2018_3142-0012 Supporting Statement

SUPPORTING STATEMENT
FOR RECORDKEEPING AND REPORTING REQUIREMENTS
FOR 25 CFR PART 559
A.

Justification
1.

Explain the circumstances that make the collection of information necessary.
Identify any legal or administrative requirements that necessitate the
collection. Attach a copy of the appropriate section of each statute and
regulation mandating or authorizing the collection of information.

The Indian Gaming Regulatory Act (IGRA or the Act), Public Law 100–497, 25 U.S.C.
2701, et seq., was signed into law on October 17, 1988. The Act established the National Indian
Gaming Commission (NIGC or Commission) and set out a comprehensive framework for the
regulation of gaming on Indian lands. The Act sets standards for the regulation of Indian gaming,
including the requirement that Indian tribes that conduct class II and/or class III gaming issue “a
separate license … 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), (d)(1), and ensure 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). The Commission is authorized to “promulgate such regulations and guidelines as
it deems appropriate to implement” IGRA. 25 U.S.C. 2706(b)(10). The Commission has
promulgated part 559 of title 25, Code of Federal Regulations, to implement these requirements.
25 CFR § 559.2
Section 559.2 of title 25, Code of Federal Regulations, requires a tribe or a tribal gaming
regulatory authority (TGRA) to submit a notice to the Commission that a facility license is under
consideration for issuance, at least 120 days before opening any new facility on Indian lands
where class II and/or class III gaming will occur. The tribe or TGRA must include the following
information in the notice: (i) the name and address of the property; (ii) a legal description of the

property; (iii) the tract number for the property as assigned by the Bureau of Indian Affairs
(BIA), Land Title and Records Offices (LTRO), if any; (iv) if not maintained by the BIA LTRO,
a copy of the trust or other deed(s) to the property or an explanation as to why such
documentation does not exist; and (v) if not maintained by the BIA LTRO, documentation of the
property’s ownership.
25 CFR §§ 559.3 – 559.5
Section 559.3 requires a tribe or TGRA to submit a copy of each newly issued or
renewed facility license within 30 days of issuance. With each copy of a newly issued or
renewed facility license, § 559.4 requires a tribe or TGRA to submit an attestation certifying that
by issuing the facility license, the tribe has determined that the construction, maintenance, and
operation of that gaming facility is conducted in a manner that adequately protects the
environment and the public health and safety (EPHS), meaning that the 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. Section 559.5 requires
a tribe or TGRA to submit a notice to the Commission within 30 days if a facility license is
terminated or expires, or if a gaming operation closes or reopens.
25 CFR § 559.6
Section 559.6 requires a tribe or TGRA to maintain and provide applicable Indian lands
or EPHS documentation, if requested by the Commission.
2.

Indicate how, by whom, and for what purpose the information is to be used.
Except for a new collection, indicate the actual use the agency has made of
the information received from the current collection.

To carry out its statutory mandates, the Commission must have up-to-date information on
the statuses of all lands where tribal gaming is proposed or is operating in order to assess
whether the NIGC has jurisdiction over a particular parcel and gaming facility. A September
2005 report by the Office of Inspector General, U.S. Department of the Interior, recommended
that the Commission establish a process by which tribes whose lands have been taken into trust
since 1988 certify the statuses of their trust lands, and that the NIGC establish and maintain a
database containing Indian lands eligibility information and/or determinations for all Indian
gaming operations. The Commission established an Indian lands database and populates the
database with information submitted by the tribes on new gaming facilities. The Commission
uses the notice (that a facility license is under consideration for issuance) and the Indian lands
information to ensure that its database records are complete as to the statuses of lands where
tribal gaming is proposed or is occurring.
In addition, tribal submissions of copies of each newly issued or renewed facility license,
or information regarding facility closings or license expirations, allow the Commission to
maintain an accurate record of the Indian gaming facilities that are currently operating within
Indian lands in the United States. This information collection continues to be utilized: (i) for
internal reporting and recordkeeping purposes; (ii) to assess the NIGC’s jurisdiction; and (iii) to
respond to inquiries from other government agencies and from Congress regarding where Indian
gaming is proposed or occurring.
The Commission uses an EPHS certification submission to rely on a tribe’s assertion that
it is in compliance with applicable EPHS laws. However, NIGC regulations also provide the
Chairman with the discretion to request EPHS and Indian lands documentation, if necessary – a
discretion that is not utilized without an identified substantial concern.

