[Federal Register Volume 76, Number 64 (Monday, April 4, 2011)]
[Proposed Rules]
[Pages 18457-18467]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-7912]


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DEPARTMENT OF THE INTERIOR

National Indian Gaming Commission

25 CFR Chapter III


Regulatory Review Schedule; Tribal Consultation

AGENCY: National Indian Gaming Commission.

ACTION: Notice of Regulatory Review Schedule.

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SUMMARY: On November 18, 2010, the National Indian Gaming Commission 
(NIGC) issued a Notice of Inquiry and Notice of Consultation advising 
the public that the NIGC was conducting a comprehensive review of all 
regulations promulgated to implement the Indian Gaming Regulatory Act 
(IGRA). The review identified in the Notice of Inquiry and Notice of 
Consultation was also prepared in order to submit the NIGC's Semi-
Annual Regulatory Review to the Federal Register in April 2011 as set 
forth in Executive Order 12866 entitled ``Regulatory Planning and 
Review'' and the Regulatory Flexibility Act, 5 U.S.C. 601 et. seq. The 
NIGC held eight consultations during January and February 2011 and 
invited written comments to be submitted by February 12, 2011. Comments 
received and transcripts of the consultations are available on the NIGC 
Web site. The NIGC reviewed all comments received and created this 
comprehensive regulatory review agenda schedule based on the input 
received.

DATES: See Consultation Schedule for Review, Section III under 
SUPPLEMENTARY INFORMATION below, for a master schedule of dates, 
locations, and subjects of consultation meetings. See sections IV-VIII 
under SUPPLEMENTARY INFORMATION below for dates and locations of 
consultations on particular subjects.

ADDRESSES: Testimony and comments sent by electronic mail or delivered 
by hand are strongly encouraged. Electronic submissions should be 
directed to [email protected]. See File Formats and Required 
Information for Submitting Comments under SUPPLEMENTARY INFORMATION, 
section IIC, below, for instructions. Submissions delivered by hand 
should be brought to the consultations. See Consultation Schedule for 
Review, section III under SUPPLEMENTARY INFORMATION below, for a master 
schedule of dates, locations, and subjects of consultation meetings. 
See sections IV-VIII under SUPPLEMENTARY INFORMATION below for dates 
and locations of consultations on particular subjects. 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. 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 
purposes of IGRA include providing 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; ensuring 
that the Indian tribe is the primary beneficiary of the gaming 
operation; and declaring that the

[[Page 18458]]

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). On November 12, 2010, the Commission issued 
a Notice of Inquiry (NOI) requesting comment on which of its 
regulations were most in need of revision, in what order the Commission 
should review its regulations, and the process NIGC should utilize to 
make revisions. The Notice of Inquiry was published in the Federal 
Register on November 18, 2010. 75 FR 70680.
    As the Commission previously explained, the regulatory review 
facilitates effective 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.
    On January 18, 2011, President Obama issued Executive Order 13563, 
Improving Regulation and Regulatory Review. Executive Order 13563 sets 
forth the general principle that regulatory systems ``must identify and 
use the best, most innovative, and least burdensome tools for achieving 
regulatory ends.'' This Executive Order further provides that agencies 
tailor ``regulations to impose the least burden on society, consistent 
with obtaining regulatory objectives, taking into account, among other 
things, and to the extent practicable, the costs of cumulative 
regulations[.]'' Further, agencies must ``to the extent feasible, 
specify performance objectives, rather than specifying the behavior or 
manner of compliance that regulated entities must adopt[.]'' In the 
spirit of this Executive Order and Executive Order 13175 regarding 
consultation with Indian Tribal Governments, the NIGC provides this 
comprehensive regulatory review agenda. The agenda is a product of 
extensive tribal consultation and extensive public comment.

II. Process for Review

A. Groups

    Based on both public comments and tribal consultations, the 
Commission has decided to organize its regulatory review into five 
separate groupings. The Commission will organize its consultations with 
Tribes according to these groupings. The regulations in each group will 
be reviewed separately from the regulations in the other groups, and 
specific regulations in each group may proceed through the regulatory 
review process independently from the other regulations in a particular 
group.
    1. Group 1 will include a review of:
    (a) A Buy Indian Act regulation;
    (b) 25 CFR part 523--Review and Approval of Existing Ordinances or 
Resolutions;
    (c) 25 CFR part 514--Fees;
    (d) 25 CFR part 559--Facility License Notifications, Renewals, and 
Submissions; and
    (e) 25 CFR part 542--Minimum Internal Control Standards for Class 
III Gaming.
    2. Group 2 will include a review of:
    (a) 25 CFR part 573--Enforcement; and
    (b) Regulations concerning proceedings before the Commission, 
including 25 CFR part 519--Service, 25 CFR part 524--Appeals, 25 CFR 
part 539--Appeals, and 25 CFR part 577--Appeals Before the Commission.
    3. Group 3 will include a review of:
    (a) 25 CFR part 543--Minimum Internal Control Standards for Class 
II Gaming; and
    (b) 25 CFR part 547--Minimum Technical Standards for Gaming 
Equipment Used with the Play of Class II Games.
    4. Group 4 will include a review of:
    (a) 25 CFR part 556--Background Investigations for Primary 
Management Officials and Key Employees;
    (b) 25 CFR part 558--Gaming Licenses for Key Employees and Primary 
Management Officials;
    (c) 25 CFR part 556--Background Investigations for Primary 
Management Officials and Key Employees, ``Pilot Program.'';
    (d) 25 CFR part 571--Monitoring and Investigations;
    (e) 25 CFR part 531--Collateral Agreements;
    (f) 25 CFR part 537--Background Investigations for Persons or 
Entities With a Financial Interest in, or Having Management 
Responsibility for, a Management Contract; and
    (g) 25 CFR part 502--Definitions.
    5. Group 5 will include a review of:
    (a) 25 CFR part 518--Self Regulation of Class II Gaming;
    (b) A Sole Proprietary Interest regulation; and
    (c) 25 CFR part 542, Minimum Internal Control Standards for Class 
III Gaming.

