR 1502.6), EIS schedule and the channels of 
communication necessary to manage the preparation of the EIS.
    5.6.1.3 A Notice of Availability (NOA) is used to announce the 
availability of either the draft EIS or the final EIS. The draft or 
final EIS is filed with the U.S. Environmental Protection Agency (EPA) 
and the EPA prepares and publishes an NOA. The NIGC may publish its own 
NOA in the Federal Register, but this is not mandatory. In most cases, 
the NIGC will publish its own NOA when the proposed action is highly 
controversial on environmental grounds. For additional information, 
check the EPA Web site (http://www.epa.gov/compliance/nepa/index.html). 
Finally, the NOA should be published in local newspaper(s).

                             Figure 5-2--NOI
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Purpose......................   Notice of Intent (NOI) announces
                                to the public that the EIS process has
                                begun for a proposed NIGC action.

[[Page 63780]]

 
                                If appropriate, the NOI
                                announces the availability of a scoping
                                document (or a previously prepared EA).
                                The NOI announces the scoping
                                meeting, if one is planned, to include
                                time and place. A separate notice can be
                                prepared if the details of the scoping
                                meeting(s) are unknown.
                                NOI must be published at least
                                15 days in advance of the scoping
                                meeting(s).
Content......................   Proposed action and possible
                                alternatives.
                                Proposed scoping process
                                including whether, when, and where
                                scoping meeting will be held.
                                Identifies the NIGC point of
                                contact for public inquiries.
Public Participation.........   The NIGC and Tribe or consultant
                                publishes NOI in the Federal Register
                                and local newspaper(s), respectively.
                                NOI or other notice of scoping
                                should be published at least 15 days
                                prior to the scoping meeting.
------------------------------------------------------------------------

    5.6.2 Scoping (Also defined in Section 1.8.5): The scoping process 
is used to identify the environmental issues that should be considered 
during the EIS process. In addition, the scoping process should be used 
to help identify other reasonable alternatives. The CEQ regulations at 
40 CFR 1501.7 describe the scoping requirements.
    5.6.2.1 In cases where an EA has been prepared and the impacts of 
the proposed project were determined to be significant, the EA shall be 
the basis on which to move forward in the EIS scoping process.
    5.6.2.2 The responsible NIGC official will lead the scoping 
process. This includes, but is not limited to, inviting or have invited 
all potentially affected Federal, Tribal, State and local agencies/
organizations and/or other interested parties, determining issues to be 
analyzed in depth, identifying other environmental review and 
consultation requirements, and assigning responsible lead and 
cooperating agencies for input to the EIS. In some cases, a scoping 
meeting may be appropriate and will provide an opportunity to present 
additional information on the proposed project and solicit input from 
those interested and affected parties to:
    5.6.2.2.1 Determine the scope of analysis required within the EIS;
    5.6.2.2.2 Identify and eliminate insignificant issues and those 
covered in previous environmental reviews;
    5.6.2.2.3 Identify alternatives; and
    5.6.2.2.4 Identify any other EAs or EISs that are being or will be 
prepared which are related, but are not part of the scope of the EIS 
under consideration.
    5.6.2.3 Scoping is the point at which substantial efforts should be 
made to begin the consultation process with local governmental bodies, 
Federal and State agencies, and other Tribes which may be affected by 
the proposed project.
    5.6.3 Preparation of the EIS (Format): The NIGC preferred format 
follows the format found in 40 CFR 1502.10, with one exception (See 
Table of Contents), and is outlined below. All preliminary, draft, and 
final EAs shall be submitted to the NIGC in both hardcopy and digital 
(e.g. compact disc) form. A summary is presented in Figure 5-3.
    5.6.3.1 Cover sheet: The cover sheet shall include: A title 
(project name, location, and Tribe); the name of each responsible 
agency (lead and cooperating); lead agency point of contact 
information; designation of the document as draft or final (prior to 
the document being released to the public in draft form, it will be 
designated as a ``Preliminary Draft EIS Version XX'').
    5.6.3.2 NIGC Declaration Page: This section shall contain the 
project title, location, designation as Draft or Final Environmental 
Impact Statement, legal authority citation (National Environmental 
Policy Act, 42 U.S.C. 4332(2)(C) and Indian Gaming Regulatory Act, 25 
U.S.C. 2711); the month and year the draft EIS was made available (only 
for a final EIS); ``Lead Agency: National Indian Gaming Commission;'' 
any cooperating agencies; an abstract containing project description 
and EIS process; and the date on which comments are due (only for a 
draft EIS).
    5.6.3.3 Table of Contents: The table of contents should include 
each chapter, figures, maps, tables, a glossary, references, and 
appendices. If the table of contents contains sufficient detail, an 
index may not be required. The responsible NIGC official will determine 
if an index is necessary.
    5.6.3.4 Executive Summary: The Executive Summary shall summarize 
the information in the EIS. It shall focus on the primary conclusions, 
areas of interest to other agencies and the public, issues resolved 
(emphasis on the alternatives studied) and unresolved decisions with 
opinions or recommendations.
    5.6.3.5 Purpose and Need: The purpose and need for a proposed 
project has two parts. The ``need'' identifies what the Tribe proposing 
the project lacks or what it needs. The ``purpose'' identifies that 
which the Tribe wants to obtain to satisfy its ``need.'' For example, 
if a Tribe lacks sufficient revenues to pay for essential governmental 
services, then the Tribe's ``need'' for the project may be to generate 
funds for essential governmental programs. The Tribe's ``purpose'' may 
be to enter into a management contract with a casino developer to 
construct and manage a casino that will generate sufficient revenues to 
provide essential governmental services for Tribal members.
    5.6.3.6 Alternatives (including the proposed action and the no-
action alternative): Based on information from the ``Affected 
Environment'' and ``Environmental Consequences'' sections, the 
alternatives section should ``rigorously explore and objectively 
evaluate all reasonable alternatives. * * * '' (See 40 CFR 1502.14(a)). 
In conducting this evaluation, it is recommended that screening 
criteria be developed to identify those alternatives that will not be 
studied in detail. For example, if a proposed action (with the 
exception of the no-action alternative) will not meet the ``Purpose and 
Need,'' it should not be studied in detail and would not be evaluated 
in the ``Environmental Consequences'' section. When screening potential 
alternatives, the NIGC along with cooperating agencies, the Tribe 
proposing the project, and the EIS consultant should work to identify 
appropriate screening factors. The NIGC's preferred alternative may be 
noted in the draft EIS, if one exists. Otherwise, the NIGC's preferred 
alternative shall be identified in the final EIS unless prohibited by 
another law.
    5.6.3.7 Affected Environment: This section of the EIS will describe 
the existing conditions in the area potentially impacted by each 
alternative. This section should provide enough information to 
understand the potential effects the alternatives will have on 
particular resources. The amount of information provided in this 
section and its sub-sections should be commensurate with the 
significance of the potential impacts. The area to be described is not 
limited to the immediate project area and will vary depending on the 
particular resource category being described. For example, if the 
project's construction site is the

