[Federal Register Volume 65, Number 142 (Monday, July 24, 2000)]
[Proposed Rules]
[Pages 45558-45566]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-18527]


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NATIONAL INDIAN GAMING COMMISSION

25 CFR Part 580

RIN 3141-AA04


Environment, Public Health and Safety

AGENCY: National Indian Gaming Commission.

ACTION: Proposed rule.

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SUMMARY: The National Indian Gaming Commission (Commission) proposes 
regulations that provide for adequate protection of the environment, 
public health and safety under the Indian Gaming Regulatory Act (Act). 
These regulations would implement the provisions of the Act which 
require that tribal gaming facilities be constructed, maintained and 
operated in a manner which protects the environment, public health and 
safety. The primary effect of this action is to have gaming tribes 
regulated by the Act develop and implement environment, public health 
and safety standards at their gaming operations. This regulation will 
establish a process through which the Commission and tribal 
government(s) exercise concurrent regulatory authority in enforcing 
these standards.

DATES: Comments may be submitted on or before November 30, 2000. A 
public hearing will be held on October 25, 2000 at 10:00 am.

ADDRESSES: Comments may be mailed to: Environment, Public Health and 
Safety Comments, National Indian Gaming Commission, 1441 L Street, NW, 
Suite 9100, Washington, DC 20005, delivered to that address between 
8:30 a.m. and 5:30 p.m., Monday through Friday, or faxed to 202/632-
7066 (this is not a toll-free number). Comments received may be 
inspected between 9:00 a.m. and noon, and between 2:00 p.m. and 5:00 
p.m., Monday through Friday. The public hearing will be held in 
Washington, DC.

FOR FURTHER INFORMATION CONTACT: Christine Nagle at 202/632-7003; fax 
202/632-7066 (these are not toll-free numbers).

SUPPLEMENTARY INFORMATION: The Indian Gaming Regulatory Act (IGRA, or 
the Act), enacted on October 17, 1988, established the National Indian 
Gaming Commission (Commission). Under the Act, the Commission is 
charged with regulating gaming activities on Indian lands. The Act 
expressly authorizes the Commission to ``promulgate such regulations 
and guidelines as it deems appropriate to implement provisions of this 
(Act).'' 25 U.S.C. 2706(b)(10).
    The regulations proposed today would implement the Commission's 
authority to issue environment, public health and safety regulations. 
This criteria is set forth in 25 U.S.C. 2710 (b)(2)(E) and provides 
that tribal ordinances or resolutions submitted for the Chairman's 
approval ensure that ``the construction and maintenance of the gaming 
facility, and the operation of that gaming (facility) (sic) is 
conducted in a manner which adequately protects the environment and the 
public health and safety.''
    On April 27, 1999, the Commission issued an Advance Notice of 
Proposed Rulemaking regarding the establishment of environment, public 
health and safety procedures. After reviewing the information solicited 
through this notice, the Commission decided to move forward with 
proposed regulations. In November 1999, a Tribal-Commission Advisory 
Committee was formed to consult on the project. The Commission 
attempted to assemble a diverse advisory committee that represented the 
interests of a broad range of gaming tribes. During the period from 
November 1999 through May 2000, the Commission and the Tribal Advisory 
Committee met four times to develop a regulatory proposal. Ultimately, 
the Commission and the Committee selected an approach that strikes a 
balance between the inherent authority of tribal governments and the 
statutory authority of the Commission. This approach enables the 
Commission to meet its regulatory responsibilities without creating a 
set of substantive standards that may be inconsistent with existing 
provisions of tribal law or tribal-state gaming compacts.
    The Commission's decision to propose this regulation is based 
primarily on three considerations: (1) The need to ensure that adequate 
environment, public health and safety programs are in place at all 
Indian gaming operations; (2) the need to set forth applicable 
standards for these programs so that the tribes and the Commission will 
have notice of compliance requirements; and (3) the impediment to 
effective enforcement that exists in the absence of a clear statement 
of applicable standards.
    In proposing this regulation, the Commission is aware that many 
tribes have taken steps to ensure that their gaming facilities are 
constructed, maintained, and operated in a manner, which protects the 
environment, and public health and safety. The Commission notes, 
however, that there is no existing regulatory mechanism to ensure that 
adequate protections are in place at all Indian gaming facilities. In 
the view of the Commission, the most effective means of ensuring that 
adequate programs are implemented on an industry wide basis is to 
promulgate a rule which would be applicable to all gaming tribes. In 
addition, in the last several years the Commission has encountered a 
number of potential threats to the environment, public health, and 
safety at Indian gaming facilities. In assessing these matters it is 
apparent that, absent a rulemaking which sets forth applicable 
standards, neither tribal governments nor the Commission have a viable 
means of determining whether tribes are in compliance with requirements 
of the Act. Moreover, the absence of a clear statement of applicable 
standards creates an impediment to effective enforcement for both 
tribes and the Commission.
    The proposed rule applies whenever an Indian tribe undertakes the 
ownership, operation, regulation, or licensing of gaming facilities on 
Indian lands as defined by the Act. Under this regulation, tribal 
government(s) are encouraged to assume the full responsibility for the 
development, and implementation of environment, public health and 
safety laws, codes, ordinances and resolutions applicable to their 
gaming operation(s). To comply with this rule, a gaming tribe must 
prepare and submit to the Commission an environment, public health and 
safety plan (Plan) which sets forth the