3.

Describe whether, and to what extent, the collection of information involves
the use of automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses, and the basis for the decision for
adopting this means of collection. Also describe any consideration of using
information technology to reduce burden.

Under NIGC regulations, tribes and/or TGRAs can submit and/or maintain information
via compatible automated, electronic, and/or mechanical means.
4.

Describe efforts to identify duplication. Show specifically why any similar
information already available cannot be used or modified for use for the
purposes described in Item 2 above.

The BIA LTROs maintain deeds and track ownership of lands held in trust for the tribes
by the United States, and the Commission utilizes the BIA LTROs to obtain such information
whenever possible. However, the BIA LTROs track their trust lands by legal description and
tract number. Without information from a tribe regarding the legal site description where gaming
is to be conducted, along with the tract number assigned by the BIA LTROs, the NIGC cannot
reliably or efficiently determine which deeds to request from the BIA LTROs, and the BIA
LTROs often cannot match a gaming operation’s mailing address with a legal site description. In
addition, as a result of agreements between the tribes and the BIA LTROs, tribes often operate
their own real estate offices and maintain their own trust deeds and ownership documentation.
Under those circumstances, the proper entities from whom to request such information is the
tribe itself. If no deed or other trust documents exist, the tribe is often in the best position to
explain why that is the case.
With regard to the remainder of the information collection, the required information is
unique to each Indian tribe and/or gaming operation. No similar information pertaining to
gaming on Indian lands is collected by the Commission or by other federal agencies.

5.

If the collection of information impacts small businesses or other small
entities (Item 5 of OMB Form 83-I), describe any methods used to minimize
burden.

Not applicable.
6.

Describe the consequence to Federal program or policy activities if the
collection is not conducted or is conducted less frequently, as well as any
technical or legal obstacles to reducing burden.

Without this information collection, IGRA’s mandate (that each facility be separately
licensed and that a tribe determine that the construction, maintenance, and operation of a gaming
facility is conducted in a manner that adequately protects the environment and the public health
and safety) would be violated. In addition, the Commission would be unable to efficiently
identify the property where gaming is being proposed or is occurring and thereafter determine its
jurisdiction over the gaming operation. This would result in the Commission being unable to
accurately track Indian gaming operations currently operating on Indian lands, and being
hindered or delayed in its ability to carry out core agency functions.
7.

Explain any special circumstances that would cause an information collection
to be conducted in a manner:
• requiring respondents to report information to the agency more often
than quarterly;
• requiring respondents to prepare a written response to a collection of
information in fewer than 30 days after receipt of it;
• requiring respondents to submit more than an original and two copies of
any document;
• requiring respondents to retain records, other than health, medical,
government contract, grant-in-aid, or tax records, for more than three
years;
• in connection with a statistical survey, that is not designed to produce
valid and reliable results that can be generalized to the universe of study;
• requiring the use of a statistical data classification that has not been
reviewed and approved by OMB;
• that includes a pledge of confidentiality that is not supported by authority
established in statute or regulation, that is not supported by disclosure
and data security policies that are consistent with the pledge, or which
unnecessarily impedes sharing of data with other agencies for compatible
confidential use; or

•

requiring respondents to submit proprietary trade secrets, or other
confidential information unless the agency can demonstrate that it has
instituted procedures to protect the information's confidentiality to the
extent permitted by law.

Not applicable.
8.

If applicable, provide a copy and identify the date and page number of
publication in the Federal Register of the agency's notice, required by 5 CFR
1320.8(d), soliciting comments on the information collection prior to
submission to OMB. Summarize public comments received in response to
that notice and describe actions taken by the agency in response to these
comments. Specifically address comments received on cost and hour burden.
Describe efforts to consult with persons outside the agency to obtain their
views on the availability of data, frequency of collection, the clarity of
instructions and recordkeeping, disclosure, or reporting format (if any), and
on the data elements to be recorded, disclosed, or reported.
Consultation with representatives of those from whom information is to be
obtained or those who must compile records should occur at least once every
3 years - even if the collection of information activity is the same as in prior
periods. There may be circumstances that may preclude consultation in a
specific situation. These circumstances should be explained.

