[Federal Register Volume 75, Number 222 (Thursday, November 18, 2010)]
[Notices]
[Pages 70680-70686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29028]
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NATIONAL INDIAN GAMING COMMISSION
Notice of Inquiry and Request for Information; Notice of
Consultation
AGENCY: National Indian Gaming Commission.
ACTION: Notice of inquiry; notice of Tribal consultations.
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Authority: 25 U.S.C. 2706(b)(10); E.O. 13175.
SUMMARY: This Notice of Inquiry and Notice of Consultation advises the
public that the National Indian Gaming Commission (NIGC) is conducting
a comprehensive review of all regulations promulgated to implement the
Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2701 et seq. The
Commission is taking a fresh look at its rules in order to determine
whether amendments are necessary to more effectively implement IGRA's
policies of protecting Indian gaming as a means of generating Tribal
revenue, ensuring that gaming is conducted fairly and honestly by both
the operator and players, and ensuring that Tribes are the primary
beneficiaries of gaming operations. The Commission's
[[Page 70681]]
challenge is to adapt its rules to ensure that they promote these
values into the future. This review is also being prepared in order to
submit the NIGC's Semi-Annual Regulatory Review to the Federal Register
in April 2011 as required by Executive Order 12866 entitled
``Regulatory Planning and Review'' and the Regulatory Flexibility Act,
5 U.S.C. 601 et seq. In compliance with Executive Order 13,175 entitled
``Consultation and Coordination with Indian Tribal Governments,'' the
NIGC will hold eight consultations during January and February 2011.
This Notice of Inquiry invites comments and information that will
assist the NIGC in understanding the need for revising any or all of
the regulations outlined below. The consultations and public comments
requested in this Notice are intended to assist the NIGC with
completion of the review and in establishing priorities.
Following completion of the consultation and written comment
period, the NIGC will review all comments received and create a
comprehensive regulatory review agenda schedule. The public comment
period ends February 12, 2011. The regulatory review agenda will be
released in April 2011 and will include a summary explaining why the
NIGC agreed or disagreed with the comments received and why the
regulatory review agenda took its final form.
DATES: Submit comments on or before February 11, 2011. See Consultation
Meetings, Dates and Locations under SUPPLEMENTARY INFORMATION below for
the dates, times, and locations of consultation meetings.
ADDRESSES: Testimony and comments sent by electronic mail or delivered
by hand are strongly encouraged. Electronic submissions should be
uploaded on the NIGC Web site, http://www.nigc.gov, or e-mailed to
[email protected]. See Electronic Submissions, File Formats And
Required Information under SUPPLEMENTARY INFORMATION below for
instructions. Testimony and comments delivered by hand should be
brought to the consultations. See Consultation Meetings, Dates and
Locations under SUPPLEMENTARY INFORMATION below for the dates, times,
and locations of consultation meetings. Submissions sent by regular
mail should be addressed to Lael Echo-Hawk, Counselor to the Chair,
National Indian Gaming Commission, 1441 L Street, NW., Suite 9100,
Washington, DC 20005.
FOR FURTHER INFORMATION CONTACT: Lael Echo-Hawk, National Indian Gaming
Commission, 1441 L Street, NW., Suite 9100 Washington, DC 20005.
Telephone: 202/632-7009; e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Consultation Meetings, Dates and Locations
Eight Tribal consultations will be held on the following dates,
times and locations. Every attempt was made to hold a consultation in
each region and to coordinate with other established meetings when
establishing this consultation schedule. Please RSVP to
[email protected].
Week 1
January 11, 2011, from 9 a.m. to 4 p.m. at the U.S. Grant Hotel,
326 Broadway, San Diego, CA 92101.
January 12, 2011, from 9 a.m. to 4 p.m. at the Cache Creek Casino
Resort, 14455 Highway 16, Brooks, CA 95606.
January 14, 2011, from 9 a.m. to 4 p.m. at the Little Creek Resort,
91 W. State Rout 108, Shelton, WA 98584.
Week 2
January 18, 2011, from 9 a.m. to 4 p.m. at the Hyatt Regency Tamaya
Resort and Spa, 1300 Tuyuna Trail, Santa Ana Pueblo, NM 87004.
January 20, 2011, from 9 a.m. to 4 p.m. at the Riverwind Casino-
Hotel, 1544 West Highway 9, Norman OK 73072).
