MOHEGAN TRIBE OF INDIANS OF CONNECTICUT REQUEST FOR ELIGIBILITY DETERMINATION AND CLEAN AIR ACT PROGRAM APPROVAL I. INTRODUCTION The 1990 Amendments to the Clean Air Act authorize the Environmental Protection Agency ( EPA) to treat Indian tribes in the same manner as states for the purpose of delegating federal programs and issuing grants ( 42 USC § 7601( d)( 2) and § 7602 ( r)). The EPA has promulgated regulations to provide for the implementation of these Amendments at 40 CFR Part 49. This application is submitted pursuant to those regulations and to specifically address the " Request by an Indian tribe for eligibility determination and Clean Air Act program approval." described at 40 CFR § 49 .7.

The Mohegan Tribe of Indians of Connecticut ( Mohegan Tribe or Tribe) is applying under the Clean Air Act for approval to administer a Tribal Implementation Plan ( TIP) for the control of Nitrogen Oxides ( NOx) emissions from certain stationary sources located within the external boundaries of the Mohegan Indian Reservation. The Mohegan Indian Reservation is located in an area that is currently classified as an area of " serious" non attainment for the 1 hour National Ambient Air Quality Standards ( NAAQS) for ozone. The Tribe has responded by enacting a " Mohegan Area Wide NOx Emission Limitation Regulation" ( NOx Regulation) to control, monitor, and manage applicable stationary sources of Nitrogen Oxide emissions owned and operated by the Mohegan Tribal Gaming Authority and located on the Reservation. l II. INFORMATION REQUIRED UNDER 40 CFR PART 49.7 1 . A STATEMENT THAT THE APPLICANT IS AN INDIAN TRIBE RECOGNIZED BY THE SECRETARY OF THE INTERIOR ( 40 CFR 49.7( 1))

On March 15, 1994 the Secretary of the Interior published a notice of final detennination that the Tribe was recognized by the United States as an Indian Tribe within the meaning of federal Law ( 59 FR 12140). 2 The Mohegan Tribe also appears on the list of federally recognized Tribes titled " Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs" published periodically by the Bureau of ' A copy of the Tribal Ordinance adopting the NOx Regulations is attached at Tab 1 . z A copy of the Federal Notice is attached at Tab 2. Additional background information regarding the Mohegan Tribe, its government, history and tribal programs and services can be found at the Tribe's official website : www. mohegan . nsn. us. Indian Affairs in the Federal Register . This list was last updated on 12/ 05/ 2003, 68 Fed. Reg. 68180.3 2. A DESCRIPTIVE STATEMENT DEMONSTRATING THAT THE APPLICANT IS CURRENTLY CARRYING OUT SUBSTANTIAL GOVERNMENTAL DUTIES AND POWERS OVER A DEFINED AREA ( 40 CFR 49.7( 2)) .

( i) A DESCRIPTION OF THE TRIBE'S FORM OF THE TRIBAL GOVERNMENT. ( 40 CFR 49.7( 2) ( i)).

The Mohegan Tribe has a constitutional form of government that consists of an elected Tribal Council, comprised of nine members and an elected Council of Elders, consisting of seven members ( Mohegan Constitution ( Constitution), Article IV " Governing Bodies", Section 1, p. 2 and Article VI " Elections", Sections 1 3, pp. 5 7). 4 In addition, the Tribal Council has established a separate entity, the Mohegan Tribal Gaming Authority (" MTGA"), to which it has delegated all of its " governmental and proprietary powers" over gaming activities. The MTGA is governed by a Management Board consisting of the nine members of the Tribal Council.

The Flow Chart attached to this Applications generally depicts the structure of the Mohegan Tribal government. At the top of the Chart is the Tribal Council that is responsible for most of the Tribe's day to day tribal governmental operations . The Tribal Council, under Constitution Article IX, Sections 1 and 2, exercises all legislative and executive duties not granted under the Constitution to the Council of Elders. The Tribal Council's powers include establishing all tribal departments, establishing a court system, enacting ordinances and resolutions governing tribal members activities, regulating all business and commercial activities on the reservation, approving tribal budgets and entering to contracts with all persons and entities doing business with the Tribe . See, Constitution, Art. IX, Section 2.

Also at the top of the Flow Chart is the Council of Elders, a governing body of the Tribe whose duties and powers under the Constitution fall into four specific areas : judicial review authority ( Art. X, Sec. 1); cultural/ traditional/ religious responsibilities ( Art. X, Sec. 2 ( c), ( d), ( e) and ( h) ; enrollment ( Art. X, Sec. 2( j); and amendment of the Tribal Constitution ( Art. X, Sec. 2 ( K), ( 1) . The Council of Elders has been designated as the highest appellate court, or Supreme Court, of the Mohegan Tribal Court.

A third entity that exists within the Mohegan governmental structure is the MTGA the Mohegan Tribal Gaming Authority. When the Tribe negotiated its Gaming Compact with the State of Connecticut and secured financing for construction of the Mohegan Casino, it was necessary to amend the Tribal Constitution to create a separate legal entity,

3 A copy of this listing is attached at Tab 3. 4 A copy of the Tribe's Constitution is attached at Tab 4. 5 See Tab 5 which is a fold out Organizational Chart. the MTGA, to own and operate the Tribe's gaming enterprise, the Mohegan Sun Casino . See, Constitution, Art . XIII.

