[Federal Register Volume 87, Number 233 (Tuesday, December 6, 2022)]
[Proposed Rules]
[Pages 74916-74947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25741]



[[Page 74915]]

Vol. 87

Tuesday,

No. 233

December 6, 2022

Part IV





Department of the Interior





-----------------------------------------------------------------------





Bureau of Indian Affairs





-----------------------------------------------------------------------





25 CFR Part 293





Class III Tribal State Gaming Compacts; Proposed Rule

  Federal Register / Vol. 87, No. 233 / Tuesday, December 6, 2022 / 
Proposed Rules  

[[Page 74916]]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 293

[2231A2100DD/AAKC001030/A0A501010.999900]
RIN 1076-AF68


Class III Tribal State Gaming Compacts

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Bureau of Indian Affairs (BIA) seeks input on changes to 
its regulations governing the review and approval of Tribal-State 
gaming compacts. The revisions would add factors and clarify how the 
Department reviews ``Class III Tribal-State Gaming Compacts'' (Tribal-
State gaming compacts or compacts).

DATES: Interested persons are invited to submit comments on or before 
March 1, 2023.

ADDRESSES: You may submit comments by any one of the following methods.
     Federal eRulemaking Portal: Please upload comments to 
http://www.regulations.gov by using the ``search'' field to find the 
rulemaking and then following the instructions for submitting comments.
     Email: Please send comments to [email protected] and 
include ``RIN 1076-AF68, 25 CFR part 293'' in the subject line of your 
email.
     Mail: Please mail comments to Indian Affairs, RACA, 1001 
Indian School Road NW, Suite 229, Albuquerque, NM 87104.

FOR FURTHER INFORMATION CONTACT: Oliver Whaley, Director, Office of 
Regulatory Affairs and Collaborative Action (RACA), Office of the 
Assistant Secretary--Indian Affairs; Department of the Interior, 
telephone (202) 738-6065, [email protected].

SUPPLEMENTARY INFORMATION: This proposed rule is published in exercise 
of authority delegated by the Secretary of the Interior to the 
Assistant Secretary--Indian Affairs (Assistant Secretary; AS-IA) by 209 
DM 8.

Table of Contents

I. Statutory Authority
II. Executive Summary
III. Background
IV. Summary of Comments Received
    A. General Comments
    B. Section Comments
V. Summary of Changes by Section
    A. Proposed Subpart A--General Provisions and Scope
    B. Proposed Subpart B--Submission of Tribal-State Gaming 
Compacts
    C. Proposed Subpart C--Secretarial Review of Tribal-State Gaming 
Compacts
    D. Proposed Subpart D--Scope of Tribal-State Gaming Compacts
VI. Procedural Requirements
    A. Regulatory Planning and Review (E.O. 12866)
    B. Regulatory Flexibility Act
    C. Congressional Review Act (CRA)
    D. Unfunded Mandates Reform Act of 1995
    E. Takings (E.O. 12630)
    F. Federalism (E.O. 13132)
    G. Civil Justice Reform (E.O. 12988)
    H. Consultation With Indian Tribes (E.O. 13175)
    I. Paperwork Reduction Act
    J. National Environmental Policy Act (NEPA)
    K. Effects on the Energy Supply (E.O. 13211)
    L. Clarity of This Regulation
    M. Public Availability of Comments

I. Statutory Authority

    In enacting IGRA, Congress delegated authority to the Secretary to 
review compacts to ensure that they comply with IGRA, other provisions 
of Federal law that do not relate to jurisdiction over gaming on Indian 
lands, and the trust obligations of the United States. 25 U.S.C. 
2710(d)(8)(B)(i)-(iii).

II. Executive Summary

    The Department of the Interior (Department) is considering 
revisions to its regulations governing the review and approval of 
Tribal-State gaming compacts (25 CFR part 293). The revisions would add 
factors and clarify how the Department reviews ``Class III Tribal-State 
Gaming Compacts'' (Tribal-State gaming compacts or compacts).
    The Department's current regulations do not identify the factors 
the Department considers; rather, those factors are contained in a 
series of decision letters issued by the Department dating back to 
1988. Evolution in the gaming industry and ongoing litigation highlight 
the need for the Department to clarify how it will analyze Tribal-State 
gaming compacts to determine whether they comply with the Indian Gaming 
Regulatory Act of 1988 (IGRA), 25 U.S.C. 2701, et. seq., other 
provisions of Federal law that does not relate to jurisdiction over 
gaming on Indian lands, or the trust obligations of the United States 
to Indians.

III. Background

    In 1988 the Indian Gaming Regulatory Act acknowledged that many 
Tribes were already engaged in gaming, and placed limits on Tribes' 
sovereign right to conduct gaming. It sought to ensure that Indian 
Tribes are the primary beneficiaries of the gaming operation, but also 
authorized State governments to play a limited role in the regulation 
of class III Indian gaming by negotiating agreements with Tribes called 
``Class III Tribal-State Gaming Compacts'' (class III gaming compacts 
or compacts). Congress sought to strike a balance between Tribal 
sovereignty and States' interests in regulating gaming and ``shield it 
from organized crime and other corrupting influences.'' 25 U.S.C. 
2702(2).
    At the time of IGRA's enactment, Indian gaming represented an 
approximately $121 million segment of the total United States gaming 
industry, while Nevada casinos reported approximately $4.1 billion in 
gross gaming revenue.\1\ By the end of fiscal year 2021, Indian gaming 
represented an approximately $39 billion segment of the total United 
States gaming industry, with commercial gaming reporting $53 
billion.\2\ In the Casino City's Indian Gaming Industry Report 2018 
Edition, Allen Meister, Ph.D. of Meister Economic Consulting, estimated 
that Indian Gaming gross gaming revenue for 2016 of approximately $31.5 
billion represented a total economic contribution of $105.4 billion 
across the U.S. economy.
---------------------------------------------------------------------------

    \1\ See, e.g., ``The Economic Impact of Tribal Gaming: A State-
By-State Analysis,'' by Meister Economic Consulting and American 
Gaming Association dated November 8, 2018.
    \2\ See, e.g., ``The Nation Indian Gaming Commission's annual 
gross gaming revenue report for 2021;'' see also American Gaming 
Association's press release ``2021 Commercial Gaming Revenue 
Shatters Industry Records, reaches $53B.''
---------------------------------------------------------------------------

    In line with the growth in Indian gaming, State licensed commercial 
gaming and State lotteries have also experienced growth. In the early 
1980's when Congress began considering legislation addressing Indian 
gaming, two States had legalized commercial casino gaming and seventeen 
had State run lotteries. By 2017, twenty-four States had legalized 
commercial casino gaming resulting in approximately 460 commercial 
casino locations, excluding locations with State licensed video lottery 
terminals, animal racetracks without gaming machines, and card rooms. 
In 2017, the gross gaming revenue for the commercial casino industry 
represented approximately $40.28 billion and generated approximately 
$9.2 billion in gaming tax revenue. Further, 44 States were operating 
State lotteries in 2017.
    The expansion of State lotteries and State licensed commercial 
gaming can place Tribes and States in direct competition for market 
share. Also, advancements in gaming technology and changes in State and 
Federal gaming law since the passage of IGRA

[[Page 74917]]

has shaped the compact negotiation process. As a result, class III 
gaming compacts have expanded in scope and complexity as the parties 
seek mutually beneficial provisions. However, IGRA did not anticipate 
the compact negotiation process would be between competitors, rather 
sovereign governments seeking to regulate gaming.
    Through IGRA, Congress required Tribes to enter into a compact with 
a State to conduct class III gaming. 25 U.S.C. 2710(d)(1)(C). IGRA 
requires States to negotiate class III gaming compacts in good faith, 
limits the scope of bargaining for class III gaming compacts, and 
prohibits States from using the process to impose any tax, fee, charge, 
or other assessment on Tribal gaming operations. 25 U.S.C. 
2710(d)(3)(A); 2710(d)(3)(C); and 2710(d)(4).
    Under IGRA, the Department has 45 days to complete its review and 
either approve or disapprove a class III gaming compact. If the 
Department takes no action within that 45-day period, the Tribal-State 
gaming compact is considered approved by operation of law--to the 
extent that it is consistent with IGRA. In order for a compact to take 
effect, notice of its approval must be published in the Federal 
Register.
    The regulations that codify the Department's review process for 
Tribal-State gaming compacts are found at 25 CFR part 293 and were 
promulgated in 2008 (``2008 Regulations''). 73 FR 74004 (Dec. 5, 2008). 
The Department's 2008 Regulations were designed to ``address[es] the 
process for submission by Tribes and States and consideration by the 
Secretary of Class III Tribal-State Gaming Compacts, and [are] not 
intended to address substantive issues.'' 73 FR 74004-5. The 
Department's consideration of substantive issues appears in a number of 
decision letters. In addition, a body of case law has developed 
addressing the appropriate boundaries of class III gaming compacts. 
Through this rule making, the Department seeks to codify longstanding 
Departmental policies and interpretation of case law in the form of 
substantive regulations which would provide certainty and clarity on 
how the Secretary will review certain provisions in a compact.
    On March 28, 2022, the Department published a Dear Tribal Leader 
Letter announcing Tribal consultation pursuant to the Department's 
consultation policy and under the criteria in E.O. 13175, regarding 
proposed changes to 25 CFR part 293. The Department held two listening 
sessions and four formal consultation sessions. The Department also 
accepted written comments until June 30, 2022.
    The Dear Tribal Leader Letter included a Consultation Draft of the 
proposed revisions to 25 CFR part 293 (hereinafter Consultation Draft); 
a Consultation Summary Sheet of Draft Revisions to part 293; and a 
redline reflecting proposed changes to the 2008 Regulations. The Dear 
Tribal Leader Letter asked for comments on the Consultation Draft as 
well as responses to seven consultation questions.
    The Department received a number of written and verbal comments 
from Tribal leaders and Tribal advocacy groups. The Department also 
received written comments from non-Tribal entities which are not 
addressed in the Tribal consolation comment and response but will be 
included and addressed as part of the public comment record.

IV. Summary of Comments Received

A. General Comments

    Several commenters commented on the process and timing of the 
proposed rulemaking process. Some requested additional consultations 
during the rulemaking process, some requested the Department engage in 
extensive consultations equating to negotiated rulemaking, and others 
encouraged the Department to proceed with the rulemaking expeditiously.
    The Department acknowledges the comments. The Department seeks to 
balance robust consultation with expeditious processing of the 
rulemaking. The Department held four virtual consultation sessions, two 
in-person listening sessions, and is providing additional opportunities 
for comment on the proposed regulations, which reflect the significant 
input of Tribal leaders during the scheduled consultation sessions and 
their written comments.
    A number of commenters responded to the Department's first 
consultation question: ``[d]o the draft revisions increase certainty 
and clarity in the Secretary's compact review process? Are there 
additional ways to increase certainty and clarity?'' Commenters 
expressed support for the proposed revisions to part 293 and noted the 
Consultation Draft appeared to codify longstanding Departmental 
policies and interpretation of case law in the form of substantive 
regulations which would provide certainty and clarity on how the 
Secretary will review certain provisions in a compact. Commenters also 
provided a number of specific suggested improvements to specific 
propose sections, including expressing concerns that some provisions as 
written are overly broad or vague and may cause confusion. Other 
commenters cautioned the Department should not apply the proposed 
regulations in a rigid or paternalistic manner and when possible, defer 
to a Tribe's sovereign decision making.
    The Department acknowledges the comments. The Department seeks to 
clarify and enforce the proper scope of compacts negotiated under IGRA 
while deferring to and respecting Tribes' sovereign decision making. 
The proposed regulations codify existing limitations on Tribes and 
States negotiating compacts pursuant to IGRA. The Department has 
addressed specific suggested improvements in the relevant sections 
below including narrowing some provisions.
    A number of commenters responded to the Department's second 
consultation question: ``[d]o the draft revisions provide sufficient 
guidance to parties engaged in compact negotiations? Are there ways to 
provide additional guidance?'' Commenters expressed support for the 
Consultation Draft and opined that the proposed new substantive 
provisions would improve the guidance for negotiating parties. 
Commenters also recommended the Department include in the proposed rule 
a codification of the Department's longstanding practice of offering 
``technical assistance'' to negotiating parties. Other commenters noted 
``sufficient guidance'' was a laudable but ultimately unachievable 
goal. One commenter expressed concern with the Consultation Draft and 
argued the proposed substantive provisions are cumbersome, unnecessary, 
and would result in increased requests for technical assistance as 
Tribes negotiate with State and local governments as required by IGRA.
    The Department acknowledges the comments. The Department addresses 
technical assistance in a separate comment summary and response below. 
The Department notes the proposed substantive provisions reflect a 
codification of longstanding Department policy and case law, including 
the proper scope of a compact. The Department notes intergovernmental 
agreements between Tribes and States, or local governments can be 
beneficial, however, Congress provided a narrow scope of topics Tribes 
and States may include when negotiating a Tribal-State gaming compact.
    Commenters requested clarification on whether the proposed 
regulations would impact ongoing negotiations.
    The Department notes the Consultation Draft, and the proposed

[[Page 74918]]

regulations are prospective and reflect a codification of existing 
Departmental policy, past precedent, and case law. The Consultation 
Draft has been made public and the Department encourages Tribes and 
States that are engaged in negotiations to review the Consultation 
Draft and the proposed regulations.
    A number of commenters requested the Department clarify the 
effective date of the proposed substantive provisions and questioned 
whether they would be retroactive. Commenters requested clarification 
when parties may submit under the new regulations once promulgated. One 
commenter provided proposed text for a section addressing the effective 
date and grandfather clause.
    The Department has accepted the proposed regulatory text in part 
and added a section to the proposed rule addressing the effective date 
of the proposed regulations. The new section is numbered Sec.  293.30. 
IGRA limits the review period to approve or disapprove compacts or 
amendments to 45 days. As a result, the Department cannot retroactively 
approve or disapprove compacts or amendments after the 45-day review 
period has run.
    A number of commenters questioned the Secretary's authority to 
promulgate substantive regulations interpreting IGRA's scope of compact 
negotiations. Commenters further questioned the Secretary's authority 
to determine evidence of bad faith noting IGRA delegated that role to 
the courts and requested clarification on how the Secretary will find 
bad faith.
    The Secretary has authority to promulgate these regulations on the 
procedures for the submission and review of compacts and amendments 
based on the statutory delegation of powers contained in IGRA and 25 
U.S.C. 2, and 9. In enacting IGRA, Congress delegated authority to the 
Secretary to review compacts to ensure that they comply with IGRA, 
other provisions of Federal law that do not relate to jurisdiction over 
gaming on Indian lands, and the trust obligations of the United States. 
25 U.S.C. 2710(d)(8)(B)(i)-(iii). IGRA establishes the parameters for 
topics that may be the subject of compact and amendment negotiations 
and included in compacts. Thus, in reviewing submitted compacts and 
amendments, the Secretary is vested the authority to determine whether 
the compacts contain impermissible topics. The Department recognizes 
that section 2710(d)(7)(A)(I) vests jurisdiction in district courts 
over any causes of action . . . arising from the failure of a State . . 
. to conduct [ ] negotiations in good faith.'' Therefore, the 
Department has replaced the phrase ``evidence of bad faith'' with the 
phrase ``evidence of a violation of IGRA'' in the proposed rule. This 
change harmonizes the Department's regulations, with IGRA's plain 
language, is prescribing those topics, as addressed by IGRA, that may 
provide evidence of a violation of IGRA and which a court may find as 
evidence of bad faith negotiations to assist Tribes with their 
negotiations.
    A number of commenters requested the Department include a 
``Seminole Fix'' in the proposed rule, referencing the decision by 
Supreme Court of the United States in Seminole Tribe v. Florida, 517 
U.S. 44 (1996), holding Congress could not waive a State's sovereign 
immunity through IGRA. Some commenters recommended the Department 
provide technical amendments to 25 CFR part 291 in response to Texas v. 
United States (Traditional Kickapoo Tribe), 497 F.3d 491 (5th Cir. 
2007) and New Mexico v. United States (Pueblo of Pojoaque), 854 F.3d 
1207 (10th Cir. 2017). Commenters stated the Fifth Circuit and the 
Tenth Circuit found part 291 did not provide for an independent forum 
to make the threshold finding that the subject State failed to conclude 
negotiations in good faith and therefore part 291 was too far adrift 
from Congressional intent to be allowed to stand. Other commenters 
recommended providing a mechanism for the Department to seek 
intervention by the Department of Justice when States raise their 11th 
Amendment Immunity to a Tribe's challenge of bad faith negotiations 
under IGRA. Commenters noted without a workable Seminole fix, Tribes 
are often at the mercy of the States who are often the Tribe's gaming 
competitor and seek to undermine Tribal sovereignty. Commenters noted 
some Tribes are forced to either accept a State's demand for improper 
provisions or revenue sharing, or risk a notice of violation and 
closure for operating without a compact.
    The Department notes a minority of circuits have invalidated the 
Department's part 291 Regulations, which were promulgated to provide 
Tribes with Secretarial Procedures in response to the Supreme Court's 
decision in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), 
which found that Congress lacked the authority to subject States to 
suits by Indian Tribes under IGRA. The Department is considering all 
avenues including technical amendments to part 291. The proposed part 
293 regulations reflect the Department's efforts to ensure all Tribes 
may benefit from the goals of IGRA while enforcing IGRA's limited scope 
of compacts. The inclusion of clear guidance and codification of key 
tests as well as articulating situations that may be evidence of a 
violation of IGRA and therefore evidence of bad faith negotiations is a 
step in this direction. The Department declines to codify a formal 
process by which Tribes may submit evidence of bad faith in 
negotiations to the Department for its consideration and referral to 
the Department of Justice. The Department has long coordinated with the 
Department of Justice and the National Indian Gaming Commission 
regarding enforcement or non-enforcement of IGRA's requirement that a 
Tribe conduct class III gaming pursuant to a compact or secretarial 
procedures.\3\ The Department will continue to coordinate with the 
Department of Justice and the National Indian Gaming Commission 
regarding enforcement of IGRA.
---------------------------------------------------------------------------

    \3\ See, e.g., Statement of Indian Gaming in New Mexico, DOJ 95-
459 (August 28, 1995); Statement of Indian Gaming in New Mexico, DOJ 
95-553 (October 27, 1995); and Justice Department and California 
announce plan for orderly transition to legal Indian Gaming, DOJ 98-
102 (March 6, 1998).
---------------------------------------------------------------------------

    Several commenters requested the Department include additional 
examples of ``bad faith'' including: take it or leave it compacts; a 
State's refusal to offer substantially similar compacts to all Tribes 
in the State; and a State's refusal to negotiate a compact or amendment 
until an existing compact is set to expire.
    The Department acknowledges these may be examples of bad faith 
negotiations under IGRA. The Department has included in the proposed 
rule several provisions which the Department considers to be evidence 
of a violation of IGRA. The Department will continue to coordinate with 
the Department of Justice and the National Indian Gaming Commission 
regarding enforcement of IGRA.
    Several commenters requested the Department provide notice to the 
Department of Justice when a compact is disapproved and request the 
Department of Justice file a bad faith lawsuit against the State on 
behalf of the Tribe.
    On its face, the disapproval of a compact or amendment is not 
evidence of bad faith negotiations. If, however, the Tribe provides 
evidence that the State forced the Tribe to include the disapproved 
provision, the Department may request the Department of Justice file a 
bad faith lawsuit on behalf of the Tribe in certain situations.
    Several commenters requested the Department publish all compact 
decision letters as well as deemed approval letters in an accessible 
index.

[[Page 74919]]

    The Department acknowledges the comments. The Department strives to 
publish all compact decision letters as well as deemed approval letters 
on the Office of Indian Gaming's website, which includes an accessible 
index.
    A number of commenters requested the Department include in the 
proposed rule a formal codification of the Office of Indian Gaming's 
practice of providing technical assistance to Tribes and States. Some 
commenters requested a fixed timeline for the Department to issue a 
technical assistance letter. Other commenters requested the Department 
include the option for a `legal opinion' or formal Departmental action 
in response to some requests for technical assistance.
    The Department declines to accept the recommendation. Technical 
assistance is neither a `pre-determination' nor `legal guidance,' 
rather it is often an explanation of past precedent and interpretation 
of case law. The Department notes Tribes and States have presented a 
wide range of unique questions to the Office of Indian Gaming, which 
may require extensive policy and legal research. Further, depending on 
the parties' needs and the scope of their requests, some may prefer 
verbal technical assistance over written technical assistance. The 
Department will continue to provide technical assistance.
    Several commenters discussed their experiences negotiating compacts 
with States or seeking to enforce disputes under their compacts. Other 
commenters discussed the importance of Indian gaming to their Tribes as 
a source of revenue, job growth, and economic self-sufficiency.
    The Department acknowledges these comments.
    Several commenters discussed legal articles, including work by 
former Assistant Secretary--Indian Affairs Kevin Washburn.
    The Department acknowledges these comments.
    Several commenters recommended the Department quote IGRA's 
statutory language rather than paraphrase the statute as that can 
result in unintended changes. A commenter recommended the Department 
narrowly tailor the proposed substantive provisions. Other commenters 
also noted a primary concern is the definition of gaming activity in 
Sec.  293.2(d) and used in Sec.  293.23 of the Consultation Draft, 
Sec.  293.24 of the proposed draft regulations.
    The Department adhered closely to the statutory text in the 
Consultation Draft and the proposed substantive provisions codify 
longstanding Departmental policy and case law. The Department notes the 
term ``gaming activity'' is not defined in IGRA. As discussed below, 
the Department has revised the definition of ``gaming activity'' in 
Sec.  293.2, as well as addressed it in Sec.  293.24.
Consultation Question: Should the draft revisions include provisions 
that facilitate Statewide remote wagering or internet gaming?
    A number of commenters responded to the Department's sixth 
consultation question: ``[s]hould the draft revisions include 
provisions that facilitate Statewide remote wagering or internet 
gaming?'' The overwhelming majority of commenters agreed that the 
Department should include provisions relating to i-gaming. Several 
commenters believe that i-gaming provisions are necessary because 
Tribes need to be able to compete in the digital industry. Other 
commenters pointed out that the draft revisions should address i-gaming 
and provide for its allowance as negotiated between a Tribe and State. 
Another commenter explained that IGRA encourages agreements between 
sovereigns.
    Several other commenters stated that the State law model of i-
gaming is not a substitute for i-gaming under IGRA and Tribes should be 
able to engage in internet gaming under IGRA. A handful of comments 
also expressed support for the Department's inclusion but questioned 
the need to define gaming activity as including the elements of prize, 
consideration, and chance, as it could potentially be misconstrued in a 
court ruling that requires all three elements to be present on Indian 
lands.
    Finally, several of the commenters in support of inclusion of i-
gaming also praised the Department's i-gaming analysis in the June 21, 
2021, Deemed Approved letter to the Seminole Nation. At least three 
commenters also submitted proposed language for the Department to 
address i-gaming.
    A handful of commenters opposed the Department addressing i-gaming 
in the draft revisions. One commenter stated that the issue was not 
ripe for inclusion; another stated that i-gaming was subject to State 
law and there's no case law to state that the Secretary has power over 
this topic; another thought that the issue is an unresolved matter of 
Federal law and the Department should not weigh in; and another 
believed there is a lack of ability to regulate i-gaming and would harm 
brick and mortar facilities.
    Two commenters did not expressly support or oppose the inclusion of 
i-gaming; one noted that the Department should further consult with 
Tribes before making any decisions and the other noted that while the 
Department's views on the legality of such a provision would be 
helpful, it is unclear what further provisions would be proposed. Other 
commenters shared personal experiences and/or legal analysis which 
helped inform their decision-making.
    The Department acknowledges the comments and has added a new 
section to the proposed rule ``Sec.  293.29 May a compact of amendment 
include provisions addressing Statewide remote wagering or internet 
gaming,'' addressing Statewide remote wagering and internet gaming. The 
IGRA provides that a Tribe and State may negotiate for ``the 
application of the criminal and civil laws and regulations of the 
Indian Tribe or the State that are directly related to, and necessary 
for, the licensing and regulation of such activity'' and ``the 
allocation of criminal and civil jurisdiction between the State and the 
Indian Tribe necessary for the enforcement of such laws and 
regulations.'' 25 U.S.C. 2710(d)(3)(c)(i)-(ii). The Department's 
position is that the negotiation between a Tribe and State over 
Statewide remote wagering or i-gaming falls under these broad 
categories of criminal and civil jurisdiction. Accordingly, provided 
that a player is not physically located on another Tribe's Indian 
lands, a Tribe should have the opportunity to engage in this type of 
gaming pursuant to a Tribal-State gaming compact.

