[Federal Register: October 18, 2007 (Volume 72, Number 201)]
[Proposed Rules]
[Page 59044-59050]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18oc07-19]
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DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
25 CFR Parts 502, 522, 559 and 573
RIN 3141-AA23
Facility License Standards
AGENCY: National Indian Gaming Commission (``NIGC'' or ``Commission'').
ACTION: Proposed rules.
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SUMMARY: The proposed rules add new sections and a new part to the
Commission's regulations in order to ensure that each place, facility
or location where class II or class III gaming will occur is located on
Indian lands eligible for gaming as required by the Indian Gaming
Regulatory Act. The rules are also intended to ensure that gaming
facilities are constructed, maintained and operated in a manner that
adequately protects the environment and the public health and safety.
DATES: Submit comments on or before December 3, 2007.
ADDRESSES: Comments can be mailed, faxed, or e-mailed. Mail comments to
``Comments on Facility Licensing Standards,'' National Indian Gaming
Commission, 1441 L Street, NW., Washington, DC 20005, Attn: Jerrie
Moore, Legal Assistant. Comments may be faxed to 202-632-7066 (not a
toll-free number). Comments may be sent electronically to
licensing_regulations@nigc.gov.
FOR FURTHER INFORMATION CONTACT: Penny J. Coleman, Acting General
Counsel, at (202) 632-7003; fax (202) 632-7066 (not toll-free numbers).
SUPPLEMENTARY INFORMATION:
I. Background
On October 17, 1988, Congress enacted the Indian Gaming Regulatory
Act (``IGRA'' or ``Act''), 25 U.S.C. 2701-21, creating the National
Indian Gaming Commission (``NIGC'' or ``Commission'') and developing a
comprehensive framework for the regulation of gaming on Indian lands.
25 U.S.C. 2702. The NIGC was granted, among other things, oversight and
enforcement authority, including the authority to monitor tribal
compliance with the Act, Commission regulations, and tribal gaming
ordinances.
First, the IGRA allows gaming on Indian lands pursuant to 25 U.S.C.
2703(4), although it contains a general prohibition against gaming on
lands acquired into trust by the United States for the benefit of the
tribe after the Act's effective date of October 17, 1988, unless one of
several exceptions are met. 25 U.S.C. 2719. The Commission has
jurisdiction only over gaming operations on Indian lands and therefore
must establish that it has jurisdiction as a prerequisite to its
monitoring, enforcement, and oversight duties. 25 U.S.C. 2702(3).
Second, the NIGC needs to obtain information on a tribe's
environmental and public health and safety laws to oversee the
implementation of approved tribal gaming ordinances. Before opening a
gaming operation, a tribe must adopt an ordinance governing gaming
activities on its Indian lands. 25 U.S.C. 2710. The Act specifies a
number of mandatory provisions to be contained in each tribal gaming
ordinance and subjects such ordinances to agency review and the NIGC
Chairman's approval. Id. Approval by the Chairman is predicated on the
inclusion of each of the specified mandatory provisions in the tribal
gaming ordinance. Id. Among these is a requirement that the ordinance
must contain a provision ensuring that ``the construction and
maintenance of the gaming operation, and the operation of that gaming
is conducted in a manner that adequately protects the environment and
the public health and safety.'' 25 U.S.C. 2710(b)(2)(E). Since 1993,
when the Commission became operational, the Chairman has required each
tribal gaming ordinance submitted for approval to include the express
environmental and public health and safety statement set out in 25
U.S.C. 2710(b)(2)(E).
The Commission recognizes that tribal governments, as an incident
of inherent tribal sovereignty, have broad autonomy and authority over
internal tribal affairs, including, in particular, matters pertaining
to tribal lands and the health and welfare of the people and the
community. Moreover, the Commission is aware that the principle of
tribal self-determination is a cornerstone of federal Indian law and
policy and has remained so for more than a quarter century.
The Commission believes that tribes must have some form of basic
laws in the following environmental and public health and safety areas:
(1) Emergency preparedness, including but not limited to fire
suppression, law enforcement and security; (2) food and potable water;
(3) construction and maintenance; (4) hazardous materials; and (5)
sanitation (both solid waste and wastewater). Accordingly, in 2002, the
Commission issued an interpretive rule for environment, public health,
and safety. 67 FR 46,109 (Jul. 12, 2002) (``Interpretive Rule'').
The NIGC has conducted many environment and public health and
safety inspections since the issuance of the Interpretive Rule and has
worked with a consultant to allow the agency to gain expertise in this
area. Through this inspection process, the NIGC has identified
weaknesses in tribal laws or enforcement thereof and has worked with
tribes to cure deficiencies.
