[Federal Register Volume 72, Number 201 (Thursday, October 18, 2007)]
[Proposed Rules]
[Pages 59044-59050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-20541]


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DEPARTMENT OF THE INTERIOR

National Indian Gaming Commission

25 CFR Parts 502, 522, 559 and 573

RIN 3141-AA23


Facility License Standards

AGENCY: National Indian Gaming Commission (``NIGC'' or ``Commission'').

ACTION: Proposed rules.

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SUMMARY: The proposed rules add new sections and a new part to the 
Commission's regulations in order to ensure that each place, facility 
or location where class II or class III gaming will occur is located on 
Indian lands eligible for gaming as required by the Indian Gaming 
Regulatory Act. The rules are also intended to ensure that gaming 
facilities are constructed, maintained and operated in a manner that 
adequately protects the environment and the public health and safety.

DATES: Submit comments on or before December 3, 2007.

ADDRESSES: Comments can be mailed, faxed, or e-mailed. Mail comments to 
``Comments on Facility Licensing Standards,'' National Indian Gaming 
Commission, 1441 L Street, NW., Washington, DC 20005, Attn: Jerrie 
Moore, Legal Assistant. Comments may be faxed to 202-632-7066 (not a 
toll-free number). Comments may be sent electronically to [email protected].

FOR FURTHER INFORMATION CONTACT: Penny J. Coleman, Acting General 
Counsel, at (202) 632-7003; fax (202) 632-7066 (not toll-free numbers).

SUPPLEMENTARY INFORMATION:

I. Background

    On October 17, 1988, Congress enacted the Indian Gaming Regulatory 
Act (``IGRA'' or ``Act''), 25 U.S.C. 2701-21, creating the National 
Indian Gaming Commission (``NIGC'' or ``Commission'') and developing a 
comprehensive framework for the regulation of gaming on Indian lands. 
25 U.S.C. 2702. The NIGC was granted, among other things, oversight and 
enforcement authority, including the authority to monitor tribal 
compliance with the Act, Commission regulations, and tribal gaming 
ordinances.
    First, the IGRA allows gaming on Indian lands pursuant to 25 U.S.C. 
2703(4), although it contains a general prohibition against gaming on 
lands acquired into trust by the United States for the benefit of the 
tribe after the Act's effective date of October 17, 1988, unless one of 
several exceptions are met. 25 U.S.C. 2719. The Commission has 
jurisdiction only over gaming operations on Indian lands and therefore 
must establish that it has jurisdiction as a prerequisite to its 
monitoring, enforcement, and oversight duties. 25 U.S.C. 2702(3).
    Second, the NIGC needs to obtain information on a tribe's 
environmental and public health and safety laws to oversee the 
implementation of approved tribal gaming ordinances. Before opening a 
gaming operation, a tribe 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 NIGC 
Chairman's approval. Id. Approval by the Chairman is predicated on the 
inclusion of each of the specified mandatory provisions in the tribal 
gaming ordinance. Id. 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). Since 1993, 
when the Commission became operational, the Chairman has required each 
tribal gaming ordinance submitted for approval to include the express 
environmental and public health and safety statement set out in 25 
U.S.C. 2710(b)(2)(E).
    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.
    The Commission believes that tribes must have some form of basic 
laws in the following environmental and public health and safety areas: 
(1) Emergency preparedness, including but not limited to fire 
suppression, law enforcement and security; (2) food and potable water; 
(3) construction and maintenance; (4) hazardous materials; and (5) 
sanitation (both solid waste and wastewater). Accordingly, in 2002, the 
Commission issued an interpretive rule for environment, public health, 
and safety. 67 FR 46,109 (Jul. 12, 2002) (``Interpretive Rule'').
    The NIGC has conducted many environment and public health and 
safety inspections since the issuance of the Interpretive Rule and has 
worked with a consultant to allow the agency to gain expertise in this 
area. Through this inspection process, the NIGC has identified 
weaknesses in tribal laws or enforcement thereof and has worked with 
tribes to cure deficiencies.
    The Commission respects the rights of tribes to develop their own 
laws and be

[[Page 59045]]

governed by them. These rights must be viewed in conjunction with the 
IGRA mandate that the tribal governments and the NIGC have a 
responsibility to the gaming public and to gaming operation employees 
to ensure that their operations do not pose a risk to the health or 
safety of the public or the environment. 25 U.S.C. 2710(b)(2)(E); 25 
CFR part 580.
    In the years since the adoption of the Interpretive Rule, the 
Commission has identified several deficiencies in it. Namely, the 
Interpretive Rule does not assist the Commission in identifying what 
environmental and public health and safety laws apply to each gaming 
operation nor ensure that tribal gaming regulatory authorities are 
enforcing those laws. There is a need for a submission to the 
Commission of a certification by the tribe that it has identified laws 
applicable to its gaming operation and is in compliance with them 
together with a document listing those laws. A certification process 
would help tribes and the Commission to identify problem areas where 
laws are needed so that the NIGC may offer technical advice and 
encourage adoption and enforcement of appropriate laws. The new rules 
proposed today would not replace the Interpretive Rule but would work 
in conjunction with it.