B. Section Comments

Comments on Sec.  293.1 What is the purpose of this part?
    Several commenters recommended the Department revise Sec.  293.1(a) 
by including the word ``or'' after the word ``and'' so that the 
relevant provision would read ``[p]rocedures that Indian Tribes and/or 
States must use when submitting . . . .'' The commenters suggested 
change would clarify either party may submit compacts or compact 
amendments.
    The Department has accepted this suggested revision and notes that 
Sec.  293.6 explains either the Tribe or the State may submit the 
compact or amendment.
    Several commenters supported the proposed revisions to Sec.  293.1.
    The Department acknowledges the comment.
Comments on Sec.  293.2 How are key terms defined in this part?
    Several commenters recommended the Department retain the 2008 
Regulation's introductory text for Sec.  293.2 ``[f]or purposes of this 
part, all

[[Page 74920]]

terms have the same meaning as set forth in the definitional section of 
the Indian Gaming Regulatory Act of 1988, 25 U.S.C. 2703 and any 
amendments thereto.''
    The Department declines to accept the recommendation to retain the 
2008 Regulation's introductory text for Sec.  293.2. The Department 
proposed changes to the introductory text in Sec.  293.2 to improve 
clarity.
    One commenter recommended the phrasing ``[i]n addition to terms 
already defined in IGRA, this part defines the following additional key 
terms.''
    The Department declines to accept the recommendation. One term 
``Indian Tribe'' is defined in IGRA at 25 U.S.C. 2703(5) and refined 
here as ``Tribe.'' The proposed language indicates the defined terms in 
Sec.  293.2 are all new or additional terms, which could cause 
confusion.
    Several commenters expressed support for the proposed revisions to 
Sec.  293.2 and noted the new definitions for key terms are consistent 
with IGRA.
    The Department acknowledges the comments.
Comments on Sec.  293.2(a)--Amendment
    Several commenters suggested the definition of Amendment in Sec.  
293.2(a) and as applied in Sec.  293.4 is too broad. Other commenters 
suggested the Department clarify the definition of Amendment to exclude 
strictly administrative or procedural amendments from review under 
Sec.  293.4.
    The Department has revised Sec.  293.4 to address these and related 
comments on that section.
    One commenter requested the Department revise the definition of 
Amendment to include ``or an amendment to secretarial procedures 
prescribed under 25 U.S.C. 2710(d)(7)(B)(vii) when such amendment is 
agreed upon by the Indian Tribe and State.'' The commenter explained 
this addition would clarify that any such agreements are treated as a 
``compact'' or ``compact amendment'' for the purposes of IGRA's 45-day 
review period.
    The Department has accepted the recommendation and include the 
proposed text in Sec.  293.2(a).
Comments on Sec.  293.2(c)--Extension
    Several commenters expressed support for the revised definition of 
Extension in Sec.  293.2(c).
    The Department acknowledges the comments.
    One commenter recommended the Department remove the words ``or 
amendment'' from the definition of Extension and noted that Sec.  293.5 
does not include the words ``or amendment.''
    The Department notes the terms ``Compact'' and ``Amendment'' are 
frequently used interchangeably depending on the underlying facts and 
needs of the parties to the agreement. For that reason, the Department 
used the phrase ``compact or amendment'' throughout the Consultation 
Draft of part 293. The Department has made a conforming edit to Sec.  
293.5.
Comments on Sec.  293.2(d)--Gaming Activity
    Several commenters recommended the Department revise the definition 
of ``gaming activity or gaming activities'' in Sec.  293.2(d) by 
replacing the word ``prize'' with the word ``reward.'' The commenters 
explained the term `reward' is the more commonly used term in the 
Tribal gaming industry.
    The Department accepted the recommended revision to Sec.  293.2(e), 
in part. The definition of gaming activity or gaming activities now 
reads ``[g]aming activity or gaming activities means the conduct of 
class III gaming involving the three required elements of change, 
consideration, and prize or reward.''
    Several commenters expressed concern that including a definition of 
Gaming Activity in part 293 could be construed to require all elements 
of the gaming activity to occur on a Tribe's Indian lands thereby 
precluding Tribes from negotiating Statewide mobile or i-gaming in 
compacts.
    The Department acknowledges this concern and has included a new 
proposed Sec.  292.29 which addresses i-gaming in compacts.
Comments on Sec.  293.2(e)--Gaming Facility
    One commenter recommended the Department include a defined term for 
``gaming spaces'' consistent with the rational in the Department's 2021 
disapprovals of three California compacts. The commenter explained that 
including ``gaming spaces'' defined term would resolve a logical 
conflict between the Department's definition of gaming facility and 25 
U.S.C. 2710(d)(3)(C)(vi), which permits a compact to include 
``standards for the . . . maintenance of the gaming facility, including 
licensing.'' The commenter explained that by defining gaming facility 
as the whole structure for the purposes of building maintenance under 
the second clause of 25 U.S.C. 2710(d)(3)(C)(vi); and gaming spaces for 
section 2710(d)(3)(C)(i), (ii), the first clause of (vi), and (vii), 
would provide parties with clarity regarding the appropriate limits of 
State oversite under IGRA.
    The Department accepted the recommendation and has included gaming 
spaces as a defined term and revised the definition of gaming facility 
by moving the clause addressing the gaming spaces to the new paragraph 
(f) gaming spaces. The revised definition of gaming facility addresses 
the commenter's concern regarding building maintenance and licensing 
under the second clause of 25 U.S.C. 2710(d)(3)(C)(vi).
    A number of commenters addressed the clause addressing the gaming 
spaces in the proposed definition of gaming facility in Sec.  293.2(e).
    Several commenters recommended the Department replace the phrase 
``the spaces that are necessary for conduct of gaming'' with the phrase 
``the spaces that are directly related to, and necessary for, the 
operation of class III gaming activities.'' Commenters explained that 
phrasing is more consistent with how the Department has described the 
appropriate reach of the term ``gaming facility'' in a compact.
    Several commenters recommended the Department replace the phrase 
``including the casino floor'' with the phrase ``such as the casino 
floor.'' Commenters explained this change would permit the parties to 
determine which areas should be properly included and which areas 
should properly be excluded.
    Several commenters recommended the Department revise the phrase 
``class III gaming device, and storage areas'' by adding the word 
``and'' before the phrase and deleting the comma after the word 
``device'' so that the phrase would read ``and class III gaming devices 
and supplies storage areas.'' Another commenter recommended adding the 
work ``gaming'' before the word ``supplies'' to read ``gaming supplies 
storage areas.''
    Several commenters recommended adding the phrase ``and other 
secured areas'' at the end of the definition.
    Several commenters recommended clarifying that the definition of 
gaming facility excludes areas that merely provide amenities to gaming 
patrons--hotels, restaurants, and other spaces that are not directly 
used for the conduct of class III gaming.
    The Department has accepted the recommended revisions to the clause 
addressing the gaming spaces in the definition of gaming facility in 
part. The new definition of gaming spaces incorporates the suggested 
revisions and continues to seek the smallest physical footprint of 
potential State jurisdiction over a Tribe's land under IGRA. This

[[Page 74921]]

definition is intended to codify the Department's long-standing narrow 
read of 25 U.S.C. 2710(d)(3)(C) as applying only to the spaces in which 
the operation of class III gaming actually takes place. The revised 
definition of gaming facility addresses building maintenance and 
licensing under the second clause of 25 U.S.C. 2710(d)(3)(C)(vi) and is 
intended to be narrowly applied to only the building or structure where 
the gaming activity occurs.\4\
---------------------------------------------------------------------------

    \4\ See, e.g., Letter to the Honorable Peter S. Yucupicio, 
Chairman, Pascua Yaqui Tribe of Arizona, from the Director, Office 
of Indian Gaming, dated June 15, 2012, at 5, and fn. 9, discussing 
the American Recovery & Reinvestment Act of 2009 and the IRS's 
``safe harbor'' language to reassure potential buyers that tribally-
issued bonds would be considered tax exempt by the IRS because the 
bonds did not finance a casino or other gaming establishment.
---------------------------------------------------------------------------

    One commenter recommended the Department include the term 
``structure'' to reflect the diversity of structures Tribes utilize for 
the conduct of Gaming.
    The Department has accepted the recommended revision to the 
definition of gaming facility. The definition of gaming facility in 
Sec.  293.2(e) now reads ``the physical building or structure, where 
the gaming activity occurs.
    Several commenters recommended the Department include a definition 
for the term ``project'' in Sec.  293.2, as part of the definition of 
the term ``gaming facility'' in Sec.  293.2(e). The commenters 
explained that some States have used the term ``project'' or ``gaming 
project'' in conjunction with ``gaming facility'' to extend State 
oversight and taxation through triggering extensive environmental 
reviews and impact or mitigation payments when a Tribe seeks to develop 
or expand a ``gaming facility.''
    The Department declines to include a definition for the term 
``project.'' Proposed revisions to part 293, including the definitions 
of gaming facility and gaming spaces, and proposed substantive 
provisions in Sec. Sec.  293.24, 293.25, and 293.28 build on the 
Department's narrow read of the permissible scope of a Tribal State 
compacts, and is consistent with the Department's disapproval of 
compacts from the State of California in part due to expansive 
definitions of ``gaming facility'' and ``project.''
Comments on the Term Necessary for
    Several commenters recommended the Department define or otherwise 
articulate a standard for interpreting the term ``necessary for'' as it 
is used in 25 U.S.C. 2710(d)(3)(C) and 25 CFR part 293. The commenters 
further recommended the Department defer to a Tribe's reasonable 
determination of which provisions in a compact are ``necessary for the 
operation of class III gaming.''
    The Department notes there is not a strict definition for 
``necessary,'' therefore, we must look to the context in which it is 
used in the statute. As used in IGRA, ``necessary'' is a limiting 
phrase, or one that employs the common law use of ``necessary'' in the 
strict sense of indispensable or essential.\5\ When applying provisions 
which incorporate ``necessary for'' in IGRA and in part 293 the 
Department will ask ``is this provision absolutely needed for the Tribe 
to operate class III gaming?''
---------------------------------------------------------------------------

    \5\ ``Like ordinary English speakers, the common law uses 
`necessary' in this strict sense of essential or indispensable.'' 
Vorchheimer v. Philadelphian Owners Ass'n, 903 F.3d 100, 106 (3d 
Cir. 2018) (discussing Congress' use of ``necessary'' in legislation 
where no definition provided). ``[W]hen Congress wants to loosen 
necessity to mean just `sufficiently important,' it uses the phrase 
`reasonably necessary.' '' Id. at 107; see Ayestas v. Davis, __ U.S. 
__, 138 S. Ct. 1080, 1093 (2018) (``[18 U.S.C. 3599] appears to use 
the term `necessary' to mean something less than essential. The 
provision applies to services that are `reasonably necessary,' but 
it makes little sense to refer to something as being `reasonably 
essential.' '').
---------------------------------------------------------------------------

Comments on Sec.  293.3 What authority does the Secretary have to 
approve or disapprove compacts and amendments?
    Several commenters supported the proposed revisions to Sec.  293.3, 
but questioned if the internal cross-reference to Sec.  293.14 is 
accurate.
    The Department acknowledges the comments. The internal cross-
reference to Sec.  293.14 appears in the current Sec.  293.3 and the 
redline reflects a strikeout of ``293.14'' with the updated cite to 
Sec.  293.15.
    Several commenters recommend that Sec.  293.3 cite the statutory 
authority of the Secretary to approve or disprove a compact or 
amendment. Commenters noted other sections in part 293 address the 
baseline requirements of compact execution and submissions.
    The Department has revised Sec.  293.3 to remove references to the 
signatures of the parties.
    One commenter recommended the Department revise Sec.  293.3 by 
adding the phrase: ``and an amendment resulting from another agreement, 
including, but not limited to, agreements, other documents, dispute 
resolutions, settlement agreements, or arbitration decisions.''
    The Department declines to include the proposed language in Sec.  
293.3. The Department notes revisions to Sec. Sec.  293.4, 293.7, and 
293.21, address amendments caused by dispute resolution agreement, 
arbitration award, settlement agreement, or other resolution of a 
dispute outside of Federal court.
    Several commenters recommended the Department revise Sec.  293.3 by 
adding the phrase: ``and applicable approvals of both parties.''
    The Department declines to include the proposed language in Sec.  
293.3. The Department notes revisions to Sec. Sec.  293.7 and 293.8 
address the execution and approval requirements for a compact or 
amendment.
Comments on Sec.  293.4 Are compacts and amendments subject to review 
and approval?
    Several commenters recommended the Department revise Sec.  293.4 by 
moving the references to ``agreements or other documents'' from 
paragraph (a) to paragraph (b) and removing references to the State 
including its political subdivisions from paragraph (b). Commenters 
noted these changes would allow a Tribe to determine which documents 
are not `amendments.'
    The Department accepted the proposed revisions in part. The 
Department notes that proposed Sec.  293.21 addresses compact 
amendments arising from dispute resolution procedures and proposed 
Sec.  293.27 addresses intergovernmental agreements or memoranda of 
understanding between the Tribe and the State or its political 
subdivisions. The Department notes the Sec.  293.4 determination 
process is open to either party consistent with the submission 
procedures in Subpart B.
    Several commenters recommended the Department split Sec.  293.4(b) 
into a new section addressing ancillary agreements. The commenters 
noted this proposed section would strike a balance between documents 
that amend a compact and are properly subject to Secretarial review and 
documents or agreements between Tribal regulators and State regulators 
addressing technical implementation of compact terms. The proposed new 
section would be titled ``[w]hen are ancillary agreements and documents 
subject to review and approval?'' The proposed new section would 
include three new paragraphs and contain revisions to the text of Sec.  
293.4(b).
    The Department accepted the proposed revisions in part and 
incorporated the proposed ancillary agreement test in Sec.  293.4(b).
    Several commenters requested the Department codify a streamlined 
approach for review and approval of technical amendments.
    The Department declines to provide a separate ``streamlined'' 
procedure for

[[Page 74922]]

technical amendments. IGRA provides the Secretary with a 45-day review 
period, which also applies to technical amendments.
Comments on Sec.  293.4(a)
    Several commenters questioned if the Secretary's authority under 
IGRA extended to `non-compact' agreements between Tribes and States or 
local governments. Commenters noted that Tribes often find agreements 
with local governments addressing a myriad of topics--including 
payments in leu of taxes, service agreements, and mutual aid 
agreements--are mutually beneficial and in the Tribe's best interest. 
Commenters further questioned the Department's inclusion of ``[a]ny 
agreement which includes provisions for the payment from a Tribe's 
gaming revenue . . .'' in Sec.  293.27 as requiring review and 
determination under Sec.  293.4(c), if such agreements are a 
``compact'' or ``amendment.''
    The Department declines to accept the comments. The Department 
notes some States have included a requirement in compacts for the Tribe 
to enter into agreements with local governments often addressing 
payments by the Tribe for the loss of tax revenue. Some of these 
agreements are designed to avoid Secretarial review and impose 
impermissible taxes or other assessments on the Tribes. IGRA at 25 
U.S.C. 2710(b)(2)(B) permits a Tribe to utilize net gaming revenue to 
fund the Tribe's government, provide for general welfare of the Tribe 
and its members, promote Tribal economic development, to donate to 
charitable organizations, and help fund operations of local 
governments. However, IGRA then at 25 U.S.C. 2710(d)(4) prohibits a 
State and its political subdivisions from imposing any ``tax, fee, 
charge, or other assessment'' on the Tribe for engaging in class III 
gaming. The proposed Sec.  293.4(c) process is designed to ensure these 
agreements receive proper scrutiny and are not the result of a State 
improperly demanding--through its political subdivisions--a tax, fee, 
charge, or other assessment.
    Several commenters requested the Department narrow the scope of 
Sec.  293.4. The commenters explained that many compacts anticipate the 
utilization of ancillary agreements between the Tribe and the State to 
interpret specific compact terms for the purpose of effective operation 
and regulation of the day-to-day minutiae of operating class III 
gaming. Commenters noted that the consultation draft of Sec.  293.4 
could be construed to capture internal controls, memorandum of 
understanding between Tribal and State regulatory and licensing bodies, 
and other documents utilized by the parties to effectively and 
efficiently ensure the Tribe's class III gaming operation is in 
compliance with the compact and with IGRA.
    The Department has revised Sec.  293.4 to clarify which documents 
the Department considers within the definition of ``amendment'' subject 
to Secretarial review.
    Other commenters noted some compacts include mechanisms for the 
Tribe and the State to add games pursuant to changes in State or 
Federal law without amending the Compact and noted that the 
consultation draft of Sec.  293.4 could be construed to capture the 
Tribe and the State's documentation of games added pursuant to changes 
in State or Federal law.
    The Department has revised Sec.  293.4 to clarify which documents 
the Department considers within the definition of ``amendment'' subject 
to Secretarial review.
    Several commenters requested the Department revise Sec.  293.4(a) 
for consistency with Sec.  293.21 by exempting Federal court decisions 
from Secretarial review as an `amendment.'
    The Department has revised Sec.  293.4 for consistency with Sec.  
293.21 to clarify which documents the Department considers within the 
definition of ``amendment'' subject to Secretarial review.
    Several commenters raised concerns that the Department's inclusion 
of ``dispute resolution, settlement agreements, or arbitration 
decisions'' within Sec.  293.4's list of documents subject to 
Secretarial review may discourage parties from utilizing potentially 
cost-effective dispute resolution methods and would increase burdens on 
the parties. The commenters argued the expansion of Secretarial review 
to include dispute resolution, settlement agreements, or arbitration 
decisions may increase uncertainty. Commenters also recommended the 
Department defer to a Tribe's determination if a document warrants 
Departmental review.
    The Department has revised Sec.  293.4 for consistency with Sec.  
293.21 to clarify which documents the Department considers within the 
definition of ``amendment'' subject to Secretarial review.
    Other commenters expressed support for the Department's inclusion 
of ``dispute resolution, settlement agreements, or arbitration 
decisions'' within Sec.  293.4's list of documents subject to 
Secretarial review and noted examples of settlement agreements and 
arbitration awards which materially change the parties' obligations 
under the compact in a manner that may conflict with IGRA and would 
otherwise have been considered an amendment subject to Secretarial 
review. Commenters noted an example where an arbitration panel decision 
added a term to the compact changing the Tribe's revenue sharing 
obligation beyond the compact provisions reviewed by the Secretary. 
Commenters noted the Tribe determined the arbitration decision amended 
the compact and sought Secretarial review but was prevented by the 
State's refusal to certify the arbitration decision as an amendment.
    The Department acknowledges the concerns raised by the commenters. 
The Department notes the proposed changes to part 293 are intended to 
address these and similar situations. The Department has revised Sec.  
293.4 in response to these comments.
    Several commenters requested the Department revise Sec.  293.4(a) 
by removing the phrase ``regardless of whether they are substantive or 
technical.''
    The Department declines the requested revision and notes that 
phrase is found in the 2008 Regulations at Sec.  293.4(b). When 
promulgating the 2008 Regulations the Department had proposed an 
exception for ``technical amendments'' but in response to comments on 
the 2008 Notice of Proposed Rulemaking, removed that provision. 73 FR 
74005 (Dec. 5, 2008). The Department explained many commenters 
questioned how to determine if an amendment was `substantive' and 
subject to Secretarial review, or `technical' and not subject to 
Secretarial review.
    One commenter recommended the Department clarify Sec.  293.4(a) by 
moving the words ``agreements or other documents'' after the phrase 
``including but not limited to'' along with conforming grammatical 
edits.
    The Department incorporated the suggested edit in the revised Sec.  
293.4(a) and (c).
Comments on Sec.  293.4(b)--Which Has Been Renumbered as Sec.  293.4(c)
    The Department has renumbered the proposed Sec.  293.4(b) as Sec.  
293.4(c) and comments have been edited to reflect the new section 
number.
    Several commenters expressed support for the Department's proposed 
process in Sec.  293.4(c) to provide parties a determination if an 
agreement is a ``compact'' or ``amendment'' and must be submitted for 
review and approval by the Secretary. Commenters noted this proposed 
process provides Tribes with a similar service as the National Indian 
Gaming Commission's ``declination