The Commission respects the rights of tribes to develop their own
laws and be
[[Page 59045]]
governed by them. These rights must be viewed in conjunction with the
IGRA mandate that the tribal governments and the NIGC have a
responsibility to the gaming public and to gaming operation employees
to ensure that their operations do not pose a risk to the health or
safety of the public or the environment. 25 U.S.C. 2710(b)(2)(E); 25
CFR part 580.
In the years since the adoption of the Interpretive Rule, the
Commission has identified several deficiencies in it. Namely, the
Interpretive Rule does not assist the Commission in identifying what
environmental and public health and safety laws apply to each gaming
operation nor ensure that tribal gaming regulatory authorities are
enforcing those laws. There is a need for a submission to the
Commission of a certification by the tribe that it has identified laws
applicable to its gaming operation and is in compliance with them
together with a document listing those laws. A certification process
would help tribes and the Commission to identify problem areas where
laws are needed so that the NIGC may offer technical advice and
encourage adoption and enforcement of appropriate laws. The new rules
proposed today would not replace the Interpretive Rule but would work
in conjunction with it.
II. Development of the Proposed Rules Through Consultation With Indian
Tribes
The Commission identified a need for facility license standards to
address Indian lands and environmental and public health and safety
concerns in 2005. In accordance with its government-to-government
consultation policy, 69 FR 16,973 (Mar. 31, 2004), the Commission
consulted with Indian tribes so they could provide early and meaningful
input regarding formulation of the proposed rules. Before it began
drafting the proposed rules, the Commission advised tribes of its
intent to create standards and asked tribes for comments and
suggestions on licensing regulations covering both Indian lands and
environmental and public health and safety standards at consultation
sessions around the country beginning in October of 2005.
Thereafter, the Commission prepared draft facility licensing
regulations covering Indian lands and environmental and public health
and safety standards. A copy of the draft regulations was sent to
leaders of all gaming tribes for comment on May 12, 2006. The NIGC also
posted the draft on its Web site, http://www.nigc.gov, for public
comment. Fifty-six tribes provided written comments. In addition,
between May 12, 2006, and March 20, 2007, the Commission invited 309
tribes to meet with it in consultation asking, among other matters, for
comment on the draft regulations. While some tribes declined the
Commission's invitations, the Commission conducted over 53 separate
government-to-government consultation meetings with individual tribes
and their leaders or representatives.
The comments and suggestions received were carefully reviewed, and
as a result, the Commission decided to redraft the regulations. Tribes
questioned the NIGC's authority to issue the regulations for tribes
conducting class III gaming and the NIGC's authority to issue
regulations in this area overall. Tribes also challenged the first
draft as unduly onerous and costly. The first draft applied to open as
well as new gaming operations and required tribes to submit a signed
legal opinion finding that the site was on IGRA Indian lands; a
certification that the gaming site was on Indian lands; plat maps;
copies of trust deeds; copies of any court decisions, settlement
agreements, Congressional acts, Executive Orders, or Secretarial
proclamations or decisions affecting title or ownership of the land;
documentation on site ownership and leasehold interests; and
documentation the site was located within reservation boundaries or was
within tribal jurisdiction and the tribe exercised governmental power
over it. The first draft had also required tribes to submit the table
of contents of each applicable environmental and public health and
safety law. The Commission agreed that the requirements to submit a
signed legal opinion on the Indian lands status of gaming lands and the
table of contents for each applicable environmental and public health
and safety law would be unduly burdensome and expensive and therefore
removed them.
The Commission sent a revised draft to leaders of all gaming tribes
for comment on March 21, 2007, and posted the draft on its Web site,
asking for comments by May 15, 2007. NIGC Press Release PR-63 06-2007.
The comment period deadline was subsequently extended to May 30, 2007.
NIGC Press Release PR-65 08-2007. The NIGC posted the initial request
for comments and the extension letter on its Web site in order to
obtain additional public comment. In addition, the Commission invited
273 tribes to meet with it in consultation asking, among other matters,
for comment on the regulations. While some tribes declined the
Commission's invitations, between March 20, 2007, and July 31, 2007,
the Commission conducted over 60 separate government-to-government
consultation meetings with individual tribes and their leaders or
representatives. Tribes submitted 78 comments to the revised draft.
Comments on the revised draft were again carefully reviewed and
considered by the Commission in formulating these proposed regulations.
Tribes continued to question the NIGC's authority to issue the
regulations. The Commission, however, continues to believe it has
authority to issue licensing standards, determine whether a site
constitutes Indian lands, and ensure tribal compliance with the
environmental and public health and safety provision of the IGRA. The
NIGC noted the continued concern of many tribes regarding the Indian
lands submission burden and has substantially lessened the burden in
the proposed rules published today as well as limited the submission
requirements for this regulation to new gaming operations. The NIGC has
therefore substantially reduced the Indian lands collection while
requiring tribes to submit additional documentation if necessary.
