[Federal Register Volume 77, Number 185 (Monday, September 24, 2012)]
[Rules and Regulations]
[Pages 58769-58773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-23156]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
25 CFR Parts 502 and 559
RIN 3141-AA48
Facility License Notifications and Submissions
AGENCY: National Indian Gaming Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The National Indian Gaming Commission (NIGC or Commission) is
amending its facility license regulations. The final rule amends the
current regulations: To provide for an expedited review to confirm a
tribe's submittal of facility license information; to require notice to
the NIGC when a tribe issues, renews, or terminates a facility license;
to streamline the submittal of certain information relating to the
construction, maintenance, and operation of a gaming facility; and to
provide that a tribe need not submit a notification of seasonal or
temporary closures of less than 180 days.
DATES: The effective date of these regulations is October 24, 2012.
FOR FURTHER INFORMATION CONTACT: Armando Acosta, National Indian Gaming
Commission, 1441 L Street NW., Suite 9100, Washington, DC 20005. Email:
[email protected]; telephone: 202-632-7003.
SUPPLEMENTARY INFORMATION:
I. 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 established the Commission and set out a comprehensive framework
for the regulation of gaming on Indian lands.
The Act provides for tribal gaming on Indian lands within such
tribe's jurisdiction. 25 U.S.C. 2710. The Act requires ``a separate
license issued by the Indian tribe * * * 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). The Act also
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 of the NIGC's regulations serves three purposes. The first
is for the Commission to receive information from tribes regarding the
Indian lands status of each gaming facility. The second is for the
Commission to obtain information from tribal governments regarding the
construction, maintenance, and operation of the gaming facilities.
Finally, part 559 serves to inform the Commission of those places,
facilities, or locations at which Indian gaming is presently being
conducted.
II. Previous Rulemaking Activity
On November 18, 2010, the Commission issued a Notice of Inquiry and
Notice of Consultation advising the public that the NIGC 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
that the Commission should utilize to make revisions. 75 FR 70680, Nov.
18, 2010. On April 4, 2011, after holding eight consultations and
reviewing all comments, the Commission published a Notice of Regulatory
Review Schedule (NRRS) setting forth a consultation schedule and
process for review. 76 FR 18457, April 4, 2011. Part 559 was included
in the first regulatory group reviewed pursuant to the NRRS.
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 attended by tribal leaders or their representatives.
In addition to tribal consultations, on June 11, 2011, the Commission
requested public comment on a preliminary draft of amendments to part
559. After considering all public comments, the Commission published a
Notice of Proposed Rulemaking. 77 FR 4731, Jan. 31, 2012.
III. Review of Public Comments
In response to its Notice of Proposed Rulemaking, published January
31, 2012, the Commission received the following comments:
559.1 What is the scope and purpose of this part?
Comment: Commenters stated generally that the prior versions of the
facility license rules are troublesome and that the proposed amendments
to the rules alleviate much of that concern.
Response: The Commission agrees.
559.2 When must a tribe notify the chair that it is considering issuing
a new facility license?
Comment: A few commenters questioned the need for a 120-day
notification period prior to the opening
[[Page 58770]]
of a new gaming facility, considering that a tribe is not legally
required to receive an Indian lands determination before gaming on the
land. Two commenters stated that, while the Commission has clarified
that gaming tribes could open a facility prior to the expiration of the
120-day period, many tribes view this as a de facto required waiting
period. Thus, the commenters stated that the 120-day period seems
unreasonably long, and that a shorter notification period is more
reasonable and appropriate. Two commenters stated further that even a
60-day expedited review period seems altogether unnecessary for such a
limited review. Thus, one commenter suggested a notice period of 30
days, another commenter suggested a notice period of 15-30 days, and
the third commenter suggested an unspecified shorter notice period. If
the Commission does not amend the rule to a shorter notice period, one
commenter suggested that the Commission grant waivers of the 120-day
period for reasonable cause shown.
Response: The Commission does not believe that providing a shorter
notification period is appropriate. Commenters are correct that there
is no legal requirement that the Commission issue a formal
determination (also known as an Indian lands determination) prior to a
tribe gaming on a specific site. However, the rule does require a tribe
to wait 120 days after notification before opening a new facility,
unless the tribe has requested an expedited review, pursuant to which
the Chair may grant a waiver of the 120-day notification period. The
Commission notes that the notification requirement does not involve an
approval or disapproval action by the Chair or the Commission. If a
tribe opens a facility on lands not eligible for gaming, it does so at
the risk of violating IGRA and other applicable laws.
