59044 Federal Register / Vol. 72, No. 201 / Thursday, October 18, 2007 / Proposed Rules 

separate building, in a separate wing of 

a building, or in quarters at the blind 

end of a corridor and includes adequate 

space and equipment for all processing 

steps up to, but not including, filling 

into final containers; and 

(B) Not conducting test procedures 

that potentially involve the presence of 

microorganisms other than the vaccine 

strains or the use of tissue culture cell 

lines other than primary cultures in 

space used for processing live vaccine; 

or 

(ii) If manufacturing is conducted in 

a multiproduct manufacturing building 

or area, using procedural controls, and 

where necessary, process containment. 

Process containment is deemed to be 

necessary unless procedural controls are 

sufficient to prevent cross 

contamination of other products and 

other manufacturing areas within the 

building. Process containment is a 

system designed to mechanically isolate 

equipment or an area that involves 

manufacturing using live vaccine 

organisms. All product, equipment, and 

personnel movement between distinct 

live vaccine processing areas and 

between live vaccine processing areas 

and other manufacturing areas, up to, 

but not including, filling in final 

containers, must be conducted under 

conditions that will prevent cross 

contamination of other products and 

manufacturing areas within the 

building, including the introduction of 

live vaccine organisms into other areas. 

In addition, written procedures and 

effective processes must be in place to 

adequately remove or decontaminate 

live vaccine organisms from the 

manufacturing area and equipment for 

subsequent manufacture of other 

products. Written procedures must be in 

place for verification that processes to 

remove or decontaminate live vaccine 

organisms have been followed. 

* * * * * 

Dated: July 30, 2007. 

Randall W. Lutter, 

Deputy Commissioner for Policy. 

[FR Doc. E7–20609 Filed 10–17–07; 8:45 am] 

BILLING CODE 4160–01–S 

DEPARTMENT OF THE INTERIOR 

National Indian Gaming Commission 

25 CFR Parts 502, 522, 559 and 573 

RIN 3141–AA23 

Facility License Standards 

AGENCY: National Indian Gaming 

Commission (‘‘NIGC’’ or 

‘‘Commission’’). 

ACTION: Proposed rules. 

SUMMARY: The proposed rules add new 

sections and a new part to the 

Commission’s regulations in order to 

ensure that each place, facility or 

location where class II or class III 

gaming will occur is located on Indian 

lands eligible for gaming as required by 

the Indian Gaming Regulatory Act. The 

rules are also intended to ensure that 

gaming facilities are constructed, 

maintained and operated in a manner 

that adequately protects the 

environment and the public health and 

safety. 

DATES: Submit comments on or before 

December 3, 2007. 

ADDRESSES: Comments can be mailed, 

faxed, or e-mailed. Mail comments to 

‘‘Comments on Facility Licensing 

Standards,’’ National Indian Gaming 

Commission, 1441 L Street, NW., 

Washington, DC 20005, Attn: Jerrie 

Moore, Legal Assistant. Comments may 

be faxed to 202–632–7066 (not a tollfree number). Comments may be sent 

electronically to 

licensing_regulations@nigc.gov. 

FOR FURTHER INFORMATION CONTACT: 

Penny J. Coleman, Acting General 

Counsel, at (202) 632–7003; fax (202) 

632–7066 (not toll-free numbers). 

SUPPLEMENTARY INFORMATION: 

I. Background 

On October 17, 1988, Congress 

enacted the Indian Gaming Regulatory 

Act (‘‘IGRA’’ or ‘‘Act’’), 25 U.S.C. 2701–

21, creating the National Indian Gaming 

Commission (‘‘NIGC’’ or ‘‘Commission’’) 

and developing a comprehensive 

framework for the regulation of gaming 

on Indian lands. 25 U.S.C. 2702. The 

NIGC was granted, among other things, 

oversight and enforcement authority, 

including the authority to monitor tribal 

compliance with the Act, Commission 

regulations, and tribal gaming 

ordinances. 

First, the IGRA allows gaming on 

Indian lands pursuant to 25 U.S.C. 

2703(4), although it contains a general 

prohibition against gaming on lands 

acquired into trust by the United States 

for the benefit of the tribe after the Act’s 

effective date of October 17, 1988, 

unless one of several exceptions are 

met. 25 U.S.C. 2719. The Commission 

has jurisdiction only over gaming 

operations on Indian lands and 

therefore must establish that it has 

jurisdiction as a prerequisite to its 

monitoring, enforcement, and oversight 

duties. 25 U.S.C. 2702(3). 

Second, the NIGC needs to obtain 

information on a tribe’s environmental 

and public health and safety laws to 

oversee the implementation of approved 

tribal gaming ordinances. Before 

opening a gaming operation, a tribe 

must adopt an ordinance governing 

gaming activities on its Indian lands. 25 

U.S.C. 2710. The Act specifies a number 

of mandatory provisions to be contained 

in each tribal gaming ordinance and 

subjects such ordinances to agency 

review and the NIGC Chairman’s 

approval. Id. Approval by the Chairman 

is predicated on the inclusion of each of 

the specified mandatory provisions in 

the tribal gaming ordinance. Id. Among 

these is a requirement that the 

ordinance must contain a provision 

ensuring that ‘‘the construction and 

maintenance of the gaming operation, 

and the operation of that gaming is 

conducted in a manner that adequately 

protects the environment and the public 

health and safety.’’ 25 U.S.C. 

