[Federal Register Volume 66, Number 191 (Tuesday, October 2, 2001)]
[Proposed Rules]
[Pages 50127-50135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24465]


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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 to implement a system of oversight to carry out its 
responsibilities with regard to the provisions of the Indian Gaming 
Regulatory Act (IGRA) that require tribal gaming facilities to be 
constructed, maintained and operated in a manner which protects the 
environment, public health and safety. One of the responsibilities 
conferred upon the Commission by IGRA is the approval of tribal gaming 
ordinances, which must contain certain enumerated provisions. IGRA 
further requires the Commission ensure that these statutorily mandated 
provisions are implemented by tribal governments.

[[Page 50128]]

Among these mandatory provisions is one that requires that the 
construction and maintenance of the gaming facility, and the operation 
of that gaming is conducted in a manner that adequately protects the 
environment and the public health and safety. At present, the 
Commission does not have in place an appropriate mechanism to carry out 
its oversight responsibility that follows from the IGRA provision. It 
is the view of the Commission that the most effective means of ensuring 
that adequate programs are implemented on an industry wide basis is to 
promulgate a rule establishing a framework for measuring tribal 
compliance.
    This regulation establishes the Commission's oversight process to 
ensure that the environment, public health and safety are adequately 
protected at Indian gaming facilities in accordance with IGRA. The 
Commission will focus its oversight activities on reviewing tribal 
compliance with the environment, public health and safety plans 
submitted by tribal governments. Environment, public health and safety 
plans will identify the policies, practices, and methods used by the 
submitting tribal government to ensure that the environment, public 
health and safety are adequately protected at its gaming facilities.

DATES: Comments may be submitted on or before October 31, 2001.

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 a.m. and noon, and between 2 p.m. and 5 p.m., 
Monday through Friday.

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 establish a system to 
implement the Commission's oversight authority in the areas of 
environment, public health and safety. The statutory basis for this 
responsibility is set forth in 25 U.S.C. 2710 (b)(2)(E) which 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 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 tribal governments. During the 
period from November 1999 through May 2000, the Commission and the 
Tribal Advisory Committee met four times to develop a regulatory 
proposal. The Commission published a Notice of Proposed Rulemaking that 
appeared in the Federal Register at Volume 65, page 45558, on July 24, 
2000. In response to the Federal Register notice, the Commission 
received a number of helpful comments suggesting changes to the 
proposed rule. The Tribal-Commission Advisory Committee met after the 
close of the public comment period to discuss the comments that had 
been submitted. Upon consideration of the comments submitted, and 
discussions with the Tribal-Commission Advisory Committee, the 
Commission decided to revise the proposed rule and republish the 
revised rule as a proposed rule.
    In proposing this regulation, the Commission is aware that tribal 
governments take 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 it lacks the appropriate mechanism to carry out this 
aspect of its oversight responsibilities. The Commission has a duty to 
design and implement a viable means of determining whether tribal 
governments are in compliance with requirements of the Act. Moreover, 
the absence of a clear standard for compliance creates an impediment to 
effective enforcement for both tribal governments and the Commission.
    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). Compliance with 
this rule is met through submission of an environment, public health 
and safety plan (Plan) which sets forth the tribal government's 
policies and programs 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 tribal government's policies for 
the development, implementation, and enforcement of environmental, 
public health and safety standards for its gaming operation(s) and 
describe the tribal government's standards, regulatory structure(s), 
and enforcement program(s) that ensure the environment, public health 
and safety of its gaming operation(s) are adequately protected. The 
Plan will cover 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. Thereafter, the Commission's role in 
enforcing compliance with this regulation focuses on the tribal 
government's compliance with its Plan. This approach enables the 
Commission to carry out its oversight responsibilities without creating 
a set of unnecessary requirements that may be inconsistent with 
existing provisions of tribal law or tribal-state gaming compacts or 
inappropriate to the geographic or other special conditions in a 
particular area. The Commission's oversight of such Plans will provide 
an effective 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 
tribal governments are not considered to be small entities for purposes 
of the Regulatory Flexibility Act.

