Proposed Rule2022-06617
Self-Regulation of Class II Gaming
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 7, 2022
Issuing agencies
Interior DepartmentNational Indian Gaming Commission
Abstract
The National Indian Gaming Commission (NIGC) proposes to amend its regulations regarding self-regulation of Class II gaming under the Indian Gaming Regulatory Act. The proposed rule will amend the regulations to address an ambiguity in the petitioning process and clarify and expand the Office of Self-Regulation's (OSR) role once the Commission issues a certificate. Notably, the proposed rule: Clarifies the NIGC may issue a final decision on issuing a certificate within 30 days instead of after 30 days; enumerates the OSR is the correct party to receive notifications of material changes from self-regulated tribes; clarifies the OSR will be the proponent of any case to revoke a certificate of self-regulation before the Commission; enables the OSR to obtain information from a self-regulated tribe; and clarifies that, in any revocation proceeding, the OSR has the burden to show just cause for the revocation and carry that burden by a preponderance of the evidence.
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 67 (Thursday, April 7, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 67 (Thursday, April 7, 2022)]
[Proposed Rules]
[Pages 20351-20354]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-06617]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 87, No. 67 / Thursday, April 7, 2022 /
Proposed Rules
[[Page 20351]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
25 CFR Part 518
RIN 3141-AA72
Self-Regulation of Class II Gaming
AGENCY: National Indian Gaming Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The National Indian Gaming Commission (NIGC) proposes to amend
its regulations regarding self-regulation of Class II gaming under the
Indian Gaming Regulatory Act. The proposed rule will amend the
regulations to address an ambiguity in the petitioning process and
clarify and expand the Office of Self-Regulation's (OSR) role once the
Commission issues a certificate. Notably, the proposed rule: Clarifies
the NIGC may issue a final decision on issuing a certificate within 30
days instead of after 30 days; enumerates the OSR is the correct party
to receive notifications of material changes from self-regulated
tribes; clarifies the OSR will be the proponent of any case to revoke a
certificate of self-regulation before the Commission; enables the OSR
to obtain information from a self-regulated tribe; and clarifies that,
in any revocation proceeding, the OSR has the burden to show just cause
for the revocation and carry that burden by a preponderance of the
evidence.
DATES: The agency must receive comments on or before June 6, 2022.
ADDRESSES: You may send comments by any of the following methods:
<bullet> Federal eRulemaking Portal: Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the instructions for submitting comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#e68f888089948b87928f8988a6888f8185c8818990"><span class="__cf_email__" data-cfemail="d8b1b6beb7aab5b9acb1b7b698b6b1bfbbf6bfb7ae">[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.
On January 31, 2012, the Commission published a notice of proposed
rulemaking to promulgate part 518, the procedures controlling self-
regulation. 77 FR 4714 (Jan. 31, 2012). Once promulgated, part 518
established the procedures for the Commission and the OSR to, among
other things, receive, evaluate, recommend, issue, deny, or revoke a
certificate of self-regulation.
On September 1, 2013, after initial publication, the Commission
enacted minor revisions to part 518 to amend certain timelines and an
incorrect section heading and reference to IGRA. 78 FR 37114 (Sept. 1,
2013).
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 several topics, including proposed changes to the procedures
controlling self-regulation. Prior to consultation, the Commission
released proposed discussion drafts of the regulations for review. The
proposed amendments to the procedures controlling self-regulation are
intended to improve the Agency's efficiency in evaluating petitions for
self-regulation, reduce the time it takes to obtain a certificate of
self-regulation and clarify the Office of Self-Regulation's functions.
The Commission held two virtual consultation sessions in September and
one virtual consultation in October of 2021 to receive tribal input on
any proposed changes.
The Commission reviewed all comments received through consultation
and now proposes these changes, which it believes will improve the
procedures for self-regulation.
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 rule does not
have an effect on the economy of $100 million or more. The rule 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 proposed rule 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 proposed rule 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 proposed rule does not unduly
[[Page 20352]]
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 proposed rule 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 rule 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 to the public,
announcing the Agency intended to consult on several topics, including
proposed changes to the procedures for self-regulation. The Commission
held two virtual consultation sessions in September and one virtual
consultation session in October of 2021 to receive tribal input on
proposed changes.
List of Subjects in 25 CFR Part 518
Gambling, Indian--lands, Indian--tribal government, Reporting and
recordkeeping requirements.
Therefore, for reasons stated in the preamble, 25 CFR part 518 is
proposed to be amended as follows:
PART 518--SELF-REGULATION OF CLASS II GAMING
0
1. The authority citation for part 518 is amended to read as follows:
Authority: 25 U.S.C. 2706(b)(10); 25 U.S.C. 2710(c).