[[Page 45559]]

tribe's policies for ensuring that its gaming operations do not pose a 
threat to the environment, public health and safety. Under this 
regulation, the Plan is to contain the tribe's policies for the 
development, implementation, and enforcement of environmental, public 
health and safety standards for its gaming operation(s); describe the 
tribe's standards, regulatory structure(s), and enforcement program(s) 
in place or to be implemented to ensure that the environment, public 
health and safety of its gaming operation(s) are adequately protected; 
and meet the requirements of Sec. 580.20 of the regulation. Section 
580.20 includes requirements for emergency preparedness, construction, 
maintenance and operation, drinking water and food, use, storage and 
disposal of hazardous materials, and sanitation and waste disposal.
    The Commission will review the Plans to ensure that they comply 
with requirements in this rule. A preliminary review will be conducted 
at the time of submission to ensure completeness and to notify the 
tribe of any apparent deficiencies. Tribes will be notified at the time 
the Commission undertakes a formal review of their Plan. The 
Commission's role in enforcing compliance with this regulation focuses 
on the tribe's compliance with its Plan. The Commission's oversight of 
such Plans will provide a comprehensive mechanism for ensuring that all 
tribal gaming facilities are constructed, maintained and operated in 
the manner required under the Act.
    Therefore, pursuant to 25 U.S.C. 2710(b)(2)(E), these regulations 
are being proposed to establish the adequate protection of the 
environment, public health and safety at Indian gaming operations 
regulated by the Act.

Regulatory Flexibility Act

    The Commission certifies that this document will not have a 
significant economic effect on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Indian 
tribes are not considered to be small entities for purposes of the 
Regulatory Flexibility Act.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This proposed rule is not a major rule as defined by section 804 of 
the Small Business Regulatory Enforcement Fairness Act of 1996. This 
proposed rule will not: (1) Result in an annual effect on the economy 
of $100 million or more; (2) cause a major increase in costs or prices 
for consumers, individual industries, Federal, State or local 
government agencies or geographic regions; and (3) have significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or the ability of United States-based enterprises to 
compete with foreign-based companies in domestic and export markets.

Unfunded Mandates Reform Act

    The Commission has determined that this proposed 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. The Commission 
has determined that this proposed rule may have a unique effect on 
tribal governments, as this rule applies exclusively to tribal 
governments, whenever they undertake the ownership, operation, 
regulation, or licensing of gaming facilities on Indian lands as 
defined by the Indian Gaming Regulatory Act. Thus, in accordance with 
section 203 of the Unfunded Mandates Reform Act, the Commission has 
developed a small government agency plan which provides tribal 
governments with adequate notice, opportunity for ``meaningful'' 
consultation, and information, advice and education on compliance.
    The Commission's small government agency plan includes: formation 
of a tribal advisory committee; discussions with Tribal leaders and 
tribal associations; preparation of guidance material and model 
documents; and technical assistance. During the period from November 
1999 through May 2000, the Commission and the Tribal Advisory Committee 
met four times to develop a regulatory proposal. In selecting committee 
members, consideration was placed on the current level of 
environmental, public health and safety regulation exercised by the 
tribe represented, the applicant's experience in this area, as well as 
the size of the tribe the nominee represented, geographic location of 
the gaming operation and the size and type of gaming conducted. The 
Commission attempted to assemble a committee that incorporates 
diversity and is representative of Indian gaming interests. Since 
beginning formulation of this proposed rule, the Commission spoke at 
three tribal association meetings and held three field consultations 
with tribes. The Commission is in the process of developing guidance 
materials that will include a model Environment, Public Health and 
Safety Plan. The Commission will meet with the Tribal Advisory 
Committee to discuss the public comments that are received as a result 
of publication of this proposed rule. Lastly, prior to the 
implementation deadline of this proposed rule, the Commission will hold 
numerous regional technical assistance workshops.

Paperwork Reduction Act

    The Commission is in the process of obtaining clearance from the 
Office of Management and Budget (OMB) for the information collection 
requirements contained in this proposed rule, as required by 44 U.S.C. 
3501 et seq. The information required to be submitted is identified in 
Secs. 580.20-580.30, and will be used to determine compliance with this 
part.
    The public reporting burden for this collection of information is 
estimated to average 150 hours, to initially prepare an Environmental, 
Public Health and Safety Plan, including the time for reviewing 
instructions, gathering and maintaining the data needed, and completing 
and reviewing the collection of information. The Commission estimates 
that information needed to maintain the Plan will require an annual 
burden of 190 hours. It is estimated that an additional 21 hours will 
be required to prepare, and gather the data needed, and to complete the 
collection of information necessary to prepare for plan renewal. Plans 
need to be renewed every five years.
    Public reporting burden for this collection of information is 
estimated to average 361 hours per year including the time for initial 
Plan preparation, monitoring, recordkeeping and Plan renewal 
preparation. The Commission estimates that approximately 198 tribes 
will need to file an Environmental, Public Health and Safety Plan for 
an annual burden of 71,478 hours.
    Send comments regarding this collection of information, including 
suggestions for reducing the burden to both, Environment, Public Health 
and Safety Comments, National Indian Gaming Commission, 1441 L Street 
NW, Suite 9100, Washington, DC 20005; and to the Office of Information 
and Regulatory Affair, Office of Management and Budget, Washington, DC 
20503. The Office of Management and Budget (OMB) has up to 60 days to 
approve or disapprove the information collection, but may respond after 
30 days; therefore public comments should be submitted to OMB within 30 
days in order to assure their maximum consideration.
    The Commission solicits public comment as to:
    a. Whether the collection of information is necessary for the 
proper performance of the functions of the Commission, and whether the 
information will have practical utility;
    b. The accuracy of the Commission's estimate of the burden of the 
collection

[[Page 45560]]

of information, including the validity of the methodology and 
assumptions used;
    c. The quality, utility, and clarity of the information to be 
collected; and
    d. How to minimize the burden of the collection of information on 
those who are to respond, including the use of appropriate automated 
electronic, mechanical, or other forms of information technology.
    An agency may not conduct, and a person is not required to respond 
to a collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act

    The Commission has determined that this proposed 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).

Takings (Executive Order 12630)

    The Commission has determined that this proposed rule does not have 
significant ``takings'' implications. Thus, a takings implications 
assessment is not required.

