Proposed Rule2021-25843
Submission of Gaming Ordinance or Resolution
Primary source
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Published
December 9, 2021
Issuing agencies
National Indian Gaming Commission
Abstract
The National Indian Gaming Commission (NIGC) proposes to amend the Submission of Gaming Ordinance or Resolution under the Indian Gaming Regulatory Act. The proposed rule would amend the regulations controlling the submission and approval requirements of tribal gaming ordinances or resolutions and amendments thereof. Notably, the proposed rule: Authorizes the submission of documents in electronic or physical form; clarifies that the submission requirements applies to amendments of ordinances or resolutions; eliminates the requirement that an Indian tribe provide copies of all gaming regulations with its submission; requires tribes to submit a copy of pertinent governing documents; initiates the 90-day deadline for the NIGC's Chair ruling upon receipt of a complete submission; and eliminates the requirement that the NICG Chair publish a tribe's entire gaming ordinance in the Federal Register.
Full Text
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<title>Federal Register, Volume 86 Issue 234 (Thursday, December 9, 2021)</title>
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[Federal Register Volume 86, Number 234 (Thursday, December 9, 2021)]
[Proposed Rules]
[Pages 70067-70070]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-25843]
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NATIONAL INDIAN GAMING COMMISSION
25 CFR Part 522
RIN 3141-AA73
Submission of Gaming Ordinance or Resolution
AGENCY: National Indian Gaming Commission.
ACTION: Proposed rule.
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SUMMARY: The National Indian Gaming Commission (NIGC) proposes to amend
the Submission of Gaming Ordinance or Resolution under the Indian
Gaming Regulatory Act. The proposed rule would amend the regulations
controlling the submission and approval requirements of tribal gaming
ordinances or resolutions and amendments thereof. Notably, the proposed
rule: Authorizes the submission of documents in electronic or physical
form; clarifies that the submission requirements applies to amendments
of ordinances or resolutions; eliminates the requirement that an Indian
tribe provide copies of all gaming regulations with its submission;
requires tribes to submit a copy of pertinent governing documents;
initiates the 90-day deadline for the NIGC's Chair ruling upon receipt
of a complete submission; and eliminates the requirement that the NICG
Chair publish a tribe's entire gaming ordinance in the Federal
Register.
DATES: The agency must receive comments on or before January 10, 2022.
ADDRESSES: You may send comments by any of the following methods:
<bullet> Federal eRulemaking Portal: Go to <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow the instructions for submitting comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#dcb5b2bab3aeb1bda8b5b3b29cb2b5bbbff2bbb3aa"><span class="__cf_email__" data-cfemail="c7aea9a1a8b5aaa6b3aea8a987a9aea0a4e9a0a8b1">[email protected]</span></a>.
<bullet> Fax: (202) 632-7066.
<bullet> Mail: National Indian Gaming Commission, 1849 C Street NW,
MS 1621, Washington, DC 20240.
<bullet> Hand Delivery: National Indian Gaming Commission, 90 K
Street NE, Suite 200, Washington, DC 20002, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: James A. Lewis, National Indian Gaming
Commission; Telephone: (202) 632-7003.
SUPPLEMENTARY INFORMATION:
I. Comments Invited
Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments as they
may desire. Comments providing the factual basis behind supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal.
II. Background
The Indian Gaming Regulatory Act (IGRA or Act), Public Law 100-497,
25 U.S.C. 2701 et seq., was signed into law on October 17, 1988. The
Act establishes the National Indian Gaming Commission (NIGC or
Commission) and sets out a comprehensive framework for the regulation
of gaming on Indian lands.
[[Page 70068]]
On January 22, 1993, the NIGC published a final rule in the Federal
Register called Submission of Gaming Ordinance or Resolution. 58 FR
5810. The rule added part 522, which established a process for Indian
tribes to submit a gaming ordinance, resolution, or amendment for the
NIGC Chair's review and approval as required by 25 U.S.C. 2710(b)(2)
and (d)(2)(a). The NIGC's intent was to assist tribal gaming operators
with maintaining compliance with IGRA and implement its provisions
germane to gaming ordinances or resolutions. The Commission promulgated
three minor amendments thereafter. 58 FR 16494, 73 FR 6029, and 80 FR
31994.
