[Federal Register: February 1, 2008 (Volume 73, Number 22)]
[Rules and Regulations]
[Page 6019-6030]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01fe08-7]
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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: Final rule.
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SUMMARY: The rule adds new sections and a new part to the Commission's
regulations that require tribes to adopt and enforce standards for
facility licenses. These standards will help the Commission 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 will ensure that gaming
facilities are constructed, maintained and operated in a manner that
adequately protects the environment and the public health and safety.
DATES: Effective March 3, 2008.
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, the authority
to promulgate such regulations and guidelines as it deems appropriate
to implement the provisions of IGRA, 25 U.S.C. 2706(b)(10), as well as
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), and 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 the NIGC Chairman's approval.
Id. Approval by the Chairman is predicated on the inclusion of each of
the Act's 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 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
[[Page 6020]]
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 to ensure the adequate
protection of the environment, public health, and safety. 67 FR 46109,
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 has also identified several
deficiencies in the Interpretative Rule that will be corrected by the
Facility License Standards. 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 does it
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 enacted or identified laws
applicable to its gaming operation and is in compliance with them
together with a document listing those laws. This process will enable
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 final Facility
License Standards will not replace the Interpretive Rule but will work
in conjunction with it. The final rule does not preclude the Chairman's
authority to take an enforcement action in the event imminent jeopardy
exists at a tribal gaming facility.
Regulatory Matters
Regulatory Flexibility Act
The rule 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 rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. The rule does 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 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 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
rule does 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 rule 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 rule does not unduly burden the
judicial system and meet the requirements of sections 3(a) and 3(b)(2)
of the Order.
National Environmental Policy Act
The Commission has determined that the rule does 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 following final Facility Licensing Standards 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.
General Comments to Final Facility License Standards
We requested written comments from the public on the proposed
Facility License Standards (72 FR 59044) during the comment period that
opened on October 18, 2007, and closed on December 3, 2007. During that
comment period we received 81 comments: 70 from tribal governments or
tribal gaming commissions; 3 from citizens' associations; 3 from gaming
associations and 1 each from a governor's association, a county, a
private citizen, a state environmental agency, and a cardroom. Many of
the comments were grouped based on the common topics addressed. The
Commission carefully reviewed all comments and where appropriate
revised the final rule to reflect those comments. The comments and the
NIGC response follow.
Comments Questioning NIGC Authority To Promulgate the Facility License
Standards Under IGRA
Many of the comments to the proposed Facility License Standards
pertained to the Commission's authority. We address the specific issues
and Commission response below.
Comments Regarding NIGC Authority
Several commenters stated that the proposed rule improperly
intrudes upon tribal sovereignty in the absence of a clearly expressed
intent by Congress to do so and seeks to replace the tribe's sovereign
regulatory authority with NIGC's authority. Stated variously, the
proposed rule would compel the tribes to adopt NIGC's facility
licensing standards instead of the tribes' own, or it would compel the
tribes to enact positive law and then grant the NIGC the right to judge
the adequacy of that law.
The Commission disagrees with these characterizations of IGRA and
of the proposed rule's purpose and consequence. The Commission
recognizes that tribes are the primary regulators of Indian gaming and
has no intention or desire to intrude upon that vital role or to usurp
tribal authority. Thus, in the general case, the rule only asks each
tribe to identify and enforce the laws it has adopted to ensure the
health and safety of the public and the environment, i.e., the laws or
standards it has adopted in the areas of emergency preparedness, food
and potable water, construction and maintenance, etc. There is no
requirement that a tribe adopt and enforce any particular law. The
Commission merely wishes to know, for example, whether a tribe has
written its own fire code, whether it has adopted a county's code, or
whether a tribal-state compact provides for the application of a
particular fire code.
It is only in the unusual case where a tribe has adopted no, or
obviously inadequate, health and safety standards that the rule would
insist that the tribe adopt laws. That, however, places no obligation
on the tribe that does not already exist. IGRA obligates each tribe,
through its gaming ordinance, to ensure
[[Page 6021]]
that the construction, maintenance, and operation of each tribal gaming
facility is conducted in a manner that adequately protects the
environment and the public health and safety. 25 U.S.C. 2710(b)(1)(E).
In short, the rule encroaches no further on tribal sovereignty than
IGRA already has.
Likewise, the Commission already ``judges'' the adequacy of tribal
health and safety standards. The Commission already has, and already
exercises, oversight responsibility for health and safety at tribal
gaming operations. As with all aspects of regulating Indian gaming, the
primary responsibility belongs to the tribes, and the Commission plays
only an oversight role under the Commission's existing interpretive
rule, 67 FR 46109. The adoption of the rule would make no change to
this arrangement.
Several commenters stated that the NIGC has no authority to require
adoption of specific health and safety or operational standards because
IGRA contains no such standards.
Although IGRA does not enumerate specific health and safety
requirements for gaming facilities, the Act requires that the
construction, maintenance and operation of a gaming facility ``is
conducted in a manner which adequately protects the environment and the
public health and safety.'' 25 U.S.C. 2710(b)(1)(E). Congress created
the NIGC, 25 U.S.C. 2704(a), and gave it the specific authority to
``promulgate such regulations and guidelines as it deems appropriate to
implement the provisions of [IGRA].'' 25 U.S.C. 2706(b)(10). The
Commission is doing so here. This rule mandates that tribes identify,
and certify their enforcement of, the health and safety laws,
resolutions, codes, policies, standards and/or procedures that apply to
their gaming operations. Therefore, the rule implements the
requirements of 25 U.S.C. 2710(b)(1)(E). Further, when certain terms
are used herein to describe applicable health and safety requirements,
such as laws, resolutions, codes, policies, standards and/or
procedures, the use of such term or terms is not meant to exclude all
other terms of similar meaning.
Several commenters stated that NIGC has no authority to attach
specific requirements, such as a three-year renewal period, to issuing
a facility license because IGRA contains no such requirements. Other
commenters suggested that the three-year renewal period was arbitrary.
The Commission agrees that IGRA does not specify any period of
renewal or other conditions to the obligation to issue a facility
license. The Commission disagrees, however, with the commenters'
conclusion that the Commission therefore lacks the authority to
promulgate such requirements. The Commission also disagrees that the
three-year renewal period is arbitrary, as it is a reasonable period to
periodically review changes in tribal requirements and/or changes in
physical circumstances at a gaming facility.