B. Review Phases

    Each group of regulations will be addressed in the three phases 
listed below. The purpose of the three phases is to facilitate 
meaningful consultation with Tribes, consistent with Executive Order 
13175, prior to promulgating any revisions, amendments, or new rules. 
While Tribal Advisory Committees (TAC) have been utilized by the NIGC 
in the past, NIGC received comments from Tribes expressing their view 
that the TAC process was not a substitute for tribal consultation.
    In response to comments received on the NOI, the Commission has 
established the tribal consultation schedule below. The NIGC will 
attempt to provide significant means for tribal input through tribal 
consultation meetings and broad, transparent opportunities to submit 
written comments at every phase before the Notice of Final Rule is 
published.
    1. Drafting Phase. Consistent with Executive Order 13175, the 
Commission will endeavor to include Tribes in the drafting phase of any 
new or amended rule. The purpose of the drafting phase is to ensure 
tribal participation early in the drafting of any rule with tribal 
implications. The drafting phase will begin with either a preliminary 
draft based on previous comments received by NIGC, preliminary proposed 
amendments to a current regulation, or preliminary proposals provided 
by Tribes or tribal organizations. The drafting phase will include 
tribal consultation meetings and an opportunity for the public to 
submit written comments. Following completion of the drafting phase, 
the Commission anticipates that generally it will proceed to issuing a 
Notice of Proposed Rulemaking (NPRM) that will be published in the 
Federal Register.
    2. Notice of Proposed Rulemaking Phase. The NIGC will draft a NPRM. 
The Commission anticipates that a preamble to a NPRM will summarize 
comments received during the drafting phase and include a discussion of 
the substantive provisions of the proposed rule. The Commission 
anticipates that for any NPRM it will endeavor to provide a public 
comment period of approximately 60 days and will consult with Tribes 
during that period on the proposed rule. After the close of the comment 
period, a Notice of Final Rule will be prepared and published in the 
Federal Register.

[[Page 18459]]

    3. Notice of Final Rule Phase. The Commission will draft a Final 
Rule based on all comments received during the NPRM phase. The preamble 
to the final rule will summarize comments received and include a 
discussion of the substantive provisions of the final rule. Generally, 
the Commission anticipates that final rules will become effective 45 
days after publication.

C. File Formats and Required Information for Submitting Comments

    If submitting 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.

III. Consultation Schedule for Review

    Subject to future changes, NIGC will hold tribal consultations on 
the following dates as set forth in more detail below. The Commission 
has attempted to schedule consultations in every region and to hold 
those consultations either before or after other events widely attended 
by tribal officials. The purpose of scheduling consultations in this 
manner is both to encourage participation of tribal officials and to 
conserve tribal resources by reducing the amount of travel of 
participants.
    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].
    Please note that the Commission intends to post all written 
comments received during the regulatory review process on the Tribal 
Consultation Web page of the NIGC Web site located at http://www.nigc.gov.

----------------------------------------------------------------------------------------------------------------
                                                                                                      Regulation
     Consultation date                      Event                             Location                 group(s)
----------------------------------------------------------------------------------------------------------------
Apr. 28, 2011..............  Oklahoma Tribal Gaming Regulators   Choctaw Casino Resort, Durant, OK.            1
                              Association Spring Conference.
May 2, 2011................  Tribal Self-Governance Conference.  Spa Resort Casino, Palm Springs,              1
                                                                  CA.
May 5, 2011................  Southern Gaming Summit & Bingo      Mississippi Coast Coliseum &                  1
                              World Conference.                   Convention Ctr., Biloxi, MS.
May 16, 2011...............  Great Plains/Rocky Mountains/       Mystic Lake Casino and Resort,             1, 2
                              Midwest Tradeshow & Conference.     Prior Lake, MN.
May 20, 2011...............  ATNI Mid Year Conference..........  Coeur d'Alene Resort & Casino,             1, 2
                                                                  Plummer, ID.
June 8, 2011...............  Indian Bingo and Class II Summit..  Mystic Lake Casino and Resort,          2, 3, 4
                                                                  Prior Lake, MN.
June 13, 2011..............  NCAI Mid Year Conference..........  Hyatt Regency, Milwaukee, WI......         3, 4
June 21-22, 2011...........  CNIGA Membership Meeting..........  Harrah's Rincon Hotel & Casino,      1, 2, 3, 4
                                                                  Valley Center, CA.
July 14-15, 2011...........  Northwest Indian Gaming Expo......  Tulalip Resort Casino, Tulalip, WA  1, 2, 3, 4,
                                                                                                               5
July 20-21, 2011...........  NIGC Consultation--Southwest......  Hyatt Regency Tamaya Resort, Santa      3, 4, 5
                                                                  Ana Pueblo, NM.
July 28-29, 2011...........  NIGC Consultation--Northeast......  DOI South Auditorium, Washington,       3, 4, 5
                                                                  DC.
Aug. 18-19, 2011...........  Oklahoma Indian Gaming Association  Tulsa, OK.........................   2, 3, 4, 5
                              Conference.
Aug. 25-26, 2011...........  NIGC Consultation--Southwest......  Wild Horse Resort Casino,               2, 3, 5
                                                                  Scottsdale, AZ.
Sept. 7-8, 2011............  NIGC Consultation--United Tribes    Radisson Hotel, Bismarck, ND......   2, 3, 4, 5
                              International Powwow.
Sept. 15-16, 2011..........  National Tribal Gaming              Chuckchansi Gold Resort & Casino,    2, 3, 4, 5
                              Commissioner/Regulator              Coarsegold, CA.
                              Association Fall Meeting.
Sept. 19-20, 2011..........  NIGC Regional Training............  Sky Ute Casino Resort, Ignacio, CO      3, 4, 5
Sept. 29-30, 2011..........  NIGC Consultation--Northeast......  Turning Stone Resort & Casino,             3, 5
                                                                  Verona, NY.
Oct. 6-7, 2011.............  G2E--National.....................  Sands Expo and Convention Ctr.,         3, 4, 5
                                                                  Las Vegas, NV.
Oct./Nov. 2011.............  USET Annual Meeting...............  Mississippi Choctaw, MS...........      3, 4, 5
Nov. 3-4, 2011.............  NCAI Annual Conference............  Portland, OR......................         3, 5
Nov. 14-15, 2011...........  NIGC Consultation--California.....  Spa Resort Casino, Palm Springs,              5
                                                                  CA.
Nov. 17-18, 2011...........  NIGC Consultation--Southwest......  Fort McDowell Casino, Scottsdale,             5
                                                                  AZ.
Nov. 30-Dec. 1, 2011.......  NIGC Consultation--Oklahoma.......  Downstream Casino Resort, Miami,              5
                                                                  OK.
Dec. 5-6, 2011.............  NIGC Consultation--Northwest......  Clearwater Casino Resort,                     5
                                                                  Suquamish, WA.
Dec. 8-9, 2011.............  NIGC Consultation--Great Plains...  Turtle Creek Casino & Hotel,                  5
                                                                  Williamsburg, MI.
Dec. 12-13, 2011...........  NIGC Consultation--Northeast......  DOI South Auditorium, Washington,             5
                                                                  DC.
Jan. 11-12, 2012...........  NIGC Consultation--Eastern........  Wind Creek Casino, Atmore, AL.....            3
Jan. 18-19, 2012...........  NIGC Consultation--Great Plains...  Crowne Plaza, Billings, MT........            3
Jan. 23-24, 2012...........  NIGC Consultation--California.....  Win-River Casino, Redding, CA.....            3
Jan. 26-27, 2012...........  NIGC Consultation--Northwest......  7 Feathers Casino, Canyonville, OR            3
Jan. 30-31, 2012...........  NIGC Consultation--Oklahoma.......  Cherokee Hard Rock, Tulsa, OK.....            3
Feb. 2-3, 2012.............  NIGC Consultation--Southwest......  Isleta Hard Rock Casino Resort,               3
                                                                  Albuquerque, NM.
Feb. 7-8, 2012.............  NIGC Consultation--Great Plains...  Radisson Hotel, Rapid City, SD....            3
----------------------------------------------------------------------------------------------------------------