On March 23, 1993, the Commission amended its submission
requirements at Sec. 522.2(h) to include identification of a law
enforcement agency that will take fingerprints and a description of the
procedures for conducting a criminal history check by a law enforcement
agency. 58 FR 16494.
On February 1, 2008, the Commission amended Part 522's submission
requirements to codify that a tribe shall provide Indian lands or
environmental and public health and safety documentation upon the NIGC
Chair's request, 25 U.S.C. 2710(b), (2)(e), and (d)(1). 73 FR 6029.
On June 5, 2015, the Commission amended part 522 to remove and
update references to other regulations and make minor grammatical
changes. 80 FR 31994.
To date, it has been approximately twenty-eight years since the
NIGC first promulgated part 522, with few revisions. During the
intervening period, Indian gaming has undergone a meteoric expansion.
One of the many benefits of that expansion includes the NIGC's
continued utilization of part 522, which has manifested into a robust
understanding of how to improve the regulations. The proposed
amendments below codify that intent.
III. Development of the Proposed Rule
On June 9, 2021, the National Indian Gaming Commission sent a
Notice of Consultation announcing that the Agency intended to consult
on a number of topics, including proposed changes to the gaming
ordinance or resolution submission process. Prior to consultation, the
Commission released proposed discussion drafts of the regulations for
review. The proposed amendment to the gaming ordinance or resolution
submission regulations are intended to improve the Agency's efficiency
in processing gaming ordnance or resolution submissions, clarify
existing regulations, and eliminate unnecessary obstacles for tribal
gaming operators. The Commission held two virtual consultation sessions
in July of 2021 to receive tribal input on the possible changes.
The Commission reviewed all of the public's comments and now
proposes these changes, which it believes will improve the gaming
ordinance or resolution submission process.
IV. Regulatory Matters
Regulatory Flexibility Act
The proposed rule will not have a significant impact on a
substantial number of small entities as defined under the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq. Moreover, Indian tribes are not
considered to be small entities for the purposes of the Regulatory
Flexibility Act.
Small Business Regulatory Enforcement Fairness Act
The proposed rule is not a major rule under 5 U.S.C. 804(2), the
Small Business Regulatory Enforcement Fairness Act. The rulemaking does
not have an effect on the economy of $100 million or more. The
rulemaking will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, local government
agencies or geographic regions. Nor will the rulemaking have a
significant adverse effect on competition, employment, investment,
productivity, innovation, or the ability of the enterprises, to compete
with foreign based enterprises.
Unfunded Mandate Reform Act
The Commission, as an independent regulatory agency, is exempt from
compliance with the Unfunded Mandates Reform Act, 2 U.S.C. 1502(1); 2
U.S.C. 658(1).
Takings
In accordance with Executive Order 12630, the Commission has
determined that the rulemaking does not have significant takings
implications. A takings implication assessment is not required.
Civil Justice Reform
In accordance with Executive Order 12988, the Commission has
determined that the rulemaking does not unduly burden the judicial
system and meets the requirements of section 3(a) and 3(b)(2) of the
Order.
National Environmental Policy Act
The Commission has determined that the rulemaking does not
constitute a major federal action significantly affecting the quality
of the human environment and that no detailed statement is required
pursuant to the National Environmental Policy Act of 1969, 42 U.S.C.
4321, et seq.
Paperwork Reduction Act
The information collection requirements contained in this
rulemaking were previously approved by the Office of Management and
Budget (OMB) as required by 44 U.S.C. 3501 et seq. and assigned OMB
Control Number 3141-0003.
Tribal Consultation
The National Indian Gaming Commission is committed to fulfilling
its tribal consultation obligations--whether directed by statute or
administrative action such as Executive Order (E.O.) 13175
(Consultation and Coordination with Indian Tribal Governments)--by
adhering to the consultation framework described in its Consultation
Policy published July 15, 2013. The NIGC's consultation policy
specifies that it will consult with tribes on Commission Action with
Tribal Implications, which is defined as: Any Commission regulation,
rulemaking, policy, guidance, legislative proposal, or operational
activity that may have a substantial direct effect on an Indian tribe
on matters including, but not limited to the ability of an Indian tribe
to regulate its Indian gaming; an Indian tribe's formal relationship
with the Commission; or the consideration of the Commission's trust
responsibilities to Indian tribes.