Federalism (Executive Order 12612)

    The Commission has determined that this proposed rule does not have 
significant Federalism effects because it pertains solely to Federal-
tribal relations and will not interfere with the roles, rights and 
responsibilities of States.

Civil Justice Reform (Executive Order 12988)

    In accordance with Executive Order 12988, the Commission has 
determined that this proposed rule does not unduly burden the judicial 
system and meets the requirements of sections 3(a) and 3(b)(2) of the 
Order.

Montie R. Deer,
Chairman.

List of Subjects in 25 CFR Part 580

    Environment, Gambling, Health and safety, Indians-lands, Indians-
Tribal government.

    For the reasons stated in the preamble, the National Indian Gaming 
Commission proposes to amend 25 CFR by adding a new part 580 as 
follows:

PART 580--PROTECTING THE ENVIRONMENT, PUBLIC HEALTH, AND SAFETY

Subpart A--Requirement for an Environment, Public Health, and Safety 
Plan
Sec.
580.2   What is the purpose of this part?
580.3   When does this part apply?
580.4   What is the scope of this part?
580.5   How does a tribe comply with this part?
580.6   What is the Environment, Public Health, and Safety Plan?
580.7   What is the effect of a tribe's Compliance with this Part?
Subpart B--Contents of an Environment, Public Health and Safety Plan
580.20   What must the tribe include in its Plan?
580.22   What emergency preparedness information must the tribe 
include?
580.24   What construction, maintenance and operation information 
must the tribe include?
580.26   What information must the tribe include on drinking water 
and food?
580.28   What information must the tribe include on use, storage, 
and disposal of hazardous materials?
580.30   What information must the tribe include on sanitation and 
waste disposal?
580.32   What legal/regulatory standards and enforcement programs 
does the tribe have in place to carry out its Plan?
580.34   What if the tribe does not have legal/ regulatory standards 
and/or enforcement programs in place?
580.36   Can the tribe assign its Plan compliance functions to 
another entity?
580.38   When must the tribe submit its Plan?
580.40   What is a Certificate of Assurance?
580.42   Where does the tribe send its Plan?
Subpart C--Plan Review Process
580.50   Who will review a tribe's Plan?
580.52   What happens when a tribe submits its Plan?
580.54   What are the steps of the review process?
580.56   What factors will be considered in the review of the 
tribe's Plan?
580.58   How is a Notice of Intent to Disapprove issued?
Subpart D--Appeals
580.60   What actions can the tribe take if it receives a Notice of 
Intent to Disapprove?
580.62   What happens if the tribe fails to correct deficiencies 
identified by the Commission or file an appeal within the specified 
timeframes?
580.64   If the Reviewing Commissioner issues a Notice of 
Disapproval, may the tribe appeal?
580.66   How will the Commission handle the tribe's appeal under 
Sec. 580.64?
Subpart E--Inspections, Enforcement, and Recordkeeping
580.70   When must a tribe revise its Plan?
580.72   What must a tribe do in order to revise its Plan?
580.74   Does a change of management at a gaming operation require a 
tribe to revise its Plan?
580.76   Does the tribe have to renew its Plan?
580.78   What must a tribe do to renew its Plan?
580.80   How will the Commission review the new Plan?
580.88   When can the Commission conduct an on-site inspection?
580.90   What procedures will the Commission follow in an 
enforcement action taken pursuant to this part?
580.92   What are some examples of violations that may result in an 
enforcement action?
580.94   If the tribe has signed a Tribal-State compact, will the 
tribe have to comply with two sets of standards?
580.96   Does this part affect the regulatory authority of any other 
governmental entity or alter tribal-state gaming compacts?
580.98   What records must the tribe keep?
580.100   How long must the tribe maintain the types of records 
outlined in Sec. 580.98?

    Authority: 25 U.S.C. 2710.

Subpart A--Requirement for an Environment, Public Health, and 
Safety Plan


Sec. 580.2  What is the purpose of this part?

    The purpose of this part is to:
    (a) Ensure that tribal gaming facilities are constructed, 
maintained and operated in a manner that adequately protects the 
environment, public health and safety as required by the Indian Gaming 
Regulatory Act (Act);
    (b) Establish a process through which the National Indian Gaming 
Commission (Commission) and tribal government(s) coordinate the 
exercise of concurrent regulatory jurisdiction over gaming operations 
on Indian lands in relation to the environment and public health and 
safety; and
    (c) Encourage tribal government(s) to assume the fullest 
responsibility for the administration and enforcement of tribal 
environmental, public health and safety laws, codes, ordinances and 
other tribal enactments applicable to gaming operations on Indian 
lands.


Sec. 580.3  When does this part apply?

    This part applies when an Indian tribe undertakes the ownership, 
operation, regulation, or licensing of gaming facilities on Indian 
lands over which it has jurisdiction, under the provisions of the Act.


Sec. 580. 4  What is the scope of this part?

    This part pertains to the development, regulation, and enforcement 
of environment, public health and safety standards applicable to a 
tribe's gaming operation(s), and covers the area(s) where gaming 
activities are conducted; parking areas used primarily for gaming 
patrons; and any other area(s) over which the tribe's gaming regulatory 
body has jurisdiction under the tribe's approved gaming ordinance.

[[Page 45561]]

Sec. 580.5  How does a tribe comply with this part?

    In order to comply with this part, a tribe must:
    (a) Prepare an Environmental, Public Health and Safety Plan (Plan) 
in accordance with Sec. 580.20 of this part;
    (b) Submit the Plan to the Commission in accordance with provisions 
of Sec. 580.38 of this part;
    (c) Meet all the requirements contained in this part; and
    (d) Comply with the provisions contained in its Plan.


Sec. 580.6  What is the Environment, Public Health, and Safety Plan?

