[Federal Register Volume 77, Number 20 (Tuesday, January 31, 2012)]
[Proposed Rules]
[Pages 4731-4734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1915]
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DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
25 CFR Part 559
RIN 3141-AA48
Review and Submittal of a Tribe's Facility License Information
AGENCY: National Indian Gaming Commission, Interior.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The National Indian Gaming Commission is proposing revisions
to its regulations that would provide for an expedited review of a
tribe's facility license information and streamline the submittal of
information relating to a proposed facility license. The proposed rule
also provides for tribes to submit a certification attesting that the
gaming operation is being conducted in a manner that adequately
protects the environment and the public health and safety. Further, the
proposed rule requires a facility license to be submitted before the
opening of any new place, facility, or location on Indian lands where
class II or III gaming will occur. Likewise, a tribe must notify the
Chair if a facility license is terminated, expires, or if a gaming
place, facility, or location closes or reopens, unless the closure is
seasonal or temporary.
DATES: The agency must receive comments on or before April 2, 2012.
ADDRESSES: You may submit comments by any one of the following methods,
however, please note that comments sent by electronic mail are strongly
encouraged.
Email comments to: [email protected].
Mail comments to: Armando J. Acosta, National Indian
Gaming Commission, 1441 L Street NW., Suite 9100, Washington, DC 20005.
Hand deliver comments to: 1441 L Street NW., Suite 9100,
Washington, DC 20005.
Fax comments to: Armando J. Acosta, National Indian Gaming
Commission at (202) 632-0045.
FOR FURTHER INFORMATION CONTACT: Armando J. Acosta, National Indian
Gaming Commission, 1441 L Street NW., Suite 9100, Washington, DC 20005.
Telephone: (202) 632-7009; email: [email protected]
SUPPLEMENTARY INFORMATION:
I. Comments Invited
Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments as they
may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposed rules.
II. Background
The Indian Gaming Regulatory Act (IGRA or Act), Public Law 100-497,
25 U.S.C. 2701 et seq., was signed into law on October 17, 1988. The
Act establishes the National Indian Gaming Commission (``Commission'')
and sets out a comprehensive framework for the regulation of gaming on
Indian lands. The purposes of IGRA include: providing a statutory basis
for the operation of gaming by Indian tribes as a means of promoting
tribal economic development, self-sufficiency, and strong tribal
governments; ensuring that the Indian tribe is the primary beneficiary
of the gaming operation; and declaring that the establishment of
independent federal regulatory authority for gaming on Indian lands,
the establishment of federal standards for gaming on Indian lands, and
the establishment of a National Indian Gaming Commission, are necessary
to meet congressional concerns regarding gaming and to protect such
gaming as a means of generating tribal revenue. 25 U.S.C. 2702.
The Act provides for tribal gaming on Indian lands within such
tribe's jurisdiction. 25 U.S.C. 2710. The Act further provides the
Chair and the Commission with civil regulatory authority for any
violation of any provision of IGRA, Commission regulations, or approved
tribal gaming ordinances. 25 U.S.C 2713. The Act requires ``a separate
license issued by the Indian tribe shall be required for each place,
facility, or location on Indian lands at which class II (and class III)
gaming is conducted.'' 25 U.S.C. 2710(b)(1) and (d)(1)(A)(iii).
Further, IGRA requires that tribal ordinances provide that ``the
construction and maintenance of the gaming facilities, and the
operation of that gaming is conducted in a manner which adequately
protects the environment and public health and safety.'' 25 U.S.C.
2710(b)(2)(E).
Part 559 serves three purposes. The first is to receive information
from tribes about the Indian lands status of each gaming facility. The
second is to obtain information from tribal governments certifying that
the construction, maintenance, and operation of the gaming facilities
are conducted in a manner that adequately protects the environment and
the public health and safety, as required by the IGRA. Finally, Part
559 serves to inform the Commission of those places, facilities, or
locations at which Indian gaming is presently being conducted.
On November 18, 2010, the Commission issued a Notice of Inquiry and
Notice of Consultation (NOI) advising the public that the Commission
was conducting a comprehensive review of its regulations and requesting
public comment on which of its regulations were most in need of
revision, in what order the Commission should review its regulations,
and the process the Commission should utilize to make revisions. 75 FR
70680 (Nov. 18, 2010). Part 559 was included in the first group of
regulations reviewed in consultation.
II. Development of the Proposed Rule
The Commission conducted multiple tribal consultations as part of
its review of part 559. Tribal consultations were held in every region
of the country and were attended by numerous tribal leaders or their
representatives. In addition to tribal consultations, on June 11, 2011,
the Commission requested
[[Page 4732]]
public comment on a preliminary draft of amendments to part 559.