Pursuant to the Constitution, the Tribe has delegated to the MTGA all of the Tribe's " governmental and proprietary" authority over " the development, construction, operation, promotion, regulation and licensing of gaming" ( Constitution, Article XIII, Section 1). While " governmental" powers include " regulation of gaming" the scope of the authority delegated does not include regulation of environmental matters associated with the gaming enterprise . As further defined in the Tribal Ordinance establishing the MTGA, Ordinance 95 2, regulation of gaming only includes functions specifically related to the gaming facility, such as conducting background checks, issuing and revoking licenses, and generally overseeing the integrity of the gaming operation. Under 95 2 these are to be carried out by the Director of Regulation separate and apart from the MTGA. The respective duties and responsibilities of the Board, the Manager and the Director of Regulation are outlined in the Tribal Gaming Ordinance, 94 1 and in the Ordinance establishing the MTGA, MTO Ordinance 95 2.6 The MTGA Management Board ( comprised of the nine member Tribal Council) is responsible for the day to day operation of the gaming enterprise . The General Manager of the enterprise, who is appointed by the MTGA Management Board, is the chief executive officer of the Casino operations. Together, the Management Board and the General Manager are responsible for all operational aspects of the tribal casino except regulatory functions .

The Tribe's judicial system is bifurcated between gaming and non gaming activities. The Gaming Disputes Court ( GDC), created pursuant to Article XIII of the Constitution, has " exclusive jurisdiction" for the Tribe " over all disputes arising out of or in connection with the Gaming." This jurisdiction extends specifically to all disputes arising from " the actions of the Tribal Gaming Authority" . In other words any action brought against the MTGA must be brought in the GDC. The GDC consists of a trial branch ( a Chief Judge and three associate judges) with final appeals being heard by an appellate court consisting of the three trial judges who did not hear the case. 7 The GDC's judges are subject to the Tribe's Ethics Ordinance ( see discussion at p. 9, infra) ; and are insulated from any potential political influence since the Tribal Constitution requires that they be selected from a list of " eligible retired federal judges" or " Connecticut Attorney Trial Referees". The Judges are appointed for terms and may be removed only for cause. Tribal Constitution, Art. XIII, Sec. 2.3 .

The Mohegan Tribal Court, established by the Tribal Council under the Tribe's Law and Order Code, is the court of general jurisdiction for the Tribe and handles all cases that arise within the Tribe's jurisdiction that do not fall within the GDC's jurisdiction . The Tribal Court has a Chief Judge and three associate judges who serve as trial court judges ° Copies of these documents are included at Tab 6. 7 Attached at Tab 7 is the Ordinance, 95 4 establishing the GDC. on a rotating basis. The Tribal Court has a Court of Appeals consisting of four appellate judges . The Council of Elders sits as the Supreme Court of the Tribe and is responsible for hearing final appeals. See Flow Chart.

The GDC will have exclusive jurisdiction over any enforcement actions brought against the MTGA under the NOx Regulations. As discussed above, even though the MTGA does not possess regulatory authority over the air program, MTGA is the owner and operator of the NOx emission sources that would be the subject of any such enforcement action . Any action against the MTGA in any capacity must, therefore, be brought before the GDC rather than the Tribal Court.

( ii) A DESCRIPTION OF THE TYPES OF GOVERNMENT FUNCTIONS CURRENTLY PERFORMED BY THE TRIBAL GOVERNING BODY SUCH AS, BUT NOT LIMITED TO, THE EXERCISE OF POLICE POWERS AFFECTING ( OR RELATING TO) THE HEALTH, SAFETY, AND WELFARE OF THE AFFECTED POPULATION; TAXATION; AND THE EXERCISE OF THE POWER OF EMINENT DOMAIN. ( 40 CFR 49.7 ( 2) ( ii)).

The Mohegan Tribal Council is the governing body for the Tribe that exercises traditional police powers affecting the health, safety and welfare of the Tribe and its members. Under the Constitution, Article IX, Section 2, the Tribal Council has been granted a number of powers including: establishing and enforcing rules, consistent with applicable federal statutes and the applicable regulations of the Secretary of the Interior, for the management of tribal lands ( Sec . 2 ( j)); promoting and protecting the health, peace, morals education and general welfare of the Tribe and its members ( Sec . 2 ( 1)) ; establishing all ordinances governing tribal members, including but not limited to, ordinances regarding tribal elections, civil and criminal jurisdiction of the Mohegan Tribal Court Systems, the civil and criminal laws of the Tribe and ordinances providing for the maintenance of law, order and the administration of justice within the Mohegan Reservation. ( Sec. 2 ( n)); establishing a Tribal Court system. ( Sec. 2 ( o)); and levying and collecting taxes and raise revenue to meet the needs of the Tribe or to support tribal government operations ( Sec . 2 ( s)).

Tribal Departments with specific regulatory and enforcement authority include: the Mohegan Environmental Protection Department (" MEPD") will be regulating and enforcing the NOx Regulations and TIP, the Environmental Health Department ( Tribal Health Code), the Public Safety Department ( Building and Safety Codes); the Tribal Employment Rights Office ( Tribal employment preference laws) . The jurisdiction of these Departments covers all areas within the Mohegan Indian Reservation including within the Mohegan Sun Casino.