2710(b)(2)(E). Since 1993, when the 

Commission became operational, the 

Chairman has required each tribal 

gaming ordinance submitted for 

approval to include the express 

environmental and public health and 

safety statement set out in 25 U.S.C. 

2710(b)(2)(E). 

The Commission recognizes that tribal 

governments, as an incident of inherent 

tribal sovereignty, have broad autonomy 

and authority over internal tribal affairs, 

including, in particular, matters 

pertaining to tribal lands and the health 

and welfare of the people and the 

community. Moreover, the Commission 

is aware that the principle of tribal selfdetermination is a cornerstone of federal 

Indian law and policy and has remained 

so for more than a quarter century. 

The Commission believes that tribes 

must have some form of basic laws in 

the following environmental and public 

health and safety areas: (1) Emergency 

preparedness, including but not limited 

to fire suppression, law enforcement 

and security; (2) food and potable water; 

(3) construction and maintenance; (4) 

hazardous materials; and (5) sanitation 

(both solid waste and wastewater). 

Accordingly, in 2002, the Commission 

issued an interpretive rule for 

environment, public health, and safety. 

67 FR 46,109 (Jul. 12, 2002) 

(‘‘Interpretive Rule’’). 

The NIGC has conducted many 

environment and public health and 

safety inspections since the issuance of 

the Interpretive Rule and has worked 

with a consultant to allow the agency to 

gain expertise in this area. Through this 

inspection process, the NIGC has 

identified weaknesses in tribal laws or 

enforcement thereof and has worked 

with tribes to cure deficiencies. 

The Commission respects the rights of 

tribes to develop their own laws and be 

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Federal Register / Vol. 72, No. 201 / Thursday, October 18, 2007 / Proposed Rules 59045 

governed by them. These rights must be 

viewed in conjunction with the IGRA 

mandate that the tribal governments and 

the NIGC have a responsibility to the 

gaming public and to gaming operation 

employees to ensure that their 

operations do not pose a risk to the 

health or safety of the public or the 

environment. 25 U.S.C. 2710(b)(2)(E); 25 

CFR part 580. 

In the years since the adoption of the 

Interpretive Rule, the Commission has 

identified several deficiencies in it. 

Namely, the Interpretive Rule does not 

assist the Commission in identifying 

what environmental and public health 

and safety laws apply to each gaming 

operation nor ensure that tribal gaming 

regulatory authorities are enforcing 

those laws. There is a need for a 

submission to the Commission of a 

certification by the tribe that it has 

identified laws applicable to its gaming 

operation and is in compliance with 

them together with a document listing 

those laws. A certification process 

would help tribes and the Commission 

to identify problem areas where laws are 

needed so that the NIGC may offer 

technical advice and encourage 

adoption and enforcement of 

appropriate laws. The new rules 

proposed today would not replace the 

Interpretive Rule but would work in 

conjunction with it. 

II. Development of the Proposed Rules 

Through Consultation With Indian 

Tribes 

The Commission identified a need for 

facility license standards to address 

Indian lands and environmental and 

public health and safety concerns in 

2005. In accordance with its 

government-to-government consultation 

policy, 69 FR 16,973 (Mar. 31, 2004), the 

Commission consulted with Indian 

tribes so they could provide early and 

meaningful input regarding formulation 

of the proposed rules. Before it began 

drafting the proposed rules, the 

Commission advised tribes of its intent 

to create standards and asked tribes for 

comments and suggestions on licensing 

regulations covering both Indian lands 

and environmental and public health 

and safety standards at consultation 

sessions around the country beginning 

in October of 2005. 

Thereafter, the Commission prepared 

draft facility licensing regulations 

covering Indian lands and 

environmental and public health and 

safety standards. A copy of the draft 

regulations was sent to leaders of all 

gaming tribes for comment on May 12, 

2006. The NIGC also posted the draft on 

its Web site, http://www.nigc.gov, for 

public comment. Fifty-six tribes 

provided written comments. In 

addition, between May 12, 2006, and 

March 20, 2007, the Commission invited 

309 tribes to meet with it in 

consultation asking, among other 

matters, for comment on the draft 

regulations. While some tribes declined 

the Commission’s invitations, the 

Commission conducted over 53 separate 

government-to-government consultation 

meetings with individual tribes and 

their leaders or representatives. 

The comments and suggestions 

received were carefully reviewed, and 

as a result, the Commission decided to 

redraft the regulations. Tribes 

questioned the NIGC’s authority to issue 

the regulations for tribes conducting 

class III gaming and the NIGC’s 

authority to issue regulations in this 

area overall. Tribes also challenged the 

first draft as unduly onerous and costly. 

The first draft applied to open as well 

as new gaming operations and required 

tribes to submit a signed legal opinion 

finding that the site was on IGRA Indian 

lands; a certification that the gaming site 

was on Indian lands; plat maps; copies 

of trust deeds; copies of any court 

decisions, settlement agreements, 

Congressional acts, Executive Orders, or 

Secretarial proclamations or decisions 

affecting title or ownership of the land; 

documentation on site ownership and 

leasehold interests; and documentation 

the site was located within reservation 

boundaries or was within tribal 

jurisdiction and the tribe exercised 

governmental power over it. The first 

draft had also required tribes to submit 

the table of contents of each applicable 

environmental and public health and 

safety law. The Commission agreed that 

the requirements to submit a signed 

legal opinion on the Indian lands status 

of gaming lands and the table of 

contents for each applicable 

environmental and public health and 

safety law would be unduly 

burdensome and expensive and 

therefore removed them. 

