Class III Tribal State Gaming Compact Process, 74004-74010 [E8-28882]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Indian Affairs
• Indian Affairs Bureau

[Federal Register Volume 73, Number 235 (Friday, December 5, 2008)]
[Rules and Regulations]
[Pages 74004-74010]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-28882]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 293

RIN 1076-AE99


Class III Tribal State Gaming Compact Process

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule.

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SUMMARY: This rule establishes procedures for Indian tribes and States 
to submit Tribal-State compacts and compact amendments, governing the 
conduct of class III gaming activities on the tribe's Indian lands 
located within that State, for review and approval by the Secretary of 
the Interior.

DATES: This rule is effective on January 5, 2009.

FOR FURTHER INFORMATION CONTACT: Paula Hart, Acting Director, Office of 
Indian Gaming, 1849 C Street, NW., Mail Stop 3657-MIB, Washington, DC 
20240; Telephone: (202) 219-4066.

SUPPLEMENTARY INFORMATION:

I. Authority
II. Background
III. Discussion of Comments Received on Proposed Rule
    A. General Comments
    B. Section 293.2 How are key terms defined in this part?
    C. Section 293.3 What is a compact?
    D. Section 293.4 What authority does the Secretary have to 
approve or disapprove compacts and amendments?
    E. Section 293.5 When should the Indian tribe or State submit a 
compact or a compact amendment for review and approval?
    F. Section 293.6 Are technical amendments subject to review and 
approval?
    G. Section 293.7 Are extensions of compacts and amendments 
subject to review and approval?
    H. Section 293.8 Who can submit a compact or amendment?
    I. Section 293.9 What documents must be submitted with a compact 
or amendment?
    J. Section 293.10 Where should a compact or amendment be 
submitted for review and approval?
    K. Section 293.11 How long will the Secretary take to review a 
compact or amendment?
    L. Section 293.12 When will the 45-day timeline be triggered?
    M. Section 293.13 What happens if the Secretary does not act on 
the compact or amendment within the 45-day review period?
    N. Section 293.14 Who can withdraw a compact or amendment after 
it has been received by the Secretary?
    O. Section 293.15 When may the Secretary disapprove a compact or 
amendment?
    P. Section 293.16 When does an approved or considered-to-have-
been-approved compact or amendment take effect?
IV. Changes to Proposed Rule
V. Procedural Requirements
    A. Regulatory Planning and Review (Executive Order 12866)
    B. Regulatory Flexibility Act
    C. Small Business Regulatory Enforcement Fairness Act (SBREFA)
    D. Unfunded Mandates Act
    E. Takings Implication Assessment (Executive Order 12630)
    F. Federalism (Executive Order 13132)
    G. Civil Justice Reform (Executive Order 12988)
    H. National Environmental Policy Act
    I. Paperwork Reduction Act
    J. Consultation and Coordination With Indian Tribal Governments 
(Executive Order 13175)
    K. Effects on the Nation's Energy Supply (Executive Order 13211)
    L. Information Quality Act

I. Authority

    The authority to issue this document is vested in the Secretary of 
the Interior by 5 U.S.C. 301 and 25 U.S.C. 2, 9, and 2710. The 
Secretary has delegated this authority to the Assistant Secretary--
Indian Affairs by part 209 of the Departmental Manual.

II. Background

    The Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2701-2721, was 
signed into law on October 17, 1988. IGRA authorizes class III gaming 
activities on Indian lands when authorized by an approved ordinance, 
located in a State that permits such gaming and conducted in 
conformance with a Tribal-State compact. See 25 U.S.C. 2710. The Indian 
tribe and State must submit each compact and compact amendment to the 
Secretary for approval or disapproval. See 25 U.S.C. 2710(d)(8)(A), (B) 
and (C).
    On July 2, 2008, the Bureau of Indian Affairs (BIA) published a 
proposed rule establishing the procedures for submitting Tribal-State 
compacts and compact amendments to the Secretary for approval. See 73 
FR 37907. The original comment period ended on September 2, 2008. BIA 
extended the comment period until September 22, 2008. See 73 FR 51255 
(September 2, 2008).

III. Discussion of Comments Received on Proposed Rule

    During the public comment period, the Department received a total 
of 15 comments from Indian tribes, individual commenters, States, State 
associations, and non-profit organizations. The following discussion 
provides a summary of general and section-specific comments, and the 
Department's responses to those comments. The section-specific comments 
below are organized according to the sections listed in the proposed 
rule.