Week 3
January 24, 2011, from 9 a.m. to 4 p.m. at the Department of the
Interior--South Interior Auditorium, 1951 Constitution Ave., NW.,
Washington, DC 20240.
Week 4
February 1, 2011, from 9 a.m. to 4 p.m. at the Best Western Ramkota
Inn, 2111 North La Crosse St., Rapid City, SD 57701.
February 3, 2011, from 9 a.m. to 4 p.m. at the Seminole Hard Rock
Hotel & Casino, 1 Seminole Way, Hollywood, FL 33314.
For additional information on consultation locations and times,
please refer to the Web site of the National Indian Gaming Commission,
http://www.nigc.gov. Please RSVP at [email protected].
II. Electronic Submissions, File Formats And Required Information
If submitting by Web site: Participant must complete a form
containing the name of the person making the submission, his or her
title and Tribe or organization (if the submission of an organization),
mailing address, telephone number, fax number (if any) and e-mail
address. The document itself must be sent as an attachment, and must be
in a single file and in recent, if not current versions of: (1) Adobe
Portable Document File (PDF) format (preferred); or (2) Microsoft Word
file formats.
If submiting by electronic mail: Send to [email protected], a
message containing the name of the person making the submission, his or
her title and organization (if the submission of an organization),
mailing address, telephone number, fax number (if any) and e-mail
address. The document itself must be sent as an attachment, and must be
in a single file and in recent, if not current versions of: (1) Adobe
Portable Document File (PDF) format (preferred); or (2) Microsoft Word
file formats.
If submitting by print only: Anyone who is unable to submit a
comment in electronic form should submit an original and two paper
copies by hand or by mail to the appropriate address listed above. Use
of surface mail is strongly discouraged owing to the uncertainty of
timely delivery.
Copies of the written comments received and any other material may
be reviewed on the Tribal Consultation Web page of the NIGC Web site
located at http://www.nigc.gov.
III. Background
The Indian Gaming Regulatory Act (IGRA or Act) (Pub. L. 100-497),
25 U.S.C. 2701 et seq., was signed into law on October 17, 1988. The
purpose of the IGRA was to provide a statutory basis for the operation
of gaming by Indian Tribes as a means of promoting Tribal economic
development, self-sufficiency, and strong Tribal governments; to
provide a statutory basis for the regulation of gaming by an Indian
Tribe adequate to shield it from organized crime and other corrupting
influences; to ensure that the Indian Tribe is the primary beneficiary
of the gaming operation; to ensure that gaming is conducted fairly and
honestly by both the operator and players; and to declare that the
establishment of independent Federal regulatory authority for gaming on
Indian lands, the establishment of Federal standards for gaming on
Indian lands, and the establishment of a National Indian Gaming
Commission are necessary to meet congressional concerns regarding
gaming and to protect such gaming as a means of generating Tribal
revenue. 25 U.S.C. 2702.
The IGRA authorizes the NIGC to promulgate such regulations and
guidelines as it deems appropriate to implement the provisions of the
Act. 25 U.S.C. 2706(b)(10). The undertaking of this review facilitates
effective
[[Page 70682]]
implementation of IGRA and coincides with Executive Order 12866
entitled ``Regulatory Planning and Review'' providing for Federal
entities to identify agency statements of regulatory priorities and
additional information about the most significant regulatory activities
planned for the coming year. Additionally, pursuant to the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), agencies publish semiannual
regulatory flexibility agendas in the Federal Register identifying
those rules that may have a significant economic impact on a
substantial number of small entities. In the spirit of transparency and
accountability set forth by the President of the United States, the
NIGC wishes to provide a comprehensive regulatory review schedule and
agenda created after meaningful consultation.
Additionally, Executive Order 13175 entitled ``Consultation and
Coordination with Indian Tribal Governments,'' provides for the NIGC to
engage in meaningful consultation with Tribal governments prior to
taking an action that has Tribal implications. Through the development
of a comprehensive regulatory review, and in meaningful consultation
with Tribes, the NIGC hopes to identify those areas of the regulations
that need revision, and in further consultation, to revise the
regulations as necessary to serve the current needs of the Tribal
gaming industry.
