[Federal Register Volume 77, Number 99 (Tuesday, May 22, 2012)]
[Pages 30315-30317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12176]



Protocol for Categorical Exclusions Supplementing the Council on 
Environmental Quality Regulations Implementing the Procedural 
Provisions of the National Environmental Policy Act for Certain 
National Indian Gaming Commission Actions and Activities

AGENCY: The National Indian Gaming Commission.

ACTION: Notice of final action and request for comments.


SUMMARY: The National Indian Gaming Commission (NIGC or ``the 
Commission'') has established a protocol that provides for categorical 
exclusions under the National

[[Page 30316]]

Environmental Policy Act of 1969 (NEPA), as amended, Executive Order 
11514, as amended, and Council on Environmental Quality (CEQ) 
regulations for implementing the procedural provisions of NEPA (40 CFR 
parts 1500-1508) for certain NIGC actions.

DATES: Submit comments on or before June 30, 2012. This Protocol is 
immediately effective upon publication. All comments will be reviewed 
and considered to determine whether there is a need for potential 
amendment to the protocol.

ADDRESSES: John R. Hay, Senior Attorney, National Indian Gaming 
Commission, 1441 L Street NW., Suite 9100, Washington, DC 20005; fax at 
(202) 632-7066; or by electronic mail at [email protected].

FOR FURTHER INFORMATION CONTACT: John Hay, Senior Attorney at the 
National Indian Gaming Commission: 202-632-7003 (not a toll-free 

    On December 4, 2009, the Commission published a draft NEPA manual 
in the Federal Register (74 FR 63765) and requested comments by January 
18, 2010. On March 4, 2010 the comment period was extended to April 15, 
2010 (75 FR 3756). The purpose of the manual was to clarify policy and 
procedures to ensure the integration of environmental considerations 
into major federal actions of the NIGC that trigger NEPA review. The 
draft manual identified only one type of major federal action performed 
under the Indian Gaming Regulatory Act (IGRA) that triggered NEPA 
review--approving contracts for the management of Indian gaming 
facilities pursuant to 25 U.S.C. 2711. The draft manual sought to 
clarify the NEPA-related roles and responsibilities and established a 
framework for the preparation and consideration of appropriate NEPA 
    The draft manual also identified several categories of actions 
taken by the NIGC that are categorically excluded from further NEPA 
review. In identifying these categories of actions, the NIGC relied on 
its past experience, several environmental professionals' opinions and 
comparisons with other Federal agency actions that are categorically 
excluded. A copy of the administrative record for the list of 
categorical exclusions is available at http://www.nigc.gov/Reading_Room/Environment_Public_Health_Safety/NEPA_Compliance.aspx.
    After considering the comments received, the Commission has decided 
to establish a protocol that provides for two of the three categories 
of categorical exemptions contained in the draft manual and to continue 
to review comments received on the remainder of the manual. Categorical 
exclusions are actions that do not normally require preparation of an 
Environmental Assessment (EA) or Environmental Impact Statement (EIS), 
absent extraordinary circumstances. None of the public comments on the 
draft manual expressed any concerns or objection to the two categories 
of categorical exclusions set forth below. The Commission hereby adopts 
the protocol set forth for determining whether a categorical exclusion 
applies to particular action as well as the categories of actions the 
Commission has determined are eligible for categorical exclusions.

Regulatory Matters

Regulatory Flexibility Act

    This Protocol will not have a significant economic effect on a 
substantial number of small entities as defined under the Regulatory 
Flexibility Act, 5 U.S.C. 601 et seq. Indian tribes are not considered 
to be small entities for the purposes of the Regulatory Flexibility 

Small Business Regulatory Enforcement Fairness Act of 1996

    This Protocol is not a major rule under 5. U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This Protocol does not 
have an annual effect on the economy of $100 million or more. This rule 
will not cause a major increase in costs or prices for consumers, 
individual industries, Federal, state or local government agencies or 
geographic regions, and does not have a significant adverse effect on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 

Unfunded Mandates Reform Act of 1995

    The Commission, as an independent regulatory agency within the 
Department of the Interior, is exempt from compliance with the Unfunded 
Mandates Reform Act. 2 U.S.C. 1502(1); 2 U.S.C. 658(1).


