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Proposed Rule

Gaming on Trust Lands Acquired After October 17, 1988

Document Details

Information about this document as published in the Federal Register.

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This document has been published in the Federal Register. Use the PDF linked in the document sidebar for the official electronic format.

Start Preamble

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Proposed rule.

SUMMARY:

This proposed rule establishes procedures that an Indian tribe must follow in seeking a Secretarial determination that a gaming establishment would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community. The law requires Indian tribes to seek this determination if the gaming establishment will be located on land acquired in trust after October 17, 1988, unless the land is covered under another statutory exemption.

DATES:

Comments must be received on or before November 13, 2000.

ADDRESSES:

If you wish to comment, you may submit your comments by any one of several methods. See SUPPLEMENTARY INFORMATION section.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

George Skibine, Director, Office of Indian Gaming Management, Bureau of Indian Affairs, 1849 C Street NW, MS-2070 MIB, Washington, DC 20240; by telephone at (202) 219-4066; or by telefax at (202) 273-3153.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

General Comments

You may mail comments to the Office of Indian Gaming Management, Bureau of Indian Affairs, 1849 C Street, NW, MS-2070 MIB, Washington, DC 20240.

Electronic Access and Filing

You may also comment via the Internet to [gamingcomments@BIA.GOV]. Please submit Internet comments as an ASCII file avoiding the use of special characters and any form of encryption. Please also include “Attn: 1076-AD93” and your name and return address in your Internet message. If you do not receive a confirmation from the system that we have received your Internet message, contact the Office of Indian Gaming Management directly at (202) 219-4066.

Finally, you may hand-deliver comments to the Office of Indian Gaming Management, Bureau of Indian Affairs, 1849 C Street NW, MS-2070 MIB, Washington, DC 20240.

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comments. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

Background

The Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2701-2721, was signed into law on October 17, 1988. Section 20 of IGRA, 25 U.S.C. 2719, contains specific provisions for lands that the Secretary of the Interior acquired in trust for an Indian tribe after October 17, 1988. The section says that Indian tribes cannot conduct class II and class III gaming on these lands acquired in trust, unless one of several exceptions applies. If none of the exceptions in section 20 applies, section 20(b)(1)(A) of IGRA provides that gaming can still occur on the lands if:

(1) The Secretary consults with the Indian tribe and appropriate State and local officials, including officials of other nearby tribes;

(2) After consultation, the Secretary determines that a gaming establishment on newly acquired (trust) lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community; and

(3) The Governor of the State in which the gaming activity is to be conducted concurs in the Secretary's determination.

This proposed rule establishes a process for submitting and considering applications from Indian tribes seeking a Secretarial determination under section 20(b)(1)(A) of IGRA. The Bureau of Indian Affairs (BIA) issued a revised checklist for Secretarial determinations under this section on February 21, 1997. The proposed rule:

(1) Adopts the standards in the revised checklist, in modified form.

(2) Contains a process for BIA Central Office review of a tribal application for a Secretarial determination.

(3) Clarifies what consultation process the Department must follow when making a determination, and who must be consulted.

Since IGRA was enacted, only two tribes have successfully qualified to operate a gaming establishment on trust land under the exception to the gaming prohibition in section 20(b)(1)(A) of IGRA.

The proposed rule does not cover determinations of whether gaming on a specific parcel of land is exempt from the section 20 prohibition on gaming on after-acquired lands under any of the other exceptions contained in section 20 of IGRA. Tribal requests for such determinations will continue to be processed by BIA on a case-by-case basis.

Clarity of This Regulation

Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following:

(1) Are the requirements in the rule clearly stated?

(2) Does the rule contain technical language or jargon that interferes with its clarity?

(3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity?

(4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (A “section” appears in bold type and is preceded by the symbol “§ ” and a numbered Start Printed Page 55472heading; for example, § 292.4 What are the exceptions to the prohibition on gaming on trust lands acquired after October 17, 1988)

(5) Is the description of the rule in the SUPPLEMENTARY INFORMATION section of the preamble helpful in understanding the proposed rule? What else could we do to make the rule easier to understand?

Regulatory Planning and Review (E.O. 12866)

In accordance with the criteria in Executive Order 12866, this rule is not a significant regulatory action and is not subject to review by the Office of Management and Budget (OMB).

