[Federal Register Volume 76, Number 197 (Wednesday, October 12, 2011)]
[Proposed Rules]
[Pages 63237-63238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-25923]



National Indian Gaming Commission

25 CFR Part 571

RIN 3141-AA49

Issuance of Investigation Completion Letters

AGENCY: National Indian Gaming Commission, Interior.

ACTION: Notice of proposed rulemaking.


SUMMARY: This action proposes to amend our regulations to provide for 
an investigation completion letter to be issued to a Tribe if the 
Agency's authorized staff will not recommend the commencement of an 
enforcement proceeding against a respondent.

DATES: Submit comments on or before December 12, 2011.

ADDRESSES: You may submit comments by any one of the following methods, 
however, please note that comments sent by electronic mail are strongly 
     E-mail comments to: [email protected].
     Mail comments to: National Indian Gaming Commission, 1441 
L Street, NW., Suite 9100, Washington, DC 20005.
     Hand deliver comments to: 1441 L Street, NW., Suite 9100, 
Washington, DC 20005.
     Fax comments to: National Indian Gaming Commission at 202-

FOR FURTHER INFORMATION CONTACT: Lael Echo-Hawk, Counselor to the 
Chairwoman, National Indian Gaming Commission, 1441 L Street, NW., 
Suite 9100, Washington, DC 20005. Telephone: 202-632-7009; e-mail: 
[email protected].


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 
Act establishes the National Indian Gaming Commission (``Commission'') 
and sets out a comprehensive framework for the regulation of gaming on 
Indian lands. 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 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.
    On November 18, 2010, the National Indian Gaming Commission (NIGC) 
issued a Notice of Inquiry and Notice of Consultation (NOI) advising 
the public that the NIGC was conducting a comprehensive review of its 
regulations and requesting public 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. 75 FR 70680 (Nov. 18, 2010). On April 4, 2011, after holding 
eight consultations and reviewing all comments, NIGC published a Notice 
of Regulatory Review Schedule (NRR) setting out a consultation schedule 
and process for review. 76 FR 18457. The Commission's regulatory review 
process established a Tribal consultation schedule with a description 
of the regulation groups to be covered at each consultation. This part 
571 was included in the regulatory review.

II. Development of the Proposed Rule

    The Commission conducted a total of 9 Tribal consultations as part 
of its review of part 571. Tribal consultations were held in every 
region of the country and were attended by over 137 Tribes and 381 
Tribal leaders or their representatives. In addition to Tribal 
consultations, on June 28, 2011, the Commission requested public 
comment on a preliminary draft of amendments to part 571. After 
considering the comments received from the public and through Tribal 
consultations, the Commission proposes one amendment to part 571: 
inclusion of a process for issuing an investigation completion letter.
    The Notice of Regulatory Review Schedule (NRR) announced the 
Commission's intent to review whether part 571 needed revised to 
clarify the NIGC's authority to access records located off-site, 
including at sites maintained and owned by third-parties. Additionally, 
comments received during consultation indicated a need to provide a 
response to Tribes who had been the subject of an investigation but 
never issued a notice of violation.

A. NIGC Authority To Access Off-Site Records

    In response to comments received from the NOI, the NRR included 
review of whether the regulations should include language clarifying 
the NIGC's authority to access records located off-site, including at 
sites maintained and owned by third parties. A discussion draft 
containing this revision was posted for comment. Some comments received 
indicated that this revision was not objectionable, so long as the 
Commission was not accessing Tribal government records or Class III 
records. Other comments did not object to the proposed amendment, but 
stated that it was unnecessary because under the provision of the Act, 
the Commission has subpoena authority ``to require by subpoena the 
attendance and testimony

[[Page 63238]]

of witnesses and the production of all books, papers, and documents 
relating to any matter under consideration or investigation.'' 25 
U.S.C. 2715. Another commentator stated that this issue is already 
adequately addressed by regulation. Another comment stated that this 
would be an expansion of the NIGC's authority and would constitute an 
unwarranted intrusion into a Tribe's ability to self-govern.
    The Commission agrees with the comments that an amendment is 
unnecessary because IGRA and NIGC regulations already provide broad 
authority to access off-site records, including sites maintained and 
owned by third parties. The amendment contained in the preliminary 
draft of this regulation did not change this already comprehensive 
subpoena authority. The proposed revision is thus unnecessary and has 
not been included in this proposed rule.

