[Federal Register Volume 65, Number 179 (Thursday, September 14, 2000)]
[Proposed Rules]
[Pages 55471-55476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-23456]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 292

RIN 1076-AD93


Gaming on Trust Lands Acquired After October 17, 1988

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule.

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SUMMARY: This proposed rule establishes procedures that an Indian tribe 
must follow in seeking a Secretarial determination that a gaming 
establishment would be in the best interest of the Indian tribe and its 
members, and would not be detrimental to the surrounding community. The 
law requires Indian tribes to seek this determination if the gaming 
establishment will be located on land acquired in trust after October 
17, 1988, unless the land is covered under another statutory exemption.

DATES: Comments must be received on or before November 13, 2000.

ADDRESSES: If you wish to comment, you may submit your comments by any 
one of several methods. See SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: George Skibine, Director, Office of 
Indian Gaming Management, Bureau of Indian Affairs, 1849 C Street NW, 
MS-2070 MIB, Washington, DC 20240; by telephone at (202) 219-4066; or 
by telefax at (202) 273-3153.

SUPPLEMENTARY INFORMATION:

General Comments

    You may mail comments to the Office of Indian Gaming Management, 
Bureau of Indian Affairs, 1849 C Street, NW, MS-2070 MIB, Washington, 
DC 20240.

Electronic Access and Filing

    You may also comment via the Internet to [[email protected]]. 
Please submit Internet comments as an ASCII file avoiding the use of 
special characters and any form of encryption. Please also include 
``Attn: 1076-AD93'' and your name and return address in your Internet 
message. If you do not receive a confirmation from the system that we 
have received your Internet message, contact the Office of Indian 
Gaming Management directly at (202) 219-4066.
    Finally, you may hand-deliver comments to the Office of Indian 
Gaming Management, Bureau of Indian Affairs, 1849 C Street NW, MS-2070 
MIB, Washington, DC 20240.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comments. However, we will not consider anonymous comments. We will 
make all submissions from organizations or businesses, and from 
individuals identifying themselves as representatives or officials of 
organizations or businesses, available for public inspection in their 
entirety.

Background

    The Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2701-2721, was 
signed into law on October 17, 1988. Section 20 of IGRA, 25 U.S.C. 
2719, contains specific provisions for lands that the Secretary of the 
Interior acquired in trust for an Indian tribe after October 17, 1988. 
The section says that Indian tribes cannot conduct class II and class 
III gaming on these lands acquired in trust, unless one of several 
exceptions applies. If none of the exceptions in section 20 applies, 
section 20(b)(1)(A) of IGRA provides that gaming can still occur on the 
lands if:
    (1) The Secretary consults with the Indian tribe and appropriate 
State and local officials, including officials of other nearby tribes;
    (2) After consultation, the Secretary determines that a gaming 
establishment on newly acquired (trust) lands would be in the best 
interest of the Indian tribe and its members, and would not be 
detrimental to the surrounding community; and
    (3) The Governor of the State in which the gaming activity is to be 
conducted concurs in the Secretary's determination.
    This proposed rule establishes a process for submitting and 
considering applications from Indian tribes seeking a Secretarial 
determination under section 20(b)(1)(A) of IGRA. The Bureau of Indian 
Affairs (BIA) issued a revised checklist for Secretarial determinations 
under this section on February 21, 1997. The proposed rule:
    (1) Adopts the standards in the revised checklist, in modified 
form.
    (2) Contains a process for BIA Central Office review of a tribal 
application for a Secretarial determination.
    (3) Clarifies what consultation process the Department must follow 
when making a determination, and who must be consulted.
    Since IGRA was enacted, only two tribes have successfully qualified 
to operate a gaming establishment on trust land under the exception to 
the gaming prohibition in section 20(b)(1)(A) of IGRA.
    The proposed rule does not cover determinations of whether gaming 
on a specific parcel of land is exempt from the section 20 prohibition 
on gaming on after-acquired lands under any of the other exceptions 
contained in section 20 of IGRA. Tribal requests for such 
determinations will continue to be processed by BIA on a case-by-case 
basis.