This rule will not have an economic effect of $100 million or adversely affect an economic sector, productivity, jobs, the environment, public health or safety, or State, local or tribal governments or communities. The annual number of requests for two-part Secretarial determinations under section 20 (b)(1)(A) of IGRA has been small. Since IGRA was enacted, only two tribes have successfully qualified to operate a gaming establishment on trust land under the exception to the gaming prohibition in section 20 (b)(1)(A) of IGRA. This rule will not create serious inconsistencies or otherwise interfere with an action taken or planned by another Federal agency. The Department of the Interior (DOI), BIA is the only governmental agency that makes the determination whether to take land into trust for Indian tribes.

This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. This rule sets out the procedures for the submission of an application from an Indian tribe seeking a Secretarial determination that a gaming establishment on land acquired in trust after October 17, 1988, and not coming under one of the other statutory exemptions to the prohibition on gaming contained in section 20 of IGRA, would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community.

This rule will not raise novel legal or policy issues. This rule is of an administrative, technical and procedural nature.

Regulatory Flexibility Act

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

Small Business Regulatory Enforcement Fairness Act (SBREFA)

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule does not have an annual effect on the economy of $100 million or more because it is expected that the number of requests will be small. 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 significant adverse effects on competition, employment, investment, productivity, innovation, or the ability to U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Act of 1995

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.):

The rule will not significantly or uniquely affect small governments, or the private sector. A Small Government Agency Plan is not required. Additional expenses may be incurred by the requesting tribe to provide information to the Secretary. See OMB 83-I, 15a.

This rule will not produce a Federal mandate of $100 million or greater in any year. The overall effect of this rule will be negligible to the State, local or tribal government or the private sector.

Takings (E.O. 12630)

In accordance with Executive Order 12630 this rule does not have significant “takings” implications. A takings implication assessment is not required because actions under this rule do not constitute a taking.

Federalism (E.O. 13132)

In accordance with Executive Order 13132 this proposed rule does not have significant Federalism effects to warrant the preparation of a Federalism Assessment. However, this rule should not affect the relationship between State and Federal governments because actions in this rule apply only to a relatively small amount of land.

Civil Justice Reform (E.O. 12988)

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

Paperwork Reduction Act of 1995

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the Department has submitted an information collection and a copy of the proposed rule to OMB for review. The collection of information is unique for each tribe even though each submission addresses the requirements found in §§ 292.8, 292.9, 292.10, 292.11, 292.13, 292.14, 292.17 and 292.18.

All information is collected in the tribe's application. Respondents submit information in order to obtain a benefit. Each response is estimated to take 1,000 hours to review instructions, search existing data sources, gather and maintain necessary data, and prepare in format for submission. We anticipate that two responses will be submitted annually for an annual burden of 2,000 hours.

Submit comments on the proposed information collection to the Attention: Desk Officer for the Department of the Interior, Office of Information and Regulatory Affairs, OMB, Room 10202, New Executive Office Building, Washington, DC 20503. You should also send comments to the BIA official as found in the ADDRESSES section. The BIA solicits comments in order to:

(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the BIA, including whether the information will have practical utility;

(2) Evaluating the BIA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

(3) Enhancing the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the collection of information on those who are to respond.

OMB is required to make a decision between 30 and 60 days after publication of this document in the Federal Register. Therefore, your comment to OMB has the best chance of being considered if OMB receives it within 30 days of publication. This does not affect the deadline for the public to comment to BIA on the proposed rule.

National Environmental Policy Act of 1969 (NEPA) Statement

This proposed rule does not constitute a major Federal action significantly affecting the quality of the human environment and no detailed statement is required pursuant to NEPA because this rule is of an administrative, technical and procedural nature. Start Printed Page 55473

Government-to-Government Relationship With Tribes

In accordance with Executive Order 13084, issued on May 14, 1998, and 512 DM 2, we have evaluated the potential effects upon federally recognized Indian tribes and have determined that this proposed rule does not significantly or uniquely affect the communities of Indian tribal governments. No action is taken under this rule unless a tribe requests a determination that a gaming establishment on existing or proposed trust land is in the best interest of the tribe and its members and not detrimental to the surrounding community.

Drafting Information: The primary author of this document is George Skibine, Director, Office of Indian Gaming Management, Bureau of Indian Affairs, Department of the Interior.