    The Plan is the document that a tribe must prepare and submit to 
the Commission for approval in order to comply with this part. The Plan 
must:
    (a) Contain the tribe's strategy for the development, 
implementation, and enforcement of its environmental, public health and 
safety standards for gaming operation(s) on its Indian lands;
    (b) Describe the tribe's standards, regulatory structure(s), and 
enforcement program(s) in place or to be implemented to ensure that the 
environment, public health and safety of its gaming operation(s) are 
adequately protected; and
    (c) Meet the requirements of Sec. 580.20.


Sec. 580.7  What is the effect of a tribe's compliance with this part?

    Tribal compliance with this Part provides the mechanism through 
which the Commission will recognize the tribal government's primary 
regulatory and enforcement authority in the area of environment, public 
health and safety. The Commission will focus its regulatory activities 
on: Reviewing and processing Plan submissions; monitoring tribal 
compliance with its Plan; and responding to emergencies. Routine 
oversight and enforcement will be considered the primary responsibility 
of the appropriate tribal governmental agency and/or other governmental 
entity delineated in the Plan.

Subpart B--Contents of an Environment, Public Health and Safety 
Plan


Sec. 580.20  What must the tribe include in its plan?

    The Plan must contain all of the information shown in the following 
table.

----------------------------------------------------------------------------------------------------------------
                   The Plan must contain--                                   Which must include--
----------------------------------------------------------------------------------------------------------------
(a) Complete identifying information........................  (1) The tribe's name and the name(s) of the gaming
                                                               operation(s);
                                                              (2) The owner, operator, licensing body and/or
                                                               management contractor of the gaming operation(s);
                                                              (3) The contact person; and
                                                              (4) A description of the gaming operation(s)
                                                               including: location(s), size in square feet, days
                                                               and hours of operation, and maximum occupancy
                                                               load.
(b) An emergency preparedness section.......................  A description of the tribe's policies, procedures,
                                                               standards, compliance monitoring, enforcement
                                                               program(s), and qualified personnel in place to
                                                               handle emergencies. See Sec.  580.22 for further
                                                               guidance on how to comply with this requirement.
(c) A construction, maintenance and operation section.......  A description of the tribe's policies, operating
                                                               procedures, standards, compliance monitoring
                                                               system, enforcement program(s) and qualified
                                                               personnel in place for construction, maintenance
                                                               and operation. Certification that any mitigation
                                                               measures required by the Commission pursuant to
                                                               the National Environmental Policy Act (NEPA) have
                                                               been completed. See Sec.  580.24 for further
                                                               guidance on how to comply with this requirement.
(d) A drinking water and food section.......................  A description of the tribe's policies, operating
                                                               procedures, standards, compliance monitoring
                                                               system, enforcement program(s) and qualified
                                                               personnel in place for drinking water and food
                                                               preparation and handling. See Sec.  580.26 for
                                                               further guidance on how to comply with this
                                                               requirement.
(e) A use, storage and disposal of hazardous materials        A description of the tribe's policies, operating
 section.                                                      procedures, standards, compliance monitoring
                                                               system, enforcement program(s) and qualified
                                                               personnel in place for use, storage and disposal
                                                               of hazardous materials. The tribe must describe
                                                               how it will use, store and dispose of hazardous
                                                               materials, including but not limited to: paints,
                                                               solvents, pesticides, cleaning agents, and fuels
                                                               if they are used as part of the construction,
                                                               operation or maintenance of the gaming operation.
                                                               See Sec.  580.28 for further guidance on how to
                                                               comply with this requirement.
(f) A sanitation and waste disposal section.................  A description of the tribe's policies, operating
                                                               procedures, standards, compliance monitoring
                                                               system, enforcement program(s) and qualified
                                                               personnel in place for sanitation and waste
                                                               disposal. See Sec.  580.30 for further guidance
                                                               on how to comply with this requirement.
(g) Documentation showing that the tribe has an adequate      (1) Identification of the legal standards the
 program(s) to carry out the Plan.                             tribe will use to carry out the provisions of its
                                                               Plan, including either citations to or copies of
                                                               the applicable tribal ordinances, resolutions,
                                                               regulations or other governing instruments;
                                                              (2) Identification of each tribal governing body
                                                               responsible for administering the Plan, or part
                                                               thereof;
                                                              (3) A description or copy of the procedures the
                                                               tribe will use to enforce compliance with the
                                                               Plan;
                                                              (4) A description or copy of the procedures the
                                                               tribe will use to monitor compliance with the
                                                               Plan, including permitting processes, and
                                                               inspection, license, reporting, monitoring and
                                                               record keeping requirements;
                                                              (5) Certification that individuals responsible for
                                                               oversight, planning, and implementation of the
                                                               Plan have the minimum qualifications necessary to
                                                               discharge their responsibilities;
                                                              (6) A description of the record keeping system
                                                               containing employee/contractor training,
                                                               education, certifications, licenses, work
                                                               experience, and continuing education requirements
                                                               for each section of the Plan;
                                                              (7) Certification that the tribe will devote
                                                               sufficient resources to carry out the tribe's
                                                               Plan;
                                                              (8) Certification that the tribe's standards meet
                                                               all of the requirements contained in Sec.
                                                               580.32.
(h) Documentation showing that the tribe's standards are at   Certification that the standards identified in the
 least as stringent as federal or other standards commonly     Plan are at least as stringent as federal or
 used in surrounding jurisdictions.                            other standards commonly used in surrounding
                                                               jurisdictions.
(i) Complete identifying information for each entity          (1) The official title and responsibilities of
 responsible for compliance with standards identified in the   each tribal entity; and/or
 Plan.                                                        (2) A description or copy of all pertinent
                                                               agreements with any non-tribal entity.
----------------------------------------------------------------------------------------------------------------


[[Page 45562]]

Sec. 580.22  What emergency preparedness information must the tribe 
include?