A. General Comments

    One comment commended the Secretary for publishing these 
regulations.
    One comment requested that the rule require the surrounding 
communities to approve compacts or amendments before they may become 
effective.
    Response: This recommendation was not adopted because the Secretary 
does not have the authority to require such approval by surrounding 
communities. Publication in the Federal Register serves as notice to 
the public, including surrounding communities, before compacts or 
amendments become effective. See section 293.15 of the final rule. Each 
State's compact approval process is a matter of State law and governs 
whether surrounding communities can provide input.
    One comment suggested that throughout the rule we add 
``substantive'' in every instance we used the word ``amendment.''
    Response: This comment applied to the proposed rule because the 
proposed rule subjected only substantive comments to Secretarial review 
and approval. The final rule subjects all amendments, whether 
substantive or technical, to Secretarial review and approval; 
therefore, the comment requesting that we specify that amendments refer 
to substantive amendments only is no longer applicable.
    One comment suggested adding language to clarify the Department's 
position on ``Indian lands.''
    Response: This regulation addresses the process for submission by 
tribes and States and consideration by the Secretary of Class III 
Tribal-State

[[Page 74005]]

Gaming Compacts, and is not intended to address substantive issues. To 
clarify, we have removed references to the purpose of this rule being 
to establish the ``criteria'' by which the Secretary reviews compacts 
in section 293.1.
    One comment suggests using the phrase ``State Governor's Office'' 
rather than the generic term ``State'' for greater specificity.
    Response: The final rule continues to refer to ``State'' because 
IGRA does not specify the ``State Governor's Office.''

B. Section 293.2 How are key terms defined in this part?

    One comment suggested defining the terms ``substantive amendment,'' 
``technical amendment,'' and ``Tribal-State gaming compact.''
    Response: We accepted this recommendation with regard to defining 
``Tribal-State gaming compact.'' In the proposed rule, this definition 
was in its own section. The final rule includes the definition with 
definitions of other terms in section 293.2. With regard to defining 
``substantive amendment'' and ``technical amendment,'' this distinction 
is no longer necessary because the final rule subjects all amendments 
to Secretarial review and approval.

C. Section 293.3 What is a compact?

    A comment suggested this section be deleted and a definition of a 
Tribal-State compact added to section 293.2.
    Response: We accepted this recommendation and added a definition of 
``Tribal-State gaming compact'' to section 293.2.
    One comment suggested we remove ``on the tribe's Indian lands 
located within the State.''
    Response: In response to the previous comment, the entire section 
was deleted. The phrase ``on the tribe's Indian lands located within 
the State,'' is not included in the new definition of ``Tribal-State 
gaming compact.''

D. Section 293.4 What authority does the Secretary have to approve or 
disapprove compacts and amendments?

    One comment states that the Indian tribe or State should submit the 
compact or amendment after it has been ``legally entered into'' by both 
parties. Another comment suggested that the Department should consider 
adding a requirement that the compact or amendment also be ``in 
effect.''
    Response: These comments are related and both are addressed later 
in the rule. First, at 293.8 (293.9 in the proposed rule), the final 
rule now requires documentation from both the tribe and the State 
certifying that their respective representatives were authorized to 
execute the proposed compact or amendment. Section 293.15 (section 
293.16 in the proposed rule) is consistent with IGRA because, once 
approved or considered-to-have-been-approved, a compact or amendment is 
``in effect'' for the purposes of IGRA only when a notice of approval 
of the compact is published in the Federal Register, not when submitted 
by the parties.
    Another comment asked for identification of the Secretary's 
authority for approving amendments.
    Response: IGRA requires that the Secretary review all compacts. The 
Secretary must review amendments to insure that the terms of the 
compact, as amended and considered as a whole, do not violate any 
provision of IGRA, any other provision of Federal law that does not 
relate to jurisdiction over gaming on Indian lands, or the trust 
obligations of the United States to Indians.
    One comment requested that the Department notify the parties as 
well as the local jurisdictions that are affected of when the compact 
or amendment becomes effective.
    Response: This recommendation was not adopted because publication 
in the Federal Register serves as notice to the public. See section 
293.15 of the final rule.
    Multiple comments recommended referencing section 293.15 (section 
293.14 of the final rule) to address the Secretary's disapproval 
authority.
    Response: This recommendation was accepted and section 293.14 of 
the final rule is now referenced with regard to the Secretary's 
disapproval authority.