Over the past several years, the NIGC has adopted, amended and
attempted to amend a number of regulations, including a facility
licensing regulation, Class II and Class III Minimum Internal Control
Standards, and Class II Technical Standards. The current Commission
understands that some interested parties believe that many of the
NIGC's regulations need updating or continued revisions. Consistent
with Executive Order 13175, consultation should occur before revisions
or amendments to regulations. In the past, consultation has often taken
the form of a Tribal Advisory Committee (TAC) used to assist the NIGC
in drafting the regulations. However, neither the method of appointing
members to the TAC nor the joint process of drafting regulations has
been without controversy or costs. The Commission recognizes that in
order for regulation review and revision to occur that benefits and
protects the entire Tribal gaming industry, all points of view must be
considered and a decision made based on all comments received by the
Commission. The Commission seeks advice and input as to how that goal
can best be accomplished.
The Commission also requests comment on whether changes to Class II
MICS, Class II Technical Standards and Class III MICS are necessary.
Currently, the Commission is examining the Class II MICS regulations
and how to address the Class III MICS in the wake of the Colorado River
Indian Tribes decision. The Commission is seeking advice and input as
to how to provide necessary updates to the regulations consistent with
Federal law, Tribal sovereignty and Tribal expertise in the day-to-day
operations.
In sum, the NIGC requests comments about which regulations are most
in need of revision, in what order of priority those regulations should
be addressed and the process the NIGC should utilize to make revisions.
IV. Regulations Which May Require Amendment or Revision
A. Part 502--Definitions of This Chapter
The NIGC is particularly interested in receiving comments on
whether any of the definitions in part 502 are in need of revision and
whether any additional definitions are necessary to protect gaming as a
means of generating Tribal revenue. In particular, the NIGC is
interested in receiving comment on whether the following terms need
further clarification:
(1) Net Revenues. Over the years, Tribes, CPAs, and others have
raised the issue of whether there should be different definitions for
Net Revenues when defining what the management fee will be based on
pursuant to the IGRA, 25 U.S.C. 2711; or determining net revenues to be
used for the allowable purposes as defined by the IGRA. 25 U.S.C.
2710(b). Should the Commission consider definitions for the following
two terms: Net Revenues--management fee; and Net Revenues--allowable
uses?
(a) Net Revenues--management fee. General Accepted Accounting
Principles (GAAP) define Net Income as ``Gross Revenues (less
Complimentary Sales) subtracting Operating Expenses and Interest and
Depreciation.'' NIGC defines Net Revenue as ``Net Income plus
Management Fee,'' which is used by the Commission as the base number to
calculate the management fee when the fee is a percentage on net
revenue. Should the language used in the Commission's definition of Net
Revenues be revised to be consistent with GAAP, i.e., ``Net Income plus
Management Fee''?
(b) Net Revenues--allowable uses. The IGRA, 25 U.S.C.
2710(b)(2)(B), states ``net revenues from any Tribal gaming are not to
be used for purposes other than: (i) To fund Tribal government
operations or programs; (ii) to provide for the general welfare of the
Indian Tribe and its members; (iii) to promote Tribal economic
development; (iv) to donate to charitable organizations; or (v) to help
fund operations of local government agencies.''
Tribes, Tribal gaming commissions, and CPAs have commented that
prior to making any decisions for allowable uses of net revenues, the
Tribal parties should first consider the cash flow of the gaming
operation (i.e. deduct principal loan payments, deduct reserve, add
depreciation). In addition, others have stated that Tribal parties
should also consider the overall financial integrity of the gaming
operation before funding other Tribal programs.
Should the Commission consider adding a new definition for Net
Revenues--allowable uses that is based on cash flow? For example,
should the new definition be ``Cash flow'' equals ``Net Income plus
depreciation minus principal loan payments and reserve fundings''? Is
there another calculation that this definition could be based on?
The Commission is seeking advice and input from the Tribal gaming
industry about these proposed definition revisions, if there are other
definitions that need revisions, whether it should be a priority, and
whether a Tribal Advisory Committee should be formed to make these
change or if another process will be sufficient.
(2) Management Contract. Should the definition of management
contract be expanded to include any contract, such as slot lease
agreements, that pays a fee based on a percentage of gaming revenues?
Management contractors sometimes believe that the manager should be
reimbursed for expenses in addition to earning a management fee or may
be paid multiple fees for development, loans, marketing, and non-gaming
management in addition to the gaming management fee. These accumulated
payments may result in the manager receiving sums greater than cash
flow to the Tribe. Should there be a definition regarding acceptable
compensation to a manager contractor?