[[Page 63781]]

only area that will experience a change in land use and all surrounding 
land uses are compatible, there will be no need to analyze changes in 
the land use description beyond the boundaries of the project site. 
However, if as part of the proposed project a waste water treatment 
plant will require discharge to a particular stream and that stream is 
tributary to another larger body, it may be necessary to expand the 
water quality description several miles from the project site. The 
NIGC, cooperating agencies, the Tribe proposing the project and the EIS 
consultant should work collectively and use input received from 
interested parties during scoping or information from agencies with 
jurisdiction or special expertise to identify appropriate ``Affected 
Environment'' boundaries.
    5.6.3.8 Environmental Consequences: This section should first 
describe the methodology used to evaluate the potential impacts to each 
particular resource category being evaluated. That methodology should 
be applied to all of the alternatives selected to be studied in detail. 
The impacts identified for each alternative should then be presented in 
a manner that allows a comparative analysis of the impacts. This 
section should then identify those impacts that cannot be avoided; the 
relationship between short-term uses of the human environment and the 
maintenance and enhancement of long-term productivity; and any 
irreversible or irretrievable commitments of resources which would be 
involved in the proposed project's implementation. Direct, indirect, 
and cumulative impacts should be evaluated in this section. (Cumulative 
impacts may be included within each resource category or may be 
evaluated as a stand alone sub-section. In addition to the analysis and 
potential impacts, this section must also include information regarding 
the status of interagency, intergovernmental consultation required by 
any special purpose environmental law(s), regulation(s), or executive 
order(s).
    5.6.3.9 Mitigation: This section shall describe mitigation measures 
that were considered and planned to minimize environmental harm that 
may result from the proposed project. It is expected that the following 
types of mitigation will be included: design and construction actions 
to avoid or reduce impacts; design measures that reduce impacts; 
management actions that reduce impacts during operation of the 
facility; and replacement, restoration, reuse, conservation, 
preservation, and compensation measures. In accordance with 25 CFR 
531.1(b)(16), the management contract (if approved) will assign either 
the Tribe or casino manager the responsibility to ``supply the National 
Indian Gaming Commission[hellip]with all information necessary for the 
Commission to comply with[hellip]the National Environmental Policy Act 
(NEPA).'' This shall include, but is not limited to, documentation that 
all mitigation and other conditions established in the EIS and 
committed to in the ROD, or in agreements with State/local agencies or 
organizations, and included as a condition of the project approval, 
will be implemented.
    5.6.3.10 List of Preparers: This section shall include a list of 
each person's name and their qualifications (e.g. expertise, 
experience, professional disciplines) of the NIGC staff, cooperating 
agency(ies) staff, EIS consultant staff and sub-contractors staff who 
assisted in preparing the EIS or associated environmental studies.
    5.6.3.11 List of Agencies, Organizations, Person(s) to whom and 
Locations where Copies of the EIS were Sent: This list is provided for 
reference purposes and to demonstrate that the EIS has been circulated 
and the public review process followed.
    5.6.3.12 Appendices: This section consists of material that 
substantiates any analysis that is fundamental to the EIS and its 
conclusions, but would substantially contribute to the length of the 
EIS or detract from the document's readability, if included in the body 
of the EIS. This section should contain information and documentation 
about formal and informal consultation conducted and related agreement 
documents prepared pursuant to other applicable environmental laws, 
regulations, and executive orders.
    All comments received on any version of the draft EIS and the 
preliminary final EIS are assessed and responded to in the final EIS. 
Any comments received on the final EIS are assessed and responded to in 
the Record of Decision (ROD). Comments shall be responded to in any or 
all of the following ways:
     Written into the text of the final EIS;
     Included or summarized and responded to in an appendix to 
the final EIS or ROD, and if voluminous, may be compiled in a separate 
supplemental volume for reference.