Clarity of This Regulation

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand, including answers to questions such as 
the following:
    (1) Are the requirements in the rule clearly stated?
    (2) Does the rule contain technical language or jargon that 
interferes with its clarity?
    (3) Does the format of the rule (grouping and order of sections, 
use of headings, paragraphing, etc.) aid or reduce its clarity?
    (4) Would the rule be easier to understand if it were divided into 
more (but shorter) sections? (A ``section'' appears in bold type and is 
preceded by the symbol ``Sec. '' and a numbered

[[Page 55472]]

heading; for example, Sec. 292.4 What are the exceptions to the 
prohibition on gaming on trust lands acquired after October 17, 1988)
    (5) Is the description of the rule in the SUPPLEMENTARY INFORMATION 
section of the preamble helpful in understanding the proposed rule? 
What else could we do to make the rule easier to understand?

Regulatory Planning and Review (E.O. 12866)

    In accordance with the criteria in Executive Order 12866, this rule 
is not a significant regulatory action and is not subject to review by 
the Office of Management and Budget (OMB).
    This rule will not have an economic effect of $100 million or 
adversely affect an economic sector, productivity, jobs, the 
environment, public health or safety, or State, local or tribal 
governments or communities. The annual number of requests for two-part 
Secretarial determinations under section 20 (b)(1)(A) of IGRA has been 
small. Since IGRA was enacted, only two tribes have successfully 
qualified to operate a gaming establishment on trust land under the 
exception to the gaming prohibition in section 20 (b)(1)(A) of IGRA. 
This rule will not create serious inconsistencies or otherwise 
interfere with an action taken or planned by another Federal agency. 
The Department of the Interior (DOI), BIA is the only governmental 
agency that makes the determination whether to take land into trust for 
Indian tribes.
    This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
This rule sets out the procedures for the submission of an application 
from an Indian tribe seeking a Secretarial determination that a gaming 
establishment on land acquired in trust after October 17, 1988, and not 
coming under one of the other statutory exemptions to the prohibition 
on gaming contained in section 20 of IGRA, would be in the best 
interest of the Indian tribe and its members, and would not be 
detrimental to the surrounding community.
    This rule will not raise novel legal or policy issues. This rule is 
of an administrative, technical and procedural nature.

Regulatory Flexibility Act

    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 this Act.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

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

Unfunded Mandates Act of 1995

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1531 
et seq.):
    The rule will not significantly or uniquely affect small 
governments, or the private sector. A Small Government Agency Plan is 
not required. Additional expenses may be incurred by the requesting 
tribe to provide information to the Secretary. See OMB 83-I, 15a.
    This rule will not produce a Federal mandate of $100 million or 
greater in any year. The overall effect of this rule will be negligible 
to the State, local or tribal government or the private sector.

Takings (E.O. 12630)

    In accordance with Executive Order 12630 this rule does not have 
significant ``takings'' implications. A takings implication assessment 
is not required because actions under this rule do not constitute a 
taking.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132 this proposed rule does 
not have significant Federalism effects to warrant the preparation of a 
Federalism Assessment. However, this rule should not affect the 
relationship between State and Federal governments because actions in 
this rule apply only to a relatively small amount of land.

Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. This rule contains no drafting errors or ambiguity and is 
written to minimize litigation, provides clear standards, simplifies 
procedures, reduces burden, and is clearly written. These regulations 
do not preempt any statute.

Paperwork Reduction Act of 1995

    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), the Department has submitted an information collection and a 
copy of the proposed rule to OMB for review. The collection of 
information is unique for each tribe even though each submission 
addresses the requirements found in Secs. 292.8, 292.9, 292.10, 292.11, 
292.13, 292.14, 292.17 and 292.18.
    All information is collected in the tribe's application. 
Respondents submit information in order to obtain a benefit. Each 
response is estimated to take 1,000 hours to review instructions, 
search existing data sources, gather and maintain necessary data, and 
prepare in format for submission. We anticipate that two responses will 
be submitted annually for an annual burden of 2,000 hours.
    Submit comments on the proposed information collection to the 
Attention: Desk Officer for the Department of the Interior, Office of 
Information and Regulatory Affairs, OMB, Room 10202, New Executive 
Office Building, Washington, DC 20503. You should also send comments to 
the BIA official as found in the ADDRESSES section. The BIA solicits 
comments in order to:
    (1) Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the BIA, 
including whether the information will have practical utility;
    (2) Evaluating the BIA's estimate of the burden of the proposed 
collection of information, including the validity of the methodology 
and assumptions used;
    (3) Enhancing the quality, utility, and clarity of the information 
to be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond.
    OMB is required to make a decision between 30 and 60 days after 
publication of this document in the Federal Register. Therefore, your 
comment to OMB has the best chance of being considered if OMB receives 
it within 30 days of publication. This does not affect the deadline for 
the public to comment to BIA on the proposed rule.