[[Page 50129]]

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 that 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 
tribal government 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 tribal governments. 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 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 
Sec. 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 updated every three 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 tribal 
governments 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 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

[[Page 50130]]

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

    Gambling, Indians-lands, Environment, Health and Safety, 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 tribal government comply with this part?
580.6   What is the Environment, Public Health, and Safety Plan?
580.7   What is the effect of a tribal government's Compliance with 
this part?
Subpart B--Contents of an Environment, Public Health and Safety Plan
580.20   What must the tribal government include in its Plan?
580.22   What are some examples of information about emergency 
preparedness that will help meet the requirements of Sec. 580.20(b)?
580.24   What are some examples of information about construction, 
maintenance and operation that will help meet the requirements of 
Sec. 580.20(b)?
580.26   What are some examples of information about drinking water 
and food that will help meet the requirements of Sec. 580.20(b)?
580.28   What are some examples of information about use, storage, 
and disposal of hazardous materials that will help meet the 
requirements of Sec. 580.20(b)?
580.30   What are some examples of information about sanitation and 
waste disposal that will help meet the requirements of 
Sec. 580.20(b)?
580.32   May a tribal government assign its Plan compliance 
functions to another entity?
580.38   What is a Certificate of Assurance?
Subpart C--Plan Submission and Review Process
580.40   When must the tribal government submit its Plan?
580.42   Where is the Plan to be submitted?
580.44   When does a Plan become effective?
580.50   Who will review the Plan?
580.52   What factors will be considered in the review of the Plan?
580.54   What are the steps in the review process?
580.56   What happens when a tribal government submits its Plan to 
the Commission?
580.58   What happens if the initial evaluation does not result in a 
finding of compliance?
580.60   What is the process for a formal review of the Plan?
580.62   If the Reviewing Commissioner determines that the Plan does 
not comply, may the tribal government appeal?
580.64   How will the Commission process an appeal under 580.62?
580.66   What is the status of the Plan if the tribal government 
does not appeal the Reviewing Commissioner's determination?
Subpart D--Plan Revisions and Updates
580.70   When must a Plan be revised?
580.72   When must a Plan be updated?
Subpart E--Inspections, Enforcement, and Recordkeeping
580.80   When can the Commission conduct an on-site inspection?
580.82   What procedures will the Commission follow in an 
enforcement action taken pursuant to this part?
580.84   What happens if the Plan is found not to be in compliance 
following the conclusion of a formal review?
580.86   What are some other examples of violations that may result 
in an enforcement action?
580.88   If the tribal government has signed a Tribal-State compact, 
will the tribal government have to comply with two sets of 
standards?
580.90   Does this part affect the regulatory authority of any other 
governmental entity or alter tribal-state gaming compacts?
580.92   What records must the tribal government keep?
580.94   How long must the tribal government maintain the types of 
records outlined in Sec. 580.92?

    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) Encourage tribal government(s) to exercise regulatory primacy 
and 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;
    (b) 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); and
    (c) Establish the process and criteria used by the Commission in 
carrying out its statutory oversight responsibility to determine 
compliance with the sections of an approved tribal gaming ordinance on 
matters pertaining to the environment, public health and safety.


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 
tribal government'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 tribal 
government's gaming regulatory body has jurisdiction under the tribal 
government's approved gaming ordinance.


Sec. 580.5  How does a tribal government comply with this part?

    In order to comply with this part, a tribal government will:
    (a) Prepare an Environment, 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. 580.40 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 Environment, Public Health and Safety Plan is a document that 
describes the standards, systems, and/or processes used by the 
submitting tribal government to implement, monitor and enforce the 
tribal government's environment, public health and safety standards as 
they pertain to the gaming operation(s) on its Indian lands. The Plan 
will be used by the Commission in carrying out its oversight 
responsibility in accordance with 25 U.S.C. Sec. 2710(b)(2)(E).


Sec. 580.7  What is the effect of a tribal government's compliance with 
this Part?

