[Federal Register Volume 67, Number 134 (Friday, July 12, 2002)]
[Rules and Regulations]
[Pages 46109-46112]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-17151]


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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: Interpretive rule.

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SUMMARY: The Indian Gaming Regulatory Act established the National 
Indian Gaming Commission (NIGC or Commission) as an independent federal 
regulatory agency responsible for federal oversight of Indian gaming. 
This interpretive rule explains the Commission's understanding of its 
oversight authority in the area of environment, public health and 
safety.

EFFECTIVE DATE: This rule is effective August 12, 2002.

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

SUPPLEMENTARY INFORMATION:

Background

    On October 17, 1988, Congress enacted the Indian Gaming Regulatory 
Act, 25 U.S.C. 2701-21 (IGRA or Act), creating the National Indian 
Gaming Commission (NIGC or Commission) and developing a comprehensive 
framework for the regulation of gaming on Indian lands to shield Indian 
tribes from organized crime and other corrupting influences; ensure 
that Indian tribes are the primary beneficiaries of gaming revenues; 
and assure that gaming is conducted fairly and honestly by both 
operators and players. To effect these goals, the Commission was 
granted, among other things, oversight and enforcement authority, 
including the authority to monitor tribal compliance with the Act, the 
Commission's regulations, and tribal gaming ordinances, 25 U.S.C. 2713.
    A tribal government, as a condition precedent to the lawful 
operation of gaming activities on Indian lands, must adopt an ordinance 
governing gaming activities on its Indian lands, 25 U.S.C. 2710. The 
Act specifies a number of mandatory provisions to be contained in each 
tribal gaming ordinance and subjects such ordinances to agency review 
and the Chairman's approval. Approval by the Chairman is predicated on 
the inclusion of each of the specified mandatory provisions in the 
tribal gaming ordinance. Among these is a requirement that the 
ordinance must contain a provision ensuring that ``the construction and 
maintenance of the gaming operation, and the operation of that gaming 
is conducted in a manner that adequately protects the environment and 
the public health and safety,'' 25 U.S.C. 2710 (b)(2)(E).
    The Act further extends authority to the Commission to impose 
sanctions, including civil fines and closure orders, if the Commission 
finds that gaming on Indian lands is being conducted in violation of 
the provisions contained in

[[Page 46110]]

the authorizing tribal gaming ordinance, 25 U.S.C. 2713. Thus, it is 
clear that Congress intended the Commission to exercise at least some 
degree of general oversight authority with respect to whether or not a 
gaming facility is being operated in compliance with the 
Congressionally mandated provisions in tribal gaming ordinances. 
Otherwise, Congress would not have extended the Commission enforcement 
authority in relation to compliance matters arising under ``tribal'' 
gaming ordinances.
    Since 1993, when the Commission became operational, the Chairman 
has required each tribal gaming ordinance to include an express 
statement that gaming facilities under the control of the tribal 
government submitting the ordinance would be constructed, operated and 
maintained in a manner that adequately protects the environment, public 
health and safety. In 1999, the Commission undertook the development of 
regulations governing the method of oversight it will use in 
determining tribal compliance with this provision of IGRA.
    The Commission recognizes that tribal governments, as an incident 
of inherent tribal sovereignty, have broad autonomy and authority over 
internal tribal affairs, including, in particular, matters pertaining 
to tribal lands and the health and welfare of the people and the 
community. Moreover, the Commission is aware that the principle of 
tribal self-determination is a cornerstone of federal Indian law and 
policy and has remained so for more than a quarter century. 
Accordingly, federal or other incursions upon tribal authority in such 
matters receive careful scrutiny by the courts. Cognizant of these 
facts, and bound by such federal laws and policies, the Commission 
approached this rulemaking effort with no small degree of caution and 
concern. Given the primacy of tribal regulation over the environment, 
public health and safety as well as federal policies regarding tribal 
consultation in matters directly affecting tribes, the Commission 
established a tribal advisory committee to assist in the development of 
an appropriate process through which the Commission could carry out its 
oversight responsibility under IGRA without improperly encroaching upon 
the authority of tribal government.