Pursuant to this policy, on June 9, 2021, the National Indian
Gaming Commission sent a Notice of Consultation announcing that the
Agency intended to consult on a number of topics, including proposed
changes to the gaming ordinance or resolution submission and approval
process.
List of Subjects in 25 CFR Part 522
Gambling, Indian--lands, Indian--tribal government, Reporting and
recordkeeping requirements.
0
Therefore, for reasons stated in the preamble, the National Indian
Gaming Commission proposes to revise 25 CFR part 522 is amended as
follows:
PART 522--SUBMISSION OF GAMING ORDINANCE OR RESOLUTION
Sec.
522.1 Scope of this part.
522.2 Submission requirements.
522.3 Amendment.
522.4 Amendment Approvals and Disapprovals.
[[Page 70069]]
522.5 Approval requirements for class II ordinances.
522.6 Disapproval of a class II ordinance.
522.7 Approval requirements for class III ordinances.
522.8 Disapproval of a class III ordinance.
522.9 Publication of class III ordinance and approval.
522.10 Approval by operation of law.
522.11 Individually owned class II and class III gaming operations
other than those operating on September 1, 1986.
522.12 Individually owned class II gaming operations operating on
September 1, 1986.
522.13 Revocation of class III gaming.
Authority: 25 U.S.C. 2706, 2710, 2712.
Sec. 522.1 Scope of this part.
This part applies to any class II or class III gaming ordinance or
resolution or amendment thereto adopted by a tribe.
Sec. 522.2 Submission requirements.
A tribe shall submit to the Chair all of the following information
with a request for approval of a class II or class III ordinance or
resolution or amendment thereto:
(a) One copy of an ordinance or resolution certified as authentic
by an authorized tribal official that meets the approval requirements
in Sec. 522.4(b) or Sec. 522.6 of this part;
(b) A copy of the procedures to conduct or cause to be conducted
background investigations on key employees and primary management
officials and to ensure that key employees and primary management
officials are notified of their rights under the Privacy Act as
specified in Sec. 556.2 of this chapter;
(c) A copy of the procedures to issue tribal licenses to primary
management officials and key employees promulgated in accordance with
Sec. 558.3 of this chapter;
(d) A copy of the tribe's constitution, governing document(s), or
an accurate and true description of the Tribe's governmental entity and
authority to enact the submitted ordinance or resolution;
(e) When an ordinance or resolution concerns class III gaming, a
copy of any approved tribal-state compact or class III procedures as
prescribed by the Secretary that are in effect at the time the
ordinance or amendment is passed;
(f) A copy of the procedures for resolving disputes between the
gaming public and the tribe or the management contractor;
(g) A copy of the designation of an agent for service under Sec.
519.1 of this chapter; and
(h) Identification of the entity that will take fingerprints and a
copy of the procedures for conducting a criminal history check. Such a
criminal history check shall include a check of criminal history
records information maintained by the Federal Bureau of Investigation.
(i) A tribe shall provide Indian lands or tribal gaming regulations
or environmental and public health and safety documentation that the
Chair may request in the Chair's discretion. The tribe shall have 30
days from receipt of a request for additional documentation to respond.
Sec. 522.3 Amendment.
(a) Within 15 days after adoption, a tribe shall submit for the
Chair's approval any amendment to an ordinance or resolution.
(b) A tribe shall submit to the Chair all of the following
information with a request for approval of an amendment:
(1) One copy of the amendment certified as authentic by an
authorized tribal official; and
(2) Any submission under Sec. 522.2(b) through (h) of this part
that have been modified since their prior conveyance to the Chair for
an ordinance, resolution, or amendment approval.
(3) A conforming copy of the entire ordinance or resolution
containing the requested modifications.
Sec. 522.4 Amendment approvals and disapprovals.
