Review and Submittal of a Tribe's Facility License Information, 4731-4734 [2012-1915]
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Federal Register / Vol. 77, No. 20 / Tuesday, January 31, 2012 / Proposed Rules
brief statement of the basis for the
decision. If the motion is denied, the
Commission shall briefly state the
grounds for denial. The Commission
may allow the movant to participate as
amicus curiae, if appropriate.
§ 585.6 When will I receive a copy of the
record on which the Chair relied?
Within 10 days of the filing of an
appeal brief, or as soon thereafter as
practicable, the record on which the
Chair relied will be transmitted to the
appellant.
§ 585.7 When will the Commission issue
its decision?
(a) The Commission shall issue its
decision within 90 days after it receives
the appeal brief, or its ruling on a
request for intervention, if applicable,
unless the subject of the appeal is
whether to dissolve or make permanent
a temporary closure order issued under
§ 573.6 chapter, in which case the
Commission shall issue its decision
within 60 days.
(b) The Commission shall serve the
final decision upon the appellants, and
any limited participant.
Dated: January 23, 2012, Washington, DC.
Tracie L. Stevens,
Chairwoman.
Steffani A. Cochran,
Vice-Chairwoman.
Daniel J. Little,
Commissioner.
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
25 CFR Part 559
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.
RIN 3141–AA48
II. Background
[FR Doc. 2012–1767 Filed 1–27–12; 11:15 am]
BILLING CODE 7565–01–P
DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
Review and Submittal of a Tribe’s
Facility License Information
National Indian Gaming
Commission, Interior.
ACTION: Notice of proposed rulemaking.
AGENCY:
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
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SUMMARY:
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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
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4731
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
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Federal Register / Vol. 77, No. 20 / Tuesday, January 31, 2012 / Proposed Rules
public comment on a preliminary draft
of amendments to part 559.
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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 selfregulating 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
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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
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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 § 502.22 Into § 559.4
Responses to the NOI indicated that
the Commission should review § 502.22
in conjunction with the review of part
559. In response to these comments, the
Commission proposes incorporating
§ 502.22 into § 559.4 and repealing
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§ 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.
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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
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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.
§ 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.
§ 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
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4733
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.
§ 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.
§ 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.
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§ 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.
§ 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.
§ 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
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 9
RIN 2900–AO30
Servicemembers’ Group Life
Insurance—Stillborn Child Coverage
Department of Veterans Affairs.
Proposed rule.
AGENCY:
ACTION:
The Department of Veterans
Affairs (VA) proposes to amend its
Servicemembers’ Group Life Insurance
(SGLI) regulations in order to provide
that, if a stillborn child is otherwise
eligible to be insured by the SGLI
coverage of more than one member, the
child would be insured by the coverage
of the child’s SGLI-insured mother.
DATES: Comments must be received by
VA on or before April 2, 2012.
ADDRESSES: Written comments may be
submitted through https://
www.Regulations.gov; by mail or hand-
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SUMMARY:
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delivery to Director, Regulations
Management (02REG), Department of
Veterans Affairs, 810 Vermont Ave.
NW., Room 1068, Washington, DC
20420; or by fax to (202) 273–9026.
Comments should indicate that they are
submitted in response to ‘‘RIN 2900–
AO30—Servicemembers’ Group Life
Insurance—Stillborn Child Coverage.’’
Copies of comments received will be
available for public inspection in the
Office of Regulation Policy and
Management, Room 1063B, between the
hours of 8 a.m. and 4:30 p.m., Monday
through Friday (except holidays). Please
call (202) 461–4902 for an appointment.
(This is not a toll free number.) In
addition, during the comment period,
comments are available online through
the Federal Docket Management System
(FDMS) at https://www.Regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Gregory C. Hosmer, Senior AttorneyAdvisor, Department of Veterans Affairs
Regional Office and Insurance Center
(310/290B), P.O. Box 8079,
Philadelphia, Pennsylvania 19101, (215)
842–2000, ext 4280. (This is not a toll
free number.)
SUPPLEMENTARY INFORMATION: The
Veterans’ Survivor Benefits
Improvements Act of 2001, Public Law
107–14, established a program of family
insurance coverage under
Servicemembers’ Group Life Insurance
(SGLI) through which a SGLI-insured
service member’s insurable dependents
could also be insured. Section 1965(10)
of title 38, United States Code, defined
‘‘insurable dependent’’ as a service
member’s spouse or child. Under 38
U.S.C. 1967(a), the child of a SGLIinsured member is automatically
insured for $10,000.
Section 1967(a)(4)(B) prohibits an
insurable dependent who is a child from
being insured at any time under the
SGLI coverage of more than one
member, i.e., more than one SGLIinsured parent. If a child is otherwise
eligible to be insured by the coverage of
more than one member, under section
1967(a)(4)(B) the child is insured by the
coverage of the member whose
eligibility for SGLI occurred first,
‘‘except that if that member does not
have legal custody of the child, the
child shall be insured by the coverage
of the member who has legal custody of
the child.’’ Which parent has legal
custody of a child is determined in
accordance with applicable State law.
Section 402 of the Veterans’ Benefits
Improvement Act of 2008, Public Law
110–389, expanded the definition of
‘‘insurable dependent’’ for SGLI
purposes to include a ‘‘member’s
stillborn child.’’ On November 18, 2009,
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VA added paragraph (k) to 38 CFR 9.1
to define the term ‘‘member’s stillborn
child’’ for purposes of SGLI coverage. 74
FR 59479.
Our research has determined that the
law of the 50 States is silent as to which
parent of a stillborn child has legal
custody of the stillborn child. VA would
not be able to determine the legal
custodian of a stillborn child in
accordance with State law. Therefore,
we propose that a stillborn child of two
SGLI-covered parents will always be
insured under the mother’s coverage.
Ease of application is just one reason
for adopting such a simple rule. VA
proposes this rule also because a
stillborn child was exclusively in the
mother’s physical custody. Furthermore,
if the paternity of a stillborn child were
in issue, it would be particularly
onerous to require a stillborn’s father to
establish paternity of the stillborn child.
It would be more compassionate under
such circumstances to simply apply a
standing rule that obviates the need for
such determinations. We therefore
propose a rule to amend 38 CFR 9.5 by
adding paragraph (e) to provide that, if
a stillborn child is otherwise eligible to
be insured by the coverage of more than
one member, the stillborn child would
be insured by the coverage of the SGLIinsured mother.
This rule would apply to claims filed
on or after the publication of the final
rule.
Unfunded Mandates
The Unfunded Mandates Reform Act
of 1995 requires, at 2 U.S.C. 1532, that
agencies prepare an assessment of
anticipated costs and benefits before
issuing any rule that may result in an
expenditure by State, local, and tribal
governments, in the aggregate, or by the
private sector, of $100 million or more
(adjusted annually for inflation) in any
one year. This rule would have no such
effect on State, local, and tribal
governments or the private sector.
Paperwork Reduction Act
This proposed rule contains no
provision constituting a collection of
information under the Paperwork
Reduction Act (44 U.S.C. 3501 et seq.).
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, when regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, and other advantages;
distributive impacts; and equity).
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]]>Agencies
[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]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
