Proposed Rule2022-16977
Definitions; Background Investigation for Primary Management Officials and Key Employees; Gaming Licenses for Primary Management Officials and Key Employees
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Published
August 10, 2022
Issuing agencies
Interior DepartmentNational Indian Gaming Commission
Abstract
The National Indian Gaming Commission proposes to amend its regulations to add definitions, amend existing definitions, and amend requirements for conducting background investigations and issuing licenses. Proposed amendments include adding general managers and other persons with similar management responsibility to the primary management official definition; limiting the definition to those with duties similar to those of a chief financial officer rather than persons who have financial management responsibility; and limiting primary management officials to employed management officials designated by Tribes instead of any person so designated. The proposed amendments to the key employee definition consolidate certain of its subsections; include gaming operation employees authorized for unescorted access to secured areas that are designated as such by Tribal gaming regulatory authorities; remove compensation as determinative factor with the exception of the four most highly compensated persons in the gaming operation; and allow Tribes to designate any other employee of the gaming enterprise as a key employee instead of "any other person." Other proposed amendments incorporate the addition definitions for Gaming Enterprise and Tribal Gaming Regulatory Authority and clarify licensing application and background investigation retention. Specifically, the proposed amendments focus on licensing of primary management officials and key employees instead of employment of them; adding notification requirements for licensing revocation decisions; specifying retention requirements of information and documentation post termination; and changing the vesting of a right to a hearing to reflect Tribal law and policy.
Full Text
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<title>Federal Register, Volume 87 Issue 153 (Wednesday, August 10, 2022)</title>
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[Federal Register Volume 87, Number 153 (Wednesday, August 10, 2022)]
[Proposed Rules]
[Pages 48613-48615]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-16977]
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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.
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Federal Register / Vol. 87, No. 153 / Wednesday, August 10, 2022 /
Proposed Rules
[[Page 48613]]
DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
25 CFR Parts 502, 556, and 558
RIN 3141-AA32
Definitions; Background Investigation for Primary Management
Officials and Key Employees; Gaming Licenses for Primary Management
Officials and Key Employees
AGENCY: National Indian Gaming Commission, Department of the Interior.
ACTION: Proposed rule.
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SUMMARY: The National Indian Gaming Commission proposes to amend its
regulations to add definitions, amend existing definitions, and amend
requirements for conducting background investigations and issuing
licenses. Proposed amendments include adding general managers and other
persons with similar management responsibility to the primary
management official definition; limiting the definition to those with
duties similar to those of a chief financial officer rather than
persons who have financial management responsibility; and limiting
primary management officials to employed management officials
designated by Tribes instead of any person so designated. The proposed
amendments to the key employee definition consolidate certain of its
subsections; include gaming operation employees authorized for
unescorted access to secured areas that are designated as such by
Tribal gaming regulatory authorities; remove compensation as
determinative factor with the exception of the four most highly
compensated persons in the gaming operation; and allow Tribes to
designate any other employee of the gaming enterprise as a key employee
instead of ``any other person.'' Other proposed amendments incorporate
the addition definitions for Gaming Enterprise and Tribal Gaming
Regulatory Authority and clarify licensing application and background
investigation retention. Specifically, the proposed amendments focus on
licensing of primary management officials and key employees instead of
employment of them; adding notification requirements for licensing
revocation decisions; specifying retention requirements of information
and documentation post termination; and changing the vesting of a right
to a hearing to reflect Tribal law and policy.
DATES: Written comments on this proposed rule must be received on or
before September 9, 2022.
ADDRESSES: You may submit comments by any one of the following methods,
however, please note that comments sent by electronic mail are strongly
encouraged.
[ssquf] Federal eRulemaking Portal: Go to <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow the instructions for submitting comments.
[ssquf] Email comments to: <a href="/cdn-cgi/l/email-protection#630a0d050c110e02170a0c0d230d0a04004d040c15"><span class="__cf_email__" data-cfemail="84edeae2ebf6e9e5f0edebeac4eaede3e7aae3ebf2">[email protected]</span></a>.