[[Page 18460]]

IV. Group One: Part 514--Fees; Part 523--Review and Approval of 
Existing Ordinances or Resolutions; Part 559--Facility License 
Notifications, Renewals, and Submissions; Part 542--Class III Minimum 
Internal Controls; Buy Indian Act

A. Part 514--Fees

1. Should the Commission consider revising Part 514 to base fees on the 
Tribe's gaming operation's fiscal year?
    The NOI requested comment on whether the Commission should consider 
revising this Part to base fees on the Tribe's gaming operation's 
fiscal year. Some comments indicated that this was a low priority. 
Other comments were generally supportive of the Commission considering 
this change, noting that a calculation based on audited financial 
statements for the fiscal year would be more convenient. Commentators 
did note that if the Commission reviewed Part 514, any amendments 
should provide for an adequate transition period. Other comments 
suggested that the Commission consider a flexible approach by which 
each tribe could determine whether to calculate fees on a fiscal or 
calendar year.
    The Commission understands that it may be difficult to calculate 
fees based on the calendar year, which may lead to frequent audit 
adjustments. The Commission strives to be cognizant of and sensitive to 
the practical issues raised by any potential amendments to this Part, 
including additional costs and the need to provide for an adequate 
transition period. However, the Commission believes that review of the 
Part is appropriate and has the potential to reduce the number of audit 
adjustments. The Commission will review this Part during the Group One 
period.
2. Should this Part define Gross Gaming Revenue consistent with 
Generally Accepted Accounting Principles for the purposes of 
calculating the fees?
    Additionally, the NOI asked whether the Commission should consider 
adding to Part 514 a definition of gross gaming revenue consistent with 
the GAAP definition of this term. Some public comments suggested that a 
revision would promote consistency and uniformity. Other comments 
questioned whether the NIGC could define gross gaming revenue given 
that IGRA defines the term.
    The Commission believes that further review of this regulation is 
appropriate. An amendment consistent with IGRA could promote 
consistency and uniformity, which may result in greater efficiency. The 
Commission will review this Part during the Group One period.
3. Should this Part include a section on the fingerprinting processing 
fees?
    The NOI asked whether the Commission should consider amending this 
Part to include fingerprint processing fees and whether to provide for 
a review of the costs on an annual basis and adjust the fingerprint 
processing fee accordingly. Additionally, the NOI asked whether the 
Commission should consider providing that fees collected for processing 
fingerprints should be included in the total revenue collected by the 
Commission that is subject to statutory limitation. Comments supported 
the inclusion of the fingerprinting fees in the calculation of gross 
revenues. Other comments suggested that fingerprinting costs be paid by 
those Tribes that use the service rather than by the general fees paid 
by Tribes. Other comments suggested that the Commission provide a 
public accounting of how the fees are expended by the Commission. Some 
comments suggested including the fingerprinting fees as part of the 
annual fees while other comments suggested that the fees be separate 
from the annual fees collected from Tribes. Those commentators who 
recommended keeping the fees separate explained that the fingerprinting 
fees were generally an expense paid by gaming commissions rather than 
gaming operations. Other Tribes suggested that the Commission consider 
the revision if including fingerprinting fees resulted in a lower 
annual fee. Finally, several comments suggested the issuance of a 
bulletin instead of a regulation to address this issue.
    The Commission believes that further review of this proposed 
regulation is appropriate. Amendments to this Part could provide 
greater clarity to the process and potentially could result greater 
efficiency and in cost savings. This issue will be reviewed during the 
Group One period.
4. Should the Commission consider a late payment system in lieu of a 
Notice of Violation for Tribes submitting their fees to the NIGC late?
    Finally, the NOI requested comment on whether the Commission should 
consider a late payment system in lieu of a Notice of Violation (NOV) 
for addressing fees submitted late to the NIGC. Public comments 
uniformly supported the Commission reviewing this approach. Many 
commentators observed that issuing a NOV is a serious measure that may 
overly penalize Tribes for late submission of their fees. Commentators 
noted that a NOV can cause a financial hardship to Tribes by lowering a 
Tribe's bond rating and damage its business reputation. Some comments 
recommended an automatic additional percentage as a late payment 
penalty or a development of a schedule of fines or penalties based on 
passage of time or the number late payments. Tribes commented that NOVs 
should continue to be utilized for frequent or repeat violators in 
order to prevent abuse of the system. Another commentator suggested 
that an NOV only be issued after a specified number of missed payments 
or dollar amount, if there is gross negligence, or the Tribe has 
publicly stated its intention not to pay the NIGC. This commentator 
suggested that an NOV should be considered only after negotiations with 
the Tribes have failed. Many commentators noted that any approach 
should be flexible and include due process so that a Tribe can cure any 
purported late payment before the NIGC issues either a ticket or NOV.
    The Commission believes that further review of the potential 
regulatory amendment is appropriate. A NOV is a serious action issued 
to address significant violations of IGRA. A late payment system may be 
appropriate to address infrequent situations wherein a tribe submits 
fees late to the NIGC. This issue will be considered by the Commission 
during the Group One period.

B. Part 523--Review and Approval of Existing Ordinances or Resolutions

    Comments received in response to the NOI suggest repealing this 
regulation as obsolete. The regulation applies only to gaming 
ordinances enacted by Tribes prior to January 22, 1993, and not 
submitted to the Chairwoman. During the Group One period, the 
Commission will consider repealing this Part.

C. Part 542--Class III Minimum Internal Control Standards

    The NOI requested comment regarding Class III Minimum Internal 
Control Standards (MICS). The public was asked to comment on how this 
issue should be addressed, particularly in light of the decision in the 
Colorado River Indian Tribes v. National Indian Gaming Commission. Some 
comments suggested that Part 542 should be replaced by a set of 
recommended guidelines. Comments explained that many tribal gaming 
regulatory authorities rely on Part 542 to set the base of their 
minimum internal control standards. Other comments explained

[[Page 18461]]

that some Tribes have adopted the Federal rule verbatim. Some comments 
stated that some Tribes have drafted their own internal control 
standards. Additionally, commentators noted that some state compacts 
incorporate part 542 by reference. Some comments explained that some 
Tribes amended their gaming ordinance authorizing the NIGC to regulate 
and enforce part 542 in their gaming operations. Other commentators 
explained that in California, their state compacts have been 
effectively revised to provide for Federal oversight to the extent 
specified in the agreements.
    A number of Tribes commented that the NIGC does not have the 
authority to enforce Class III MICS. A majority of Tribes that 
submitted comments suggested that the NIGC issue MICS as guidance. Some 
Tribes suggested addressing the enforcement of Class III MICS through 
the self-regulation process. Other comments suggested applying a 
different fee rate for those Tribes that have amended their tribal 
gaming ordinance such that the NIGC can regulate and enforce Part 542. 
Some Tribes recommended keeping the Class III MICS in regulation form 
and convening a new Tribal Advisory Committee to update the current 
regulation. Other Tribes recommended repeal of Part 542. Many of the 
comments received by NIGC stated that this was a high priority.
    Review of this Part is a high priority of the Commission. NIGC 
recognizes that this is a complex and important issue that impacts 
Tribes differently across the country. During the Group One period, 
NIGC will continue to evaluate and develop solutions for addressing 
Class III MICS in a manner consistent with IGRA that does not create a 
regulatory void.