    To meet the requirements of Sec. 580.20(b), the tribe must include 
the following information in the emergency preparedness section of its 
Plan:

----------------------------------------------------------------------------------------------------------------
                            For--                                  The tribe must include a description of--
----------------------------------------------------------------------------------------------------------------
(a) Accidents, injuries, and medical emergencies............  (1) The steps taken to prevent, prepare for, and
                                                               respond to accidents, injuries, and medical
                                                               emergencies; and
                                                              (2) The trained emergency medical personnel,
                                                               ambulance service, medical transport, and medical
                                                               facilities serving the tribe's gaming operation.
(b) Natural and Other Disasters.............................  (1) Identification of the range of natural
                                                               disasters associated with the tribe's geographic
                                                               area, or other disasters that might create a
                                                               serious threat to the environment, public heath
                                                               and safety;
                                                              (2) The steps taken to prepare for and respond to
                                                               the identified disasters;
                                                              (3) Evacuation procedures; and
                                                              (4) The incident response system, which may also
                                                               include, back-up communications, mock drills,
                                                               equipment testing, back-up power and water
                                                               systems, and hazardous materials response.
(c) Fire....................................................  (1) The steps taken to prevent, prepare for and
                                                               respond to fire emergencies;
                                                              (2) Evacuation procedures;
                                                              (3) The alarm systems in place; and
                                                              (4) The availability of fire fighting services,
                                                               trained personnel, and fire suppression systems.
(d) Security threats........................................  (1) The steps taken to prepare for and respond to
                                                               security threats, including bomb threats,
                                                               unlawful intrusions, criminal acts and other
                                                               foreseeable security risks;
                                                              (2) Evacuation procedures; and
                                                              (3) The availability of law enforcement services.
----------------------------------------------------------------------------------------------------------------

Sec. 580.24  What construction, maintenance and operation information 
must the tribe include?

    Section 580.20(c) requires that the tribe include in its Plan a 
description of the policies, operating procedures, standards, 
compliance monitoring system, enforcement program and qualified 
personnel in place for construction, maintenance and operation, and 
certification that any mitigation measures required by the Commission 
pursuant to the National Environmental Policy Act (NEPA) have been met. 
The following table shows examples of the documents that the tribe can 
describe or include to help satisfy this requirement.

----------------------------------------------------------------------------------------------------------------
                                                               Some examples of information that will meet this
                            For--                                            requirement include--
----------------------------------------------------------------------------------------------------------------
(a) Construction standards..................................  (1) The building code that the tribe follows;
                                                              (2) The criteria that the tribe uses for plumbing,
                                                               electrical and mechanical systems; and
                                                              (3) The practices that the tribe follows for
                                                               managing sediment and stormwater.
(b) Preventative Maintenance and Repair.....................  (1) Maintenance and inspection schedules for
                                                               heating and air conditioning systems, elevators,
                                                               parking areas, and stormwater management
                                                               facilities; and
                                                              (2) Procedures and schedules in place for ensuring
                                                               the safe operation of energy sources used to
                                                               supply the gaming operation(s) and records
                                                               systems for inspections, maintenance, and repair.
----------------------------------------------------------------------------------------------------------------

Sec. 580.26  What information must the tribe include on drinking water 
and food?

    Section 580.20(d) requires that the tribe include in its Plan a 
description of its policies, operating procedures, standards, 
compliance monitoring systems, enforcement programs and qualified 
personnel in place for drinking water and food preparation and 
handling. The following table shows examples of the documents that the 
tribe can describe or include to help satisfy this requirement.

----------------------------------------------------------------------------------------------------------------
                                                               Some examples of information that will meet this
                            For--                                            requirement include--
----------------------------------------------------------------------------------------------------------------
(a) Drinking water..........................................  (1) The water system that supplies the gaming
                                                               operation;
                                                              (2) The amount of storage maintained and/or
                                                               whether a back-up source is available;
                                                              (3) The inspection and testing program, including
                                                               the responsible entity; and
                                                              (4) An emergency plan to respond to contamination.
(b) Food Preparation and Handling...........................  (1) The inspection and testing program, including
                                                               the responsible entity;
                                                              (2) Measures used to ensure proper temperature
                                                               control of food;
                                                              (3) Methods used to educate employees on proper
                                                               hygienic practices; and
                                                              (4) Control measures used to prevent food
                                                               contamination.
----------------------------------------------------------------------------------------------------------------

Sec. 580.28  What information must the tribe include on use, storage, 
and disposal of hazardous materials?

    Section 580.20(e) requires that the tribe include in its Plan a 
description of the tribe's policies, operating procedures, standards, 
compliance monitoring systems, enforcement programs and qualified 
personnel in place for use, storage and disposal of hazardous 
materials. The tribe must describe how it will use, store and dispose 
hazardous material including but not limited to: Paints, solvents, 
pesticides, cleaning agents, and fuels if they are used as part of the 
construction, operation or maintenance of the gaming operation.

----------------------------------------------------------------------------------------------------------------
                                                               Some examples of information that will meet this
                            For--                                            requirement include--
----------------------------------------------------------------------------------------------------------------
(a) Use and handling........................................  (1) Certification, licensing, or other methods
                                                               used to make sure persons using or handling
                                                               hazardous materials have been trained
                                                               appropriately; and
                                                              (2) A copy of the tribe's written procedures for
                                                               use and handling hazardous materials.

[[Page 45563]]

 
(b) Storage.................................................  (1) The methods used to control access to
                                                               hazardous materials;
                                                              (2) The spill-prevention and response plan; and
                                                              (3) Methods used to ensure hazardous materials are
                                                               placed in proper containers and that containers
                                                               are labeled properly.
(c) Disposal................................................  (1) The guidelines that have been adopted for the
                                                               proper disposal of hazardous materials; and
                                                              (2) Any agreements in place with local governments
                                                               or private contractors.
----------------------------------------------------------------------------------------------------------------

Sec. 580.30  What information must the tribe include on sanitation and 
waste disposal?

    Section 580.20(f) requires that the tribe include in its Plan a 
description of its policies, operating procedures, standards, 
compliance monitoring systems, enforcement programs and qualified 
personnel in place for sanitation and waste disposal. The following 
table shows examples of the documents that the tribe can describe or 
include to help satisfy this requirement.