[[Page 74923]]

letters,'' which determine if an agreement is a ``Management Contract'' 
requiring approval by the NIGC Chair.
    The Department acknowledges the comments.
    Several commenters requested the Department amend Sec.  293.4(c) by 
including a deadline for the Department to review the submitted 
document and to issue a determination letter.
    The Department has added a 60-day review period for a determination 
under Sec.  293.4.
    Other commenters requested the Department clarify if a non-party 
may submit a request for a Sec.  293.4(c) determination.
    The Department notes the existing 2008 Regulations at Sec.  293.6 
address the processes by which the parties to a Compact may submit it 
for Secretarial review. In relevant part, Sec.  293.6 states ``either 
party [ ] to the compact or amendment can submit.'' The Consultation 
Draft of Sec.  293.4(c) utilized similar language and stated, ``either 
party may request in writing a determination . . . if their agreement 
is a compact or amendment.'' The Department has consistently and will 
continue to exclude third parties from the submission and review 
process.
    Several commenters requested the Department amend Sec.  293.4(c) to 
clarify if the Department's determination letter or materials submitted 
pursuant to this review would be used by the Department as the basis 
for an adverse action against the Tribe. Commenters also requested the 
Department include in a Sec.  293.4(c) determination letter a 
discussion of any provisions in the underlying document which may lead 
to subsequent disapproval as a compact under IGRA.
    The Department intends for the Sec.  293.4(c) determination process 
to provide parties with improved clarity whether their agreement or 
other document is a compact or amendment, without submitting the 
document for Secretarial review and approval or disapproval. The 
Department historically has provided parties with technical assistance 
as well as deemed approval letters which identify problematic 
provisions. The Department anticipates a Sec.  293.4(c) determination 
letter may include similar guidance; however, the Department declines 
to revise Sec.  293.4(c) to require such guidance.
    Several commenters requested the Department clarify how and where a 
party may submit a request and encouraged the Department to allow 
flexibility in submitting such requests.
    The Department has revised Sec.  293.9 to clarify that compacts, 
amendments, written requests for a determination pursuant to Sec.  
293.4(c), or requests for technical assistance must be submitted to the 
Office of Indian Gaming at the address listed in Sec.  293.9. The 
Department further notes that Sec.  293.9 has been revised to include 
the email address ``[email protected]''.
    Several commenters requested the Department amend Sec.  293.4(c) to 
require the Department's determination letter clearly state in the 
introduction of the letter either: ``Yes. This agreement constitutes a 
[compact/amendment] requiring secretarial approval'' or ``No. This 
agreement does not constitute a [compact/amendment] . . . .''
    The Department declines to include the requested requirement within 
the regulatory text of Sec.  293.4(c). The Department is required to 
utilize plain writing--in other words clear, concise, and well-
organized writing. The Department implements this requirement by 
providing a brief summary of the document submitted and the 
Department's determination in the introductory section of decision 
letters.
    Several commenters requested the Department revise the concluding 
sentence of Sec.  293.4(c) to state: ``[t]he Department will issue a 
letter providing notice of the Secretary's determination.'' Commenters 
suggested this would reduce potential ambiguity.
    The Department has accepted the requested revision to the 
concluding sentence of Sec.  293.4(c).
Comments on Sec.  293.5 Are extensions to compacts or amendments 
subject to review and approval?
    Several commenters supported the proposed revisions to Sec.  293.5 
and noted the revisions reflected the Department's longstanding 
practice of treating extensions as a type of amendment which is 
exempted from Secretarial approval prior to publication of a notice in 
the Federal Register.
    The Department acknowledges the comments.
    Several commenters requested the Department clarify the 
distinctions between an ``amendment'' and an ``extension'' as defined 
in Sec.  293.2 and applied in Sec. Sec.  293.4 and 293.5. Commenters 
noted an extension may have the effect of changing the ``operation and 
regulation'' of a Tribe's Class III gaming activities.
    The Department has revised Sec.  293.2(c). The 2008 Regulations 
adopted the provision exempting extensions from Secretarial review in 
response to a comment on the draft rule, which had proposed to exempt 
``technical amendments'' but not substantive amendments or extensions. 
See 73 FR 37909 (July 2, 2008) and 73 FR 74005. Extensions are a form 
of amendment, which changes only the term of the compact, but not other 
provisions in the compact.
    One commenter suggested the Department provide a mechanism for a 
Tribe to unilaterally extend an existing compact in the event the Tribe 
and the State are unable to successfully negotiate an amendment or new 
compact. The commenter noted such a mechanism would incentivize the 
State to engage in timely good faith negotiations and protect Tribes 
from risking the expiration of an existing compact due to a State's 
negotiation delays.
    The Department appreciates the concern raised by the commenter but 
lacks the authority to provide a mechanism for unilateral compact 
extensions. We will include this type of provision as a best practice 
in providing technical assistance.
    Several commenters questioned if the parties to an approved compact 
with an automatic renewal provision or automatic extension provision 
are subject to Sec.  293.5, when the provisions of the compact are 
satisfied thereby extending the compact.
    The Department notes compacts may have provisions allowing for 
renewal or extensions of the term of the compact if certain provisions 
are met. The Department does not consider the renewal or extension of 
the term of the compact under the very terms of the compact as an 
extension as defined in Sec.  293.2(e) and requiring publication of 
notice in the Federal Register under Sec.  293.5. The Department has 
revised the definition of extension to clarify extensions are new 
agreements between the parties to extend the compact term rather than 
the exercise of an existing provision.
    Several commenters requested the Department amend Sec.  293.5 to 
limit the reference to documents required under Sec.  293.8 to 
paragraph (b) and (c) as required by the 2008 Regulations. Commenters 
stated the requiring compliance with all of Sec.  293.8 would be a 
burden on Tribes seeking an extension.
    The Department has revised the reference in Sec.  293.5 to 293.8 in 
response to these comments. Section 293.5 now requires the documents 
listed in Sec.  293.8(a) through (c). The Department notes the 
provision in Sec.  293.8(a) reflects the definition of extension in 
Sec.  293.2(e).
    Several commenters questioned the necessity for the Department to 
publish a notice of compact extension in the Federal Register in order 
for the

[[Page 74924]]

extension to be ``in effect.'' Commenters questioned if the process for 
extensions may result in undue delay because the extension requires a 
Federal Register document but is exempted from Secretarial review and 
not subject to the statutory 45-day review period.
    The Department disagrees with the comment. An extension is subject 
to the 45-day statutory review period. Proposed revisions to Sec.  
293.5 in the Consultation Draft included clarifying that IGRA requires 
publication of a notice of extension in the Federal Register for the 
extension to be in effect. The Department notes an extension is an 
amendment to the duration of the compact and under the proposed 
regulations continues to receive expedited processing.
    Several commenters requested the Department revise Sec.  293.5 to 
require publication of a notice of compact extension within 14 days of 
the submission of the extension.
    The Department declines to revise Sec.  293.5 to include a 14-day 
deadline for publishing a notice of compact extension in the Federal 
Register. The Department notes an extension is a type of amendment that 
receives expedited processing. Further Sec.  293.14 addresses timing of 
publication of notices in the Federal Register in compliance with IGRA.
    Several commenters requested the Department revise Sec.  293.5 to 
exempt restated compacts in the same manner as extensions.
    The Department declines the requested revision. A restated compact 
is a new restatement of existing provisions as amended in a compact, 
and thus, a new compact subject to review. An extension is an amendment 
that changes only the duration of the compact, and is not subject to 
review. IGRA limits the Secretary's authority to review and approve or 
disapprove a compact or amendment to 45 days. The Department encourages 
parties to utilize restated compacts or amended and restated compacts 
as a best practice to incorporate a series of amendments into a single 
document. The Department finds it helpful if the Tribe or State also 
submits a redlined copy of the restated compact.
Comments on Sec.  293.6 Who can submit a compact or amendment?
    Several commenters sought clarification on whether Sec.  293.6, or 
other provisions in part 293, exclude third party submissions.
    The Department has consistently and will continue to exclude third 
parties from the submission and review process. The Department's 
longstanding application of Sec.  293.6 is to permit either party to 
the compact or amendment to submit the required documents for 
Secretarial review and approval. The Consultation draft of Sec.  293.6 
contained minor stylistic edits for clarity and consistency.
    Several commenters expressed support for the proposed revisions to 
Sec.  293.6.
    The Department acknowledges the comments.
Comments on Sec.  293.7 When should the Tribe or State submit a compact 
or amendment for review and approval?
    Several commenters requested the Department revise Sec.  293.7 to 
more accurately reflect the legal status of the document pending 
secretarial review, and in some instances, how an amendment may be 
created through compact dispute resolution procedures. One commenter 
requested the Department replace the phrase ``legally entered into by 
the parties'' with the phrase ``duly executed by the Tribe and State in 
accordance with applicable Tribal and State law.'' Another commenter 
suggested adding the phrase ``or the amendment has been issued by an 
arbitration panel'' to the end of Sec.  293.7.
    The Department notes the Consultation Draft of Sec.  293.7 remained 
unchanged from the 2008 Regulations. The phrase ``legally entered 
into'' reflects the requirements of the statutory text in IGRA at 25 
U.S.C. 2710(d)(8)(A), and is consistent with the requirements in Sec.  
293.8, in compliance with both Tribal law and State law. The Department 
has revised Sec.  293.7 by adding the phrase ``or is otherwise binding 
on the parties'' to more accurately reflect how an amendment or other 
ancillary agreement may be created, as described in Sec.  293.4.
    One comment suggested the phrase ``legally entered into by the 
parties'' in Sec.  293.7 contradicts Sec.  293.14 because the compact 
does not take effect until it is published in the Federal Register.
    The Department has revised Sec.  293.7 to state ``duly executed by 
the Tribe and the State in accordance with applicable Tribal land State 
law, or is otherwise binding on the parties.'' IGRA requires the 
compact or amendment to first be entered into by the parties; second, 
submitted for review by the Secretary; and third, have notice published 
in the Federal Register prior to the compact or amendment being ``in 
effect.'' 25 U.S.C. 2710(d)(3)(B).
Comments on Sec.  293.8 What documents must be submitted with a compact 
or amendment?
    Several commenters noted the documents required for submission 
under Sec.  293.8 may contain confidential business information of the 
Tribe and requested the Department maintain confidentiality of 
sensitive business information and protect it from release under the 
Freedom of Information Act.
    The Department routinely receives confidential Tribal business 
information in response to requests for additional information under 
Sec.  293.8(d) of the 2008 Regulations. This information is protected 
from public disclosure under exemption 4 of the Freedom of Information 
Act. Additionally, prior to releasing any requested tribally submitted 
information, the Department consults with the submitting Tribe to 
confirm such information is confidential business information and can 
properly be withheld. The Department recommends that as a best 
practice, Tribes should notify the Department when confidential 
information is submitted, so that it can be properly withheld if 
requested under the Freedom of Information Act.
    Several commenters noted the documents required by Sec.  293.8, if 
not submitted, are grounds of disapproval of a compact under Sec.  
293.16(b). Commenters requested clarity on how the Department will 
determine if the requirements of Sec.  293.8 have been met and if the 
Department will provide parties opportunities to submit missing 
documents or cure deficiencies in the submitted documents.
    The Department notes that Sec.  293.16(b) clarifies that the 
Department must inform the parties in writing of any missing documents 
required by Sec.  293.8.
    Several commenters requested the Department revise Sec.  293.8 to 
include an express waiver the Secretary may invoke if or when either 
party shows a need for additional flexibility in submitting a compact 
or amendment. Commenters noted parties to a compact who resort to 
arbitration or similar dispute resolution may be reluctant to provide 
the required certification of an arbitration panel decision under Sec.  
293.8(b) and (c) in an effort to avoid Secretarial review or 
enforcement of an unfavorable decision.
    The Department declines to include a blanket waiver under Sec.  
293.8, but notes the Secretary may consider issuing a discretionary 
waiver in certain circumstances after consideration of the submitted 
documents. Certain documents, such as arbitration decisions, are self-
certifying. Section

[[Page 74925]]

293.16 addresses the Secretary's discretionary authority to disapprove 
a compact or amendment.
    Some commenters also noted that a Tribe may choose to adopt a 
compact or amendment, including an arbitration award, under protest and 
requested the Department revise Sec.  293.8(b) to allow for a Tribe to 
adopt a compact or amendment under protest.
    The Department declines to include the requested revision. Section 
293.8(b) requires a Tribal resolution or other document that certifies 
that the Tribe has approved the compact or amendment in accordance with 
applicable Tribal law. The Department notes that a Tribal resolution or 
cover letter may articulate that the Tribe's `approval' is under 
protest or identify provisions in the compact or amendment that the 
Tribe disagrees with or is concerned violate IGRA.
    One commenter questioned the Department's proposed change of 
pronoun in Sec.  293.8(c) from ``he or she'' to ``they.''
    The Department made certain stylistic edits including using a 
gender-neutral pronoun in Sec.  293.8(c), which is the only section 
that uses a pronoun.
    Several commenters expressed support for the proposed revisions to 
Sec.  293.8. Commenters noted that the proposed Sec.  293.8(d) reflects 
proposed changes to Sec. Sec.  293.4, 293.21, and 293.27, which address 
certain types of ancillary documents which are sometimes referenced or 
required by a compact or amendment.
    The Department acknowledges the comments.
    Several commenters expressed concern with Sec.  293.8(d) and 
questioned if the documents required by Sec.  293.8 were subject to 
secretarial review and approval. Commenters noted that the Consultation 
Draft of Sec.  293.4 expanded the Department's definition of compacts 
or amendments subject to Secretarial review and appeared to conflict 
with Sec.  293.8(d). Commenters further noted Sec. Sec.  293.4 and 
293.8(d) could capture Tribal Gaming ordinances and/or minimum internal 
control standards which may not be drafted at the time of compact 
submission. Commenters noted a broad reading of Sec.  293.8(d) posed an 
undue burden on Tribes and impermissibly intruded into Tribal self-
governance and self-determination.
    The Department has revised Sec.  293.8(d) to clarify this provision 
does not apply to Tribal Gaming Ordinances subject to review and 
approval by the Nation Indian Gaming Commission pursuant to 25 U.S.C. 
2710 and 25 CFR part 522. Further, the Department has revised Sec.  
293.4 to clarify which documents are compact or amendments subject to 
Secretarial review. The documents identified in Sec.  293.8(d) allow 
the Department to understand how the compact or amendment interacts 
with other documents and agreements, which in some instances are 
treated as grounds for material breach of the compact. The Department 
notes in some instances compacts have utilized ancillary documents to 
improperly impose State law or State law equivalent onto Tribal 
governments and a Tribe's Indian lands.
    Several commenters requested the Department revise Sec.  293.8(d) 
by including the phrase ``provided however that nothing herein shall 
prohibit the amendment, modification, or other changes to Tribal 
ordinance or laws and any such change, amendment, or modification is 
not required to be submitted for review and approval unless otherwise 
expressly required by Federal law.''
    Several commenters requested the Department amend proposed Sec.  
293.8(d) to state that any agreement between a Tribe and a State, its 
agencies or its political subdivisions required by a compact or 
amendment if the agreement requires the Tribe to make payments to the 
State, its agencies, or its political subdivisions, or it restricts or 
regulates a Tribe's use and enjoyment of its Indian Lands. Commenters 
argued this language is more narrowly tailored and addresses the 
concerns raised in Sec.  293.28 of the Consultation Draft. Commenters 
requested the Department defer to a Tribe's decision to provide 
voluntary payments to local governments as permitted by IGRA at 25 
U.S.C. 2710(b)(2)(B)(v).
    One commenter suggested comprehensive revisions to Section 293.8, 
including renumbering the subsections and adding two new sections. The 
commenter proposed adding references to amendments arising out of 
dispute resolution processes including arbitration. The commenter 
proposed adding a new section addressing the Secretary's authority to 
waive the requirements of Sec.  293.8. The commenter also proposed 
adding a section requiring the Secretary to provide notice to the 
parties within 14 business days if the Secretary determines documents 
required by Sec.  293.8 are missing and permit the parties to either 
submit the documents or request a waiver of Sec.  293.8.
    The Department declines to include the requested new provisions in 
Sec.  293.8. The Department notes that the requested provision 
addressing the Secretary's authority to offer a wavier under 25 CFR 1.2 
is not required for the Secretary to issue a waiver of specific 
requirements. The Department also notes that the requested provision 
addressing a notice to the parties providing an opportunity to cure 
deficiencies reflects the Department's longstanding practice. 
Additionally, the remaining language in that provision addresses the 
Secretary's authority to disapprove a compact or amendment and is 
addressed in Sec.  293.16.
    Several commenters expressed concerns with Sec.  293.8(e), arguing 
the section is vague and ambiguous, potentially permitting the 
Department to request documents unrelated to the Secretary's review of 
the submitted compact.
    The Department notes Sec.  293.8(e) in the Consultation Draft 
retains the text of Sec.  293.8(d) in the 2008 Regulations. This 
provision allows the Department to request additional information--when 
needed--to determine if a submitted compact complies with IGRA.
Comments on Sec.  293.9 Where should a compact or amendment be 
submitted for review and approval?
    A number of commenters responded to the Department's seventh 
consultation question ``[s]hould the draft revisions include provisions 
that offer or require the submission of electronic records?'' 
Commenters encouraged the Department to include provisions allowing 
electronic submission but cautioned against requiring electronic 
submission. Commenters noted electronic submission is less expensive 
and is faster than traditional methods of submission. Commenters also 
noted parties should be provided reasonable flexibility when submitting 
compacts or amendments for Secretarial Review. Several commenters 
questioned the need for the inclusion of electronic submission in the 
proposed regulations, noting in their experience the technical 
requirements of submission are not a significant consideration between 
parties negotiating a compact.
    The Department acknowledges the comments and has included the 
Office of Indian Gaming's email address in Sec.  293.9. The Department 
notes the Consultation Draft included proposed revisions to the 2008 
Regulations which were stylistic or technical in nature including 
electronic submission.
    Several commenters requested the Department revise Sec.  293.9 by 
removing the requirement for hard copy submission of the ``original 
copy'' when a party chooses to utilize email submission. Commenters 
noted that the Department could request an original hard copy if needed 
under Sec.  293.8(e). Commenters also noted many Tribal and

[[Page 74926]]

State governments as well as the gaming industry are utilizing 
electronically signed and verified documents.
    The Department will reevaluate the requirements in Sec.  293.8(a) 
for an ``original compact or amendment executed by both the Tribe and 
the State'' and Sec.  293.9 ``as long as the original copy is submitted 
to the address listed above'' as the Department updates the record 
keeping requirements. The Office of Indian Gaming is the formal record 
keeper and archivist of Tribal-State gaming compacts for the 
Department. The Office is bound by Departmental record keeping 
requirements, including electronic records.
Comments on Sec.  293.10 How long will the Secretary take to review a 
compact or amendment?
    Several commenters expressed support for the proposed revisions to 
Sec.  293.10.
    The Department acknowledges the comments.
Comments on Sec.  293.11 When will the 45-day timeline begin?
    Several commenters recommended the Department amend Sec.  293.11 to 
allow for electronic submissions to trigger the 45-day review period 
upon submission by removing the requirement for the Office of Indian 
Gaming to stamp the document received. Commenters argued that the 
inclusion of a date stamp for electronically submitted documents is no 
longer necessary to confirm when the document was received. Commenters 
also noted the requirement for the Office of Indian Gaming to date 
stamp a document received could result in administrative delays.
    The Department declines to remove the requirement for the Office of 
Indian Gaming to stamp the document received in order for the 45-day 
review period to begin for electronically submitted documents. The 
Department notes the Consultation Draft of Sec.  293.11 reflects the 
removal of the cross reference to Sec.  293.9 and the address of the 
Office of Indian Gaming. The consultation draft of Sec.  293.9 was 
amended to include a dedicated email address for the Office of Indian 
Gaming to facilitate email submission of documents. The application of 
a date stamp for submitted documents irrespective of the submission 
method allows for consistent timely processing of all documents.
    Several commenters requested the Department amend Sec.  293.11 to 
include a requirement that the Office of Indian Gaming provide 
submitters with an email acknowledgement of receipt with confirmation 
of the 45-day review period.
    The Department has revised Sec.  293.11 to include an emailed 
acknowledgement of receipt to the parties when the parties have 
provided their email addresses.
    Several commenters noted an apparent conflict between Sec. Sec.  
293.11 and 293.9 and requested clarification if the 45-day review 
period begins with the receipt of the electronic copy or upon receipt 
of the mailed original copy.
    The Consultation Draft reflected revisions in Sec. Sec.  293.9 and 
293.11 to allow for electronic or hard copy submission. The Department 
has revised Sec.  293.9 to clarify the Department will accept either 
email or hard copy submission but requires a hard copy submission in 
addition to the emailed copy. The 45-day review period starts when the 
Office of Indian Gaming date stamps a hard copy original or an 
electronic copy of the document.
Comments on Sec.  293.12 What happens if the Secretary does not act on 
the compact or amendment within the 45-day review period?
    Several commenters noted that it was unclear what the legal effect 
is for a compact or amendment ``approved by operation of law'' or 
``deemed approved'' when a guidance letter is issued after the 45-day 
review period.
    The Department acknowledges the comments. A guidance letter issued 
after the 45th day review period does not alter the effective date of 
the compact or amendment. The effective date of a compact or amendment 
is the date the document is published in the Federal Register, as 
explained in Sec.  293.14. A compact or amendment approved by operation 
of law is considered to have been approved by the Secretary, but only 
to the extent the compact or amendment is consistent with the 
provisions of IGRA. A guidance letter explains the provisions the 
Department believes to be inconsistent with IGRA.
    Many commenters noted that the added language effectively codifies 
the Secretary's current practice.
    The Department acknowledges the comments.
    One commenter indicated that the provision conflicts with the 
Secretarial requirements under Sec.  293.10.
    The Department disagrees with the comment. The proposed regulations 
at Sec.  293.12 explain what happens if the Secretary does not act on 
the compact or amendment within the 45-day review period.
    Several commenters stated that it was unclear if there would be a 
process to appeal a guidance letter issued after the 45-day review 
period, with one commenter suggesting that the Secretary should 
consider including an appeal or review process.
    The Department acknowledges the comments but declines to amend the 
provision to include an appeal or review process.
    One commenter stated that it was unclear from the provision if the 
Secretary's issuance of a guidance letter under this provision would 
impact the publication of a ``deemed approved'' compact in the Federal 
Register.
    The Secretary's issuance of a guidance letter under this provision 
does not impact the publication of a ``deemed approved'' compact in the 
Federal Register. A guidance letter issued after the 45-day review 
period does not alter the effective date of the compact or amendment. 
The effective date of a compact or amendment is the date the notice is 
published in the Federal Register, as explained in Sec.  293.14.
    Several commenters expressed concern that the Secretary could 
``unapprove'' a compact or amendment through issuance of a guidance 
letter. These commenters requested that the Department specifically 
address the effect of a guidance letter on a compact's approval and 
which provisions are not deemed approved. One commenter expressed 
concern that if the Secretary takes no action or issues a guidance 
letter, a court may interpret the Secretary's guidance letter or 
inaction to mean that the compact violates IGRA and is void, 
potentially leaving a Tribe without the authority to continue to offer 
gaming under the compact. One commenter based its concern on the 
relationship between Sec. Sec.  293.12 and 293.15.
    The Department acknowledges the comments. Under IGRA, the 
Department has 45 days to complete its review and either approve or 
disapprove a class III gaming compact. If the Department takes no 
action within that 45-day period, the Tribal-State gaming compact is 
considered approved by operation of law--to the extent that it is 
consistent with IGRA. A guidance letter issued after the 45th day of 
the review period does not alter the effective date of the compact or 
amendment. The effective date of a compact or amendment is the date the 
notice is published in the Federal Register, as explained in Sec.  
293.14. A compact or amendment approved by operation of law is 
considered to have been approved by the Secretary, but only to the 
extent the compact or amendment is consistent with the provisions of 
IGRA. A guidance letter explains the provisions the