National Environmental Policy Act of 1969 (NEPA) Statement

    This proposed rule does not constitute a major Federal action 
significantly affecting the quality of the human environment and no 
detailed statement is required pursuant to NEPA because this rule is of 
an administrative, technical and procedural nature.

[[Page 55473]]

Government-to-Government Relationship With Tribes

    In accordance with Executive Order 13084, issued on May 14, 1998, 
and 512 DM 2, we have evaluated the potential effects upon federally 
recognized Indian tribes and have determined that this proposed rule 
does not significantly or uniquely affect the communities of Indian 
tribal governments. No action is taken under this rule unless a tribe 
requests a determination that a gaming establishment on existing or 
proposed trust land is in the best interest of the tribe and its 
members and not detrimental to the surrounding community.
    Drafting Information: The primary author of this document is George 
Skibine, Director, Office of Indian Gaming Management, Bureau of Indian 
Affairs, Department of the Interior.

List of Subjects in 25 CFR Part 292

    Indians--gaming, Indians--lands.

    For the reasons given in the preamble, part 292 is proposed to be 
added to Chapter I of Title 25 of the Code of Federal Regulations as 
follows:

PART 292--GAMING ON TRUST LANDS ACQUIRED AFTER OCTOBER 17, 1988

Sec.
292.1   What is the purpose of this part?
292.2   How are key terms defined in this part?
292.3   When can a tribe conduct gaming activities on trust lands 
acquired after October 17, 1988?
292.4   What criteria must trust land meet for gaming to be allowed?
292.5   Can a tribe conduct gaming activities on lands acquired in 
trust after October 17, 1988 if the land does not qualify under one 
of the exceptions?
292.6   Where must a tribe file an application for a Secretarial 
determination?
292.7   May a tribe request a Secretarial determination for lands 
not yet held in trust?
292.8   What must an application for a Secretarial determination 
contain?
292.9   What information must an application contain on the benefits 
of a proposed gaming activity?
292.10   What information must an application contain on the effects 
of a proposed gaming activity?
292.11   What additional documents must an application contain?
292.12   What must the Regional Director do upon receiving the 
application?
292.13   How will the Regional Director conduct the consultation 
process?
292.14   What criteria must the consultation letter meet?
292.15   What must the Regional Director do at the expiration of the 
comment period?
292.16   What must the ADO do upon receiving the Regional Director's 
recommendation?
292.17   If the ADO finds deficiencies, what must the Regional 
Director and the applicant tribe do?
292.18   What must the ADO do after receiving an adequate 
recommendation?
292.19   How does the ADO request the Governor's concurrence?
292.20   Do information collections under this part have Office of 
Management and Budget approval?

    Authority: 5 U.S.C. 301, 25 U.S.C. 2, 9, and 2719.


Sec. 292.1  What is the purpose of this part?

    This part contains procedures that the Department of the Interior 
will use to determine whether class II or class III gaming can occur on 
land acquired in trust for a tribe after October 17, 1988.


Sec. 292.2  How are key terms defined in this part?

    All terms have the same meaning as set forth in the definitional 
section of the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2703(1)-
(10). In addition, the following terms have the meanings given in this 
section.
    Appropriate Departmental Official (ADO) means the Department of 
Interior official with delegated authority to make a two-part 
Secretarial determination that a gaming establishment would be in the 
best interest of the Indian tribe and its members, and would not be 
detrimental to the surrounding community.
    Appropriate State and Local Officials means the Governor of the 
State, and appropriate officials of units of local government within 10 
miles of the site of the proposed gaming establishment.
    BIA means Bureau of Indian Affairs.
    Contiguous means land(s) sharing a common boundary, touching, next 
to or adjoining with nothing intervening. However, parcels of land are 
contiguous even if separated by roads, railroads, or other rights of 
way, or streams.
    Day means calendar day.
    Former reservation means lands that are within the jurisdictional 
area of an Oklahoma Indian tribe, and that are within the boundaries of 
the last reservation for that tribe established by treaty, Executive 
Orders, or Secretarial Orders.
    IGRA means the Indian Gaming Regulatory Act of 1988, 25 U.S.C. 
2701-2721.
    Nearby Indian tribe means an Indian tribe with Indian lands, as 
defined in 25 U.S.C. 2703(4) of IGRA, located within a 50 mile radius 
of the location of the proposed gaming establishment.
    Regional Director means the official in charge of the BIA Regional 
Office responsible for all BIA activities within the geographical area 
where the proposed gaming establishment is to be located.
    Reservation means that area of land which has been set aside or 
which has been acknowledged as having been set aside by the United 
States for the use of the tribe, the exterior boundaries of which are 
more particularly defined in the final treaty, agreement, Executive 
order, Federal statute, Secretarial Order, or judicial determination.
    Secretarial determination means a two-part determination that a 
gaming establishment on newly acquired lands:
    (1) Would be in the best interest of the Indian tribe and its 
members; and
    (2) Would not be detrimental to the surrounding community.