The second draft also required all gaming tribes to amend their
gaming ordinances within two years of the effective date of the
regulations in order to incorporate specific environmental and public
health and safety provisions into their gaming ordinance. The NIGC
concurs with the commentators that the ordinance amendment concept is
unnecessary and would prove unduly burdensome and costly both to the
tribes and the agency and has removed this provision.
Tribes also commented that submission of a certification that the
tribe is in compliance with applicable environmental and public health
and safety laws and a list of those laws was burdensome and an
infringement on tribal sovereignty. The Commission believes that the
environmental and public health and safety requirements do not infringe
on tribal sovereignty and are not unduly onerous. The requirements for
environmental and public health and safety certifications and lists of
laws appear to have been misconstrued as the regulations do not require
tribes to adopt any specific laws or send in all of their laws, but are
meant to keep the NIGC current on the status of the tribes' laws.
As of the date of publication, the Commission has to date conducted
over 113 separate government-to-government consultation meetings with
individual tribes and their leaders or representatives and received
many
[[Page 59046]]
written comments on its drafts. Through these consultations, the
Commission actively endeavored to provide all tribes with a reasonable
and practical opportunity to meet and consult with the Commission on a
government-to-government basis and provide early and meaningful tribal
input regarding the formulation and implementation of these proposed
rules.
III. Purpose and Scope
The proposed rules are intended to ensure that each place,
facility, or location where class II or class III gaming will occur is
located on Indian lands eligible for gaming under the IGRA. The
proposed rules are also intended to assure that gaming facilities are
constructed, maintained, and operated in a manner that adequately
protects the environment and public health and safety. In addition, the
proposed rules will allow the Commission to track the opening and
closing of tribal gaming facilities. Each gaming place, facility, or
location where a tribe conducts, or intends to conduct, class II or
class III gaming pursuant to the IGRA would be subject to the proposed
rules.
IV. Ordinance Submission Requirements of 25 CFR Part 522
The IGRA requires that gaming be on Indian lands eligible for
gaming under the Act and that a tribe include in its ordinance a
provision that ``construction and maintenance of the gaming facility,
and the operation of that gaming is conducted in a manner which
adequately protects the environment and the public health and safety.''
25 U.S.C. 2710(b)(2)(E). The addition of paragraph (i) to 25 CFR 522.2,
concerning ordinance submission requirements, directs that a tribe
shall provide any Indian lands or environmental and public health and
safety documentation that the Chairman requests at his or her
discretion as needed.
V. Definitions for 25 CFR Part 502
The Commission proposes definitions for terms not previously
defined in its regulations. These definitions would have general
application to all of the NIGC regulations where the terms are used.
In the proposed rule, the Commission defines the term ``facility
license'' to clarify the term used in 25 U.S.C. 2710(b)(1), which
requires a tribe to issue a separate license for each place, facility,
or location on Indian lands at which class II or class III gaming is or
will be conducted.
The Commission also proposes to define the requirement in 25 U.S.C.
2710(b)(2)(E) that a tribal gaming ordinance must contain a provision
ensuring that ``the construction and maintenance of the gaming
operation, and the operation of that gaming is conducted in a manner
that adequately protects the environment and the public health and
safety.'' The Commission clarifies that this term means a tribe has
identified and is enforcing laws applicable to its gaming operations in
the areas of emergency preparedness, food and potable water,
construction and maintenance, hazardous materials, and sanitation.
VI. Facility License Notifications, Renewals, and Submissions
Proposed 25 CFR part 559 sets forth standards for renewal of gaming
facility licenses, standards for notification to the Commission when a
facility license is renewed or terminated, and standards for
notification to the Commission prior to the licensing and opening of
new gaming facilities.
A tribe would submit a notice to the Chairman that it is
considering issuing a facility license to a new facility at least one
hundred and twenty (120) days before opening. The notice would contain
the name, address, legal description and tract number of the property.
Other information would be required if the deed for the property is not
maintained by the Bureau of Indian Affairs, Department of the Interior.
In that case, the tribe would submit a copy of the deed and
documentation of the property's ownership. Charitable events lasting
not more than one week would be excluded from this requirement.
In addition, proposed part 559 would require renewals of facility
licenses at least once every three years. A copy of each facility
license would be sent to the Chairman within thirty days of issuance,
with a supporting certification that the tribe has identified and
enforces applicable environmental and public health and safety laws and
a list of those laws. The Chairman has discretion to request additional
Indian lands or environmental and public health and safety
documentation as needed. Further, a tribe would notify the Chairman if
a facility license is terminated or not renewed, or if the facility
closes.