D. Part 559--Facility License Notifications, Renewals, and Submissions

    The NOI requested comment on whether the Commission should consider 
revising this Part. Many Tribes commented that the process by which the 
regulation was adopted did not allow sufficient time for meaningful 
tribal consultation. Some commentators stated that Environmental Public 
Health and Safety (EPHS) matters and facility licenses should be left 
to the authority and jurisdiction of the Tribes. Some Tribes stated 
that in addition to tribal regulations and compact provisions, other 
federal and tribal agencies already regulate EPHS issues. Some comments 
also recommended reviewing Sec.  502.22--``Construction and maintenance 
of the gaming facility, and the operation of that gaming is conducted 
in a manner which adequately protects the environment and the public 
health and safety'' as part of this review.
    Some comments questioned the necessity of providing Indian lands 
information considering that other Federal agencies already have this 
information and that requiring Tribes to re-submit documentation was 
duplicative and unnecessary. Some comments stated that the 120-day 
notice period was arbitrary and that NIGC should have consulted on the 
time frame before implementing the regulation. Some commentators stated 
that the regulation should provide some flexibility regarding the 120-
day notice period. Some comments expressed concern that the regulation 
could potentially limit the authority of tribal gaming commissions. 
Other comments noted that the regulation helped raise the importance of 
those issues at the tribal level and benefited the Tribe.
    Based on the many comments requesting that this regulation be 
reviewed, the NIGC will use the Group One period to review this Part 
and Sec.  502.22 ``Construction and maintenance of the gaming facility, 
and the operation of that gaming is conducted in a manner which 
adequately protects the environment and the public health and safety.''

E. Buy Indian Act Regulation

    The NOI requested comment on whether the Commission should consider 
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. The Buy Indian Act 
provides authority to set aside procurement contracts for qualified 
Indian-owned businesses. While many comments support consideration of 
this change, a number of comments suggested that utilizing an internal 
policy or process would be equally effective.
    The Commission believes that a regulation on this issue may promote 
long term and consistent application by the agency. During the Group 
One period, the Commission will review a potential regulation.
    Subject to future changes, NIGC will hold tribal consultations on 
Group One regulations on the following dates as set forth in more 
detail below. The Commission has attempted to schedule consultations in 
every region and to hold those consultations either before or after 
other events widely attended by tribal officials. The purpose of 
scheduling consultations in this manner is both to encourage 
participation of tribal officials and to conserve tribal resources by 
reducing the amount of travel of participants.

----------------------------------------------------------------------------------------------------------------
                                                     GROUP 1
-----------------------------------------------------------------------------------------------------------------
                Date                                 Event                                Location
----------------------------------------------------------------------------------------------------------------
Apr. 28, 2011......................  Oklahoma Tribal Gaming Regulators      Choctaw Casino Resort, Durant, OK.
                                      Association Spring Conference.
May 2, 2011........................  Tribal Self-Governance Conference....  Spa Resort Casino, Palm Springs, CA.
May 5, 2011........................  Southern Gaming Summit & Bingo World   Mississippi Coast Coliseum &
                                      Conference.                            Convention Ctr., Biloxi, MS.
May 16, 2011.......................  Great Plains/Rocky Mountains/Midwest   Mystic Lake Casino and Resort, Prior
                                      Tradeshow & Conference.                Lake, MN.
May 20, 2011.......................  ATNI Mid Year Conference.............  Coeur d'Alene Resort & Casino,
                                                                             Plummer, ID.
June 21-22, 2011...................  CNIGA Membership Meeting.............  Harrah's Rincon Hotel & Casino,
                                                                             Valley Center, CA.
July 14-15, 2011...................  Northwest Indian Gaming Expo.........  Tulalip Resort Casino, Tulalip, WA.
----------------------------------------------------------------------------------------------------------------


[[Page 18462]]

V. Group Two: Part 573--Enforcement; Proceedings Before the Commission, 
Including Part 519--Service, Part 524--Appeals [of disapproval of a 
gaming ordinance, resolution or amendment], Part 539--Appeals [of 
approval or disapproval of a management contract or amendment], and 
Part 577--Appeals Before the Commission

A. Enforcement

    The NOI requested comment on whether the Commission should consider 
promulgating a regulation authorizing the withdrawal of an NOV after it 
has been issued. Some Tribes stated that because there was no 
prohibition against withdrawing an NOV, the regulation was unnecessary. 
Other comments stated that while the Chairwoman retains authority to 
withdraw an NOV, a specific regulation outlining the process and 
circumstances for the withdrawal was appropriate. Some comments stated 
that only the entire Commission should withdraw an NOV.
    Many comments stated that the issuance of an NOV can potentially 
have serious negative economic impact on the Tribe. These comments 
recommended the NIGC institute a compliance model before utilizing a 
punitive approach. Such an approach would provide for tribal regulatory 
agencies to take enforcement action in the first instance and provide a 
notice and opportunity to cure before NIGC action is taken. Tribes also 
recommended that NOVs be automatically expunged after a specified 
number of years and removed from the Web site or, in the alternative, 
identifying information should be removed from NOVs on the Web site.
    The Commission agrees that under no circumstance should an NOV be a 
surprise to Tribes. This Commission established Assistance, Compliance, 
and Enforcement as its policy for regulating Tribes and agrees that a 
regulation identifying the process for ensuring compliance would 
benefit the industry. The Commission will be reviewing this potential 
regulation during the Group 2 period.

B. Proceedings Before the Commission

    The NOI requested comment on whether the Commission should consider 
more comprehensive and detailed procedural rules for proceedings before 
the Commission. Some Tribes expressed a concern that a more formal 
process may be more burdensome, costly, and delay the process for 
review. Other comments recommended that more detail would provide 
greater certainty for Tribes. Some comments recommended that the 
Chairwoman should be prohibited from participating in appeals of agency 
actions issued by the Chairwoman. Those comments noted that the 
underlying principle of these procedural rules should be the guarantee 
of due process. Many comments requested concise, streamlined rules in 
order to protect all parties and recommended reviewing the appeals 
process utilized by other federal agencies for guidance.
    Included in the comments received by Tribes regarding proceedings 
before the Commission were a number of comments requesting 
clarification on submission and approval of gaming ordinances and 
amendments. Some Tribes expressed concern about the length of time it 
takes for approval of an ordinance and requested further clarity on how 
the Commission contacts Tribes if there are questions concerning a 
proposed ordinance.
    The Commission recognizes the perception that the current process 
may not provide clarity to Tribes when appealing the Chairwoman's 
actions. The Commission will review these regulations during the Group 
Two period.
    Subject to future changes, NIGC will hold tribal consultations on 
Group Two regulations on the following dates as set forth in more 
detail below. The Commission has attempted to schedule consultations in 
every region and to hold those consultations either before or after 
other events widely attended by tribal officials. The purpose of 
scheduling consultations in this manner is both to encourage 
participation of tribal officials and to conserve tribal resources by 
reducing the amount of travel of participants.