    Once a Plan is in place, the Commission will focus its oversight 
activities on: reviewing and processing Plan submissions; monitoring 
tribal compliance with its Plan; and monitoring the tribal government's 
response to conditions presenting an imminent threat to the 
environment, public health and safety. Routine

[[Page 50131]]

oversight and enforcement will be considered the primary responsibility 
of the appropriate tribal governmental agency and/or other entity 
described in the Plan.

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


Sec. 580.20  What must the tribal government include in its Plan?

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

------------------------------------------------------------------------
         The Plan must address              And each area must contain
------------------------------------------------------------------------
(a) Part I. 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) Part II. Substantive Areas:          (1) Copies or a description of
 Emergency preparedness (accidents,       the tribal government's
 injuries and medical emergencies;        policies, operating
 natural and other disasters; fire;       procedures, standards,
 security threats); Construction,         compliance monitoring system,
 maintenance and operation; Drinking      enforcement program(s) and
 water and food; Use, storage and         qualified personnel.
 disposal of hazardous material; and     (2) The official title and
 Sanitation and waste disposal.           responsibilities of each
                                          tribal or other entity
                                          responsible for carrying out
                                          the Plan or parts thereof.
                                         (3) A description or copy of
                                          pertinent agreements with any
                                          non-tribal entity if
                                          applicable.
(c) Part III. Supporting Information:    (1) Identification of the
 Documentation showing that the tribal    written standards the tribal
 government has an adequate program(s)    government will use to carry
 to carry out the Plan.                   out the provisions of its
                                          Plan, including either
                                          citations to or copies of the
                                          applicable tribal ordinances,
                                          resolutions, regulations,
                                          management controls, policy
                                          and procedures 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 tribal
                                          government will use to enforce
                                          compliance with the Plan;
                                         (4) A description or copy of
                                          the procedures the tribal
                                          government will use to monitor
                                          compliance with the Plan,
                                          which may include permitting
                                          processes, and inspection,
                                          license, reporting, monitoring
                                          and record keeping
                                          requirements;
                                         (5) A description of the record
                                          keeping system which may
                                          contain employee/contractor
                                          training, education,
                                          certifications, licenses, work
                                          experience, and continuing
                                          education requirements for
                                          each section of the Plan.
(d) Part IV. Certificates of Assurance:  (1) Certification that the
 Documents certifying that the Plan       standards identified in the
 fairly and accurately describes the      Plan are at least as stringent
 standards, processes, and systems used   as applicable federal or other
 by the tribal government to ensure       standards commonly used in the
 that gaming operation(s) on Indian       surrounding geographic area.
 lands are constructed, operated, and    (2) Certification that
 maintained in a manner that adequately   sufficient resources are
 protects the environment, public         available to carryout the
 health and safety.                       Plan.
                                         (3) Certification that
                                          individuals responsible for
                                          oversight, planning, and
                                          implementation of the Plan
                                          have the minimum
                                          qualifications necessary to
                                          discharge their
                                          responsibilities.
                                         (4) Certification that the Plan
                                          contains a true and accurate
                                          description of the standards
                                          and systems in place to ensure
                                          that the gaming operation(s)
                                          is constructed, operated and
                                          maintained in a manner that
                                          adequately protects the
                                          environment, public health and
                                          safety;
                                         (5) Certification that adequate
                                          resources are available to
                                          carry out the Plan; and
                                         (6) Certification that the
                                          standards identified in the
                                          Plan have been duly considered
                                          by the tribal government and
                                          found to be as stringent as
                                          federal or other legally
                                          applicable standards, and
                                          consistent with environment,
                                          public health and safety needs
                                          and concerns in relation to
                                          the gaming operation.
------------------------------------------------------------------------

Sec. 580.22  What are some examples of information about emergency 
preparedness that will help meet the requirements contained in 
Sec. 580.20(b)?

    The following table shows examples of information that can be 
included in the Plan to satisfy this requirement.