While the MTGA and its Management Board do not exercise traditional regulatory authority over the above matters, the MTGA, as a tribal legislative body with governmental powers, adopts tribal ordinances such as the Health Code, Safety Code and NOx Regulations that apply with the gaming facility so that there is no question the laws will be applied within the gaming facility. ( As noted above, the only type of regulatory authority exercised by the MTGA pertains to gaming regulation, ( background checks, issuing and revoking licenses, and generally overseeing the integrity of the gaming operation), all of which is performed by the Director of Regulation.

( iii) SOURCE OF THE TRIBAL GOVERNMENT'S AUTHORITY TO CARRY OUT THE GOVERNMENTAL FUNCTIONS CURRENTLY BEING PERFORMED ( 40 CFR 49.7 ( 2) ( iii).

The Mohegan Tribe's authority to carry out the governmental functions it currently performs emanates from several sources. One source is the organic document of the Tribe, the Mohegan Tribal Constitution, adopted by the members of the Mohegan Tribe that grants the authority to the Tribal Council to exercise legislative and executive powers. A second source is the inherent sovereignty of the Tribe that is based upon the principles of federal law that tribes retain all sovereignty and jurisdiction over their lands and people not specifically withdrawn by treaty or statute. Worcester v. Georgia, 31 U. S. 515 ( 1832) ; Montana v. United States , 450 U. S. 544, 564 ( 1981) ; and Merrion v. Jicarilla Apache Tribe, 455 U. S. 130 ( 1982) . While courts in recent years have limited tribal sovereignty over matters that arise on non tribal lands and that involve non Indians, they continued to recognize tribal sovereign authority over " their members and their territory" and for matters that threaten or have a direct effect on the tribe and its members. See, Atkinson Trading Company v. Shirley, 532 U. S. 645 ( 2001) .

3. DESCRIPTIVE STATEMENT OF THE INDIAN TRIBE'S AUTHORITY TO REGULATE AIR QUALITY. ( 40 CFR 49.7 ( 3)).

( i) EXTERIOR BOUNDARIES OF THE MOHEGAN INDIAN RESERVATION 49.7 ( 3) ( I)).

The Mohegan Indian Reservation was established pursuant to the Mohegan Land Settlement Act of 1994, 25 U. S. C. § 1775.8 Pursuant to that Act and Settlement Agreements that the Tribe entered into with the State of Connecticut and the Town of Montville, an " initial reservation" was established for the Mohegan Tribe that originally consisted of approximately 242 acres of land located along the Thames River in Uncasville, and a 139 acre parcel known as Fort Shantok State Park. Under the provisions of the Settlement Act, the Tribe is able to expand it initial reservation to include a total of 700 acres of lands, all of which is to be located in the Town of Montville. Since 1994 the Tribe has added approximately 25 acres of land that are held in trust status by the United States for the Tribe and currently has a pending trust application for an additional 82 acres. At present, therefore, the Tribe has 406 acres of trust lands ( 242 + 139 ( Shantok) + 25 added since 1994) over which it has jurisdiction . When the pending application is approved the Tribe will have jurisdiction over a total of 488 acres of trust lands. A map showing Reservation lands is attached hereto . 9 8 A copy of the Settlement Act is at Tab 8. 9 See map at Tab 9. ( ii) STATEMENT OF LEGAL AUTHORITY ( 49.7 ( 3) ( II))

The source of the Tribe's authority to regulate air quality though this TIP is its inherent sovereign authority and jurisdiction over land, water and air resources, Congress' delegation of power to Indian tribes to carry out certain provisions of the CAA at 42 U. S . C. § 7601 and the Tribal Authority Rule ( 40 CFR Part 49). See, also response to 2 ( iii) above. Copies of the Tribal Constitution, MTO Ordinance 94 1 and MTO Ordinance 95 2 are attached at Tabs 4 and 6.

4. CAPABILITY OF THE APPLICANT TO ADMINISTER EFFECTIVELY ANY CLEAN AIR ACT PROGRAM FOR WHICH THE TRIBE IS SEEKING APPROVAL. ( 40 CFR 49.7 ( 4)).

( i) THE MOHEGAN TRIBE'S PREVIOUS MANAGEMENT EXPERIENCE OVER ADMINISTRATION OF FEDERAL PROGRAMS AND SERVICES.

The Tribe has extensive management experience over administration of government programs. The Tribe administers a number of government programs including the following: a Public Safety Department that includes a Police, Fire and Emergency Medical Services ; a Building Code and Safety Inspection Department, a Utility Authority, a Housing Authority, a Public Health Department and a Tax Compliance Office . The Tribe employs over 300 persons in its Tribal Government and provides services to over 1,500 persons . The Tribe receives and administers federal funds for its Contract Health program, administered by its Public Health Department.

An example of the manner in which the Tribe administers programs and services is the Tribal Public Health Department. This Department administers the Tribal Code and Tribal Food Protection Code that requires inspections of all food establishments and compliance with public health regulations. The Tribal Public Health Department employs a staff of sanitarians and health specialists that inspect food establishments on the Mohegan Reservation to ensure compliance. In fact, the regular inspections by the Tribal Health Department are more frequent and comprehensive than those outside the Reservation. With the initial adoption of a Tribal Food Protection Code in 1996 and the Tribal Public Health Code in 1997, the Tribal Public Health Department has established an outstanding record of enforcement of tribal regulations and has managed the expansion of their program with the adoption in 2001 of the Child Day Care Center Code and Tribal Spa and Salon Code.