----------------------------------------------------------------------------------------------------------------
                                                     GROUP 2
-----------------------------------------------------------------------------------------------------------------
            Date                           Event                                   Location
----------------------------------------------------------------------------------------------------------------
May 16, 2011................  Great Plains/Rocky Mountains/   Mystic Lake Casino and Resort, Prior Lake, MN.
                               Midwest Tradeshow &
                               Conference.
May 20, 2011................  ATNI Mid Year Conference......  Coeur d'Alene Resort & Casino Plummer, ID.
June 8, 2011................  Indian Bingo and Class II       Mystic Lake Casino and Resort, Prior Lake, MN.
                               Summit.
June 21-22, 2011............  CNIGA Membership Meeting......  Harrah's Rincon Hotel & Casino, Valley Center, CA.
July 14-15, 2011............  Northwest Indian Gaming Expo..  Tulalip Resort Casino, Tulalip, WA.
Aug. 18-19, 2011............  Oklahoma Indian Gaming          Tulsa, OK.
                               Association Conference.
Aug. 25-26, 2011............  NIGC Consultation--Southwest..  Wild Horse Resort Casino, Scottsdale, AZ.
Sept. 7-8, 2011.............  NIGC Consultation--United       Radisson Hotel, Bismarck, ND.
                               Tribes International Powwow.
Sept. 15-16, 2011...........  National Tribal Gaming          Chuckchansi Gold Resort & Casino, Coarsegold, CA.
                               Commissioner/Regulator
                               Association Fall Meeting.
----------------------------------------------------------------------------------------------------------------

VI. Group Three: Part 543--Minimum Internal Control Standards for Class 
II Gaming; Part 547--Minimum Technical Standards for Gaming Equipment 
Used with the Play of Class II Games

    The NOI also requested comment on the Class II Minimum Internal 
Control Standards (MICS) and Minimum Technical Standards. Specifically, 
the NOI requested comment on how to proceed with revisions to these 
Parts. While the Technical Standards were revised in 2008, the NOI 
noted that Tribes had requested additional updates.
    The Commission received many comments requesting the review and 
update of both the Class II MICS and Class II Technical Standards. 
Comments emphasized the importance of Class II gaming and the need to 
ensure that the regulations address changes in technology. Some 
comments recommended a Tribal Advisory Committee be formed with 
representation from a broad group of interests, including Tribes, 
manufacturers, and testing laboratories. Other comments suggested the

[[Page 18463]]

regulations be revised utilizing a negotiated rulemaking process. 
Finally, some commentators stated that electronic gambling machines are 
public health hazards and that the technical standards should 
distinguish between harmful and less harmful games. These comments 
stated that NIGC should require the industry to demonstrate that Class 
II games are in fact safe.
    Based on the comments received, the Commission anticipates that it 
will review this Part during the Group Three period. Class II MICS and 
Technical Standards are important to both Tribes and the public.
    Subject to future changes, NIGC will hold tribal consultations on 
Group Three regulations on the following dates as set forth in more 
detail below. The Commission has attempted to schedule consultations in 
every region and to hold those consultations either before or after 
other events widely attended by tribal officials. The purpose of 
scheduling consultations in this manner is both to encourage 
participation of tribal officials and to conserve tribal resources by 
reducing the amount of travel of participants.

----------------------------------------------------------------------------------------------------------------
                                                     GROUP 3
-----------------------------------------------------------------------------------------------------------------
            Date                           Event                                   Location
----------------------------------------------------------------------------------------------------------------
June 8, 2011................  Indian Bingo and Class II       Mystic Lake Casino and Resort, Prior Lake, MN.
                               Summit.
June 13, 2011...............  NCAI Mid Year Conference......  Hyatt Regency, Milwaukee, WI.
June 21-22, 2011............  CNIGA Membership Meeting......  Harrah's Rincon Hotel & Casino, Valley Center, CA.
July 14-15, 2011............  Northwest Indian Gaming Expo..  Tulalip Resort Casino, Tulalip, WA.
July 20-21, 2011............  NIGC Consultation--Southwest..  Hyatt Regency Tamaya Resort, Santa Ana Pueblo, NM.
July 28-29, 2011............  NIGC Consultation--Northeast..  DOI South Auditorium, Washington, DC.
Aug. 18-19, 2011............  Oklahoma Indian Gaming          Tulsa, OK.
                               Association Conference.
Aug. 25-26, 2011............  NIGC Consultation--Southwest..  Wild Horse Resort Casino, Scottsdale, AZ.
Sept. 7-8, 2011.............  NIGC Consultation--United       Radisson Hotel, Bismarck, ND.
                               Tribes International Powwow.
Sept. 15-16, 2011...........  National Tribal Gaming          Chuckchansi Gold Resort & Casino, Coarsegold, CA.
                               Commissioner/Regulator
                               Association Fall Meeting.
Sept. 19-20, 2011...........  NIGC Regional Training........  Sky Ute Casino Resort, Ignacio, CO.
Sept. 29-30, 2011...........  NIGC Consultation--Northeast..  Turning Stone Resort & Casino, Verona, NY.
Oct. 6-7, 2011..............  G2E--National.................  Sands Expo and Convention Ctr., Las Vegas, NV.
Oct./Nov. 2011..............  USET Annual Meeting...........  Mississippi Choctaw, MS.
Nov. 3-4, 2011..............  NCAI Annual Conference........  Portland, OR.
Jan. 11-12, 2012............  NIGC Consultation--Eastern....  Wind Creek Casino, Atmore, AL.
Jan. 18-19, 2012............  NIGC Consultation--Great        Crowne Plaza, Billings, MT.
                               Plains.
Jan. 23-24, 2012............  NIGC Consultation--California.  Win-River Casino, Redding, CA.
Jan. 26-27, 2012............  NIGC Consultation--Northwest..  7 Feathers Casino, Canyonville, OR.
Jan. 30-31, 2012............  NIGC Consultation--Oklahoma...  Cherokee Hard Rock, Tulsa, OK.
Feb. 2-3, 2012..............  NIGC Consultation--Southwest..  Isleta Hard Rock Casino Resort, Albuquerque, NM.
Feb. 7-8, 2012..............  NIGC Consultation--Great        Radisson Hotel, Rapid City, SD.
                               Plains.
----------------------------------------------------------------------------------------------------------------