    In accordance with Executive Order 12630, the Commission has 
determined that this Protocol does not have significant takings 
implications. A takings implication assessment is not required.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of General 
Counsel has determined that the Protocol does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Executive Order.

National Environmental Policy Act

    The Council on Environmental Quality regulations do not direct 
agencies to prepare a NEPA analysis or document before establishing 
Agency procedures that supplement the CEQ regulations for implementing 
NEPA. Agencies are required to adopt NEPA procedures that establish 
specific criteria for, and identification of, three classes of actions: 
those that normally require preparation of an environmental impact 
statement; those that normally require preparation of an environmental 
assessment; and those that are categorically excluded from further NEPA 
review (40 CFR 1507.3(b)). Categorical exclusions are one part of those 
agency procedures, and therefore establishing categorical exclusions 
does not require preparation of a NEPA analysis or document. Agency 
NEPA procedures are procedural guidance to assist agencies in the 
fulfillment of agency responsibilities under NEPA, but are not the 
agency's final determination of what level of NEPA analysis is required 
for a particular proposed action. The requirements for establishing 
agency NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3. The 
determination that establishing categorical exclusions does not require 
NEPA analysis and documentation has been upheld in Heartwood, Inc. v. 
U.S. Forest Service, 73 F. Supp. 2d 962, 972-73 (S.D. Ill. 1999), 
aff'd, 230 F.3d 947, 954-55 (7th Cir. 2000).
    For the reasons set out in the preamble, the National Indian Gaming 
Commission establishes the following Protocol:

Protocol for Categorical Exclusions (CATEX) of Certain Actions

    The use of a CATEX can only be applied to an action if all of the 
following criteria are met:
    1. The responsible NIGC official must determine that the entirety 
of the NIGC action is encompassed by a listed CATEX.
    2. The responsible NIGC official must determine that the action has 
not been segmented in order for the NIGC action to meet the definition 
of an action that can qualify for a CATEX. Segmentation occurs when an 
action is broken into smaller parts in an effort to avoid

[[Page 30317]]

properly documenting impacts associated with the complete action. 
Segmentation also occurs when the NIGC action is too narrowly defined 
and the potential impacts are minimized in order to avoid a higher 
level of NEPA documentation. Connected and cumulative actions must be 
considered (See 40 CFR 1508.25).
    3. The responsible NIGC official must determine if the NIGC action 
will involve any extraordinary circumstances that would prevent the use 
of a categorical exclusion.

Categorical Exclusions

    The NIGC, based on past experience with similar actions, has 
determined that the following types of actions are categorically 
excluded and do not require the preparation of an EA or EIS because 
they will not individually or cumulatively result in a significant 
impact on the human environment. The federal actions listed under 
Category 1 and 2 below, meet the criteria established in 40 CFR 1508.4.
    CATEGORY 1--Administrative and Routine Office Activities:
    A. Normal personnel, fiscal, and administrative activities 
involving personnel (recruiting, hiring, detailing, processing, paying, 
supervising and records keeping).
    B. Preparation of administrative or personnel-related studies, 
reports, or investigations.
    C. Routine procurement of goods and services to support operations 
and existing infrastructure, including routine utility services and 
contracts, conducted in accordance with applicable procurement 
regulations, executive orders, and policies (e.g. Executive Order 
    D. Normal administrative office functions (record keeping; 
inspecting, examining, and auditing papers, books, and records; 
processing correspondence; developing and approving budgets; setting 
fee payments; responding to request for information).
    E. Routine activities and operations conducted on or in an existing 
structure that are within the scope and compatibility of the present 
functional use of the building, will not result in a substantial 
increase in waste discharge to the environment, will not result in 
substantially different waste discharges from current or previous 
activities, and will not result in emissions that exceed established 
permit limits, if any. In these cases, a Record of Environmental 
Consideration (REC), documentation is required.
    F. NIGC training in classrooms, meeting rooms, gaming facilities, 
or via the Internet.
    CATEGORY 2--Regulation, Monitoring and Oversight of Indian Gaming 
    A. Promulgation or publication of regulations, procedures, manuals, 
and guidance documents necessary for NICG's oversight of Indian Gaming 
Facilities and intra-agency operations at existing facilitates.
    B. Support of compliance and enforcement functions by conducting 
compliance training for tribal gaming regulators and managers in 
classrooms, meeting rooms, gaming facilities, or via the Internet.
    C. Preparing and issuing subpoenas, holding hearings, and taking 
depositions for informational gathering purposes, not associated with 
administrative enforcement actions.