The Commission sent a revised draft 

to leaders of all gaming tribes for 

comment on March 21, 2007, and 

posted the draft on its Web site, asking 

for comments by May 15, 2007. NIGC 

Press Release PR–63 06–2007. The 

comment period deadline was 

subsequently extended to May 30, 2007. 

NIGC Press Release PR–65 08–2007. The 

NIGC posted the initial request for 

comments and the extension letter on its 

Web site in order to obtain additional 

public comment. In addition, the 

Commission invited 273 tribes to meet 

with it in consultation asking, among 

other matters, for comment on the 

regulations. While some tribes declined 

the Commission’s invitations, between 

March 20, 2007, and July 31, 2007, the 

Commission conducted over 60 separate 

government-to-government consultation 

meetings with individual tribes and 

their leaders or representatives. Tribes 

submitted 78 comments to the revised 

draft. 

Comments on the revised draft were 

again carefully reviewed and considered 

by the Commission in formulating these 

proposed regulations. Tribes continued 

to question the NIGC’s authority to issue 

the regulations. The Commission, 

however, continues to believe it has 

authority to issue licensing standards, 

determine whether a site constitutes 

Indian lands, and ensure tribal 

compliance with the environmental and 

public health and safety provision of the 

IGRA. The NIGC noted the continued 

concern of many tribes regarding the 

Indian lands submission burden and has 

substantially lessened the burden in the 

proposed rules published today as well 

as limited the submission requirements 

for this regulation to new gaming 

operations. The NIGC has therefore 

substantially reduced the Indian lands 

collection while requiring tribes to 

submit additional documentation if 

necessary. 

The second draft also required all 

gaming tribes to amend their gaming 

ordinances within two years of the 

effective date of the regulations in order 

to incorporate specific environmental 

and public health and safety provisions 

into their gaming ordinance. The NIGC 

concurs with the commentators that the 

ordinance amendment concept is 

unnecessary and would prove unduly 

burdensome and costly both to the 

tribes and the agency and has removed 

this provision. 

Tribes also commented that 

submission of a certification that the 

tribe is in compliance with applicable 

environmental and public health and 

safety laws and a list of those laws was 

burdensome and an infringement on 

tribal sovereignty. The Commission 

believes that the environmental and 

public health and safety requirements 

do not infringe on tribal sovereignty and 

are not unduly onerous. The 

requirements for environmental and 

public health and safety certifications 

and lists of laws appear to have been 

misconstrued as the regulations do not 

require tribes to adopt any specific laws 

or send in all of their laws, but are 

meant to keep the NIGC current on the 

status of the tribes’ laws. 

As of the date of publication, the 

Commission has to date conducted over 

113 separate government-to-government 

consultation meetings with individual 

tribes and their leaders or 

representatives and received many 

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59046 Federal Register / Vol. 72, No. 201 / Thursday, October 18, 2007 / Proposed Rules 

written comments on its drafts. Through 

these consultations, the Commission 

actively endeavored to provide all tribes 

with a reasonable and practical 

opportunity to meet and consult with 

the Commission on a government-togovernment basis and provide early and 

meaningful tribal input regarding the 

formulation and implementation of 

these proposed rules. 

III. Purpose and Scope 

The proposed rules are intended to 

ensure that each place, facility, or 

location where class II or class III 

gaming will occur is located on Indian 

lands eligible for gaming under the 

IGRA. The proposed rules are also 

intended to assure that gaming facilities 

are constructed, maintained, and 

operated in a manner that adequately 

protects the environment and public 

health and safety. In addition, the 

proposed rules will allow the 

Commission to track the opening and 

closing of tribal gaming facilities. Each 

gaming place, facility, or location where 

a tribe conducts, or intends to conduct, 

class II or class III gaming pursuant to 

the IGRA would be subject to the 

proposed rules. 

IV. Ordinance Submission 

Requirements of 25 CFR Part 522 

The IGRA requires that gaming be on 

Indian lands eligible for gaming under 

the Act and that a tribe include in its 

ordinance a provision that 

‘‘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.’’ 25 U.S.C. 2710(b)(2)(E). The 

addition of paragraph (i) to 25 CFR 

522.2, concerning ordinance submission 

requirements, directs that a tribe shall 

provide any Indian lands or 

environmental and public health and 

safety documentation that the Chairman 

requests at his or her discretion as 

needed. 

V. Definitions for 25 CFR Part 502 

The Commission proposes definitions 

for terms not previously defined in its 

regulations. These definitions would 

have general application to all of the 

NIGC regulations where the terms are 

used. 

In the proposed rule, the Commission 

defines the term ‘‘facility license’’ to 

clarify the term used in 25 U.S.C. 

2710(b)(1), which requires a tribe to 

issue a separate license for each place, 

facility, or location on Indian lands at 

which class II or class III gaming is or 

will be conducted. 

The Commission also proposes to 

define the requirement in 25 U.S.C. 

2710(b)(2)(E) that a tribal gaming 

ordinance must contain a provision 

ensuring that ‘‘the construction and 

maintenance of the gaming operation, 

and the operation of that gaming is 

conducted in a manner that adequately 

protects the environment and the public 

health and safety.’’ The Commission 

clarifies that this term means a tribe has 

identified and is enforcing laws 

applicable to its gaming operations in 

the areas of emergency preparedness, 

food and potable water, construction 

and maintenance, hazardous materials, 

and sanitation. 