VII. Group Four: Part 556--Background Investigations for Primary 
Management Officials and Key Employees; Part 558--Gaming Licenses for 
Key Employees and Primary Management Officials; Part 556--Formalizing 
the ``Pilot Program''; Part 571--Monitoring and Investigations; Part 
531--Collateral Agreements; Part 537--Background Investigations for 
Persons or Entities With a Financial Interest in, or Having Management 
Responsibility for, a Management Contract; and Part 502--Definitions

A. Background Investigations and Pilot Program

    The NOI requested comment on whether the Commission should consider 
formalizing through regulation a long-standing ``pilot program'' under 
which participating Tribes provide NIGC with concise information 
pertaining to employees licensed or denied a license in lieu of the 
process outlined in Part 556. Comments were submitted supporting the 
Commission's consideration of amending the regulation to incorporate 
the pilot program. One Tribe stated that the pilot program should be 
formalized so long as no changes are made to the current program. Some 
Tribes commented that most Tribes already participate in the program.
    Additionally, the NOI requested comment on whether the NIGC should 
process fingerprint cards for non-primary management officials or non-
key employees. Many comments supported increased access to fingerprint 
and background information for additional employees but expressed that 
this not be mandated by the NIGC. Some commentators requested that this 
should include vendors and contractors as well. Additionally, many 
comments requested that the NIGC provide tribal gaming commissions 
access to licensing information via an online database or expansion of 
the TBIS database.
    The Commission agrees that the ``pilot program'' is widely 
participated in by a large number of gaming Tribes and that access to 
background information is important to shield Tribes from organized 
crime and other corrupting influences. Based on the comments received, 
the Commission intends to review these regulations during the Group 
Four period.

B. Management Contracts

1. Collateral Agreements
    The NOI requested comment on whether the Commission should consider 
approving collateral agreements to a management contract. Some comments 
asserted that collateral agreements are outside the scope of NIGC 
authority and requiring submission and approval of those

[[Page 18464]]

agreements would second-guess tribal business decisions. One 
commentator stated that the NIGC should not expand authority over non-
management business relationships of the Tribe. Additionally, some 
comments expressed concern that requiring the approval of non-
management collateral agreements would affect their relationships with 
current or potential business partners, discourage private investment 
in Indian Country, and potentially call into question the validity of 
previously executed agreements. These commentators recommended the NIGC 
only review and approve those agreements containing management 
provisions. Another commentator suggested that the review and approval 
of collateral agreements would greatly reduce the risks to both Tribes 
and would-be management contractors, thus reducing overreaching by 
third parties.
    Other comments supported the review and approval of collateral 
agreements by the NIGC. Those Tribes stated that it is the NIGC's trust 
responsibility to ensure that such agreements do not violate the sole 
proprietary interest provisions of IGRA. Other Tribes suggested that 
the NIGC be available to review and approve collateral agreements 
solely at the request of the Tribe. One commentator suggested drafting 
a regulation that specifies the maximum amount of revenue that could be 
included in collateral agreements.
    Based on the comments received in response to the NOI, the 
Commission intends to review this regulation during the Group Four 
period.
2. Background Information for Persons or Entities With a Financial 
Interest in, or Having Management Responsibility for, a Management 
Contract
    The NOI requested comment on whether the Commission should consider 
amending this regulation to specify that a contractor should be 
required to submit background information when the contract is only for 
Class III gaming. Some Tribes stated that the NIGC has no authority 
over Class III gaming and thus no authority over Class III management 
contractors. Other Tribes stated that IGRA specifically grants the NIGC 
the authority to complete background investigations on Class II and 
Class III management contractors. One Tribe stated that because 
background investigations are a requirement of the tribal-state 
compact, requiring an additional background investigation is 
duplicative, burdensome, and overreaching. Other comments recommended 
that in addition to the clarification, the NIGC should clarify 
submission requirements for Class II and Class III background 
investigations and streamline the background investigation process to 
allow for expedited review of individuals and entities holding a gaming 
license in other tribal and state jurisdictions.
    The Commission agrees that this issue has been the point of 
confusion for Tribes and the public. The Commission intends to review 
this regulation during the Group Four period.

C. Inspection and Access to Records

    The NOI requested comment on whether there was a need to clarify 
Commission access to records located off-site, including at sites 
maintained or owned by third parties. One comment stated that this 
section should be revised to explicitly deny the NIGC access to Class 
III records. Some comments stated that the NIGC has the right to access 
all records of the Tribal gaming enterprise, regardless of location. 
Other comments stated that NIGC should only request records within its 
statutory authority. Another comment suggested that the regulation be 
amended to require Tribes to maintain all records on site.
    The Commission acknowledges the need to clarify Commission access 
to records located off-site, including at sites maintained and owned by 
third parties. The Commission intends to review this regulation during 
the Group Four period.

D. Definitions--Net Revenues--management fee

    The NOI asked whether the Commission should consider whether the 
definition of Net revenues--management fee should be defined to be 
consistent with the General Accepted Accounting Principles (GAAP) when 
determining the management fee. Many comments stated that if this 
definition was amended, it would need to be consistent with the 
statutory definition of Net Revenue contained in IGRA, 25 U.S.C. 
2703(9). Other comments stated that it should be defined consistent 
with industry standards such as GAAP. One comment noted that a clearer 
definition would have hastened the resolution of a dispute with their 
state over the definition of net win and net revenue. Another comment 
stated that the 2008 regulatory change to the definition of Net revenue 
does not comply with IGRA and needs to be revised to ensure it is 
consistent with the statutory definition.
    Based on the comments that the definition could be clearer and that 
there may be some benefit to a definition consistent with GAAP, the 
Commission intends to review this definition during Group Four 
consultation and comment period.
    Subject to future changes, NIGC will hold tribal consultations on 
Group Four regulations on the following dates as set forth in more 
detail below. The Commission has attempted to schedule consultations in 
every region and to hold those consultations either before or after 
other events widely attended by tribal officials. The purpose of 
scheduling consultations in this manner is both to encourage 
participation of tribal officials and to conserve tribal resources by 
reducing the amount of travel of participants.

----------------------------------------------------------------------------------------------------------------
                                                     GROUP 4
-----------------------------------------------------------------------------------------------------------------
            Date                           Event                                   Location
----------------------------------------------------------------------------------------------------------------
June 8, 2011................  Indian Bingo and Class II       Mystic Lake Casino and Resort, Prior Lake, MN.
                               Summit.
June 13, 2011...............  NCAI Mid Year Conference......  Hyatt Regency, Milwaukee, WI.
June 21-22, 2011............  CNIGA Membership Meeting......  Harrah's Rincon Hotel & Casino, Valley Center, CA.
July 14-15, 2011............  Northwest Indian Gaming Expo..  Tulalip Resort Casino, Tulalip, WA.
July 20-21, 2011............  NIGC Consultation--Southwest..  Hyatt Regency Tamaya Resort, Santa Ana Pueblo, NM.
July 28-29, 2011............  NIGC Consultation--Northeast..  DOI South Auditorium, Washington, DC.
Aug. 18-19, 2011............  Oklahoma Indian Gaming          Tulsa, OK.
                               Association Conference.
Aug. 25-26, 2011............  NIGC Consultation--Southwest..  Wild Horse Resort Casino, Scottsdale, AZ.
Sept. 7-8, 2011.............  NIGC Consultation--United       Radisson Hotel, Bismarck, ND.
                               Tribes International Powwow.