                               Figure 5-3--Environmental Impact Statement Content
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Purpose.............................   Provide an in-depth review of environmental impacts for all major
                                       NIGC actions before a decision is made.
                                       Examines the environmental impacts of a range of reasonable
                                       alternatives to the proposed action.
                                       Discloses to the public and the decision maker the alternatives,
                                       impacts, and mitigation.
Scope...............................   Provide a comprehensive review of all impacts of the proposed
                                       action and alternatives, including a no-action alternative.
Content.............................   Include the following:
                                       Cover sheet,
                                       Table of Contents,
                                       Executive Summary,
                                       Purpose and Need,
                                       Alternatives considered, including the proposed action and the no-
                                       action alternative,
                                       Affected Environment,
                                       Environmental Consequences,
                                       Mitigation,
                                       Coordination and Consultation,
                                       List of Preparers,
                                       Appendices, and
                                       Summary of Public comments.
                                       Changes to this format must be approved by the NIGC.

[[Page 63782]]

 
Public Participation................   Provide for 60-day comment period on the draft EIS.
                                       Hold at least one (1) public hearing.
                                       Provide a 30-day waiting period following the publication of the
                                       final EIS before issuing the ROD.
----------------------------------------------------------------------------------------------------------------

5.7 Timing of Actions

    5.7.1 While the minimum comment period for the draft EIS is 45 days 
(40 CFR 1506.10(c)), the NIGC has chosen to provide a 60-day draft EIS 
comment period. The NIGC has the discretion to voluntarily extend any 
comment period beyond those included in this manual, the CEQ 
regulations, or other environmental laws. The same discretion shall be 
applied to the NIGC's decision to approve or deny any request for an 
extension to any comment period. A public hearing shall be held no 
sooner than 15 days following publication of the notice of availability 
(NOA). The NIGC's final record of decision (ROD) on the proposed action 
cannot be made until 90 days after the filing of the draft EIS (40 CFR 
1506.10(b)(1)) and 30 days after filing of the final EIS. If another 
Federal agency provides a showing of compelling reasons regarding 
national policy to the EPA, the EPA may extend the comment period after 
consultation with the NIGC. If the NIGC does not concur with the 
extension proposed by EPA, the EPA cannot extend the time period for 
more than 30 days. The EPA may also reduce the comment period if the 
NIGC shows a compelling reason of national security (See 40 CFR 
1506.10(d)). The NIGC may issue its own detailed NOA in addition to the 
NOA published by the EPA. However, a NOA issued by the NIGC cannot 
substitute for the NOA issued by the EPA. If the NIGC decides to extend 
the comment period, the EPA must be notified so it may modify its 
Federal Register notice accordingly.
    5.7.2 In order to have the EPA publish a NOA, the NIGC shall send 
five (5) copies of the draft EIS to the U.S. Environmental Protection 
Agency, Office of Federal Activities, EIS Filing Section, Ariel Rios 
Building (South Oval Lobby), Mail Code 2252-A, Room 7241, 1200 
Pennsylvania Ave., NW., Washington DC 20460. (Special Note: For all 
deliveries by courier, including express delivery services other than 
the U.S. Postal Service, use 20004 as the zip code.) The responsible 
NIGC official should access the NEPA Web site of the EPA's Office of 
Federal Activities to verify that the filing instructions provided 
herein are current (http://www.epa.gov/compliance/nepa/).

5.8 Draft EIS

    5.8.1 Internal Review: Prior to releasing the draft EIS to the 
public and other agencies, the draft EIS will be prepared and reviewed 
by the NIGC, and all cooperating agencies. This version of the draft 
EIS will be designated as the ``preliminary draft EIS.'' This review is 
intended to ensure that the document is technically and legally 
sufficient. It is intended to ensure that the concerns of NIGC and 
cooperating agencies are properly discussed in the document prior to 
its public release.
    5.8.2 Filing the DEIS: Once the internal review is complete, the 
document should then be designated as the ``draft EIS'' and five (5) 
copies of it must be sent to the EPA at the address in Section 5.7.2.
    5.8.3 Public Notice: The responsible NIGC official, in accordance 
with 40 CFR 1502.19, shall ensure the draft EIS has been delivered to 
interested parties, appropriate libraries, and other public venues that 
provide the public an opportunity to review and comment on the draft 
EIS.
    5.8.3.1 Once delivery to appropriate public venues has been 
confirmed, the responsible NIGC official shall attach a letter with 
five (5) copies to be sent to the EPA certifying that the draft EIS has 
been delivered. The EPA will normally publish the draft EIS NOA in the 
Federal Register two (2) weeks after receiving the NIGC's certification 
of distribution. Once delivered, it is recommended that the responsible 
NIGC official contact the EPA for the exact date that it will be 
published.
    5.8.3.2 The responsible NIGC official shall ensure that an NIGC NOA 
be published in the Federal Register, other notices are published in 
local media (e.g. local newspapers), and that the NIGC issue a press 
release. Every effort should be made to have the above mentioned 
notices published on the same date the EPA's notice will be published.
    5.8.3.3 The following standard language shall be used in the 
certification to EPA, notices to local media, and the NIGC press 
release:

    The NIGC encourages all interested parties to provide comments 
concerning the scope and content of the draft EIS. Comments should 
be as specific as possible and address the analysis of potential 
environmental impacts and the adequacy of the proposed action or 
merits of alternatives and the mitigation being considered. 
Reviewers should organize their participation so that it is 
meaningful and makes the agency aware of the reviewer's interests 
and concerns using quotations and other specific references to the 
text of the draft EIS and related documents. This commenting 
procedure is intended to ensure that substantive comments and 
concerns are made available to the NIGC in a timely manner so that 
the NIGC has an opportunity to address them.