II. Development of the Proposed Rules Through Consultation With Indian 
Tribes

    The Commission identified a need for facility license standards to 
address Indian lands and environmental and public health and safety 
concerns in 2005. In accordance with its government-to-government 
consultation policy, 69 FR 16,973 (Mar. 31, 2004), the Commission 
consulted with Indian tribes so they could provide early and meaningful 
input regarding formulation of the proposed rules. Before it began 
drafting the proposed rules, the Commission advised tribes of its 
intent to create standards and asked tribes for comments and 
suggestions on licensing regulations covering both Indian lands and 
environmental and public health and safety standards at consultation 
sessions around the country beginning in October of 2005.
    Thereafter, the Commission prepared draft facility licensing 
regulations covering Indian lands and environmental and public health 
and safety standards. A copy of the draft regulations was sent to 
leaders of all gaming tribes for comment on May 12, 2006. The NIGC also 
posted the draft on its Web site, http://www.nigc.gov, for public 
comment. Fifty-six tribes provided written comments. In addition, 
between May 12, 2006, and March 20, 2007, the Commission invited 309 
tribes to meet with it in consultation asking, among other matters, for 
comment on the draft regulations. While some tribes declined the 
Commission's invitations, the Commission conducted over 53 separate 
government-to-government consultation meetings with individual tribes 
and their leaders or representatives.
    The comments and suggestions received were carefully reviewed, and 
as a result, the Commission decided to redraft the regulations. Tribes 
questioned the NIGC's authority to issue the regulations for tribes 
conducting class III gaming and the NIGC's authority to issue 
regulations in this area overall. Tribes also challenged the first 
draft as unduly onerous and costly. The first draft applied to open as 
well as new gaming operations and required tribes to submit a signed 
legal opinion finding that the site was on IGRA Indian lands; a 
certification that the gaming site was on Indian lands; plat maps; 
copies of trust deeds; copies of any court decisions, settlement 
agreements, Congressional acts, Executive Orders, or Secretarial 
proclamations or decisions affecting title or ownership of the land; 
documentation on site ownership and leasehold interests; and 
documentation the site was located within reservation boundaries or was 
within tribal jurisdiction and the tribe exercised governmental power 
over it. The first draft had also required tribes to submit the table 
of contents of each applicable environmental and public health and 
safety law. The Commission agreed that the requirements to submit a 
signed legal opinion on the Indian lands status of gaming lands and the 
table of contents for each applicable environmental and public health 
and safety law would be unduly burdensome and expensive and therefore 
removed them.
    The Commission sent a revised draft to leaders of all gaming tribes 
for comment on March 21, 2007, and posted the draft on its Web site, 
asking for comments by May 15, 2007. NIGC Press Release PR-63 06-2007. 
The comment period deadline was subsequently extended to May 30, 2007. 
NIGC Press Release PR-65 08-2007. The NIGC posted the initial request 
for comments and the extension letter on its Web site in order to 
obtain additional public comment. In addition, the Commission invited 
273 tribes to meet with it in consultation asking, among other matters, 
for comment on the regulations. While some tribes declined the 
Commission's invitations, between March 20, 2007, and July 31, 2007, 
the Commission conducted over 60 separate government-to-government 
consultation meetings with individual tribes and their leaders or 
representatives. Tribes submitted 78 comments to the revised draft.
    Comments on the revised draft were again carefully reviewed and 
considered by the Commission in formulating these proposed regulations. 
Tribes continued to question the NIGC's authority to issue the 
regulations. The Commission, however, continues to believe it has 
authority to issue licensing standards, determine whether a site 
constitutes Indian lands, and ensure tribal compliance with the 
environmental and public health and safety provision of the IGRA. The 
NIGC noted the continued concern of many tribes regarding the Indian 
lands submission burden and has substantially lessened the burden in 
the proposed rules published today as well as limited the submission 
requirements for this regulation to new gaming operations. The NIGC has 
therefore substantially reduced the Indian lands collection while 
requiring tribes to submit additional documentation if necessary.
    The second draft also required all gaming tribes to amend their 
gaming ordinances within two years of the effective date of the 
regulations in order to incorporate specific environmental and public 
health and safety provisions into their gaming ordinance. The NIGC 
concurs with the commentators that the ordinance amendment concept is 
unnecessary and would prove unduly burdensome and costly both to the 
tribes and the agency and has removed this provision.
    Tribes also commented that submission of a certification that the 
tribe is in compliance with applicable environmental and public health 
and safety laws and a list of those laws was burdensome and an 
infringement on tribal sovereignty. The Commission believes that the 
environmental and public health and safety requirements do not infringe 
on tribal sovereignty and are not unduly onerous. The requirements for 
environmental and public health and safety certifications and lists of 
laws appear to have been misconstrued as the regulations do not require 
tribes to adopt any specific laws or send in all of their laws, but are 
meant to keep the NIGC current on the status of the tribes' laws.
    As of the date of publication, the Commission has to date conducted 
over 113 separate government-to-government consultation meetings with 
individual tribes and their leaders or representatives and received 
many