Tribal Advisory Committee

    In November 1999, a Tribal-Commission Advisory Committee was formed 
to consult on the project and develop recommendations to the 
Commission. The Advisory Committee, was comprised of representatives of 
tribal governments and the Commission. It began its work in November 
1999, producing a recommendation for the full Commission's 
consideration in May 2000. The Advisory Committee met four times to 
develop a regulatory proposal; an additional meeting was held 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 and republish the proposal for additional 
comment.
    The Advisory Committee through a consensus process produced a 
recommended rule for submission to the Commission. The recommendation 
was approved by the Commission for publication in the Federal Register 
as a proposed rule. Essentially, the regulation established a process 
for oversight based on tribal submissions of ``Environment, Public 
Health & Safety Plans'' (Plan) for review by the Commission. The Plans 
would then form the basis for the Commission's oversight activities. 
Each Plan was to contain a narrative specific to five distinct areas of 
concern: (1) Emergency preparedness; (2) food & water; (3) construction 
& maintenance; (4) hazardous and other materials; and (5) sanitation.
    The approach taken by the Committee reflects an effort to balance 
the need for a uniform system of oversight with the need for 
flexibility given the widely varying circumstances and geographic 
dispersion of Indian gaming operations. The proposal also reflects an 
effort to appropriately narrow and define the Commission's role given 
the fact that the Commission lacks the technical expertise and the 
capacity to review and evaluate tribal standards or programs or to 
itself establish and promulgate specific technical standards 
appropriate to the industry. It was the view of the Committee that 
Congress intended a narrow role for the Commission, particularly since 
the Act contains no other provisions pertinent to this issue, nor does 
the legislative history suggest that the Commission has the 
responsibility to develop expansive programs relative to the 
environment, public health and safety. Accordingly, the Committee 
concluded that the Commission's role is properly confined to ensuring 
that tribal standards are in place in each of the five key areas 
identified by the Committee and ensure that such standards are enforced 
through an on-going process of monitoring and oversight by qualified 
personnel.
    The purpose of the Plan was to provide the Commission with a tribe-
specific description of the systems in place in order that the 
Commission would have a means of understanding the mechanisms specific 
to each tribe and tailor its oversight activities accordingly. Since 
tribal law and governmental structures may vary substantially as well 
as climate and geography, it was felt that the only way the Commission 
could fairly and appropriately conduct oversight is to ensure that it 
is based on a sound understanding of the circumstances, systems, and 
standards applicable to each gaming tribe.

Initial Comment Period

    At the close of the initial comment period the Commission had 
received 127 comments, all suggesting substantial changes to the 
proposed rule and many challenging the Commission's authority to 
promulgate the rule in the first instance. The comments reflected a 
widespread view that the proposed rule was both burdensome and 
intrusive, and questioned the need for it. State and local governments 
requested that they be given a role in deciding what was to be included 
in tribal Plans.
    The general thrust of the comments led the Commission to conclude 
that in order to reflect the general purpose and intent of the rule, 
revision was warranted. The Commission also perceived the need for 
greater clarity with regard to its view that regulatory primacy and 
primary responsibility for ensuring compliance with the environment, 
public health and safety provision rests with tribal government. The 
Committee was re-convened to assist the Commission to revise the 
proposal in such a way to make clear that the purpose of the rule is to 
establish an appropriate process through which the Commission may carry 
out its discrete and limited oversight responsibility.

Second Comment Period

    Upon reviewing the comments, the Advisory Committee recommended a 
number of revisions to the proposed rule, but left largely intact the 
provisions utilizing the Plan process. The revised proposal was 
published in the fall of 2000, allowing for a thirty-day comment 
period, which was later extended through December 29, 2001. In 
response, the Commission again received well over a hundred comments, 
largely raising the same objections, with the same polarization between 
tribal and state governments. A number of comments, however, further 
developed some of the issues that had been referenced in the first 
round of

[[Page 46111]]

comments, drawing the Commission's interest.