5.8.4 Distribution and Coordination for Intergovernmental Review

    5.8.4.1 Comments from appropriate Federal, Tribal, State, and local 
agencies and organizations that did not act as cooperating agencies, 
but have jurisdiction by law, have special expertise, will be impacted 
by the proposed action, or are otherwise an interested party, shall be 
requested and accepted.
    5.8.4.2 Copies of the draft EIS shall be sent to:
    5.8.4.2.1 Appropriate Federal, Tribal, State and local agencies and 
organizations as described in 40 CFR 1503.1, and
    5.8.4.2.2 Regional EPA office with jurisdiction over the proposed 
project site (1 copy).
    5.8.4.2.3 If the proposed project occurs within a State that has an 
established clearinghouse, delivery of the draft EIS should follow the 
clearinghouse's procedures.
    5.8.5 Copies: The responsible NIGC official shall have a sufficient 
number of draft EISs prepared to meet the anticipated demand of Section 
5.8.4. Copies will be prepared for those agencies/organizations noted 
in Section 5.8.4.2 free of charge. A fee, not to exceed reproduction 
costs, may be charged for copies requested by the public if the 
original set of copies has been exhausted. Material used in developing 
or referenced in the draft EIS must be available for review at an NIGC 
designated location. In an effort to decrease printing cost and 
increase distribution, the draft EIS should be prepared and circulated 
in Adobe Acrobat format (pdf) on a CD-ROM and placed on the Internet to 
the greatest degree possible.
    5.8.6 Comments: The responsible NIGC official shall take into 
consideration all comments received

[[Page 63783]]

from Federal, Tribal, State, local agencies and organizations, and the 
public. As a part of the consideration process, the NIGC official must 
respond to all substantive comments in the final EIS. Any comments on 
the draft EIS, including those made during the public hearing, shall 
accompany the final EIS through its internal review process. The draft 
EIS will be revised, as appropriate, to reflect comments received, and 
issues raised through the entire public involvement process. Copies of 
substantive comments shall be included in the final EIS or as a 
separate accompanying appendix. If the number of comments is too 
voluminous to include, the comments may be summarized. (See also 
Section 5.6.3.12 of this manual.)

5.9 Review and Approval of Final EIS

    5.9.1 As part of the EIS process, environmental issues are defined 
and mitigation measures identified. All efforts should be made to 
complete environmental consultation and coordination requirements 
before publication of the final EIS to ensure consideration of 
meaningful public comment provided on the draft and to streamline the 
environmental review and permitting/approval processes. The final EIS 
shall reflect that there is compliance with the consultation and 
coordination requirements of all applicable environmental laws, 
regulations, and executive orders. If it is not possible to complete 
environmental consultation and coordination requirements prior to 
publication of the final EIS, the final EIS will reflect the state of 
ongoing consultation(s) and coordination(s) with appropriate agencies 
and note that the requirements will be met. Any unresolved 
environmental issues and efforts to resolve them through further 
consultation will be identified and discussed in the final EIS. The 
required consultation and coordination must be completed prior to the 
NIGC issuing a ROD.
    5.9.2 Internal Review: This review shall follow the same format as 
that set out in Section 5.8.1. The internal review document shall be 
titled ``Preliminary Final EIS.''

5.9.3 Final EIS Approval

    5.9.3.1 The following declaration shall be added to the NIGC 
Declaration page:

    After careful and thorough consideration of the facts contained 
herein and following consideration of the views of those Federal, 
Tribal, State, and local agencies authorized to develop and enforce 
environmental standards or having jurisdiction by law or special 
expertise with respect to the environmental impacts described, the 
undersigned finds that the proposed Federal action is consistent 
with existing national environmental policies and objectives as set 
forth in Sec.  101(a) of the National Environmental Policy Act of 
1969.

    5.9.3.2 The Declaration page shall include signature and date 
blocks for the decisionmaker (the NIGC Chairman).

5.10 Notice of Availability of Final EIS

    5.10.1 The Notice of Availability for the approved final EIS should 
follow the same process as that for the draft EIS (See Sec.  5.7.2 and 
5.8.2).

5.11 Distribution of Approved Final EIS

    5.11.1 Distribution of the approved final EIS shall follow the same 
process as that for the draft EIS (See Sec. Sec.  5.8.4 and 5.8.5).

5.12 Record of Decision

    5.12.1 The ROD is the NIGC's decision document. The NIGC may not 
make a decision until 90 days after the draft EIS NOA and 30 days after 
the final EIS NOA are published.
    5.12.2 The NIGC Chairman shall be responsible for signing all RODs.
    5.12.3 Any mitigation measures contained in the final EIS must be 
included in the ROD. A monitoring and enforcement plan may be adopted 
to ensure compliance with all mitigation measures. Proposed changes to 
mitigation measures must be reviewed by the same Federal, Tribal, 
State, or local agencies/organizations that reviewed the final EIS and 
must be approved by the NIGC Chairman.
    5.12.4 In addition to the alternatives considered in the draft and 
final EIS, the ROD must identify the ``environmentally preferable'' 
alternative (See 40 CFR 1505.2(b)).
    5.12.5 The NIGC Chairman may choose an alternative that was 
included in the final EIS but was not the environmentally preferred 
alternative(s) nor the NIGC's preferred alternative identified in the 
final EIS. If the final EIS's preferred alternative is not selected, 
the Federal, Tribal, State and local agencies/organizations may need to 
be consulted to ensure that the selected alternative complies with 
special environmental laws, regulations, and executive orders. In some 
cases, a supplemental final EIS may be necessary and should be reviewed 
and approved in accordance with Section 5.16.
    5.12.6 An NOA for a ROD is not required unless the action is of 
national concern, but the ROD must be made available to the public. It 
is recommended that a notice be published via local media (e.g. local 
newspapers) and the ROD be made available at local libraries or other 
public depository. The notice and ROD also may be published and made 
available via other means (e.g., on the NIGC Web site or the project's 
individual Web site).