Extraordinary Circumstances for Categorical Exclusions

    Some types of actions that would normally be categorically excluded 
may not qualify for a CATEX because an extraordinary circumstance 
exists (See 40 CFR 1508.4). The responsible NIGC official must evaluate 
each proposed action and use best professional judgment to determine if 
it meets the CATEX requirements described above and does not have any 
extraordinary circumstances. If the proposed action has one or more of 
the following conditions, extraordinary circumstances exist and the 
action cannot be categorically excluded:
    A. There is a reasonable likelihood the proposed action/project 
will have a significant impact on public health or safety.
    B. There is a reasonable likelihood the proposed action/project 
would involve effects on the environment that involve risks that are 
highly uncertain, unique, or are scientifically controversial.
    C. There is a reasonable likelihood the proposed action/project 
would violate one or more federal, tribal, state, or local 
environmental laws/regulations/orders.
    D. There is a potential that the proposed action/project will have 
an adverse effect on a property or structure eligible for listing or 
listed on the National Register of Historical Places, including 
degradation of scientific, cultural, or historic resources protected by 
the National Historic Preservation Act of 1966, as amended, requiring 
    E. There is a potential that the proposed action/project will have 
a significant impact on natural, ecological, or scenic resources of 
federal, tribal, state and/or local significance. These resources 
include federal or state listed endangered, threatened, or candidate 
species or designated or proposed critical habitat under the Endangered 
Species Act (ESA); resources protected by Costal Zone Management Act 
(CZMA); resources protected by the Fish and Wildlife Coordination Act; 
prime, unique, tribal, state or locally important farmlands; and 
federal or state listed wild or scenic rivers, requiring consultation.
    F. There is a reasonable likelihood the proposed action/project 
will have effects that are highly controversial on environmental 

Categorical Exclusion Documentation

    The purpose of categorical exclusions is to reduce paperwork and 
delay. The NIGC is not required to repeatedly document actions that 
qualify for a categorical exclusion and do not involve an extraordinary 
circumstance (See 40 CFR 1500.4(p)).
    The NIGC will document its decision to treat a particular action as 
categorically excluded from further NEPA review, when the CATEX applied 
specifically requires the preparation of a REC. In those cases, a REC 
will include:
    [ssquf] A complete description of the proposed action/project.
    [ssquf] The CATEX relied upon, including a brief discussion of why 
there are no extraordinary circumstances.
    [ssquf] Supplemental documentation that supports the conclusions in 
the narrative. Examples include exhibit(s) showing boundaries of 
historical or archeological site(s) previously identified near the 
proposed project, documentation from the U.S. Fish and Wildlife Service 
noting that no endangered species or habitat is present near the 
proposed project, evidence that the proposed project site is located 
outside any non-attainment area(s), etc. In some cases, a ``no effect'' 
determination from the State Historic Preservation Office or Tribal 
Historic Preservation Office may be required.
    [ssquf] The following statement: I certify that, to the best of my 
knowledge, the information provided is the best available information 
and is accurate.
    [ssquf] A signature from an environmental professional with a 
signature block that includes the professional's credentials.

    Dated: May 1, 2012.
Tracie Stevens,
Steffani Cochran,
Daniel Little,
[FR Doc. 2012-12176 Filed 5-21-12; 8:45 am]