VI. Facility License Notifications, 

Renewals, and Submissions 

Proposed 25 CFR part 559 sets forth 

standards for renewal of gaming facility 

licenses, standards for notification to 

the Commission when a facility license 

is renewed or terminated, and standards 

for notification to the Commission prior 

to the licensing and opening of new 

gaming facilities. 

A tribe would submit a notice to the 

Chairman that it is considering issuing 

a facility license to a new facility at least 

one hundred and twenty (120) days 

before opening. The notice would 

contain the name, address, legal 

description and tract number of the 

property. Other information would be 

required if the deed for the property is 

not maintained by the Bureau of Indian 

Affairs, Department of the Interior. In 

that case, the tribe would submit a copy 

of the deed and documentation of the 

property’s ownership. Charitable events 

lasting not more than one week would 

be excluded from this requirement. 

In addition, proposed part 559 would 

require renewals of facility licenses at 

least once every three years. A copy of 

each facility license would be sent to 

the Chairman within thirty days of 

issuance, with a supporting certification 

that the tribe has identified and enforces 

applicable environmental and public 

health and safety laws and a list of those 

laws. The Chairman has discretion to 

request additional Indian lands or 

environmental and public health and 

safety documentation as needed. 

Further, a tribe would notify the 

Chairman if a facility license is 

terminated or not renewed, or if the 

facility closes. 

VII. Order of Temporary Closure 

Proposed 25 CFR 573.6(a)(4) amends 

the current regulation, which already 

allows the Chairman to order temporary 

closure of a facility when a gaming 

facility operates without a license from 

a tribe. The amendment would correct 

the faulty citation to be replaced with 

the correct citation. The amended rule 

would also allow the Chairman to issue 

an order of temporary closure if a 

gaming facility operates without a 

facility license in violation of proposed 

rule 25 CFR part 559. 

Regulatory Matters 

Regulatory Flexibility Act 

The proposed rules will not have a 

significant economic effect 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 rules are not a major 

rule under 5 U.S.C. 804(2), the Small 

Business Regulatory Enforcement 

Fairness Act. The rules do not have an 

annual effect on the economy of $100 

million or more. The rules will not 

cause a major increase in costs or prices 

for consumers, individual industries, 

Federal, state or local government 

agencies or geographic regions and do 

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 Mandates Reform Act 

The Commission, as an independent 

regulatory agency within the 

Department of the Interior, is exempt 

from compliance with the Unfunded 

Mandates Reform Act, 2 U.S.C. 1502(1); 

2 U.S.C. 658(1). Regardless, the 

proposed rules do not impose an 

unfunded mandate on state, local, or 

tribal governments or on the private 

sector of more than $100 million per 

year. Thus, it is not a ‘‘significant 

regulatory action’’ under the Unfunded 

Mandates Reform Act. 

Takings 

In accordance with Executive Order 

12630, the Commission has determined 

that the proposed rules do not have 

significant takings implications. A 

takings implication assessment is not 

required. 

Civil Justice Reform 

In accordance with Executive Order 

12988, the Office of General Counsel has 

determined that the proposed rules do 

not unduly burden the judicial system 

and meet the requirements of sections 

3(a) and 3(b)(2) of the Order. 

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Federal Register / Vol. 72, No. 201 / Thursday, October 18, 2007 / Proposed Rules 59047 

National Environmental Policy Act 

The Commission has determined that 

the proposed rules do 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 proposed rules require 

information collection under the 

Paperwork Reduction Act of 1995, 44 

U.S.C. 3501, et seq., and are subject to 

review by the Office of Management and 

Budget. The title, description, and 

respondent categories are discussed 

below, together with an estimate of the 

annual information collection burden. 

With respect to the following 

collection of information, the 

Commission invites comments on: (1) 

Whether the proposed collection of 

information is necessary for proper 

performance of its functions, including 

whether the information would have 

practical utility; (2) the accuracy of the 

Commission’s estimate of the burden of 

the proposed collection of information, 

including the validity of the 

methodology and assumptions used; (3) 

ways to enhance the quality, utility, and 

clarity of the information to be 

collected; and (4) ways to minimize the 

burden of the collection of information 

on respondents, including the use of 

automated collection techniques, when 

appropriate, and other forms of 

information technology. 

Title: Indian Gaming Facility 

Documentation and Certification, 

proposed 25 CFR part 559. 

Summary of information and 

description of need: 

The IGRA establishes that Indian 

gaming may be conducted only on 

Indian lands. 25 U.S.C. 2703(4), 

2710(a)(1), 2710(b)(1), 2710(d)(1). The 

IGRA further provides that the Indian 

lands outside of a tribe’s reservation 

boundaries as of the effective date of the 

Act, October 17, 1988, must be held in 

trust by the United States for the tribe 

or tribal member(s) as of October 17, 

1988. 25 U.S.C. 2719(a). If not, the site 

must meet one of the exceptions from 25 

U.S.C. 2719(b). To carry out its 

regulatory requirements, the 

Commission must know the status of 

lands where tribal gaming is occurring. 

Without the required showing that 

gaming is conducted on ‘‘Indian lands,’’

it is unclear whether the NIGC or the 

State exercises jurisdiction over the 

gaming. 