5.13 Programmatic EISs

    5.13.1 Programmatic EISs: Given that most NIGC actions that require 
an EIS are specific to individual Tribes, it is not anticipated that a 
Programmatic EIS would be appropriate. Therefore, this section is 
reserved.

5.14 Time Limits for EISs

    5.14.1 A draft EIS is normally valid for a period of three (3) 
years except when there are substantial changes in the proposed action, 
there are significant new circumstances, or there is new information 
relevant to environmental concerns regarding the proposed action or its 
impacts. In cases of significant new circumstances or information, a 
written re-evaluation must be undertaken. (See Section 5.15.) In cases 
of significant new circumstances or information that affect the NIGC's 
consideration of the proposal, a supplement to the draft EIS or a new 
draft EIS will be prepared and circulated (See Section 5.16).
    5.14.2 A final EIS shall be assumed to be valid for a period of 
three (3) years. For a final EIS more than three (3) years old, the 
following conditions apply:
    5.14.2.1 If major steps toward implementation of the proposed 
project/action (e.g. start of construction or land being taken into 
trust by the Department of the Interior) have not commenced within 
three (3) years from the date of the final EIS approval, a written re-
evaluation (See Section 5.15) of the adequacy, accuracy, and validity 
of the final EIS will be prepared by or for the responsible NIGC 
official. If the responsible NIGC official determines that there have 
been significant changes that affect the NIGC's consideration of the 
proposal, a supplement to the final EIS or a new final EIS will be 
prepared and circulated.
    5.14.2.2 If the proposed action is to be implemented in stages or 
requires successive Federal approvals, a written re-evaluation (See 
Section 5.15) of the continued adequacy, accuracy, and validity of the 
final EIS will be made at each major approval point that occurs more 
than three (3) years after approval of the final EIS and a new or 
supplemental EIS prepared, if necessary.

[[Page 63784]]

5.15 Written Re-Evaluation

    5.15.1 The preparation of a new or supplemental EIS is not 
necessary when it can be documented that the:
    5.15.1.1 Proposed action is reasonably consistent with plans or 
projects for which a prior EIS has been filed and there are no 
substantial changes in the proposed action that are relevant to 
environmental concerns;
    5.15.1.2 Data and analyses contained in the previous EIS are still 
substantially valid and there are no significant new circumstances or 
information relevant to environmental concerns and bearing on the 
proposed action or its impacts; and
    5.15.1.3 All pertinent conditions and requirements of the prior 
approvals have, or will be, met in the current action.
    5.15.2 The analysis and conclusions in a written re-evaluation must 
be made and certified by an environmental professional. The written re-
evaluation must contain enough information for the responsible NIGC 
official to independently evaluate the changes and conclude the 
contents of the previously prepared environmental documents remain 
valid or that significant changes require the preparation of a new EIS.
    5.15.3 A written re-evaluation may be circulated to the public at 
the discretion of the responsible NIGC official.

5.16 Supplemental EISs

    5.16.1 The NIGC shall prepare or have prepared supplements to 
either the draft or final EISs (1) if there are substantial new 
circumstances or there is new information (See 40 CFR 1502.9(c)(1)(i & 
ii) regarding the proposed action that is relevant to environmental 
concerns, or (2) if there are significant new circumstances or there is 
information relevant to environmental concerns and bearing on the 
proposed action or its impacts. Significant information is information 
showing dramatic changes to the impacts of the proposed project 
compared to those identified in the original draft or final EIS.
    5.16.2 Supplemental documents will be prepared and circulated in 
accordance with the procedures of this chapter.
    5.16.2 If a ROD was issued prior to a supplemental EIS, a new ROD 
shall be prepared and issued after the supplement has been circulated 
for 30 days.

5.17 Referrals to Council on Environmental Quality (CEQ)

    5.17.1 A project may be referred to CEQ when a cooperating or 
commenting agency disagrees regarding the proposed project's potential 
to cause unsatisfactory environmental effects. Referrals to CEQ shall 
be made in accordance with 40 CFR part 1504.
    5.17.2 If the NIGC disagrees regarding another agency's proposed 
project's potential to cause unsatisfactory environmental effects, the 
NIGC may refer that project to CEQ. Referrals to CEQ are made in 
accordance with 40 CFR part 1504.

5.18 Review/Comment and Adoption of EISs

    5.18.1 Comments: Federal, Tribal, State and local agencies/
organizations may review and comment on the draft and final EIS. When 
comments are submitted to the NIGC, they should be specific in nature 
and organized in a manner consistent with the structure of the draft or 
final EIS and may identify modifications that might enhance 
environmental quality or avoid or minimize adverse environmental 
impacts, and will correct inaccuracies or omissions. Comments will be 
submitted within the time limits set forth in the request, unless the 
agency/organization responsible for submitting comments seeks and 
receives an extension from the responsible NIGC official.
    When the NIGC is participating in the preparation of an EIS as a 
cooperating or commenting agency, the responsible NIGC official shall 
provide comments that are specific in nature and organized in a manner 
consistent with the structure of the draft or final EIS and may 
identify modifications that might enhance environmental quality or 
avoid or minimize adverse environmental impacts, and will correct 
inaccuracies or omissions. Comments will be submitted within the time 
limits set forth in the request, unless the NIGC seeks and receives an 
extension from the lead Federal agency.
    5.18.2 Adoption: The NIGC may adopt, in whole or in part, a draft 
or final EIS prepared by another agency in accordance with 40 CFR 
1506.3. When the NIGC adopts another agency's EIS, the responsible NIGC 
official must independently evaluate the information contained in the 
EIS, take full responsibility for the scope and content that addresses 
the NIGC action, issue its own ROD, and provide notification to EPA 
that the NIGC has adopted the EIS. The same time limits described in 
Section 5.14 also apply to EIS prepared by other agencies and adopted 
by the NIGC.