E. Section 293.5 When should the Indian tribe or State submit a compact 
or a compact amendment for review and approval?

    One commenter would like the local jurisdictions to be notified 
when a compact or amendment is submitted.
    Response: This recommendation was not adopted because IGRA does not 
require this notification.

F. Section 293.6 Are technical amendments subject to review and 
approval?

    One comment suggests that we require ``proof of State 
[r]atification * * *, an enacted and chaptered bill or evidence of a 
legislative action.''
    Response: We accepted in part by adding language in final section 
293.8 that would require the Governor or his representative to submit a 
certification of authority under State law to enter into the compact or 
amendment.
    One comment requests us to, ``clearly specif[y] * * * the date by 
which the Compact or amendment ratification takes affect [sic].''
    Response: The date on which the compact is effective will be stated 
in the Federal Register notice.
    One comment opposes this section and questions the statutory 
authority for the proposed exemption.
    Response: The Department has amended this section to provide that 
all amendments are subject to Secretarial review and approval.
    Multiple comments suggested redrafting sections 293.6 and 293.7 
because of the confusion regarding submitting a technical amendment for 
approval and regarding when an amendment is not substantive.
    Response: The Department has amended this section to provide that 
all amendments, whether technical or substantive, are subject to 
Secretarial review and approval.

G. Section 293.7 Are extensions of compacts and amendments subject to 
review and approval?

    One comment suggested changing this section to address amendments 
and adding a new section to address extensions.
    Response: We accepted this comment by adding a new section 293.5 in 
the final rule to solely address extensions.
    One comment suggested that extensions do not need approval.
    Response: We accepted this comment for all extensions that do not 
amend the terms of a compact, but clarified that the tribe and State 
must still submit the extension and supporting documentation to the 
Secretary. This will allow the Secretary to publish notice of the 
extension in the Federal Register; IGRA specifies that a compact is not 
in effect unless notice is published in the Federal Register.
    One comment suggested that all amendments and extensions are 
substantive.
    Response: The final rule addresses amendments and extensions 
separately. The final rule subjects all amendments to Secretarial 
review and approval, regardless of whether they are substantive or not. 
The final rule separately addresses extensions, providing that as long 
as they do not amend the terms of the compact, they are not subject to 
Secretarial review and approval, but still must be submitted to the 
Secretary for publication in the Federal Register.

H. Section 293.8 Who can submit a compact or amendment?

    One comment suggested that we add to (a) ``provided that all the 
necessary

[[Page 74006]]

documents are included with the submission.''
    Response: This recommendation was not adopted because it does not 
address the question raised in the heading. Final rule section 293.8 
addresses what documents must be submitted.
    One comment suggested language that would require the Secretary to 
notify the non-submitting party (the State or the Indian tribe) of the 
submission.
    Response: This recommendation was not adopted because it is not 
required under IGRA. Additionally, the submission must be executed by 
both the Tribe and State government to qualify as a Tribal-State gaming 
compact under section 293.2(b)(2).
    One comment suggested that we verify that the person submitting the 
compact or amendment to the Secretary has the authority to do so.
    Response: This recommendation was not adopted because it is not 
required under IGRA; however, we have added a requirement that the 
State certify that it has authority to enter into the compact or 
amendment.
    One comment suggested that we require a single submitter (either 
the State or the tribe).
    Response: This recommendation was not adopted because IGRA does not 
require a single submitter.

I. Section 293.9 What documents must be submitted with a compact or 
amendment?

    One comment asked that the Office of Indian Gaming have a ``unique 
date and time stamp.''
    Response: The Office of Indian Gaming currently uses a ``unique'' 
date stamp that identifies the office.
    The same commenter suggested requiring the person who receives the 
compact to ``initial'' that they took possession of the document.
    Response: The Office has determined that having each person with 
custody of the document initial the document upon receipt will not 
address the apparent concern that a document does not reach the Office 
of Indian Gaming.
    One comment recommended language that formalized the requirement 
that the tribe approve the compact or amendment.
    Response: We accepted this recommendation in part by changing 
``adopted'' to ``approved.''
    One comment raised the concern that submitted information that is 
confidential and proprietary in nature may be released under the 
Freedom of Information Act (FOIA).
    Response: If the Secretary determines that submitted information is 
confidential, as defined by FOIA, then the Secretary would withhold the 
information from public disclosure. The Secretary needs enough 
information to make a determination as to whether submitted information 
is confidential and therefore exempt from public disclosure 
requirements under FOIA.
    One comment requested that we require the compact to be ``signed.''
    Response: We have not accepted this comment because existing 
language in the rule requiring that the compact be ``executed'' by both 
parties addresses this comment.
    One comment suggests adding to paragraph (d) of this section 
language that clarifies that the Secretary may only seek additional 
documentation that is ``relevant'' to the Secretary's decision whether 
to approve or disapprove the compact or amendment.
    Response: We did not accept this comment because the rule, as 
written, allows the Secretary to request only additional documentation 
that is ``necessary to determine whether to approve or disapprove the 
compact or amendment.'' Adding a requirement that the additional 
documentation be ``relevant'' would be superfluous, given that any 
documentation that is ``necessary'' for the decision will also be 
relevant to the decision.