[ssquf] Mail comments to: National Indian Gaming Commission, 1849 C
Street NW, MS 1621, Washington, DC 20240.
FOR FURTHER INFORMATION CONTACT: Michael Hoenig at (202) 420-9241.
SUPPLEMENTARY INFORMATION:
I. Background and Development of the Rule
A. 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 established the National Indian Gaming Commission (``NIGC'' or
``Commission'') and set out a comprehensive framework for the
regulation of gaming on Indian lands. IGRA requires that Tribal gaming
ordinances provide ``an adequate system which ensures that background
investigations are conducted on the primary management officials and
key employees of the gaming enterprise and (ii) includes--(I) [T]ribal
licenses for primary management officials and key employees of the
gaming enterprise . . .; (II) a standard whereby any person whose prior
activities, criminal record, if any, or reputation, habits and
associations pose a threat to the public interest or to the effective
regulation of gaming, or create or enhance the dangers of unsuitable,
unfair, or illegal practices and methods and activities in the conduct
of gaming shall not be eligible for employment; and (III) notification
by the Indian Tribe to the Commission of the results of such background
check before the issuance of any of such licenses.''
The Commission first defined ``key employee'' and ``primary
management official'' in April of 1992 (57 FR 123802-01). As mandated
by IGRA, applicants for key employee and primary management official
positions are subject to a background investigation as a condition of
licensure. In 2009, the Commission expanded these definitions to permit
Tribes to designate other persons as key employees or primary
management officials (74 FR 36926). The U.S. Department of Justice,
Federal Bureau of Investigation (FBI) took issue with this expansion,
denying the processing of criminal history record information (CHRI)
for the expanded positions' background investigations. This proposed
rule rectifies that issue in part 502, limiting Tribal designations to
``[a]ny other employee of the gaming enterprise designated by the Tribe
as a key employee'' and ``[a]ny other employed management official of
the gaming enterprise designated by the Tribe as a primary management
official.''
Background investigation and licensing regulations for key
employees and primary management officials were initially issued by the
Commission in January of 1993 (58 FR 5802-01) in parts 556 and 558,
respectively. The Commission updated these regulations in 2013 to
streamline the submission of documents; to ensure that two
notifications are submitted to the Commission in compliance with IGRA;
and to clarify the regulations regarding the issuance of temporary and
permanent gaming licenses (78 FR 5276-01). As for part 556, this
proposed rule incorporates the Gaming Enterprise definition, as needed,
and modernizes the licensing application and background investigation
retention requirements. And for part 558, the proposed rule emphasizes
primary management official and key employee licensing rather than
their employment; adds notification requirements for licensing
revocation decisions; details the retention requirements of information
and documentation related to key employees and primary management
officials after their
[[Page 48614]]
employment ceases; and updates the vesting of a right to a hearing to
include the requirements of Tribal law and policy.
B. Development of the 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 key employee
and primary management definitions and the backgrounding and licensing
regulations. Prior to consultation, the Commission released proposed
discussion drafts of the regulations for review. The proposed
amendments to these regulations were intended to: address FBI's
concerns regarding the key employee and primary management official
definitions; include gaming operation employees with unescorted access
to secured areas as key employees; combine certain subsections of the
key employee definition; add general managers and similar positions to
the primary management official definition; and update licensing
application and background investigation retention requirements. The
Commission held two virtual consultation sessions in July of 2021 to
receive Tribal input on the possible changes.
The Commission reviewed all comments received as part of the
consultation process. Several comments were concerned that defining a
key employee as a ``Custodian of gambling device or system records''
would make TGRA personnel key employees. To address this concern, the
Commission is proposing to limit the definition to persons who perform
that function ``for the gaming operation.'' It is not the Commission's
intent to capture TGRA employees or non-gaming operation personnel in
the definition. A similar comment sought clarification as to whether
``[a]ny person authorized by the gaming operation for unescorted access
to secured areas'' includes TGRA personnel. Again, it does not as in
most cases the TGRA, not the gaming operation, authorizes TGRA
personnel's access to restricted areas. However, under provision Sec.