On June 12, 2018, a 60-day notice containing the information collection requirements
was published in the Federal Register allowing the public an opportunity to comment on the
requirements. See 80 FR 27344 (June 12, 2018). The public comment period closed on August
13, 2018. No public comments were received.
In addition, the Commission surveyed tribal gaming operators and/or TGRAs regarding
the submission and recordkeeping requirements contained in its regulations. The Commission
asked the tribal gaming operators and/or TGRAs to provide annual hourly estimates required to
perform each of the activities, as well as any cost estimates. The Commission has adjusted its
previous estimates accordingly.
9.

Explain any decision to provide any payment or gift to respondents, other
than remuneration of contractors or grantees.

Not applicable. The Commission does not provide any payment or gifts to respondents.
10.

Describe any assurance of confidentiality provided to respondents and the
basis for the assurance in statute, regulation, or agency policy.

The Act mandates the Commission to preserve any and all information received pursuant
to IGRA as confidential, and removes from the Commission any discretion that it would
otherwise have to disclose any information that falls within FOIA exemptions 4 and 7. 25 U.S.C.
2716(a). The Commission may disclose such information only to other law enforcement agencies
for law enforcement purposes. 25 U.S.C. 2716(b).
11.

Provide additional justification for any questions of a sensitive nature, such
as sexual behavior and attitudes, religious beliefs, and other matters that are
commonly considered private. This justification should include the reasons
why the agency considers the questions necessary, the specific uses to be
made of the information, the explanation to be given to persons from whom
the information is requested, and any steps to be taken to obtain their
consent.

Not applicable. No sensitive questions are asked.
12.

Provide estimates of the hour burden of the collection of information. The
statement should:
• Indicate the number of respondents, frequency of response, annual hour
burden, and an explanation of how the burden was estimated. Unless
directed to do so, agencies should not conduct special surveys to obtain
information on which to base hour burden estimates. Consultation with a
sample (fewer than 10) of potential respondents is desirable. If the hour
burden on respondents is expected to vary widely because of differences
in activity, size, or complexity, show the range of estimated hour burden,
and explain the reasons for the variance. Generally, estimates should not
include burden hours for customary and usual business practices.
• If this request for approval covers more than one form, provide separate
hour burden estimates for each form and aggregate the hour burdens in
Item 13 of OMB Form 83-I.
• Provide estimates of annualized cost to respondents for the hour burdens
for collections of information, identifying and using appropriate wage
rate categories. The cost of contracting out or paying outside parties for
information collection activities should not be included here. Instead, this
cost should be included in Item 13.

The Commission tracks the number of proposed facility license issuance notices, copies
of newly issued or renewed licenses, EPHS attestations, and license expirations or closure
notices that it receives per calendar year. To arrive at the estimates below, the Commission
averaged the number of annual submissions that it received from calendar years 2015 – 2017 in
order to determine the total estimated number of annual respondents and total estimated annual
responses.
As mentioned in Item 8 above, the Commission consulted with tribal gaming operators
and/or TGRAs to gather the burden estimates for these information collection activities. Because
the estimates provided by the tribal gaming operators and/or TGRAs varied (sometimes
dramatically), the Commission averaged the estimates received only after dropping the highest
and lowest estimates for each aspect of the information collection. The unspecified total costs
were provided by the tribes.
ESTIMATED ANNUAL BURDEN TOTALS
NUMBER OF
ANNUAL
RESPONDENTS

FREQUENCY OF
RESPONSES PER
YEAR

TOTAL
ANNUAL
RESPONSES

AVERAGE
HOURS PER
RESPONSE

559.2
559.3
559.4
559.5
559.6

31
160
104
5
244

Varies
Varies
Varies
Varies
Varies

66
328
204
5
244

22
1.5
7
0.5
4

TOTAL

544

CFR CITE/
COLLECTION

13.