[[Page 18465]]

 
Sept. 15-16, 2011...........  National Tribal Gaming          Chuckchansi Gold Resort & Casino, Coarsegold, CA.
                               Commissioner/Regulator
                               Association Fall Meeting.
Sept. 19-20, 2011...........  NIGC Regional Training........  Sky Ute Casino Resort, Ignacio, CO.
Oct. 6-7, 2011..............  G2E--National.................  Sands Expo and Convention Ctr., Las Vegas, NV.
Oct./Nov. 2011..............  USET Annual Meeting...........  Mississippi Choctaw, MS.
----------------------------------------------------------------------------------------------------------------

VIII. Group Five: Part 518--Self Regulation of Class II Gaming; 
proposed new Sole Proprietary Interest regulation; and implementation 
through regulation of Class III MICS options

A. Self Regulation of Class II Gaming

    The NOI requested comment on whether the Commission should consider 
amending the process for obtaining a self-regulation certification. The 
Commission has heard that the administrative burden of completing the 
process significantly outweighs the benefits obtained from self 
regulation. Comments received from the NOI state that this regulation 
is not performing the function set forth in IGRA. Comments stated that 
the submission requirements are duplicative and unduly burdensome and 
the petition and annual reporting requirement undermine the purpose of 
self-regulating. One comment recommended that high standards should be 
maintained, and the benefits and recognition for self regulating Tribes 
should be higher. A Tribe noted that self regulation is a hallmark of 
tribal sovereignty.
    The Commission agrees that this regulation is under-utilized by 
Tribes. Of over 220 gaming Tribes, only two Tribes have gone through 
the self-regulation certification process successfully. Due to the 
interest expressed in revising this regulation, the Commission intends 
to review this regulation during the Group Five period.

B. Sole Proprietary Interest

    The NOI requested comments on whether the Commission should 
consider a regulation defining sole proprietary interest and providing 
a process through which a Tribe may request the NIGC to conduct a 
review and make a determination. Many Tribes and other 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 comments received in 
response to the NOI reflect the complexity of this issue. Some comments 
state that the Commission should promulgate a regulation that would 
provide for review only at the request of a tribe. Other comments state 
that the percentages contained in IGRA serve to define what percentage 
might violate the Act's sole proprietary interest provision. One tribe 
suggested that if Sole Proprietary Interest is to be defined, then so 
should Primary Beneficiary. Some comments stated that a clear 
definition of sole proprietary interest may provide stability and 
access to financing. Other comments suggested that a definition might 
limit tribal access to capital. Some comments suggested that this 
determination be best left to the courts to decide.
    The Commission acknowledges the comments regarding defining Sole 
Proprietary Interest through a regulation. Given the importance of this 
issue and IGRA's mandate that Tribes maintain the sole proprietary 
interest, the Commission intends to review this issue during the Group 
Five period.

C. Class III MICS Implementation

    Based on the comments received during the Group One period, the 
Commision will address implementation of changes to Class III MICS 
during the Group Five period.
    Subject to future changes, NIGC will hold tribal consultations on 
Group Five regulations on the following dates as set forth in more 
detail below. The Commission has attempted to schedule consultations in 
every region and to hold those consultations either before or after 
other events widely attended by tribal officials. The purpose of 
scheduling consultations in this manner is both to encourage 
participation of tribal officials and to conserve tribal resources by 
reducing the amount of travel of participants.

----------------------------------------------------------------------------------------------------------------
                                                     GROUP 5
-----------------------------------------------------------------------------------------------------------------
            Date                           Event                                   Location
----------------------------------------------------------------------------------------------------------------
July 14-15, 2011............  Northwest Indian Gaming Expo..  Tulalip Resort Casino, Tulalip, WA.
July 20-21, 2011............  NIGC Consultation--Southwest..  Hyatt Regency Tamaya Resort, Santa Ana Pueblo, NM.
July 28-29, 2011............  NIGC Consultation--Northeast..  DOI South Auditorium, Washington, DC.
Aug. 18-19, 2011............  Oklahoma Indian Gaming          Tulsa, OK.
                               Association Conference.
Aug. 25-26, 2011............  NIGC Consultation--Southwest..  Wild Horse Resort Casino, Scottsdale, AZ.
Sept. 7-8, 2011.............  NIGC Consultation--United       Radisson Hotel, Bismarck, ND.
                               Tribes International Powwow.
Sept. 15-16, 2011...........  National Tribal Gaming          Chuckchansi Gold Resort & Casino, Coarsegold, CA.
                               Commissioner/Regulator
                               Association Fall Meeting.
Sept. 19-20, 2011...........  NIGC Regional Training........  Sky Ute Casino Resort, Ignacio, CO.
Sept. 29-30, 2011...........  NIGC Consultation--Northeast..  Turning Stone Resort & Casino, Verona, NY.
Oct. 6-7, 2011..............  G2E--National.................  Sands Expo and Convention Ctr., Las Vegas, NV.
Oct./Nov. 2011..............  USET Annual Meeting...........  Mississippi Choctaw, MS.
Nov. 3-4, 2011..............  NCAI Annual Conference........  Portland, OR.
Nov. 14-15, 2011............  NIGC Consultation--California.  Spa Resort Casino, Palm Springs, CA.
Nov. 17-18, 2011............  NIGC Consultation--Southwest..  Fort McDowell Casino, Scottsdale, AZ.

[[Page 18466]]

 
Nov. 30-Dec. 1, 2011........  NIGC Consultation--Oklahoma...  Downstream Casino Resort, Miami, OK.
Dec. 5-6, 2011..............  NIGC Consultation--Northwest..  Clearwater Casino Resort, Suquamish, WA.
Dec. 8-9, 2011..............  NIGC Consultation--Great        Turtle Creek Casino & Hotel, Williamsburg, MI.
                               Plains.
Dec. 12-13, 2011............  NIGC Consultation--Northeast..  DOI South Auditorium, Washington, DC.
----------------------------------------------------------------------------------------------------------------

IX. Regulations That the Commission Does Not Anticipate Revising

A. Part 502--Net Revenues--Allowable Uses.

    The NOI requested comment on whether the Commission should consider 
a definition for the term Net Revenues--allowable uses. Many Tribes 
commented that this approach would intrude on tribal sovereignty, that 
tribal budgeting is an inherent tribal governmental function, and that 
such an approach could interfere with internal tribal matters. Further, 
tribal commentators noted that IGRA has a clear definition of Net 
Revenues and asserted that the NIGC does not have authority to change 
this definition. An accounting firm commented that no single formulaic 
approach should be applied to all Tribes. A few comments from the 
public stated that if NIGC were to promulgate a definition it should 
only do so after extensive review, consultation, and comment. Some 
comments supported promulgation of a definition, arguing that doing so 
could ensure Tribes consider the financial integrity of the gaming 
operation before funding other tribal programs.
    After review of all the comments submitted, the Commission does not 
anticipate promulgating a definition of net revenues--allowable uses at 
this time. The Commission acknowledges the concerns articulated by the 
public and will examine alternatives consistent with IGRA that minimize 
intrusions on tribal sovereignty and internal tribal matters.