5.19 Reserved

George Skibine,
Acting Chairman.

Appendix A--Resource Categories

    The purpose of this Appendix is to provide a list of resource 
categories to be evaluated in an Environmental Assessment (EA) or an 
Environmental Impact Statement (EIS). The following list is not 
exhaustive. Resource categories may be added when the proposed 
action has the potential to impact a resource not listed below.

Resource Categories

Geology and Soils
Land Use
Farmlands
Air Quality
Water Quality (Surface and Ground)
Floodplains
Wild and Scenic Rivers
Coastal Resources
Wetlands
Biotic Communities
Endangered Species
Historic, Architectural, Archeological, and Cultural Resources
Traffic
Noise
Light and Aesthetics
Socioeconomic, Environmental Justice, and Children's Environmental 
Health and Safety
Hazardous Materials, Pollution Prevention and Solid Waste
Public Services (municipal water supply, waste water services, 
electric, etc)
Public Safety (Police, Fire, Emergency Medical, etc)

Appendix B--Example MOU for EIS Cooperating Agencies

    The following is an example of a Memorandum of Understanding 
(MOU) used when cooperating agencies will be participating in the 
preparation of an EIS. It is strongly recommended that any potential 
cooperating agency sign an MOU before being accepted as an official 
cooperating agency in the preparation of an EIS. The example MOU is 
only an example and may be modified to fit the individual 
circumstances of each EIS being prepared. Each cooperating agency 
representative must sign the MOU. The MOU must then become part of 
the administrative record.

Draft Memorandum of Understanding Between the Lead and Cooperating 
Agencies for the (Tribe Name) Proposed (Project Title) Environmental 
Assessment or Environmental Impact Statement.

    This Memorandum of Understanding (MOU) between the National 
Indian Gaming Commission (NIGC), the lead Federal agency, and, 
inclusively, the Cooperating Agency, and the Tribe name (if 
designated as a cooperating agency) the cooperating agencies, is for 
the consultation, preparation assistance, and review of an 
Environmental Assessment (EA) or Environmental Impact Statement 
(EIS) that will describe and analyze the potential environmental 
effects of the proposed NIGC approval of a

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management contract for the Project Title (the Project) located in 
Location. The Tribe name is the tribe that has the proposed project. 
The cooperating agencies' involvement is intended to assist the NIGC 
with all issues involving the environmental review under their 
jurisdiction associated with the project. This MOU describes the 
agencies' (signatories) respective responsibilities regarding 
completion of an EIS pursuant to the requirements of the National 
Environmental Policy Act (NEPA) and, if applicable, other 
environmental reviews pursuant to the requirements of the state 
NEPA-like statute.

I. Purpose

    The purpose of this MOU is:
    (1) To confirm the formal designation of the Cooperating Agency 
and the Tribe name as cooperating agencies in the preparation of the 
EIS;
    (2) To define each signatory's role, obligations, and 
jurisdictional authority regarding the EIS;
    (3) To provide input in the preparation of an EIS that will 
enable the NIGC to adequately consider impacts to the natural and 
human environment and the Cooperating Agency and the Tribe name to 
properly address potential project related environmental impacts in 
connection with their regulatory objectives; and
    (4) To provide a framework for cooperation and coordination 
among the signatories to facilitate completion of the NEPA process 
including issuance of required findings and to fulfill other 
environmental responsibilities each signatory may have.

II. Regulatory Criteria

    Under NEPA [42 U.S.C. 4371 et seq.], the NIGC, as lead Federal 
agency, has the responsibility to designate those portions of EA or 
EIS upon which each cooperating agency will focus its evaluation of 
environmental issues. The designations will be based upon legal 
jurisdiction or special expertise of the cooperating agency, and 
will not limit that agency's ability to comment on other 
environmental resources or aspects of the EIS.
    The signatories to this MOU shall cooperate fully and share 
information and technical expertise to evaluate the potential 
environmental effects of the proposed action and its alternatives. 
Each signatory shall give full recognition and respect to the 
authority, expertise, and responsibility of the others. 
Participation in this MOU does not imply endorsement of the proposed 
project, nor does it abridge the independent review of the Draft and 
Final EIS by the signatory agency. The agencies will make every 
effort to raise and resolve issues during scoping and EIS 
preparation. The signatories acknowledge that the NIGC, as lead 
agency, has the responsibility for the content of the Draft and 
Final EIS and its conclusions.