0
2. Revise Sec. Sec. 518.1 through 518.7 to read as follows:
Sec.
518.1 What does this part cover?
518.2 Who will administer the self-regulation program for the
Commission?
518.3 Who is eligible to petition for a certificate of self-
regulation?
518.4 What must a tribe submit to the Commission as part of its
petition?
518.5 What criteria must a tribe meet to receive a certificate of
self-regulation?
518.6 What are the responsibilities of the Office of Self-Regulation
in the certification process?
518.7 What process will the Commission use to review and certify
petitions?
* * * * *
Sec. 518.1 What does this part cover?
This part sets forth requirements for obtaining a certificate of
self-regulation of Class II gaming operations under 25 U.S.C. 2710(c).
When the Commission issues a certificate of self-regulation, the
certificate is issued to the tribe, not to a particular gaming
operation. The certificate applies to all Class II gaming activity
conducted by the tribe holding the certificate.
Sec. 518.2 Who will administer the self-regulation program for the
Commission?
The self-regulation program will be administered by the Office of
Self-Regulation. The Chair shall appoint a Director to administer the
Office of Self-Regulation.
Sec. 518.3 Who is eligible to petition for a certificate of self-
regulation?
A tribe is eligible to petition the Commission for a certificate of
self-regulation of Class II gaming if, for a three (3)-year period
immediately preceding the date of its petition:
(a) The tribe has continuously conducted such gaming;
(b) All gaming that the tribe has engaged in, or has licensed and
regulated, on Indian lands within the tribe's jurisdiction, is located
within a State that permits such gaming for any purpose by any person,
organization or entity (and such gaming is not otherwise specifically
prohibited on Indian lands by Federal law), in accordance with 25
U.S.C. 2710(b)(1)(A);
(c) The governing body of the tribe has adopted an ordinance or
resolution that the Chair has approved, in accordance with 25 U.S.C.
2710(b)(1)(B);
(d) The tribe has otherwise complied with the provisions of 25
U.S.C. 2710; and
(e) The gaming operation and the tribal regulatory body have, for
the three (3) years immediately preceding the date of the petition,
maintained all records required to support the petition for self-
regulation.
Sec. 518.4 What must a tribe submit to the Commission as part of its
petition?
A petition for a certificate of self-regulation is complete under
this part when it contains:
(a) Two copies on 8\1/2\'' x 11'' paper of a petition for self-
regulation approved by the governing body of the tribe and certified as
authentic by an authorized tribal official;
(b) A description of how the tribe meets the eligibility criteria
in Sec. 518.3, which may include supporting documentation; and
(c) The following information with supporting documentation:
(1) A brief history of each gaming operation(s), including the
opening dates and periods of voluntary or involuntary closure;
(2) An organizational chart of the tribal regulatory body;
(3) A brief description of the criteria tribal regulators must meet
before being eligible for employment as a tribal regulator;
(4) A brief description of the process by which the tribal
regulatory body is funded, and the funding level for the three years
immediately preceding the date of the petition;
(5) A list of the current regulators and employees of the tribal
regulatory body, their complete resumes, their titles, the dates they
began employment, and, if serving limited terms, the expiration date of
such terms;
(6) A brief description of the accounting system(s) at the gaming
operation which tracks the flow of the gaming revenues;
(7) A list of gaming activity internal controls at the gaming
operation(s);
(8) A description of the record keeping system(s) for all
investigations, enforcement actions, and prosecutions of violations of
the tribal gaming ordinance or regulations, for the three (3)-year
period immediately preceding the date of the petition; and
(9) The tribe's current set of gaming regulations, if not included
in the approved tribal gaming ordinance.
Sec. 518.5 What criteria must a tribe meet to receive a certificate
of self-regulation?
(a) The Commission shall issue a certificate of self-regulation if
it determines that for a three (3)-year period, the tribe has:
[[Page 20353]]
(1) Conducted its gaming activity in a manner that:
(i) Has resulted in an effective and honest accounting of all
revenues;
(ii) Has resulted in a reputation for safe, fair, and honest
operation of the activity; and
(iii) Has been generally free of evidence of criminal or dishonest
activity;
(2) Conducted its gaming operation on a fiscally and economically
sound basis;
(3) Conducted its gaming activity in compliance with the Indian
Gaming Regulatory Act (IGRA), Commission regulations in this chapter,
and the tribe's gaming ordinance and gaming regulations; and
(4) Adopted and is implementing adequate systems for:
(i) Accounting of all revenues from the gaming activity;
(ii) Investigating, licensing and monitoring of all employees of
the gaming activity;
(iii) Investigating, enforcing, prosecuting, or referring for
prosecution violations of its gaming ordinance and regulations; and
(iv) Prosecuting criminal or dishonest activity or referring such
activity for prosecution.