Start List of Subjects

List of Subjects in 25 CFR Part 292

End List of Subjects

For the reasons given in the preamble, part 292 is proposed to be added to Chapter I of Title 25 of the Code of Federal Regulations as follows:

Start Part

PART 292—GAMING ON TRUST LANDS ACQUIRED AFTER OCTOBER 17, 1988

292.1
What is the purpose of this part?
292.2
How are key terms defined in this part?
292.3
When can a tribe conduct gaming activities on trust lands acquired after October 17, 1988?
292.4
What criteria must trust land meet for gaming to be allowed?
292.5
Can a tribe conduct gaming activities on lands acquired in trust after October 17, 1988 if the land does not qualify under one of the exceptions?
292.6
Where must a tribe file an application for a Secretarial determination?
292.7
May a tribe request a Secretarial determination for lands not yet held in trust?
292.8
What must an application for a Secretarial determination contain?
292.9
What information must an application contain on the benefits of a proposed gaming activity?
292.10
What information must an application contain on the effects of a proposed gaming activity?
292.11
What additional documents must an application contain?
292.12
What must the Regional Director do upon receiving the application?
292.13
How will the Regional Director conduct the consultation process?
292.14
What criteria must the consultation letter meet?
292.15
What must the Regional Director do at the expiration of the comment period?
292.16
What must the ADO do upon receiving the Regional Director's recommendation?
292.17
If the ADO finds deficiencies, what must the Regional Director and the applicant tribe do?
292.18
What must the ADO do after receiving an adequate recommendation?
292.19
How does the ADO request the Governor's concurrence?
292.20
Do information collections under this part have Office of Management and Budget approval?
Start Authority

Authority: 5 U.S.C. 301, 25 U.S.C. 2, 9, and 2719.

End Authority
What is the purpose of this part?

This part contains procedures that the Department of the Interior will use to determine whether class II or class III gaming can occur on land acquired in trust for a tribe after October 17, 1988.

How are key terms defined in this part?

All terms have the same meaning as set forth in the definitional section of the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2703(1)-(10). In addition, the following terms have the meanings given in this section.

Appropriate Departmental Official (ADO) means the Department of Interior official with delegated authority to make a two-part Secretarial determination that a gaming establishment would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community.

Appropriate State and Local Officials means the Governor of the State, and appropriate officials of units of local government within 10 miles of the site of the proposed gaming establishment.

BIA means Bureau of Indian Affairs.

Contiguous means land(s) sharing a common boundary, touching, next to or adjoining with nothing intervening. However, parcels of land are contiguous even if separated by roads, railroads, or other rights of way, or streams.

Day means calendar day.

Former reservation means lands that are within the jurisdictional area of an Oklahoma Indian tribe, and that are within the boundaries of the last reservation for that tribe established by treaty, Executive Orders, or Secretarial Orders.

IGRA means the Indian Gaming Regulatory Act of 1988, 25 U.S.C. 2701-2721.

Nearby Indian tribe means an Indian tribe with Indian lands, as defined in 25 U.S.C. 2703(4) of IGRA, located within a 50 mile radius of the location of the proposed gaming establishment.

Regional Director means the official in charge of the BIA Regional Office responsible for all BIA activities within the geographical area where the proposed gaming establishment is to be located.

Reservation means that area of land which has been set aside or which has been acknowledged as having been set aside by the United States for the use of the tribe, the exterior boundaries of which are more particularly defined in the final treaty, agreement, Executive order, Federal statute, Secretarial Order, or judicial determination.

Secretarial determination means a two-part determination that a gaming establishment on newly acquired lands:

(1) Would be in the best interest of the Indian tribe and its members; and

(2) Would not be detrimental to the surrounding community.

When can a tribe conduct gaming activities on trust lands acquired after October 17, 1988?

In accordance with section 20 of the Indian Gaming Regulatory Act (25 U.S.C. 2719), a tribe can conduct class II or class III gaming activities on trust land acquired by the Secretary of the Interior in trust for the benefit of an Indian tribe after October 17, 1988, only if:

(a) The land meets the conditions in § 292.4; or

(b) The Secretary makes a determination under § 292.5 and the Governor of the State concurs in that determination.

What criteria must trust land meet for gaming to be allowed?