The Commission is seeking comment about whether the Commission
should consider amendments to existing definitions or whether
additional definitions are necessary, how the Commission should
prioritize its review of part 501 in the regulatory review process, and
whether the Commission should utilize standard notice and comment
rulemaking, a Tribal Advisory
[[Page 70683]]
Committee to assist in its regulatory review of this part, or another
process.
B. Part 514--Fees
The NIGC is interested in receiving comments on whether part 514 is
in need of revision. In particular, the Commission is interested in
receiving comment on whether the Commission should consider revising
this part to base fees on the gaming operation's fiscal year.
Currently, the fee is calculated based on the calendar year. The
Commission understands that it may be difficult to accurately calculate
fees based on the calendar year, which may lead to frequent audit
adjustments. The Commission is asking for comment on whether this issue
may be resolved by changing ``calendar'' to ``fiscal'' throughout part
514. Further, if this is a revision that the Commission should
consider, the Commission is interested in receiving comment on how to
implement the revision. For example, should the Commission consider a
revision that would provide for implementation over the course of a 12
to 18 month period with an option for the Tribe to determine when they
will change their calculation during that time period? On what dates or
by what schedule should the Commission set fee rates if this revision
is implemented, given that Tribes have different fiscal years? Is this
a revision that would be more efficient? Is this a revision that the
Commission should prioritize?
Should the Commission consider amending this part to define gross
gaming revenue consistent with the GAAP definition of this term? Would
amending this definition to industry standards make the fee easier to
calculate and to reconcile?
Should the Commission consider amending this part to include
fingerprint processing fees? If so, how should the Commission consider
including fingerprint processing fees? Should it specify that fees
collected from gaming Tribes for processing fingerprints with the FBI
are included in the total revenue collected by the Commission that is
subject to statutory limitation? Should the Commission include a
requirement for it to review fingerprint processing costs on an annual
basis and, if necessary, adjust the fingerprint processing fee
accordingly?
Finally, should the Commission consider a late payment system in
lieu of a Notice of Violation (NOV) for submitting fees late? In the
past, when a Tribe paid their fees after the deadline, we understand
that a NOV may have been issued to the Tribe. As a NOV could lead to
closure of a gaming facility, the Commission questions whether an NOV
is an appropriate response to a late fee submittal caused by a change
in employees or other minor issue. Should the Commission consider
adding a type of ``ticket'' system to part 514 so that an NOV would
only be issued in instances of gross negligence or wanton behavior, or
in a dollar amount that allowed the Tribe to reap an economic benefit
from its failure to pay in a timely manner?
The Commission is seeking comment on the above particular issues as
well as other suggested revisions to this part, how the Commission
should prioritize its review of part 514 in the regulatory review
process, and whether the Commission should utilize standard notice and
comment rulemaking, a Tribal Advisory Committee to assist in its
regulatory review of this part, or another process.
C. Part 518--Self-Regulation of Class II
The NIGC has heard that this regulation is overly burdensome to
Tribes seeking to obtain certification and that the burden of
completing the process significantly outweighs the benefits gained from
self-regulation. The Commission is seeking comment on whether this part
should be revised, how the Commission should prioritize its review of
part 518 in the regulatory review process, and whether the Commission
should utilize standard notice and comment rulemaking, a Tribal
Advisory Committee to assist in its regulatory review of this part, or
another process.
D. Part 523--Review and Approval of Existing Ordinances or Resolutions
Should the Commission consider eliminating part 523 as obsolete?
The regulation applies only to gaming ordinances enacted by Tribes
prior to January 22, 1993, and not submitted to the Chairwoman. The
Commission believes there may no longer be any such ordinances. The
Commission is seeking comment on whether this part should be
eliminated, how the Commission should prioritize its review of part 523
in the regulatory review process, and whether the Commission should
utilize standard notice and comment rulemaking, a Tribal Advisory
Committee to assist in its regulatory review of this part, or another
process.