(b) A tribe may illustrate that it has met the criteria listed in
paragraph (a) of this section by addressing factors such as those
listed in paragraphs (b)(1) through (9) of this section. The list of
factors is not all-inclusive; other factors not listed here may also be
addressed and considered.
(1) The tribe adopted and is implementing minimum internal control
standards which are at least as stringent as those promulgated by the
Commission;
(2) The tribe requires tribal gaming regulators to meet the same
suitability requirements as those required for key employees and
primary management officials of the gaming operation(s);
(3) The tribe's gaming operation utilizes an adequate system for
accounting of all gaming revenues from Class II gaming activity;
(4) The tribe has a dispute resolution process for gaming operation
customers and has taken steps to ensure that the process is adequately
implemented;
(5) The tribe has a gaming regulatory body which:
(i) Monitors gaming activities to ensure compliance with Federal
and tribal laws and regulations;
(ii) Monitors the gaming revenues accounting system for continued
effectiveness;
(iii) Performs routine operational or other audits of the Class II
gaming activities;
(iv) Routinely receives and reviews gaming revenue accounting
information from the gaming operation(s);
(v) Has access to, and may inspect, examine, photocopy and audit,
all papers, books, and records of the gaming operation(s) and Class II
gaming activities;
(vi) Monitors compliance with minimum internal control standards
for the gaming operation;
(vii) Has adopted and is implementing an adequate system for
investigating, licensing, and monitoring of all employees of the gaming
activity;
(viii) Maintains records on licensees and on persons denied
licenses, including persons otherwise prohibited from engaging in
gaming activities within the tribe's jurisdiction;
(ix) Establishes standards for, and issues, vendor licenses or
permits to persons or entities who deal with the gaming operation, such
as manufacturers and suppliers of services, equipment and supplies;
(x) Establishes or approves the rules governing Class II games, and
requires their posting;
(xi) Has adopted and is implementing an adequate system for the
investigation of possible violations of the tribal gaming ordinance and
regulations, and takes appropriate enforcement actions; and
(xii) Takes testimony and conducts hearings on regulatory matters,
including matters related to the revocation of primary management
officials, key employee and vendor licenses;
(6) The tribe allocates and appropriates a sufficient source of
permanent and stable funding for the tribal regulatory body;
(7) The tribe has adopted and is implementing a conflict of
interest policy for the regulators/regulatory body and their staff;
(8) The tribe has adopted and is implementing a system for adequate
prosecution of violations of the tribal gaming ordinance and
regulations or referrals for prosecution; and
(9) The tribe demonstrates that the operation is being conducted in
a manner which adequately protects the environment and the public
health and safety.
(c) The tribe assists the Commission with access and information-
gathering responsibilities during the certification process.
(d) The burden of establishing self-regulation is upon the tribe
filing the petition.
Sec. 518.6 What are the responsibilities of the Office of Self-
Regulation in the certification process?
The Office of Self-Regulation shall be responsible for directing
and coordinating the certification process. It shall provide a written
report and recommendation to the Commission as to whether a certificate
of self-regulation should be issued or denied, and a copy of the report
and recommendation to the petitioning tribe.
Sec. 518.7 What process will the Commission use to review and certify
petitions?
(a) Petitions for self-regulation shall be submitted by tribes to
the Office of Self-Regulation.
(1) Within 30 days of receipt of a tribe s petition, the Office of
Self-Regulation shall conduct a review of the tribe's petition to
determine whether it is complete under Sec. 518.4.
(2) If the tribe's petition is incomplete, the Office of Self-
Regulation shall notify the tribe by letter, certified mail or return
receipt requested, of any obvious deficiencies or significant omissions
in the petition. A tribe with an incomplete petition may submit
additional information and/or clarification within 30 days of receipt
of notice of an incomplete petition.
(3) If the tribe's petition is complete, the Office of Self-
Regulation shall notify the tribe in writing.
(b) Once a tribe's petition is complete, the Office of Self-
Regulation shall conduct a review to determine whether the tribe meets
the eligibility criteria in Sec. 518.3 and the approval criteria in
Sec. 518.5. During its review, the Office of Self-Regulation:
(1) May request from the tribe any additional material it deems
necessary to assess whether the tribe has met the criteria for self-
regulation.
(2) Will coordinate an on-site review and verification of the
information submitted by the petitioning tribe.
(c) Within 120 days of notice of a complete petition under Sec.
518.4, the Office of Self-Regulation shall provide a recommendation and
written report to the full Commission and the petitioning tribe.