On a regular basis the Tribal Public Health Department inspects entities under its jurisdiction for compliance with all relevant health regulations. These inspections include the food establishments for compliance with the Tribal Food Protection Code, the hotel swimming pool and spa for compliance with the Tribal Spa and Salon Code ( including licensure of beauticians and nail technicians), the Mohegan Day Care Center for compliance with the Child Day Care Center Code and all entities for compliance with the Tribal Public Health Code. The regulations contain reporting requirements and may warrant Notices of Violation( s) or Cease and Desist Orders, depending on the severity of the violation. The regulations also allow for an administrative hearing ( due process) and the right to appeal to the Gaming Disputes Court.

Similar processes apply for the administration of the Tribal Fire Safety Code, the Tribal Building Code, the Tribal Safety Code, the Motor Vehicle Code, the Tribal Gaming Ordinance ( regarding the granting and revoking of gaming licenses) and the Tribal Taxation Code.

( ii) LIST OF EXISTING ENVIRONMENTAL OR PUBLIC HEALTH PROGRAMS ADMINISTERED BY THE TRIBE AND A COPY OF RELATED TRIBAL LAWS, POLICIES, AND REGULATIONS.

Attached to this Application is a list of Tribal environmental and public health programs and an index of tribal laws, policies and regulations related thereto. 10 ( iii) A DESCRIPTION OF THE ENTITY ( OR ENTITIES) THAT EXERCISE THE EXECUTIVE, LEGISLATIVE, AND JUDICIAL FUNCTIONS OF THE MOHEGAN TRIBAL GOVERNMENT.

This is described above in Section ( 2) ( i) ( a)  ( e) and is also shown on the Flow Chart attached at Tab 4 :

( iv) A DESCRIPTION OF THE EXISTING, OR PROPOSED, AGENCY OF THE INDIAN TRIBE THAT WILL ASSUME PRIMARY RESPONSIBILITY FOR ADMINISTERING A CLEAN AIR ACT PROGRAM ( INCLUDING A DESCRIPTION OF THE RELATIONSHIP BETWEEN THE EXISTING OR PROPOSED AGENCY AND ITS REGULATED ENTITIES).

The tribal agency that will administer the subject Clean Air Act program is the Mohegan Environmental Protection Department ( MEPD) that was established by the Tribal Council in 2002 by Tribal Ordinance ( Ordinance No . 2002 12) .11 The MEPD currently consists of one staff member, the MEPD Administrator, who is responsible for administering the Tribal NOx Regulations and TIP. In particular, as set forth in Section 3 of the MEPD Ordinance, the Administrator is responsible for: developing standards and guidance to protect the Tribe's air, land, water and other natural resources; promulgating rules and regulations for the purpose of compliance with the Tribal Implementation Plan; monitoring compliance and enforcement of the TIP; consulting with agencies regarding permitting process and seek resolution of non compliance issues ; and administering other Tribal environmental programs such as fuel cell and recycling. Ordinance 2002 12, Section 3 A.  E.

The Administrator has specific enforcement authority under Section 4 of the MEPD Ordinance. Under that Section the Administrator has authority to: enforce the Department's environmental and natural resource rules and regulations approved by the ' ° See Tab 10. " A copy of the Ordinance is at Tab 11 . Tribal Council ( Sec . 4( A)) ; promulgate, for approval by the Tribal Council, reasonable and appropriate enforcement policies and procedures and implement such policies and procedures as provided in tribal regulations enacted for such purposes ( Sec. 4( B)); and promulgate for approval by the Tribal Council a schedule of civil/ criminal penalties to be assessed for violation of the Department's rules and regulations ( Sec. 4( C)).

The MEPD began operations upon passage of the original Ordinance and appointment of the MEPD Administrator ( Administrator accepted the appointment June 1, 2001, retroactive to April 2, 2001).

The principal function of the MEPD, at least initially, is to administer the TIP, in particular, to ensure compliance with the reservation wide limit on total Nitrogen Oxides ( NOx) emissions from stationary sources owned and operated by the MTGA located on the Mohegan Indian Reservation. In its inventory, the Tribe has identified potential emission sources in particular the life safety emergency back up Diesel generators operated by the MTGA at the Mohegan Sun Casino.

As can be seen from the Flow Chart the MEPD is a completely separate entity from the MTGA operations . The " NOx emission units subject to the NOx Regulation" are operated by the MTGA engineering department that is under the supervision and authority of the MTGA Management Board and more specifically, the General Manager of the Casino.

( v) A DESCRIPTION OF THE TECHNICAL AND ADMINISTRATIVE CAPABILITIES OF THE STAFF TO ADMINISTER AND MANAGE AN EFFECTIVE AIR QUALITY PROGRAM OR A PLAN WHICH PROPOSES HOW THE TRIBE WILL ACQUIRE ADMINISTRATIVE AND TECHNICAL EXPERTISE. THE PLAN SHOULD ADDRESS HOW THE TRIBE WILL OBTAIN THE FUNDS TO ACQUIRE THE ADMINISTRATIVE AND TECHNICAL EXPERTISE.