IGRA obligates each tribe to license its gaming facilities: ``A
separate license issued by the Indian tribe shall be required for each
place, facility or location on Indian lands at which Class II gaming is
conducted.'' 25 U.S.C. 2710(b)(1). IGRA also obligates each tribe,
through its gaming ordinance, to ensure that the construction,
maintenance, and operation of each tribal gaming facility is conducted
in a manner that adequately protects the environment and the public
health and safety. 25 U.S.C. 2710(b)(1)(E). What exactly is required by
each of these sections, or when it is required, however, Congress did
not say. Congress has neither the institutional expertise nor the
inclination to specify all regulatory details in this or any other
organic statute for any regulatory agency. Accordingly, it creates
regulatory agencies and gives to them the responsibility to fill in
those gaps.
Congress created the NIGC, 25 U.S.C. 2704(a), and gave it the
specific authority to ``promulgate such regulations and guidelines as
it deems appropriate to implement the provisions of this chapter [i.e.,
IGRA].'' 25 U.S.C. 2706(b)(10). The Commission has deemed it
appropriate to implement the specific provisions set out in 25 U.S.C.
2710(b)(1) and 2710(b)(1)(E).
The rule does not require that each facility be licensed only every
three years. Rather, the rule requires that a facility be licensed no
less frequently than once every three years, proposed 25 CFR 559.3, and
the Commission observes that most tribes license their gaming
facilities more frequently. The choice of a three-year renewal period
is therefore consistent with, and largely encompasses, the tribes'
existing practices. The rule also requires that the tribe submit a list
of applicable health and safety laws and certify its compliance with
them. Proposed 25 CFR 559.5. The Commission has deemed it appropriate
to implement the specific provisions in 25 U.S.C. 2710(b)(1) and
2710(b)(1)(E).
By seeking to have tribes periodically license gaming facilities
and identify the health and safety rules they enforce, the rule creates
mechanisms by which the tribes and the Commission can ensure that
gaming facilities are licensed and that their construction, maintenance
and operation is ``conducted in a manner which adequately protects the
environment and the public health and safety.'' 25 U.S.C.
2710(b)(1)(E).
Several commenters stated that NIGC has no authority to require
submissions of facility licenses, a list of all applicable health and
safety laws and standards, or any documents other than those
specifically identified in IGRA such as: (1) Annual audit reports; (2)
proposed gaming ordinances; (3) notice of the issuance of a gaming
license to key employees and primary management officials; and (4) an
application for self-regulation.
The Commission agrees that IGRA does not specifically identify the
submissions required by the proposed rule. The Commission disagrees
that the comment contains an exhaustive list of documents whose
submission IGRA specifically requires. The comment omits, for example,
the submission of management contracts for the Chairman's review and
approval. 25 U.S.C. 2711. The Commission also disagrees with the
commenters' conclusion that the ability to require submission of
information is limited to those specific submissions identified in
IGRA.
As to the submission of the facility license itself and the
information about health and safety laws and compliance that must
accompany it, IGRA, again, obligates each tribe to license its gaming
facilities. 25 U.S.C. 2710(b)(1). IGRA also obligates each tribe,
through its gaming ordinance, to ensure that the construction,
maintenance, and operation of each tribal gaming facility is conducted
in a manner that adequately protects the environment and the public
health and safety. 25 U.S.C. 2710(b)(1)(E). What exactly is required by
each of these sections, however, Congress did not say. Congress has
neither the institutional expertise nor the inclination to specify all
regulatory details in this or any other organic statute for any
regulatory agency. Accordingly, it creates regulatory agencies and
gives to them the responsibility to fill in those gaps.
Congress created the NIGC, 25 U.S.C. 2704(a), and gave it the
specific authority to ``promulgate such regulations and guidelines as
it deems appropriate to implement the provisions of this chapter [i.e.,
IGRA].'' 25 U.S.C. 2706(b)(10). The Commission has deemed it
appropriate to implement the specific provisions set out in 25 U.S.C.
2710(b)(1) and 2710(b)(1)(E).
By seeking to have tribes periodically license gaming facilities
and identify the
[[Page 6022]]
health and safety rules they enforce, the rule creates mechanisms by
which the tribes and the Commission can ensure that gaming facilities
are licensed and that their construction, maintenance and operation is
``conducted in a manner which adequately protects the environment and
the public health and safety.'' 25 U.S.C. 2710(b)(1)(E).
That said, there is a second, sufficient source of authority within
IGRA for the submission of facility licenses to the Commission. A
facility license is a requirement of IGRA, 25 U.S.C. 2710(b)(1), and
the failure to issue a license is a violation of IGRA against which the
NIGC Chairman may bring an enforcement action. 25 U.S.C. 2713. The
Chairman, therefore, has the authority to request any facility license
for any facility as part of a routine investigation. 25 U.S.C. 2706(b).
Rather than regularly making such a demand through the Commission's
enforcement staff, the proposed rule simply establishes an
administrative process for the submission of facility licenses upon
their issuance.
Similarly, as to the submission of Indian lands information, IGRA
requires that all gaming take place on ``Indian lands.'' See, e.g., 25
U.S.C. 2710(b)(1), 2710(d)(1). Gaming that does not take place on
Indian lands is subject to all state and local gambling laws and
federal laws apart from IGRA. The Chairman therefore has the authority
to request Indian lands information for any facility as part of a
routine investigation in order to establish whether gaming is, in fact,
occurring under IGRA. 25 U.S.C. 2706(b). Rather than regularly making
such a demand through the Commission's enforcement staff, the proposed
rule simply establishes an administrative process for the submission of
minimal Indian lands information before the opening of a new facility.
A few commenters stated that requiring tribes to submit site-
specific facility licenses to the NIGC for approval presumes the NIGC
is mandated by IGRA to engage in site-specific Indian lands
determinations, but the Commission has no role in determining Indian
lands. In previous litigation, the Commission has argued that it does
not have a statutory duty to make pre-construction Indian lands
determinations.
The Commission disagrees with the characterization of the proposed
rule and with the commenters' assertion that the Commission has no role
in determining Indian lands.
The rule does not establish any mechanism or system whereby
facility licenses are submitted to the Commission for approval. Rather,
the rule simply requires that 120 days prior to the opening of a new
facility, the tribe submit a notice that a facility license is under
consideration to make the Commission aware of the impending opening.
The rule also requires the submission of minimal information for
determining Indian lands. Again, the location of a gaming facility on
Indian lands is a necessary prerequisite to gaming under IGRA. The
proposed rule requests some of the information necessary to make an
Indian lands determination and was a change from a previous draft of
the rule, which imposed an affirmative obligation on each tribe to make
an Indian lands determination before opening a new facility.
One commenter stated that the NIGC does not have the authority to
make Indian lands determinations because IGRA plainly gives that
authority to the Secretary of the Interior.