A. General Issues
In response to the NOI, several comments stated that the current
facility licensing regulations exceeded the Commission's authority
under IGRA. However, many comments also stated that the June 11, 2011
draft facility licensing regulations more closely tracked the text and
purpose of IGRA. Another commentator suggested that self-regulating
tribes be exempted from this requirement. However, facility licenses
are a statutory requirement and even self-regulating tribes must issue
facility licenses. Therefore, the proposed rule does not exempt self-
regulating tribes from the facility license requirement.
B. Submission of Indian lands information
The June 11, 2011 preliminary discussion draft amended the
timeframe for submittal of the facility license from 120 days to 60
days. It also added a subsection that required the Commission to
quickly verify the status of the Indian lands of the place, facility,
or location where class II or class III gaming will occur. However,
commentators objected to this change, noting that the draft created a
new process committing the Chair to act while the tribe waited for the
Chair's action. Comments pointed out that there is no legal requirement
for an Indian lands determination prior to gaming on that land. The
Commission agrees with the comments and has attempted to address this
issue in the proposed regulation. The proposed regulation reinstates
the 120-day timeframe for submittal of the facility license information
to the Commission, while allowing a tribe to request an expedited 60-
day review to confirm that the Tribe has submitted the materials
required under part 559. The proposed regulation also allows a tribe to
request a written confirmation from the Chair that the tribe has
submitted the materials required under part 559. Similar to existing
part 559, the proposed rule does not require the issuance of a written
opinion that the site on which Indian gaming is proposed is Indian
lands eligible for gaming, as that term is defined by IGRA.
Several commentators requested that the regulation be clarified to
state that tribal governments possess authority to independently issue
facility licenses and may open new facilities while the Commission's
``verification process'' is pending. The Commission agrees that IGRA
preserves a tribe's authority to issue facility licenses. The proposed
rule further clarifies that the notification process does not require
the Commission to verify the Indian lands status within the 120-day
timeframe. IGRA limits gaming to Indian lands eligible for gaming under
IGRA. If a tribe opens a new facility on lands not eligible for gaming,
it does so at the risk of violating IGRA and other applicable laws.
Additional comments suggested that the proposed regulation clarify that
after the passage of 120 days, there is a presumption that the tribe
has provided the required information and that the Commission has
verified the Indian land status, unless it notifies the tribe
otherwise. The Commission disagrees with such a presumption because
Commission action or inaction cannot change IGRA's limitations on which
Indian lands are eligible for gaming. Accordingly, the proposed
regulation does not require a verification or action on whether the
land is Indian land eligible for gaming, as that term is defined in
IGRA.
The Commission received comments suggesting that the notice
requirements include copies of relevant treaties, statutes, executive
orders, court orders, or other documentation, while other comments
stated that tribes should not be required to provide documents that
should already be in the federal government's possession. The proposed
regulation does not change the submission requirements for new
facilities. While the Commission agrees that tribes should not be
required to submit copies of documents that should already be in the
federal government's possession, maintaining this requirement will help
to provide certainty to tribes and the Commission that it has all of
the relevant information.
C. Notification Requirements for Facility Openings and Closures
Part 559 requires tribes to renew or reissue a facility license at
least once every three years. Proposed part 559 eliminates this
requirement. The Commission's view is that unless a change to the
facility has been made that changes the legal land description, tribes
may establish the duration of their facility licenses through tribal
law. The preliminary draft regulation still required the tribe to
provide the Commission with notice of a facility opening or closing and
to provide a copy of each renewed facility license. The proposed rule
maintains the approach set forth in the preliminary draft. The proposed
rule continues to require submittal of reissued facility licenses
whenever they are issued by the tribe.
Comments were varied in their recommendation for the number of days
a facility must be closed before notification should be sent to the
Commission. Some supported no notification to the Commission for
seasonal closures, while others suggested 60 days, 90 days, and 180
days. The proposed rule retains the requirement of notification when a
facility license is terminated or not renewed, or when a facility
closes or reopens so that the Commission has accurate, up-to-date
records of which facilities are operating at any given point in time.
However, the proposed rule does not require a tribe to notify the
Commission of a seasonal closure or a temporary closure of less than
180 days.
D. Environmental and Public Health and Safety Submission Requirements
In response to the NOI, the Commission received comments which
stated that requiring the submittal of EPHS information was onerous,
duplicative, and outside the authority and expertise of the Commission.
Commentators noted that EPHS issues were already addressed in tribal,
state, and federal laws, tribal-state compacts, and inter-governmental
agreements. Comments stated that, in addition to tribal governmental
departments that regulate such matters, federal agencies already
regulate the EPHS issues in Indian country. The Commission agrees that
in any particular situation, multiple governmental entities may already
regulate EPHS issues at gaming facilities. The proposed rule
streamlines the current submittal requirements in part 559 by requiring
the submittal of a certification by the tribe attesting that it has
determined that the construction, maintenance, and operation of the
gaming facility is conducted in a manner that adequately protects the
environment and the public health and safety. The proposed rule
maintains the Chair's discretion to request additional EPHS information
from a tribe. Some comments requested that the proposed rule identify
the circumstances under which the Chair could request such information.