The Commission's Oversight Role

    The overwhelming majority of tribal commenters reasserted the view 
that the proposal was unduly burdensome and constituted an unwarranted 
intrusion into the governmental prerogatives of tribes so as to exceed 
the statutory authority delegated by the Congress in IGRA. Many 
commenters asserted that Congress could not have intended an extensive 
role for the Commission given the very limited reference to the 
environment, public health & safety within the Act. Moreover, the 
commenters pointed out, the Commission lacks appropriate expertise to 
properly evaluate tribal environment, public health and safety 
standards and practices as well as the capacity to do so. These 
Commenters also asserted that matters pertaining to the environment, 
public health and safety are more properly within the purview of other 
governmental agencies, both tribal and federal. It was also asserted 
that there was no explicit Congressional authority to impose additional 
enforceable burdens on tribal governments and that in doing so the 
Commission had run afoul of federal policies restricting the imposition 
of unfunded mandates in agency rulemaking.
    The foregoing arguments are not without a degree of merit. In fact, 
these points were at the forefront of the Advisory Committee's concerns 
in developing its recommendation and by the Commission in its 
deliberations as well. While the Commission does not agree that it is 
without authority or responsibility altogether, it does accept Congress 
intended the Commission to play a limited, rather than expansive role. 
IGRA explicitly accords the Commission a role in ensuring compliance 
with the environment, public health and safety provision of IGRA. The 
question, therefore, is not whether the Commission has a responsibility 
in this regard, but rather the nature and extent of its responsibility.
    The Commission does not agree that its responsibility is merely to 
ensure that each tribal gaming ordinance contains a rote recitation of 
the language set forth in 25 U.S.C. 2710 (b)(2)(E). Such interpretation 
would render this provision of the Act superfluous and constitute a 
breach of an agency's a fundamental duty to give full effect to the 
plain language of the Act in determining Congressional intent related 
thereto. Moreover, because IGRA authorizes the Commission to enforce 
compliance with tribal gaming ordinances and to sanction incidents of 
non-compliance through civil fine assessment and orders of temporary 
closure, it is impossible to conclude that Congress intended the 
Commission's role to be constrained to the degree suggested in some 
comments.
    At the same time, the Commission recognizes that as a fundamental 
principle of federal law and policy, tribal governments have the right 
and authority to make their own choices in exercising their 
governmental powers. Tribal governmental powers are inherent and not 
derived from the federal government. As such, when a federal agency 
seeks to exert itself into an arena routinely controlled by tribal 
authority, the relevant inquiry is whether a statute, treaty or 
judicial decision authorizes federal activity in the particular area. 
Federal statutes affecting Indian affairs require broad construction 
when the rights of Indians are established or preserved and narrow 
construction when the rights of Indians are limited or abrogated.
    In balancing the Commission's responsibility against the inherent 
rights of tribal governments the Commission has endeavored to find an 
objective method for meeting its oversight responsibility in a non-
intrusive, non-burdensome manner respectful of tribal primacy in the 
environmental, public health and safety arenas. Having now had the 
benefit of the views and thoughts contained in nearly 300 comments, as 
well as opportunity for in-depth study of the issues and related 
federal law and policy, the Commission is of the view that the Plan 
process is more burdensome and intrusive than originally projected. It 
is further concerned that the estimation of the costs associated with 
the preparation of a Plan may have been underestimated. In considering 
the burden and financial impact the proposed rule may have had on 
tribal governments, the Commission recognizes that existing federal 
policy discourages the imposition of unfunded mandates on tribal, 
state, and local governments.
    In the final analysis, the Commission has concluded that a simpler, 
less programmatic approach is warranted. This final rule represents the 
Commission's interpretation of its responsibility under 25 U.S.C. 
2710(b)(2)(E) and provides guidance to tribal governments as to the 
oversight standard the Commission will apply in determining tribal 
compliance with this provision of the Act.
What Is the Commission's Responsibility Under Section 2710 (b)(2)(E) in 
the Area of Environment, Public Health and Safety?
    The Commission interprets section 2710 (b)(2)(E) of IGRA to mean 
that the Commission has a limited and discrete responsibility to 
provide regulatory oversight in relation to tribal compliance with this 
provision. The Commission discerns nothing within the Act or the 
legislative history to suggest that Congress intended a more extensive 
role for the Commission or manifesting any intent to relieve tribal 
government of any measure of authority or regulatory primacy over 
issues concerning the environment, public health and safety in any area 
within the authority of the tribe or to shift, alter, or otherwise 
effect any transfer of responsibility from tribal government to the 
National Indian Gaming Commission.
What Is the Commission's Interpretation With Regard to the Duties and 
Responsibilities of Tribal Governments Under Section 2710(b)(2)(E) of 
the Act?
    It is the Commission's view that section 2710 (b)(2)(E) requires 
tribal governments electing to conduct gaming on tribal lands to apply, 
adopt or issue standards designed to ensure that gaming operations on 
Indian lands are constructed, operated and maintained in a manner that 
adequately protects the environment, public health and safety, and, 
furthermore, to enforce compliance with such standards through an 
ongoing system of monitoring, conducted by qualified personnel. At a 
minimum, such standards must address: (1) Emergency preparedness; (2) 
food & water; (3) construction & maintenance; (4) hazardous and other 
materials; and (5) sanitation.
How Would a Tribal Government Satisfactorily Assert Its Compliance With 
Section 2710 (b)(2)(E) of IGRA?
    The Commission recognizes that tribal governments vary dramatically 
in terms of size, structure, and organization. Accordingly, compliance 
may be effected in any number of ways. For example, departments or 
agencies within tribal government may issue rules or procedures, 
conduct inspections, and bring enforcement actions. Another tribal 
government may enter into intergovernmental compacts with state, local 
or federal government to carry out such activities while others may 
contract privately for such functions. In the Commission's view, the 
particular manner in which compliance with tribal environment,