The Commission disagrees. IGRA gives the ability to make Indian
lands determinations both to the Secretary, for example, while taking
land into trust, and to the Commission. Again, the location of a gaming
facility on Indian lands is a necessary prerequisite to gaming under
IGRA and to the Commission's jurisdiction under IGRA. A reading of IGRA
under which the Commission is unable to determine its own jurisdiction
would undermine, if not make meaningless, the Chairman's enforcement
authority under 25 U.S.C. 2713.
A number of commenters stated that under the decisions in Colorado
River Indian Tribes v. NIGC, the Commission does not have the authority
to regulate class III gaming and that these regulations are an
unauthorized rulemaking intended to encroach on class III gaming.
The Commission respects and abides by the courts' decisions in the
Colorado River Indian Tribes v. National Indian Gaming Commission
(``CRIT'') cases. The Commission disagrees, however, that the CRIT
cases stand for the broad proposition that the NIGC lacks any authority
over class III gaming. Rather, CRIT stands for the narrower
propositions that (1) an administrative agency has only the authority
Congress delegated to it and (2) that Congress did not grant the
Commission authority to promulgate minimum internal control standards
for class III gaming. The latter is not applicable here and the
Commission, as stated at length above, believes that it does have the
authority to promulgate these facility license standards.
A few commenters stated that the NIGC may not issue these
regulations because under the well-established canons of construction
in federal Indian law, statutory ambiguities must be resolved in favor
of the tribes.
The Commission agrees that the Indian canon of construction holds
that statutory ambiguities are to be resolved in favor of the tribes.
The Commission disagrees, however, that the canon prohibits the
Commission from adopting the rule. The Commission believes that the
rule effectuates some of IGRA's statutory requirements: the licensing
of gaming facilities and the construction, maintenance and operation of
those facilities so as to protect the environment and the public health
and safety. Doing these things ensures not only the health of casino
employees and patrons but the health of the Indian gaming industry
itself.
Assuming for the sake of argument that there are ambiguities in
IGRA, the Commission believes that the rule resolves them in favor of
the tribes. The commenters would have otherwise. In such a situation
where there are competing views of what is ``in favor of the tribes,''
the canon will not bar the Commission's decision. See, e.g., Shakopee
Mdewakanton Sioux Community v. Hope, 16 F.3d 261, 264 n.6 (8th Cir.
1994).
A few commenters stated that there is no authority to demand that a
tribe perform information gathering for the Commission without a
contract or compensation. Section 2710(b)(7) of IGRA plainly requires
that if the Commission desires a tribal government to perform
commission functions, then the Commission should contract to pay them.
The Commission disagrees with this reading of 25 U.S.C. 2710(b)(7).
Nothing in this section requires the Commission to contract with tribes
for compliance with Commission regulations. Rather, this section
permits and recommends to the Commission that it contract with the
tribes for enforcement of Commission regulations.
Comments Regarding the Licensing Requirements of the Facility License
Standards
Some commenters stated that the requirements of the proposed rule
are unnecessary because they duplicate existing Federal and tribal
regulations.
The Commission disagrees. The rule does not require the adoption of
any particular health and safety rules or standards and thus cannot
conflict with standards the tribe has adopted on its own that apply
under a tribal-state compact, or that apply under federal
[[Page 6023]]
law. Even in a case where the proposed rule would mandate the adoption
of a health and safety law--because none had been adopted, for
example--no particular law is mandated.
As for the submission of ``Indian lands'' information, the rule
does not require the submission of information already in the
possession of the Bureau of Indian Affairs and thus avoids unnecessary
duplication.
Some commenters stated that the NIGC has not demonstrated that the
current system of licensing facilities is inadequate.
The Commission believes that the rule fills two important
regulatory needs. First, it allows the Commission to have advance
notice of the opening of gaming facilities, and thus to have the
ability to exercise its oversight regulatory authority appropriately
and timely. Second, it helps ensure that adequate health and safety
standards are maintained and complied with at all gaming facilities.
One commenter sought clarification whether the tribal gaming
regulatory authority is the entity that is responsible for implementing
the rule, which only uses the word ``tribe''.
The rule mirrors the language used in IGRA when it places
regulatory responsibility on a ``tribe.'' Nothing, however, prohibits a
tribe from vesting a tribal gaming regulatory authority with the
responsibility to act in compliance with the proposed rule.
A number of commenters recommended that the NIGC require tribal
governments to certify the implementation of their public health and
safety ordinances as part of the annual audit process.
The Commission disagrees. The rule is designed to be minimally
intrusive. It requires licensing of facilities no less frequently than
once every three years. Making certification of enforcement of health
and safety ordinances part of each tribe's annual audit process would
make three times the work and is more likely to be inconsistent with
current licensing practices.
One commenter requested that facility license submission be
required not only for new facilities but also for substantial
expansions of existing facilities (substantial being defined as either
a 25% increase in the number of class II/III machines or an increase of
more than 150 machines).
The Commission disagrees. This would be inconsistent with the
purpose underlying notification to the Commission of new facilities.
The notification allows the Commission to exercise its oversight
regulatory responsibility for the new facility appropriately and
timely. There is no such need for notification with existing facilities
because the Commission has regular contact with, and is generally aware
of the circumstances of, gaming facilities already in operation.
One commenter believed that a copy of the tribe's facility license
submission should be sent to the governing boards of the county and any
city immediately adjacent to or surrounding the facility as well as to
the Governor of the state and allow those entities to provide comment.
One commenter proposed that notice be provided to state Governors of
tribal submissions concerning the opening and closing of gaming
facilities.
The Commission disagrees. Indian gaming is an expression of the
sovereign right of Indian tribes to regulate their own affairs on their
own land, separate and apart from the laws and requirements of the
states or their political subdivisions. To the extent Congress wished
the involvement of the states in Indian gaming, IGRA so provides, and
the Commission does not believe it to be appropriate to add more. As
facility licensing is a matter of gaming regulation, notification to
the states may be provided for by tribal-state compact.
One commenter requested that the rule distinguish between class II
and class III in each subsection and that tribes be required to submit
tribal-state compacts as part of their submission as evidence of
compliance of state law as it relates to new facilities.
The Commission disagrees. The requirements of the rule are
applicable regardless of the class of gaming involved, and thus no
distinction is necessary. Further, if a tribal-state compact provides
for the application of particular health and safety laws, then
identification of the compact and its requirements is sufficient.
One commenter stated that it is unclear whether state or local
governments or other entities could challenge tribes' facility license
notice and, thus, Indian lands determinations.
The Commission does not intend to permit such a challenge.