(a) No later than 90 days after the submission of any amendment to
a class II ordinance or resolution that includes all the of information
required by Sec. 522.3(b) of this part, the Chair shall approve the
amendment if the Chair finds that:
(1) A tribe meets the amendment submission requirements of Sec.
522.3(b); and
(2) The amendment complies with Sec. 522.5(b). No later than 90
days after a tribe submits any amendment to a class II ordinance for
approval, the Chair may disapprove the amendment if it determines that
a tribe failed to comply with the requirements of Sec. 522.3 or (a)(1)
and (2) of this section. The Chair shall notify a tribe of its right to
appeal under part 582 of this chapter. A disapproval shall be effective
immediately unless appealed under part 582 of this chapter.
(b) No later than 90 days after the submission of any amendment to
a class III ordinance or resolution, the Chair shall approve the
amendment if the Chair finds that--
(1) A tribe meets the amendment submission requirements of Sec.
522.3(b); and
(2) The amendment complies with Sec. 522.7(b) and (c).
(c) No later than 90 days after a tribe submits any amendment to a
class III ordinance for approval, the Chair may disapprove the
amendment if it determines that--
(1) A tribal governing body did not adopt the amendment in
compliance with the governing documents of the tribe; or
(2) A tribal governing body was significantly and unduly influenced
in the adoption of the amendment by a person having a direct or
indirect financial interest in a management contract, a person having
management responsibility for a management contract, or their agents.
(3) A disapproval shall be effective immediately unless appealed
under part 582 of this chapter.
Sec. 522.5 Approval requirements for class II ordinances.
No later than 90 days after the submission to the Chair including
all materials required under Sec. 522.2 of this part, the Chair shall
approve the class II ordinance or resolution if the Chair finds that:
(a) A tribe meets the submission requirements contained in Sec.
522.2 of this part; and
(b) The class II ordinance or resolution provides that--
(1) The tribe shall have the sole proprietary interest in and
responsibility for the conduct of any gaming operation unless it elects
to allow individually owned gaming under either Sec. 522.11 or Sec.
522.12 of this part;
(2) A tribe shall use net revenues from any tribal gaming or from
any individually owned games only for one or more of the following
purposes:
(i) To fund tribal government operations or programs;
(ii) To provide for the general welfare of the tribe and its
members (if a tribe elects to make per capita distributions, the plan
must be approved by the Secretary of the Interior under 25 U.S.C.
2710(b)(3));
(iii) To promote tribal economic development;
(iv) To donate to charitable organizations; or
(v) To help fund operations of local government agencies;
(3) A tribe shall cause to be conducted independent audits of
gaming operations annually and shall submit the results of those audits
to the Commission;
(4) All gaming related contracts that result in purchases of
supplies, services, or concessions for more than $25,000 in any year
(except contracts for professional legal or accounting services) shall
be specifically included
[[Page 70070]]
within the scope of the audit conducted under paragraph (b)(3) of this
section;
(5) A tribe shall perform background investigations and issue
licenses for key employees and primary management officials according
to requirements that are at least as stringent as those in parts 556
and 558 of this chapter;
(6) A tribe shall issue a separate license to each place, facility,
or location on Indian lands where a tribe elects to allow class II
gaming; and
(7) A tribe shall construct, maintain and operate a gaming facility
in a manner that adequately protects the environment and the public
health and safety.
(8) A tribe that subsequently amends a gaming ordinance pending
before the Chair shall also provide an authentic resolution withdrawing
the pending submission and resubmitting the revised submission.
Sec. 522.6 Disapproval of a class II ordinance.
No later than 90 days after a tribe submits an ordinance for
approval under Sec. 522.2 of this part, the Chair may disapprove an
ordinance if it determines that a tribe failed to comply with the
requirements of Sec. 522.2 or Sec. 522.5(b) of this part. The Chair
shall notify a tribe of its right to appeal under part 582 of this
chapter. A disapproval shall be effective immediately unless appealed
under part 582 of this chapter.
Sec. 522.7 Approval requirements for class III ordinances.
No later than 90 days after the submission to the Chair under Sec.
522.2 of this part, the Chair shall approve the class III ordinance or
resolution if:
(a) A tribe meets the submission requirements contained in Sec.