[[Page 59046]]

written comments on its drafts. Through these consultations, the 
Commission actively endeavored to provide all tribes with a reasonable 
and practical opportunity to meet and consult with the Commission on a 
government-to-government basis and provide early and meaningful tribal 
input regarding the formulation and implementation of these proposed 
rules.

III. Purpose and Scope

    The proposed rules are intended to ensure that each place, 
facility, or location where class II or class III gaming will occur is 
located on Indian lands eligible for gaming under the IGRA. The 
proposed rules are also intended to assure that gaming facilities are 
constructed, maintained, and operated in a manner that adequately 
protects the environment and public health and safety. In addition, the 
proposed rules will allow the Commission to track the opening and 
closing of tribal gaming facilities. Each gaming place, facility, or 
location where a tribe conducts, or intends to conduct, class II or 
class III gaming pursuant to the IGRA would be subject to the proposed 
rules.

IV. Ordinance Submission Requirements of 25 CFR Part 522

    The IGRA requires that gaming be on Indian lands eligible for 
gaming under the Act and that a tribe include in its ordinance a 
provision that ``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.'' 
25 U.S.C. 2710(b)(2)(E). The addition of paragraph (i) to 25 CFR 522.2, 
concerning ordinance submission requirements, directs that a tribe 
shall provide any Indian lands or environmental and public health and 
safety documentation that the Chairman requests at his or her 
discretion as needed.

V. Definitions for 25 CFR Part 502

    The Commission proposes definitions for terms not previously 
defined in its regulations. These definitions would have general 
application to all of the NIGC regulations where the terms are used.
    In the proposed rule, the Commission defines the term ``facility 
license'' to clarify the term used in 25 U.S.C. 2710(b)(1), which 
requires a tribe to issue a separate license for each place, facility, 
or location on Indian lands at which class II or class III gaming is or 
will be conducted.
    The Commission also proposes to define the requirement in 25 U.S.C. 
2710(b)(2)(E) that a tribal gaming 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.'' The Commission clarifies that this term means a tribe has 
identified and is enforcing laws applicable to its gaming operations in 
the areas of emergency preparedness, food and potable water, 
construction and maintenance, hazardous materials, and sanitation.

VI. Facility License Notifications, Renewals, and Submissions

    Proposed 25 CFR part 559 sets forth standards for renewal of gaming 
facility licenses, standards for notification to the Commission when a 
facility license is renewed or terminated, and standards for 
notification to the Commission prior to the licensing and opening of 
new gaming facilities.
    A tribe would submit a notice to the Chairman that it is 
considering issuing a facility license to a new facility at least one 
hundred and twenty (120) days before opening. The notice would contain 
the name, address, legal description and tract number of the property. 
Other information would be required if the deed for the property is not 
maintained by the Bureau of Indian Affairs, Department of the Interior. 
In that case, the tribe would submit a copy of the deed and 
documentation of the property's ownership. Charitable events lasting 
not more than one week would be excluded from this requirement.
    In addition, proposed part 559 would require renewals of facility 
licenses at least once every three years. A copy of each facility 
license would be sent to the Chairman within thirty days of issuance, 
with a supporting certification that the tribe has identified and 
enforces applicable environmental and public health and safety laws and 
a list of those laws. The Chairman has discretion to request additional 
Indian lands or environmental and public health and safety 
documentation as needed. Further, a tribe would notify the Chairman if 
a facility license is terminated or not renewed, or if the facility 
closes.

VII. Order of Temporary Closure

    Proposed 25 CFR 573.6(a)(4) amends the current regulation, which 
already allows the Chairman to order temporary closure of a facility 
when a gaming facility operates without a license from a tribe. The 
amendment would correct the faulty citation to be replaced with the 
correct citation. The amended rule would also allow the Chairman to 
issue an order of temporary closure if a gaming facility operates 
without a facility license in violation of proposed rule 25 CFR part 
559.