One commenter believed that the license submission should also
state whether the land is trust land eligible for Indian gaming under
IGRA and the basis for that assertion.
The Commission disagrees. The submission of Indian lands
information is required only for new facilities. If a tribe is opening
a facility on land newly taken into trust, then the Department of the
Interior will have made an Indian lands determination as part of the
trust acquisition process. Requiring the information suggested here
would be duplicative.
Comments Regarding the Environment, Public Health and Safety
Several commenters suggested that adopting the Facility License
Standards would conflict with the Interpretative Rule previously issued
by the NIGC that lays out a ``limited and discrete responsibility'' for
the Commission in regulating the environment and public health and
safety.
The Commission agrees with the commenters that the Environment,
Public Health and Safety Interpretative Rule (67 FR 46109) envisions a
limited and discrete responsibility. The Interpretative Rule also
highlighted, however, that this did not leave the Commission without
authority or responsibility in this area as ``IGRA explicitly accords
the Commission a role in ensuring compliance with the environment,
public health and safety provision of IGRA.'' The Facility License
Standards do not increase the NIGC's limited role. They do not demand
adoption of any particular health and safety rules; rather, the rule
primarily requires tribes to make the NIGC aware of what health and
safety rules apply. This compliments NIGC's oversight role under 67 FR
46109.
Several commenters noted that the requirements of the Facility
License Standards are already addressed in some tribal-state compacts
and that those tribes should be exempted from the reporting
requirements in this rule.
For those tribes whose tribal-state compacts identify those laws,
resolutions, codes, policies or standards, other than federal laws that
are required in the NIGC's Facility License Standards, they can submit
to the NIGC the location where that information can be found in their
tribal-state compact. It should be noted, however, that tribal-state
compacts are only required for class III gaming and the Facility
License Standards apply to both class II and class III gaming
facilities.
Several comments related to the ability of the NIGC to carry out
its duties under the Facility License Standards without creating a new
bureaucracy within the Commission.
The Commission disagrees. The NIGC already has existing personnel
who conduct site visits to tribal gaming facilities under the
Interpretative Rule and who handle environmental issues. Existing
personnel will continue to work on these and other environmental issues
that arise.
Several comments related to the NIGC's statement that it had
conducted many site visits and inspections since
[[Page 6024]]
issuance of the Interpretative Rule which led to the NIGC identifying
the deficiencies addressed by this rule. Commenters requested that the
NIGC detail the results of those inspections to justify the necessity
of the Facility License Standards.
The NIGC has identified the following health and safety issues
during site visits: lack of fire suppression systems; lack of fire or
ambulance service; insanitary food storage and handling; and, storage
of hazardous materials in locations with non-compatible chemicals. In
its Facility License Standards, the Commission seeks to carry out its
obligations under IGRA to ensure that gaming is occurring in a manner
that adequately protects the environment and the public health and
safety.
Several commenters were unclear as to what the NIGC's remedy would
be for non-compliance with the Facility License Standards.
The Chairman has the power to order temporary closure of a gaming
facility for substantial violation of the provisions of 25 U.S.C. 2713.
One commenter requested that the Facility License Standards be
expanded to provide for independent audits by qualified, certified
environmental/engineering firms, according to a schedule established by
the tribe and agreed upon by the Commission, with local governmental
entities allowed to review the results of the audit.
The Commission determined that adding this requirement to the
Facility License Standards would be unnecessary as the NIGC's site
visits and the material requested to be submitted with the Facility
License Standard would be sufficient for the NIGC to determine
compliance with IGRA.
Comments Regarding the Lands Information Required Under the Facility
License Standards
Several comments stated that the information required for a new
gaming facility is onerous, duplicative and overly-burdensome.
The Commission disagrees. In this final rule, the NIGC has
significantly reduced the lands information tribes are required to
submit with a new facility license. In the initial working drafts of
the proposed rule, the NIGC required the lands information on both new
and existing gaming facilities. In this final rule, the NIGC is only
requiring qualifying land information for a facility license on new
facilities. In addition, the final rule only requires the facility
name, legal description, and BIA tract number for a new facility. Prior
drafts required a great deal more: A legal analysis, copies of trust
documents, copies of court decisions, executive orders, secretarial
proclamations or other documentation regarding land ownership. The
information required in the final rule represents the basic information
necessary so that the NIGC can then determine whether additional lands
documentation is required.
One commenter expressed concern that the NIGC will respond directly
to inquiries from other governmental offices and Congress while public
and state governments will be subject to the Freedom of Information
Act, 5 U.S.C. 552.
The Commission complies with the Freedom of Information Act
(``FOIA''), therefore, any requests for information submitted as part
of the Facility License Standards requirements will be subject to FOIA
and the Privacy Act of 1974, 5 U.S.C. 552a. With the exception of law
enforcement agencies and requests from Congressional committees, which
are exempt from FOIA, the NIGC treats all requests for information
obtained as subject to FOIA. This includes requests from Congressional
offices, state and federal offices, and the general public.
Comments Regarding the Information Collection Burden
One commenter suggested that the estimates provided by the NIGC
regarding the amount required for information collection are far too
low in the event a tribe does not have laws already in place in one or
more of the areas identified as required by the Facility License
Standards.
The Commission's estimate of approximately $5,000 to $10,000 is for
those tribes who do not currently have laws in one of the areas
enumerated in Sec. 559.5 of the rule. The Commission feels this
estimate is reasonable for a tribe who must hire an attorney to assist
in identification of those laws, codes, or standards that apply to its
gaming facility. The Commission recognizes that there may be underlying
expenses related to instituting an environmental, public health and
safety program in the event a tribe identifies a deficiency in a
certain area while complying with the Facility License Standards;
however, the costs associated with these efforts would vary greatly
depending on the size and location of the gaming facility and on the
level of environmental, public health and safety standards already in
place.
One commenter suggested that the environment, public health and
safety requirements in the Facility License Standards be tied to
applicable federal laws (i.e., Clean Water Act, Safe Drinking Water
Act, Resource Conservation and Recovery Act, etc.).
The Commission disagrees. The purpose of the rule is to identify
environment, public health and safety laws that apply that are not
Federal laws.
Comment Regarding Paperwork Reduction Act
The commenter requested that ``burden'' be struck through this
section and replaced with ``resources required for'' and that ``annual
information burden'' be replaced with ``resources required to collect
the information annually.''
This language, however, is based on the language in the Paperwork
Reduction Act and is not the NIGC's language.