(1) If the Office of Self-Regulation determines that the tribe has
satisfied the criteria for a certificate of self-regulation, it shall
recommend to the Commission that a certificate be issued to the tribe.
(2) If the Office of Self-Regulation determines that the tribe has
not met the criteria for a certificate of self-regulation, it shall
recommend to the Commission that it not issue a certificate to the
tribe.
(3) The Office of Self-Regulation shall make all information, on
which it relies
[[Page 20354]]
in making its recommendation and report, available to the tribe,
subject to the confidentiality requirements in 25 U.S.C. 2716(a), and
shall afford the tribe an opportunity to respond.
(4) The report shall include:
(i) Findings as to whether each of the eligibility criteria is met,
and a summary of the basis for each finding;
(ii) Findings as to whether each of the approval criteria is met,
and a summary of the basis for each finding;
(iii) A recommendation to the Commission as to whether it should
issue the tribe a certificate of self-regulation; and
(iv) A list of any documents and other information received in
support of the tribe's petition.
(5) A tribe shall have 30 days from the date of issuance of the
report to submit to the Office of Self-Regulation a response to the
report.
(d) After receiving the Office of Self-Regulation's recommendation
and report, and a tribe's response to the report, the Commission shall
issue preliminary findings as to whether the eligibility and approval
criteria are met. The Commission's preliminary findings will be
provided to the tribe within 45 days of receipt of the report.
(e) Upon receipt of the Commission's preliminary findings, the
tribe can request, in writing, a hearing before the Commission, as set
forth in Sec. 518.8. Hearing requests shall be made to the Office of
Self-Regulation and shall specify the issues to be addressed by the
tribe at the hearing and any proposed oral or written testimony the
tribe wishes to present.
(f) The Commission shall issue a final determination within 30 days
after issuance of its preliminary findings if the tribe has informed
the Commission in writing that the tribe does not request a hearing or
within 30 days after the conclusion of a hearing, if one is held. The
decision of the Commission to approve or deny a petition shall be a
final agency action.
(g) A tribe may withdraw its petition and resubmit it at any time
prior to the issuance of the Commission's final determination.
0
3. Revise Sec. 518.11 to read as follows:
Sec. 518.11 Does a tribe that holds a certificate of self-regulation
have a continuing duty to advise the Commission of any additional
information?
Yes. A tribe that holds a certificate of self-regulation has a
continuing duty to advise the Office of Self-Regulation within ten
business days of any changes in circumstances that are material to the
approval criteria in Sec. 518.5 and may reasonably cause the
Commission to review and revoke the tribe's certificate of self-
regulation. Failure to do so is grounds for revocation of a certificate
of self-regulation.
0
4. Revise Sec. Sec. 518.13 and 518.14 to read as follows:
Sec. 518.13 When may the Commission revoke a certificate of self-
regulation?
If the Office of Self-Regulation determines that the tribe no
longer meets or did not comply with the eligibility criteria of Sec.
518.3, the approval criteria of Sec. 518.5, the requirements of Sec.
518.10, or the requirements of Sec. 518.11, the Office of Self-
Regulation shall prepare a written recommendation to the Commission and
deliver a copy of the recommendation to the tribe. The Office of Self-
Regulation's recommendation shall state the reasons for the
recommendation and shall advise the tribe of its right to a hearing
under part 584 of this chapter or right to appeal under part 585 of
this chapter. The Commission may, after an opportunity for a hearing,
revoke a certificate of self-regulation by a majority vote of its
members if it determines that the tribe no longer meets or did not
comply with the eligibility criteria of Sec. 518.3, the approval
criteria of Sec. 518.5, the requirements of Sec. 518.10, or the
requirements of Sec. 518.11.
Sec. 518.14 May a tribe request a hearing on the Commission's
proposal to revoke its certificate of self-regulation?
Yes. A tribe may request a hearing regarding the Office of Self-
Regulation's recommendation that the Commission revoke a certificate of
self-regulation. Such a request shall be filed with the Commission
pursuant to part 584 of this chapter. Failure to request a hearing
within the time provided by part 584 of this chapter shall constitute a
waiver of the right to a hearing. At any hearing where the Commission
considers revoking a certificate, the Office of Self-Regulation bears
the burden of proof to support its recommendation by a preponderance of
the evidence. The decision to revoke a certificate is a final agency
action and is appealable to Federal District Court pursuant to 25
U.S.C. 2714.
Date: March 24, 2022.
E. Sequoyah Simermeyer,
Chairman.
Jeannie Hovland,
Vice Chair.
[FR Doc. 2022-06617 Filed 4-6-22; 8:45 am]
BILLING CODE 7565-01-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on April 7, 2022.
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.