Regulatory Matters

Regulatory Flexibility Act

    The proposed rules will not have a significant economic effect on a 
substantial number of small entities as defined under the Regulatory 
Flexibility Act, 5 U.S.C. 601, et seq. Moreover, Indian tribes are not 
considered to be small entities for the purposes of the Regulatory 
Flexibility Act.

Small Business Regulatory Enforcement Fairness Act

    The proposed rules are not a major rule under 5 U.S.C. 804(2), the 
Small Business Regulatory Enforcement Fairness Act. The rules do not 
have an annual effect on the economy of $100 million or more. The rules 
will not cause a major increase in costs or prices for consumers, 
individual industries, Federal, state or local government agencies or 
geographic regions and do not have a significant adverse effect on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises.

Unfunded Mandates Reform Act

    The Commission, as an independent regulatory agency within the 
Department of the Interior, is exempt from compliance with the Unfunded 
Mandates Reform Act, 2 U.S.C. 1502(1); 2 U.S.C. 658(1). Regardless, the 
proposed rules do not impose an unfunded mandate on state, local, or 
tribal governments or on the private sector of more than $100 million 
per year. Thus, it is not a ``significant regulatory action'' under the 
Unfunded Mandates Reform Act.

Takings

    In accordance with Executive Order 12630, the Commission has 
determined that the proposed rules do not have significant takings 
implications. A takings implication assessment is not required.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of General 
Counsel has determined that the proposed rules do not unduly burden the 
judicial system and meet the requirements of sections 3(a) and 3(b)(2) 
of the Order.

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National Environmental Policy Act

    The Commission has determined that the proposed rules do 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.

Paperwork Reduction Act

    The proposed rules require information collection under the 
Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq., and are 
subject to review by the Office of Management and Budget. The title, 
description, and respondent categories are discussed below, together 
with an estimate of the annual information collection burden.
    With respect to the following collection of information, the 
Commission invites comments on: (1) Whether the proposed collection of 
information is necessary for proper performance of its functions, 
including whether the information would have practical utility; (2) the 
accuracy of the Commission's estimate of the burden of the proposed 
collection of information, including the validity of the methodology 
and assumptions used; (3) ways to enhance the quality, utility, and 
clarity of the information to be collected; and (4) ways to minimize 
the burden of the collection of information on respondents, including 
the use of automated collection techniques, when appropriate, and other 
forms of information technology.
    Title: Indian Gaming Facility Documentation and Certification, 
proposed 25 CFR part 559.
    Summary of information and description of need:
    The IGRA establishes that Indian gaming may be conducted only on 
Indian lands. 25 U.S.C. 2703(4), 2710(a)(1), 2710(b)(1), 2710(d)(1). 
The IGRA further provides that the Indian lands outside of a tribe's 
reservation boundaries as of the effective date of the Act, October 17, 
1988, must be held in trust by the United States for the tribe or 
tribal member(s) as of October 17, 1988. 25 U.S.C. 2719(a). If not, the 
site must meet one of the exceptions from 25 U.S.C. 2719(b). To carry 
out its regulatory requirements, the Commission must know the status of 
lands where tribal gaming is occurring. Without the required showing 
that gaming is conducted on ``Indian lands,'' it is unclear whether the 
NIGC or the State exercises jurisdiction over the gaming.
    In addition, a September 2005 report by the Office of Inspector 
General (``OIG'') for the United States Department of the Interior 
(``DOI'') recommended that the NIGC establish a process by which tribes 
that have taken land into trust since 1988 certify the lands' status 
and establish and maintain a database containing eligibility 
information and/or lands determinations for all Indian gaming 
operations. The NIGC has established an Indian lands database and seeks 
to populate the database with information on new gaming facilities. The 
data will be utilized for internal reporting and recordkeeping 