E. Management Contracts
(1) Part 531--Collateral Agreements
Should the Commission consider whether it has authority to approve
collateral agreements to a management contract? The current definition
of management contract includes collateral agreements if they provide
for the management of all or part of a gaming operation. The Commission
has taken the position that although the collateral agreements must be
submitted, the Commission only approves management contracts. Some
Tribes have asked the Commission to review the management contract and
the collateral agreements and to make a determination as to whether the
cumulative effect of the agreements violate the sole proprietary
provisions of the IGRA. For example, while the gaming management
contract may only require a payment of 5% of the net gaming revenue,
combined with the provisions of the collateral agreements, the Tribe
may be paying in excess of 80% of gross gaming revenue which results in
a net loss for the Tribe.
The Commission is seeking comment on whether this part should be
revised, how the Commission should prioritize its review of part 531 in
the regulatory review process, and whether the Commission should
utilize standard notice and comment rulemaking, a Tribal Advisory
Committee to assist in its regulatory review of this part, or another
process.
(2) Part 533--Approval of Management Contracts
This part outlines the submission requirements for management
contracts. While the Commission has disapproved management contracts
for a variety of reasons including the trustee standard, the Commission
seeks comment on whether an amendment would clarify the trustee
standard by adding the following two grounds for possible disapproval
under Sec. 533.6(b): The management contract was not submitted in
accordance with the submission requirements of 25 CFR part 533, or the
management contract does not contain the regulatory requirements for
approval pursuant to 25 CFR part 531.
The Commission is seeking comment on whether this part should be
revised, how the Commission should prioritize its review of part 533 in
the regulatory review process, and whether the Commission should
utilize standard notice and comment rulemaking, a Tribal Advisory
Committee to assist in its regulatory review of this part, or another
process.
(3) Part 537--Background Investigations for Persons or Entities With a
Financial Interest in, or Having Management Responsibility for, a
Management Contract
This part addresses the background investigation submission
requirements
[[Page 70684]]
for the management contractor. Although minor revisions were made in
2009, there appears to be some confusion about whether the contractor
should be required to submit the Class II background information when
the contract is only for Class III gaming. IGRA does specify approval
of Class II and Class III management contracts as a power of the
Chairwoman. 25 U.S.C. 2705(a)(4).
The Commission is seeking comment on whether this part should be
revised, how the Commission should prioritize its review of part 537 in
the regulatory review process, and whether the Commission should
utilize standard notice and comment rulemaking, a Tribal Advisory
Committee to assist in its regulatory review of this part, or another
process.
F. Proceedings Before the Commission
The NIGC is considering amending the regulations that govern
appeals of the Chairwoman's actions on ordinances, management
contracts, notices of violations, civil fine assessments, and closure
orders. 25 CFR part 519; 25 CFR part 524; 25 CFR part 539; 25 CFR part
577. Except for some minor changes in 2009, these parts remain
unchanged from their original adoption in 1993.
Should the Commission consider more comprehensive and detailed
procedural rules, especially in areas such as motion practice, that are
largely unaddressed by the present rules? The Commission seeks advice
and comment on service of process and computation of time; intervention
by third parties; motion practice and briefings; and the nature of
written submissions in enforcement appeals. We also would like comment
regarding whether a Tribal Advisory Committee should be formed to make
the change or if another process will be sufficient.
G. MICS & Technical Standards
(1) Part 542--Class III Minimum Internal Control Standards
The Commission is seeking comment regarding Class III Minimum
Internal Control Standards (MICS). It has been suggested that the rule
should be struck and replaced by a set of recommended guidelines.
Comment is requested from the Tribal gaming community and other
interested parties regarding whether the NIGC's Class III MICS have a
positive impact on the industry, and, if changed to a guideline, what,
if any, impact that might have on Tribal gaming? Many Tribal gaming
regulatory authorities have relied on the regulation to define the
foundation of their minimum internal control standards, others have
merely adopted the Federal rule verbatim, while yet others have drafted
their own internal control standards. If the regulation is struck, how
would such action impact the Tribal regulators and operators?
Additionally, several State compacts incorporate the Class III MICS
by reference. If the regulation was struck, how would these agreements
be affected, if at all? Some Tribes have amended their gaming ordinance
recognizing the authority of NIGC to regulate Class III MICS and
enforce them. Their State compacts have also been revised recognizing
Federal oversight as supplanting that of the State to the extent
specified in the agreements. If the regulation was struck, what would
the effect be on those Tribes?
If the Class III MICS are revised but not placed into a regulation,
how should NIGC publish them to the industry? Do we involve a Tribal
Advisory Committee (TAC) to participate in the revision process? Does
that TAC need to be composed of different members than the Class II
MICS TAC? How should the members be selected? What process should NIGC
utilize to make revisions? The Commission needs input from the Tribal
gaming community on this very important issue.