In addition, a September 2005 report 

by the Office of Inspector General 

(‘‘OIG’’) for the United States 

Department of the Interior (‘‘DOI’’) 

recommended that the NIGC establish a 

process by which tribes that have taken 

land into trust since 1988 certify the 

lands’ status and establish and maintain 

a database containing eligibility 

information and/or lands 

determinations for all Indian gaming 

operations. The NIGC has established an 

Indian lands database and seeks to 

populate the database with information 

on new gaming facilities. The data will 

be utilized for internal reporting and 

recordkeeping purposes; to determine 

jurisdiction and legality of gaming; and 

to respond to inquiries from other 

government agencies and Congress 

regarding where Indian gaming is 

occurring and proposed. Any public 

requests for information contained in 

the database will be subject to the 

Freedom of Information Act, 5 U.S.C. 

552, the Privacy Act of 1974, 5 U.S.C. 

552a, and 25 U.S.C. 2716. 

Proposed section 559.2 requires that a 

tribe submit a notice to the NIGC at least 

one hundred and twenty (120) days 

before a new gaming facility will be 

opened, alerting the agency that a 

facility license is under consideration. 

The notice will contain the name and 

address of the property; the legal 

description of the property; a copy of 

any deeds or trust documents to the 

property if not maintained by the 

Bureau of Indian Affairs, Department of 

the Interior (‘‘BIA’’), the tract number 

for the property as assigned by the BIA 

Land Title Records Offices (‘‘LTRO’’), or 

a short explanation as to why no deed 

exists; and documentation on the 

property’s ownership if not maintained 

by the BIA. 

The notice and its information 

provide necessary data without which 

the NIGC is unable easily to identify the 

site or to verify that a gaming site will 

be on eligible Indian lands pursuant to 

the IGRA and enter that information 

into the agency’s Indian lands database. 

First, the name and address of the 

future facility are needed by the NIGC 

in order to identify the site and are 

needed for the agency’s Indian lands 

database. Second, the NIGC is 

constrained in its attempts to research 

the gaming eligibility status of a site 

under the IGRA without a legal 

description and LTRO tract number. 

Although many deeds and ownership 

documentation are maintained at BIA 

LTRO, without information from a tribe 

regarding the address, legal description, 

and tract number of where gaming is to 

be conducted, the NIGC cannot reliably 

or efficiently know which deeds to 

request. Previous requests to the BIA 

indicate that the BIA is often unable to 

assist the NIGC without a legal 

description and tract number of the 

land. The legal description and tract 

number also allow the NIGC to work 

with the BIA to verify, for example, 

whether land is within or contiguous to 

1988 reservation boundaries, is within 

an Oklahoma former reservation, or is 

within the last reservation boundaries 

not in Oklahoma. See 25 U.S.C. 2703(4), 

2719. Third, the NIGC is requesting that 

tribes submit deeds not maintained by 

the BIA. Tribes often operate their own 

real estate offices and maintain their 

trust deeds themselves. If no deed was 

ever issued for the property, the tribe is 

in the best position to explain why no 

deed was issued. Moreover, if land is 

owned in fee, the tribe should have 

obtained a copy of the deed in the 

course of developing the new project. 

Documentation of ownership indicates 

that the land is owned by the tribe or 

a tribal member and is an indication of 

jurisdiction. A tribe is required to have 

jurisdiction and exercise governmental 

power over its gaming lands. See 25 

U.S.C. 2703(4), 2710(b)(1). The 

Commission presumes that a tribe has 

both jurisdiction and exercises 

governmental power on its reservation 

lands but needs to ensure this for all offreservation sites as they are threshold 

requirements for tracts to be considered 

Indian lands. 25 U.S.C. 2703(4), 2710, 

and 2719. 

Proposed part 559 also requires that 

each gaming facility license be renewed 

at least once every three years and that 

a tribe must submit a copy of each new 

facility license to the NIGC within 30 

days of issuance. Supporting 

documentation submitted with the new 

facility license includes a tribal 

certification that a tribe has identified 

and enforces the environmental and 

public health and safety laws applicable 

to its gaming operation and a document 

listing the applicable laws. 

The NIGC requires the certification 

and list of laws in order to identify what 

environmental and public health and 

safety standards apply to each gaming 

operation and to ensure that tribal 

gaming regulatory authorities are 

enforcing the standards for the gaming 

operations. The certification and list 

would allow the Commission to rely on 

a tribe’s assertion that it is in 

compliance with applicable laws. 

Respondents: 

This information request is specific to 

tribal governments that operate gaming 

facilities and to tribal governments 

considering opening new gaming 

facilities in accordance with the IGRA. 

The maximum number of potential 

respondents is approximately 562, the 

number of federally recognized Indian 

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59048 Federal Register / Vol. 72, No. 201 / Thursday, October 18, 2007 / Proposed Rules 

tribes. See Indian Entities Recognized 

and Eligible To Receive Services From 

the United States Bureau of Indian 

Affairs, 72 FR 13,648 (Mar. 22, 2007). 

Currently, approximately 226 tribes 

operate approximately 419 gaming 

facilities. 

Information Collection Burden: 

The proposed rules require tribes 

opening new gaming facilities to submit: 

(1) The facility name; (2) mailing 

addresses, legal descriptions, and LTRO 

tract numbers for the proposed gaming 

site; and (3) copy of the trust deed(s) 

and documentation on site ownership if 

not maintained by the BIA. If a tribe 

maintains its real property deeds 

through contract with the BIA, it will 

have ready access to the legal 

description and LTRO tract number. 