----------------------------------------------------------------------------------------------------------------
                                                               Some examples of information that will meet this
                            For--                                            requirement include--
----------------------------------------------------------------------------------------------------------------
(a) Solid waste.............................................  (1) The methods used to dispose of solid waste;
                                                              (2) Recycling or pollution prevention plans in
                                                               place; and
                                                              (3) Any agreements in place with local governments
                                                               or private contractors.
(b) Wastewater and Sewage Disposal..........................  (1) The treatment and/or disposal system being
                                                               used;
                                                              (2) Any agreements in place with local government
                                                               or private contractors;
                                                              (3) If wastewater is treated or disposed of on-
                                                               site, the maintenance program and qualification
                                                               criteria for plant operators.
(c) Bio-hazard disposal.....................................  (1) The disposal program in place.
                                                              (2) Any agreements in place with local governments
                                                               or private contractors.
----------------------------------------------------------------------------------------------------------------

Sec. 580.32  What regulatory standards and enforcement programs does 
the tribe have in place to carry out its Plan?

    To comply with the requirements of Sec. 580.20(g), the Plan must 
show that the tribe has in place regulatory standards and enforcement 
programs to do all of the following:
    (a) Require gaming operations under the tribe's jurisdiction to be 
constructed, operated and maintained in a manner that adequately 
protects the environment, public health and safety;
    (b) Adopt and implement tribal standards for the following areas: 
Emergency Preparedness; Construction, Maintenance and Operation; 
Drinking Water and Food; Use, Storage and Disposal of Hazardous 
Materials; and Sanitation and Waste Disposal;
    (c) Monitor compliance with the Plan, through a program that 
includes inspections, monitoring, reporting, record keeping 
requirements, and permitting and licensing;
    (d) Enforce applicable laws, regulations, and standards;
    (e) Ensure that individuals responsible for oversight, planning, 
and implementing the Plan have the appropriate qualifications; and
    (f) Ensure that the tribe will allocate adequate resources to carry 
out the Plan.


Sec. 580.34  What if the tribe does not have legal / regulatory 
standards and/or enforcement programs in place?

    The tribe shall adopt such standards and/or such program(s) or the 
Plan should specify if the tribe has an intergovernmental agreement or 
the government entity, which will meet the requirements of Sec. 580.20.


Sec. 580.36  Can the tribe assign its Plan compliance functions to 
another entity?

    A tribe may enter into an agreement with a federal, state, or local 
government or contract with a private entity to provide services or 
functions necessary to carry out its Plan or any portion thereof, 
however, this does not relieve the tribe of its responsibility to 
comply with the Plan, or any portion thereof.


Sec. 580.38  When must the tribe submit its Plan?

    The tribe must submit its Plan to the Commission as shown in the 
following table.

------------------------------------------------------------------------
    If the tribe's gaming     then the tribe must--
       operation is--                                       and--
------------------------------------------------------------------------
(a) Already in existence on   Submit the tribe's
 the effective date of this    Plan within twelve
 part.                         (12) months of the
                               effective date of
                               this part.
(b) Under construction on     Submit a Certificate  Submit the tribe's
 the effective date of this    of Assurance within   Plan within twelve
 part.                         ninety (90) days of   (12) months of the
                               the effective date    effective date of
                               of this part.         this part or at
                                                     least sixty (60)
                                                     days before the
                                                     tribe opens the
                                                     gaming operation
                                                     whichever is later.
(c) Not in existence, or      Submit a Certificate  Submit the tribe's
 under construction, on the    of Assurance before   Plan at least sixty
 effective date of this part.  engaging in any       (60) days before
                               construction          the tribe opens the
                               activity.             gaming operation.
------------------------------------------------------------------------


[[Page 45564]]

Sec. 580.40  What is a Certificate of Assurance?

    A Certificate of Assurance is a written pledge from the tribal 
government stating that the tribe's construction standards meet or 
exceed federal, or other standards commonly used in jurisdictions 
surrounding the gaming operation and that systems are in place to 
monitor compliance and enforcement of such standards. At a minimum, the 
construction standards must include:
    (a) The building code followed;
    (b) The criteria the tribe will use for plumbing, mechanical and 
electrical system; and
    (c) The practices the tribe will follow for managing sediment and 
stormwater.


Sec. 580.42  Where does the tribe send its Plan?

    The tribe sends the Plan by certified mail return receipt requested 
to: The National Indian Gaming Commission Environment, Public Health, 
and Safety 1441 L Street, NW, Suite 9100 Washington, DC 20005.

Subpart C-Plan Review Process


Sec. 580.50  Who will review a tribe's Plan?

    The Chairman shall appoint one Commissioner to oversee the Plan 
approval process and make the initial determination on whether the 
tribe's Plan meets the approval criteria.


Sec. 580.52  What happens when a tribe submits its Plan?

    A tribal Plan becomes effective on the date it is mailed to the 
address listed in Sec. 580.42 and remains in effect through completion 
of the review process.


Sec. 580.54  What are the steps of the review process?

