[Federal Register Volume 77, Number 20 (Tuesday, January 31, 2012)]
[Proposed Rules]
[Pages 4731-4734]
From the Federal Register Online via the Government Printing 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: reg.review@nigc.gov.
     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: reg.review@nigc.gov

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