There could be some burden on the tribe 

to learn the legal description of the 

property. The legal description can be 

obtained from the county recorder’s 

office, through working with the BIA, or 

from the tribe’s own realty office. There 

would also be a minimal burden on the 

tribe to locate a copy of a deed or to 

write a brief explanation that no deed 

was ever issued for the property in the 

rare instances where this is so on tribal 

reservation lands. Likewise, there would 

be a burden on tribes to provide 

documentation of ownership if not 

maintained by the BIA. Such 

documentation can be obtained from the 

county recorder’s office or from the 

tribe’s own realty office if contracted to 

maintain such information. The NIGC 

believes that providing a legal 

description, LTRO tract number, trust 

deed, or land ownership information 

could require investment of time only. 

This portion of the information request 

will not be recurring and tribes will 

only be required under this proposed 

rule to comply with the information 

request if they plan on opening a new 

tribal facility. In general, the NIGC 

believes tribes wishing to open gaming 

establishments on fee lands would need 

to obtain this information as part of the 

normal course of business. Therefore, 

the Indian lands portion of the rule 

would add only limited additional 

expense to Indian gaming operations. 

The proposed rule further requires 

submission at least once every three 

years of: (1) A copy of each gaming site’s 

facility license; and (2) a tribal 

certification that it has identified and is 

in compliance with applicable 

environment and public health and 

safety laws. The document listing the 

applicable laws must be included with 

the first submission only. After that, if 

no changes are made to the list, the tribe 

only needs to certify to the NIGC that no 

substantial modifications were made to 

the list. The NIGC believes that there 

will be minimal burden for a tribe to 

identify the laws applicable to its 

gaming operation. Tribes should already 

be aware of and enforcing laws 

applicable to their gaming operations so 

the time and cost associated with a 

certification and list of laws should be 

minimal. One-time costs may be 

incurred by tribal governments drafting 

and adopting laws if there are none in 

the identified areas. 

Over the past year, the Commission 

requested Indian lands information from 

several tribes for existing facilities. The 

information collection there was 

substantially greater than that contained 

in the proposed rule. The NIGC had 

asked tribes to provide a legal 

description, a copy of the trust deed, a 

map of the property, documentation 

from the BIA on its decision to take the 

land into trust, and a legal analysis of 

why each open tribal gaming site 

qualified as Indian lands eligible for 

gaming under the IGRA. Tribes reported 

that the collection took approximately 4 

hours if the information had already 

been compiled. Tribes conducting 

gaming on pre-IGRA trust lands 

estimated 20 hours of response time and 

tribes gaming under an exception in 25 

U.S.C. 2719(b) estimated up to 80 hours 

of response time with an average 

estimated range of costs for each facility 

of approximately $350 (20 hours × 

$17.50) to $1,400 (80 hours × $17.50). 

The Commission expects that the most 

of the response time and cost will be 

eliminated under the current 

information request as the NIGC is 

requesting only name and address of the 

property; the legal description of the 

property; a copy of any deeds to the 

property if not maintained by the BIA, 

or a short explanation as to why no deed 

exists; and documentation on the 

property’s ownership if not maintained 

by the BIA. The Commission estimates 

that the hour burden will drop to 2 

hours at a cost of $35 (2 × $17.50) under 

the proposed rule if the BIA maintains 

the deed and documentation of site 

ownership, going up to 10 hours at a 

cost of $175 (10 × $17.50) if the BIA 

does not maintain such information. 

The NIGC expects to work with the BIA 

to establish a process for obtaining lands 

information that is held by the BIA. 

Additionally, under the proposed 

rule, the Commission’s collection of 

information on Indian lands would 

require submission of information on 

future facilities; it is unlikely that a tribe 

would have to provide information on 

more than one facility at a time or very 

many times over the course of several 

years. 

The Commission has requested copies 

of environmental and public health and 

safety laws from many tribes in 

preparation for inspections under the 

Interpretive Rule, 67 FR 46,109 (Jul. 12, 

2002), but has not asked tribes to report 

the time required to provide the 

information. This information collection 

request is for a copy of each gaming 

site’s facility license, a tribal 

certification that it has identified and is 

in compliance with applicable 

environment and public health and 

safety (‘‘EPHS’’) laws, and a document 

listing the titles of those laws other than 

federal laws. 

The NIGC believes that there will be 

minimal burden for a tribe to identify 

the laws applicable to its gaming 

operation, other than federal laws, in 

the areas of emergency preparedness, 

food and water, construction and 

maintenance, hazardous materials, and 

sanitation. Tribes should already be 

aware of and enforcing laws applicable 

to their gaming operations so time and 

cost associated with a certification and 

list of laws should be minimal. The 

estimated hour burden of assembling 

EPHS laws and creating a list is 3–8 

hours, or approximately $52.50 (3 × 

17.50) to $140 (8 × $17.50) depending 

on whether the tribe already maintains 

such a list. 

Once every three years, a tribe could 

incur costs of hiring consultants, 

attorneys, engineers, or inspectors to 

certify compliance with applicable 

EPHS laws, and this is estimated to be 

$1,000 to $7,000 for inspection and 

certification. One estimate was for a 

series of inspectors over 3–5 days at a 

total cost of $5,000–$7,000. 