The Commission is seeking comment on whether this part should be
revised, how the Commission should prioritize its review of this part
in the regulatory review process, and whether the Commission should
utilize standard notice and comment rulemaking, a Tribal Advisory
Committee to assist in its regulatory review of this part, or another
process.
(2) Part 543--Class II Minimum Internal Control Standards
The NIGC is currently in the process of revising the Class II MICS.
However, the process has come under significant scrutiny and objection
by the Tribal gaming industry. While we have heard from the industry
that the regulations need revision, there have also been many concerns
about the process utilized to make the revisions. The Commission is
dedicated to making the necessary updates through a process that is
inclusive of all interested parties' concerns and suggestions.
A proposed regulation has been drafted, but questions have arisen
regarding the clarity and interpretation of certain sections. Although
the applicability of the rule may be limited, the Commission wants to
ensure that it be viable and clear to the Tribal gaming industry.
Accordingly, we are seeking comment on how to proceed. Should Tribal
gaming regulatory authorities be provided an opportunity to provide
comment on the proposed rule before public meetings? Should comment be
sought from accounting practitioners? Should a TAC be assembled to
provide advice to the NIGC in the administration of the rule once
adopted? We would appreciate your thoughts on this idea.
Finally, the Commission is seeking comment on the process of Class
II MICS revisions. Should we start with the current proposed draft?
Should we establish a TAC to participate? If so, how should the members
be selected? What will the revision process be? The Commission needs
input from the Tribal gaming community on this very important issue.
The Commission is seeking comment on whether this part should be
revised, how the Commission should prioritize its review of this part
in the regulatory review process, and whether the Commission should
utilize standard notice and comment rulemaking, a Tribal Advisory
Committee to assist in its regulatory review of this part, or another
process.
(3) Part 547--Minimum Technical Standards for Gaming Equipment Used
With the Play of Class II Games
This part was recently revised through a joint Tribal-NIGC working
group. While it has been in effect for a short time, the Commission has
received comments that the part should be further revised. Should NIGC
start with the current proposed draft? Should we establish a Tribal
Advisory Committee to participate? If so, how should the members be
selected? What will the revision process be? The Commission needs input
from the Tribal gaming community on this very important issue.
The Commission is seeking comment on whether this part should be
revised, how the Commission should prioritize its review of this part
in the regulatory review process, and whether the Commission should
utilize standard notice and comment rulemaking, a Tribal Advisory
Committee to assist in its regulatory review of this part, or another
process.
H. Backgrounds and Licensing
(1) Part 556--Background Investigations for Licensing
In 1997, the NIGC began a pilot program which allowed it to
effectively perform its duties of regulating background investigations
in a more timely fashion while reducing the amount of paperwork
submitted and
[[Page 70685]]
maintained, and accordingly reducing associated costs. Today, a
majority of the Tribes participate in the pilot program. Under the
program, the Commission allows Tribes to send in a list of employees
they either licensed or denied a license along with a one-page
Notification of Results (NOR). The Commission requests comment on
whether the pilot program should be formalized into regulations.
The Commission is seeking comment on whether regulations should be
promulgated to formalize the pilot program, how the Commission should
prioritize this issue in the regulatory review process, and whether the
Commission should utilize standard notice and comment rulemaking, a
Tribal Advisory Committee to assist in its regulatory review, or
another process.
(2) Fingerprinting for Non-Primary Management Officials or Key
Employees
Currently, the NIGC reviews fingerprint cards submitted by Tribes
for Primary Management Officials or Key Employees. However, some Tribes
have requested the ability to be able to submit fingerprint cards to
the NIGC for vendors, consultants, and other non-employees that have
access to the gaming operations. Under 25 U.S.C. 2706(b)(3), the
Commission may conduct or cause to be conducted such background
investigations as may be necessary. Should the Commission adopt
regulations that would allow Tribes, at their option, to submit
fingerprint cards to the Commission for vendors, consultants, and other
non-employees that have access to the gaming operations?
The Commission is seeking comment on whether regulations should be
promulgated to clarify this issue, how the Commission should prioritize
this issue in the regulatory review process, and whether the Commission
should utilize standard notice and comment rulemaking, a Tribal
Advisory Committee to assist in its regulatory review, or another
process.