J. Section 293.10 Where should a compact or amendment be submitted for 
review and approval?

    One comment suggests we not state the address as ``Mail Stop 3657'' 
because in the future the office could move.
    Response: We have accepted this comment in part. We did not remove 
the ``Mail Stop 3657'' but we added, ``If this address changes, a 
notice with the new address will be published in the Federal Register 
within 5 business days.''

K. Section 293.11 How long will the Secretary take to review a compact 
or amendment?

    One comment requested that a requirement be added to this section 
stating that, ``the Secretary must withdraw the Federal notice in order 
to clarify the record and ensure that the Tribal State compact receives 
the proper scrutiny before being published.''
    Response: The Department determined that this additional language 
is not necessary because the Department has procedures in place 
requiring internal Departmental review before a notice can be delivered 
to and published in the Federal Register. If the Secretary determines 
that the compact or amendment was not legally entered into, the 
Secretary will disapprove the compact or amendment; in that case, no 
notice will be published in the Federal Register. As stated in section 
293.12 of the final rule, ``If the Secretary neither affirmatively 
approves nor disapproves a compact or amendment within the 45-day 
review period, the compact or amendment is considered to have been 
approved, but only to the extent it complies with the provisions of the 
Indian Gaming Regulatory Act.'' Notice that the compact or amendment is 
considered to be approved will be published in the Federal Register and 
will state the date on which the compact or amendment is ``in effect.''
    One commenter would like the local jurisdictions to be notified of 
the Secretary's decision to approve or disapprove a compact or 
amendment.
    Response: This recommendation was not adopted because notification 
of the Secretary's decision to approve or disapprove is not required by 
IGRA. Additionally, publication in the Federal Register serves as 
notice to the public that the compact or amendment is ``in effect.'' 
See section 293.15 of the final rule.
    One comment suggested that we replace the language in (b) with, 
``If the Secretary has not put forward a decision to approve or 
disapprove a compact or amendment with 45 days, the compact or 
amendment will be considered approved.''
     Response: This comment was rejected because section 293.13 
(section 293.12 of the final rule) already includes language regarding 
what happens when the Secretary does not put forward a decision to 
approve or disapprove the compact or amendment within 45 days.
    One comment stated that the Department grants itself extensions to 
the 45-day time period for issuing a decision.
    Response: The 45-day time period is statutory and no extensions are 
granted.

L. Section 293.12 When will the 45-day timeline be triggered?

    One comment wanted us to add a paragraph stating that if the 
compact has not been legally ``entered into'' then it is ``not in 
effect.''
     Response: It appears that this comment was meant to address 
proposed section 293.15 (When may the Secretary disapprove a compact or 
amendment?). We reject this comment because section 293.7 of the final 
rule, stating that a compact or amendment may only be submitted to the 
Secretary after it has been legally entered into, addresses this 
concern. Likewise, because IGRA requires that the compact or amendment 
be legally entered into, final section 293.14, stating that the 
Secretary may disapprove a compact or

[[Page 74007]]

amendment that violates any IGRA provision, addresses this concern.
    Three comments suggested that we add the following sentence to this 
section, ``Once the compact or amendment is received and date stamped 
in the Office of Indian Gaming, both parties (the State and the Indian 
Tribe) will be notified in writing by the Office of Indian Gaming, of 
the date triggering the 45-day timeline.''
     Response: We reject this comment because it is not required under 
IGRA and because the parties are generally aware of the submission 
date, given that they make (or authorize, in coordination with the 
other party) the submission. Additionally, it is often infeasible for 
the Office of Indian Gaming to individually respond to each submission 
in writing soon after receiving that submission, given the numerous 
other actions the Office is required to take during the 45-day time 
frame. The trigger for the 45-day time frame is established by statute, 
and the Secretary does not make any determination as to when the 45-day 
time frame begins, so sending a letter with the date triggering the 45-
day period will not affect when the time period begins to run, or the 
length of the time period.

