[Congressional Record Volume 152, Number 125 (Friday, September 29, 2006)]
[Senate]
[Page S10665]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      INDIAN GAMING REGULATORY ACT

  Mr. BAUCUS. Mr. President, I have filed an amendment to S. 2078, the 
proposed Indian Gaming Regulatory Act Amendments of 2006. The amendment 
would require the National Indian Gaming Commission, the NIGC, to 
utilize the well-accepted negotiated rulemaking process in promulgating 
any regulations required to implement the provisions contained in S. 
2078. Let me take a moment to explain the amendment.
  Congress adopted the Negotiated Rulemaking Act in 1990. It appears at 
5 USC, sections 561 and following. Congress permanently reauthorized 
the act in 1996. It provides an alternative to adversarial rulemaking. 
It saves time and reduces litigation.
  The Negotiated Rulemaking Act allows interested stakeholders and the 
Federal agency to be a part of the process. Negotiated rulemaking is a 
process by which tribes and Government agencies enter into negotiations 
in good faith and reach consensus on proposed rufts. All the legal 
requirements of notice, such as publication in the Federal Register, 
are employed. A negotiated rulemaking committee is employed. Thus there 
is transparency and accountability. If the negotiated rulemaking 
succeeds, it culminates in proposed rules that the Federal agency 
formally proposes. The Federal agency retains the ultimate authority, 
however, on any such proposed rule, as the agency retains 
responsibility in making final decisions and publishing the rule in the 
Federal Register.
  A variety of Federal agencies have successfully used the Negotiated 
Rulemaking Act in developing regulations. Among them are the 
Environmental Protection Agency, the Federal Aviation Administration, 
the National Park Service, the Department of Transportation, the 
Occupational Safety and Health Administration, and the United States 
Forest Service.
  As well, Federal agencies that have worked directly with Indian 
country have successfully used the negotiated rulemaking process. Among 
those are the Indian Health Service, the Bureau of Indian Affairs, and 
the Department of Housing and Urban Development when HUD developed the 
regulations under the Native American Housing and Self Determination 
Act.
  Some argue that it is not appropriate to require the NIGC to bring in 
tribes as a part of the negotiated rulemaking process because they are 
the entity being regulated. But we are dealing with sovereign Indian 
Nations that already have significant regulatory regimes in effect. The 
original Indian Gaming Regulatory Act already was a major intrusion 
into the status of tribes as units of government fully capable of 
managing their own affairs. To suggest that it is somehow problematic 
for tribal governments to have an institutionalized role in developing 
regulations is totally contrary to the very concept of our government-
to-government relationship with tribes. That is a philosophy subscribed 
to by the chairman of the Indian Affairs Committee on many occasions.
  I urge my colleagues to support my amendment.

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