The MEPD staff consists of an Administrator who is responsible for the day to day management of the MEPD and all of its programs. MEPD's offices are located in the Mohegan Tribal governments building on the Reservation and it is able to utilize all tribal resources, including the Tribe's finance, legal departments and also tribal clerical support staff.

The MEPD utilizes outside consultants to perform some of the technical work that is required under its NOx program. The MEPD has utilized two firms, Research Center, Inc. and TRC, Inc . to assist in monitoring emission estimates and actual measurements, tracking of fuel use and data interpretation, demand and generation assessment, energy conservation, and emission forecasting monitoring of fuel use with respect to the boilers and generator operated by the MTGA.

Funding for MEPD is provided by the Tribal Council through an annual budget process that applies to all tribal governmental departments . Ordinance 2002 12 provides that the Tribal Council, at a minimum, provide adequate funding to allow the MEPD to properly manage and administer any program taken over by the Tribe from the EPA. Provided that it obtains Tribal Council approval, the MEPD plans to increase its staff over time to include up to four additional staff persons to work on Tribal environmental issues .

III. ADDITIONAL TRIBAL IMPLEMENTATION ACT INFORMATION A. CLEAN AIR ACT SECTION 110 ( A) ( 2) ( E)

Section 110 ( A) ( 2) ( E) of the Clean Air Act requires the Tribe to provide necessary assurances that it will have adequate personnel, funding, and authority to carry out such implementation plan. As discussed above in Section 11., 4 ( v), the MEPD will be adequately staffed and funded by the Tribe and it has authority to carry out its implementation plan.

1 . Personnel The MEPD Administrator's position is required under the Tribe's job description to have technical and administrative experience in administering environmental programs. The MEDP office is supported by the Tribal government and has full access to tribal clerical staff; and the Tribe's legal and finance departments. 12 In addition, the MEPD has utilized private consulting firms where needed to assist in monitoring emission estimates and actual measurements, tracking of fuel use and data interpretation, demand and generation assessment, energy conservation, and emission forecasting monitoring of fuel use with respect to the MTGA boilers and generators.

2. Funding The Mohegan Tribal Council has included in the Ordinance establishing the MEPD a commitment to funding the Department, Sec. 6 of Ordinance 2002 12. The Tribal Council has continued to provide funding in the Tribal Budget for the MEPD.

3. Authority/ Enforcement In general, the MEPD has the authority to enforce the Department's environmental and natural resource rules and regulations approved by the Tribal Council ( Ordinance 2002 12, Sec. 4 ( A)) . ; promulgate, for approval by the Tribal Council, reasonable and appropriate enforcement policies and procedures and implement such policies and procedures as provided in tribal regulations enacted for such purposes ( Ordinance 2002 12, Sec. 4( B)); and promulgate for approval by the Tribal Council a schedule of civil/ criminal penalties to be assessed for violation of the Department's rules and regulations ( Ordinance 2002 12, Sec. 4( C)).

12 A copy of the Job Position description is at Tab 12 . For purposes of the TIP, the Administrator has already promulgated, with Tribal Council approval, a schedule of penalties of violations of NOx Regulation and has authority to bring suit in the GDC for violation of the NOx Regulation resulting in a judicial order imposing penalties and/ or injunctive relief. 13 B. CLEAN AIR ACT  SECTION 128.

The Mohegan Tribe has adopted a Tribal Ethics Ordinance, MTO 2002 01, that meets the criteria set forth in CAA § 128 .14 The Ethics Ordinance establishes strict standards of conduct that apply to all elected and appointed tribal officials. Standard B prohibits conflicts of interest, Standard C prohibits use of office for private gain, Standard D prohibits disclosure of confidential information, Standard E restricts officials from having incompatible interests or employment and Standard F establishes a procedure for officials to abstain or recuse themselves from decisions in which they may have personal interest . The Ethics Ordinance applies to Mohegan Tribal Judges, including the Gaming Disputes Court Judges who have responsibility under the NOx Regulation to issue final orders imposing penalties and/ or injunctive relief.

" A copy is attached at Tab 13 . ta A copy is attached at Tab 14 .

10 Exhibit 1 . Mohegan Tribal Ordinance 2005 1 . The Mohegan Tribe Tribal Air Program Area wide NOx Emission Limitation Regulation. Exhibit 2 . Federal Notice. Final Determination That the Mohegan Tribe of Connecticut, Inc., Does Exist as an Indian Tribe . Exhibit 3 . Bureau of Indian Affairs. Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs ; Notice Exhibit 4. The Mohegan Tribe of Indians of Connecticut Amended Constitution .

Exhibit 5 . Organizational Chart.

Exhibit 6 . Mohegan Tribal Ordinance 94.1 . An Ordinance to Regulate and Provide for the Licensing of Class II and Class III Gaming on Tribal Lands of the Mohegan Tribe of Indians of Connecticut. Mohegan Tribal Ordinance 95.2. An Ordinance Establishing the Mohegan Tribal Gaming Authority. Exhibit 7. Mohegan Tribal Ordinance 95 4. An Ordinance Establishing the Gaming Disputes Court.

Exhibit 8. PL 103 377 ( HR 4653) October 19, 1994 Mohegan Nation of Connecticut Land Claims Settlement Act of 1994.

Exhibit 9. Map of Reservation, and legal descriptions of trust lands.

Exhibit 10. Index of Tribal Laws.