847

TOTAL
HOURS

TOTAL
ANNUAL
COST

1,452
492
1,428
3
976

$0
$0
$0
$0
$0

4,351

$0

Provide an estimate for the total annual cost burden to respondents or
recordkeepers resulting from the collection of information. (Do not include
the cost of any hour burden shown in Items 12 and 14).
• The cost estimate should be split into two components: (a) a total capital
and start-up cost component (annualized over its expected useful life) and
(b) a total operation and maintenance and purchase of services
component. The estimates should take into account costs associated with
generating, maintaining, and disclosing or providing the information.
Include descriptions of methods used to estimate major cost factors

•

•

including system and technology acquisition, expected useful life of
capital equipment, the discount rate(s), and the time period over which
costs will be incurred. Capital and start-up costs include, among other
items, preparations for collecting information such as purchasing
computers and software; monitoring, sampling, drilling and testing
equipment; and record storage facilities.
If cost estimates are expected to vary widely, agencies should present
ranges of cost burdens and explain the reasons for the variance. The cost
of purchasing or contracting out information collections services should
be a part of this cost burden estimate. In developing cost burden
estimates, agencies may consult with a sample of respondents (fewer than
10), utilize the 60-day pre-OMB submission public comment process and
use 10/95 existing economic or regulatory impact analysis associated with
the rulemaking containing the information collection, as appropriate.
Generally, estimates should not include purchases of equipment or
services, or portions thereof, made: (1) prior to October 1, 1995, (2) to
achieve regulatory compliance with requirements not associated with the
information collection, (3) for reasons other than to provide information
or keep records for the government, or (4) as part of customary and usual
business or private practices.

All estimated costs and hour burdens are shown in Item 12.
14.

Provide estimates of annualized costs to the Federal government. Also,
provide a description of the method used to estimate cost, which should
include quantification of hours, operational expenses (such as equipment,
overhead, printing, and support staff), and any other expense that would not
have been incurred without this collection of information. Agencies may also
aggregate cost estimates from Items 12, 13, and 14 in a single table.

The Commission determined its cost and burden hour estimates, inclusive of operational
expenses, based on the workflows of the agency, and the functions specific to the receipt,
recordation, and analysis of the submissions. As a general matter, the cost rate was based upon
the hourly rate of personnel assigned to task. Support services are included in cost estimates.

ESTIMATED AGENCY ANNUAL BURDEN TOTALS

NUMBER OF
CFR CITE/
ANNUAL
COLLECTION RESPONDENTS

FREQUENCY
OF
RESPONSES
PER YEAR

TOTAL
ANNUAL
RESPONSES

559.2
559.3

31
160

Varies
Varies

66
328

5.0
0.5

330
164

$58
$38

$19,140
$6,232

559.4

104

Varies

204

0.5

102

$38

$3,876

559.5

5

Varies

5

0.5

3

$38

$114

TOTAL
15.

300

603

REVIEW
HOURS
PER
TOTAL
RESPONSE HOURS

HOURLY
RATE

TOTAL
AGENCY
COST

599

$29,362

Explain the reasons for any program changes or adjustments reported in
Items 13 or 14 of the OMB Form 83-I.

The Commission has made the following adjustments to its estimated burdens:
(a) the Commission has increased the number of estimated annual responses from 269 to 847.
The reason for this dramatic increase appears to be due to the fact that previous estimates that
were provided last renewal cycle were likely not accurate. The previous estimate was derived
from interviews of NIGC Regional Directors and it appears that they were only giving rough
estimates. Since the last renewal cycle, regions have been directed to track responses on
spreadsheets and estimates presented here are based on the numbers compiled in these
spreadsheets over the last three years and they have been verified as accurate;
(b) the significant increase in burden hours is largely due to the increase in the estimated annual
responses, as explained above; and,
(c) the Commission has decreased the estimated annual cost burden from $6,663 to $0. This
marks a total reversal of this estimate from the last renewal cycle at which time the Commission
increased this estimate from $0 to $6,663. At that time, the Commission justified the increase on
the basis of “tribal feedback, with many tribes specifying that their charges were commercial

shipping charges.” At this point, it appears that nearly all submissions are being made via
electronic mail and therefore these shipping costs are no longer applicable.
16.

For collections of information whose results will be published, outline plans
for tabulation and publication. Address any complex analytical techniques
that will be used. Provide the time schedule for the entire project, including
beginning and ending dates of the collection of information, completion of
report, publication dates, and other actions.

This is an ongoing information collection with no ending date and no plans for
publication.
17.

If seeking approval to not display the expiration date for OMB approval of
the information collection, explain the reasons that display would be
inappropriate.

Not applicable.
18.

Explain each exception to the certification statement identified in Item 19,
“Certification for Paperwork Reduction Act Submissions,” of OMB Form
83-I.

Not applicable. The Commission certifies compliance with 5 CFR § 1320.9.
B.

Collection of Information Employing Statistical Methods.
This section is not applicable. Statistical methods are not employed.