purposes; to determine jurisdiction and legality of gaming; and to 
respond to inquiries from other government agencies and Congress 
regarding where Indian gaming is occurring and proposed. Any public 
requests for information contained in the database will be subject to 
the Freedom of Information Act, 5 U.S.C. 552, the Privacy Act of 1974, 
5 U.S.C. 552a, and 25 U.S.C. 2716.
    Proposed section 559.2 requires that a tribe submit a notice to the 
NIGC at least one hundred and twenty (120) days before a new gaming 
facility will be opened, alerting the agency that a facility license is 
under consideration. The notice will contain the name and address of 
the property; the legal description of the property; a copy of any 
deeds or trust documents to the property if not maintained by the 
Bureau of Indian Affairs, Department of the Interior (``BIA''), the 
tract number for the property as assigned by the BIA Land Title Records 
Offices (``LTRO''), or a short explanation as to why no deed exists; 
and documentation on the property's ownership if not maintained by the 
BIA.
    The notice and its information provide necessary data without which 
the NIGC is unable easily to identify the site or to verify that a 
gaming site will be on eligible Indian lands pursuant to the IGRA and 
enter that information into the agency's Indian lands database.
    First, the name and address of the future facility are needed by 
the NIGC in order to identify the site and are needed for the agency's 
Indian lands database. Second, the NIGC is constrained in its attempts 
to research the gaming eligibility status of a site under the IGRA 
without a legal description and LTRO tract number. Although many deeds 
and ownership documentation are maintained at BIA LTRO, without 
information from a tribe regarding the address, legal description, and 
tract number of where gaming is to be conducted, the NIGC cannot 
reliably or efficiently know which deeds to request. Previous requests 
to the BIA indicate that the BIA is often unable to assist the NIGC 
without a legal description and tract number of the land. The legal 
description and tract number also allow the NIGC to work with the BIA 
to verify, for example, whether land is within or contiguous to 1988 
reservation boundaries, is within an Oklahoma former reservation, or is 
within the last reservation boundaries not in Oklahoma. See 25 U.S.C. 
2703(4), 2719. Third, the NIGC is requesting that tribes submit deeds 
not maintained by the BIA. Tribes often operate their own real estate 
offices and maintain their trust deeds themselves. If no deed was ever 
issued for the property, the tribe is in the best position to explain 
why no deed was issued. Moreover, if land is owned in fee, the tribe 
should have obtained a copy of the deed in the course of developing the 
new project. Documentation of ownership indicates that the land is 
owned by the tribe or a tribal member and is an indication of 
jurisdiction. A tribe is required to have jurisdiction and exercise 
governmental power over its gaming lands. See 25 U.S.C. 2703(4), 
2710(b)(1). The Commission presumes that a tribe has both jurisdiction 
and exercises governmental power on its reservation lands but needs to 
ensure this for all off-reservation sites as they are threshold 
requirements for tracts to be considered Indian lands. 25 U.S.C. 
2703(4), 2710, and 2719.
    Proposed part 559 also requires that each gaming facility license 
be renewed at least once every three years and that a tribe must submit 
a copy of each new facility license to the NIGC within 30 days of 
issuance. Supporting documentation submitted with the new facility 
license includes a tribal certification that a tribe has identified and 
enforces the environmental and public health and safety laws applicable 
to its gaming operation and a document listing the applicable laws.
    The NIGC requires the certification and list of laws in order to 
identify what environmental and public health and safety standards 
apply to each gaming operation and to ensure that tribal gaming 
regulatory authorities are enforcing the standards for the gaming 
operations. The certification and list would allow the Commission to 
rely on a tribe's assertion that it is in compliance with applicable 
laws.
    Respondents:
    This information request is specific to tribal governments that 
operate gaming facilities and to tribal governments considering opening 
new gaming facilities in accordance with the IGRA. The maximum number 
of potential respondents is approximately 562, the number of federally 
recognized Indian