I. Part 559--Facility License Notifications, Renewals, and Submissions
This part was recently adopted by the Commission. However, the NIGC
has received many comments concerning the substance of this regulation
from Tribes.
The Commission is seeking comment on whether this part should be
revised, how the Commission should prioritize its review of this part
in the regulatory review process, and whether the Commission should
utilize standard notice and comment rulemaking, a Tribal Advisory
Committee to assist in its regulatory review of this part, or another
process.
J. Sections 571.1-571.7--Inspection and Access
Under IGRA, the Commission may access and examine all papers,
books, and records regarding gross revenues of Class II gaming
conducted on Indian lands and any other matters necessary to carry out
the duties of the Commission. However, at times the Commission or Tribe
has been denied access to those records.
Should the Commission revise its regulations in Sec. Sec. 571.5
and 571.6 to clarify Commission access to records at off-site
locations, including at sites maintained or owned by third parties?
The Commission is seeking comment on whether this part should be
revised, how the Commission should prioritize its review of this part
in the regulatory review process, and whether the Commission should
utilize standard notice and comment rulemaking, a Tribal Advisory
Committee to assist in its regulatory review of this part, or another
process.
K. Part 573--Enforcement
Should NIGC promulgate a regulation concerning withdrawal of a
Notice of Violation (NOV) after it has been issued? The Commission is
looking for advice and input regarding whether this is an appropriate
issue for a regulation and if so, under what conditions or
circumstances the NOV could be withdrawn? Would it be appropriate to
allow the NOV to be withdrawn solely at the discretion of the
Chairperson? The Commission is seeking comment on this issue, how the
Commission should prioritize it in the regulatory review process, and
whether the Commission should utilize standard notice and comment
rulemaking, a Tribal Advisory Committee to assist it, or another
process.
V. Potential New Regulations
A. Tribal Advisory Committee
The Commission seeks comment on whether it should develop a
regulation or policy identifying when a Tribal Advisory Committee (TAC)
will be formed to provide input and advice to the NIGC and, if so, how
Committee members should be selected. Should the cost of the TAC be a
factor when considering whether to form a TAC? The Commission is
seeking comment on whether the Commission should consider a regulation
on this issue, how the Commission should prioritize it in the
regulatory review process, and whether the Commission should utilize
standard notice and comment rulemaking, a TAC to assist in its
regulatory review of this part, or another process.
B. Sole Proprietary Interest Regulation
Many Tribes and interested parties have approached the NIGC
requesting a determination regarding whether a single agreement, or a
combination of agreements, violate IGRA's sole proprietary interest
requirement. The IGRA requires that the Tribe have sole proprietary
interest in the gaming operation. Should the Commission consider a
regulation identifying when the sole proprietary interest provision is
violated and providing a process whereby at the Tribe's request the
NIGC will review the documents and made a determination?
The Commission is seeking comment on whether the Commission should
consider a regulation on this issue, how the Commission should
prioritize it in the regulatory review process, and whether the
Commission should utilize standard notice and comment rulemaking, a
Tribal Advisory Committee to assist in its regulatory review of this
part, or another process.
C. Communication Policy or Regulation Identifying When and How the NIGC
Communicates With Tribes
Should the NIGC develop a regulation or include as part of a
regulation a process for determining how it communicates with Tribes?
The NIGC has a government-to-government relationship with federally
recognized Tribes. However, given the nature of the NIGC's
responsibilities, often the NIGC staff communicates primarily with the
Tribal Gaming Commission (TGC) or Tribal Gaming Regulatory Agency
(TGRA). While in many instances this means of communication is
appropriate and works well, there are also times when the NIGC
communicates directly with Tribal governments on issues related to
broad policy changes or compliance issues such as a Notice of
Violation. How should the NIGC communicate with Tribes and TGCs if
those entities are at odds with each other on a particular issue?
Should the NIGC consider requiring a resolution from the elected Tribal
council setting forth which entity communicates the NIGC? Should such a
resolution be submitted with the annual fees or audit? Is this approach
unduly burdensome? Alternatively, should NIGC promulgate a regulation
or policy establishing a default method of formal communication unless
otherwise
[[Page 70686]]
directed by a resolution? The NIGC recognizes the many differences in
Tribal government structures. However, would a universal standard for
communication that can then be modified by each Tribe if they so choose
promote more effective regulatory communication?