M. Section 293.13 What happens if the Secretary does not act on the 
compact or amendment within the 45-day review period?

    One comment recommends that when a compact is considered to be 
approved that the Secretary make a finding about the extent to which 
the compact complies with IGRA.
     Response: This recommendation was not adopted because it is not 
required under IGRA. Section 25 U.S.C. 22710(d)(8)(C) authorizes the 
Secretary to allow a compact to become effective without requiring a 
determination as to whether the compact/amendment complies with IGRA.
    One comment stated that the Secretary should notify the tribe and 
the State upon completion of the 45-day period.
     Response: We reject this comment because the tribe and State will 
be notified by publication in the Federal Register of the Secretary's 
approval within 90 days from the date the compact or amendment is 
received by the Office of Indian Gaming.

N. Section 293.14 Who can withdraw a compact or amendment after it has 
been received by the Secretary?

    One comment suggested amending this section to provide that any 
withdrawal must be in writing and executed by the tribe and the State.
     Response: This recommendation was not adopted because this section 
already specifies that the request must be ``written'' and submitted by 
both the Indian tribe and State (meaning that both must execute the 
request).
    Two comments suggested that the Secretary shall notify the other 
party in writing of the request to withdraw.
     Response: This suggestion is rejected because this section already 
requires written requests signed by both parties.

O. Section 293.15 When may the Secretary disapprove a compact or 
amendment?

    Two comments recommended that we clarify the meaning of ``[t]he 
Secretary may disapprove a compact or amendment only if it violates * * 
* [a]ny provisions of the Indian gaming Regulatory Act; * * * or * * * 
[t]he trust obligations of the United States to Indians.''
     Response: This recommendation was not adopted because this 
regulation is a procedural rule, and is not intended to address 
substantive issues.

P. Section 293.16 When does an approved or considered-to-have-been-
approved compact or amendment take effect?

    Multiple comments would like to restrict the Secretary's time for 
publishing the Federal Register notice to within 5 days of the 
approval. Another comment would like the time period to be shortened 
from 90 days to 60 days. Yet another comment would like the Secretary 
to publish the Federal Register notice within 15 days from the date of 
approval.
     Response: These comments were not accepted because the 90-day time 
frame that has been incorporated is reasonable.
    One comment suggested that this provision is ``ultra vires'' 
because IGRA provides that a compact ``shall be considered to have been 
approved'' if no action is taken within the 45-day review period. 
Another comment suggested a considered-to-be-approved compact will be 
automatically effective 60 days following the submission.
     Response: We reject these comments because IGRA specifies that a 
compact may be considered approved but does not take effect until 
notice is published in the Federal Register. See 25 U.S.C. 
2710(d)(3)(B). The act of actual publication is necessary.
    One comment suggests that 25 U.S.C. 2710(d)(8)(D) does not specify 
that publication is necessary in order for compacts that are 
``considered to be approved'' to be effective.
     Response: Section 2710(d)(8)(D) states, ``The Secretary shall 
publish in the Federal Register notice of any Tribal-State compact that 
is approved, or considered to have been approved * * *'' Section 
2710(d)(3)(B) states that a ``compact shall take effect only when 
notice of approval by the Secretary of such compact has been published 
by the Secretary in the Federal Register.''

IV. Changes to Proposed Rule

    In section 293.1 (What is the purpose of this part?), the final 
rule clarifies in paragraph (b) that this rule addresses the procedures 
the Secretary follows in reviewing compacts and amendments, rather than 
establishing the criteria (which are already established by IGRA). The 
final rule incorporates a revised definition of ``Tribal-State Gaming 
Compact'' into section 293.2 (How are key terms defined in this part?), 
and deletes section 293.3 (What is a compact?). The final rule also 
adds a definition of ``extensions.''
    In response to a comment, the final rule adds to section 293.3 
(What authority does the Secretary have to approve or disapprove 
compacts and amendments?) a cross-reference to the section addressing 
when the Secretary may disapprove a compact or amendment.
    Section 293.5 (When should the Indian tribe or State submit a 
compact or compact amendment for review and approval?) was moved to 
follow the section addressing ``Who can submit a compact or 
amendment?''
    The final rule revises section 293.6 (Are technical amendments 
subject to review and approval?) to: (1) Address whether compacts are 
also subject to review and approval; and (2) eliminate the distinction 
between technical and substantive amendments by subjecting all 
amendments to Secretarial review. This section is located in the final 
rule at section 293.4 (Are compacts and amendments subject to review 
and approval?).
    The final rule revises section 293.7 (Are extensions of compacts 
and amendments subject to review and approval?) to address only 
extensions. See final rule section 293.5 (Are extensions to compacts 
subject to review and approval?). The final rule also changes the 
response to provide that extensions are not subject to review and 
approval, but must be submitted to the Secretary to allow for 
publication in the Federal Register.
    The final rule makes no changes to section 293.8 (Who can submit a