502.14(d)--``[a]ny other employee of the gaming enterprise designated
by the Tribe as a key employee''--A Tribe may, at its discretion,
designate TGRA personnel as key employees through its gaming ordinance,
since the ``Gaming Enterprise'' definition includes ``the entities
through which a Tribe conducts, regulates, and secures its gaming . . .
.'' Likewise, if it so chooses, a Tribe may deem TGRA supervisory
personnel as primary management officials under Sec. 502.19(e)--
``[a]ny other employed management official of the gaming enterprise
designated by the Tribe as a primary management official.'' The intent
of both proposed provisions is to provide maximum flexibility to
Tribes.
II. Regulatory Matters
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 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 rule does not unduly burden the judicial system and
meets the requirements of sections 3(a) and 3(b)(2) of the Order.
National Environmental Policy Act
The Commission has determined that the 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 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 key employee and primary management official regulatory
definitions as well as the background and licensing regulations.
Consultations with Tribes were held on July 27 and 28, 2021.
List of Subjects in 25 CFR Parts 502, 556, and 558
Gambling, Indian lands.
Therefore, for reasons stated in the preamble, 25 CFR parts 502,
556, and 558 are amended as follows:
PART 502--DEFINITIONS
0
1. The authority citation for part 502 continues to read as follows:
Authority: 25 U.S.C. 2701 et seq.
0
2. Revise Sec. 502.14 to read as follows:
Sec. 502.14 Key employee.
Key employee means:
(a) Any person who performs one or more of the following functions
for the gaming operation:
(1) Bingo caller;
(2) Counting room supervisor;
(3) Chief of security;
(4) Floor manager;
(5) Pit boss;
(6) Dealer;
(7) Croupier;
(8) Approver of credit;
(9) Custodian of gaming systems as defined in 25 CFR 547.2 and
similar class III systems, gaming cash or gaming cash equivalents, or
gaming system records;
(10) Custodian of surveillance systems or surveillance system
records.
(b) Any person authorized by the gaming operation for unescorted
access to restricted areas designated as restricted areas by the TGRA;
(c) If not otherwise licensed as a key employee or primary
management official, the four persons most highly compensated persons
by the gaming operation.
(d) Any other employee of the gaming enterprise designated by the
Tribe as a key employee in its gaming ordinance.
0
3. Revise Sec. 502.19 to read as follows:
Sec. 502.19 Primary management official.
Primary management official means:
[[Page 48615]]
(a) Any person having management responsibility for a management
contract;
(b) Any person who has authority:
(1) To hire and fire employees of the gaming operation; or
(2) To establish policy for the gaming operation; or
(3) To supervise a key employee of the gaming operation.
(c) The chief financial officer or a position with duties similar
to a chief financial officer.
(d) The general manager or a position with duties similar to a
general manager.
(e) Any other employed management official of the gaming enterprise
designated by the Tribe as a primary management official in its gaming
ordinance.
0
4. Add Sec. Sec. 502.25 and 502.26 to read as follows:
Sec. 502.25 Gaming Enterprise.
Gaming Enterprise means the entities through which a Tribe
conducts, regulates, and secures gaming on Indian lands within such
Tribe's jurisdiction pursuant to the Indian Gaming Regulatory Act.
Sec. 502.26 Tribal Gaming Regulatory Authority (TGRA).
Tribal Gaming Regulatory Authority (TGRA) means the governmental
entity authorized by Tribal law to regulate gaming conducted pursuant
to the Indian Gaming Regulatory Act.
PART 556--BACKGROUND INVESTIGATIONS FOR PRIMARY MANAGEMENT
OFFICIALS AND KEY EMPLOYEES
0
5. The authority citation for part 556 is revised to read as follows:
Authority: 25 U.S.C. 2706, 2710.
0
6. Amend Sec. 556.4 by revising the first sentence of the introductory
text to read as follows:
Sec. 556.4 Background investigations.
A Tribe shall perform a background investigation for each primary
management official and for each key employee of the gaming enterprise.
* * *
* * * * *
0
7. Amend Sec. 556.6 by revising the first sentence of paragraph (a) to
read as follows:
Sec. 556.6 Report to the Commission.