    There are two steps in the Plan review process:
    (a) Preliminary Review. (1) The preliminary review process is the 
first step. During this stage, the Reviewing Commissioner will:
    (i) Review a tribe's Plan for completeness in accordance with 
Secs. 580.20 and 580.56; and
    (ii) Request any additional information needed to initiate the 
formal review process.
    (2) The Reviewing Commissioner may also:
    (i) Notify the tribe of any apparent deficiencies in its compliance 
with Secs. 580.20 and 580.56; or
    (ii) Contact the tribal entities or federal, state, or local 
entities identified in the Plan to clarify information contained 
therein.
    (b) Formal Review. (1) The formal review process is the final stage 
of the review process, which commences when the Reviewing Commissioner 
notifies the tribe that the formal review of the tribe's Plan is 
underway. The formal review process will be concluded within ninety 
(90) days from the date the tribe is sent notice that the formal review 
process is underway. During the formal review process, the Reviewing 
Commissioner will:
    (i) Notify the tribe by certified mail that the review process has 
been initiated. The notice will sent to the contact person identified 
by the tribe in its Plan;
    (ii) Review the Plan;
    (iii) Determine whether the Plan meets the criteria specified in 
Secs. 580.20, 580.32 and 580.56; and
    (iv) Send written Notice of Approval to the contact person listed 
in the tribe's Plan; or
    (v) Send the tribe a Notice of Intent to Disapprove in accordance 
with Sec. 580.58.
    (2) As part of the formal review process:
    (i) On-site inspections may be conducted;
    (ii) Consultation with the tribal entities or federal, state, or 
local entities identified in the Plan may take place; or
    (iii) Documentation or any other information deemed pertinent to 
the Reviewing Commissioner's formal review of the Plan may be 
requested.


Sec. 580.56  What factors will be considered in the review of the 
tribe's Plan?

    Review of the tribe's Plan will look for adherence to the criteria 
in Secs. 580.20 and 580.32, and will consider whether:
    (a) The standards in the tribe's Plan are at least as stringent as 
the federal standards or standards commonly used in surrounding 
jurisdictions;
    (b) The tribe will exercise authority under the Plan through 
appropriate means;
    (c) The tribe has established compliance monitoring procedures to 
carry out the Plan;
    (d) The tribe has allocated sufficient resources to carry out its 
Plan;
    (e) The tribe has procedures ensuring that the individuals 
responsible for oversight, planning, and implementation of the areas of 
coverage have the appropriate qualifications to discharge their 
responsibilities; and
    (f) The tribe's Plan adequately addresses all of the criteria in 
Secs. 580.20 and 580.32.


Sec. 580.58  How is a Notice of Intent to Disapprove issued?

    A Notice of Intent to Disapprove will be sent by certified mail to 
the contact person listed in the Plan. The Notice will contain:
    (a) A description of the deficiencies that have been identified;
    (b) The steps the tribe must take to cure the deficiencies;
    (c) The legal authority under which the notice is being issued; and
    (d) A deadline by which the tribe must correct the deficiencies 
identified under paragraph (a) of this section.

Subpart D-Appeals


Sec. 580.60  What actions can the tribe take if it receives a Notice of 
Intent to Disapprove?

    (a) The tribe may submit a revised Plan curing the deficiencies 
identified in the Notice of Intent to Disapprove within the timeframe 
specified in the notice; or
    (b) The tribe can request that the Reviewing Commissioner hold a 
hearing by following the procedures contained in this section. To 
request a hearing under this part the tribe must:
    (1) Submit a request for a hearing in writing within thirty (30) 
days of receiving a Notice of Intent to Disapprove. The tribe's request 
must specify:
    (i) The tribe's objections to the Reviewing Commissioner's 
preliminary determination and submit all evidence and other 
documentation supporting the tribe's objections;
    (ii) Any oral or written testimony that the tribe wants to present.
    (2) Within fifteen (15) days of receiving the tribe's request, the 
tribe will be notified of the:
    (i) Date and place of the hearing;
    (ii) Schedule for conducting the hearing, including the order of 
presentation;
    (iii) Issues to be addressed;
    (iv) Witnesses that can be called; and
    (v) Time allotted for testimony and oral argument.
    (3) The Reviewing Commissioner will issue a decision within sixty 
(60) days after the hearing.


Sec. 580.62  What happens if the tribe fails to correct deficiencies 
identified or file an appeal within the specified timeframes?

    If the tribe fails to cure the deficiencies or file an appeal of 
the Notice of Intent to Disapprove within the specified timeframe, a 
Notice of Disapproval will be issued and an enforcement action under 25 
CFR part 573 may be initiated.


Sec. 580.64  If the Reviewing Commissioner issues a Notice of 
Disapproval, may the tribe appeal?

    Yes. A tribe may appeal the Reviewing Commissioner's disapproval of 
its Plan to the full Commission. Such an appeal shall be filed within 
thirty (30) days after the tribe receives a Notice of Disapproval. Such 
an appeal shall state why the tribe believes the

[[Page 45565]]

Reviewing Commissioner's determination to be erroneous, and shall 
include supporting documentation, if any. Failure to file an appeal 
within the time provided by this section shall result in a waiver of 
the opportunity for an appeal.


Sec. 580.66  How will the Commission handle the tribe's appeal under 
Sec. 580.64?

    (a) Such appeal must be received by the Commission within thirty 
(30) days of the service of the decision and shall include a 
supplemental statement that states with particularity the relief 
desired and the grounds therefore. The Commission shall decide the 
appeal based only on a review of the record before it. The decision on 
appeal shall require a majority vote of the Commissioners.
    (b) The decision of the Commission to approve or disapprove a 
tribe's Plan shall be a final agency action. A Commission denial shall 
be appealable under 25 U.S.C. 2714.

Subpart E--Inspections, Enforcement, and Recordkeeping


Sec. 580.70  When must a tribe revise its Plan?

    A tribe must revise its Plan whenever there is a material change 
that affects the tribe's ability to carry out its Plan. Some examples 
of changes that are likely to require a Plan revision include, but are 
not limited to:
    (a) Substantial changes in tribal codes, ordinances, regulations, 
or compact provisions;
    (b) Substantial changes to or termination of intergovernmental 
agreements;
    (c) Structural expansions, renovations, or modifications of the 
gaming operation(s);
    (d) Construction of a new gaming operation;
    (e) Changes in the tribal regulatory structure or enforcement 
programs identified in the Plan; or
    (f) Managerial changes that substantially affect or alter the 
practices, procedures, or systems contained in the Plan.


Sec. 580.72  What must a tribe do in order to revise its Plan?