[[Page 59048]]

tribes. See Indian Entities Recognized and Eligible To Receive Services 
From the United States Bureau of Indian Affairs, 72 FR 13,648 (Mar. 22, 
2007). Currently, approximately 226 tribes operate approximately 419 
gaming facilities.
    Information Collection Burden:
    The proposed rules require tribes opening new gaming facilities to 
submit: (1) The facility name; (2) mailing addresses, legal 
descriptions, and LTRO tract numbers for the proposed gaming site; and 
(3) copy of the trust deed(s) and documentation on site ownership if 
not maintained by the BIA. If a tribe maintains its real property deeds 
through contract with the BIA, it will have ready access to the legal 
description and LTRO tract number. There could be some burden on the 
tribe to learn the legal description of the property. The legal 
description can be obtained from the county recorder's office, through 
working with the BIA, or from the tribe's own realty office. There 
would also be a minimal burden on the tribe to locate a copy of a deed 
or to write a brief explanation that no deed was ever issued for the 
property in the rare instances where this is so on tribal reservation 
lands. Likewise, there would be a burden on tribes to provide 
documentation of ownership if not maintained by the BIA. Such 
documentation can be obtained from the county recorder's office or from 
the tribe's own realty office if contracted to maintain such 
information. The NIGC believes that providing a legal description, LTRO 
tract number, trust deed, or land ownership information could require 
investment of time only. This portion of the information request will 
not be recurring and tribes will only be required under this proposed 
rule to comply with the information request if they plan on opening a 
new tribal facility. In general, the NIGC believes tribes wishing to 
open gaming establishments on fee lands would need to obtain this 
information as part of the normal course of business. Therefore, the 
Indian lands portion of the rule would add only limited additional 
expense to Indian gaming operations.
    The proposed rule further requires submission at least once every 
three years of: (1) A copy of each gaming site's facility license; and 
(2) a tribal certification that it has identified and is in compliance 
with applicable environment and public health and safety laws. The 
document listing the applicable laws must be included with the first 
submission only. After that, if no changes are made to the list, the 
tribe only needs to certify to the NIGC that no substantial 
modifications were made to the list. The NIGC believes that there will 
be minimal burden for a tribe to identify the laws applicable to its 
gaming operation. Tribes should already be aware of and enforcing laws 
applicable to their gaming operations so the time and cost associated 
with a certification and list of laws should be minimal. One-time costs 
may be incurred by tribal governments drafting and adopting laws if 
there are none in the identified areas.
    Over the past year, the Commission requested Indian lands 
information from several tribes for existing facilities. The 
information collection there was substantially greater than that 
contained in the proposed rule. The NIGC had asked tribes to provide a 
legal description, a copy of the trust deed, a map of the property, 
documentation from the BIA on its decision to take the land into trust, 
and a legal analysis of why each open tribal gaming site qualified as 
Indian lands eligible for gaming under the IGRA. Tribes reported that 
the collection took approximately 4 hours if the information had 
already been compiled. Tribes conducting gaming on pre-IGRA trust lands 
estimated 20 hours of response time and tribes gaming under an 
exception in 25 U.S.C. 2719(b) estimated up to 80 hours of response 
time with an average estimated range of costs for each facility of 
approximately $350 (20 hours x $17.50) to $1,400 (80 hours x $17.50). 
The Commission expects that the most of the response time and cost will 
be eliminated under the current information request as the NIGC is 
requesting only name and address of the property; the legal description 
of the property; a copy of any deeds to the property if not maintained 
by the BIA, or a short explanation as to why no deed exists; and 
documentation on the property's ownership if not maintained by the BIA. 
The Commission estimates that the hour burden will drop to 2 hours at a 
cost of $35 (2 x $17.50) under the proposed rule if the BIA maintains 
the deed and documentation of site ownership, going up to 10 hours at a 
cost of $175 (10 x $17.50) if the BIA does not maintain such 
information. The NIGC expects to work with the BIA to establish a 
process for obtaining lands information that is held by the BIA.
    Additionally, under the proposed rule, the Commission's collection 
of information on Indian lands would require submission of information 
on future facilities; it is unlikely that a tribe would have to provide 
information on more than one facility at a time or very many times over 
the course of several years.
    The Commission has requested copies of environmental and public 
health and safety laws from many tribes in preparation for inspections 
under the Interpretive Rule, 67 FR 46,109 (Jul. 12, 2002), but has not 
asked tribes to report the time required to provide the information. 
This information collection request is for a copy of each gaming site's 
facility license, a tribal certification that it has identified and is 
in compliance with applicable environment and public health and safety 
(``EPHS'') laws, and a document listing the titles of those laws other 
than federal laws.
    The NIGC believes that there will be minimal burden for a tribe to 
identify the laws applicable to its gaming operation, other than 
federal laws, in the areas of emergency preparedness, food and water, 
construction and maintenance, hazardous materials, and sanitation. 
Tribes should already be aware of and enforcing laws applicable to 
their gaming operations so time and cost associated with a 
certification and list of laws should be minimal. The estimated hour 
burden of assembling EPHS laws and creating a list is 3-8 hours, or 
approximately $52.50 (3 x 17.50) to $140 (8 x $17.50) depending on 
whether the tribe already maintains such a list.
    Once every three years, a tribe could incur costs of hiring 
consultants, attorneys, engineers, or inspectors to certify compliance 
with applicable EPHS laws, and this is estimated to be $1,000 to $7,000 
for inspection and certification. One estimate was for a series of 
inspectors over 3-5 days at a total cost of $5,000-$7,000.
    Potentially, a few tribes will have to make significant changes to 
their infrastructure before a certificate of compliance can be issued. 
In such cases, the costs may be estimated as ranging from $40,000 to 
$250,000 and include ongoing compliance costs in addition to inspection 
costs. The wide range of costs depends on whether a tribe has already 
developed and identified applicable EPHS laws and has an ongoing 
program aimed at assuring the public health and safety. The higher cost 
estimates came from operations with full-time EPHS employees and 
represent the overall cost of the tribe's EPHS program rather than 
simply costs associated with inspection and certification. Operations 
with full-time EPHS employees pay for them as part of the overall cost 
of the tribe's EPHS program rather than as costs associated with 
inspection and certification. The costs associated with the customary 
and usual business practice of maintaining EPHS and fixing code 
violations are not