VII. Order of Temporary Closure
Proposed 25 CFR 573.6(a)(4) amends the current regulation, which
already allows the Chairman to order temporary closure of a facility
when a gaming facility operates without a license from a tribe. The
amendment would correct the faulty citation to be replaced with the
correct citation. The amended rule would also allow the Chairman to
issue an order of temporary closure if a gaming facility operates
without a facility license in violation of proposed rule 25 CFR part
559.
Regulatory Matters
Regulatory Flexibility Act
The proposed rules 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. Moreover, Indian tribes are not
considered to be small entities for the purposes of the Regulatory
Flexibility Act.
Small Business Regulatory Enforcement Fairness Act
The proposed rules are not a major rule under 5 U.S.C. 804(2), the
Small Business Regulatory Enforcement Fairness Act. The rules do not
have an annual effect on the economy of $100 million or more. The rules
will not cause a major increase in costs or prices for consumers,
individual industries, Federal, state or local government agencies or
geographic regions and do 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
enterprises.
Unfunded Mandates Reform Act
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). Regardless, the
proposed rules do not impose an unfunded mandate on state, local, or
tribal governments or on the private sector of more than $100 million
per year. Thus, it is not a ``significant regulatory action'' under the
Unfunded Mandates Reform Act.
Takings
In accordance with Executive Order 12630, the Commission has
determined that the proposed rules do 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 proposed rules do not unduly burden the
judicial system and meet the requirements of sections 3(a) and 3(b)(2)
of the Order.
[[Page 59047]]
National Environmental Policy Act
The Commission has determined that the proposed rules do not
constitute a major federal action significantly affecting the quality
of the human environment and that no detailed statement is required
pursuant to the National Environmental Policy Act of 1969, 42 U.S.C.
4321, et seq.
Paperwork Reduction Act
The proposed rules require information collection under the
Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq., and are
subject to review by the Office of Management and Budget. The title,
description, and respondent categories are discussed below, together
with an estimate of the annual information collection burden.
With respect to the following collection of information, the
Commission invites comments on: (1) Whether the proposed collection of
information is necessary for proper performance of its functions,
including whether the information would have practical utility; (2) the
accuracy of the Commission's estimate of the burden of the proposed
collection of information, including the validity of the methodology
and assumptions used; (3) ways to enhance the quality, utility, and
clarity of the information to be collected; and (4) ways to minimize
the burden of the collection of information on respondents, including
the use of automated collection techniques, when appropriate, and other
forms of information technology.
Title: Indian Gaming Facility Documentation and Certification,
proposed 25 CFR part 559.
Summary of information and description of need:
The IGRA establishes that Indian gaming may be conducted only on
Indian lands. 25 U.S.C. 2703(4), 2710(a)(1), 2710(b)(1), 2710(d)(1).
The IGRA further provides that the Indian lands outside of a tribe's
reservation boundaries as of the effective date of the Act, October 17,
1988, must be held in trust by the United States for the tribe or
tribal member(s) as of October 17, 1988. 25 U.S.C. 2719(a). If not, the
site must meet one of the exceptions from 25 U.S.C. 2719(b). To carry
out its regulatory requirements, the Commission must know the status of
lands where tribal gaming is occurring. Without the required showing
that gaming is conducted on ``Indian lands,'' it is unclear whether the
NIGC or the State exercises jurisdiction over the gaming.
In addition, a September 2005 report by the Office of Inspector
General (``OIG'') for the United States Department of the Interior
(``DOI'') recommended that the NIGC establish a process by which tribes
that have taken land into trust since 1988 certify the lands' status
and establish and maintain a database containing eligibility
information and/or lands determinations for all Indian gaming
operations. The NIGC has established an Indian lands database and seeks
to populate the database with information on new gaming facilities. The
data will be utilized for internal reporting and recordkeeping
purposes; to determine jurisdiction and legality of gaming; and to
respond to inquiries from other government agencies and Congress
regarding where Indian gaming is occurring and proposed. Any public
requests for information contained in the database will be subject to
the Freedom of Information Act, 5 U.S.C. 552, the Privacy Act of 1974,
5 U.S.C. 552a, and 25 U.S.C. 2716.
Proposed section 559.2 requires that a tribe submit a notice to the
NIGC at least one hundred and twenty (120) days before a new gaming
facility will be opened, alerting the agency that a facility license is
under consideration. The notice will contain the name and address of
the property; the legal description of the property; a copy of any
deeds or trust documents to the property if not maintained by the
Bureau of Indian Affairs, Department of the Interior (``BIA''), the
tract number for the property as assigned by the BIA Land Title Records
Offices (``LTRO''), or a short explanation as to why no deed exists;
and documentation on the property's ownership if not maintained by the
BIA.