[[Page 74927]]

Department believes to be inconsistent with IGRA.
    One commenter disagreed with the inclusion of Sec.  293.12 and 
stated that the Secretary should not issue guidance letters after the 
45-day review period because the Secretary should only act within the 
45-day review period and not beyond.
    The Department disagrees with the comment. A compact is not 
``considered to have been approved'' by operation of law also known as 
``deemed approved'' until after the 45-day review period. The 
Department cannot issue a guidance letter until after the 45th day.
    One commenter stated that the Secretary has an obligation to ensure 
that compacts between Tribes and States are rejected if they violate 
the provisions of IGRA and stated that Sec.  293.12 appears to permit 
the Secretary to allow compacts that violate IGRA to be ``deemed 
approved'' without alerting the relevant State, Tribe, or the public 
that provisions of the ``approved'' compact violate IGRA. The commenter 
recommended that Sec.  293.12 be amended to state that ``[t]he 
Secretary, after the 45th day, is required to issue a guidance letter 
to the parties identifying any provisions that are inconsistent with 
IGRA and thus not approved by operation of law.'' Another commenter 
suggested the Department add language stating ``Accordingly, the 
signatory Tribe or State may subsequently challenge the non-compliant 
compact provisions as unenforceable or severable from the compact.''
    The Department accepts the comments in part and will make the 
appropriate changes to Sec.  293.12, indicating the Secretary will 
issue a letter confirming the 45-day review period has lapsed and 
therefore the compact or amendment has been approved by operation of 
law. The Secretary's letter may identify provisions of the ``deemed 
approved'' compact that violate IGRA. The Department takes no position 
on whether a Tribe or a State may subsequently challenge the non-
compliant compact provisions as unenforceable or severable from the 
compact.
    One commenter recommended that the language in this section stating 
that ``[t]he Secretary is not required to issue a letter, and if the 
Secretary does issue a letter, any such letter may offer guidance to 
the parties on the Department's interpretation of IGRA,'' be stricken.
    The Department agrees with the changes and will strike the language 
from Sec.  293.12. The Secretary will issue a letter confirming the 45-
day review period has lapsed and therefore the compact or amendment has 
been approved by operation of law.
    Many commenters requested that the Department state how it will 
determine whether to issue a guidance letter and articulate a standard 
to promote the uniform issuance of guidance letters. These commenters 
expressed concern that if the Secretary is not required to issue a 
guidance letter, the lack of a guidance letter may place some Tribes on 
unequal footing. These commenters request that Sec.  293.12 be revised 
to articulate a standard that will ensure the uniform issuance of 
guidance letters.
    The Department accepts the comments in part and will make the 
appropriate changes to Sec.  293.12, indicating the Secretary will 
issue a letter confirming the 45-day review period has lapsed and 
therefore the compact or amendment has been approved by operation of 
law. The Secretary's letter may include guidance identifying provisions 
of the ``deemed approved'' compact that violate IGRA.
    One commenter recommended that the Department clarify whether 
revised Sec.  293.12 is intended to be a change in Department policy or 
a drafting error.
    The Department acknowledges the comment. Section 293.12 will 
reflect a change in policy to issue a letter in each instance when a 
compact is deemed approved and clarify that letter may include guidance 
identifying provisions of the ``deemed approved'' compact that violate 
IGRA.
    Several commenters requested the inclusion of a deadline by which 
the Secretary will issue a guidance letter. One commenter requested 
that Sec.  293.12 be revised to provide that guidance letters be issued 
within 60 days of the date a compact is approved by operation of law in 
order to provide Tribes with certainty with respect to renegotiating 
terms of a compact and avoid lost time negotiating provisions the 
Department finds are in conflict with IGRA.
    The Department accepts the comments in part. Section 293.12 will 
reflect that the Secretary will issue a letter after the 45th day but 
within 90 days from the date of submission. This timeline is consistent 
with the requirement to publish notice in the Federal Register in Sec.  
293.14.
    Several commenters expressed concerns that the Secretary has no 
explicit statutory authority to issue a guidance letter. One commenter 
expressed concerns that a guidance letter, which is not required to be 
issued under IGRA, could be used as a litigation roadmap, potentially 
to oppose the project, and may pin the Secretary to a litigation 
position. The commenter suggested further discussion and requested that 
the Secretary consider a process that would provide confidentiality to 
the Tribe and State by, for example, communicating to the attorneys for 
the respective Tribe and State the Secretary's concerns if any 
provisions were inconsistent with IGRA to discuss perceived 
inconsistencies.
    The Department acknowledges the comment. The Secretary has 
authority to promulgate these regulations based on the statutory 
delegation of powers contained in IGRA and 25 U.S.C. 2, and 9 to review 
compacts and amendments. A guidance letter issued after the 45th day 
review period does not alter the effective date of the compact or 
amendment. A compact or amendment approved by operation of law is 
considered to have been approved by the Secretary, but only to the 
extent the compact or amendment is consistent with the provisions of 
IGRA. A guidance letter explains the provisions the Department believes 
to be inconsistent with IGRA. The Department currently offers technical 
assistance to Tribes and States; however the Department does not 
provide pre-approvals or legal opinions.
    One commenter noted that ``deemed approval'' letters have had the 
effect of allowing States like California to attempt to use the letter 
as a way of forcing impermissible provisions into compacts.
    The Department accepts the comments in part and will make the 
appropriate changes to Sec.  293.12, indicating the Secretary will 
issue a letter informing the parties that the compact or amendment has 
been approved by operation of law, the letter may identify provisions 
of the ``deemed approved'' compact that violate IGRA.
    One commenter recommended that the revised regulations be modified 
to expressly state the principles underlying the policy of issuing 
``deemed approved'' letters and the limits of that policy.
    The Department accepts the comments in part and will make the 
appropriate changes to Sec.  293.12, indicating the Secretary will 
issue a letter informing the parties that the compact or amendment has 
been approved by operation of law. The letter may identify provisions 
of the ``deemed approved'' compact that violate IGRA. The Department 
declines to expressly state when the letter will include guidance or 
limits to that policy.
    One commenter noted that States are often dismissive of ``deemed 
approved'' letters and requested that the Department revise the 
language to state that ``[a]ccordingly, the signatory Tribe

[[Page 74928]]

or State may subsequently challenge the non-compliant compact 
provisions as unenforceable or severable from the compact,'' stating 
that this additional language would eliminate State's false perception 
that an approval by operation of law is de facto approval of a State's 
``illicit agenda in compact negotiations.''
    The Department acknowledges the comment. Under IGRA, the Department 
has 45 days to complete its review and either approve or disapprove a 
class III gaming compact. If the Department takes no action within that 
45-day period, the Tribal-State gaming compact is considered approved 
by operation of law--to the extent that it is consistent with IGRA. The 
Department takes no position on whether a Tribe or a State may 
subsequently challenge the non-compliant compact provisions as 
unenforceable or severable from the compact.
    Several commenters recommended that Sec.  293.12 be amended to 
allow Tribal governments to request guidance letters and legal opinions 
from the Secretary or the Office of Solicitor for compacts.
    The Department acknowledges the comment. The Department currently 
offers technical assistance to Tribes and States; however the 
Department does not provide pre-approvals or legal opinions.
    One commenter stated that the issuance of a guidance letter 
explaining why a submitted compact was not affirmatively approved but 
``deemed approved'' by operation of law was a solid improvement, noting 
that such letters provide an excellent source to inform and improve the 
negotiation process.
    The Department acknowledges the comment.
Comments on Sec.  293.13 Who can withdraw a compact or amendment after 
it has been received by the Secretary?
    Several commenters requested the Department revise Sec.  293.13 by 
adding the word ``both'' so that the relevant provision reads ``Tribe 
and State must both submit.''
    The Department accepts the requested revision. The Department notes 
the parties may submit a joint request for withdrawal of the compact or 
amendment, or submit individual requests for withdrawal.
    One commenter recommended the Department accept electronically 
submitted requests for withdrawal.
    The Department accepts the requested revision and has revised Sec.  
293.9 to clarify all submissions and requests under part 293 must be 
submitted to the Office of Indian Gaming, either at the physical 
address or the email address.
    One commenter requested the Department revise Sec.  293.9 to permit 
a Tribe to unilaterally withdraw a compact or amendment after 
submission.
    The Department declines the requested change and notes this 
requirement remains unchanged from the 2008 Regulations, which requires 
both parties to request withdrawal. The compact process under IGRA is a 
formalized contract between sovereigns which is submitted to the 
Department for review and approval only after it is legally entered 
into or is otherwise binding on the parties.
Comments on Sec.  293.14 When does a compact or amendment take effect?
    Several commenters requested clarity of the effect of an approval 
by operation of law on a compact and subsequent publication of a notice 
in the Federal Register.
    The Department acknowledges the comments. The Department notes IGRA 
provides a 45-day review period after which a compact is approved by 
operation of law but only to the extent the compact is consistent with 
IGRA. 25 U.S.C. 2710(d)(8)(C). A notice must also be published in the 
Federal Register for the compact to be in effect. 25 U.S.C. 
2710(d)(8)(D).
    One commenter requested the Department amend Sec.  293.14 by 
changing the timeline for publication of a notice in the Federal 
Register from 90 days to 55 days from the date the compact or amendment 
is received to, or within 10 days of approval/disapproval, whichever is 
shorter.
    The Department declines the requested change in the Federal 
Register notice timeline, which remains unchanged from the 2008 
Regulations and is considered reasonable. The Department notes IGRA 
does not require publication of a notice in the Federal Register if the 
compact or amendment is disapproved.
Comment on Sec.  293.15 Is the Secretary required to disapprove a 
compact or amendment that violates IGRA?
    Several commenters agreed with the Department's proposed language 
in Sec.  293.15, explaining that the Secretary has the discretionary 
authority to disapprove a compact that violates IGRA, but is not 
required to do so. However, many of the commenters that agreed with the 
Department's proposed language did express concern over the possibility 
that the language could encourage future administrations to avoid 
disapproving compacts where appropriate. Other commenters noted the 
importance of Deemed Approval determinations to empower Tribes to 
reject the non-compliant provisions of a deemed approved compact 
through litigation or other means.
    The Department acknowledges the comments. The Department retains 
its proposed language in Sec.  293.15. The Department is concerned a 
mandate that the Secretary affirmatively disapprove compacts that 
violate IGRA would narrow the discretion IGRA provides to the Secretary 
to either disapprove or approve a compact within a 45-day review 
period. Furthermore, this type of mandate could create unintended 
consequences if the Department fails to act within the prescribed 45-
day review period on a compact that violates IGRA. The current 
language, which tracks the language of IGRA, provides that if the 
Secretary fails to act within the 45-day review period, the compact is 
deemed approved but only to the extent it is consistent with IGRA.
    Several commenters expressed concern with the Department's proposed 
language in Sec.  293.15 and argued that a compact which violates IGRA 
must be affirmatively disapproved. Another commenter went as far as 
stating that allowing compacts to go into effect that should be 
disapproved is a violation of IGRA.
    The Department acknowledges the comments. The Department retains 
its proposed language in Sec.  293.15. The Department is concerned a 
mandate that the Secretary affirmatively disapprove compacts that 
violate IGRA would narrow the discretion IGRA provides the Secretary to 
either approve or disapprove a compact within the prescribed 45-day 
review period. Furthermore, this type of mandate could create 
unintended consequences if the Department fails to act within the 
prescribed 45-day review period on a compact that violates IGRA. The 
current language, which tracks the language of IGRA, provides that if 
the Secretary fails to act within the 45-day time period, the compact 
is deemed approved but only to the extent it is consistent with IGRA.
    Finally, a few commenters agreed that the Secretary has 
discretionary authority over whether to disapprove a compact but should 
be required to issue a guidance letter or legal opinion identifying 
provisions not approved under IGRA. Commenters recommended the 
Secretary defer to a Tribe's sovereign decision-making and permit 
compacts to go into effect rather than disapprove.
    The Department acknowledges the comments. The Department retains 
its proposed language in Sec.  293.15. The Department is concerned a 
mandate that

[[Page 74929]]

the Secretary affirmatively disapprove compacts that violate IGRA would 
narrow the discretion IGRA provides the Secretary to either approve or 
disapprove a compact within the prescribed 45-day review period. 
Furthermore, this type of mandate could create unintended consequences 
if the Department fails to act within the prescribed 45-day time period 
on a compact that violates IGRA. The current language, which tracks the 
language of IGRA, provides that if the Secretary fails to act within 
the 45-day time period, the compact is deemed approved but only to the 
extent it is consistent with IGRA. The Department has revised Sec.  
293.12 to provide the Secretary will issue a letter informing the 
parties that the compact or amendment has been approved by operation of 
law and the letter may include guidance.
Comments on Sec.  293.16 When may the Secretary disapprove a compact or 
amendment?
    Several commenters requested the Department clarify Sec.  
293.16(a)(3) and suggested the provision is overly broad.
    The Department acknowledges the comments, but notes this provision 
is consistent with Congress's grant of discretionary disapproval 
authority to the Secretary. 25 U.S.C. 2710(d)(8)(B)(iii).
    Several commenters recommended the Department revise Sec.  
293.16(a)(3) to include an opportunity for an appropriate designee of 
the Secretary to serve as a mediator to facilitate fair compact 
negotiations between a Tribe and a State and to ensure that Federal law 
is complied with by the parties.
    The Department acknowledges the comments. The Department routinely 
provides technical assistance to Tribes and States including guidance 
on Departmental precedents and past procedures, the Departments 
interpretation and application of case law, as well as best practices.
    One commenter requested the Department include a new section titled 
``[m]ay a compact or amendment include provisions that violate the 
trust obligations of the United States to Indians?'' The proposed text 
for this section would explain that a compact may not include 
provisions that violate the trust obligations of the United States and 
cited to provisions limiting third-party Tribe's rights to conduct 
gaming as an example of a provision violating the trust obligation.
    The Department declines the requested new section and notes Sec.  
293.24(c)(1) addresses compact provisions which act to limit a third-
party Tribe's rights to conduct gaming.
    Several commenters expressed support for the proposed Sec.  
293.16(b) and noted it helps enforce the requirements in other sections 
of part 293.
    The Department acknowledges the comments.
    Several commenters objected to the proposed Sec.  293.16(b) which 
provides the Secretary may disapprove a compact if the documents 
required in Sec.  293.8 are not submitted. Commenters questioned the 
Secretary's authority to disapprove a compact based on the parties' 
failure to submit specific documents. Several commenters expressed 
concerns that the document required by Sec.  293.8(d) may be overly 
broad and burdensome. Other commenters recommended the Department 
revise Sec.  293.16 to require written notice of deficiencies and an 
opportunity to cure before disapproving a compact under Sec.  
293.16(b).
    The Department accepts the comments and notes Sec.  293.16(b) 
provides the Secretary with grounds to disapprove a compact if the 
documents required by Sec.  293.8 are not submitted. The Department has 
revised Sec.  293.16(b) to require written notice of deficiencies, 
which is consistent with the Department's longstanding practice of 
informing parties of deficiencies and permitting parties to cure the 
deficiencies. IGRA provides the Secretary with discretionary authority 
to disapprove a compact if it violates one of the three specified 
criteria. 25 U.S.C. 2710(d)(8)(B). Section 293.16(b) allows a 
presumption that a compact violates one of the three specified criteria 
if the parties fail to cure deficiencies in the record.
    Several commenters requested the Department revise Sec.  293.16(b) 
to provide if the parties fail to submit the required documents in 
Sec.  293.8, the Secretary will return the compact as incomplete. The 
commenters recommended the Department clarify that the parties may 
resubmit the compact or amendment after it has been returned based on 
the failure to submit the required documents, but must submit all of 
the required supporting documents.
    The Department declines to accept the requested provisions. IGRA 
provides the Secretary with 45-days to review and approve or disapprove 
a compact. The Secretary does not have the authority to return a 
compact as incomplete which could frustrate Congress's clear intent to 
prevent unnecessary delay by providing a 45-day review period.
    One commenter recommended the Department revise Sec.  293.16 by 
including a provision permitting the Secretary while reviewing an 
amendment to a compact to disapprove provisions in the underlying 
compact or amendment which was approved by operation of law if that 
provision violates one of IGRA's three specified criteria.
    The Department declines to include the proposed provision. IGRA 
limits the Secretary's authority to review and approve or disapprove a 
compact or amendment to 45 days. As a result, the Department cannot 
retroactively approve or disapprove a compact or amendment after the 
45-day review period has run. Instead, the Department's review is 
limited to the text of the document under review during the 45-day 
review period. The Department treats restated and resubmitted compacts 
as a new compact because the parties have submitted entire text of the 
compact for review. The Department encourages parties to utilize 
restated compacts or amended and restated compacts as a best practice 
to incorporate a series of amendments into a single document. The 
Department finds it helpful if the Tribe or State also submits a 
redlined copy of the restated compact.
Comments on Sec.  293.17 May a compact or amendment include provisions 
addressing the application of the Tribe's or the State's criminal and 
civil laws and regulations?
    Several commenters expressed support for the proposed Sec.  293.17.
    The Department acknowledges the comments.
    Several commenters recommended the Department revise Sec.  293.17 
to clarify how the parties can comply with the requirement to ``show 
that these laws and regulations are both directly related to and 
necessary for, the licensing and regulation of the gaming activity.'' 
Commenters noted this provision adds a vague new requirement that could 
cause confusion.
    The Department accepts this comment in part. The Department has 
revised Sec.  293.17, to clarify the Secretary may ask for a showing 
that the provisions addressing the application of criminal and civil 
laws and regulations are both directly related to and necessary for, 
the licensing and regulation of the gaming activity.
    Several commenters addressed Sec.  293.17 in responding to the 
Department's third consultation question ``[s]hould the draft revisions 
include provisions that facilitate or prohibit the enforcement of State 
court orders related to employee wage garnishment or patron winnings?'' 
Commenters suggested the parties may address the effect of such State 
(or Tribal) court orders as a jurisdictional matter under Sec.  293.17.