Lastly, the Office of Inspector General, U.S. Department of the
Interior, recommended in a September 2005 report that the Commission
establish a process by which tribes that have taken land into trust
since October 1988 certify the land's status, and that the Commission
establish and maintain a database containing eligibility information
for all Indian gaming operations. Therefore, although the Commission
does not issue an Indian lands determination for every facility, the
Commission reviews Indian lands information to ensure compliance with
IGRA.
Comment: A few commenters noted that, although the Commission has
stated that an Indian lands determination is not required prior to
opening a new gaming facility, tribes that wish to have a lands
determination need to be assured that the submission of the facility
license notification will trigger the Commission to act, as these
tribes will likely amend their gaming ordinances to be site-specific
that would then require the Chair to approve or disapprove the
ordinance amendment within 90 days. Therefore, the commenters suggested
that the rule be modified to permit the tribes to request an Indian
lands determination, or at the very least, to amend the notification
period from 120 days to 90 days.
Response: The Commission declines to make the requested changes,
because the notification requirement does not involve an approval or
disapproval action by the Chair or the Commission. Although it is true
that an ordinance amendment must be approved or disapproved within 90
days of submission, in practice, tribes often withdraw and then re-
submit the site-specific ordinance to provide for a longer period of
review. In addition, under the final rule, tribes can now request an
expedited 60-day review of a facility license notification.
Comment: A commenter requested clarification regarding whether a
tribe can begin construction of a new facility more quickly if the
tribe requests an expedited review.
Response: The notification requirement does not provide for
approval or disapproval by the Chair. The notification does not grant
or deny permission to a tribe to begin construction on a new gaming
facility.
Comment: In order for tribes to feel more comfortable with moving
ahead with construction of a new gaming facility, one commenter
suggested that the Commission automatically send tribes a standard
letter stating that the Commission has received and reviewed the
facility license notification and the Indian lands information and that
the Commission has no objections to the information submitted.
Response: The Commission chose not to incorporate the commenter's
suggested amendment. The preliminary discussion draft issued for
comment on June 11, 2011 originally provided for the Commission to
quickly review the status of the Indian lands where Class II or Class
III gaming was to occur and to notify the tribes once the Commission
had completed these reviews. However, many commenters objected, stating
that the draft created a new process committing the Chair to act while
tribes waited for the Chair's action. In objecting to this change, the
tribes noted that there is no legal requirement for an Indian lands
determination prior to gaming on that land, and that the notification
process does not require the Commission to verify the Indian lands
status within the 120-day timeframe.
559.3 When must a tribe submit a copy of a newly issued or renewed
facility license to the chair?
Comment: One commenter was very supportive of the removal of the
three-year facility license renewal requirement, as it recognizes the
role of tribes as the primary regulators of their gaming facilities.
Response: The Commission agrees and has retained this provision in
the final rule.
559.4 What must a tribe submit to the chair with the copy of each
facility license that has been issued or renewed?
Comment: Several commenters stated that they are pleased and
strongly support the rule changes to Sec. 559.4, which eliminate
duplicative and burdensome environmental and public health and safety
(EPHS) reporting requirements (previously found in 25 CFR 502.22) in
favor of an attestation by the tribe. Two commenters stated
specifically that they support the incorporation of Sec. 502.22 into
Sec. 559.4, thereby removing Sec. 502.22. One commenter noted that
the NIGC, as a federal regulatory body, is primarily responsible for
the regulatory oversight of Indian gaming, while other Federal agencies
are responsible for EPHS issues.
Response: The Commission agrees and has retained these provisions
in the final rule.
Comment: One commenter requested clarification regarding whether
the EPHS attestation should come from the tribe or from its counsel.
Response: The Commission expects that the attestation will come
from a designated official or regulatory body authorized by the tribal
government to attest to the EPHS determinations.
Comment: A commenter requested clarification regarding whether a
tribe must submit an EPHS attestation with every license renewal, even
if there has been no new construction at the specific gaming facility.
Response: An EPHS attestation must be submitted with every license
renewal, as the rule requires a tribe to not only attest that the
construction of the gaming facility is conducted in a manner which
adequately protects the environment and public health and safety, but
also that the ongoing maintenance and operation of the gaming facility
is conducted in a manner which adequately protects the
[[Page 58771]]
environment and public health and safety.
Comment: One commenter requested clarification regarding whether
tribes must still have a list of the environmental, public health, and
safety laws and regulations to be available to the Commission upon
request, even though tribes no longer have to automatically submit the
list with the EPHS certification.
Response: Tribes should have such documentation available to be
provided to the Commission upon request.
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?
Comment: Some commenters stated that they are pleased with the
proposed notice exemption for temporary or seasonal closures not
exceeding 180 days, as it will help reduce administrative burdens for
tribal governments.
Response: The Commission agrees and has retained this provision in
the final rule.