The notice and its information provide necessary data without which
the NIGC is unable easily to identify the site or to verify that a
gaming site will be on eligible Indian lands pursuant to the IGRA and
enter that information into the agency's Indian lands database.
First, the name and address of the future facility are needed by
the NIGC in order to identify the site and are needed for the agency's
Indian lands database. Second, the NIGC is constrained in its attempts
to research the gaming eligibility status of a site under the IGRA
without a legal description and LTRO tract number. Although many deeds
and ownership documentation are maintained at BIA LTRO, without
information from a tribe regarding the address, legal description, and
tract number of where gaming is to be conducted, the NIGC cannot
reliably or efficiently know which deeds to request. Previous requests
to the BIA indicate that the BIA is often unable to assist the NIGC
without a legal description and tract number of the land. The legal
description and tract number also allow the NIGC to work with the BIA
to verify, for example, whether land is within or contiguous to 1988
reservation boundaries, is within an Oklahoma former reservation, or is
within the last reservation boundaries not in Oklahoma. See 25 U.S.C.
2703(4), 2719. Third, the NIGC is requesting that tribes submit deeds
not maintained by the BIA. Tribes often operate their own real estate
offices and maintain their trust deeds themselves. If no deed was ever
issued for the property, the tribe is in the best position to explain
why no deed was issued. Moreover, if land is owned in fee, the tribe
should have obtained a copy of the deed in the course of developing the
new project. Documentation of ownership indicates that the land is
owned by the tribe or a tribal member and is an indication of
jurisdiction. A tribe is required to have jurisdiction and exercise
governmental power over its gaming lands. See 25 U.S.C. 2703(4),
2710(b)(1). The Commission presumes that a tribe has both jurisdiction
and exercises governmental power on its reservation lands but needs to
ensure this for all off-reservation sites as they are threshold
requirements for tracts to be considered Indian lands. 25 U.S.C.
2703(4), 2710, and 2719.
Proposed part 559 also requires that each gaming facility license
be renewed at least once every three years and that a tribe must submit
a copy of each new facility license to the NIGC within 30 days of
issuance. Supporting documentation submitted with the new facility
license includes a tribal certification that a tribe has identified and
enforces the environmental and public health and safety laws applicable
to its gaming operation and a document listing the applicable laws.
The NIGC requires the certification and list of laws in order to
identify what environmental and public health and safety standards
apply to each gaming operation and to ensure that tribal gaming
regulatory authorities are enforcing the standards for the gaming
operations. The certification and list would allow the Commission to
rely on a tribe's assertion that it is in compliance with applicable
laws.
Respondents:
This information request is specific to tribal governments that
operate gaming facilities and to tribal governments considering opening
new gaming facilities in accordance with the IGRA. The maximum number
of potential respondents is approximately 562, the number of federally
recognized Indian
[[Page 59048]]
tribes. See Indian Entities Recognized and Eligible To Receive Services
From the United States Bureau of Indian Affairs, 72 FR 13,648 (Mar. 22,
2007). Currently, approximately 226 tribes operate approximately 419
gaming facilities.
Information Collection Burden:
The proposed rules require tribes opening new gaming facilities to
submit: (1) The facility name; (2) mailing addresses, legal
descriptions, and LTRO tract numbers for the proposed gaming site; and
(3) copy of the trust deed(s) and documentation on site ownership if
not maintained by the BIA. If a tribe maintains its real property deeds
through contract with the BIA, it will have ready access to the legal
description and LTRO tract number. There could be some burden on the
tribe to learn the legal description of the property. The legal
description can be obtained from the county recorder's office, through
working with the BIA, or from the tribe's own realty office. There
would also be a minimal burden on the tribe to locate a copy of a deed
or to write a brief explanation that no deed was ever issued for the
property in the rare instances where this is so on tribal reservation
lands. Likewise, there would be a burden on tribes to provide
documentation of ownership if not maintained by the BIA. Such
documentation can be obtained from the county recorder's office or from
the tribe's own realty office if contracted to maintain such
information. The NIGC believes that providing a legal description, LTRO
tract number, trust deed, or land ownership information could require
investment of time only. This portion of the information request will
not be recurring and tribes will only be required under this proposed
rule to comply with the information request if they plan on opening a
new tribal facility. In general, the NIGC believes tribes wishing to
open gaming establishments on fee lands would need to obtain this
information as part of the normal course of business. Therefore, the
Indian lands portion of the rule would add only limited additional
expense to Indian gaming operations.