[[Page 74008]]

compact or amendment?), which is now located at section 293.6.
    The final rule revises section 293.9 (What documents must be 
submitted with a compact or amendment?) to require the representative 
of the State to submit certification of his or her authority to enter 
into the compact or amendment. The final rule also changes the word 
``adopted'' to ``approved'' in response to a comment. See final section 
293.8.
    The final rule revises section 203.10 (Where should a compact or 
amendment be submitted for review and approval?) to clarify that, if 
the address provided should change, the Department will publish a 
notice with the new address in the Federal Register within 5 business 
days. See final section 293.9.
    The remaining sections are substantively unchanged in the final 
rule.

V. Procedural Requirements

A. Regulatory Planning and Review (Executive Order 12866)

    In accordance with the criteria in Executive Order 12866, this rule 
is not a significant regulatory action and is not subject to review by 
the Office of Management and Budget (OMB).
    (a) This rule will not have an economic effect of $100 million or 
adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government.
    (b) This rule will not create serious inconsistencies or otherwise 
interfere with an action taken or planned by another Federal agency. 
BIA is the only governmental agency that approves Tribal-State compacts 
and compact amendments.
    (c) This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
This rule sets out the procedures for the submission of Tribal-State 
compacts and compact amendments.
    (d) This rule will not raise novel legal or policy issues.

B. Regulatory Flexibility Act

    The Department of the Interior certifies that this document will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
Indian tribes are not considered to be small entities for the purposes 
of this Act.

C. Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million or 
more.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

D. Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local or tribal government or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

E. Takings Implication Assessment (Executive Order 12630)

    In accordance with Executive Order 12630, the Department has 
determined that this rule does not have significant takings 
implications. The rule does not pertain to the ``taking'' of private 
property interests, nor does it impact private property. A takings 
implication assessment is not required.

F. Federalism (Executive Order 13132)

    In accordance with Executive Order 13132, the Department has 
determined that this rule does not have significant Federalism 
implications because it does not substantially and directly affect the 
relationship between the Federal and State governments and does not 
impose costs on States or localities. A Federalism Assessment is not 
required.

G. Civil Justice Reform (Executive Order 12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the applicable standards provided in sections 
3(a) and 3(b)(2) of Executive Order 12988. The rule contains no 
drafting errors or ambiguity and is written to minimize litigation, 
provides clear standards, simplify procedures, reduces burden, and is 
clearly written. The rule does not preempt any statute.

H. National Environmental Policy Act

    The Department has determined that this 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.

I. Paperwork Reduction Act

    The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., 
prohibits a Federal agency from conducting or sponsoring a collection 
of information that requires OMB approval, unless such approval has 
been obtained and the collection request displays a currently valid OMB 
control number. No person is required to respond to an information 
collection request that has not complied with the PRA.
    This regulation requires an information collection under the 
Paperwork Reduction Act of 1955 at section 293.8. The information is 
submitted to fulfill requirements for approval of a Tribal-State 
compact or compact amendment and it is used by the Bureau to determine 
whether the tribe has met the criteria required by IGRA. All 
information is collected in the tribe's submission of a Tribal-State 
compact or compact amendment. It is estimated that a tribe's 
application will need 360 hours to complete. The tribe will maintain 
the records as would any business; the Bureau maintains official files.
    During the public comment period on the proposed rule, the 
Department received two public comments on the information collection. 
One public comment requested that we add a request for some evidence 
that the State is authorized to enter into a compact or amendment. In 
response, the Department added a requirement for a certification that 
the State official is authorized under State law to enter into the 
compact or amendment in section 293.8 of the final rule. Because the 
State would have to determine this authority even without submission of 
this statement of fact, this certification does not increase the annual 
burden hours. The other public comment addressed the portion of the 
information collection stating that the Secretary may request 
additional documentation as required for the approval determination 
(section 293.8(d) of the final rule). This comment requested that BIA 
narrow the scope of what documents it may request as part of the 
submission. Section 293.8 of the final rule lists specific documents 
that should be submitted and includes a catch-all provision at 
paragraph (d) allowing the Secretary to request any additional 
documentation needed for a determination as to compliance with IGRA. 
BIA has retained this catch-all provision to avoid defining a universe 
of documents that inadvertently omits