[[Page 59049]]

a direct result of a certification requirement, but rather required 
already by tribal laws, including the tribal gaming ordinance, which 
requires a tribe to construct, maintain, and operate its gaming 
facilities in a manner that protects the public pursuant to 25 U.S.C. 
2710(b)(2)(E). The hour cost of having the appropriate tribal entity 
create a certification after the inspections is estimated at 2 hours 
for a cost of $35 (2 x $17.50).
    Also, if a tribe does not have laws in one of the enumerated areas, 
it may require employment of an attorney or other specialist to 
research other laws in this area and may require the attorney to draft 
tribal law if the tribe opts not to adopt a uniform code or law of 
another jurisdiction. The NIGC estimates the cost for this as 
approximately $5,000-$10,000.
    The proposed rule also requires an information collection if a 
facility license is terminated or not renewed or if a gaming place, 
facility, or location closes. The NIGC believes the tribe will create 
documentation for this through governmental meeting minutes or through 
a notification to the gaming operation and need only forward a copy of 
that information to the Commission. The estimated hour burden of 
forwarding this information to the Commission is a half hour for 
approximately $8.75 (.5 x $17.50).
    Comments: Pursuant to the Paperwork Reduction Act, 44 U.S.C. 
3507(d), the Commission has submitted a copy of this proposed rule to 
OMB for its review and approval of this information collection. 
Interested persons are requested to send comments regarding the burden, 
estimates, or any other aspect of the information collection, including 
suggestions for reducing the burden: (1) Directly to the Office of 
Information and Regulatory Affairs, OMB, Attn: Desk Officer for the 
National Indian Gaming Commission, 725 17th Street NW., Washington, DC 
20503; and (2) to Penny J. Coleman, Acting General Counsel, National 
Indian Gaming Commission, 1441 L Street, NW., Suite 9100, Washington, 
DC 20005 or via fax (202) 632-7066 (not a toll-free number) or via e-
mail at [email protected]. Comments are due November 19, 
2007.

List of Subjects in 25 CFR Parts 502, 522, 559, and 573

    Gambling, Indians--lands, Indians--tribal government, Reporting and 
recordkeeping requirements.

Text of the Proposed Rules

    For the reasons set forth in the preamble, the Commission proposes 
to amend its regulations at 25 CFR Chapter III as follows:

PART 502--DEFINITIONS OF THIS CHAPTER

    1. The authority citation for part 502 continues to read as 
follows:

    Authority: 25 U.S.C. 2701 et seq.

    2. Add new Sec.  502.22 to read as follows:


Sec.  502.22  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.

    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 means a tribe 
has identified and enforces laws, resolutions, codes, policies or 
procedures applicable to each gaming place, facility or location that 
protect the environment and the public health and safety, including 
standards negotiated under a tribal-state compact. Laws, resolutions, 
codes, policies or procedures in this area shall cover, at a minimum:
    (a) Emergency preparedness, including but not limited to fire 
suppression, law enforcement, and security;
    (b) Food and potable water;
    (c) Construction and maintenance;
    (d) Hazardous materials;
    (e) Sanitation (both solid waste and wastewater); and
    (f) Other environmental or public health and safety standards 
adopted by the tribe in light of climate, geography, and other local 
conditions and applicable to its gaming facilities, places or 
locations.
    3. Add new Sec.  502.23 to read as follows:


Sec.  502.23  Facility license.

    Facility license means a separate license issued by a tribe to each 
place, facility, or location on Indian lands where the tribe elects to 
allow class II or III gaming.

PART 522--SUBMISSION OF GAMING ORDINANCE OR RESOLUTION

    4. The authority citation for part 522 continues to read as 
follows:

    Authority: 25 U.S.C. 2706, 2710, 2712.

    5. Add new paragraph (i) to Sec.  522.2 to read as follows:


Sec.  522.2  Submission requirements.

    (i) A tribe shall provide Indian lands or environmental and public 
health and safety documentation that the Chairman may in his or her 
discretion request as needed.
    6. Add new part 559 to read as follows:

PART 559--FACILITY LICENSE NOTIFICATIONS, RENEWALS, AND SUBMISSIONS

Sec.
559.1 What is the scope and purpose of this part?
559.2 When must a tribe notify the Chairman that it is considering 
issuing a new facility license?
559.3 How often must a facility license be renewed?
559.4 When must a tribe submit a copy of a facility license to the 
Chairman?
559.5 What must a tribe submit to the Chairman with the copy of each 
facility license that has been issued?
559.6 Does a tribe need to notify the Chairman if a facility license 
is terminated or not renewed or if a gaming place, facility, or 
location closes?
559.7 May the Chairman request Indian lands or environmental and 
public health and safety documentation regarding any gaming place, 
facility, or location where gaming will occur?
559.8 May a tribe submit documents required by this part 
electronically?

    Authority: 25 U.S.C. 2701, 2702(3), 2703(4), 2705, 2706, 2710 
and 2719.