[[Page 46112]]

public health and safety standards is enforced is not so important. The 
key objective is to confirm that standards and enforcement systems are 
in place.
What Action May the Commission Take if the Commission Determines That a 
Gaming Operation Is Not Subject to Environmental, Public Health and/or 
Safety Standards or That Such Standards Are Not Routinely Enforced?
    If the Commission determines that a tribal government has failed to 
apply, adopt, issue or enforce environmental, public health and/or 
safety standards covering gaming operations on Indian lands, the 
Commission will first notify the governing body of the tribe of its 
concern. If the absence of standards or failure to enforce does not 
present imminent jeopardy to the environment, public health or safety, 
the Commission will refer the matter to the appropriate tribal 
regulatory authority for appropriate action. The Commission will 
proceed to enforcement only where no corrective action has been 
undertaken within a reasonable time and such inaction results in a 
condition of imminent jeopardy to the environment, public health and 
safety.
What is Imminent Jeopardy?
    A finding of imminent jeopardy represents the standard the 
Commission will apply in determining that a condition poses a threat of 
such severity to the environment or the public health or safety as to 
warrant the Commission's intervention. For purposes of this regulation, 
imminent jeopardy exists where conditions are present that pose a real 
and immediate threat: (1) To the environment, which, if uncorrected, 
would result in actual harm to life or destruction of property; or (2) 
to human health and well being, which, if uncorrected, could result in 
serious illness or death.

    Signed this 3rd day of July, 2002.
Montie R. Deer,
Chairman.
Elizabeth L. Homer,
Vice-Chair.
Teresa E. Poust,
Commissioner.
[FR Doc. 02-17151 Filed 7-11-02; 8:45 am]
BILLING CODE 7565-01-P