The proposed rule further requires submission at least once every
three years of: (1) A copy of each gaming site's facility license; and
(2) a tribal certification that it has identified and is in compliance
with applicable environment and public health and safety laws. The
document listing the applicable laws must be included with the first
submission only. After that, if no changes are made to the list, the
tribe only needs to certify to the NIGC that no substantial
modifications were made to the list. The NIGC believes that there will
be minimal burden for a tribe to identify the laws applicable to its
gaming operation. Tribes should already be aware of and enforcing laws
applicable to their gaming operations so the time and cost associated
with a certification and list of laws should be minimal. One-time costs
may be incurred by tribal governments drafting and adopting laws if
there are none in the identified areas.
Over the past year, the Commission requested Indian lands
information from several tribes for existing facilities. The
information collection there was substantially greater than that
contained in the proposed rule. The NIGC had asked tribes to provide a
legal description, a copy of the trust deed, a map of the property,
documentation from the BIA on its decision to take the land into trust,
and a legal analysis of why each open tribal gaming site qualified as
Indian lands eligible for gaming under the IGRA. Tribes reported that
the collection took approximately 4 hours if the information had
already been compiled. Tribes conducting gaming on pre-IGRA trust lands
estimated 20 hours of response time and tribes gaming under an
exception in 25 U.S.C. 2719(b) estimated up to 80 hours of response
time with an average estimated range of costs for each facility of
approximately $350 (20 hours x $17.50) to $1,400 (80 hours x $17.50).
The Commission expects that the most of the response time and cost will
be eliminated under the current information request as the NIGC is
requesting only name and address of the property; the legal description
of the property; a copy of any deeds to the property if not maintained
by the BIA, or a short explanation as to why no deed exists; and
documentation on the property's ownership if not maintained by the BIA.
The Commission estimates that the hour burden will drop to 2 hours at a
cost of $35 (2 x $17.50) under the proposed rule if the BIA maintains
the deed and documentation of site ownership, going up to 10 hours at a
cost of $175 (10 x $17.50) if the BIA does not maintain such
information. The NIGC expects to work with the BIA to establish a
process for obtaining lands information that is held by the BIA.
Additionally, under the proposed rule, the Commission's collection
of information on Indian lands would require submission of information
on future facilities; it is unlikely that a tribe would have to provide
information on more than one facility at a time or very many times over
the course of several years.
The Commission has requested copies of environmental and public
health and safety laws from many tribes in preparation for inspections
under the Interpretive Rule, 67 FR 46,109 (Jul. 12, 2002), but has not
asked tribes to report the time required to provide the information.
This information collection request is for a copy of each gaming site's
facility license, a tribal certification that it has identified and is
in compliance with applicable environment and public health and safety
(``EPHS'') laws, and a document listing the titles of those laws other
than federal laws.
The NIGC believes that there will be minimal burden for a tribe to
identify the laws applicable to its gaming operation, other than
federal laws, in the areas of emergency preparedness, food and water,
construction and maintenance, hazardous materials, and sanitation.
Tribes should already be aware of and enforcing laws applicable to
their gaming operations so time and cost associated with a
certification and list of laws should be minimal. The estimated hour
burden of assembling EPHS laws and creating a list is 3-8 hours, or
approximately $52.50 (3 x 17.50) to $140 (8 x $17.50) depending on
whether the tribe already maintains such a list.
Once every three years, a tribe could incur costs of hiring
consultants, attorneys, engineers, or inspectors to certify compliance
with applicable EPHS laws, and this is estimated to be $1,000 to $7,000
for inspection and certification. One estimate was for a series of
inspectors over 3-5 days at a total cost of $5,000-$7,000.
Potentially, a few tribes will have to make significant changes to
their infrastructure before a certificate of compliance can be issued.
In such cases, the costs may be estimated as ranging from $40,000 to
$250,000 and include ongoing compliance costs in addition to inspection
costs. The wide range of costs depends on whether a tribe has already
developed and identified applicable EPHS laws and has an ongoing
program aimed at assuring the public health and safety. The higher cost
estimates came from operations with full-time EPHS employees and
represent the overall cost of the tribe's EPHS program rather than
simply costs associated with inspection and certification. Operations
with full-time EPHS employees pay for them as part of the overall cost
of the tribe's EPHS program rather than as costs associated with
inspection and certification. The costs associated with the customary
and usual business practice of maintaining EPHS and fixing code
violations are not
[[Page 59049]]
a direct result of a certification requirement, but rather required
already by tribal laws, including the tribal gaming ordinance, which
requires a tribe to construct, maintain, and operate its gaming
facilities in a manner that protects the public pursuant to 25 U.S.C.
2710(b)(2)(E). The hour cost of having the appropriate tribal entity
create a certification after the inspections is estimated at 2 hours
for a cost of $35 (2 x $17.50).