[[Page 74930]]

    The Department declines to address the enforcement of State court 
orders related to employee wage garnishment or patron winnings in Sec.  
293.17. The Department has added enforcement of State court orders to 
the list of provisions in a compact which are not directly related to 
the operational gaming activities in Sec.  293.24(c). The Department 
notes this is consistent with the 9th Circuit decision in Chicken Ranch 
Ranchera of Me-Wuk Indians v. California, 42 F.4th 1024 (9th Cir. 
2022).
Comments on Sec.  293.18 May a compact or amendment include provisions 
addressing the allocation of criminal and civil jurisdiction between 
the State and the Tribe?
    A number of commenters responded to the Department's fourth 
consultation question: ``[s]hould the draft revisions include 
provisions that facilitate or prohibit State court jurisdiction over 
the gaming facility or gaming operations? Should this apply to all 
claims or only certain types of claims?''
    Many commenters discouraged the Department from including 
provisions which could be perceived as permitting or facilitating State 
court jurisdiction because States have a history of leveraging limited 
grants of jurisdiction to undermine Tribal sovereignty. Commenters 
noted while IGRA includes allocation of jurisdiction it also is 
intended to promote strong Tribal governments which includes strong 
Tribal courts. Other commenters noted Tribal courts should be the 
default jurisdiction, however court jurisdiction could be left to 
negotiations between a Tribe and State, at the request of a Tribe when 
the Tribal court does not have the capability to take full jurisdiction 
over the relevant claims. Commenters also discussed case law supporting 
the presumption that Tribal court is the proper venue for third party 
claims--including patron disputes, labor disputes, and tort claims 
against the Tribe arising out of the Tribe's gaming facility.
    The Department acknowledges the comments. The Department proposed 
Sec.  293.18 to clarify the Department reads IGRA's provision 
permitting Tribes and States to allocate criminal and civil 
jurisdiction narrowly and limited by Sec.  293.17. The Department has 
addressed third party tort claims in proposed Sec.  293.24(c).
    Several commenters supported the proposed Sec.  293.18, as drafted, 
and noted it appears consistent with IGRA and case law. Commenters also 
noted the proposed provision could help preserve Tribal court systems.
    The Department acknowledges the comments.
    Several commenters questioned the need for the proposed Sec.  
293.18.
    The Department acknowledges the comments. The Department notes IGRA 
provides a compact may include provisions relating to the allocation of 
criminal and civil jurisdiction between the State and the Tribe 
necessary for the enforcement of such laws and regulations. 25 U.S.C. 
2710(d)(3)(C)(ii).
    Several commenters requested the Department include a bad faith 
standard for jurisdiction when a State seeks to compel State 
jurisdiction of the Tribe or Indian country.
    The Department acknowledges the comments. The Department has added 
provisions in Sec.  293.24(c) to address these concerns, which Sec.  
294.24(d) now states are ``considered evidence of a violation of 
IGRA.''
    Several commenters requested the Department amend proposed Sec.  
293.18 to expressly require the Tribe to request the State take 
jurisdiction over claims involving the gaming facility or gaming 
operations in order for such an allocation of jurisdiction to be 
proper.
    The Department did not adopt the comment. A compact or amendment 
may include provisions allocating criminal and civil jurisdiction 
between the State and the Tribe necessary for the enforcement of the 
laws and regulations described in Sec.  293.17.
    Several commenters requested the Department revise Sec.  293.18 to 
prohibit State court jurisdiction over Tribal gaming operations or 
facilities.
    The Department did not adopt the comment. A compact or amendment 
may include provisions allocating criminal and civil jurisdiction 
between the State and the Tribe necessary for the enforcement of the 
laws and regulations described in Sec.  293.17.
Comments on Sec.  293.19 May a compact or amendment include provisions 
addressing the State's costs for regulating gaming activities?
    A number of commenters expressed support for the proposed Sec.  
293.19. Commenters noted States have used IGRA's regulatory cost 
provision as an indirect tax often funding both regulatory and non-
regulatory functions. Commenters opined the bad faith standard would 
assist negotiating parties in limiting regulatory cost provisions and 
Tribal oversite over the State's use of those funds. Commenters also 
noted the Department will likely receive severe pushback from States on 
this provision and encouraged the Department to ``stay the course.''
    The Department acknowledges the comments. Section 293.19 addresses 
Tribal payments for the State's costs of regulating gaming activities. 
As explained above the Department has replaced the phrase ``evidence of 
bad faith'' with ``evidence of a violation of IGRA.''
    Several commenters expressed concern with the inclusion of a bad 
faith standard in proposed Sec.  293.19. Commenters questioned the 
Secretary's authority to determine bad faith and questioned how the 
Department would enforce such a provision over the life of the compact.
    IGRA provides the Secretary with the authority to review and 
approve or disapprove a compact within a 45-day review period. The 
Department evaluates the terms of the compact including auditing 
standards for assessments of regulatory costs as part of this review. 
The Department has revised Sec.  293.19 to clarify the Secretary's 
review is limited to the terms of the compact. Enforcement of those 
terms lies with the parties and is governed by the compact's dispute 
resolution provisions, if any. As explained above, the Department has 
replaced the phrase ``evidence of bad faith'' with ``evidence of a 
violation of IGRA.''
    Several commenters requested the Department provide definitions for 
``actual and reasonable'' and provide boundaries on the types of costs 
for which the State may reasonably seek reimbursement. Other commenters 
requested the Department allow flexibility for States to aggregate 
costs with limits on what costs can be aggregated.
    The Department declines to provide specific boundaries on the types 
of gaming regulatory costs for which the State may seek reimbursement. 
The Department reads IGRA's provision permitting the State to assess 
regulatory costs narrowly and inherently limited to the negotiated 
allocation of regulatory jurisdiction. Providing specific definitions 
would diminish parties' flexibility in negotiating a reasonable 
allocation of regulatory jurisdiction that best meets the needs of the 
parties. Further, the Department has revised Sec.  293.19 to give 
parties the flexibility in negotiating the terms of a compact to 
determine how the State will show aggregate costs are actual and 
reasonable.
    Several commenters requested the Department require the State to 
provide annual audits, prove actual and reasonable expenses, and 
periodically negotiate regulatory costs. One commenter requested the 
Department

[[Page 74931]]

add the phrase ``and reasonable'' to the last sentence in Sec.  293.19. 
Another commenter requested the Department add the phrase ``or refuses 
to provide such records'' to the last sentence in Sec.  293.19.
    The Department has accepted these suggested edits in part and has 
revised Sec.  293.19, to reflect these comments.
    Several commenters requested the Department clarify how the 
department distinguishes between assessed regulatory costs and a 
prohibited tax, fee, charge, or other assessment.
    The Department acknowledges the comments. Section 293.25 includes a 
discussion of the Department's interpretation of IGRA's prohibition 
against the imposition of a tax, fee, charge, or other assessment. IGRA 
provides a compact may include provisions relating to ``the assessment 
by the State of [the Tribe's class III gaming activity] in such amounts 
as are necessary to defray the costs of regulating [the Tribe's class 
III gaming activity].'' 25 U.S.C. 2710(d)(3)(C)(iii). IGRA in section 
2710(d)(4) then prohibits the State from imposing a tax, fee, charge, 
or other assessment except for any assessments that may be agreed to 
under paragraph (3)(C)(iii). The Department reads IGRA's provision 
permitting the State to assess regulatory costs narrowly and inherently 
limited to the negotiated allocation of regulatory jurisdiction. 
Section 293.25 includes a discussion of the Department's interpretation 
of IGRA's prohibition against the imposition of a tax, fee, charge, or 
other assessment.
Comments on Sec.  293.20 May a compact or amendment include provisions 
addressing the Tribe's taxation of gaming?
    Several commenters expressed support for the proposed Sec.  293.20, 
and noted clear guidelines are beneficial to all parties by reducing 
the risk that improper provisions will be included. Commenters 
expressed support for the inclusion of a bad faith standard in the 
proposed Sec.  293.20. Several commenters requested the Department add 
the word ``presumptive'' so the relevant sentence would read ``[t]he 
inclusion of provisions addressing the Tribe's taxation of other 
activities is considered presumptive evidence of bad faith.''
    The Department acknowledges the comments but declines to add the 
word ``presumptive.'' As explained above the Department has replaced 
the phrase ``evidence of bad faith'' with ``evidence of a violation of 
IGRA.''
    Several commenters expressed opposition for the proposed Sec.  
293.20. Commenters raised concerns that the proposed text appears to 
allow States to tax gaming revenue. Other commenters noted this may 
cause States to demand specific forms of Tribal taxation of Tribal 
gaming and argues the provision is unnecessary.
    The Department acknowledges the comment, but notes IGRA provides a 
compact may address Tribal taxation of Tribal gaming in amounts 
comparable to State taxation of State gaming. 25 U.S.C. 
2710(d)(3)(C)(iv). The Department has revised Sec.  293.20 to clarify 
this provision.
Comments on Sec.  293.21 May a compact or amendment include provisions 
addressing remedies for breach of the compact?
    Several commenters expressed support for the proposed Sec.  293.21 
and the inclusion of a bad faith standard. Several commenters discussed 
their experiences with States seeking to enforce dispute resolution 
agreements or decisions that violated IGRA.
    The Department acknowledges the comments. As explained above, the 
Department has replaced the phrase ``evidence of bad faith'' with 
``evidence of a violation of IGRA.''
    Several commenters questioned the Secretary's authority to review 
dispute resolution agreements, arbitration awards, settlement 
agreements, or other resolutions of a dispute outside of Federal court.
    The Department acknowledges the comments. The Secretary has 
authority to promulgate these regulations based on the statutory 
delegation of powers contained in IGRA and 25 U.S.C. 2, and 9 to review 
compacts and amendments. The Department is aware of arbitration awards, 
settlement agreements, and other similar dispute resolution agreements 
which have amended the terms of a compact. IGRA requires the Secretary 
to review compacts and publish notice in the Federal Register before a 
compact is in effect and the Department has made conforming edits to 
Sec.  293.4.
    Several commenters expressed concern with the proposed Sec.  
293.21. Commenters stated the documents sought under the provision was 
overly broad. Other commenters suggested the proposed Sec.  293.21 
would encourage parties to seek dispute resolution in Federal court and 
discourage parties from seeking more cost effective and faster 
resolution of disputes because of the risk the Secretary may reject the 
agreement. Commenters noted settlement agreements are often 
confidential. One commenter requested clarification why the Department 
is interested in reviewing dispute resolution agreements and 
arbitration awards. Another commenter cautioned the Department's review 
of these provisions may prevent Tribes from exercising self-
determination and sovereignty in compact negotiations.
    The Department acknowledges the comments. The Department seeks to 
ensure all compacts, amendments, and dispute resolution agreements or 
awards are consistent with IGRA and are properly in effect. The 
Department has made conforming edits to Sec. Sec.  293.2, 293.4, 293.7, 
and 293.21 to address concerns raised regarding secretarial review of 
compact amendments arising out of dispute resolution. The Department 
encourages parties to resolve compact disputes in a timely, cost-
effective manner, which is consistent with IGRA.
    Several commenters requested the Department revise the proposed 
Sec.  293.21 by amending the title and adding text to Sec.  293.21. The 
proposed title would read: ``[m]ay a compact or amendment include 
provisions addressing the resolution of disputes for breach of the 
compact?''
    The Department has accepted the proposed revisions in part. As 
explained above, the Department has replaced the phrase ``evidence of 
bad faith'' with ``evidence of a violation of IGRA.''
    Several commenters requested the Department clarify if compacts 
should include dispute resolution options other than termination of a 
compact, which only harms the Tribe.
    The Department acknowledges the comments. The Department notes that 
compacts are carefully negotiated long-term agreements between 
sovereigns. IGRA provides compacts may include ``remedies for breach of 
contract.'' The Department notes well drafted compacts include options 
for the parties to continue operating under the compact, while seeking 
to resolve any disputes arising from the compact. If the compact 
includes payments to the State for regulatory costs as described in 
proposed Sec.  293.19, or revenue sharing as described in Sec.  293.25, 
the Department recommends including provisions which permit the Tribe 
to divert disputed funds into an escrow account.
    One commenter requested the Department include a grandfather clause 
for established settlement agreements to protect the settled 
expectations of parties to existing agreements. The commenter explained 
a party may seek to relitigate a settled dispute by arguing the 
agreement is not valid.
    The Department declines to include a grandfather clause for 
settlement agreements which have not been submitted for Secretarial 
review and

[[Page 74932]]

publication of a notice in the Federal Register. The Department has 
included revisions to the proposed Sec.  293.21 as well as Sec.  293.4 
to clarify and limit the scope of this review. The Department 
encourages parties to seek Sec.  293.4 review if the parties are 
concerned their settlement agreement is an `amendment.'
Comments on Sec.  293.22 May a compact or amendment include provisions 
addressing standards for the operation of gaming activity and 
maintenance of the gaming facility?
    A number of commenters expressed support for the proposed Sec.  
293.22 and requested the Department strengthen the provision by 
defining what qualifies as ``maintenance'' in greater detail. 
Commenters explained some States seek expansive regulatory standards 
that are not related to the maintenance of a facility. Other commenters 
noted State's may seek to require a Tribe to adopt State law equivalent 
ordinances and requested the Department add the following sentence to 
Sec.  293.22, ``[i] f a compact or amendment mandates that the Tribe 
adopt standards equivalent or comparable to the standards set forth in 
a State law or regulation, the parties must show that these mandated 
Tribal standards are both directly related to and necessary for, the 
licensing and regulation of the gaming activity.''
    The Department acknowledges the comments and has revised Sec.  
293.22 by including the requested sentence.
Comments on Sec.  293.23--Which Has Been Renumbered as 293.24--What 
factors will be used to determine whether provisions in a compact or 
amendment are directly related to the operation of gaming activities?
    The Department has renumbered the proposed Sec.  293.23 as Sec.  
293.24 comments have been edited to reflect the new section number.
    Several commenters expressed support for the proposed Sec.  293.24. 
Commenters explained the provision would improve compact negotiations 
by providing parties with clear guidance on which topics are consistent 
with IGRA and which topics are outside of IGRA's narrow scope of 
compact terms under 25 U.S.C. 2710(d)(3)(C). Commenters noted the 
proposed Sec.  293.24 is consistent with the Departments long standing 
requirement of a direct connection and repudiation of some States' 
application of a ``but for'' test.
    The Department acknowledges the comments.
    One commenter expressed concern that the Department was 
inadvertently creating additional tests including a ``incidental 
benefit'' test in Sec.  293.24.(b) and a ``not directly related'' test 
in Sec.  293.24(b) and (c) as well as an ``unrelated to'' test in Sec.  
293.24(c)(4).
    The Department acknowledges the comments. The Department has 
revised Sec.  293.24(b) and (c)(4) for consistency and notes the phrase 
``not directly related'' as used in Sec.  293.24 as the inverse of the 
phrase ``directly related.''
    One commenter recommended the Department include a section 
immediately preceding proposed Sec.  293.24 mirroring the question-and-
answer format of the proceeding sections in Subpart D. The section 
would be titled ``[m]ay a compact or amendment include provisions that 
are not directly related to the operation of gaming activities?'' With 
a firm declaration that provisions which are not directly related to 
the operation of gaming activities is a violation of IGRA.
    The Department has incorporated the recommended section with 
modifications for consistency with the proceeding section in Subpart D. 
The new section is numbered Sec.  293.23 and the following sections 
have been renumbered.
    Several commenters recommended the Department revise Sec.  293.24 
by inserting the word ``activity'' or ``activities'' after the phrase 
``class III gaming'' for consistency with other sections in part 293.
    The Department has added the word ``activity'' or ``activities'' as 
appropriate in Sec.  293.24.
    Several commenters requested the Department provide a table of 
authority for provisions considered ``directly related to the operation 
of gaming activities'' under Sec.  293.24(a) as well as provisions 
considered ``not directly related to the operation of gaming 
activities'' under Sec.  293.24(c). Commenters recommended the 
Department revise or remove provisions which were not supported by past 
decisions issued by the Department and/or case law.
    The Department has prepared a table of authorities addressing these 
and other provisions.
    Several commenters recommended the Department provide standards 
and/or a procedure within the regulatory text outlining how the parties 
are expected to comply with the requirement in Sec.  293.24(a) to 
``show that [provisions included in the compact or amendment] are 
directly connected to the Tribe's conduct of class III gaming.'' 
Commenters also recommended the Department include in the part 293 
regulations deference to a reasonable Tribal determination that a 
provision is directly connected to the Tribe's conduct of class III 
gaming.
    The Department declines to provide a specific procedure for 
complying with Sec.  293.24 in order to provide the parties with the 
necessary flexibility to address the specific terms of their agreement. 
Some parties chose to provide a justification brief explaining key or 
novel provisions to the Department as part of their compact or 
amendment submission. When necessary, the Department's practice is to 
request additional information from the parties regarding specific 
provisions in the compact or amendment. Additionally, the Department 
frequently provides technical assistance to parties negotiating a 
compact or amendment by flagging provisions which may violate IGRA or 
may require additional justification. A best practice for compacts 
requiring State legislative approval is to seek technical assistance 
before the compact is formally adopted by legislative action.
    A number of commenters responded to the Department's third 
consultation question ``[s]hould the draft revisions include provisions 
that facilitate or prohibit the enforcement of State court orders 
related to employee wage garnishment or patron winnings?'' Commenters 
encouraged the Department to include provisions which prohibit Tribal 
enforcement of State court orders related to employee wage garnishment 
and/or patron winnings in compacts. The commenters explained that these 
provisions are not directly related to operation of gaming activities 
under 25 U.S.C. 2710(d)(3)(C)(vii). Further some commenters explained 
they have prevailed in litigation arguing that State court wage 
garnishment orders are not binding on the Tribe or the Tribe's 
employees. Commenters noted that while comity agreements between 
sovereigns may be mutually beneficial, compact negotiations should not 
be used to force Tribes to enforce these provisions. Commenters also 
explained without a Tribal law mechanism for domesticating a State 
court order, enforcing such an order erodes Tribal sovereignty and 
exposes the Tribe and the Tribal gaming operation to unwarranted 
liability.
    The Department has added enforcement of State court orders to the 
list of provisions which are not directly related to the operational 
gaming activities in Sec.  293.24(c). The Department notes this is 
consistent with the 9th Circuit decision in Chicken Ranch Ranchera of 
Me-Wuk Indians v. California, 42 F.4th 1024 (9th Cir. 2022).
    Several commenters requested the Department include in the Sec.  
293.24(c)

[[Page 74933]]

list of provisions which are not directly related to the operation of 
gaming activities provisions which require the Tribe to negotiate 
memorandum of understanding or intergovernmental agreements with local 
governments.
    The Department has added requiring memorandum of understanding or 
intergovernmental agreements with local governments to the list of 
provisions which are not directly related to the operational gaming 
activities in Sec.  293.24(c). The Department notes this is consistent 
with the 9th Circuit decision in Chicken Ranch Ranchera of Me-Wuk 
Indians v. California, 42 F. 4th 1024 (9th Cir. 2022).
    Several commenters requested the Department include in the Sec.  
293.24(c) list of provisions, which are not directly related to the 
operation of gaming activities, provisions which require the Tribe to 
submit to State court jurisdiction over tort claims arising from the 
Tribe's conduct of class III gaming activities.
    The Department has added requiring State court jurisdiction over 
tort claims arising from the Tribe's conduct of class III gaming 
activities to the list of provisions which are not directly related to 
the operational gaming activities in Sec.  293.24(c). The Department 
notes this is consistent with the District of New Mexico's decision in 
Pueblo of Santa Ana v. Nash, 972 F. Supp. 2d 1254 (D.N.M 2013).
    Several commenters requested the Department include an additional 
paragraph to Sec.  293.24 codifying the Department's practice of 
providing technical assistance letters to negotiating parties regarding 
whether a proposed compact provision is `directly related' to the 
Tribe's operation of gaming activities consistent with IGRA. Commenters 
requested the Department further include avenues for parties to obtain 
assistance from the Department in seeking guidance letters or legal 
opinions from the National Indian Gaming Commission and the United 
States Department of Justice.
    The Department declines to adopt a formal codification of its 
practice providing technical assistance to Tribes and States. The 
Department will continue to coordinate with the Department of Justice 
and the National Indian Gaming Commission regarding enforcement of 
IGRA.
Comments on Sec.  293.24(a)
    Several commenters objected to the Department's inclusion of 
provisions in Sec.  293.24(a) addressing patron conduct within the 
gaming facility as ``directly related to the Tribe's conduct of 
gaming.'' Commenters argued the examples provided--without further 
clarification or supporting past precedent and or case law--may cause 
confusion and invite State overreach. Other commenters noted the 
examples provided of subjects regulating patron conduct included 
subjects which resulted in contentious negotiations with their 
respective States, including State attempts to ban alcohol and smoking 
in Tribal facilities while requiring State licensed facilities serve 
alcohol. Other commenters recommended the Department revise the list of 
examples in Sec.  293.24(a) to reflect non-controversial subjects that 
are ``directly related to the Tribe's conduct of gaming'' including 
minimum age restrictions and the transportation of gaming devices and 
equipment.
    The Department acknowledges the comments. The Department has 
provided a comprehensive table of authorities supporting the examples 
included in Sec.  293.24(a). The Department has also revised the list 
to reflect non-controversial subjects the Department has found to be 
``directly related to the Tribe's conduct of gaming.'' We note the 
inclusion of an item in the Department's ``directly related'' list in 
Sec.  293.24(a) does not suggest a State may insist on any requirement 
addressing a ``directly related'' item.\6\
---------------------------------------------------------------------------

    \6\ See, e.g., Chicken Ranch Ranchera of Me-Wuk Indians v. 
California, 42 F.4th 1024, 1063 (9th Cir. 2022).
---------------------------------------------------------------------------

    Several commenters recommended stylistic edits to Sec.  293.24(a) 
for consistency with Sec.  293.24(c).
    The Department has revised Sec.  293.24 for consistency.
    One commenter noted the reference to patron conduct in Sec.  
293.24(a) could include illegal patron conduct including trafficking in 
the gaming facility and adjacent non-gaming amenities. The commenter 
requested the Department's view on provisions which address criminal 
jurisdiction.
    The Department acknowledges the comment. The phrase ``patron 
conduct'' has been removed from Sec.  293.24(a). Further, criminal 
jurisdiction is addressed in Sec.  293.17.
Comments on Sec.  293.24(b)
    Several commenters questioned the Department's inclusion of Tribal 
infrastructure projects in Sec.  293.24(b) and noted provisions 
addressing those projects may be beneficial to Tribes.
    The Department acknowledges the comments. The Department notes that 
infrastructure projects may be beneficial for Tribes. The Department 
included Tribal infrastructure in Sec.  293.24(b) to highlight that 
these projects should not be ``considered directly related to the 
Tribe's conduct of gaming'' simply because they may be funded using 
gaming revenue or may provide a benefit to the gaming facility.
    Several commenters requested the Department remove the word 
``incidental'' from Sec.  293.24(b). Commenters noted the phrase 
``incidental benefits'' may cause confusion and result in unintended 
State overreach.
    The Department has removed the word ``incidental'' from Sec.  
293.24(b).
Comments on Sec.  293.24(c)
    One commenter requested the Department revise Sec.  293.24(c) to 
state ``Provisions which the Department may consider not directly 
related to the operation of gaming activities includes . . .''
    The Department declines to adopt the requested revision.
    Several commenters raised concerns with the Department's 
interpretation in Sec.  293.24(c)(1) that ``[l]imiting third party 
Tribes' rights to conduct gaming'' is not directly related to operation 
of gaming activities under 25 U.S.C. 2710(d)(3)(C)(vii). Several 
commenters requested clarification and noted the Department has 
approached compact provisions impacting third party Tribes differently 
and cited to the Department's discussion and approval of ``section 9'' 
in the 1993 Michigan compacts. Other commenters noted that Sec.  
293.24(c)(1) could include Tribal parity provisions or `most favored 
nation' provisions. Other commenters recommended the Department remove 
this provision arguing it is ambiguous and potentially limits 
geographic exclusivity provisions. Other commenters applauded Sec.  
293.24(c)(1) and noted it appeared consistent with the Departments long 
standing objection to compact provisions which sought to limit third 
party Tribes' rights under IGRA.
    The Department acknowledges the comments. The Department has 
consistently distinguished compacts with Statewide gaming market 
regulatory scheme from compacts which limit third party Tribes rights 
under IGRA. In both Michigan and Arizona, the States and the Tribes 
negotiated mutually beneficial agreements addressing the location and 
size of Tribal gaming as part of a Statewide scheme. These and similar 
compacts included Tribe-to-Tribe revenue sharing provisions to offset 
market disparities between urban and rural Tribes. These compacts are 
identical across the State or contain identical relevant provisions. 
The Department has consistently found