Potentially, a few tribes will have to 

make significant changes to their 

infrastructure before a certificate of 

compliance can be issued. In such cases, 

the costs may be estimated as ranging 

from $40,000 to $250,000 and include 

ongoing compliance costs in addition to 

inspection costs. The wide range of 

costs depends on whether a tribe has 

already developed and identified 

applicable EPHS laws and has an 

ongoing program aimed at assuring the 

public health and safety. The higher 

cost estimates came from operations 

with full-time EPHS employees and 

represent the overall cost of the tribe’s 

EPHS program rather than simply costs 

associated with inspection and 

certification. Operations with full-time 

EPHS employees pay for them as part of 

the overall cost of the tribe’s EPHS 

program rather than as costs associated 

with inspection and certification. The 

costs associated with the customary and 

usual business practice of maintaining 

EPHS and fixing code violations are not 

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Federal Register / Vol. 72, No. 201 / Thursday, October 18, 2007 / Proposed Rules 59049 

a direct result of a certification 

requirement, but rather required already 

by tribal laws, including the tribal 

gaming ordinance, which requires a 

tribe to construct, maintain, and operate 

its gaming facilities in a manner that 

protects the public pursuant to 25 

U.S.C. 2710(b)(2)(E). The hour cost of 

having the appropriate tribal entity 

create a certification after the 

inspections is estimated at 2 hours for 

a cost of $35 (2 × $17.50). 

Also, if a tribe does not have laws in 

one of the enumerated areas, it may 

require employment of an attorney or 

other specialist to research other laws in 

this area and may require the attorney 

to draft tribal law if the tribe opts not 

to adopt a uniform code or law of 

another jurisdiction. The NIGC 

estimates the cost for this as 

approximately $5,000–$10,000. 

The proposed rule also requires an 

information collection if a facility 

license is terminated or not renewed or 

if a gaming place, facility, or location 

closes. The NIGC believes the tribe will 

create documentation for this through 

governmental meeting minutes or 

through a notification to the gaming 

operation and need only forward a copy 

of that information to the Commission. 

The estimated hour burden of 

forwarding this information to the 

Commission is a half hour for 

approximately $8.75 (.5 × $17.50). 

Comments: Pursuant to the Paperwork 

Reduction Act, 44 U.S.C. 3507(d), the 

Commission has submitted a copy of 

this proposed rule to OMB for its review 

and approval of this information 

collection. Interested persons are 

requested to send comments regarding 

the burden, estimates, or any other 

aspect of the information collection, 

including suggestions for reducing the 

burden: (1) Directly to the Office of 

Information and Regulatory Affairs, 

OMB, Attn: Desk Officer for the 

National Indian Gaming Commission, 

725 17th Street NW., Washington, DC 

20503; and (2) to Penny J. Coleman, 

Acting General Counsel, National Indian 

Gaming Commission, 1441 L Street, 

NW., Suite 9100, Washington, DC 20005 

or via fax (202) 632–7066 (not a toll-free 

number) or via e-mail at 

licensing_regulations@nigc.gov. 

Comments are due November 19, 2007. 

List of Subjects in 25 CFR Parts 502, 

522, 559, and 573 

Gambling, Indians—lands, Indians—

tribal government, Reporting and 

recordkeeping requirements. 

Text of the Proposed Rules 

For the reasons set forth in the 

preamble, the Commission proposes to 

amend its regulations at 25 CFR Chapter 

III as follows: 

PART 502—DEFINITIONS OF THIS 

CHAPTER 

1. The authority citation for part 502 

continues to read as follows: 

Authority: 25 U.S.C. 2701 et seq. 

2. Add new § 502.22 to read as 

follows: 

§ 502.22 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. 

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 means a tribe has identified and 

enforces laws, resolutions, codes, 

policies or procedures applicable to 

each gaming place, facility or location 

that protect the environment and the 

public health and safety, including 

standards negotiated under a tribal-state 

compact. Laws, resolutions, codes, 

policies or procedures in this area shall 

cover, at a minimum: 

(a) Emergency preparedness, 

including but not limited to fire 

suppression, law enforcement, and 

security; 

(b) Food and potable water; 

(c) Construction and maintenance; 

(d) Hazardous materials; 

(e) Sanitation (both solid waste and 

wastewater); and 

(f) Other environmental or public 

health and safety standards adopted by 

the tribe in light of climate, geography, 

and other local conditions and 

applicable to its gaming facilities, places 

or locations. 

3. Add new § 502.23 to read as 

follows: 

§ 502.23 Facility license. 

Facility license means a separate 

license issued by a tribe to each place, 

facility, or location on Indian lands 

where the tribe elects to allow class II 

or III gaming. 

PART 522—SUBMISSION OF GAMING 

ORDINANCE OR RESOLUTION 

4. The authority citation for part 522 

continues to read as follows: 

Authority: 25 U.S.C. 2706, 2710, 2712. 

5. Add new paragraph (i) to § 522.2 to 

read as follows: 

§ 522.2 Submission requirements. 

(i) A tribe shall provide Indian lands 

or environmental and public health and 

safety documentation that the Chairman 

may in his or her discretion request as 

needed. 

6. Add new 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 

Chairman that it is considering issuing a 

new facility license? 

559.3 How often must a facility license be 

renewed? 

559.4 When must a tribe submit a copy of 

a facility license to the Chairman? 

559.5 What must a tribe submit to the 

Chairman with the copy of each facility 

license that has been issued? 

559.6 Does a tribe need to notify the 

Chairman if a facility license is 

terminated or not renewed or if a gaming 

place, facility, or location closes? 

559.7 May the Chairman request Indian 

lands or environmental and public 

health and safety documentation 

regarding any gaming place, facility, or 

location where gaming will occur? 