Also, if a tribe does not have laws in one of the enumerated areas,
it may require employment of an attorney or other specialist to
research other laws in this area and may require the attorney to draft
tribal law if the tribe opts not to adopt a uniform code or law of
another jurisdiction. The NIGC estimates the cost for this as
approximately $5,000-$10,000.
The proposed rule also requires an information collection if a
facility license is terminated or not renewed or if a gaming place,
facility, or location closes. The NIGC believes the tribe will create
documentation for this through governmental meeting minutes or through
a notification to the gaming operation and need only forward a copy of
that information to the Commission. The estimated hour burden of
forwarding this information to the Commission is a half hour for
approximately $8.75 (.5 x $17.50).
Comments: Pursuant to the Paperwork Reduction Act, 44 U.S.C.
3507(d), the Commission has submitted a copy of this proposed rule to
OMB for its review and approval of this information collection.
Interested persons are requested to send comments regarding the burden,
estimates, or any other aspect of the information collection, including
suggestions for reducing the burden: (1) Directly to the Office of
Information and Regulatory Affairs, OMB, Attn: Desk Officer for the
National Indian Gaming Commission, 725 17th Street NW., Washington, DC
20503; and (2) to Penny J. Coleman, Acting General Counsel, National
Indian Gaming Commission, 1441 L Street, NW., Suite 9100, Washington,
DC 20005 or via fax (202) 632-7066 (not a toll-free number) or via e-
mail at licensing_regulations@nigc.gov. Comments are due November 19,
2007.
List of Subjects in 25 CFR Parts 502, 522, 559, and 573
Gambling, Indians--lands, Indians--tribal government, Reporting and
recordkeeping requirements.
Text of the Proposed Rules
For the reasons set forth in the preamble, the Commission proposes
to amend its regulations at 25 CFR Chapter III as follows:
PART 502--DEFINITIONS OF THIS CHAPTER
1. The authority citation for part 502 continues to read as
follows:
Authority: 25 U.S.C. 2701 et seq.
2. Add new Sec. 502.22 to read as follows:
Sec. 502.22 Construction and maintenance of the gaming facility, and
the operation of that gaming is conducted in a manner which adequately
protects the environment and the public health and safety.
Construction and maintenance of the gaming facility, and the
operation of that gaming is conducted in a manner which adequately
protects the environment and the public health and safety means a tribe
has identified and enforces laws, resolutions, codes, policies or
procedures applicable to each gaming place, facility or location that
protect the environment and the public health and safety, including
standards negotiated under a tribal-state compact. Laws, resolutions,
codes, policies or procedures in this area shall cover, at a minimum:
(a) Emergency preparedness, including but not limited to fire
suppression, law enforcement, and security;
(b) Food and potable water;
(c) Construction and maintenance;
(d) Hazardous materials;
(e) Sanitation (both solid waste and wastewater); and
(f) Other environmental or public health and safety standards
adopted by the tribe in light of climate, geography, and other local
conditions and applicable to its gaming facilities, places or
locations.
3. Add new Sec. 502.23 to read as follows:
Sec. 502.23 Facility license.
Facility license means a separate license issued by a tribe to each
place, facility, or location on Indian lands where the tribe elects to
allow class II or III gaming.
PART 522--SUBMISSION OF GAMING ORDINANCE OR RESOLUTION
4. The authority citation for part 522 continues to read as
follows:
Authority: 25 U.S.C. 2706, 2710, 2712.
5. Add new paragraph (i) to Sec. 522.2 to read as follows:
Sec. 522.2 Submission requirements.
(i) A tribe shall provide Indian lands or environmental and public
health and safety documentation that the Chairman may in his or her
discretion request as needed.
6. Add new part 559 to read as follows:
PART 559--FACILITY LICENSE NOTIFICATIONS, RENEWALS, AND SUBMISSIONS
Sec.
559.1 What is the scope and purpose of this part?
559.2 When must a tribe notify the Chairman that it is considering
issuing a new facility license?
559.3 How often must a facility license be renewed?
559.4 When must a tribe submit a copy of a facility license to the
Chairman?
559.5 What must a tribe submit to the Chairman with the copy of each
facility license that has been issued?
559.6 Does a tribe need to notify the Chairman if a facility license
is terminated or not renewed or if a gaming place, facility, or
location closes?
559.7 May the Chairman request Indian lands or environmental and
public health and safety documentation regarding any gaming place,
facility, or location where gaming will occur?
559.8 May a tribe submit documents required by this part
electronically?
Authority: 25 U.S.C. 2701, 2702(3), 2703(4), 2705, 2706, 2710
and 2719.
Sec. 559.1 What is the scope and purpose of this part?