------------------------------------------------------------------------
                For                       Narrative descriptions of
------------------------------------------------------------------------
(a) Accidents, injuries, and        (1) The steps taken to prevent,
 medical emergencies.                prepare for, and respond to
                                     accidents, injuries, and medical
                                     emergencies; the emergency response
                                     system in place, including the
                                     availability of trained emergency
                                     personnel, ambulance service,
                                     medical transport and medical
                                     facilities serving the tribal
                                     government's gaming operation and
                                     identifying information;
                                    (2) Other pertinent information or
                                     documentation, such as emergency
                                     response plans, evacuation policies
                                     or procedures, or other similar
                                     documents.

[[Page 50132]]

 
(b) Natural and Other Disasters...  (1) The steps taken to prepare for
                                     and respond to such natural or
                                     other disasters with a likelihood
                                     of occurrence given the geological
                                     or climatic conditions of the area,
                                     including evacuation or other
                                     special safety procedures, incident
                                     response systems or other safety
                                     measures in place.
                                    (2) Some additional examples of
                                     information that might be included
                                     depending on the scope and
                                     complexity of the operation such as
                                     descriptions of back-up
                                     communications systems, mock drill
                                     schedules, 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, including evacuation
                                     procedures and alarm systems;
                                    (2) 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 or other
                                     special precautions; and
                                    (3) The availability of law
                                     enforcement services.
------------------------------------------------------------------------

Sec. 580.24  What are some examples of information about construction, 
maintenance and operation that will help meet the requirements of 
580.20(b)?

    The following table shows examples of the information that can be 
included in the Plan to satisfy this requirement.

------------------------------------------------------------------------
                                      Some examples of information that
                For                  will meet this requirement include
------------------------------------------------------------------------
(a) Construction standards........  (1) The building code or standards
                                     that the tribal government follows;
                                    (2) The standard that the tribal
                                     government uses for plumbing,
                                     electrical and mechanical systems;
                                     and
                                    (3) The practices that the tribal
                                     government follows for managing
                                     sediment and stormwater.
(b) Preventative Maintenance and    (1) Maintenance and inspection
 Repair.                             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 are some examples of information about drinking water 
and food that will help meet the requirements of Sec. 580.20(b)?

    The following table shows information that can be included to 
satisfy this requirement.

------------------------------------------------------------------------
                                      Some examples of information that
                For                  will meet this 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 are some examples of information about use, storage, 
and disposal of hazardous materials that will help meet the 
requirements of Sec. 580.20(b)?

    The following table shows examples of information that can be 
included in the Plan to satisfy this requirement. For purposes of this 
part hazardous material shall mean: 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
                For                      will meet this 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 tribal
                                     government's written procedures for
                                     use and handling hazardous
                                     materials.
(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 are some examples of information about sanitation and 
waste disposal that will help meet the requirements of Sec. 580.20(b)?

    The following table shows information that can be included to 
satisfy this requirement.

------------------------------------------------------------------------
                                      Some examples of information that
                For                  will meet this 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.

[[Page 50133]]

 
(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 for the plant
                                     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  May a tribal government assign its Plan compliance 
functions to another entity?

    A tribal government 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 tribal government of its 
responsibility to comply with the Plan, or any portion thereof. 
Responsibility to ensure compliance with the Plan rests with the tribal 
government as the responsible governmental entity.


Sec. 580.38  What is a Certificate of Assurance?

    A Certificate of Assurance is a written pledge from the governing 
body of a tribe certifying that all requirements of Sec. 580.20 are (or 
will) be met and that all representations made in the Plan are true and 
accurate.

Subpart C--Plan Submission and Review Process


Sec. 580.40  When must the tribal government submit its Plan?

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

------------------------------------------------------------------------
 If the tribal government's gaming
           operation is                Then the tribal government must
------------------------------------------------------------------------
(a) Already in existence on the     Submit the tribal government's Plan
 effective date of this part.        within twelve (12) months of the
                                     effective date of this part.
(b) Under construction on the       Submit the tribal government's Plan
 effective date of this part.        within twelve (12) months of the
                                     effective date of this part or at
                                     least sixty (60) days before the
                                     tribal government opens the gaming
                                     operation whichever is later.
(c) Not in existence or under       Submit the tribal government's Plan
 construction on the effective       at least sixty (60) days before the
 date of this part.                  tribal government opens the gaming
                                     operation.
------------------------------------------------------------------------

Sec. 580.42  Where is the Plan to be submitted?