III. Procedures

    1. The NIGC is the lead Federal agency for this project. It is 
ultimately responsible for preparing the Draft and Final EIS and for 
assuring compliance with the requirements of NEPA and other 
applicable laws and regulations. The NIGC agrees to give full 
respect and recognition to the jurisdiction of the Cooperating 
Agency and the Tribe name. The NIGC is responsible for considering 
impacts to the quality of the natural and human environments 
associated with the proposed project. In meeting its core NEPA 
responsibilities, the NIGC will use the environmental analyses, 
proposals, and special expertise of the cooperating agencies to the 
maximum extent possible consistent with its responsibilities, and as 
the lead agency, will retain ultimate responsibility for the EIS's 
content (See 40 CFR 1501.6(a)(2) and CEQ's 40 Questions, No. 14.b.). 
This includes defining the issues, determining purpose and need of 
the project, selecting or approving alternatives and mitigation 
measures, reviewing any required modification of the EIS, responding 
to comments on the Draft EIS, and retaining responsibility for the 
conclusions of its environmental analysis. In addition to responding 
to comments and conducting the appropriate level of public 
involvement in advance of the combined undertaking, the NIGC may 
employ other opportunities to involve and obtain input from all 
interested parties. Other opportunities include but are not limited 
to informal/formal consultation and environmental conflict 
resolution.
    2. The goal of the signatories is to assist in the preparation 
of an EIS that contains all the information each signatory needs to 
fulfill its responsibilities under NEPA or, if applicable, tribal or 
state NEPA-like statute, and make independent decisions within its 
jurisdiction. As such, Cooperating Agency and the Tribe name are to 
participate in the NEPA process at the earliest appropriate time, 
make staff support available, exchange relevant information 
throughout the EIS process, submit independent recommendations, and 
assist the NIGC in developing responses to subtantive comments 
received on the Draft and Final EIS, as resources allow. Cooperating 
Agency and the Tribe name will be responsible for the preparation of 
any portion of the EA/EIS or related technical reports described 
below in the roles and responsibilities section. In addition, they 
will also have the opportunity to provide comments to the NIGC on 
the other portions of the EA/EIS.
    3. The procedures for EIS project development and interagency 
coordination contained in NEPA; the Clean Water Act--Sections 401, 
402, and 404; the Clean Air Act; Endangered Species Act (ESA); and 
National Historic Preservation Act (NHPA); and other applicable 
environmental laws are incorporated herein by reference.
    4. As appropriate, and to enhance the effectiveness of this MOU, 
the NIGC will work with Cooperating Agency and the Tribe name to 
ensure access to the NIGC expertise, data, information, analyses, 
and comments received. It is understood that any necessary 
communication with the NIGC's EIS consultant will be in coordination 
with the responsible NIGC official.
    5. The Cooperating Agency and the Tribe name will each identify 
a designated Point of Contact (POC) for coordination and consistency 
on this project. Due to the complexity of the project, the agencies 
realize that this is a long-term commitment of resources and will 
make every effort to maintain the same POC through the duration of 
the NEPA process. If reassignment of the POC becomes necessary, the 
agency will notify the MOU signatories of said change. In such 
cases, previous agreements, concurrences, and positions will not be 
revisited unless there is significant new information or significant 
changes to the project, environment, or laws and regulations.
    6. The signatories will ensure that appropriate coordination, 
communication, project updates and status reviews occur, as needed, 
to keep each other current on the project's progress.
    7. The NIGC will appropriately incorporate the comments, 
analysis, recommendations, and/or data submitted by the Cooperating 
Agency and the Tribe name in the Draft and Final EIS, and will 
utilize a systematic, interdisciplinary approach that will ensure 
the integrated use of the submitted material [40 CFR 1501.6(a)(2) 
and 1502.6].
    8. The NIGC will promptly inform Cooperating Agency and the 
Tribe name of all schedule changes that would affect Cooperating 
Agency and the Tribe name's ability to provide timely input for a 
document review. Adequate time will be given for agency reviews 
especially when there is significant new information or significant 
changes to the project, environment, or laws or regulations.
    9. To the maximum extent permitted by applicable federal, 
tribal, or state law, Cooperating Agency and the Tribe name will 
keep confidential and protect from public disclosure any and all 
documents received prior to determination of suitability for public 
review or release under the directives of the Freedom of Information 
Act (FOIA). The Cooperating Agency and the Tribe name will 
coordinate all FOIA requests received on the project with the NIGC 
prior to releasing documents. The NIGC will promptly respond to such 
coordination requests in order to enable the Cooperating Agency and 
the Tribe name to meet its FOIA obligations.
    10. Cooperating Agency the Tribe name agree not to employ the 
services of any representative or party having a financial interest 
in the outcome of the proposed project in a capacity directly 
related to Cooperating Agency and the Tribe name obligations as a 
cooperating agency. Cooperating Agency and the Tribe name will take 
all necessary steps to ensure that no conflict of interest exists 
with its consultants, counsel, or representatives employed in this 
undertaking. [40 CFR 1506.5 (c)] If disclosure statements are 
obtained as a result of contractor or other selection regarding this 
action, copies of the disclosure statements will be forwarded to the 
NIGC.

IV. Roles and Responsibilities

    The NIGC and each of the cooperating agency(s) agree to the 
following roles and responsibilities:
     Follow the procedures as outlined in Section III of 
this MOU.
     Comply with timelines and deadlines as established by 
the NIGC or contact the NIGC as soon as possible if timelines or 
deadlines cannot be met.

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     Act in good faith when conducting cooperating agency 
duties identified within this MOU and the NIGC NEPA Procedures 
Manual.
     Other roles and responsibilities as identified prior to 
signing this MOU.
    All parties will work together to provide oversight, guidance, 
and comment to assure the EIS's consistency for compliance with all 
appropriate federal, tribal, state and local laws, statutes, orders, 
regulations, and guidance within their jurisdiction by law or 
special expertise.