(a) The purpose of this part is to ensure that each place,
facility, or location where class II or III gaming will occur is
located on Indian lands eligible for gaming and that the construction
and maintenance of the gaming facility, and the operation of that
gaming is conducted in a manner which adequately protects the
environment and the public health and safety pursuant to the Indian
Gaming Regulatory Act.
(b) Each gaming place, facility, or location conducting class II or
III gaming pursuant to the Indian Gaming Regulatory Act or on which a
tribe intends to conduct class II or III gaming pursuant to the Indian
Gaming Regulatory Act is subject to the requirements of this part.
Sec. 559.2 When must a tribe notify the Chairman that it is
considering issuing a new facility license?
(a) A tribe shall submit to the Chairman a notice that a facility
license is under consideration for issuance at least 120 days before
opening any new place, facility, or location on Indian lands where
class II or III gaming will occur. The notice shall contain the
following:
[[Page 59050]]
(1) The name and address of the property;
(2) A legal description of the property;
(3) The tract number for the property as assigned by the Bureau of
Indian Affairs, Land Title and Records Offices;
(4) If not maintained by the Bureau of Indian Affairs, Department
of the Interior, a copy of the trust or other deed(s) to the property
or an explanation as to why such documentation does not exist; and
(5) If not maintained by the Bureau of Indian Affairs, Department
of the Interior, documentation of the property's ownership.
(b) A tribe does not need to submit to the Chairman a notice that a
facility license is under consideration for issuance for occasional
charitable events lasting not more than a week.
Sec. 559.3 How often must a facility license be renewed?
At least once every three years, a tribe shall issue a separate
facility license to each existing place, facility or location on Indian
lands where a tribe elects to allow gaming.
Sec. 559.4 When must a tribe submit a copy of a facility license to
the Chairman?
A tribe must submit to the Chairman a copy of each issued facility
license within 30 days of issuance.
Sec. 559.5 What must a tribe submit to the Chairman with the copy of
each facility license that has been issued?
(a) A tribe shall submit to the Chairman with each facility license
an attestation certifying that by issuing the facility license:
(1) The tribe has identified the environmental and public health
and safety laws applicable to its gaming operation;
(2) The tribe is in compliance with those laws; and
(3) The tribe has ensured and is ensuring that the construction and
maintenance of the gaming facility, and the operation of that gaming is
conducted in a manner which adequately protects the environment and the
public health and safety.
(b) A document listing all laws, resolutions, codes, policies or
procedures identified by the tribe as applicable to its gaming
operations, other than Federal laws, in the following areas:
(1) Emergency preparedness, including but not limited to fire
suppression, law enforcement, and security;
(2) Food and potable water;
(3) Construction and maintenance;
(4) Hazardous materials;
(5) Sanitation (both solid waste and wastewater); and
(6) Other environmental or public health and safety standards
adopted by the tribe in light of climate, geography, and other local
conditions and applicable to its gaming facilities, places or
locations.
(c) After the first submission of a document under paragraph (b) of
this section, upon reissuing a license to an existing gaming place,
facility, or location, and in lieu of complying with paragraph (b) of
this section, a tribe may certify to the Chairman that it has not
substantially modified its laws protecting the environment and public
health and safety.
Sec. 559.6 Does a tribe need to notify the Chairman if a facility
license is terminated or not renewed or if a gaming place, facility, or
location closes?
A tribe must notify the Chairman within 30 days if a facility
license is terminated or not renewed or if a gaming place, facility, or
location closes or reopens.
Sec. 559.7 May the Chairman request Indian lands or environmental and
public health and safety documentation regarding any gaming place,
facility, or location where gaming will occur?
A tribe shall provide Indian lands or environmental and public
health and safety documentation that the Chairman may in his or her
discretion request as needed.
Sec. 559.8 May a tribe submit documents required by this part
electronically?
Yes. Tribes wishing to submit documents electronically should
contact the Commission for guidance on acceptable document formats and
means of transmission.
PART 573--ENFORCEMENT
7. The authority citation for part 573 continues to read as
follows:
Authority: 25 U.S.C. 2705(a)(1), 2706, 2713, 2715.
8. Amend Sec. 573.6 by revising paragraph (a)(4) to read as
follows:
Sec. 573.6 Order of temporary closure.
(a) * * *
* * * * *
(4) A gaming operation operates for business without a license from
a tribe, in violation of part 522 or part 559 of this chapter.
* * * * *
Dated: October 11, 2007.
Philip N. Hogen,
Chairman.
Cloyce V. Choney,
Commissioner.
Norman H. DesRosiers,
Commissioner.
[FR Doc. E7-20541 Filed 10-17-07; 8:45 am]
BILLING CODE 7565-01-P