    The Plan is to be submitted 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.


Sec. 580.44  When does a Plan become effective?

    A tribal Plan becomes effective on the date it is mailed to the 
address listed in Sec. 580.42.


Sec. 580.50  Who will review the Plan?

    The Commission shall designate one of its members to oversee the 
review process and make the initial determination on whether the tribal 
government's Plan meets the requirements in Sec. 580.20.


Sec. 580.52  What factors will be considered in the review of the Plan?

    The Commission will consider whether the Plan meets the 
requirements of Sec. 580.20 and contains all the required certificates 
of assurance.


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

    The review process may include three phases: an initial evaluation, 
a formal review by the Commissioner designated to conduct the review, 
and an appeal to the full Commission. A Plan may be found to comply 
with the requirements of this part in any phase of the review process 
and upon determination of compliance the review is complete.


Sec. 580.56  What happens when a tribal government submits its Plan to 
the Commission?

    On the intial submission the Plan is evaluated for completeness in 
accordance with Sec. 580.20. If the Plan complies with the requirements 
of this part, the Reviewing Commissioner will notify the tribal 
government that the Plan is compliant and that the review process is 
concluded. As part of the initial evaluation the Reviewing Commissioner 
may also:
    (a) Request any additional information needed to complete the 
evaluation;
    (b) Consult with tribal entities or other entities identified in 
the Plan to clarify information contained therein;
    (c) Conduct on site inspections where appropriate.


Sec. 580.58  What happens if the initial evaluation does not result in 
a finding of compliance?

    If the initial evaluation does not result in a finding of 
compliance, the Reviewing Commissioner will notify the tribal 
government that the Plan does not appear to address the factors 
specified in Sec. 580.20 and indicate the part(s) of the Plan that 
require revision and further advise the tribal government that the Plan 
will be considered in a formal review process if revisions are not 
submitted within ninety (90) days.


Sec. 580.60  What is the process for a formal review of the Plan?

    The formal review process commences when the Reviewing Commissioner 
notifies the tribal government by certified mail that the Plan does not 
appear to be compliant and has been referred for formal review. During 
the formal review process, the Reviewing Commissioner will:
    (a) Examine any further submissions from the tribal government and 
conduct further consultations with the tribal government if such 
consultations appear useful;
    (b) Prepare an administrative record based on the Plan;
    (c) Based on the administrative record decide whether the Plan is 
compliant;
    (d) After considering the matter, inform the tribal government in 
writing whether, in the opinion of the Reviewing Commissioner, the Plan 
complies with the factors specified in Sec. 580.20;
    (e) If the Plan does not comply with these factors include with the 
written determination:
    (1) A description of those aspects in the Plan, which make the Plan 
unsatisfactory;

[[Page 50134]]

    (2) The steps the tribal government must take for the Plan to be 
considered satisfactory;
    (3) A schedule for corrective action and resubmission of the Plan;
    (4) A statement regarding the tribal government's opportunity to 
appeal the matter to the full Commission.
    (f) The formal review process will be concluded within ninety (90) 
days from the date of the notice.


Sec. 580.62  If the Reviewing Commissioner determines that the Plan 
does not comply, may the tribal government appeal?

    Yes. A tribal government may appeal the Reviewing Commissioner's 
determination that the Plan does not comply to the full Commission. 
Such an appeal shall be filed in writing within thirty (30) days after 
the Reviewing Commissioner serves the determination letter under part 
519 of this chapter, unless that time is extended by the Commission at 
the request of the tribal government. An appeal shall state why the 
tribal government believes the 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. 580.64  How will the Commission process an appeal under 580.62?

    The Commission may decide the appeal based only on a review of the 
record before it or may initiate further consultation discussions if 
requested by the tribal government, before deciding the appeal. The 
decision on appeal shall require a majority vote of the Commissioners. 
The Commission shall advise the tribal government of its decision in 
writing.