Sec. 292.3  When can a tribe conduct gaming activities on trust lands 
acquired after October 17, 1988?

    In accordance with section 20 of the Indian Gaming Regulatory Act 
(25 U.S.C. 2719), a tribe can conduct class II or class III gaming 
activities on trust land acquired by the Secretary of the Interior in 
trust for the benefit of an Indian tribe after October 17, 1988, only 
if:
    (a) The land meets the conditions in Sec. 292.4; or
    (b) The Secretary makes a determination under Sec. 292.5 and the 
Governor of the State concurs in that determination.


Sec. 292.4  What criteria must trust land meet for gaming to be 
allowed?

    (a) For class II or class III gaming to be allowed on trust land, 
the land must meet one of the criteria shown in the following table:

------------------------------------------------------------------------
         The land must * * *                  as required by * * *
------------------------------------------------------------------------
(1) Be located within or contiguous    25 U.S.C. 2719(a)(1).
 to the boundaries of the tribe's
 reservation as it existed on October
 17, 1988.
(2) Be taken into trust as part of     25 U.S.C. 2719(b)(1)(B)(i).
 the settlement of a land claim.
(3) Be taken into trust as part of     25 U.S.C. 2719(b)(1)(B)(ii).
 the tribe's initial reservation that
 the Secretary acknowledged under the
 Federal acknowledgment process.

[[Page 55474]]

 
(4) Be taken into trust as part of     25 U.S.C. 2719(b)(1)(B)(iii).
 the restoration of lands for a tribe
 that is restored to Federal
 recognition.
(5) Be excepted from the requirements  25 U.S.C. 2719(b)(1)(A).
 of this section because the
 Secretary makes a determination
 under Sec.  292.5.
(6) Meet one of the criteria in        25 U.S.C. 2719(a)(2).
 paragraph (b) of this section, if
 the tribe had no reservation on
 October 17, 1988.
------------------------------------------------------------------------

    (b) If a tribe had no reservation on October 17, 1988, the land 
must meet one of the criteria in the following table:

----------------------------------------------------------------------------------------------------------------
   If the land is located in * * *         it must be * * *             or * * *           as required by * * *
----------------------------------------------------------------------------------------------------------------
(1) Oklahoma.........................  within the boundaries    contiguous to other      25 U.S.C.
                                        of the tribe's former    land held in trust or    2719(a)(2)(A)(i)(ii).
                                        reservation.             restricted status by
                                                                 the United States for
                                                                 the tribe in Oklahoma.
(2) A State other than Oklahoma......  within the boundaries                             25 U.S.C.
                                        of the Tribe's last                               2719(a)(2)(B).
                                        recognized reservation
                                        within the State where
                                        the tribe is presently
                                        located.
----------------------------------------------------------------------------------------------------------------

Sec. 292.5  Can a tribe conduct gaming activities on lands acquired in 
trust after October 17, 1988 if the land does not qualify under one of 
the exceptions?

    A tribe can conduct gaming on lands acquired in trust after October 
17, 1988, that do not meet the criteria in Sec. 292.4 only after all of 
the following occur:
    (a) The tribe asks the Secretary in writing to make a Secretarial 
determination on the acceptability of gaming activities at a particular 
site;
    (b) The Secretary consults with the tribe and appropriate State and 
local officials, including officials of other nearby tribes;
    (c) The Secretary makes a determination that a gaming establishment 
on newly acquired lands would be in the best interest of the Indian 
tribe and its members and would not be detrimental to the surrounding 
community; and
    (d) The Governor of the State in which the gaming activity is to be 
conducted concurs in the Secretary's determination (25 U.S.C. 
2719(b)(1)(A)).