B. Part 502--Management Contract Definition

    The NOI also requested comment on whether to expand the definition 
of Management Contract to include contracts that pay a fee based on a 
percentage of gaming revenues. The comments received from the public 
expressed concern that an expanded definition would inappropriately 
inhibit the ability of Tribes to enter into contracts, increase the 
administrative burden on the NIGC, and infringe upon tribal 
sovereignty. The public also commented that an expanded definition may 
be counter to IGRA's purpose of promoting tribal economic development, 
self-sufficiency, and strong tribal governments. Finally, many 
commentators noted that only contracts containing actual management 
provisions should be subject to the management contract approval 
process.
    Regarding whether the Commission should consider promulgating a 
definition of acceptable compensation to a manager contractor, some 
Tribes commented that it would be beneficial for the Commission to 
consider issuing guidance on compensation and the upper limits on 
management fees. Some Tribes commented that a definition would intrude 
on business decisions of the Tribe. Another Tribe noted that amending 
the definition to establish a maximum fee might be appropriate, if 
enforced only against the company, not the Tribe. However, most 
comments suggested that NIGC should not revise this definition.
    The Commission notes that IGRA establishes a maximum fee for 
management contractors. Based on a review of the public's comments, the 
Commission does not anticipate expanding the definition at this time. 
The Commission acknowledges the concerns articulated by the public and 
will examine alternatives consistent with IGRA that minimize intrusions 
on tribal sovereignty and promote the purposes of IGRA.

C. Part 533--Approval of Management Contracts

    The NOI sought comment on whether to consider amending the trustee 
standard in Part 533 by adding two grounds for possible disapproval in 
Sec.  533.6(b). One potential basis for disapproval would be because 
the management contract was not submitted in accordance with the 
submission requirements of 25 CFR part 533. The second potential basis 
for disapproval would be because the management contract does not 
contain the regulatory requirements for approval pursuant to 25 CFR 
part 531. Many comments received from Tribes were generally supportive 
of the Commission reviewing this part of the regulation. Some Tribes 
commented that if the Commission reviewed this part of the regulation 
and ultimately amended it as described, it could result in the 
disapproval of a management contract for technical reasons that could 
have been easily remedied.
    The Commission does not anticipate amending Part 533 at this time. 
NIGC will continue to assist Tribes and potential management companies 
with the regulatory process set forth in IGRA and Part 533 to ensure 
full compliance with IGRA.

X. Other Regulations or Policies

A. Tribal Advisory Committee

    The NOI requested comment on whether a policy or regulation should 
be developed identifying when a Tribal Advisory Committee (TAC) will be 
formed to provide input and advice to the NIGC, and if so, how the 
Committee members should be selected. Additionally, the NOI asked if 
cost should be a factor when considering whether to form a TAC.
    In response to this request, Tribes commented that while TACs can 
be an effective way to communicate with Tribes, a TAC is not a 
substitute for tribal consultation as set forth in Executive Order 
13175. Commentators indicated that cost is a valid consideration and 
that the expense of proceeding with a TAC is justified only if all 
views are considered by the Commission. Tribes also commented that the 
rules governing TACs can be unclear, resulting in confusion and 
uncertainty about the TAC process. Commentators also noted that the use 
of TAC has the potential to unnecessarily extend the time it takes to 
draft a rule.
    Other comments received in response to the NOI noted that a TAC has 
the potential to provide useful input and perspective to the Commission 
particularly on topics that broadly impact Indian gaming. Additionally, 
comments advised that a TAC should be flexible in order to meet the 
specific needs of the NIGC and the Tribes. Tribes advised the NIGC to 
create a policy that is flexible and allows TACs to be utilized on a 
case-by-case basis.

[[Page 18467]]

    The Commission recognizes the concern expressed in comments 
regarding the use of TACs. Additionally, the Commission also recognizes 
the potential benefit of a TAC, particularly when addressing a complex 
or technical regulation. While the Commission agrees with those 
comments suggesting a regulation may not be necessary, the Commission 
will consider drafting a policy guiding the development of a TAC, 
member selection, and meeting rules. The Commission anticipates that a 
TAC policy will be developed during 2011. The process for developing a 
TAC policy will be consistent with the NIGC's Tribal Consultation 
policy.

B. Communication Policy

    The NOI asked whether the NIGC should consider developing a 
regulation or include as part of a regulation a process for determining 
how it communicates with Tribes. The NOI noted that NIGC communicates 
directly with the Tribal Gaming Regulatory Agency (TGRA) or Tribal 
Gaming Commission (TGC) as well as directly with the tribal government. 
The NOI asked whether the NIGC should consider promulgating a 
regulation or policy establishing a default method of communication 
unless otherwise directed by tribal resolution.
    Many comments recommended that the Commission should not consider 
adopting a universal standard for communicating with Tribes. Tribes 
noted the variety in government structures and methods used by Tribes 
when taking official action. However, Tribes also noted the need for 
more effective communication with all affected parties, including the 
elected government officials, TGC, TGRA and the gaming operation. While 
the Commission agrees with those comments suggesting a regulation may 
not be necessary, the Commission will consider drafting a policy 
guiding how the Commission communicates with Tribes, their gaming 
regulatory bodies, and the gaming operation. This Commission 
anticipates that a policy will be developed over the course of the 
regulatory review process outlined above. The process for developing a 
Communication policy will be consistent with NIGC's Tribal Consultation 
policy.

C. Other Regulations

    During this review process, the Commission attempted to identify 
those regulations identified by Tribes and/or the Commission in most 
need of review. However, the Commission reserves the right to review 
other regulations if needed throughout this review process. Review of 
regulations not specifically identified in this Notice will be reviewed 
utilizing the process described in Section IIB of this Notice.

    Authority:  25 U.S.C. 2706(b)(10); E.O. 13175.

    Dated: March 30, 2011, Washington, DC.
Tracie L. Stevens,
Chairwoman.
Steffani A. Cochran,
Vice-Chairwoman.
Daniel J. Little,
Associate Commissioner.
[FR Doc. 2011-7912 Filed 4-1-11; 8:45 am]
BILLING CODE 7565-01-P