Exhibit 11 . Mohegan Tribal Ordinance 200 12 . Mohegan Environmental Protection Department.

Exhibit 12. Mohegan Environmental Protection Department Administrator.

Exhibit 13 . Resolution No . 2005 16.

Exhibit 14. Mohegan Tribal Ordinance 2002 01 . Mohegan Tribal Ethics Ordinance .


[Federal Register: October 14, 2005 (Volume 70, Number 198)]
[Notices]
[Page 60115-60118]
[DOCID:fr14oc05-77]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-52573; File No. SR-NSX-2005-07]

Self-Regulatory Organizations; National Stock Exchange; Notice of
Filing of Proposed Rule Change, and Amendment Nos. 1, 2, and 3,
Thereto, Relating to the Creation of a Regulatory Oversight Committee

October 7, 2005.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on August 1, 2005, the National Stock ExchangeSM
(``NSX''SM or ``Exchange'') filed with the Securities and
Exchange Commission (``Commission'') the proposed rule change as
described in Items I, II, and III below, which Items have been prepared
by the NSX. On August 17, 2005, the Exchange filed Amendment No. 1 to
the proposed rule change. On August 18, 2005, the Exchange filed
Amendment No. 2 to the proposed rule change. On October 6, 2005, the
Exchange filed Amendment No. 3 to the proposed rule change.\3\ The
Commission is publishing this notice to solicit comments on the
proposed rule change, as amended, from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Amendment No. 3 replaced and superseded the original filing,
as amended by Amendments Nos. 1 and 2, in its entirety.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange is proposing to amend the text of Article VI, Section
1.1 of the Exchange's By-Laws to allow it to create, and specifically
identify, a Regulatory Oversight Committee (``ROC'') in accordance with
the agreed upon undertakings contained in Section F.1. of the Order
Instituting Administrative and Cease-And-Desist Proceedings Pursuant to
Sections 19(b) and 21C of the Securities Exchange Act of 1934, Making
Findings, and Imposing Sanctions (``Order'') entered May 19, 2005.\4\
The text of the proposed rule change, including the proposed charter
for the ROC, is below.\5\ Proposed new language is in italics.
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    \4\ See In the Matter of National Stock Exchange and David
Colker, Securities Exchange Act Release No. 51715 (May 19, 2005).
    \5\ After consultation with staff, the Exchange is filing the
Charter for the Regulatory Oversight Committee (the ``ROC Charter'')
as part of this Rule Change. Accordingly, the Exchange represents
that any changes (amendments or deletions) to the ROC Charter will
be filed for approval as part of a filing pursuant to Rule 19b-4 (17
CFR 240.19b-4).
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* * * * *

Code of Regulations (By-Laws) of National Stock Exchange Article VI

Committees
Section 1. Establishment of Committees
1.1. Committees
    There shall be a Regulatory Oversight Committee, a Membership
Committee, a Business Conduct Committee, a Securities Committee, an
Appeals Committee, a Nominating Committee, and such other committees as
may be established from time to time by the Board. Committees shall
have such authority as is vested in them by the By-Laws or Rules or as
is delegated to them by the Board. All Committees are subject to the
control and supervision of the Board.
* * * * *

NSX REGULATORY OVERSIGHT COMMITTEE CHARTER

    The Regulatory Oversight Committee (the ``ROC'') shall be
responsible to oversee all of the National Stock Exchange's (``NSX'' or
the ``Exchange'') regulatory functions and responsibilities and to
advise regularly the NSX's Board of Directors about NSX's regulatory
matters.
    A. The responsibilities of the ROC shall be to: (i) oversee the
NSX's regulatory functions to enforce compliance with the federal
securities laws and NSX rules, including monitoring the design,
implementation, and effectiveness of NSX's regulatory programs; (ii)
recommend the NSX Board an adequate operating budget for NSX's
regulatory functions; (iii) approve the promulgation, filing, or
issuance of new rules, rule amendments, rule interpretations, and
regulatory circulars; (iv) take any other action necessary to fulfill
its oversight and advisory responsibilities; and (v) adopt policies and
procedures to ensure the independence of the Chief Regulatory Officer
(the ``CRO''). For the purpose of strengthening the ROC oversight
procedures, the CRO shall certify compliance with the required items of
the SEC Order to the ROC on a form and frequency basis set by the ROC.
    The CRO shall have the authority to require such additional
compliance certification from the staff as he deems appropriate and in
such forms as he may prescribe.
    B. The ROC shall be authorized to retain, at NSX's expense, outside
counsel and consultants as it deems appropriate to carry out its
responsibilities.
    C. Meetings of the ROC shall be called by the Chairman of the ROC
or at the request of a majority of the members of the ROC or the CRO.
On at least an annual basis, the ROC shall report to the NSX Board on
the state of the Exchange's regulatory program.
    D. The ROC shall create and maintain complete minutes of all of its
meetings, and shall also create and maintain records reflecting the
ROC's recommendations or proposals made to NSX Board, and NSX Board's
decision as to each such recommendation proposal.
    E. In the event that the ROC's recommended operating budget for
NSX's regulatory functions either: (1) Is less than the previous year's
budget by a material amount, (2) is rejected by the NSX Board, (3) is
reduced by the NSX Board by a material amount, or (4) is altered by the
NSX Board in a manner that, in the judgment of the ROC, materially
impairs the ability of NSX to meet its regulatory obligations, then NSX
shall, within fifteen (15) business days of such NSX Board action,
notify the Director of the Commission's Division of Market Regulation
in writing, providing copies of all minutes and other records
reflecting the ROC's budget proposal and the NSX Board's decision
regarding such proposal.