Comments Regarding the Regulatory Flexibility Act
The Commission received a comment that contrary to the statement in
the proposed rule that Indian tribes are not considered to be small
entities for purposes of the Regulatory Flexibility Act, it may be that
tribes are small entities for this purpose. The Commission disagrees.
Indian tribes are not included in this definition. 5 U.S.C. 601(5)(c).
Comments Regarding NIGC Consultation in Connection With This Rule
Several comments pertained to the level of consultation conducted
in connection with the Facility License Standards stating that the NIGC
did not conduct meaningful consultation and that the consultation
conducted was in violation of the NIGC's consultation policy.
The NIGC published its Government-to-Government Tribal Consultation
Policy on March 24, 2004, 69 FR 16973. In that policy the Commission
recognized the government-to-government relationship that exists
between the NIGC and federally-recognized tribes and stated that the
primary focus on the NIGC's consultation policies would involve
consulting with individual tribes and their recognized governmental
leaders. The Commission's consultation policy also calls for providing
early notification to effected tribes of any regulatory policies prior
to a final agency decision regarding their formulation or
implementation.
In keeping with its consultation policy, the NIGC sent its first
working draft of the Facility License Standards to tribal leaders on
May 12, 2006. That notice was also published on the NIGC
[[Page 6025]]
Web site, http://www.nigc.gov, for public comment. The Commission also
invited 309 tribes to meet with it in consultation on this rule and
other gaming matters. Following notification of this first working
draft, the NIGC received 56 written comments and held over 53
government-to-government consultation meetings with tribal leaders.
Following written and oral comments from tribal leaders, the draft
Facility License Standards were revised and sent to tribal leaders for
comment on March 21, 2007, with comments due on May 15, 2007. The
comment period was subsequently extended another 15 days to May 30,
2007. Again the Commission invited tribal leaders to provide comments
and to meet with the Commission during tribal consultations. The
Commission received 78 written comments and held over 60 separate
consultation meetings to discuss this draft of the Facility License
Standards and other gaming matters.
The Facility License Standards were again revised based on input
from tribal leaders and the public. The Commission published the
proposed Facility License Standards on October 18, 2007, after holding
more than 113 meetings with tribal leaders and careful consideration of
the 134 comments received on the two prior drafts.
In keeping with its consultation policy, the NIGC involved tribes
early in the process of considering the Facility License Standards and
tribes had the opportunity to provide written comments and to meet with
the Commission over a lengthy period. The Commission carefully reviewed
the comments received on the proposed rule and took those comments into
consideration prior to making a final determination on the final
Facility License Standards.
Several commenters stated that the NIGC's consultation process for
this regulation fell short of prior agency consultations where tribal
representatives were active participants not only in providing advice
and input to the NIGC, but also in the drafting process itself.
While the NIGC has chosen to utilize various rulemaking formats
when formulating several Commission regulations, including tribal
advisory committees, the NIGC consultation policy provides that the
NIGC will utilize that form of rulemaking to the extent it deems
practicable and appropriate. It is within the Commission's discretion
to determine the appropriate form of rulemaking for each regulation.
The Commission determined that for purposes of such a narrow and
limited rule such as the Facility License Standards, sharing early
drafts and allowing for a lengthy period of comment and consultation
would be the most comprehensive approach.
Comments Regarding Extension of the Comment Period
Many commenters requested that the NIGC extend the comment period
in which to provide comments on the proposed rule.
The NIGC received a total of 83 tribal comments on the proposed
Facility License Standards. This was in addition to the 134 written
comments received and considered on the prior working drafts of the
rule and after meeting with over 113 tribal leaders in consultation on
the proposed rule along with other Commission matters.
The Commission allowed for a 45-day comment period on the proposed
rule. In deciding not to grant an extension of the comment period, the
Commission took into account the significant number of comments
received on the proposed rule and on the two prior drafts, totaling
over 215 written comments combined. In addition the consultation period
for this rule was well over one and one-half years, from the first
draft in May 2006 to the publication of the proposed rule in October
2007.
Comments Regarding NIGC Compliance the Government Performance and
Results Act
Several commenters suggested that the NIGC may have violated the
Government Performance and Results Act (``GPRA'') by embarking on
several rulemaking exercises without an overall plan in violation of
Public Law 109-221.
The Commission agrees that Public Law 109-221, the Native American
Technical Corrections Act of 2006, provides that the NIGC shall be
subject to the GPRA. On September 30, 2007, the NIGC filed its
performance and accountability report with the Office of Management and
Budget. The Commission is currently seeking comments from tribes and
all interested parties on the contents of this report.
Comments Regarding Financing of New Tribal Gaming Facilities
Several commenters were concerned that the Facility License
Standards would have an impact on a tribe's ability to secure financing
for gaming development projects.
The NIGC disagrees that requiring tribes to notify the Commission
120 days prior to opening a new facility will interfere with financing
opportunities for new gaming operations. The purpose of the regulation
is to inform the NIGC prior to the opening of a new facility. The NIGC
believes any financing difficulties posed by compliance with this rule
will be less significant than if it is later determined that a new
facility has been constructed on lands that do not meet the
requirements for ``Indian lands'' under IGRA. Further, the Facility
License Standards have no effect in those circumstances where a tribe
has not yet obtained financing due to uncertainty regarding the status
of the lands.
Comments Regarding Specific Language
One commenter suggested the addition of the word ``standards''
wherever the phrase ``laws, resolutions, codes, policies, or
procedures'' appears in the regulation. The Commission agrees and has
revised Sec. Sec. 502.22 and 559.5(b) accordingly.
One commenter suggested that standards pertaining to the
environment and the public health and safety may be included in
Secretarial procedures. Accordingly, the Commission revised Sec.
502.22 to reflect this change from ``including standards negotiated
under a tribal-state compact'' to ``including standards under a tribal-
state compact or Secretarial procedures.''
One commenter noted the use of the phrase ``gaming operations'' in
Sec. 559.5(b) and correctly pointed out that the term should be
``gaming facilities'' as is used throughout the remainder of the
regulation. This correction was made.
One commenter noted the use of the phrase ``gaming facilities,
places or locations'' as contradicting the statutory language of IGRA
which uses the phrase ``gaming places, facilities or locations.'' This
correction was made in Sec. 559.5(b)(6).
One commenter recommended that the Commission remove the phrase
``as needed'' following in Sec. Sec. 552.2(i) and 559.7. The commenter
felt this phrase was redundant as the statement prior reflects that the
Chairman may use his or her discretion to request lands or
environmental and public health and safety information. The Commission
agrees and made this correction in the final rule.
One commenter noted that the title to Sec. 559.6 was inconsistent
with the language in the body of the section and recommended the
Commission add ``or reopens'' to the title to match the requirements
set out in the section. The Commission agrees and this change was made.