[[Page 74934]]

these types of agreements consistent with IGRA.\7\
---------------------------------------------------------------------------

    \7\ See, e.g., Letter from Ada Deer, Assistant Secretary--Indian 
Affairs to Jeff Parker, Chairperson, Bay Mills Indian Community 
dated November 19, 1993, approving the 1993 Michigan Compact; Letter 
from Bryan Newland, Principal Deputy Assistant Secretary--Indian 
Affairs, to Robert Miguel, Chairman Ak-Chin Indian Community, dated 
May 21, 2021, at 2, discussing the Tribe-to-Tribe revenue sharing 
and gaming device leasing provisions.
---------------------------------------------------------------------------

    These are contrasted by compacts which act to prevent a Tribe, who 
is not party to the compact or the broader Statewide scheme, from 
exercising its full rights to conduct gaming under IGRA, most notably 
in the form of geographic exclusivity from Tribal competition. The 
Department has consistently expressed concern with these types of 
arrangements, and in some cases disapproved compacts containing such 
provisions.\8\ The Department has not limited this provision to ``anti-
compete'' or ``geographic exclusivity from Tribal competition'' to 
permit the Secretary flexibility in evaluating other provisions which 
may also improperly limit a third-party Tribe's rights under IGRA.
---------------------------------------------------------------------------

    \8\ See, e.g., Letter from Gale Norton, Secretary of the 
Interior, to Cyrus Schindler, Nation President, Seneca Nation of 
Indians dated November 12, 2002, discussing the limits placed on 
Tonawanda Band and the Tuscarora Nation in the Seneca Nation's 
exclusivity provisions, and describing such provisions as ``anathema 
to the basic notion of fairness in competition and . . . 
inconsistent with the goals of IGRA''; Letter from Aurene Martin, 
Assistant Secretary--Indian Affairs (acting), to Harold ``Gus'' 
Frank, Chairman, Forest County Potawatomi Community, dated April 25, 
2003, addressing the parties removal of section XXXI.B which created 
a 50 mile `no fly zone' around the Tribe's Menominee Valley facility 
and explained ``we find a provision excluding other Indian gaming 
anathema to basic notions of fairness in competition and 
inconsistent with the goals of IGRA''; Letter from Aurene Martin, 
Assistant Secretary--Indian Affairs (acting), to Troy Swallow, 
President, Ho-Chunk Nation, dated August 15, 2003, addressing 
section XXVII(b), limiting the Governor's ability to concur in a 
two-part Secretarial Determination under section 20(b)(1)(A) of IGRA 
for another Tribe as ``repugnant to the spirit of IGRA''; Letter 
from Kevin Washburn, Assistant Secretary--Indian Affairs, to Harold 
Frank, Chairman, Forest County Potawatomi Community dated January 9, 
2013, disapproving an amendment which would have made the Menominee 
Tribe guarantee Potawatomi's Menominee Valley facility profits as a 
condition of the Governor's concurrence for Menominee's Kenosha two-
part Secretarial Determination, affirmed by Forest Cty. Potawatomi 
Cmty. v. United States, 330 F. Supp. 3d 269 (D.D.C. 2018). See also 
Letter from Bryan Newland, Assistant Secretary--Indian Affairs to 
Claudia Gonzales, Chairwoman, Picayune Rancheria of Chukchansi 
Indian of California, dated November 5, 2021, at 13.
---------------------------------------------------------------------------

    Commenters recommended the Department include examples of ``non-
gaming Tribal economic activities'' to clarify the Department's 
standard articulated in Sec.  293.24(b).
    The Department has included examples of non-gaming Tribal economic 
development in Sec.  293.24(c)(8).
Comments on Sec.  293.24--Which Has Been Renumbered as Sec.  293.25--
What factors will the Secretary analyze to determine if revenue sharing 
is lawful?
    The Department has renumbered the proposed Sec.  293.24 as Sec.  
293.25 and comments have been edited to reflect the new section number.
    A number of commenters responded to the Department's fifth 
consultation question: ``[s]hould the draft revisions include 
provisions that identify types of meaningful concessions that a Tribe 
may request from State, other than protection from State-licensed 
commercial gaming (i.e., exclusivity), for which a Tribe could make 
revenue-sharing payments? How would such provisions affect compact 
negotiations?'' Many commenters expressed support for including an 
illustrative list of potential concessions similar to the lists in 
Sec.  293.24. Commenters noted such a list would aid negotiating 
parties in identifying types of concessions a State may offer in 
exchange for revenue sharing. Commenters suggested examples could 
include: geographic exclusivity, Statewide mobile sports wagering, and 
a Governor's concurrence in a Secretarial Two-Part Determination under 
section 2719(b)(1)(A). Other commenters opposed including an 
illustrative list of potential concessions similar to the lists in 
Sec.  293.24. Those commenters noted States may improperly use such a 
list to demand revenue sharing while offering a concession of limited 
value to the Tribe. Commenters recommended the Department follow a 
case-by-case evaluation which provides negotiating parties flexibility.
    The Department acknowledges the comments and notes these comments 
highlight the sensitive nature of revenue sharing in compacts. The 
Department declines to include a list of meaningful concessions as both 
the concession and the revenue sharing rate must be evaluated on a 
case-by-case basis. The Department has approved revenue sharing in 
exchange for meaningful concessions including geographic exclusivity 
from State-licensed gaming and Statewide mobile or i-gaming 
exclusivity.\9\ The Department cautions parties not to negotiate for a 
future meaningful concession which may require intervening Federal or 
State actions as that concession may be considered illusory.
---------------------------------------------------------------------------

    \9\ See, e.g., Letter from Bryan Newland, Assistant Secretary--
Indian Affairs to the Honorable R. James Gessner, Jr., Chairman, 
Mohegan Tribe of Indians dated September 10, 2021, approving the 
Tribe's compact amendment with the State of Connecticut; and Letter 
from Bryan Newland, Assistant Secretary--Indian Affairs to the 
Honorable Rodney Butler, Chairman, Mashantucket Pequot Indian Tribe 
dated September 10, 2021, approving the Tribe's amendment to its 
Secretarial Procedures, as amended in agreement with the State of 
Connecticut.
---------------------------------------------------------------------------

    A number of commenters expressed support for the proposed Sec.  
293.25. Commenters noted the proposed Sec.  293.25 appeared to codify 
existing case law as well as the Department's articulation of the test 
for determining if revenue sharing is appropriately bargained for 
exchange or an improper tax. Commenters noted that some States seek to 
require--or heavily incentivize--intergovernmental agreements with 
political subdivisions of the State, such as a local government, 
requiring payments by the Tribe as a disguised tax. Commenters noted 
this will assist parties in compact negotiations by clearly 
articulating the Department's test for evaluating revenue sharing. 
Several commenters recommended the Department review revenue sharing 
provisions in compacts on a case-by-case basis with deference to a 
Tribe's sophisticated negotiations and cautioning against a 
paternalistic review.
    The Department acknowledges the comments and notes the proposed 
Sec.  293.25 codifies the Department's longstanding test for evaluating 
revenue sharing. The Department included payments to local governments 
in Sec. Sec.  293.4, 293.8, 293.25, and 293.28, in an effort to address 
mandated intergovernmental agreements which may disguise improper 
taxes.
    Several commenters requested the Department define ``meaningful 
concession'' and ``substantial economic benefit.'' Commenters proposed 
the Department define meaningful concession as: (1) something of value 
to the Tribe; (2) related to gaming; (3) which carries out the purposes 
for which the IGRA was enacted, and (4) which is not a proper subject 
of negotiation that the State already has an obligation to negotiate 
with the Tribe under IGRA.
    The Department accepted this comment. A new definition for 
``meaningful concession'' is adopted in Sec.  293.2, which reads as 
follows: a ``meaningful concession'' is: (1) something of value to the 
Tribe; (2) directly related to gaming; (3) something that carries out 
the purposes of IGRA, and (4) not a subject over which a State is 
otherwise obligated to negotiate under the IGRA.
    A new definition for ``substantial economic benefits'' is adopted 
in Sec.  293.2, which reads as follows: ``substantial economic 
benefits'' is: ``(1) a beneficial impact to the Tribe, (2) resulting 
from a meaningful concession,

[[Page 74935]]

(3) made with a Tribe's economic circumstances in mind, (4) spans the 
life of the compact, and (5) demonstrated by an economic/market 
analysis or other similar documentation submitted by a Tribe or a 
State.''
    Several commenters requested the Department include a requirement 
within Sec. Sec.  293.8 and 293.25 for the compacting Tribe to submit a 
market analysis to demonstrate that any revenue sharing arrangements 
will provide actual benefits to the Tribe which justify the payment 
amount.
    The Department acknowledges the comments. The Department has added 
the requested requirement to Sec. Sec.  293.8 and 293.25. Section 
293.8(e) is amended to require a Tribe or a State to submit a market 
analysis along with their compact when the compact contains revenue 
sharing provisions. Additionally, Sec.  293.25(b)(2) is amended to 
include ``the value of the specific meaningful concessions offered by 
the State provides substantial economic benefits to the Tribe in a 
manner justifying the revenue sharing required by the compact.''
    Several commenters requested the Department include IGRA's primary 
beneficiary test to the Department's revenue sharing analysis.
    The Department acknowledges the comments. The Department has added 
the requested requirement to Sec.  293.25 as a new Sec.  293.25(b)(3), 
which now requires evidence showing that the Tribe is the primary 
beneficiary of its conduct of gaming, if the parties adopt revenue 
sharing.
    A number of commenters described their varying experiences under 
differing revenue sharing arrangements. Some noted revenue sharing has 
become a necessary negotiation tactic to bring a reluctant State to the 
negotiation table after the Supreme Court's decision in Seminole. Some 
commenters discussed revenue sharing with local governments through 
intergovernmental agreements. Others noted that some particularly high 
revenue sharing rates based on gross revenue have resulted in the State 
receiving more revenue than the Tribe's portion of the net revenue. 
Commenters also discussed situations when States have either actively 
sought to undermine the Tribe's exclusivity--while not technically 
violating the compact--or refusing to enforce State law to protect the 
Tribe's exclusivity.
    The Department acknowledges these comments. The Department has long 
expressed concern with relatively high revenue sharing arrangements, 
often permitting compacts containing them to go into effect and 
occasionally disapproving them. The Department's understanding of 
revenue sharing provisions, as well as exclusivity provisions, has 
evolved consistent with case law and experiences of Tribes operating 
under differing revenue sharing provisions for more than 30 years. The 
Department has long offered, and will continue to offer, technical 
assistance--highlighting the Department's precedents as well as 
observed best practices--to parties negotiating revenue sharing 
provisions.
    A number of commenters questioned the Secretary's authority to 
review revenue sharing with ``great scrutiny'' or include a bad faith 
standard to evaluations of revenue sharing provisions. One commenter 
opined revenue sharing payments are an improper workaround for IGRA's 
prohibition on the assessment of a tax, fee, charge, or other 
assessment. Other commenters expressed concern with the proposed Sec.  
293.25 and cautioned the proposed provisions may cause unintended 
consequences including limiting a Tribe's options to contribute 
reasonable revenue share to a State to protect exclusivity or 
redistribute funds to non-gaming Tribes. One commenter opined the 
Department's past precedents on revenue sharing and exclusivity is 
suspect, citing the Department's decisions in New Mexico and New York 
and questioning the value of the exclusivity over the lives of those 
compacts.
    The Department acknowledges the comments. The proposed regulations 
codify the Department's longstanding test for determining when revenue 
sharing in a compact is a prohibited ``tax, fee, charge, or other 
assessment'' because it goes beyond what is permitted by guidance in 
relevant court decisions. The Department notes that its evaluation of 
revenue sharing has evolved to incorporate changes in case law 
including Rincon v. Schwarzenegger, 602 F.3d 1019 (9th Cir. 2010). The 
Department finds persuasive, but not binding, the language in Rincon 
where the Ninth Circuit explained that IGRA requires courts to consider 
a State's demand for taxation as evidence of bad faith, not conclusive 
proof (citing In re Indian Gaming Related Cases (Coyote Valley II), 331 
F.3d 1094, 1112-13 (9th Cir. 2003), which in turn cited section 
2710(d)(7)(B)(iii)(II)). The Department's great scrutiny standard is 
consistent with IGRA's prohibition on a State demanding a tax, fee, 
charge, or other assessment under section 2710(d)(4) and IGRA's 
instruction to the courts in section 2710(d)(7)(B)(iii)(II). The 
Department notes the Secretary expressed concerns with the exclusivity 
provisions in both the 2015 New Mexico deemed approval letters and the 
2002 Seneca Nation deemed approval letter but deferred to the judgment 
of the Tribes.\10\ As explained above, the Department has replaced the 
phrase ``evidence of bad faith'' with ``evidence of a violation of 
IGRA.''
---------------------------------------------------------------------------

    \10\ See Letter from Gale Norton, Secretary of the Interior, to 
Cyrus Schindler, Nation President, Seneca Nation of Indians dated 
November 12, 2002; see also Letter from Kevin Washburn, Assistant 
Secretary--Indian Affairs, to Ty Vicenti, President, Jicarilla 
Apache Nation, dated June 9, 2015.
---------------------------------------------------------------------------

    Several commenters suggest the Department expand the bad faith 
standard in Sec.  293.24(c). Some commenters requested the Department 
include a State's continued insistence that the Tribe accept the 
proposed ``meaningful concession'' in exchange for revenue sharing as 
evidence of bad faith. Commenters opined that the provision is 
consistent with the Ninth Circuit's analysis of the issue in Rincon 
Band v. Schwarzenegger, 602 F.3d 1019 (9th Cir. 2010). Other commenters 
requested the Department include a State's request for revenue sharing, 
or insistence on a specified rate paid by other Tribes, either in the 
State or in a neighboring State, or past rates that are no longer 
supported by the current market, as presumptive evidence of bad faith. 
Other commenters requested the Department include a State's disparate 
treatment of similarly situated Tribes in the State as presumptive 
evidence of bad faith.
    The Department declines to include additional examples as bad faith 
or adopt a ``presumptive bad faith'' standard. As explained above, the 
Department has replaced the phrase ``evidence of bad faith'' with 
``evidence of a violation of IGRA.'' The compact negotiation process in 
IGRA envisions a negotiation between two sovereigns, although the 
Department notes in some instances Tribes have successfully engaged in 
collective negotiations with the State. If a State makes an offer which 
the Tribe rejects, the Tribe may make a counteroffer. The IGRA provides 
that if a State does not negotiate, or does not negotiate in good 
faith, the remedial provisions of the statute permit a Tribe to bring 
an action in Federal district court. The Department will continue to 
coordinate with the Department of Justice and the National Indian 
Gaming Commission regarding enforcement of IGRA.
    Some commenters requested the Department revise Sec.  293.25 to 
require the Tribe to initiate revenue sharing negotiations and to tie 
the revenue sharing provision's specific payments to specific 
concessions. The proposed revised text would read: ``(1) the Tribe

[[Page 74936]]

requested and the State has offered specific meaningful concessions the 
State was otherwise not required to negotiate; and (2) the value of the 
specific meaningful concessions offered by the State provides 
substantial economic benefits to the Tribe in a manner justifying the 
revenue sharing required by the compact.''

    The Department accepts the requested revision as Sec.  
293.25(b)(1) and (2).
    One commenter requested the Department include a provision in 
Sec.  293.25 permitting the Tribe, during the life of the compact, 
to request technical assistance or a legal opinion if the meaningful 
concession continues to provide substantial economic benefits to the 
Tribe justifying continued revenue sharing payments and, if not, to 
what extent the revenue sharing payments should be adjusted to 
remain in compliance with IGRA.

    The Department declines to adopt the requested provision in Sec.  
293.25. The Department will continue to offer technical assistance to 
Tribes and States, including identification of best practices. The 
Department notes best practices include careful drafting of both the 
terms of the Tribe's exclusivity--or other meaningful concession--along 
with remedies for breach and triggers for periodic renegotiation of 
specific provisions.
    Several commenters requested the Department clarify that a State's 
obligation under IGRA to negotiate a compact is not a ``meaningful 
concession'' for the purposes of revenue sharing.
    The Department acknowledges the comments. Congress required Tribes 
and States to negotiate class III gaming compacts in good faith, 
provided a remedy if States refused to negotiate in good faith, limited 
the scope of bargaining for class III gaming compacts, and prohibited 
States from using the process to impose any tax, fee, charge or other 
assessment on Tribal gaming operations. 25 U.S.C. 2710(d).
    Several commenters noted the proposed Sec.  293.25, while helpful 
for most Tribes and States, is without a Seminole fix effectively a 
dead letter.
    The Department has addressed comments requesting a Seminole fix 
above under general comments. There the Department notes it has long 
coordinated with the Department of Justice and the National Indian 
Gaming Commission regarding enforcement of IGRA.
    Several commenters requested the Department clarify that the result 
of a ``bad faith'' determination under Sec.  293.25 would result in 
automatic disapproval of the compact or amendment.
    The Department declines to establish an automatic disapproval 
standard. As explained above, the Department has replaced the phrase 
``evidence of bad faith'' with ``evidence of a violation of IGRA.'' The 
Secretary's discretion to disapprove or take no action is discussed 
under Sec. Sec.  293.12, 293.15, and 293.16.
    One commenter noted that the proposed regulation at Sec.  293.25, 
when read in conjunction with Sec.  293.24, is ambiguous and needs to 
be clarified. The two proposed regulations, taken together, seem to 
imply that the ``meaningful concession exception'' is limited to a 
State's demand for a fee.
    The Department acknowledges the comments. The Department notes 
Sec.  293.24 addresses provisions which are considered ``directly 
related to gaming'' while Sec.  293.25 addresses revenue sharing. The 
Department also notes the recent decision by the Ninth Circuit in 
Chicken Ranch overturned the district court's application of the 
meaningful concession test to provisions which were tangentially 
related to gaming. The Department finds the Ninth Circuit's reasoning 
persuasive, but not binding, that meaningful concessions cannot make an 
out-of-scope topic proper under IGRA. Chicken Ranch Ranchera of Me-Wuk 
Indians v. California, 42 F.4th 1024 (9th Cir. 2022)
Comments on Sec.  293.25--Which Has Been Renumbered as Sec.  293.26--
May a compact or extension include provisions that limit the duration 
of the compact?
    The Department has renumbered the proposed Sec.  293.25 as Sec.  
293.26 comments have been edited to reflect the new section number.
    Several commenters expressed support for the proposed Sec.  293.26 
and explained compacts should be very long term or perpetual. 
Commenters noted the negotiation process can be lengthy and require a 
significant investment of resources.
    The Department acknowledges the comments.
    Several commenters expressed support for the inclusion of a bad 
faith standard in the proposed Sec.  293.26. Several commenters 
requested the Department add the word ``presumptive'' so the relevant 
sentence would read ``[a] refusal to negotiate a long-term compact, or 
a short-term extension to allow for negotiations to continue, is 
considered presumptive evidence of bad faith.''
    The Department acknowledges the comments but declines the requested 
revision. As explained above the Department has replaced the phrase 
``evidence of bad faith'' with ``evidence of a violation of IGRA.''
    One commenter requested the Department define ``long-term'' as at 
least 15-years, and ``short-term'' as at least one year.
    The Department declines the proposed definition of ``at least 15-
years'' for long term but has accepted the proposed definition of ``at 
least 1 year'' for short term.
    Several commenters requested the Department clarify that the 
existence of a compact with a Tribe does not negate a State's 
obligation to negotiate a new compact or an amended compact for the 
period after the current compact expires.
    The Department acknowledges the comments. The Department notes IGRA 
at 25 U.S.C. 2710(d)(3)(A) obligates a State to negotiate with a Tribe 
in good faith at the request of the Tribe. The existence of a compact 
does not absolve the State of its duty under IGRA.
Comments on Sec.  293.26--Which Has Been Renumbered as 293.27--May a 
compact or amendment permit a Tribe to engage in any form of class III 
gaming activity?
    The Department has renumbered the proposed Sec.  293.26 as 293.27 
comments have been edited to reflect the new section number.
    Several commenters expressed their support for this provision, 
noting that it will assist Tribes in negotiating scope of gaming 
provisions.
    The Department acknowledges the comments.
    A few commenters, while expressing support for the provision, 
stated that the provision was unclear as to its intent, and requested 
that the Department clarify that ``any'' means ``all.'' One commenter 
suggested the Department modify the second sentence to clarify the 
intent of the provision as follows: ``A State's refusal to negotiate a 
compact over all forms of class III gaming if it allows any form of 
class III gaming, is considered evidence of bad faith.'' While one 
commenter suggested the Department revise the second sentence to remove 
``not prohibited by the State.''
    The Department acknowledges the comments but declines the requested 
revisions. As explained above, the Department has replaced the phrase 
``evidence of bad faith'' with ``evidence of a violation of IGRA.'' The 
language used by the Department follows the authority granted by IGRA.
    One commenter noted that the term ``not prohibited'' has been the 
subject of much debate, interpretation, and litigation since IGRA was 
enacted and that a State, although its laws may