Comment: Some commenters suggested that the rule should be amended
further to allow for an exemption from the notification requirement for
temporary gaming facilities that are opened for estimated periods of
less than 12 months. The commenters stated that such an exemption is
necessary following a natural disaster or other unforeseeable event
that leads to a forced closure of a permanent gaming facility, because
the opening of a temporary facility may be necessary to secure critical
revenues and guarantee continued funding of governmental programs and
services until the permanent facility is fully rehabilitated for
opening.
Response: The Commission declines to amend the rule as suggested by
the commenters. Notifications to the Commission of new gaming facility
openings, whether permanent or temporary, are necessary so that the
Commission has accurate, up-to-date records of the Indian gaming
facilities operating on Indian lands in order for the Commission to be
able to perform its statutory responsibilities.
Comment: A few commenters recommended that the NIGC include an
exemption for temporary gaming facility openings that is similar to the
exemption for temporary closures.
Response: The Commission declines to adopt the suggested changes.
Notifications to the Commission of new gaming facility openings,
whether permanent or temporary, are necessary so that the Commission
has accurate, up-to-date records of the Indian gaming facilities
operating on Indian lands in order for the Commission to perform its
statutory responsibilities.
Comment: A few commenters suggested that the rule should be amended
to exempt tribal gaming regulatory authorities that issue temporary
facility licenses from the Commission's notification requirements,
stating that such an amendment would be consistent with tribal
sovereignty and self-governance. The commenters further stated that, in
light of the time-sensitive nature of opening and operating a temporary
gaming facility, such an amendment would minimize disruptions and
revenue losses as a result of a forced closure. Otherwise, tribes will
be required to wait 30 days for temporary facility openings (as the
rule suggests that the opening must be delayed pending the end of the
notice period).
Response: The Commission declines to amend the rule as suggested by
the commenters. Notifications to the Commission of new gaming facility
openings, whether permanent or temporary, are necessary so that the
Commission has accurate, up-to-date records of Indian gaming facilities
operating on Indian lands in order for the Commission to be able to
perform its statutory responsibilities. The notice period is 120 days
for both new and temporary facilities.
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?
Comment: Some commenters suggested that minimum reasonableness
standards are needed to govern agency discretion and to minimize the
risk of arbitrary and capricious decision-making. One commenter noted
that, although the Commission has explained that it decided against an
amendment to this proposed rule because ``it is not possible to
identify every possible scenario under which the Chair would exercise''
his or her discretion to request additional Indian lands or EPHS
documentation from a tribe, minimum standards would provide greater
predictability and consistency with respect to Commission actions and
other benefits.
Response: The Commission disagrees, because it is not possible to
identify every possible scenario under which the Chair would exercise
this discretion.
Regulatory Matters
Regulatory Flexibility Act
The 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 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 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 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 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 the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et
seq.) and
[[Page 58772]]
assigned OMB Control Number 3141-0012, which expired on January 31,
2011. The Commission is in the process of reinstating that Control
Number. The rule will reduce the burden hours of the information
collection under the Paperwork Reduction Act of 1995 by eliminating:
(i) The Commission-imposed 3-year facility license renewal requirement,
although tribes will still have to submit a copy of each renewed
facility license should they choose to institute their own facility
license renewal periods; (ii) the requirement that tribes submit a
document listing all non-federal environmental and/or public health and
safety laws, resolutions, codes, policies, standards, or procedures,
and must now only submit an attestation certifying that by issuing the
facility license, the tribe has determined that the construction,
maintenance, and operation of the gaming facility is being conducted in
a manner that adequately protects the environment and the public health
and safety; and (iii) the requirement that tribes provide notifications
of seasonal closures or temporary closures with a duration of less than
180 days.
List of Subjects
25 CFR Part 502
Gambling, Indians--lands.
25 CFR Part 559
Gambling, Indians--lands, Indians--tribal government, Notification
and submission requirements--facility licenses.
For the reasons set forth in the preamble, the Commission amends
its regulations at 25 CFR parts 502 and 559 to read as follows:
PART 502--DEFINITIONS OF THIS CHAPTER
0
1. The authority citation for part 502 is revised to read as follows:
Authority: 25 U.S.C. 2701 et seq.
Sec. 502.22 [Removed]
0
2. Section 502.22 is removed.
0
3. Part 559 is revised to read as follows:
PART 559--FACILITY LICENSE NOTIFICATIONS 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.
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
[[Page 58773]]
acceptable document formats and means of transmission.
Dated: September 14, 2012, Washington, DC.
Tracie L. Stevens,
Chairwoman.
Steffani A. Cochran,
Vice-Chairwoman.
Daniel J. Little,
Associate Commissioner.
[FR Doc. 2012-23156 Filed 9-21-12; 8:45 am]
BILLING CODE 7565-01-P