(a) For class II or class III gaming to be allowed on trust land, the land must meet one of the criteria shown in the following table:

The land must * * *as required by * * *
(1) Be located within or contiguous to the boundaries of the tribe's reservation as it existed on October 17, 198825 U.S.C. 2719(a)(1).
(2) Be taken into trust as part of the settlement of a land claim25 U.S.C. 2719(b)(1)(B)(i).
(3) Be taken into trust as part of the tribe's initial reservation that the Secretary acknowledged under the Federal acknowledgment process25 U.S.C. 2719(b)(1)(B)(ii).
Start Printed Page 55474
(4) Be taken into trust as part of the restoration of lands for a tribe that is restored to Federal recognition25 U.S.C. 2719(b)(1)(B)(iii).
(5) Be excepted from the requirements of this section because the Secretary makes a determination under § 292.525 U.S.C. 2719(b)(1)(A).
(6) Meet one of the criteria in paragraph (b) of this section, if the tribe had no reservation on October 17, 198825 U.S.C. 2719(a)(2).
End Part

(b) If a tribe had no reservation on October 17, 1988, the land must meet one of the criteria in the following table:

If the land is located in * * *it must be * * *or * * *as required by * * *
(1) Oklahomawithin the boundaries of the tribe's former reservationcontiguous to other land held in trust or restricted status by the United States for the tribe in Oklahoma25 U.S.C. 2719(a)(2)(A)(i)(ii).
(2) A State other than Oklahomawithin the boundaries of the Tribe's last recognized reservation within the State where the tribe is presently located25 U.S.C. 2719(a)(2)(B).
Can a tribe conduct gaming activities on lands acquired in trust after October 17, 1988 if the land does not qualify under one of the exceptions?

A tribe can conduct gaming on lands acquired in trust after October 17, 1988, that do not meet the criteria in § 292.4 only after all of the following occur:

(a) The tribe asks the Secretary in writing to make a Secretarial determination on the acceptability of gaming activities at a particular site;

(b) The Secretary consults with the tribe and appropriate State and local officials, including officials of other nearby tribes;

(c) The Secretary makes a determination that a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members and would not be detrimental to the surrounding community; and

(d) The Governor of the State in which the gaming activity is to be conducted concurs in the Secretary's determination (25 U.S.C. 2719(b)(1)(A)).

Where must a tribe file an application for a Secretarial determination?

A tribe must file its application for a Secretarial determination with the Regional Director of the BIA Regional Office having jurisdiction over the land where the gaming establishment is to be located.

May a tribe request a Secretarial determination for lands not yet held in trust?

Yes. A tribe can apply for a two-part Secretarial determination under § 292.5 for land not yet held in trust. The tribe must file this application at the same time that it applies under 25 CFR part 151 to have the land taken into trust.

What must an application for a Secretarial determination contain?

An application requesting a Secretarial determination under § 292.5 must include the following information:

(a) The full name, address, and telephone number of the Indian tribe submitting the application;

(b) A physical description of the location of the land, including a legal description supported by a survey or other document;

(c) Proof of present ownership and title status of the land;

(d) Distance of the land from the Indian tribe's reservation or trust lands, if any;

(e) Information required by § 292.9 to assist the Secretary in determining whether the proposed gaming establishment will be in the best interest of the tribe and its members;

(f) Information required by § 292.10 to assist the Secretary in determining whether the proposed gaming establishment will not be detrimental to the surrounding community; and

(g) Copies of the documents required by § 292.11.

What information must an application contain on the benefits of a proposed gaming activity?

To satisfy the requirements of § 292.8(e), an application must contain:

(a) Projections of class II and/or class III income statements, balance sheets, fixed assets accounting, and cash flow statements for the gaming entity and the Indian tribe;

(b) Projected tribal employment, job training, and career development;

(c) Projected benefits to the Indian tribe from tourism;

(d) Projected benefits to the Indian tribe and its members from the proposed uses of the increased tribal income;

(e) Projected benefits to the relationship between the Indian tribe and the surrounding community.

(f) Possible adverse impacts on the Indian tribe and plans for dealing with those impacts;

(g) Any other information that may provide a basis for a Secretarial determination that the gaming establishment would be in the best interest of the Indian tribe and its members, including copies of any:

(1) Consulting agreements;

(2) Financial agreements; and

(3) Other agreements relative to the purchase, acquisition, construction, or financing of the proposed gaming facility, or the acquisition of the land where the facility will be located.

What information must an application contain on the effects of a proposed gaming activity?

To satisfy the requirements of § 292.8(f), an application must contain:

(a) Evidence of environmental impacts and plans for mitigating adverse impacts, including information that allows the Secretary to comply with the requirements of the National Environmental Policy Act (NEPA) (for example, an Environmental Assessment (EA) or an Environmental Impact Statement (EIS));

(b) Reasonably anticipated impacts on the social structure, infrastructure, services, housing, community character, and land use patterns of the surrounding community;

(c) Impacts on the economic development, income, and employment of the surrounding community;

(d) Costs of impacts to the surrounding community and sources of revenue to accommodate them; Start Printed Page 55475

(e) Proposed programs, if any, for compulsive gamblers and the sources of funding; and

(f) Any other information that may provide a basis for a Secretarial determination that the gaming would not be detrimental to the surrounding community.