One commenter felt the proposed rules were unclear regarding the
submission requirements to the
[[Page 6026]]
Commission. The Commission agreed that clarification could be added to
ensure that tribes more clearly understood the requirements for initial
and subsequent submissions of their facility licenses. The following
changes were made in Sec. Sec. 559.3, 559.4, and 559.5 to reflect
clarification of the submission requirements. Section 559.3 in the
proposed rule read ``[a]t least once every three years, a tribe shall
issue a separate facility license to * * *.'' In the final rule, this
section was changed to ``[a]t least once every three years after the
initial issuance of a facility license, a tribe shall renew or reissue
a separate facility license.'' Section 559.4 previously read ``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. This section is now clarified to
read, ``When must a tribe submit a copy of a newly issued or renewed
license to the Chairman? A tribe must submit to the Chairman a copy of
each newly issued or renewed facility license within 30 days of
issuance.'' Section 559.5 also changed to clarify the submission
requirement. This section previously read ``What must a tribe submit to
the Chairman with the copy of each facility license that has been
issued?'' It now reads, ``What must a tribe submit to the Chairman with
the copy of each facility license that has been issued or renewed?''
Comments Regarding Part 502--Definitions of This Chapter
A few commenters objected to the insertion of the definition of
``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'' as
``clarification'' for 2710(b)(2)(E) of IGRA without any explanation or
foundation for the NIGC's conclusion that this ``definition'' provides
clarification.
The Commission believes that this definition and the entire rule
clarifies what the expectations are for tribes to verify that that they
are maintaining their gaming facilities in a manner that adequately
protects the environment, public health and safety.
Another commenter objected to Sec. 502.22(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,'' as being
too broad a standard.
The Commission retained subsection (f). The geographical and local
conditions under which Indian gaming may occur vary greatly. This
provision was included to capture the varying circumstances under which
Indian gaming facilities may occur and allow for a tribe to address
specific local and geographic conditions that may apply to its gaming
facility.
One commenter stated that the phrase ``the construction and
maintenance of the gaming operation and the operation of the gaming is
conducted in a manner which adequately protects the environment, public
health and safety,'' defies understanding.
While the Commission agrees that this language is not a model of
clarity, this language is taken directly from IGRA at 25 U.S.C.
2710(b)(2)(E).
One commenter suggested consideration should be given to deleting
the defined term proposed to be added as new Sec. 502.22. The defined
term is only used in the proposed regulations twice, at Sec. Sec.
559.1(a) and 559(a)(3). Both of those sections work well if the
sentence is used in its plain meaning sense, rather than in its defined
meaning sense. Also, it is unconventional for the definition section to
include substantive provisions, such as the sentence in the proposed
definition which states that the ``laws * * * shall * * *.'' Finally,
including substantive provisions in the definitional section could lead
to misunderstandings by readers who read part 559 and miss the fact
that the thirty word sentence starting with the words ``Construction
and maintenance * * *'' is actually a defined term. Therefore,
consideration should be given to simplifying the regulations by
deleting the defined term and moving the substantive content contained
in the proposed defined term to a location in Sec. 559.5.
While this recommendation has its merits, the Commission ultimately
decided to retain the definition.
The same commenter suggested that if the defined term is retained,
consideration should be given to modifying the text by including a
reference to Secretarial procedures and standards.
The Commission agrees to this recommendation.
One commenter suggested that language be added which referenced the
various federal environmental laws that tribes are required to follow.
The Commission disagrees. The purpose of the rule is to identify
environment, public health and safety laws that apply that are not
federal laws.
One commenter suggested Sec. 502.22 should be revised to add:
``(f) If an Environmental Impact Statement was prepared for the gaming
facility, then the laws, resolutions, codes, policies or procedures in
this area shall cover at a minimum, the construction, operational and
maintenance standards identified in the EIS as well as mitigation
measures that address the environmental consequences of the facility.''
The Commission disagrees that this change would be useful.
One commenter suggested that the Commission revise Sec. 502.22 by
changing ``construction and maintenance of the gaming facility, and the
operation of that gaming'' to ``construction and maintenance of the
gaming facility, and the operation of class II or class III gaming.''
The Commission disagrees. This language was taken directly from
IGRA at 2710(b)(2)(E).
One commenter requests the addition of new Sec. 502.23 to read as
follows: ``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 class III gaming.''
No change is necessary, however, as this proposed language is
identical to that of the rule.
Comments Regarding Part 522--Submission of Gaming Ordinance or
Resolution
One commenter suggested language that clarifies that the
information required in Sec. 522.2 is in addition to the requirements
of Sec. Sec. 559.2 and 559.5.
The Commission disagrees as the submission requirement is already
repeated in Sec. 559.5.
A commenter suggested that consideration should be given to adding
the phrase ``gaming eligibility'' or ``gaming eligibility (for lands
acquired after October 17, 1988)'' to Sec. 522.2 this and to Sec.
559.7.
The Commission disagrees that this recommendation would clarify the
rule.
A commenter suggested that consideration should be given to
deleting the phrase ``as needed'' in this section to avoid disputes as
to whether the documentation requested by the Chairman is ``needed.''
The Commission agrees to this change.
Comments Regarding Part 559--Facility License Notifications, Renewals,
and Submissions
A commenter urged the Commission to revise the draft rule to
distinguish between class II and class III gaming in each subsection.
[[Page 6027]]
The Commission has not made this revision. The requirements for
submission of facility license remain the same whether gaming is
occurring in a class II or class III gaming facility.
One commenter suggested that since part 559 is presumably intended
to apply to a ``gaming operation'' as that term is defined in Sec.
502.10, consideration could be given to changing the phrase ``the
operation of class II or class III gaming'' to ``class II or class III
gaming operation.''
The Commission uses the reference to ``gaming places, facilities or
locations'' to remain consistent with IGRA.
Another commenter recommended that part 559 should be clarified to
determine whether the Commission intends to regulate (i) a tribe; (ii)
place, facility or location; or (iii) both.
No change was made as a result of this comment. The Commission
believes it is clear from the language of IGRA that ``a separate
license issued by the Indian tribe shall be required for each place,
facility, or location.''
Comments Regarding Sec. 599.1--What is the scope and purpose of this
part?
One commenter suggested that the phrase ``the construction and
maintenance of the gaming facility'' be changed to ``the gaming
facility is constructed and maintained.''
The Commission declined to make this change as the language is
taken from IGRA at 2710(b)(2)(E).