    The tribe must send its revision(s) to the Commission no later than 
120 days after the occurrence of the material change prompting the 
revision(s). Revisions will become effective upon submission to the 
Commission, but will not become part of the approved Plan until the 
revision is reviewed and approved in accordance with Secs. 580.50 
through 580.58.


Sec. 580.74  Does a change of management at a gaming operation require 
a tribe to revise its Plan?

    A change in the management at a gaming operation does not in itself 
require the tribe to revise its Plan provided that the new management 
continues to follow the provisions in the tribe's Plan.


Sec. 580.76  Does the tribe have to renew its Plan?

    Yes. A tribe's Plan expires five years from the date of its 
approval and must be renewed.


Sec. 580.78  What must a tribe do to renew its Plan?

    Within 60 days prior to expiration of its Plan, a tribe must submit 
a new Plan for approval even if the provisions of the new Plan are not 
substantially different from those in the expired Plan. The new Plan 
must:
    (a) Contain all the sections required under Sec. 580.20;
    (b) Meet the criteria required under Secs. 580.20, 580.32 and 
580.56;
    (c) Include all revisions that the tribe submitted to the 
Commission during the previous approval period if the revisions remain 
in effect; and
    (d) Include any other changes that the tribe has made for which a 
revision was not required.


Sec. 580.80  How will the Commission review the new Plan?

    The Commission will follow the Plan review provisions contained in 
Secs. 580.50-580.64.


Sec. 580.88  When can the Commission conduct an on-site inspection?

    In addition to the authority set forth in 25 CFR 571.5, the 
Commission may conduct an on-site inspection:
    (a) At any time to ensure compliance with the Plan;
    (b) If the Commission conducts a routine investigation not related 
to environmental, public health and safety issues, and discovers a 
condition that needs investigation;
    (c) If the tribe's Plan raises concerns that an area of 
environmental, public health or safety is not being adequately 
addressed;
    (d) To ensure that the tribe has implemented all mitigations, if 
any, required by the Commission pursuant to NEPA; or
    (e) When an emergency situation exists at a gaming operation.


Sec. 580.90  What procedures will the Commission follow in an 
enforcement action taken pursuant to this part?

    The Commission will follow the enforcement procedures set forth in 
25 CFR part 573.


Sec. 580.92  What are some examples of violations that may result in an 
enforcement action?

    (a) Failure to submit a Plan;
    (b) Failure to revise the Plan;
    (c) Failure to comply with the Plan;
    (d) Failure to cure deficiencies that result in disapproval;
    (e) Operating with a disapproved Plan;
    (f) Failure to correct deficiencies discovered during a compliance 
review by the Commission; or
    (g) Misrepresentations of any fact or assertion made in the Plan 
under Secs. 580.20, 580.32 and 580.56 upon which the Commission relied 
in granting approval of a Plan or revisions of the Plan.


Sec. 580.94  If the tribe has signed a Tribal-State compact, will the 
tribe have to comply with two sets of standards?

    No. The tribe can use provisions in Tribal-State compacts to 
satisfy the requirements of this part if the compact provisions are as 
stringent as the requirements specified in this part.


Sec. 580.96  Does this part affect the regulatory authority of any 
other governmental entity or alter tribal-state gaming compacts?

    No. Nothing in this part is intended to:
    (a) Reduce, diminish, or otherwise alter the regulatory authority 
of any other Federal, State, or tribal governmental entity; or
    (b) Amend or require amendment(s) to any tribal-state gaming 
compact(s).


Sec. 580.98  What records must the tribe keep?

    The tribe must keep sufficient records to demonstrate compliance 
with each area of its Plan including any records the tribe has 
identified in its Plan under Sec. 580.20 (g), or otherwise required by 
federal law, to carry out provisions of this part.

[[Page 45566]]



----------------------------------------------------------------------------------------------------------------
                            For--                                     Such records include, for example--
----------------------------------------------------------------------------------------------------------------
Emergency Preparedness; Drinking Water and Food; Use,         (1) Copies of policies, procedures and standards
 Storage & Disposal of Hazardous Materials; Sanitation and     described or identified in the tribe's Plan.
 Waste Disposal; and Maintenance and Operations.              (2) Employee, training, education, certifications,
                                                               licenses, and work experience.
                                                              (3) Monitoring and test results such as:
                                                              (i) Emergency equipment inspection;
                                                              (ii) Drills;
                                                              (iii) Fire suppression systems;
                                                              (iv) Water quality testing;
                                                              (v) Alarm systems.
                                                              (4) Inspection Reports such as:
                                                              (i) Health;
                                                              (ii) Fire;
                                                              (iii) Sanitation;
                                                              (iv) Chemical handling;
                                                              (v) Insurance;
                                                              (vi) Safety;
                                                              (vii) Wastewater;
                                                              (viii) Maintenance.
                                                              (5) Enforcement records such as:
                                                              (i) Notices of violations;
                                                              (ii) Corrective action records;
                                                              (iii) Sanctions;
                                                              (iv) Personnel actions;
                                                              (v) Final dispositions of enforcement actions.
                                                              (6) Such environmental records relating to
                                                               disposal of hazardous materials and waste,
                                                               protection of the environment.
Construction................................................  (1) Requirements for record retention for
                                                               construction may be satisfied by: certificates of
                                                               occupancy, certificates from independent
                                                               qualified inspectors, or individual construction
                                                               records;
                                                              (2) Such environmental records relating to
                                                               disposal of hazardous materials and waste,
                                                               protection of the environment, or otherwise
                                                               required by federal law to carry out provisions
                                                               of this part.
----------------------------------------------------------------------------------------------------------------

Sec. 580.100  How long must the tribe maintain the types of records 
outlined in Sec. 580.98?

    The tribe must retain the types of records identified in 
Sec. 580.98 for a period of five years, following the year to which 
they relate unless a longer period of time is specified by some other 
provision of law.

[FR Doc. 00-18527 Filed 7-21-00; 8:45 am]
BILLING CODE 7565-01-P