V. Administration

    1. Nothing in this MOU will be construed as affecting the 
authority of any signatory beyond those agreements contained within 
this MOU.
    2. This MOU does not obligate the NIGC to provide funding for 
the [Cooperating Agency Name] and the [Tribe Name] involvement in 
this effort, nor does it require [Cooperating Agency Name] and the 
[Tribe Name] to obligate or expend funds in excess of available 
appropriations.
    3. If a disagreement should develop between the agencies, the 
POC's will expeditiously attempt to resolve the disagreement through 
consensus. If timely amicable resolution is not achieved at the POC 
level, the matter shall be promptly referred to mid-level management 
of these agencies for their participation in the resolution process. 
In the event that mid-level managers are unable to reach a 
satisfactory solution, the persons whose signature appears in 
Section VI of this MOU will work to resolve the dispute.
    4. This MOU shall be terminated when the NIGC issues a Record of 
Decision or for reasons of good cause upon 30 days prior written 
notice. An example of good cause would be the Tribe name withdrawal 
of the proposed action.
    5. Any signatory may request re-negotiation or modification of 
this MOU at any time. All signatories will consider the proposed 
changes, and upon mutual agreement, adopt the proposed changes. The 
signatory that proposed the change shall provide copies of the 
adopted revised MOU to the other signatories.
    6. This MOU shall be incorporated into or referenced in the 
Draft and Final EIS for public review so that each signatory's 
respective roles may be fully understood.

VI. Agreement To Participate in This MOU

------------------------

Name, Chairman
National Indian Gaming Commission

------------------------
Date

------------------------

Name
Cooperating Agency

------------------------
Date

------------------------

Name
Tribal Chairperson/President/etc.
Tribal Name

------------------------
Date

------------------------

Name/Title
Other Cooperating Agencies

------------------------
Date

Appendix C--Third Party Contracting Guidance

C-1: Introduction and Purpose

    According to CEQ regulation (40 CFR 1506.5(c)), an Environmental 
Impact Statement (EIS) must be prepared by the lead agency or an 
environmental consultant/contractor (contractor). The contractor 
must be selected by the lead agency (NIGC). The purpose for the lead 
agency selecting the contractor is to avoid conflicts of interest. 
However, in most cases, the proponent of a project usually pays for 
the contractor's services. This is commonly known as ``Third Party 
Contracting.'' The purpose of this appendix is to provide guidance 
on important issues raised when selecting and using a contractor.

C-2: Scope of Work

    Before a contractor can be selected, a Scope of Work (SOW) must 
be developed. It is important to involve the project proponent in 
the development of a SOW. Both the NIGC, as the lead agency, and the 
Tribe, as the project proponent, should come to terms on what will 
be included in the SOW. The SOW should only contain those tasks the 
NIGC and Tribe have identified as being required to comply with 
NEPA, NIGC procedures contained in this manual, and other laws, and 
keeping of the administrative record during the preparation of the 
EIS. The SOW should not contain any tasks that would be undertaken 
after the EIS is complete and the ROD is issued.
    As a general rule, a SOW should contain the following: An 
introduction of the project, the conceptual design of the proposed 
project, a task-by-task listing of the analysis required to complete 
the EIS, the requirements needed to comply with NEPA, the NIGC 
procedures contained in this manual, and other laws, and the keeping 
of the administrative record. The task(s) that identify the analysis 
should include any specific methodologies that are known to be 
needed. The task(s) should also include the identification of and 
support for meetings, teleconferences, and hearings. The important 
thing to remember when developing a SOW is to include everything 
needed to comply with NEPA. The SOW should provide the flexibility 
to add to or delete tasks identified through the scoping process and 
subsequent development of analysis.
    The SOW should also identify how prospective contractors package 
their proposals. Establishing a single format for proposals will 
make it easier to evaluate each contractor's proposal against the 
others. If a contractor plans to use sub-contractors for some tasks, 
it should be noted in their proposal. It may be necessary for the 
NIGC to consult with the Tribe to identify prospective contractors. 
The SOW will then serve as the backbone of the ``Request for 
Proposal'' (RFP).

C-3: NIGC Evaluation and Selection

    Once all prospective contractors have submitted their proposal 
to prepare the EIS, the NIGC official will review and evaluate each 
proposal. The evaluation can take one or more of the following 
forms: Interviews with the proposed Project Manager, calling 
references, and/or reviewing other EISs they have prepared. The NIGC 
official should develop a ranking system to aid in identifying the 
best contractor candidate. Once the NIGC official has evaluated each 
proposal and ranked it, the contractor should be notified. In 
addition, the Tribe should also be notified. At this point it is 
important for the NIGC official to consult with the Tribe to ensure 
a financial mechanism is in place so as not to delay the start of 
the EIS preparation by the contractor.
    In notifying the Tribe and the contractor, the NIGC official 
should develop a Memorandum of Understanding (MOU). This MOU should 
delineate the roles and responsibilities of the NIGC, the Tribe, and 
the contractor during the preparation of the NEPA analysis and 
documentation. All three parties (the NIGC, the Tribe, and the 
Contractor) should then have the appropriate person with that 
organization sign the MOU.

C-4: Financial and Other Interest Disclosure

    In accordance with 40 CFR 1506.5(c), the contractor is required 
to sign a disclosure form that states their company has no financial 
or other interest in the outcome of the EIS. (See Form on next 
page.) If the contractor plans to use sub-contractors, they are also 
required to sign a disclosure form. These forms must be kept in the 
administrative record.
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[FR Doc. E9-28944 Filed 12-3-09; 8:45 am]
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