Sec.  559.1  What is the scope and purpose of this part?

    (a) The purpose of this part is to ensure that each place, 
facility, or location where class II or III gaming will occur is 
located on Indian lands eligible for gaming and 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 pursuant to the Indian 
Gaming Regulatory Act.
    (b) Each gaming place, facility, or location conducting class II or 
III gaming pursuant to the Indian Gaming Regulatory Act or on which a 
tribe intends to conduct class II or III gaming pursuant to the Indian 
Gaming Regulatory Act is subject to the requirements of this part.


Sec.  559.2  When must a tribe notify the Chairman that it is 
considering issuing a new facility license?

    (a) A tribe shall submit to the Chairman a notice that a facility 
license is under consideration for issuance at least 120 days before 
opening any new place, facility, or location on Indian lands where 
class II or III gaming will occur. The notice shall contain the 
following:

[[Page 59050]]

    (1) The name and address of the property;
    (2) A legal description of the property;
    (3) The tract number for the property as assigned by the Bureau of 
Indian Affairs, Land Title and Records Offices;
    (4) If not maintained by the Bureau of Indian Affairs, Department 
of the Interior, a copy of the trust or other deed(s) to the property 
or an explanation as to why such documentation does not exist; and
    (5) If not maintained by the Bureau of Indian Affairs, Department 
of the Interior, documentation of the property's ownership.
    (b) A tribe does not need to submit to the Chairman a notice that a 
facility license is under consideration for issuance for occasional 
charitable events lasting not more than a week.


Sec.  559.3  How often must a facility license be renewed?

    At least once every three years, a tribe shall issue a separate 
facility license to each existing place, facility or location on Indian 
lands where a tribe elects to allow gaming.


Sec.  559.4  When must a tribe submit a copy of a facility license to 
the Chairman?

    A tribe must submit to the Chairman a copy of each issued facility 
license within 30 days of issuance.


Sec.  559.5  What must a tribe submit to the Chairman with the copy of 
each facility license that has been issued?

    (a) A tribe shall submit to the Chairman with each facility license 
an attestation certifying that by issuing the facility license:
    (1) The tribe has identified the environmental and public health 
and safety laws applicable to its gaming operation;
    (2) The tribe is in compliance with those laws; and
    (3) The tribe has ensured and is ensuring 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.
    (b) A document listing all laws, resolutions, codes, policies or 
procedures identified by the tribe as applicable to its gaming 
operations, other than Federal laws, in the following areas:
    (1) Emergency preparedness, including but not limited to fire 
suppression, law enforcement, and security;
    (2) Food and potable water;
    (3) Construction and maintenance;
    (4) Hazardous materials;
    (5) Sanitation (both solid waste and wastewater); and
    (6) Other environmental or public health and safety standards 
adopted by the tribe in light of climate, geography, and other local 
conditions and applicable to its gaming facilities, places or 
locations.
    (c) After the first submission of a document under paragraph (b) of 
this section, upon reissuing a license to an existing gaming place, 
facility, or location, and in lieu of complying with paragraph (b) of 
this section, a tribe may certify to the Chairman that it has not 
substantially modified its laws protecting the environment and public 
health and safety.


Sec.  559.6  Does a tribe need to notify the Chairman if a facility 
license is terminated or not renewed or if a gaming place, facility, or 
location closes?

    A tribe must notify the Chairman within 30 days if a facility 
license is terminated or not renewed or if a gaming place, facility, or 
location closes or reopens.


Sec.  559.7  May the Chairman request Indian lands or environmental and 
public health and safety documentation regarding any gaming place, 
facility, or location where gaming will occur?

    A tribe shall provide Indian lands or environmental and public 
health and safety documentation that the Chairman may in his or her 
discretion request as needed.


Sec.  559.8  May a tribe submit documents required by this part 
electronically?

    Yes. Tribes wishing to submit documents electronically should 
contact the Commission for guidance on acceptable document formats and 
means of transmission.

PART 573--ENFORCEMENT

    7. The authority citation for part 573 continues to read as 
follows:

    Authority: 25 U.S.C. 2705(a)(1), 2706, 2713, 2715.

    8. Amend Sec.  573.6 by revising paragraph (a)(4) to read as 
follows:


Sec.  573.6  Order of temporary closure.

    (a) * * *
* * * * *
    (4) A gaming operation operates for business without a license from 
a tribe, in violation of part 522 or part 559 of this chapter.
* * * * *

    Dated: October 11, 2007.
Philip N. Hogen,
Chairman.
Cloyce V. Choney,
Commissioner.
Norman H. DesRosiers,
Commissioner.
[FR Doc. E7-20541 Filed 10-17-07; 8:45 am]
BILLING CODE 7565-01-P