(a) When a Tribe licenses a primary management official or a key
employee, the Tribe shall maintain the information listed under Sec.
556.4(a)(1) through (14). * * *
* * * * *
0
8. Revise Sec. 556.8 to read as follows:
Sec. 556.8 Compliance with this part.
All Tribal gaming ordinances and ordinance amendments approved by
the Chair prior to [EFFECTIVE DATE OF FINAL RULE] do not need to be
amended to comply with this part. All future ordinance submissions,
however, must comply.
PART 558--GAMING LICENSES FOR KEY EMPLOYEES AND PRIMARY MANAGEMENT
OFFICIALS
0
9. The authority citation for part 558 continues to read as follows:
Authority: 25 U.S.C. 2706, 2710, 2712.
0
10. Revise Sec. 558.3 to read as follows:
Sec. 558.3 Notification to NIGC of license decisions and retention
obligations.
(a) After a Tribe has provided a notice of results of the
background check to the Commission, a Tribe may license a primary
management official or key employee.
(b) Within 30 days after the issuance of the license, a Tribe shall
notify the Commission of its issuance.
(c) A key employee or primary management official who does not have
a license after ninety (90) days shall not be permitted to perform the
duties, functions, and/or responsibilities of a key employee or primary
management official until so licensed.
(d) If a Tribe does not license an applicant--
(1) The Tribe shall notify the Commission; and
(2) Shall forward copies of its eligibility determination and
notice of results, under Sec. 556.6(b)(2) of this chapter, to the
Commission for inclusion in the Indian Gaming Individuals Record
System.
(e) If a Tribe revokes a key employee or primary management
official's license--
(1) The Tribe shall notify the Commission; and
(2) Shall forward copies of its license revocation decision and a
summary of the evidence it relied upon to the Commission for inclusion
in the Indian Gaming Individuals Record System.
(f) A Tribe shall retain the following for inspection by the Chair
or their designee for no less than three years from the date of
termination of employment:
(1) The information listed under Sec. 556.4(a)(1) through (14) of
this chapter;
(2) Investigative reports, as defined in Sec. 556.6(b) of this
chapter;
(3) Eligibility determinations, as defined in Sec. 556.5 of this
chapter;
(4) Privacy Act notice, as defined in Sec. 556.2 of this chapter;
and
(5) False Statement notice, as defined in Sec. 556.3 of this
chapter.
0
11. Revise Sec. 558.4 to read as follows:
Sec. 558.4 Notice of information impacting eligibility and
licensee's right to a hearing.
(a) If, after the issuance of a gaming license pursuant to Sec.
558.3, the Commission receives reliable information indicating that a
key employee or a primary management official is not eligible for a
license under Sec. 556.5 of this chapter, the Commission shall notify
the issuing Tribe of the information.
(b) Upon receipt of such notification under paragraph (a) of this
section, a Tribe shall immediately suspend the license and shall
provide the licensee with written notice of suspension and proposed
revocation.
(c) A Tribe shall notify the licensee of a time and a place for a
hearing on the proposed revocation of a license.
(d) The right to a revocation hearing shall vest upon receipt of a
license or at such earlier time as is determined by Tribal law,
regulation, and/or policy.
(e) After a revocation hearing, a Tribe shall decide to revoke or
to reinstate a gaming license. A Tribe shall notify the Commission of
its decision within 45 days of receiving notification from the
Commission pursuant to paragraph (a) of this section.
0
12. Revise Sec. 558.6 to read as follows:
Sec. 558.6 Compliance with this part.
All Tribal gaming ordinances and ordinance amendments that have
been approved by the Chair prior to [EFFECTIVE DATE OF FINAL RULE] do
not need to be amended to comply with this section. All future
ordinance submissions, however, must comply.
Dated: August 2, 2022.
E. Sequoyah Simermeyer,
Chairman.
Jeannie Hovland,
Vice Chair.
[FR Doc. 2022-16977 Filed 8-9-22; 8:45 am]
BILLING CODE 7565-01-M
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