Sec. 292.6  Where must a tribe file an application for a Secretarial 
determination?

    A tribe must file its application for a Secretarial determination 
with the Regional Director of the BIA Regional Office having 
jurisdiction over the land where the gaming establishment is to be 
located.


Sec. 292.7  May a tribe request a Secretarial determination for lands 
not yet held in trust?

    Yes. A tribe can apply for a two-part Secretarial determination 
under Sec. 292.5 for land not yet held in trust. The tribe must file 
this application at the same time that it applies under 25 CFR part 151 
to have the land taken into trust.


Sec. 292.8  What must an application for a Secretarial determination 
contain?

    An application requesting a Secretarial determination under 
Sec. 292.5 must include the following information:
    (a) The full name, address, and telephone number of the Indian 
tribe submitting the application;
    (b) A physical description of the location of the land, including a 
legal description supported by a survey or other document;
    (c) Proof of present ownership and title status of the land;
    (d) Distance of the land from the Indian tribe's reservation or 
trust lands, if any;
    (e) Information required by Sec. 292.9 to assist the Secretary in 
determining whether the proposed gaming establishment will be in the 
best interest of the tribe and its members;
    (f) Information required by Sec. 292.10 to assist the Secretary in 
determining whether the proposed gaming establishment will not be 
detrimental to the surrounding community; and
    (g) Copies of the documents required by Sec. 292.11.


Sec. 292.9  What information must an application contain on the 
benefits of a proposed gaming activity?

    To satisfy the requirements of Sec. 292.8(e), an application must 
contain:
    (a) Projections of class II and/or class III income statements, 
balance sheets, fixed assets accounting, and cash flow statements for 
the gaming entity and the Indian tribe;
    (b) Projected tribal employment, job training, and career 
development;
    (c) Projected benefits to the Indian tribe from tourism;
    (d) Projected benefits to the Indian tribe and its members from the 
proposed uses of the increased tribal income;
    (e) Projected benefits to the relationship between the Indian tribe 
and the surrounding community.
    (f) Possible adverse impacts on the Indian tribe and plans for 
dealing with those impacts;
    (g) Any other information that may provide a basis for a 
Secretarial determination that the gaming establishment would be in the 
best interest of the Indian tribe and its members, including copies of 
any:
    (1) Consulting agreements;
    (2) Financial agreements; and
    (3) Other agreements relative to the purchase, acquisition, 
construction, or financing of the proposed gaming facility, or the 
acquisition of the land where the facility will be located.


Sec. 292.10  What information must an application contain on the 
effects of a proposed gaming activity?

    To satisfy the requirements of Sec. 292.8(f), an application must 
contain:
    (a) Evidence of environmental impacts and plans for mitigating 
adverse impacts, including information that allows the Secretary to 
comply with the requirements of the National Environmental Policy Act 
(NEPA) (for example, an Environmental Assessment (EA) or an 
Environmental Impact Statement (EIS));
    (b) Reasonably anticipated impacts on the social structure, 
infrastructure, services, housing, community character, and land use 
patterns of the surrounding community;
    (c) Impacts on the economic development, income, and employment of 
the surrounding community;
    (d) Costs of impacts to the surrounding community and sources of 
revenue to accommodate them;

[[Page 55475]]

    (e) Proposed programs, if any, for compulsive gamblers and the 
sources of funding; and
    (f) Any other information that may provide a basis for a 
Secretarial determination that the gaming would not be detrimental to 
the surrounding community.


Sec. 292.11  What additional documents must an application contain?

    To satisfy the requirements of Sec. 292.8(g), an application must 
contain a copy of each of the following:
    (a) The authorizing resolution from the tribe submitting the 
application;
    (b) The tribe's gaming ordinance or resolution approved by the 
National Indian Gaming Commission in accordance with 25 U.S.C. 2710, if 
any;
    (c) The tribe's organic documents, if any;
    (d) The tribe's class III gaming compact with the State where the 
gaming establishment is to be located, if any; and
    (e) Any existing or proposed management contract required to be 
approved by the National Indian Gaming Commission under 25 U.S.C. 2711 
and 25 CFR Part 533.


Sec. 292.12  What must the Regional Director do upon receiving an 
application?