522.2 of this part;
(b) The ordinance or resolution meets the requirements contained in
Sec. 522.5(b) (2), (3), (4), (5), (6), and (7) of this part; and
(c) The tribe shall have the sole proprietary interest in and
responsibility for the conduct of any gaming operation unless it elects
to allow individually owned gaming under Sec. 522.11 of this part.
Sec. 522.8 Disapproval of a class III ordinance.
(a) Notwithstanding compliance with the requirements of Sec. 522.7
of this part and no later than 90 days after a submission under Sec.
522.2 of this part, the Chair shall disapprove an ordinance or
resolution and notify a tribe of its right of appeal under part 582 of
this chapter if the Chair determines that:
(1) A tribal governing body did not adopt the ordinance or
resolution in compliance with the governing documents of the tribe; or
(2) A tribal governing body was significantly and unduly influenced
in the adoption of the ordinance or resolution by a person having a
direct or indirect financial interest in a management contract, a
person having management responsibility for a management contract, or
their agents.
(b) A disapproval shall be effective immediately unless appealed
under part 582 of this chapter.
Sec. 522.9 Publication of class III ordinance and approval.
The Chair shall publish notice of approval of class III tribal
gaming ordinances or resolutions in the Federal Register, along with
the Chair's approval thereof.
Sec. 522.10 Approval by operation of law.
If the Chair fails to approve or disapprove an ordinance or
resolution or amendment thereto submitted under Sec. 522.2 or Sec.
522.3 of this part within 90 days after the date of submission to the
Chair, a tribal ordinance or resolution or amendment thereto shall be
considered to have been approved by the Chair but only to the extent
that such ordinance or resolution or amendment thereto is consistent
with the provisions of the Act and this chapter.
Sec. 522.11 Individually owned class II and class III gaming
operations other than those operating on September 1, 1986.
For licensing of individually owned gaming operations other than
those operating on September 1, 1986 (addressed under Sec. 522.12 of
this part), a tribal ordinance shall require:
(a) That the gaming operation be licensed and regulated under an
ordinance or resolution approved by the Chair;
(b) That income to the tribe from an individually owned gaming
operation be used only for the purposes listed in Sec. 522.4(b)(2) of
this part;
(c) That not less than 60 percent of the net revenues be income to
the tribe;
(d) That the owner pay an assessment to the Commission under Sec.
514.1 of this chapter;
(e) Licensing standards that are at least as restrictive as those
established by State law governing similar gaming within the
jurisdiction of the surrounding State; and
(f) Denial of a license for any person or entity that would not be
eligible to receive a State license to conduct the same activity within
the jurisdiction of the surrounding State. State law standards shall
apply with respect to purpose, entity, pot limits, and hours of
operation.
Sec. 522.12 Individually owned class II gaming operations operating
on September 1, 1986.
For licensing of individually owned gaming operations operating on
September 1, 1986, under Sec. 502.3(e) of this chapter, a tribal
ordinance shall contain the same requirements as those in Sec.
522.11(a)-(d) of this part.
Sec. 522.13 Revocation of class III gaming.
A governing body of a tribe, in its sole discretion and without the
approval of the Chair, may adopt an ordinance or resolution revoking
any prior ordinance or resolution that authorizes class III gaming.
(a) A tribe shall submit to the Chair one copy of any revocation
ordinance or resolution certified as authentic by an authorized tribal
official.
(b) The Chairman shall publish such ordinance or resolution in the
Federal Register and the revocation provided by such ordinance or
resolution shall take effect on the date of such publication.
(c) Notwithstanding any other provision of this section, any person
or entity operating a class III gaming operation on the date of
publication in the Federal Register under paragraph (b) of this section
may, during a one-year period beginning on the date of publication,
continue to operate such operation in conformance with a tribal-state
compact.
(d) A revocation shall not affect:
(1) Any civil action that arises during the one-year period
following publication of the revocation; or
(2) Any crime that is committed during the one-year period
following publication of the revocation.
Dated: November 18, 2021.
E. Sequoyah Simermeyer,
Chairman.
[FR Doc. 2021-25843 Filed 12-8-21; 8:45 am]
BILLING CODE 7565-01-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.