[[Page 74937]]

prohibit such gaming, the State allows it to occur through non-
enforcement. The commenter suggested that the Department revise the 
provision to make it clear that the mere existence of laws which state 
that class III gaming or a form of class III gaming is prohibited alone 
are not determinative of whether a State in fact prohibits class III 
gaming or a form of class III gaming, and that the Department will also 
examine the State's policies and practices regarding enforcement of 
laws that purport to prohibit class III gaming or a form of class III 
gaming in determining whether a State in fact prohibits such gaming.
    The Department acknowledges the comment but declines the requested 
revision. The language used by the Department follows the authority 
granted by IGRA.
    Many commenters, while expressing support for the provision, noted 
that courts have disagreed with this approach, particularly the Tenth 
Circuit, Ninth Circuit, and Eighth Circuit, where those courts adopted 
a narrower interpretation of the term ``permits such gaming,'' adopting 
the view that the phrase ``such gaming'' refers to specific types of 
class III games that a State permits. These commenters expressed 
concern that the provision is thus inconsistent with these more recent 
Federal court decisions and may lead to unnecessary litigation and 
cause some confusion and obstruction in future compact negotiations. 
One commenter questioned the language of Sec.  293.27, noting that 
there is a body of Federal case law regarding the distinction between 
``permitted'' and ``prohibited'' gaming activities. The commenter did 
not believe that Sec.  293.27 adds value to existing case law.
    The Department acknowledges these comments. The Department takes 
the position that the Second Circuit's decision in Mashantucket Pequot 
Tribe v. Connecticut, 913 F. 2d 1-24 (2d Cir. 1990) holding that 
Congress intended to codify the test set out in California v. Cabazon 
Band of Mission Indians, 480 U.S. 202 (1987) when it used the phrase 
``permits such gaming'' such that IGRA refers to class III gaming 
categorically is correct. Under the Secretary's delegated authority to 
interpret and promulgate rules for IGRA, the Department finds that if a 
State allows any form of class III gaming, it is regulating all forms 
of class III gaming, which are a subject for good faith negotiations.
    One commenter stated that Sec.  293.27 appears to take a broader 
approach in scope of class III games and that it was unclear whether as 
currently drafted if Sec.  293.27 speaks in class III games regulated 
by the State and not prohibited in the State and how provisions 
regarding Statewide remote wagering or internet wagering would be 
addressed under this provision.
    The Department acknowledges this comment. Sec.  293.27 provides 
that if a State allows any form of class III gaming, the State is 
regulating all forms of class III gaming, which are permitted under 
IGRA and thus a subject for good faith negotiations. In response to 
comments received during consultation the Department has added a new 
proposed section addressing i-gaming, Sec.  293.29.
    Several commenters suggested that a State's refusal to allow all 
forms of class III gaming as allowed under a State's constitution or 
other laws should be considered presumptive evidence of bad faith.
    The Department acknowledges these comments but declines to make 
this revision. IGRA does not permit a presumptive determination of bad 
faith. Additionally, as explained above the Department has replaced the 
phrase ``evidence of bad faith'' with ``evidence of a violation of 
IGRA.''
Comments on Sec.  293.27--Which Has Been Renumbered as Sec.  293.28--
May any other contract outside of a compact regulate Indian gaming?
    The Department has renumbered the proposed Sec.  293.27 as Sec.  
293.28 and comments have been edited to reflect the new section number.
    Several commenters expressed support for the proposed Sec.  293.28.
    The Department acknowledges the comments.
    Several commenters expressed concern with proposed Sec.  293.28. 
Commenters stated that the provisions requiring Tribes to submit all 
the agreements encompassed under Sec.  293.28 and Sec.  293.4(b) are 
overly broad and should be revised to ensure they do not impact 
existing jurisdiction agreements, in lieu tax agreements, mutual aid 
agreements for law enforcement, health and safety agreements, alcohol 
regulation agreements, utility agreements, necessary roadway 
improvements, lending agreements, vendor agreements, and 
intergovernmental agreements with units of local governments. 
Commenters assert that the breadth of Sec.  293.28 would create doubt 
over the validity of many existing jurisdiction agreements, undermine 
Tribal sovereignty, and interfere with the Tribes' ability to negotiate 
necessary local agreements according to what the Tribe believes is in 
its best interest based on its circumstances and experience.
    Other commenters stated that the proposed new requirement for the 
Secretary to approve any ``Agreements which include provisions for the 
payment from a Tribe's gaming revenue . . . .'' is unnecessary and will 
result in the submission of an ``exponential'' number of agreements to 
the Office of Indian Gaming causing unnecessary delay and creating new 
roadblocks to a Tribe's economic development efforts. Moreover, 
offering a vague declination type remedy, with no time limit on agency 
action and no deemed approval mechanism will create further unnecessary 
delay. Further, IGRA at 25 U.S.C. 2710(d)(3) specifies ``compacts'' 
that are executed between Tribes and States under Federal and 
applicable State law, not counties or other political subdivisions of 
the State.
    The Department accepted the comments, in part. Section 293.28 is 
modified to indicate that only agreements between Tribes and States, or 
States' political subdivisions, which govern gaming and include 
payments from gaming revenue, are covered by this section. Agreements 
that do not regulate gaming need not be submitted to the Department for 
approval as part of a Tribal-State gaming compact. Likewise, agreements 
between Tribes and the State and/or local governments that facilitate 
cooperation and good governance, but that do not regulate gaming, 
should not be incorporated into or referenced as a requirement of a 
Tribal-State gaming compact. Additionally, the Department has revised 
Sec.  293.4(b) to require the Department to issue a determination 
whether a submitted document is a compact or amendment within 60 days 
of it being received and date stamped by the Office of Indian Gaming.
    Several commenters requested the Department revise Sec.  293.28 to 
permit rather than require a Tribe to submit the targeted documents and 
narrow which documents are targeted. Commenters explained the proposed 
revisions to Sec.  293.28 would ensure that compacts and amendments do 
not include provisions that are not directly related to the operation 
of a Tribe's class III gaming operation. Commenters stated Tribes 
should have the option to request the Department's review and approval 
of other agreements, mandated or required by a compact or amendment, 
that do not exceed the scope permitted under IGRA.
    The Department accepted the requested revisions. The Department 
revised Sec.  293.28 to reflect the section only covers agreements 
between a Tribe and a State or the State's political subdivisions, 
which regulates the

[[Page 74938]]

Tribe's right to conduct gaming or includes payments from the Tribe's 
gaming revenue. The Department has also revised Sec.  293.4 as 
discussed above. Agreements between a Tribe and the State and/or local 
governments that facilitate cooperation and good governance, but that 
do not regulate gaming or include payments from gaming revenue, should 
not be incorporated into, or referenced as a requirement of, a Tribal-
State gaming compact.
    Several commenters requested the Department revise proposed Sec.  
293.28, to exclude lending/loan agreements. The commenter argued the 
proposed language in Sec.  293.28 would require Tribes to send lending 
agreements (loan documents) for Department review and approval under 
IGRA because it is not uncommon for lending agreements to require a 
Tribe hold gaming revenue in accounts for collateral or similar 
purposes. Commenters questioned if the Department intends to review 
financial documentation and lending agreements between Tribes and 
third-party lenders, which are subject to the National Indian Gaming 
Commission's review to determine if the agreement constitutes a 
management contract. Commenters opined subjecting lending agreements to 
review by the Department and the National Indian Gaming Commission 
would be extremely burdensome.
    The Department accepted the requested revisions. The Department 
revised Sec.  293.28 to reflect the section only covers agreements 
between a Tribe and a State or the State's political subdivisions, 
which regulates the Tribe's right to conduct gaming or includes 
payments from the Tribe's gaming revenue. Third-party agreements, such 
as lending documents and regular course of business agreements need not 
be submitted to the Department for approval as part of a Tribal-State 
gaming compact.
    Several commenters questioned the Secretary's authority to review 
all documents included in the proposed Sec.  293.28. Commenters 
explained section 2710(d)(3) of IGRA specifies that compacts are 
executed between Tribes and States under Federal and applicable State 
law, not counties or other political subdivisions of the State. 
Commenters explained this provision would arguably require submission 
of a vast number of agreements between Tribes and State and local 
governments. Commenters asserted that the use of gaming revenue is 
governed by 25 U.S.C. 2710(b)(2)(B) and many compacts and gaming 
ordinances have similar requirements. Commenters argued policing non-
compact agreements, which call for payment from gaming revenue, is far 
afield of the Secretary's limited authority to approve or disapprove a 
compact.
    The Department acknowledges the comments. IGRA directs that the 
Secretary review and either approve or disapprove compacts within a 45-
day review period. In enacting IGRA, Congress delegated authority to 
the Secretary to review compacts to ensure that they comply with IGRA, 
other provisions of Federal law that do not relate to jurisdiction over 
gaming on Indian lands, and the trust obligations of the United States. 
25 U.S.C. 2710(d)(8)(B)(i)-(iii). IGRA establishes a limited scope of 
appropriate topics in a Tribal-State gaming compact. Thus, in reviewing 
submitted compacts and amendments, the Secretary is vested the 
authority to determine whether the compacts contain topics outside 
IGRA's limited scope. IGRA limits a Tribe's use of gaming revenue to: 
funding Tribal governmental operations or programs; providing for the 
general welfare of the Tribe and its members; promoting Tribal economic 
development; donating to charitable organizations; or help fund 
operations of local governmental agencies. 25 U.S.C. 2710(b)(2)(B). 
However, IGRA in section 2710(d)(4) prohibits the State or its 
political subdivisions from imposing a tax, fee, charge, or other 
assessment. The Department reads section 2710(b)(2)(B) to permit a 
Tribe to voluntarily help fund operations of local governmental 
agencies, not as an end-run around the prohibition against imposed 
taxes, fees, charges, or other assessments in section 2710(d)(4). 
Section 293.25 includes a discussion of the Department's interpretation 
of IGRA's prohibition against the imposition of a tax, fee, charge, or 
other assessment.
Comments on Sec.  293.28--Which Has Been Renumbered as Sec.  293.31--
How does the Paperwork Reduction Act affect this part?
    The Department has renumbered the proposed Sec.  293.28 as Sec.  
293.31 comments have been edited to reflect the new section number.
    Several commenters expressed support for the proposed Sec.  293.31.
    The Department acknowledges the comments and notes the proposed 
Sec.  293.31 is the renumbered but unrevised Sec.  293.16 in the 
Department's 2008 Regulations.

V. Summary of Changes by Section

    The Department proposes to provide primarily technical amendments 
to the existing process-based regulations, including the title. The 
proposed technical amendments are intended to clarify the process and 
contain edits for internal consistency and improved readability. The 
Department also proposes to add 15 sections addressing substantive 
issues and organize part 293 into 4 subparts. The Department proposes 
to amend the title to part 293 by removing the word ``process'' from 
the title. The proposed amended title would be ``part 293 Class III 
Tribal State Gaming Compacts.'' The Proposed Amendments incorporate 
comments received during Tribal consultation on the Consultation Draft 
and discussed above in the Tribal Consultation section.

A. Proposed Subpart A--General Provisions and Scope

    The Proposed Subpart A, titled ``General Provisions and Scope'' 
would contain Sec. Sec.  293.1 through 293.5.
Proposed Amendments to Sec.  293.1--What is the purpose of the part?
    The Department proposes technical amendments to clarify that the 
proposed part 293 Regulations contain both procedural and substantive 
regulations.
Proposed Amendments to Sec.  293.2--How are key terms defined in this 
part?
    The Proposed Amendment restructures the existing Sec.  293.2 by 
removing the paragraph for the introductory sentence and editing that 
sentence for clarity. The proposed restructuring improves clarity by 
using the paragraphs for each defined term. The existing definitions 
for Amendment, Compact or Tribal-State Gaming Compact, and Extension 
reflect proposed edits to improve clarity and respond to comments 
received during consultation. The Proposed Amendments includes seven 
new definitions: gaming activity or gaming activities, gaming facility, 
gaming spaces, IGRA, meaningful concession, substantial economic 
benefit, and Tribe.
     Gaming activity or gaming activities are interchangeable 
terms repeatedly used in IGRA but not defined by IGRA. Therefore, the 
Department proposes to define these terms as used in part 293 and in 
Tribal-State gaming compacts as ``the conduct of class III gaming 
involving the three required elements of chance, consideration, and 
prize.''
     Gaming Facility is a term used in IGRA at 25 U.S.C. 
2710(d)(3)(C)(vi), but is not defined by IGRA. IGRA permits a compact 
to include ``standards for the operation of such activity and 
maintenance of the gaming facility, including licensing.'' As a result, 
compacting parties have on occasion used this provision to extend State 
regulatory standards beyond the

[[Page 74939]]

maintenance and licensing of the physical structure where the Tribe is 
conducting gaming. The definition of gaming facility addresses building 
maintenance and licensing under the second clause of 25 U.S.C. 
2710(d)(3)(C)(vi) and is intended to be narrowly applied to only the 
building or structure where the gaming activity occurs. Therefore, the 
Department proposes to define gaming facility as ``the physical 
building or structure where the gaming activity occurs.'' \11\
---------------------------------------------------------------------------

    \11\ See, e.g. Letter to the Honorable Peter S. Yucupicio, 
Chairman, Pascua Yaqui Tribe of Arizona, from the Director, Office 
of Indian Gaming, dated June 15, 2012, at 5, and fn. 9, discussing 
the American Recovery & Reinvestment Act of 2009 and the IRS's 
``safe harbor'' language.
---------------------------------------------------------------------------

     Gaming spaces is a term the Department has used to clarify 
the physical spaces a compact may regulate. The Department proposed to 
define Gaming Spaces as ``the areas within a Gaming Facility that are 
directly related to and necessary for the conduct of class III gaming 
such as: the casino floor; vault; count room; surveillance, management, 
and information technology areas; class III gaming device and supplies 
storage areas; and other secured areas. where the operation or 
management of class III gaming takes place, including the casino floor, 
vault, count, surveillance, management, information technology, class 
III gaming device, and supplies storage areas.''
     IGRA is the commonly used acronym for the Indian Gaming 
Regulatory Act of 1988 (Pub. L. 100-497) 102 Stat. 2467 dated October 
17, 1988, (Codified at 25 U.S.C. 2701-2721 (1988)) and any amendments. 
The Department proposes to include IGRA as a defined term to facilitate 
consistency and readability in the regulations.
     Meaningful concession is a term the Department has adopted 
from Ninth Circuit caselaw as part of the Department's long-standing 
test for revenue sharing provisions. The Department proposes to define 
meaningful concession as: ``something of value to the Tribe; directly 
related to gaming; something that carries out the purposes of IGRA; and 
not a subject over which a State is otherwise obligated to negotiate 
under IGRA.''
     Substantial economic benefit is a term the Department has 
adopted from Ninth Circuit caselaw as part of the Department's long-
standing test for revenue sharing provisions. The Department proposes 
to define substantial economic benefit as: a beneficial impact to the 
Tribe; resulting from a meaningful concession; made with a Tribe's 
economic circumstances in mind; spans the life of the compact; and 
demonstrated by an economic/market analysis or similar documentation 
submitted by the Tribe or the State.
     Tribe--the Department is proposing to include Tribe as a 
defined term to facilitate consistency and readability in the 
regulations.
Proposed Amendments to Sec.  293.3--What authority does the Secretary 
have to approve or disapprove compacts and amendments?
    The Proposed Amendment contains a conforming edit to existing Sec.  
293.3.
Proposed Amendments to Sec.  293.4--Are compacts and amendments subject 
to review and approval?
    The Proposed Amendments contains clarifying edits combining 
paragraphs (a) and (b) from the 2008 Regulations into a new paragraph 
(a); a new paragraph (b) which was proposed during Tribal consolation, 
and a new paragraph (c) which creates a process by which the Parties 
may seek a determination if an agreement or other documentation is a 
``compact or amendment'' without submitting that agreement for review 
and approval pursuant to IGRA. These proposed changes clarify that any 
document between a Tribe and the State or its political subdivisions 
which establish, change, or interpret the terms of a Tribe's compact or 
amendment regardless of whether they are substantive or technical, must 
be submitted for review and approval by the Secretary. The Department 
is concerned that compacting parties have read the existing definition 
of Compact in Sec.  293.2(b)(2) and the existing Sec.  293.4, narrowly 
to exclude from Secretarial review a range of agreements or other 
documents which often impact the parties understanding and application 
of the terms of their compact, or payments made by a Tribe from gaming 
revenue. The Department is proposing a new paragraph (b) to clarify the 
scope of documents that may be considered an amendment and a new 
paragraph (c) to allow parties to seek a determination from the 
Department that their agreement is or is not a compact. This process is 
modeled on the National Indian Gaming Commission's practice of issuing 
declination letters for agreements which do not trigger NIGC's review 
and approval of management contracts as required by IGRA at 25 U.S.C. 
2711.
Proposed Amendments to Sec.  293.5--Are extensions to compacts subject 
to review and approval?
    The Proposed Amendments contain clarifying edits for consistency 
and readability. Additionally, the Department is proposing to add a 
sentence which codifies the Department's long-standing practice that an 
extension must be published in the Federal Register to be in 
effect.\12\
---------------------------------------------------------------------------

    \12\ See, e.g. Notice of Final Rulemaking Part 293, 73 FR 74004, 
74007 (Dec. 5, 2008).
---------------------------------------------------------------------------

B. Proposed Subpart B--Submission of Tribal-State Gaming Compacts

    The Proposed Subpart B, titled ``Submission of Tribal-State Gaming 
Compacts'' would contain Sec. Sec.  293.6 through 293.9.
Proposed Amendments to Sec.  293.6--Who can submit a compact or 
amendment?
    The Proposed Amendments contains conforming edits for consistency 
to Sec.  293.6.
Proposed Amendments to Sec.  293.7--When should the Indian Tribe or 
State submit a compact or amendment for review and approval?
    The Proposed Amendments contains conforming edits for consistency 
to both the heading and the body of Sec.  293.7.
Proposed Amendments to Sec.  293.8--What documents must be submitted 
with a compact or amendment?
    The Proposed Amendments contains conforming edits for consistency 
to Sec.  293.8. Additionally, the Department is proposing to renumber 
the existing paragraphs and add a new paragraph (d). The proposed 
paragraph (d) would clarify that compact submission package should 
include any agreements between the Tribe and the State or its political 
subdivisions which are required by the compact or amendment and either 
involve payments made by the Tribe from gaming revenue, or restricts or 
regulates the Tribe's use and enjoyment of its Indian lands, as well as 
any ancillary agreements, documents, ordinances, or laws required by 
the compact which the Tribe determines is relevant to the Secretary's 
review. The Department's review of the compact includes analyzing if 
the provision(s) requiring ancillary agreements, documents, ordinances, 
or laws violate IGRA or other Federal law because the underlying 
agreement includes provisions prohibited by IGRA, and therefore the 
Secretary may disapprove the compact.

[[Page 74940]]

Proposed Amendments to Sec.  293.9--Where should a compact or amendment 
be submitted for review and approval?
    The Proposed Amendments contains conforming edits for consistency 
and proposed new sentence to permit electronic submission of compacts. 
The Office of Indian Gaming will accept and date stamp electronic 
submissions for the purpose of initiating the 45-day review period. The 
first copy of a compact or amendment that is received and date stamped 
initiates the 45-day review period.

C. Proposed Subpart C--Secretarial Review of Tribal-State Gaming 
Compacts

    The Proposed Subpart C, titled ``Secretarial Review of Tribal-State 
Gaming Compacts'' would contain Sec. Sec.  293.10 through 293.16. The 
Proposed Amendments include renumbering the existing Sec.  293.14 When 
may the Secretary disapprove a compact or amendment? as Sec.  293.16. 
Renumbering and renaming the existing Sec.  293.15 When does an 
approved or considered-to-have-been-approved compact or amendment take 
effect? as Sec.  293.14 When does a compact or amendment take effect? 
And adding a new Sec.  293.15 Is the Secretary required to disapprove a 
compact or amendment that violates IGRA?
Proposed Amendments to Sec.  293.10--How long will the Secretary take 
to review a compact or amendment?
    The Proposed Amendments contains conforming edits for consistency 
to Sec.  293.10.
Proposed Amendments to Sec.  293.11--When will the 45-day timeline 
begin?
    The Proposed Amendments contains conforming edits to Sec.  293.11 
for consistency with proposed changes to Sec.  293.9, and a new 
sentence providing the Department will send an email confirming receipt 
of electronically submitted compacts or amendments including when the 
Secretary's 45-day review period ends.
Proposed Amendments to Sec.  293.12--What happens if the Secretary does 
not act on the compact or amendment within the 45-day review period?
    The Proposed Amendments contain clarifying edits for consistency 
and readability. Additionally, the Department proposes to include a new 
provision codifying the Department's practice of issuing letters 
informing the parties that the compact or amendment has been approved 
by operation of law after the 45th day. The letter may include guidance 
to the parties identifying certain provisions that are inconsistent 
with the Department's interpretation of IGRA--also known as Deemed 
Approval Letters.
Proposed Amendments to Sec.  293.13--Who can withdraw a compact or 
amendment after it has been received by the Secretary?
    The Proposed Amendments contains conforming edits for consistency 
to Sec.  293.13.
Proposed Amendments to Sec.  293.14--When does a compact or amendment 
that is affirmatively approved or approved by operation of law take 
effect?
    The Proposed Amendments renumber the existing Sec.  293.15 as Sec.  
293.14 to improve overall organization of the regulations. The Proposed 
Amendments contain clarifying edits for consistency and readability to 
both the heading and the body of Sec.  293.14.
Proposed Sec.  293.15--Is the Secretary required to disapprove a 
compact or amendment that violates IGRA?
    The Proposed Amendments contain a new Sec.  293.15, which clarifies 
IGRA's limits on the Secretary's authority to review compacts. 
Congress, through IGRA at 25 U.S.C. 2710 (d)(8), provided the Secretary 
with time-limited authority to review a compact and discretionary 
disapproval authority. Within this limited time period, the Secretary 
may approve or disapprove a compact. IGRA further directs that if the 
Secretary does not approve or disapprove a compact within IGRA's 
limited time frame for review, then the compact shall be considered to 
have been approved by the Secretary, but only to the extent the compact 
is consistent with the provisions of IGRA. 25 U.S.C. 2710(d)(8)(C). The 
Department notes that one Circuit has held that the Secretary must 
disapprove a compact if it violates any of the three limitations in 
IGRA and may not approve the compact by operation of law. Amador County 
v. Salazar, 640 F.3d 373, 381 (DC Cir. 2011). The Department, however, 
strongly disagrees with the court's holding, finding that it conflicts 
with and negates a specific provision of IGRA.
Proposed Sec.  293.16--When may the Secretary disapprove a compact or 
amendment?
    The Proposed Amendments renumber and restructure the existing Sec.  
293.14 as Sec.  293.16 to improve overall organization of the 
regulations. Additionally, the Department proposes to renumber the 
existing paragraphs and add a new paragraph (b). The proposed paragraph 
(b) would clarify that if a compact submission package is missing the 
documents required by Sec.  293.8 and the parties decline to cure the 
deficiency, the Department will presume that the compact or amendment 
violates IGRA.