559.8 May a tribe submit documents 

required by this part electronically? 

Authority: 25 U.S.C. 2701, 2702(3), 

2703(4), 2705, 2706, 2710 and 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 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 

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 

Chairman that it is considering issuing a 

new facility license? 

(a) A tribe shall submit to the 

Chairman 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. The notice shall contain the 

following: 

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59050 Federal Register / Vol. 72, No. 201 / Thursday, October 18, 2007 / Proposed Rules 

(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; 

(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. 

(b) A tribe does not need to submit to 

the Chairman a notice that a facility 

license is under consideration for 

issuance for occasional charitable events 

lasting not more than a week. 

§ 559.3 How often must a facility license 

be renewed? 

At least once every three years, a tribe 

shall issue a separate facility license to 

each existing place, facility or location 

on Indian lands where a tribe elects to 

allow gaming. 

§ 559.4 When must a tribe submit a copy 

of a facility license to the Chairman? 

A tribe must submit to the Chairman 

a copy of each issued facility license 

within 30 days of issuance. 

§ 559.5 What must a tribe submit to the 

Chairman with the copy of each facility 

license that has been issued? 

(a) A tribe shall submit to the 

Chairman with each facility license an 

attestation certifying that by issuing the 

facility license: 

(1) The tribe has identified the 

environmental and public health and 

safety laws applicable to its gaming 

operation; 

(2) The tribe is in compliance with 

those laws; and 

(3) The tribe has ensured and is 

ensuring 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. 

(b) A document listing all laws, 

resolutions, codes, policies or 

procedures identified by the tribe as 

applicable to its gaming operations, 

other than Federal laws, in the 

following areas: 

(1) Emergency preparedness, 

including but not limited to fire 

suppression, law enforcement, and 

security; 

(2) Food and potable water; 

(3) Construction and maintenance; 

(4) Hazardous materials; 

(5) Sanitation (both solid waste and 

wastewater); and 

(6) Other environmental or public 

health and safety standards adopted by 

the tribe in light of climate, geography, 

and other local conditions and 

applicable to its gaming facilities, places 

or locations. 

(c) After the first submission of a 

document under paragraph (b) of this 

section, upon reissuing a license to an 

existing gaming place, facility, or 

location, and in lieu of complying with 

paragraph (b) of this section, a tribe may 

certify to the Chairman that it has not 

substantially modified its laws 

protecting the environment and public 

health and safety. 

§ 559.6 Does a tribe need to notify the 

Chairman if a facility license is terminated 

or not renewed or if a gaming place, facility, 

or location closes? 

A tribe must notify the Chairman 

within 30 days if a facility license is 

terminated or not renewed or if a 

gaming place, facility, or location closes 

or reopens. 

§ 559.7 May the Chairman request 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 Indian lands or 

environmental and public health and 

safety documentation that the Chairman 

may in his or her discretion request as 

needed. 

§ 559.8 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. 

PART 573—ENFORCEMENT 

7. The authority citation for part 573 

continues to read as follows: 

Authority: 25 U.S.C. 2705(a)(1), 2706, 

2713, 2715. 

8. Amend § 573.6 by revising 

paragraph (a)(4) to read as follows: 

§ 573.6 Order of temporary closure. 

(a) * * * 

* * * * * 

(4) A gaming operation operates for 

business without a license from a tribe, 

in violation of part 522 or part 559 of 

this chapter. 

* * * * * 

Dated: October 11, 2007. 

Philip N. Hogen, 

Chairman. 

Cloyce V. Choney, 

Commissioner. 

Norman H. DesRosiers, 

Commissioner. 

[FR Doc. E7–20541 Filed 10–17–07; 8:45 am] 

BILLING CODE 7565–01–P 

PENSION BENEFIT GUARANTY 

CORPORATION 

29 CFR Part 4003 

RIN 1212–AB15 

Rules for Administrative Review of 

Agency Decisions 

AGENCY: Pension Benefit Guaranty 

Corporation. 

ACTION: Proposed rule. 

SUMMARY: Pension Benefit Guaranty 

Corporation (PBGC) proposes amending 

its regulation on Administrative Review 

of Agency Decisions (29 CFR part 4003) 

to clarify that the agency’s Appeals 

Board may refer certain categories of 

appeals to other PBGC departments for 

a written response and to remove 

determinations under section 4022A of 

the Employee Retirement Income 

Security Act of 1974 (ERISA) from the 

scope of part 4003. The proposed 

amendments also include minor 

clarifying and technical changes to the 

rules for administrative review of 

agency decisions. 

DATES: Comments must be submitted on 

or before December 17, 2007. 

ADDRESSES: Comments, identified by 

Regulatory Information Number (RIN) 

1212–AB15, may be submitted by any of 

the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the Web 

site instructions for submitting 

comments. 

• E-mail: reg.comments@pbgc.gov. 

• Fax: 202–326–4224. 

• Mail or Hand Delivery: Legislative 

and Regulatory Department, Pension 

Benefit Guaranty Corporation, 1200 K 

Street, NW., Washington, DC 20005–

4026. 

All submissions must include the 

Regulatory Information Number for this 

rulemaking (1212–AB15). Comments 

received, including personal 

information provided, will be posted to 

http://www.pbgc.gov. Copies of 

comments may also be obtained by 

writing to Disclosure Division, Office of 

the General Counsel, Pension Benefit 

Guaranty Corporation, 1200 K Street, 

NW., Washington, DC 20005–4026, or 

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