One commenter observed that Sec. 559.1 fails to require that the
land must be under the jurisdiction of the tribe. Furthermore, the
regulations do not detail the eligibility requirements for gaming on
Indian lands, and make clear that the land must be under the
jurisdiction of the tribe.
The purpose of part 559 is to ensure that each facility where
gaming is operated is located on Indian lands eligible for gaming
pursuant to IGRA. IGRA sets out the eligibility requirements and
jurisdictional requirements for gaming to occur on Indian lands.
Consequently, no additional language is contemplated.
One commenter observed that the regulation fails to require that
the NIGC actually make a determination [on Indian lands] and fails to
provide a process for such determination. Furthermore, the regulations
as proposed apply only to new facilities when the same rules need to be
applied to existing facilities.
The Commission did not intend, under these rules, to develop a
broad program for making Indian lands decisions. The Commission makes
such decisions in the context of its enforcement actions and approval
of management contracts and site-specific ordinances.
One commenter recommended that the notice requirement include
documentation that the tribe seeking a new facility license complies
with the class III conditions necessary to engage in casino-style
gambling. The commenter recommended that the tribe submit a valid
state-tribal compact as evidence of compliance.
No change was made as a result of this comment. The Commission has
endeavored to take into consideration that various documentation may be
available at other federal agencies (i.e., Department of the Interior)
and has removed any duplicative submission requirements for documents
that are available through other means.
Several commenters requested that additional language be added
requiring notification to surrounding local and state governmental
entities when tribes submit notice to the Chairman that a facility
license is under consideration for a new facility.
The Commission disagrees. Indian gaming is an expression of the
sovereign right of Indian tribes to regulate their own affairs on their
own land, separate and apart from the laws and requirements of the
states or their political subdivisions. To the extent Congress wished
the involvement of the states in Indian gaming, IGRA so provides, and
the Commission does not believe it to be appropriate to add more. As
facility licensing is a matter of gaming regulation, notification to
the states may be provided for by tribal-state compacts.
One commenter suggested that that the proposed ``charitable
events'' exception creates a loophole that swallows the notice
requirement. Absent a reasonable numeric cap, a tribe could sponsor a
string of charitable events lasting six days or less on a continuous
basis without giving notice to the NIGC or, if class III gaming is
involved, the state that a tribe issued a new facilities license.
The Commission disagrees. The language of Sec. 559.2(b) makes
clear that this exception relates to the ``occasional charitable
event'' and not to continuous gaming or class III gaming.
Comment Regarding Sec. 559.4--When must a tribe submit a copy of a
facility license to the Chairman?
One commenter requested additional language that requires
notification to surrounding local and state governmental entities.
The Commission disagrees. Indian gaming is an expression of the
sovereign right of Indian tribes to regulate their own affairs on their
own land, separate and apart from the laws and requirements of the
states or their political subdivisions. To the extent Congress wished
the involvement of the states in Indian gaming, IGRA so provides, and
the Commission does not believe it to be appropriate to add more. As
facility licensing is a matter of gaming regulation, notification to
the states may be provided for by tribal-state compact.
Comments Regarding Sec. 559.5--What must a tribe submit to the
Chairman with the copy of each facility license that has been issued?
One commenter recommended that the NIGC require submission of
applicable state or federal licenses or permits that demonstrate that a
tribe is in compliance with federal or state environmental laws
applicable to its gaming operation.
The Commission disagrees. The NIGC has determined that for purposes
of this rule, Tribes will supply a list of identified applicable laws
and that it shall be within the Chairman's discretion to request
additional information if necessary. These state and federal licenses
could be requested by the Chairman if a need for such documentation is
deemed necessary.
One commenter suggested deleting the term ``identified'' in Sec.
559.5(a)(1) and replacing with ``adopted, issued or agreed to'' as any
law or standard which the tribe has ``identified'' but has not adopted,
issued or agreed to, is without legal effect or significance.
The Commission declined to make this change as the term identified
is a broader term which allows tribes to show that they are aware of
the environment, public health and safety laws that apply to their
facilities even if those laws may not have been specifically
promulgated by the tribes themselves.
One commenter suggested that in order to be consistent with the
Interpretative Rule, the Commission should consider requiring the tribe
to certify that it has established policies, procedures or systems for
monitoring compliance. No change was made based on this suggestion. The
Commission anticipates that the three-year renewal process for facility
licensing will ensure that a system for ongoing monitoring is in place.
One commenter recommended that clarification is needed in Sec.
559.5(a)(3) to determine whether the regulation intends for the entity
or thing which the tribe is to certify to be in compliance with various
laws is (i) the tribe; (ii) the
[[Page 6028]]
place, facility or location; (iii) the gaming operation; or (iv) some
combination of the three. The language adopts the approach that the
tribe certifies that both the gaming operation and the place, facility
or location (but not the tribe) are in compliance with the identified
laws.
The rule mirrors the language used in IGRA when it places
regulatory responsibility on a ``tribe.'' Nothing, however, prohibits a
tribe from vesting a tribal gaming commission with the authority to act
in compliance with the rule.
One commenter suggested that consideration should be given to
adding appropriate language to accommodate the possibility that, at the
time of the tribe's submission to the Commission, the gaming operation
and or gaming place, facility or location is not in full compliance.
The commenter recommended adding the phrase ``or, if the tribe has
identified any noncompliance, the tribe has taken appropriate action to
ensure future compliance'' to this section.
The Commission agreed with this concept and changed this section to
require that if a tribe is not in compliance with any or all of its
environmental and public health and safety laws, resolutions, codes,
policies, standards or procedures, the tribe will identify those with
which it is not in compliance, and will adopt and submit its written
plan for the specific action it will take, within a period not to
exceed six months, required for compliance. At the successful
completion of such written plan, or at the expiration of the period
allowed for its completion, the tribe shall report the status thereof
to the Commission. In the event that the tribe estimates that action
for compliance will exceed six months, the Chairman must concur in such
an extension of the time period, otherwise the tribe will be deemed
noncompliant. The Chairman will take into consideration the
consequences on the environment and the public health and safety, as
well as mitigating measures the tribe may provide in the interim, in
his or her consideration of requests for such an extension of the time
period.
One commenter pointed out the confusion in usage of the terms
``facilities'' and ``operations'' with the correct term being ``gaming
facilities.''
The Commission agreed with the commenter and changed the term to be
consistent throughout the regulation.
One commenter suggested that the language of Sec. 559.5(b) as
written is overbroad and unclear as to whether it requires only a list
of items material to the topic, or requires detailed information of
specific laws, resolutions, codes, policies, or procedures for each
area. The commenter also requested that the Commission specify how much
detail is required in the information to be submitted with the facility
license. The commenter requested an option for the gaming operation to
list the name of the applicable policy and procedure manual or to
identify individual items that are material, and to allow an option to
develop and submit a matrix in the form of a table or spreadsheet.