What additional documents must an application contain?

To satisfy the requirements of § 292.8(g), an application must contain a copy of each of the following:

(a) The authorizing resolution from the tribe submitting the application;

(b) The tribe's gaming ordinance or resolution approved by the National Indian Gaming Commission in accordance with 25 U.S.C. 2710, if any;

(c) The tribe's organic documents, if any;

(d) The tribe's class III gaming compact with the State where the gaming establishment is to be located, if any; and

(e) Any existing or proposed management contract required to be approved by the National Indian Gaming Commission under 25 U.S.C. 2711 and 25 CFR Part 533.

What must the Regional Director do upon receiving an application?

Upon receiving an application for a Secretarial determination under § 292.5, the Regional Director must:

(a) Notify the tribe within 30 days that the application has been received, and whether any information required under § 292.8 is missing;

(b) Provide a copy of the application to the Office of Indian Gaming Management; and

(c) Consult with appropriate State and local officials, including officials of other nearby tribes.

How will the Regional Director conduct the consultation process?

The Regional Director must complete the consultation process at the Region Office level.

(a) The Regional Director will send a letter that meets the requirements in § 292.14 and that solicits comments within a 60-day period to each of the following:

(1) Appropriate State and local officials; and

(2) Officials of nearby tribes.

(b) On written request, the Regional Director may extend the 60-day comment period for an additional 30 days.

(c) After the close of the consultation period, the Regional Director must:

(1) Submit a copy of the consultation comments to the applicant tribe;

(2) Allow the tribe to address or resolve any issues raised in the responses to the consultation letters;

(3) The applicant tribe must submit written comments, if any, to the Regional Director within 60 days of receipt of the consultation comments; and

(4) On written request, the Regional Director may extend the 60-day comment period in paragraph (c)(3) of this section for an additional 30 days.

What criteria must the consultation letter meet?

The consultation letter required by § 292.13 (a) must meet the requirements in this section.

(a) The consultation letter must:

(1) Describe or show the location of the proposed gaming facility;

(2) Provide information on the proposed scope of gaming; and

(3) Include other information that may be relevant to a specific proposal, such as the size of the proposed facility, if known.

(b) The consultation letter must request recipients to submit comments on the following areas within 60 days of receiving the letter:

(1) Evidence of environmental impacts and plans for mitigating adverse impacts;

(2) Reasonably anticipated impact on the social structure, infrastructure, services, housing, community character, and land use patterns of the surrounding community;

(3) Impact on the economic development, income, and employment of the surrounding community;

(4) Costs of impacts to the surrounding community and sources of revenue to accommodate them;

(5) Proposed programs, if any, for compulsive gamblers and the sources of funding; and

(6) Any other information that may provide a basis for a Secretarial determination that the gaming is not detrimental to the surrounding community.

What must the Regional Director do at the expiration of the comment period?

Upon completion of the comment period under § 292.13(c), the Regional Director must either:

(a) Notify the applicant tribe in writing that the application package does not support a positive recommendation for a Secretarial determination under § 292.5 and advise the applicant tribe of the reasons for the decision; or

(b) Prepare a positive recommendation and proposed Findings of Fact addressing the Secretarial determination and forward them to the Appropriate Department Official (ADO), along with the complete application record that includes the following documents:

(1) Application received from the Indian tribe and any supporting documentation;

(2) Consultation comments, including unsolicited comments from third parties not required to be consulted under § 292.13;

(3) Documentation that indicates compliance with the requirements of the National Environmental Policy Act (NEPA), including a proposed Finding of No Significant Impact (FONSI), if appropriate; and

(4) Any other documentation relied upon by the Regional Director in preparing the recommendation.

What must the ADO do upon receiving the Regional Director's recommendation?

(a) Upon receiving the Regional Director's positive recommendation and the complete application record, the ADO will conduct a preliminary technical review to determine whether the record supports the Regional Director's positive recommendation and proposed Findings of Fact. The preliminary technical review:

(1) Must include consideration of all documentation provided in the application package; and

(2) May not consider comments, whether oral or written, submitted by any party after the close of the comment period in § 292.13.