Sec. 580.66  What is the status of the Plan if the tribal government 
does not appeal the reviewing Commissioner's determination?

    If a tribal government does not appeal the determination of the 
Reviewing Commissioner, the Reviewing Commissioner's determination 
completes the formal review process and that determination becomes the 
decision of the Commission as to whether the Plan complies with the 
factors established under Sec. 580.52.

Subpart D--Plan Revisions and Updates


Sec. 580.70  When must a Plan be revised?

    A tribal government should keep its Plan current and revise its 
Plan whenever a material change affects the tribal government's ability 
to carryout the Plan. Some examples 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  When must a Plan be updated?

    (a) A tribal government must review and update its Plan every three 
years. The updated Plan should reflect any changes to the Plan during 
the Plan review period and in the three-year period before the review.
    (b) The Commission will send a notice to the tribal government 
informing the tribal government that it needs to review and update its 
Plan. Within 90 days, of receipt of this notice, a tribal government 
must submit its updated Plan to the Commission. If none of the 
information contained in the tribal government's Plan has changed the 
tribal government must notify the Commission in writing that it has 
completed a review of its Plan and that no changes to the Plan have 
been made.

Subpart E--Inspections, Enforcement, and Recordkeeping


Sec. 580.80  When can the Commission conduct an on-site inspection?

    Under its enforcement 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 tribal government's Plan raises concerns that an area of 
the environment, public health or safety is not being adequately 
addressed; or
    (d) When an emergency situation exists at a gaming operation.


Sec. 580.82  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. 580.84  What happens if the Plan is found not to be in compliance 
following the conclusion of a formal review?

    If a tribal government operating a gaming facility fails to bring 
its Plan into compliance following the Commission's decision an 
enforcement action under 25 CFR part 573 may be initiated.


Sec. 580.86  What are some other examples of violations that may result 
in an enforcement action?

    (a) Failure to submit a Plan as required by this part;
    (b) Failure to comply with the Plan that the tribal government has 
adopted;
    (d) Operation of a gaming facility without regard to a Plan 
approved by the tribal government which adequately protects the 
environment or public health and safety;
    (e) Failure to correct deficiencies discovered during a compliance 
review by the Commission; or
    (f) Misrepresentations of any fact or assertion made in the Plan 
under Secs. 580.20, and 580.52 upon which the Commission relied in 
granting approval of a Plan.


Sec. 580.88  If the tribal government has signed a Tribal-State 
compact, will the tribal government have to comply with two sets of 
standards?

    No. When standards are contained in Tribal-State compacts those 
standards can be used to comply with this part.


Sec. 580.90  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. 580.92  What records must the tribal government keep?

    The tribal government must keep sufficient records to verify 
compliance with its Plan including any records the tribal government 
has identified in its Plan under Sec. 580.20, or otherwise required by 
federal law, to carry out provisions of this part.

[[Page 50135]]



------------------------------------------------------------------------
                                     Such records including updates, for
                For                                example
------------------------------------------------------------------------
(a) Emergency Preparedness;         (1) Copies of policies, procedures
 Drinking Water and Food; Use,       and standards described or
 Storage & Disposal of Hazardous     identified in the tribal
 Materials; Sanitation and Waste     government's Plan.
 Disposal; and Maintenance and      (2) Employee training, education,
 Operations..                        certifications, licenses, and work
                                     experience
                                    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, or otherwise
                                     required by federal law to carry
                                     out provisions of this part.
(b) Construction..................  Requirements for record retention
                                     for construction may be satisfied
                                     by: certificates of occupancy,
                                     certificates from independent
                                     qualified inspectors, or individual
                                     construction records.
------------------------------------------------------------------------

Sec. 580.94  How long must the tribal government maintain the types of 
records outlined in Sec. 580.92?

    The tribal government must retain the types of records identified 
in Sec. 580.92 for a period of three years, following the year to which 
they relate unless a longer period of time is specified by some other 
provision of law.

[FR Doc. 01-24465 Filed 10-1-01; 8:45 am]
BILLING CODE 7565-01-P