[[Page 74009]]

documents that may otherwise support a determination as to IGRA 
compliance merely because BIA cannot anticipate all the circumstances 
or documents that may be appropriate. As such, BIA has not made any 
changes to the information collection as a result of this comment.
    OMB has approved the information collection requirement included in 
this final rule and has assigned it OMB Control Number 1076-0172 with 
an expiration of 11/30/2011. Questions or comments concerning this 
information collection should be directed to the person listed in the 
FOR FURTHER INFORMATION CONTACT section of this preamble.

J. Consultation and Coordination With Indian Tribal Governments 
(Executive Order 13175)

    In accordance with the President's memorandum of May 14, 1988, 
``Consultation and Coordination with Indian Tribal Governments'' (63 FR 
27655), and Executive Order 13175, we have conducted consultation 
sessions with tribal governments on the development of proposed 
regulations to establish procedures for submitting Tribal-State 
compacts and compact amendments. Consultation sessions with tribal 
governments were conducted on the following dates and at the following 
locations: April 9, 2008 in Albuquerque, New Mexico and on April 23, 
2008 in San Diego, California. The draft regulation was modified to 
reflect comments received during the consultation, as well as written 
comments received from Indian tribes, among others.

K. Effects on the Nation's Energy Supply (Executive Order 13211)

    This rule does not have a significant effect on the nation's energy 
supply, distribution, or use as defined by Executive Order 13211.

L. Information Quality Act

    In developing this rule, we did not conduct or use a study, 
experiment, or survey requiring peer review under the Data Quality Act 
(Pub. L. 106-544).

List of Subjects in 25 CFR Part 293

    Indians--business and finance, Indians--gaming.

    Dated: October 14, 2008.
George T. Skibine,
Acting Deputy Assistant Secretary for Policy and Economic Development--
Indian Affairs.

0
For reasons stated in the preamble, the Bureau of Indian Affairs amends 
25 CFR chapter 1 by adding part 293, to read as follows:

PART 293--CLASS III TRIBAL STATE GAMING COMPACT PROCESS

Sec.
293.1 What is the purpose of this part?
293.2 How are key terms defined in this part?
293.3 What authority does the Secretary have to approve or 
disapprove compacts and amendments?
293.4 Are compacts and amendments subject to review and approval?
293.5 Are extensions to compacts subject to review and approval?
293.6 Who can submit a compact or amendment?
293.7 When should the Indian tribe or State submit a compact or 
amendment for review and approval?
293.8 What documents must be submitted with a compact or amendment?
293.9 Where should a compact or amendment be submitted for review 
and approval?
293.10 How long will the Secretary take to review a compact or 
amendment?
293.11 When will the 45-day timeline begin?
293.12 What happens if the Secretary does not act on the compact or 
amendment within the 45-day review period?
293.13 Who can withdraw a compact or amendment after it has been 
received by the Secretary?
293.14 When may the Secretary disapprove a compact or amendment?
293.15 When does an approved or considered-to-have-been-approved 
compact or amendment take effect?
293.16 How does the Paperwork Reduction Act affect this part?

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 2710.


Sec.  293.1  What is the purpose of this part?

    This part contains procedures that:
    (a) Indian tribes and States must use when submitting Tribal-State 
compacts and compact amendments to the Department of the Interior; and
    (b) The Secretary will use for reviewing such Tribal-State compacts 
or compact amendments.


Sec.  293.2  How are key terms defined in this part?

    (a) For purposes of this part, all terms have the same meaning as 
set forth in the definitional section of the Indian Gaming Regulatory 
Act of 1988, 25 U.S.C. 2703 and any amendments thereto.
    (b) As used in this part:
    (1) Amendment means an amendment to a class III Tribal-State gaming 
compact.
    (2) Compact or Tribal-State Gaming Compact means an 
intergovernmental agreement executed between Tribal and State 
governments under the Indian Gaming Regulatory Act that establishes 
between the parties the terms and conditions for the operation and 
regulation of the tribe's Class III gaming activities.
    (3) Extensions means changes to the timeframe of the compacts or 
amendments.


Sec.  293.3  What authority does the Secretary have to approve or 
disapprove compacts and amendments?