The proposed draft does not do so, as it is not possible to identify
every possible scenario under which the Chair would exercise this
discretion.
E. Consolidation of Sec. 502.22 Into Sec. 559.4
Responses to the NOI indicated that the Commission should review
Sec. 502.22 in conjunction with the review of part 559. In response to
these comments, the Commission proposes incorporating Sec. 502.22 into
Sec. 559.4 and repealing
[[Page 4733]]
Sec. 502.22. This amendment is intended to promote clarity and
effectiveness for the regulated community.
Regulatory Matters
Regulatory Flexibility Act
The proposed rule will not have a significant impact 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 rule is not a major rule under the Small Business
Regulatory Enforcement Fairness Act, 5 U.S.C. 804(2). This rule does
not have an annual effect on the economy of $100 million or more. This
rule will not cause a major increase in costs or prices for consumers,
individual industries, federal, state or local government agencies or
geographic regions and does not have 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 Mandate Reform Act
The Commission, as an independent regulatory agency is exempt from
compliance with the Unfunded Mandates Reform Act. 2 U.S.C. 1502(1); 2
U.S.C. 658(1).
Takings
In accordance with Executive Order 12630, the Commission has
determined that the proposed rule does not have significant takings
implications. A takings implication assessment is not required.
Civil Justice Reform
In accordance with Executive Order 12988, the Commission has
determined that the proposed rule does not unduly burden the judicial
system and meets the requirements of sections 3(a) and 3(b)(2) of the
Executive Order.
National Environmental Policy Act
The Commission has determined that the 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.
Paperwork Reduction Act
The information collection requirements contained in this rule were
previously approved by the Office of Management and Budget (OMB) as
required by 44 U.S.C. 3501 et seq. and assigned OMB Control Number
3141-0012, which expired on January 31, 2011. The NIGC is in the
process of reinstating that Control Number.
Text of the Proposed Rules
For the reasons discussed in the preamble, the Commission proposes
to revise 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 Chair that it is considering
issuing a new facility license?
559.3 When must a tribe submit a copy of a newly issued or renewed
facility license to the Chair?
559.4 What must a tribe submit to the Chair with the copy of each
facility license that has been issued or renewed?
559.5 Does a tribe need to notify the Chair if a facility license is
terminated or expires or if a gaming place, facility, or location
closes or reopens?
559.6 May the Chair require a tribe to submit applicable and
available Indian lands or environmental and public health and safety
documentation regarding any gaming place, facility, or location
where gaming will occur?
559.7 May a tribe submit documents required by this part
electronically?
Authority: 25 U.S.C. 2701, 2702(3), 2703(4), 2705, 2706(b)(10),
2710, 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 obtain an attestation
certifying 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, 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 Chair that it is considering
issuing a new facility license?
(a) A tribe shall submit to the Chair 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.
(1) A tribe may request an expedited review of 60 days and the
Chair shall respond to the tribe's request, either granting or denying
the expedited review, within 30 days.
(2) Although not necessary, a tribe may request written
confirmation from the Chair.
(b) The notice shall contain the following:
(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, if any;
(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.
(c) A tribe does not need to submit to the Chair a notice that a
facility license is under consideration for issuance for occasional
charitable events lasting not more than one week.
Sec. 559.3 When must a tribe submit a copy of a newly issued or
renewed facility license to the Chair?
A tribe must submit to the Chair a copy of each newly issued or
renewed facility license within 30 days of issuance.
Sec. 559.4 What must a tribe submit to the Chair with the copy of
each facility license that has been issued or renewed?
A tribe shall submit to the Chair with each facility license an
attestation certifying that by issuing the facility license, the tribe
has determined 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. This means that a tribe has identified and enforces laws,
resolutions, codes, policies, standards or procedures applicable to
each gaming place, facility, or location that protect the environment
and the public health and safety, including standards under a tribal-
state compact or Secretarial procedures.
[[Page 4734]]
Sec. 559.5 Does a tribe need to notify the Chair if a facility
license is terminated or expires or if a gaming place, facility, or
location closes or reopens?
A tribe must notify the Chair within 30 days if a facility license
is terminated or expires or if a gaming place, facility, or location
closes or reopens. A tribe need not provide a notification of seasonal
closures or temporary closures with a duration of less than 180 days.
Sec. 559.6 May the Chair require a tribe to submit applicable and
available 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 applicable and available Indian lands or
environmental and public health and safety documentation requested by
the Chair.
Sec. 559.7 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.
Dated: January 23, 2012.
Tracie L. Stevens,
Chairwoman.
Steffani A. Cochran,
Vice-Chairwoman.
Dated: January 23, 2012.
Daniel J. Little,
Associate Commissioner.
[FR Doc. 2012-1915 Filed 1-27-12; 11:15 am]
BILLING CODE 7565-01-P