Composition

    The Committee members shall be comprised of no less than three
members, who have been appointed by the Chairman with the approval of
the Board in a composition consistent with federal securities laws and
the Exchange By-Laws and Rules. At a minimum, the ROC members shall not
be, nor have been during the preceding three years, employees of NSX or
any NSX member firm. The ROC shall elect a Chairperson from among its
members.
* * * * *

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements
concerning the purpose of, and basis for, the proposal and discussed
any comments it received on the proposed rule change, as amended. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
Sections A, B, and C below, of the most significant aspects of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    In accordance with the agreed upon undertakings provided in Section
F.1. of the Order, the NSX is proposing to create a ROC through the
submission of this rule change. In that regard, the NSX is seeking
approval of an amendment to the Exchange By-Laws to specifically
identify the ROC as an Exchange committee. The composition, scope of
responsibilities, and functions of the ROC will be described in the ROC
Charter, which would include provisions that mirror the terms of the
undertaking \6\ along with certifications

procedures similar to those prescribed by Sarbanes-Oxley and which are
also consistent with the certification procedures contained in the
Order.
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    \6\ Section F.1. of the Order provides that NSX will undertake
to create a ROC and further that:
    ``a. Within ninety (90) days of the issuance of the Order, NSX
shall file proposed rule changes with the [Securities and Exchange]
Commission in accordance with Section 19(b) of the Exchange Act and
Rule 19b-4 to create a ROC to oversee all of NSX's regulatory
functions and responsibilities and to advise regularly the * * * NSX
Board * * * about NSX's regulatory matters. The ROC members shall
not be, nor have been in the preceding three years, employees of NSX
or any NSX member firm. The NSX Board shall appoint the members of
the ROC. The ROC shall elect a Chairperson from among its members.
    b. The responsibilities of the ROC shall include, but not be
limited to: (i) oversight of NSX's regulatory functions to enforce
compliance with the federal securities laws and NSX rules, including
monitoring the design, implementation, and effectiveness of NSX's
regulatory programs; (ii) recommending to the NSX Board an adequate
operating budget for NSX's regulatory functions; (iii) approving the
promulgation, filing, or issuance of new rules, rule amendments,
rule interpretations, and regulatory circulars; (iv) taking any
other action necessary to fulfill its oversight and advisory
responsibilities; and (v) adopting policies and procedures to ensure
the independence of the Chief Regulatory Officer described in
Section F.2.a [of the Order].
    c. The ROC shall be authorized to retain, at NSX's expense,
outside counsel and consultants as it deems appropriate to carry out
its responsibilities.
    d. The ROC shall create and maintain complete minutes of all of
its meetings, and shall also create and maintain records reflecting
the ROC's recommendations or proposals made to the NSX Board, and
the NSX Board's decision as to each such recommendation or proposal.
    e. In the event the ROC's recommended operating budget for NSX's
regulatory functions, as described in Section F.1.b. above, either:
(i) is less than the previous year's budget by a material amount,
(ii) is rejected by the NSX Board; (iii) is reduced by the NSX Board
by a material amount; or (iv) is altered by the NSX Board in a
manner that, in the judgment of the ROC, materially impairs the
ability of NSX to meet its regulatory obligations, then NSX shall,
within fifteen (15) business days of such NSX Board action, notify
the Director of the Commission's Division of Market Regulation
(``Market Regulation'') in writing, providing copies of all such
minutes and other records reflecting the ROC's budget proposal and
the NSX Board's decision regarding such proposal.
    f. Subject to Commission approval of NSX's proposed rule
changes, NSX shall fully implement this undertaking within one-
hundred-eighty (180) days of the issuance of this Order.''
    See Order, supra note 4.
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    The ROC members shall be comprised of no less than three members,
who have been appointed by the NSX Chairman with the approval of the
Board in a composition consistent with federal securities laws and the
Exchange By-Laws and Rules. At a minimum, the ROC members shall not be,
nor have been during the preceding three years, employees of the NSX or
any NSX member firm. The ROC shall elect a Chairperson from among its
members.
    With respect to scope of responsibilities, the ROC is a committee
of the NSX Board that is responsible for oversight of all NSX
regulatory functions. The ROC is also responsible for keeping the NSX
Board informed, on a regular basis, concerning the Exchange's
regulatory functions, for providing advice to the Board concerning
those functions, and for making recommendations to the Board for NSX
action with respect to regulatory matters. The scope of
responsibilities, as detailed in the Commission's Order, is contained
in the ROC Charter.
    As detailed in the ROC Charter, the ROC's functions include
responsibility for the oversight of all of NSX's regulatory functions
in order to promote and enforce compliance with the federal securities
laws and the NSX rules, including reviewing with the Exchange's Chief
Regulatory Officer (the ``CRO'') and other appropriate regulatory
personnel various aspects of the design, implementation, and
effectiveness of NSX's regulatory programs. The ROC will also review,
revise and/or approve the CRO's recommendation for a regulatory budget
to formulate the ROC's recommendation of an adequate operating budget
and staffing level for NSX's regulatory function to the Board. In
addition, the ROC will review, evaluate, and, if appropriate, recommend
to the Board the implementation of any and all actions recommended by
the CRO and the Regulatory Services Division (the ``Division'') to
fulfill the Division's and the ROC's oversight and advisory
responsibilities. The ROC also has the responsibility to assess the