The Commission recognizes that tribes may utilize varying internal
methods for maintaining this information and refrained from specifying
what form the list of applicable laws must take. This will allow each
facility to submit the information in the form or format that is
appropriate for each facility without the NIGC dictating a particular
approach which may require increased resources at the tribal level.
One commenter suggested that consideration should be given to
adding the phrase ``to the extent not already addressed by applicable
federal laws, regulations and standards'' to Sec. 559.5(b).
The Commission did not make this change. The language in this
section already addresses the commenter's concern with the phrase
``other than federal laws.''
One commenter suggested the Commission consider whether the topics
of ``fire suppression'' and ``law enforcement and security'' in Sec.
559.5(b)(1) should be independent topics rather than subsets of
``emergency preparedness.''
The Commission determined that the topics are appropriately grouped
and declined to make this change.
One commenter pointed out that the phrase ``facility, place or
location'' in Sec. 559.5(a)(6) differs from the statutory language of
IGRA which reads ``place, facility or location.''
The Commission agreed with this comment and made the change.
One commenter requested that the Commission include tribal
regulation in its list of laws governing the gaming operation in Sec.
559.5(a)(6).
The Commission did not make this change because the term ``laws''
in this section is meant to include all laws applicable to the gaming
operations, which includes tribal laws.
One commenter requested that if a tribe's environment, public
health and safety laws are available in a public location, the tribe
notify the Commission so the Commission can locate such items and as
necessary can notify members of the public who make inquires.
The Commission did not make this change in the language of the
rule. Any information obtained from tribes in relation to this rule
will be governed by the Freedom of Information Act. However, if the
information provided by the tribe is available publically and the
Commission has such information available, it could direct inquiries to
the appropriate public site.
Section 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?
One commenter recommended that that state Governors also receive
notification of the termination or non-renewal of a class III facility
license by a tribe, or if such a gaming facility closes or reopens.
The Commission disagrees. Indian gaming is an expression of the
sovereign right of Indian tribes to regulate their own affairs on their
own land, separate and apart from the laws and requirements of the
states or their political subdivisions. To the extent Congress wished
the involvement of the states in Indian gaming, IGRA so provides, and
the Commission does not believe it to be appropriate to add more. As
facility licensing is a matter of gaming regulation, notification to
the states may be provided for by tribal-state compacts.
One commenter recommended adding ``reopens'' to the end of the
title in Sec. 559.6. The language would read ``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 closed or reopens?''
The Commission agrees with this recommended change.
Section 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?
Several commenters were concerned that the language in this section
relating to the Chairman's discretion in requesting additional
documentation was too broad and allowed for too much interpretation on
what to request on the part of the Chairman.
The Commission has endeavored to require only the minimum
obligation for documentation submission, but must reserve the right of
the Chairman to request additional information in the event it is
necessary to carry out his or her duties in ensuring that all gaming
[[Page 6029]]
facilities are located on Indian lands and are operated in a manner
that adequately protects the environment, public health and safety.
One commenter requested language in this section to clarify that
the ``Tribe'' and ``Tribal Gaming Regulatory Authority are separate
entities and it is the Tribal Gaming Regulatory Authority who is
responsible for enforcing the environment, public health and safety
laws and for issuing the facility license.''
The rule mirrors the language used in IGRA when it places
regulatory responsibility on a ``tribe.'' Nothing, however, prohibits a
tribe from vesting a tribal gaming commission with the authority to act
in compliance with the rule.
One commenter requested that the Commission delete the phrase ``as
needed'' from Sec. 559.7 or change to ``from time to time'' so there
is no dispute as to what is ``needed.''
The Commission agreed with commenter and removed ``as needed'' from
this section.
List of Subjects in 25 CFR Parts 502, 522, 559, and 573
Gambling, Indians--lands, Indians--tribal government, Reporting and
recordkeeping requirements.
0
For the reasons set forth in the preamble, amend 25 CFR Chapter III as
follows:
PART 502--DEFINITIONS OF THIS CHAPTER
0
1. The authority citation for part 502 continues to read as follows:
Authority: 25 U.S.C. 2701 et seq.
0
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,
standards or procedures applicable to each gaming place, facility or
location that protect the environment and the public health and safety,
including standards under a tribal-state compact or Secretarial
procedures. Laws, resolutions, codes, policies, standards 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.
0
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
0
4. The authority citation for part 522 continues to read as follows:
Authority: 25 U.S.C. 2706, 2710, 2712.
0
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.
0
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 newly issued or renewed
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 or renewed?
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 or reopens?
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:
(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, if any;
(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 after the initial issuance of a
facility license, a tribe shall renew or reissue a separate facility
license to each existing place,
[[Page 6030]]
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 newly issued or
renewed facility license to the Chairman?
A tribe must submit to the Chairman a copy of each newly issued or
renewed 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 or renewed?
(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 and enforces the environment and
public health and safety laws, resolutions, codes, policies, standards
or procedures applicable to its gaming operation;
(2) The tribe is in compliance with those laws, resolutions, codes,
policies, standards, or procedures, or, if not in compliance with any
or all of the same, the tribe will identify those with which it is not
in compliance, and will adopt and submit its written plan for the
specific action it will take, within a period not to exceed six months,
required for compliance. At the successful completion of such written
plan, or at the expiration of the period allowed for its completion,
the tribe shall report the status thereof to the Commission. In the
event that the tribe estimates that action for compliance will exceed
six months, the Chairman must concur in such an extension of the time
period, otherwise the tribe will be deemed noncompliant. The Chairman
will take into consideration the consequences on the environment and
the public health and safety, as well as mitigating measures the tribe
may provide in the interim, in his or her consideration of requests for
such an extension of the time period.
(3) The tribe 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,
standards or procedures identified by the tribe as applicable to its
gaming facilities, 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 laws,
resolutions, codes, policies, standards or procedures adopted by the
tribe in light of climate, geography, and other local conditions and
applicable to its gaming places, facilities, 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 or reopens?
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.
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
0
7. The authority citation for part 573 continues to read as follows:
Authority: 25 U.S.C. 2705(a)(1), 2706, 2713, 2715.
0
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: December 31, 2007.
Philip N. Hogen,
Chairman.
Cloyce V. Choney,
Vice-Chairman.
[FR Doc. E8-1862 Filed 1-31-08; 8:45 am]
BILLING CODE 7565-01-P