    Upon receiving an application for a Secretarial determination under 
Sec. 292.5, the Regional Director must:
    (a) Notify the tribe within 30 days that the application has been 
received, and whether any information required under Sec. 292.8 is 
missing;
    (b) Provide a copy of the application to the Office of Indian 
Gaming Management; and
    (c) Consult with appropriate State and local officials, including 
officials of other nearby tribes.


Sec. 292.13  How will the Regional Director conduct the consultation 
process?

    The Regional Director must complete the consultation process at the 
Region Office level.
    (a) The Regional Director will send a letter that meets the 
requirements in Sec. 292.14 and that solicits comments within a 60-day 
period to each of the following:
    (1) Appropriate State and local officials; and
    (2) Officials of nearby tribes.
    (b) On written request, the Regional Director may extend the 60-day 
comment period for an additional 30 days.
    (c) After the close of the consultation period, the Regional 
Director must:
    (1) Submit a copy of the consultation comments to the applicant 
tribe;
    (2) Allow the tribe to address or resolve any issues raised in the 
responses to the consultation letters;
    (3) The applicant tribe must submit written comments, if any, to 
the Regional Director within 60 days of receipt of the consultation 
comments; and
    (4) On written request, the Regional Director may extend the 60-day 
comment period in paragraph (c)(3) of this section for an additional 30 
days.


Sec. 292.14  What criteria must the consultation letter meet?

    The consultation letter required by Sec. 292.13 (a) must meet the 
requirements in this section.
    (a) The consultation letter must:
    (1) Describe or show the location of the proposed gaming facility;
    (2) Provide information on the proposed scope of gaming; and
    (3) Include other information that may be relevant to a specific 
proposal, such as the size of the proposed facility, if known.
    (b) The consultation letter must request recipients to submit 
comments on the following areas within 60 days of receiving the letter:
    (1) Evidence of environmental impacts and plans for mitigating 
adverse impacts;
    (2) Reasonably anticipated impact on the social structure, 
infrastructure, services, housing, community character, and land use 
patterns of the surrounding community;
    (3) Impact on the economic development, income, and employment of 
the surrounding community;
    (4) Costs of impacts to the surrounding community and sources of 
revenue to accommodate them;
    (5) Proposed programs, if any, for compulsive gamblers and the 
sources of funding; and
    (6) Any other information that may provide a basis for a 
Secretarial determination that the gaming is not detrimental to the 
surrounding community.


Sec. 292.15  What must the Regional Director do at the expiration of 
the comment period?

    Upon completion of the comment period under Sec. 292.13(c), the 
Regional Director must either:
    (a) Notify the applicant tribe in writing that the application 
package does not support a positive recommendation for a Secretarial 
determination under Sec. 292.5 and advise the applicant tribe of the 
reasons for the decision; or
    (b) Prepare a positive recommendation and proposed Findings of Fact 
addressing the Secretarial determination and forward them to the 
Appropriate Department Official (ADO), along with the complete 
application record that includes the following documents:
    (1) Application received from the Indian tribe and any supporting 
documentation;
    (2) Consultation comments, including unsolicited comments from 
third parties not required to be consulted under Sec. 292.13;
    (3) Documentation that indicates compliance with the requirements 
of the National Environmental Policy Act (NEPA), including a proposed 
Finding of No Significant Impact (FONSI), if appropriate; and
    (4) Any other documentation relied upon by the Regional Director in 
preparing the recommendation.


Sec. 292.16  What must the ADO do upon receiving the Regional 
Director's recommendation?

    (a) Upon receiving the Regional Director's positive recommendation 
and the complete application record, the ADO will conduct a preliminary 
technical review to determine whether the record supports the Regional 
Director's positive recommendation and proposed Findings of Fact. The 
preliminary technical review:
    (1) Must include consideration of all documentation provided in the 
application package; and
    (2) May not consider comments, whether oral or written, submitted 
by any party after the close of the comment period in Sec. 292.13.
    (b) After completing the preliminary technical review, the ADO 
will:
    (1) Notify the Regional Director and the applicant tribe of any 
deficiencies in the recommendation, proposed Findings of Fact, or 
application record; and
    (2) Request the Regional Director to cure the identified 
deficiencies and to allow the tribe to withdraw the application or to 
submit additional information and clarification, if necessary.


Sec. 292.17  If the ADO finds deficiencies, what must the Regional 
Director and the applicant tribe do?