    The Secretary has the authority to approve compacts or amendments 
``entered into'' by an Indian tribe and a State, as evidenced by the 
appropriate signature of both parties. See Sec.  293.14 for the 
Secretary's authority to disapprove compacts or amendments.


Sec.  293.4  Are compacts and amendments subject to review and 
approval?

    (a) Compacts are subject to review and approval by the Secretary.
    (b) All amendments, regardless of whether they are substantive 
amendments or technical amendments, are subject to review and approval 
by the Secretary.


Sec.  293.5  Are extensions to compacts subject to review and approval?

    No. Approval of an extension is not required if the extension of 
the compact does not include any amendment to the terms of the compact. 
However, the tribe must submit the extension executed by both the tribe 
and the State along with the documents required under paragraphs (b) 
and (c) of Sec.  293.8.


Sec.  293.6  Who can submit a compact or amendment?

    Either party (Indian tribe or State) to a compact or amendment can 
submit the compact or amendment to the Secretary for review and 
approval.


Sec.  293.7  When should the Indian Tribe or State submit a compact or 
amendment for review and approval?

    The Indian tribe or State should submit the compact or amendment 
after it has been legally entered into by both parties.


Sec.  293.8  What documents must be submitted with a compact or 
amendment?

    Documentation submitted with a compact or amendment must include:
    (a) At least one original compact or amendment executed by both the 
tribe and the State;
    (b) A tribal resolution or other document, including the date and 
place of adoption and the result of any vote taken, that certifies that 
the tribe has approved the compact or amendment in accordance with 
applicable tribal law;
    (c) Certification from the Governor or other representative of the 
State that he or she is authorized under State law to enter into the 
compact or amendment;

[[Page 74010]]

    (d) Any other documentation requested by the Secretary that is 
necessary to determine whether to approve or disapprove the compact or 
amendment.


Sec.  293.9  Where should a compact or amendment be submitted for 
review and approval?

    Submit compacts and amendments to the Director, Office of Indian 
Gaming, U.S. Department of the Interior, 1849 C Street, NW., Mail Stop 
3657, Main Interior Building, Washington, DC 20240. If this address 
changes, a notice with the new address will be published in the Federal 
Register within 5 business days.


Sec.  293.10  How long will the Secretary take to review a compact or 
amendment?

    (a) The Secretary must approve or disapprove a compact or amendment 
within 45 calendar days after receiving the compact or amendment.
    (b) The Secretary will notify the Indian tribe and the State in 
writing of the decision to approve or disapprove a compact or 
amendment.


Sec.  293.11  When will the 45-day timeline begin?

    The 45-day timeline will begin when a compact or amendment is 
received and date stamped in the Office of Indian Gaming at the address 
listed in Sec.  293.9.


Sec.  293.12  What happens if the Secretary does not act on the compact 
or amendment within the 45-day review period?

    If the Secretary neither affirmatively approves nor disapproves a 
compact or amendment within the 45-day review period, the compact or 
amendment is considered to have been approved, but only to the extent 
it complies with the provisions of the Indian Gaming Regulatory Act.


Sec.  293.13  Who can withdraw a compact or amendment after it has been 
received by the Secretary?

    To withdraw a compact or amendment after it has been received by 
the Secretary, the Indian tribe and State must submit a written request 
to the Director, Office of Indian Gaming at the address listed in Sec.  
293.9.


Sec.  293.14  When may the Secretary disapprove a compact or amendment?

    The Secretary may disapprove a compact or amendment only if it 
violates:
    (a) Any provision of the Indian Gaming Regulatory Act;
    (b) Any other provision of Federal law that does not relate to 
jurisdiction over gaming on Indian lands; or
    (c) The trust obligations of the United States to Indians.


Sec.  293.15  When does an approved or considered-to-have-been-approved 
compact or amendment take effect?

    (a) An approved or considered-to-have-been-approved compact or 
amendment takes effect on the date that notice of its approval is 
published in the Federal Register.
    (b) The notice of approval must be published in the Federal 
Register within 90 days from the date the compact or amendment is 
received by the Office of Indian Gaming.


Sec.  293.16  How does the Paperwork Reduction Act affect this part?

    The information collection requirements contained in this part have 
been approved by the OMB under the Paperwork Reduction Act of 1995, 44 
U.S.C. 3507(d), and assigned control number 1076-0172. A Federal agency 
may not conduct or sponsor, and you are not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.

[FR Doc. E8-28882 Filed 12-4-08; 8:45 am]
BILLING CODE 4310-02-P