[Federal Register Volume 77, Number 185 (Monday, September 24, 2012)]
[Rules and Regulations]
[Pages 58769-58773]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-23156]


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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.

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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: 
armando_acosta@nigc.gov; 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