B. Investigation Completion Letter

    During consultation, the Commission heard that the regulations 
should include a process for notifying a Tribe that an investigation 
has been concluded. Tribal representatives explained that in some 
instances they were never notified of the results of investigations 
opened by the NIGC years ago. The lack of any response left Tribes in a 
situation where when asked, the Tribe had to indicate that they were 
under investigation. The discussion draft attempted to formalize NIGC's 
informal process of advising a Tribe, through NIGC's authorized 
representative, after an investigation was terminated. All comments 
received on the discussion draft were supportive of the concept. 
However, several comments indicated that such a letter should be 
mandatory and not discretionary. Because each investigation and Tribe 
are different, the Commission believes it is important to provide the 
NIGC with the discretion to evaluate each investigation on a case-by-
case basis and to decide to issue a letter based on the facts and 
circumstances in that particular investigation. The proposed rule 
retains that discretion. Additionally, the discussion draft titled this 
section ``Investigation Closure Letter'', however, commentators 
recommended changing the title to ``Investigation Completion Letter'' 
stating that ``closure'' is a term used for closure of a gaming 
operation. The Commission made this recommended change in this proposed 

Regulatory Matters

Regulatory Flexibility Act

    This proposed rule will not have a significant economic effect on a 
substantial number of small entities as defined under the Regulatory 
Flexibility Act, 5 U.S.C. 601 et seq. Indian Tribes are not considered 
to be small entities for the purposes of the Regulatory Flexibility 

Small Business Regulatory Enforcement Fairness Act

    This proposed rule is not a major rule under 5 U.S.C. 804(2), the 
Small Business Regulatory Enforcement Fairness Act. This rule does not 
have an annual effect on the economy of $100 million or more. This rule 
will not cause a major increase in costs or prices for consumers, 
individual industries, federal, state or local government agencies or 
geographic regions and does not have a significant adverse effect on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S. based enterprises to compete with foreign-based 

Unfunded Mandate Reform Act

    The Commission, as an independent regulatory agency within the 
Department of the Interior, is exempt from compliance with the Unfunded 
Mandates Reform Act. 2 U.S.C. 1502(1); 2 U.S.C. 658(1).


    In accordance with Executive Order 12630, the Commission has 
determined that this 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 Office of General 
Counsel has determined that the proposed rule does not unduly burden 
the judicial system and meets the requirements of sections 3(a) and 
3(b)(2) of the Executive Order.

National Environmental Policy Act

    The Commission has determined that this 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

    This proposed rule does not require information collection under 
the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq., and is 
therefore not subject to review by the Office of Management and Budget.

List of Subjects in 25 CFR Part 571

    Gambling, Indian--lands, Indian--Tribal government, Reporting and 
recordkeeping requirements.

    Accordingly, for the reasons discussed in the preamble, the 
Commission proposes to amend 25 CFR part 571 to read as follows:


    1. The authority citation for part 571 continues to read as 

    Authority: 25 U.S.C. 2701 et seq.

    2. Add Sec.  571.4 to read as follows:

Sec.  571.4  Investigation completion letter.

    In instances where NIGC agency staff have concluded its 
investigation of a particular matter and will not recommend the 
commencement of an enforcement proceeding against a respondent at that 
time, the Commission's authorized representative, in his or her 
discretion, may advise the party by letter that the investigation has 
been completed. An investigation completion letter does not constitute 
a finding that no violation of IGRA, NIGC regulations, or a Tribe's 
approved gaming ordinance occurred. Further, an investigation 
completion letter does not preclude the reopening of an investigation 
or the initiation of an enforcement action by the Chair.

    Dated: October 3, 2011, in Washington, DC.
Tracie L. Stevens,
Steffani A. Cochran,
Daniel J. Little,
Associate Commissioner.
[FR Doc. 2011-25923 Filed 10-11-11; 8:45 am]