The Commission is seeking comment on whether the Commission should
consider a regulation on this issue, how the Commission should
prioritize it in the regulatory review process, and whether the
Commission should utilize standard notice and comment rulemaking, a
Tribal Advisory Committee to assist in its regulatory review of this
part, or another process.
Further, the NIGC invites comment on whether to define the types of
communication that occur between the NIGC and the Tribe and Tribal
agencies. For example, a letter from the Chairperson regarding upcoming
Tribal consultations, proposed broad policy changes or Notice of
Violation could be considered a form of ``formal communication.''
Additionally, a letter from a Tribal chairperson requesting a meeting
or a request from the Tribe for the NIGC to perform an audit could also
be ``formal communication.'' However, the NIGC understands that
communications between the NIGC and the Tribe, TGC, and TGRA may not be
occurring in a uniform manner and wants to provide clarity for all the
parties. The NIGC welcomes any comment or suggestions regarding whether
the clarification is needed and if it should be formalized into a
regulation or policy.
D. Buy Indian Act Regulation
The Commission is considering adopting a regulation which would
require the NIGC to give preference to qualified Indian-owned
businesses when purchasing goods or services as defined by the ``Buy
Indian Act,'' 25 U.S.C. 47. As an agency with regulatory
responsibilities wholly related to Tribes, the Commission seeks comment
on whether it is appropriate to promulgate such a regulation. The
Commission is seeking advice and input from the Tribal gaming industry
about this issue, and whether a Tribal Advisory Committee should be
formed to make the change or if another process will be sufficient.
VI. Other Regulations
A. Part 501--Purpose and Scope
The NIGC does not believe this regulation is currently in need of
revision. However, we are interested in hearing any comments or
suggestions related to possible revisions to this part.
B. Part 503--Commission Information Collection Requirements Under the
Paperwork Reduction Act: OMB Control Numbers and Expiration Dates
The NIGC does not believe this regulation is currently in need of
revision. However, we are interested in hearing any comments or
suggestions related to possible revisions to this part.
C. Part 513--Debt Collection
The NIGC does not believe this regulation is currently in need of
revision. However, we are interested in hearing any comments or
suggestions related to possible revisions to this part.
D. Part 515--Privacy Act Procedures
The NIGC does not believe this regulation is currently in need of
revision. However, we are interested in hearing any comments or
suggestions related to possible revisions to this part.
E. Part 517--Freedom of Information Act Procedures
The NIGC does not believe this regulation is currently in need of
revision. However, we are interested in hearing any comments or
suggestions related to possible revisions to this part.
F. Part 522--Submission of Gaming Ordinance or Resolution
The NIGC does not believe these regulations are currently in need
of revision. However, we are interested in hearing any comments or
suggestions related to possible revisions to this part.
G. Part 531--Content of Management Contacts
The NIGC does not believe this regulation is currently in need of
revision. However, we are interested in hearing any comments or
suggestions related to possible revisions to this part.
H. Part 535--Post Approval Procedures
The NIGC does not believe this regulation is currently in need of
revision. However, we are interested in hearing any comments or
suggestions related to possible revisions to this part.
I. Sections 571.8-571.11--Subpoenas and Depositions
The NIGC does not believe these regulations are currently in need
of revision. However, we are interested in hearing any comments or
suggestions related to possible revisions to these sections.
J. Sections 571.12-571.14--Annual Audits
The NIGC does not believe these regulations are currently in need
of revision. However, we are interested in hearing any comments or
suggestions related to possible revisions to these sections.
K. Part 575--Civil Fines
The NIGC does not believe these regulations are currently in need
of revision. While the Commission was interested in seeing Tribal
dollars paid as a fine for a regulation violation returned to the
Tribes by funding the Commission activities, Federal law prohibits an
agency from keeping fines received from entities it regulates, and
fines are deposited in the U.S. Treasury. The view is that regulatory
agencies would then have an incentive to issue violations. However, we
are interested in hearing any comments or suggestions related to
possible revisions to this part.
Dated: November 12, 2010.
Tracie L. Stevens,
Chairwoman.
Steffani A. Cochran,
Vice-Chairwoman.
Daniel J. Little,
Associate Commissioner.
[FR Doc. 2010-29028 Filed 11-17-10; 8:45 am]
BILLING CODE 7565-01-P