    If the ADO notifies the tribe and Regional Director of deficiencies 
under Sec. 292.16(b), the tribe and Regional Director must follow the 
procedures in this section.
    (a) The Regional Director must respond to the preliminary technical 
review notification by curing the identified deficiencies, and, if 
appropriate, allowing the tribe to submit additional information and 
clarification, if necessary.

[[Page 55476]]

    (b) The applicant tribe may do any of the following:
    (1) Withdraw the application;
    (2) Respond to the preliminary technical review notification by 
submitting to the Regional Director additional documentation to cure 
the identified deficiencies; or
    (3) Request, in writing, that the Regional Director inform the ADO 
to proceed with the consideration of the application record using the 
documentation already submitted.
    (c) After the Regional Director has modified the recommendation to 
cure the identified deficiencies, and obtained any additional 
documentation from the applicant tribe, the Regional Director must 
resubmit an amended recommendation with a complete application package 
to the ADO, unless the tribe has withdrawn its application, or 
requested that consideration of the application proceed on the existing 
record.


Sec. 292.18  What must the ADO do after receiving an adequate 
recommendation?

    (a) Upon receiving an adequate recommendation and application 
package from the Regional Director, the ADO must:
    (1) Notify the applicant tribe, officials of nearby tribes, and 
appropriate state and local officials, of the status of the application 
and inform them that they may, within 30 days of receipt of this 
notification, request that the ADO hold a hearing for the purpose of 
discussing the merits of the application. The proceedings of this 
hearing will be on such terms as the ADO determines are appropriate. 
The hearing record will be available to any participating party and 
become part of the record considered by the ADO in reaching a final 
determination in writing that the record does not support a 
determination under Sec. 292.5.
    (2) The ADO will transmit the hearing record to the applicant tribe 
and notify the applicant tribe that it will have 60 days from date of 
receipt to address any information submitted by third parties at the 
hearing.
    (b) Following the expiration of the 60-day response period, the ADO 
must prepare final Findings of Fact on the Secretarial determination 
and must either:
    (1) Notify the applicant tribe in writing that the record does not 
support a determination under Sec. 292.5; or
    (2) Notify the applicant tribe in writing that the ADO has made a 
favorable Secretarial determination under Sec. 292.5 and has requested 
the Governor of the State to concur in that determination.
    (c) In preparing the final Findings of Fact, the ADO will not 
consider comments on the application, whether oral or written, 
submitted by any party after the conclusion of the formal hearing, 
except comments from the applicant tribe pursuant to paragraph (a)(2) 
of this section.


Sec. 292.19  How does the ADO request the Governor's concurrence?

    (a) If the ADO makes a favorable Secretarial determination under 
Sec. 292.18(b), the ADO will send to the Governor of the State:
    (1) A written notification of the Secretarial determination and 
Findings of Fact;
    (2) A copy of the entire application record; and
    (3) A request for the Governor's concurrence in the Secretarial 
determination.
    (b) If the Governor does not affirmatively concur with the ADO's 
Secretarial determination:
    (1) The land may not be used for gaming;
    (2) If the land is already held in trust, the applicant tribe may 
use it for other purposes; and
    (3) If the land is proposed for trust status, it may be taken into 
trust for other uses, but may not be used for gaming.
    (c) If the Governor does not respond to the ADO's request for 
concurrence in the Secretarial determination within one year of the 
date of the request, the ADO may, at the request of the applicant tribe 
or the Governor, grant an extension of up to 180 days.
    (d) If the Governor does not respond during the extension period, 
the Findings of Fact will be deemed stale, and the applicant tribe will 
be notified in writing that the Secretarial determination is no longer 
valid.


Sec. 292.20  Do information collections under this part have Office of 
Management and Budget approval?

    We have submitted a request for approval of the information 
collection requirements in Secs. 292.8, 292.9, 292.10, 292.11, 292.13, 
292.14, 292.17 and 292.18 to the Office of Management and Budget (OMB). 
We may not collect or sponsor, and a person is not required to respond 
to, a collection of information until we have:
    (a) Obtained OMB approval; and
    (b) Revised this section (Sec. 292.20) to reflect that approval by 
publishing a final rule in the Federal Register.

    Dated: August 25, 2000.
Kevin Gover,
Assistant Secretary--Indian Affairs.
[FR Doc. 00-23456 Filed 9-13-00; 8:45 am]
BILLING CODE 4310-02-P