(b) After completing the preliminary technical review, the ADO will:

(1) Notify the Regional Director and the applicant tribe of any deficiencies in the recommendation, proposed Findings of Fact, or application record; and

(2) Request the Regional Director to cure the identified deficiencies and to allow the tribe to withdraw the application or to submit additional information and clarification, if necessary.

If the ADO finds deficiencies, what must the Regional Director and the applicant tribe do?

If the ADO notifies the tribe and Regional Director of deficiencies under § 292.16(b), the tribe and Regional Director must follow the procedures in this section.

(a) The Regional Director must respond to the preliminary technical review notification by curing the identified deficiencies, and, if appropriate, allowing the tribe to submit additional information and clarification, if necessary. Start Printed Page 55476

(b) The applicant tribe may do any of the following:

(1) Withdraw the application;

(2) Respond to the preliminary technical review notification by submitting to the Regional Director additional documentation to cure the identified deficiencies; or

(3) Request, in writing, that the Regional Director inform the ADO to proceed with the consideration of the application record using the documentation already submitted.

(c) After the Regional Director has modified the recommendation to cure the identified deficiencies, and obtained any additional documentation from the applicant tribe, the Regional Director must resubmit an amended recommendation with a complete application package to the ADO, unless the tribe has withdrawn its application, or requested that consideration of the application proceed on the existing record.

What must the ADO do after receiving an adequate recommendation?

(a) Upon receiving an adequate recommendation and application package from the Regional Director, the ADO must:

(1) Notify the applicant tribe, officials of nearby tribes, and appropriate state and local officials, of the status of the application and inform them that they may, within 30 days of receipt of this notification, request that the ADO hold a hearing for the purpose of discussing the merits of the application. The proceedings of this hearing will be on such terms as the ADO determines are appropriate. The hearing record will be available to any participating party and become part of the record considered by the ADO in reaching a final determination in writing that the record does not support a determination under § 292.5.

(2) The ADO will transmit the hearing record to the applicant tribe and notify the applicant tribe that it will have 60 days from date of receipt to address any information submitted by third parties at the hearing.

(b) Following the expiration of the 60-day response period, the ADO must prepare final Findings of Fact on the Secretarial determination and must either:

(1) Notify the applicant tribe in writing that the record does not support a determination under § 292.5; or

(2) Notify the applicant tribe in writing that the ADO has made a favorable Secretarial determination under § 292.5 and has requested the Governor of the State to concur in that determination.

(c) In preparing the final Findings of Fact, the ADO will not consider comments on the application, whether oral or written, submitted by any party after the conclusion of the formal hearing, except comments from the applicant tribe pursuant to paragraph (a)(2) of this section.

How does the ADO request the Governor's concurrence?

(a) If the ADO makes a favorable Secretarial determination under § 292.18(b), the ADO will send to the Governor of the State:

(1) A written notification of the Secretarial determination and Findings of Fact;

(2) A copy of the entire application record; and

(3) A request for the Governor's concurrence in the Secretarial determination.

(b) If the Governor does not affirmatively concur with the ADO's Secretarial determination:

(1) The land may not be used for gaming;

(2) If the land is already held in trust, the applicant tribe may use it for other purposes; and

(3) If the land is proposed for trust status, it may be taken into trust for other uses, but may not be used for gaming.

(c) If the Governor does not respond to the ADO's request for concurrence in the Secretarial determination within one year of the date of the request, the ADO may, at the request of the applicant tribe or the Governor, grant an extension of up to 180 days.

(d) If the Governor does not respond during the extension period, the Findings of Fact will be deemed stale, and the applicant tribe will be notified in writing that the Secretarial determination is no longer valid.

Do information collections under this part have Office of Management and Budget approval?

We have submitted a request for approval of the information collection requirements in §§ 292.8, 292.9, 292.10, 292.11, 292.13, 292.14, 292.17 and 292.18 to the Office of Management and Budget (OMB). We may not collect or sponsor, and a person is not required to respond to, a collection of information until we have:

(a) Obtained OMB approval; and

(b) Revised this section (§ 292.20) to reflect that approval by publishing a final rule in the Federal Register.

Start Signature

Dated: August 25, 2000.

Kevin Gover,

Assistant Secretary—Indian Affairs.

End Signature End Supplemental Information

[FR Doc. 00-23456 Filed 9-13-00; 8:45 am]

BILLING CODE 4310-02-P