performance of the CRO and review the CRO's assessment of the
Division's staff in fulfilling their responsibilities and recommend
compensation and personnel actions to the Board. The ROC will also
review, amend, approve or reject the CRO's recommendations respecting
the promulgation, filing, or issuance of new rules, rule amendments,
rule interpretations, and regulatory circulars, including the approval
(or ratification) of all regulatory circulars issued by the NSX within
thirty five days of the issuance of such regulatory circulars. On at
least an annual basis, the ROC will review the structural protections
to separate the Exchange's regulatory function from the commercial
interest of the Exchange by reviewing the supervisory responsibilities
of the Chief Executive Officer and the CRO. Further, the ROC will take
all steps necessary to provide reasonable assurance that NSX is and
remains in compliance with the Order \7\ and will take any other action
necessary to fulfill its oversight and advisory responsibilities.
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    \7\ This includes, but is not limited to, the review, assessment
and approval of (i) the CRO's certification of certain matters to
the Commission, (ii) the CRO's cooperation and interaction with the
Regulatory Consultants and the Regulatory Auditors, (iii) the
Regulatory Division's implementation of the Regulatory Consultant's
recommendations, (iv) the Regulatory Division's answers to any
deficiencies noted in the Regulatory Auditors' reports, and (v) the
Regulatory Division's adoption of certain procedures and programs
outlined in the Order.
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    As also detailed in the ROC Charter, meetings of the ROC shall be
called by the Chairman of the ROC or at the request of a majority of
the members of the ROC or the CRO. On at least an annual basis, the ROC
shall report to the NSX Board on the state of the Exchange's regulatory
program. The ROC will also create and maintain complete minutes of all
of its meetings, and shall also create and maintain records reflecting
the ROC's recommendations or proposals made to the NSX Board, and the
NSX Board's decision as to each such recommendation or proposal. As
also provided in the ROC Charter, in the event that the ROC's
recommended operating budget for NSX's regulatory functions either: (1)
Is less than the previous year's budget by a material amount, (2) is
rejected by the NSX Board, (3) is reduced by the NSX Board by a
material amount, or (4) is altered by the NSX Board in a manner that,
in the judgment of the ROC, materially impairs the ability of NSX to
meet its regulatory obligations, then NSX shall, within fifteen (15)
business days of such NSX Board action, notify the Director of the
Commission's Division of Market Regulation in writing, providing copies
of all minutes and other records reflecting the ROC's budget proposal
and the NSX Board's decision regarding such proposal.
2. Statutory Basis
    The Exchange believes the proposed rule change, as amended, is
consistent with Section 6(b) of the Securities Exchange Act of 1934
(the ``Act'')\8\ in general, and furthers the objectives of Section
6(b)(5)\9\ in particular, in that it is designed to promote just and
equitable principles of trade and to remove impediments to and perfect
the mechanism of a free and open market and a national market system
and, generally, in that it protects investors and the public interest.
The proposed rule change, as amended, also furthers the objectives of
Section 6(b)(1),\10\ in that it helps to assure that the Exchange is so
organized and has the capacity to be able to carry out the purposes of
the Act and to comply, and to enforce compliance by its members, with
the Act.
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    \8\ 15 U.S.C. 78f(b).
    \9\ 15 U.S.C. 78f(b)(5).
    \10\ 15 U.S.C. 78f(b)(1).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any inappropriate burden on competition.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    The Exchange has neither solicited nor received written comments on
the proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    Within 35 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the Exchange consents, the Commission will:
    (a) by order approve such proposed rule change, as amended; or
    (b) institute proceedings to determine whether the proposed rule
change, as amended, should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change, as amended, is consistent with the Act. Comments may be
submitted by any of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml.
); or     Send an e-mail to<EMAIL_ADDRESS>Please include

File Number SR-NSX-2005-07 on the subject line.

Paper Comments

     Send paper comments in triplicate to Jonathan G. Katz,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-9303.
    All submissions should refer to File Number SR-NSX-2005-07. This
file number should be included on the subject line if e-mail is used.
To help the Commission process and review your comments more
efficiently, please use only one method. The Commission will post all
comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml
). Copies of the submission, all subsequent amendments,

all written statements with respect to the proposed rule change that
are filed with the Commission, and all written communications relating
to the proposed rule change between the Commission and any person,
other than those that may be withheld from the public in accordance
with the provisions of 5 U.S.C. 552, will be available for inspection
and copying in the Commission's Public Reference Room. Copies of such
filing also will be available for inspection and copying at the
principal office of the NSX. All comments received will be posted
without change; the Commission does not edit personal identifying
information from submissions. You should submit only information that
you wish to make available publicly. All submissions should refer to
File Number SR-NSX-2005-07 and should be submitted on or before
November 4, 2005.

    For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\11\
J. Lynn Taylor,
Assistant Secretary.
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    \11\ 17 CFR 200.30-3(a)(12).
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[FR Doc. E5-5643 Filed 10-13-05; 8:45 am]

BILLING CODE 8010-01-P