D. Proposed Subpart D--Scope of Tribal-State Gaming Compacts

    The Proposed Subpart D, titled ``Scope of Tribal-State Gaming 
Compacts'' would contain Sec. Sec.  293.17 through 293.31. The Proposed 
Amendments include substantive provisions addressing the appropriate 
scope of a compact under IGRA. These provisions continue the question-
and-answer approach utilized in the existing regulations. These 
provisions codify existing Departmental practice and provide compacting 
parties clear guidance on the appropriate scope of compact 
negotiations.
Proposed Sec.  293.17--May a compact include provisions addressing the 
application of the Tribe's or State's criminal and civil laws and 
regulations?
    The Proposed Amendments contains a new Sec.  293.17 clarifying the 
appropriate scope of terms addressing the application of the criminal 
and civil laws and regulations in a compact. Congress through IGRA at 
25 U.S.C. 2710(d)(3)(C)(i) provided that a compact may include 
provisions addressing the application of criminal and civil laws and 
regulations of the Tribe or the State that are directly related to, and 
necessary for, the licensing and regulation of the gaming activity.
Proposed Sec.  293.18--May a compact include provisions addressing the 
allocation of criminal and civil jurisdiction between the State and the 
Tribe?
    The Proposed Amendments contains a new Sec.  293.18 clarifying the 
appropriate scope of terms addressing the allocation of criminal and 
civil jurisdiction in a compact. Congress through IGRA at 25 U.S.C. 
2701(5) found that ``[T]ribes have the exclusive right to regulate 
gaming activity on Indian lands if the gaming activity is not 
specifically prohibited by Federal law and is conducted within a State 
which does not, as a matter of criminal law and public policy, prohibit 
such gaming activity.'' Congress then provided that a compact may 
include provisions addressing the allocation of criminal and civil 
jurisdiction between the Tribe and the State necessary for enforcement 
of the laws and regulations described in section 2710(d)(3)(C)(i). See 
IGRA at 25 U.S.C. 2710(d)(3)(C)(ii).

[[Page 74941]]

Proposed Sec.  293.19--May a compact include provisions addressing the 
State's costs for regulating gaming activities?
    The Proposed Amendments contains a new Sec.  293.19 clarifying the 
appropriate scope of assessments by the State to defray the costs of 
regulating the Tribe's gaming activity. Congress through IGRA at 25 
U.S.C. 2710(d)(3)(C)(iii) provided that a compact may include 
provisions relating to the assessment by the State of the gaming 
activity in amounts necessary to defray the costs of regulating the 
gaming activity. Congress through IGRA at 25 U.S.C. 2710(d)(4) 
clarified any assessments must be negotiated and at no point may a 
State or its political subdivisions impose any taxes, fees, charges, or 
other assessments upon a Tribe through the compact negotiations. The 
Proposed Amendments further clarify that the compact should include 
requirements for the State to show actual and reasonable expenses over 
the life of the compact and the absence of such provisions is 
considered evidence of a violation of IGRA.
Proposed Sec.  293.20--May a compact include provisions addressing the 
Tribe's taxation of gaming?
    The Proposed Amendments contains a new Sec.  293.20 clarifying the 
appropriate scope of provisions addressing a Tribe's taxation of 
tribally licensed gaming activity. Congress through IGRA at 25 U.S.C. 
2710(d)(3)(C)(iv) provided that a compact may include provisions 
relating to the Tribe's taxation of gaming activities in amounts 
comparable to the State's taxation of gambling. A Tribal-State gaming 
compact may not be used to address the Tribe's taxation of other 
activities that may occur within or near the Tribe's gaming facility. 
The inclusion of provisions addressing the Tribe's taxation of other 
activities is considered evidence of a violation of IGRA.
Proposed Sec.  293.21--May a compact or amendment include provisions 
addressing the resolution of disputes for breach of the compact?
    The Proposed Amendments contains a new Sec.  293.21 clarifying the 
appropriate scope of provisions addressing remedies for breach of the 
compact. Congress through IGRA at 25 U.S.C. 2710(d)(3)(C)(v) provided 
that a compact may include provisions relating to remedies for breach 
of contract. Compacts often include alternative dispute resolution 
including binding arbitration as part of the parties' remedies for 
allegations of breach of contract. Despite the Department's existing 
regulations clarifying that compacts and all amendments are subject to 
Secretarial review, some compacting parties have resolved disputes in 
manners which seek to avoid Secretarial review. Therefore, the 
Department proposes Sec.  293.21 to clarify that any dispute resolution 
agreement, arbitration award, settlement agreement, or other resolution 
of a dispute outside of Federal court must be submitted for review and 
approval by the Secretary. Further, the proposed Sec.  293.21 
references the Sec.  293.4 determination process for review prior to 
formal submission of a dispute resolution agreement as an amendment. 
The inclusion of provisions addressing dispute resolution in a manner 
that seeks to avoid the Secretary's review is considered evidence of a 
violation of IGRA.
Proposed Sec.  293.22--May a compact or amendment include provisions 
addressing standards for the operation of gaming activity and 
maintenance of the gaming facility?
    The Proposed Amendments contains a new Sec.  293.22 clarifying the 
appropriate scope of provisions addressing the Tribe's standards for 
the operation of the gaming activity as well as the Tribe's standards 
for the maintenance of the gaming facility, including licensing in a 
compact. Congress through IGRA at 25 U.S.C. 2710(d)(3)(C)(vi) provided 
that a compact may include provisions relating to standards for the 
operation of such activity and maintenance of the gaming facility, 
including licensing. The Department interprets 2710(d)(3)(C)(vi) 
narrowly as two separate clauses addressing separate Tribal and State 
interests. First, a compact may include provisions addressing the 
standards for the operation and licensing of the gaming activity. 
Second, a compact may include provisions addressing the maintenance and 
licensing of the gaming facility building or structure. The Proposed 
Amendments in Sec.  293.2 includes definitions of both gaming facility 
and gaming spaces to provide parties with clarity regarding the 
appropriate limits of State oversite under IGRA. Any compact provisions 
addressing the maintenance and licensing of a building or structure 
must be limited to the building or structure where the gaming activity 
occurs--the gaming facility. Further, if a compact or amendment mandate 
that the Tribe adopt standards equivalent or comparable to the 
standards set forth in a State law or regulation, the parties must show 
that these mandated Tribal standards are both directly related to and 
necessary for, the licensing and regulation of the gaming activity.
Proposed Sec.  293.23--May a compact or amendment include provisions 
that are directly related to the operation of gaming activities?
    The Proposed Amendments contains a new Sec.  293.23 clarifying a 
compact may include provisions that are directly related to the 
operation of gaming activities. Congress through IGRA at 25 U.S.C. 
2710(d)(3)(C)(vii) provided that a compact may include provisions 
relating to any other subjects that are directly related to the 
operation of gaming activities. The Proposed Amendments in Sec.  293.24 
codify the Department's longstanding narrow interpretation of section 
2710(d)(3)(C)(vi).
Proposed Sec.  293.24--What factors will be used to determine whether 
provisions in a compact or amendment are directly related to the 
operation of gaming activities?
    The Proposed Amendments contains a new Sec.  293.24 which codifies 
existing case law and the Department's longstanding narrow 
interpretation of section 2710(d)(3)(C)(vi) as requiring a ``direct 
connection.'' The Department notes the Ninth Circuit in Chicken Ranch 
found the Department's longstanding direct connection test persuasive 
and consistent with the court's own independent analysis of IGRA and 
case law. The proposed Sec.  293.24 provides compacting parties with 
examples of provisions which have a direct connection to the Tribe's 
conduct of class III gaming activities as well as examples the 
Department has found do not satisfy the direct connection test.
Proposed Sec.  293.25--What factors will the Secretary analyze to 
determine if revenue sharing is lawful?
    The Proposed Amendments contains a new Sec.  293.25 which clarifies 
the appropriate scope of provisions addressing revenue sharing. 
Congress, through IGRA at 25 U.C.S. 2710 (d)(4), prohibited States from 
seeking to impose any tax, fee, charge, or other assessment upon an 
Indian Tribe or upon any other person or entity authorized by an Indian 
Tribe to engage in a class III activity. The Proposed Amendments 
codifies the Department's longstanding rebuttable presumption that any 
revenue sharing provisions are a prohibited tax, fee, charge, or other 
assessment. The Proposed Amendments

[[Page 74942]]

also contains the Department's test to rebut that presumption.
Proposed Sec.  293.26--May a compact or extension include provisions 
that limit the duration of the compact?
    The Proposed Amendments contains a new Sec.  293.26 which addresses 
the appropriate duration of a compact. The Department and IGRA 
anticipate that compacts are long-term agreements between a Tribe and a 
State that reflect carefully negotiated compromises between sovereigns.
Proposed Sec.  293.27--May a compact permit a Tribe to engage in any 
form of class III gaming activity?
    The Proposed Amendments contains a new Sec.  293.27, which 
clarifies the appropriate scope of class III gaming that a State 
permits. Congress, through IGRA at 25 U.C.S. 2710(d)(1)(B), requires 
that a Tribe seeking to conduct class III gaming be located in a State 
that permits such gaming for any purpose by any person, organization, 
or entity.
    The Department takes the position that the Second Circuit's 
decision in Mashantucket Pequot Tribe v. Connecticut, 913 F. 2d 1-24 
(2d Cir. 1990) holding that Congress intended to codify the test set 
out in California v. Cabazon Band of Mission Indians, 480 U.S. 202 
(1987) when it used the phrase ``permits such gaming'' such that IGRA 
refers to class III gaming categorically is correct. Under the 
Secretary's delegated authority to interpret and promulgate rules for 
IGRA, the Department finds that if a State allows any form of class III 
gaming, it is regulating all forms of class III gaming, which are a 
subject for good faith negotiations.
Proposed Sec.  293.28--May any other contract outside of a compact 
regulate Indian gaming?
    The Proposed Amendments contains a new Sec.  293.28 which clarifies 
that any agreement between a Tribe and a State or its political 
subdivisions which seeks to regulate a Tribe's right to conduct 
gaming--as limited by IGRA--is a gaming compact that must comply with 
IGRA and be submitted for review and approval by the Secretary.
Proposed Sec.  293.29--May a compact or amendment include provisions 
addressing Statewide remote wagering or internet gaming?
    The Proposed Amendments contains a new Sec.  293.29, which 
clarifies a compact may include provisions allocating jurisdiction to 
address Statewide remote wagering or internet gaming. The IGRA provides 
that a Tribe and State may negotiate for ``the application of the 
criminal and civil laws and regulations of the Indian Tribe or the 
State that are directly related to, and necessary for, the licensing 
and regulation of such activity'' and ``the allocation of criminal and 
civil jurisdiction between the State and the Indian Tribe necessary for 
the enforcement of such laws and regulations.'' 25 U.S.C. 
2710(d)(3)(c)(i)-(ii). The Department's position is that the 
negotiation between a Tribe and State over Statewide remote wagering or 
i-gaming falls under these broad categories of criminal and civil 
jurisdiction. Accordingly, provided that a player is not physically 
located on another Tribe's Indian lands, a Tribe should have the 
opportunity to engage in this type of gaming pursuant to a Tribal-State 
gaming compact. The Department notes the ultimate legality of gaming 
activity outside Indian lands remains a question of State law, 
notwithstanding that a compact discusses the activity. However, 
Congress in enacting IGRA did not contemplate the Department would 
address or resolved complex issues of State law during the 45-day 
review period.\13\ Further, non-IGRA Federal law may also place 
restrictions on that activity.
---------------------------------------------------------------------------

    \13\ See, e.g., Pueblo of Santa Ana v. Kelly, 104 F.3d 1546, 
1556 (10th Cir. 1997).
---------------------------------------------------------------------------

Proposed Sec.  293.30--What effect does this part have on pending 
requests, final agency decisions already issued, and future requests?
    The Proposed Amendments contains a new Sec.  293.30 which clarifies 
the proposed regulations are prospective and the effective date of the 
proposed regulations.
Proposed Sec.  293.31--How does the Paperwork Reduction Act affect this 
part?
    The Proposed Amendments renumbers existing Sec.  293.16 as Sec.  
293.31 to improve overall organization of the regulations.

VI. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs in the Office of Management and Budget will review 
all significant rules. The Office of Information and Regulatory Affairs 
has determined that this rule is not significant. Executive Order 13563 
reaffirms the principles of E.O. 12866 while calling for improvements 
in the nation's regulatory system to promote predictability, to reduce 
uncertainty, and to use the best, most innovative, and least burdensome 
tools for achieving regulatory ends. The executive order directs 
agencies to consider regulatory approaches that reduce burdens and 
maintain flexibility and freedom of choice for the public where these 
approaches are relevant, feasible, and consistent with regulatory 
objectives. E.O. 13563 emphasizes further that regulations must be 
based on the best available science and that the rulemaking process 
must allow for public participation and an open exchange of ideas. We 
have developed this rule in a manner consistent with these 
requirements.

B. Regulatory Flexibility Act

    The Department of the Interior certifies that this proposed rule 
would not have a significant economic effect on a substantial number of 
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.). This proposed rule would codify longstanding Departmental 
policies and interpretation of case law in the form of substantive 
regulations which would provide certainty and clarity on how the 
Secretary will review certain provisions in a compact.

C. Congressional Review Act (CRA)

    This rule is not a major rule under 5 U.S.C. 804(2). This rule:
     Does not have an annual effect on the economy of $100 
million or more.
     Will not cause a major increase in costs or prices for 
consumers, individual industries, federal, State, or local government 
agencies, or geographic regions.
     Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

D. Unfunded Mandates Reform Act of 1995

    This rule would not impose an unfunded mandate on State, local, or 
Tribal governments, or the private sector of more than $100 million per 
year. The rule would not have a significant or unique effect on State, 
local, or Tribal governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required).

E. Takings (E.O. 12630)

    This rule would not affect a taking of private property or 
otherwise have taking implications under Executive Order 12630 because 
this rulemaking, if adopted, does not affect individual

[[Page 74943]]

property rights protected by the Fifth Amendment or involve a 
compensable ``taking.'' A takings implication assessment is not 
required.

F. Federalism (E.O. 13132)

    Under the criteria in section 1 of Executive Order 13132, this rule 
would not have sufficient federalism implications to warrant the 
preparation of a federalism summary impact statement. A federalism 
summary impact statement is not required because, the Department seeks 
to codify longstanding Departmental policies and interpretation of case 
law in the form of substantive regulations which would provide 
certainty and clarity on how the Secretary will review certain 
provisions in a compact.

G. Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of Executive Order 12988. 
This rule:
     Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
     Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

H. Consultation With Indian Tribes (E.O. 13175)

    The Department will conduct two virtual session, one in-person 
consultation, and will accept oral and written comments. The 
consultations sessions will be open to Tribal leadership and 
representatives of federally recognized Indian Tribes and Alaska Native 
Corporations.
     In-Person Session: The in-person consultation will be held 
on January 13, 2023, from 1 p.m. to 4 p.m. MST, at the BLM National 
Training Center (NTC), 9828 N. 31st Ave, Phoenix, AZ 85051.
     1st Virtual Session: The first virtual consultation 
session will be held on January 19, 2023, from 1 p.m. to 4 p.m. EST. 
Please visit https://www.zoomgov.com/meeting/register/vJIsd-2qrjwiH2bVXpLvS2VPUZESt2HgtKk to register in advance.
     2nd Virtual Session: The second virtual consultation will 
be held on January 30, 2023, from 2 p.m. to 5 p.m. EST. Please visit 
https://www.zoomgov.com/meeting/register/vJIsduGtqzgtE1hw9EIFrDf3-X_1gy5wGR0 to register in advance.
     Comment Deadline: Please see DATES and ADDRESSES sections 
for submission instructions.
    The Department of the Interior strives to strengthen its 
government-to-government relationship with Indian Tribes through a 
commitment to consultation with Indian Tribes and recognition of their 
right to self-governance and Tribal sovereignty. We have evaluated this 
rule under the Department's consultation policy and under the criteria 
in E.O. 13175 and have hosted extensive consultation with federally 
recognized Indian Tribes in preparation of this proposed rule, 
including through a Dear Tribal Leader letter delivered to every 
Federally-recognized Tribe in the country, and through three 
consultation sessions held on May 9, 13, and 23, 2022.

I. Paperwork Reduction Act

    OMB Control No. 1076-0172 currently authorizes the collection of 
information related to Class III Tribal-State Gaming Compact Process, 
with an expiration of August 31, 2024. This rule requires no change to 
that approved information collection under the Paperwork Reduction Act 
(PRA), 44 U.S.C. 3501 et seq.

J. National Environmental Policy Act (NEPA)

    This rule would not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act of 1969 (NEPA) is not 
required because this is an administrative and procedural regulation. 
(For further information see 43 CFR 46.210(i)). We have also determined 
that the rule does not involve any of the extraordinary circumstances 
listed in 43 CFR 46.215 that would require further analysis under NEPA.

K. Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A Statement of Energy Effects is not 
required.

L. Clarity of This Regulation

    We are required by Executive Orders 12866 (section 1 (b)(12)), 
12988 (section 3(b)(l)(B)), and 13563 (section l(a)), and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use common, everyday words and clear language rather than 
jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that you find unclear, which sections or sentences are 
too long, the sections where you feel lists or tables would be useful, 
etc.

M. Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

List of Subjects 25 CFR Part 293

    Administrative practice and procedure, Gambling, Indians-tribal 
government, State and local governments.


0
For the reasons stated in the preamble, the Department of the Interior, 
Bureau of Indian Affairs, proposes to revise 25 CFR part 293 to read as 
follows:

PART 293--CLASS III TRIBAL-STATE GAMING COMPACT

Subpart A--General Provisions and Scope
Sec.
Sec.  293.1 What is the purpose of this part?
Sec.  293.2 How are key terms defined in this part?
Sec.  293.3 What authority does the Secretary have to approve or 
disapprove compacts and amendments?
Sec.  293.4 Are compacts and amendments subject to review and 
approval?
Sec.  293.5 Are extensions to compacts or amendments subject to 
review and approval?
Subpart B--Submission of Tribal-State Gaming Compacts
Sec.  293.6 Who can submit a compact or amendment?
Sec.  293.7 When should the Tribe or State submit a compact or 
amendment for review and approval?
Sec.  293.8 What documents must be submitted with a compact or 
amendment?
Sec.  293.9 Where should a compact or amendment or other requests 
under this part be submitted for review and approval?

[[Page 74944]]

Subpart C--Secretarial Review of Tribal-State Gaming Compacts
Sec.  293.10 How long will the Secretary take to review a compact or 
amendment?
Sec.  293.11 When will the 45-day timeline begin?
Sec.  293.12 What happens if the Secretary does not act on the 
compact or amendment within the 45-day review period?
Sec.  293.13 Who can withdraw a compact or amendment after it has 
been received by the Secretary?


Sec.  293.14  When does a compact or amendment take effect?

Sec.  293.15 Is the Secretary required to disapprove a compact or 
amendment that violates IGRA?
Sec.  293.16 When may the Secretary disapprove a compact or 
amendment?
Subpart D--Scope of Tribal-State Gaming Compacts
Sec.  293.17 May a compact or amendment include provisions 
addressing the application of the Tribe's or the State's criminal 
and civil laws and regulations?
Sec.  293.18 May a compact or amendment include provisions 
addressing the allocation of criminal and civil jurisdiction between 
the State and the Tribe?
Sec.  293.19 May a compact or amendment include provisions 
addressing the State's costs for regulating gaming activities?
Sec.  293.20 May a compact or amendment include provisions 
addressing the Tribe's taxation of gaming?
Sec.  293.21 May a compact or amendment include provisions 
addressing the resolution of disputes for breach of the compact?
Sec.  293.22 May a compact or amendment include provisions 
addressing standards for the operation of gaming activity and 
maintenance of the gaming facility?
Sec.  293.23 May a compact or amendment include provisions that are 
directly related to the operation of gaming activities?
Sec.  293.24 What factors will be used to determine whether 
provisions in a compact or amendment are directly related to the 
operation of gaming activities?
Sec.  293.25 What factors will the Secretary analyze to determine if 
revenue sharing is lawful?
Sec.  293.26 May a compact or extension include provisions that 
limit the duration of the compact?
Sec.  293.27 May a compact or amendment permit a Tribe to engage in 
any form of class III gaming activity?
Sec.  293.28 May any other contract outside of a compact regulate 
Indian gaming?
Sec.  293.29 May a compact or amendment include provisions 
addressing Statewide remote wagering or internet gaming?
Sec.  293.30 What effect does this part have on pending requests, 
final agency decisions already issued, and future requests?
Sec.  293.31 How does the Paperwork Reduction Act affect this part?

    Authority:  5 U.S.C. 301; 25 U.S.C. 2, 9, 2710.

Subpart A--General Provisions and Scope


Sec.  293.1  What is the purpose of this part?

    This part contains:
    (a) Procedures that Indian Tribes and/or States must use when 
submitting Tribal-State compacts and compact amendments to the 
Department of the Interior (Department); and
    (b) Procedures and criteria that the Secretary of the Interior 
(Secretary) will use for reviewing such Tribal-State compacts or 
compact amendments.


Sec.  293.2  How are key terms defined in this part?

    This part relies on but does not restate all defined terms set 
forth in the definitional section of IGRA.
    (a) Amendment means:
    (1) A change to a class III Tribal-State gaming compact other than 
an extension, or
    (2) A change to secretarial procedures prescribed under 25 U.S.C. 
2710(d)(7)(B)(vii) when such change is agreed upon by the Tribe and 
State.
    (b) Compact or Tribal-State Gaming Compact means an 
intergovernmental agreement executed between Tribal and State 
governments under IGRA that establishes between the parties the terms 
and conditions for the operation and regulation of the Tribe's Class 
III gaming activities.
    (c) Extension means an intergovernmental agreement executed between 
Tribal and State governments under IGRA to change the duration of a 
compact or amendment.
    (d) Gaming activity or gaming activities means the conduct of class 
III gaming involving the three required elements of chance, 
consideration, and prize or reward.
    (e) Gaming facility means the physical building or structure, where 
the gaming activity occurs.
    (f) Gaming spaces means the areas within a gaming facility (as 
defined in paragraph (e) of this section) that are directly related to 
and necessary for the conduct of class III gaming such as: the casino 
floor; vault; count room; surveillance, management, and information 
technology areas; class III gaming device and supplies storage areas; 
and other secured areas. where the operation or management of class III 
gaming takes place, including the casino floor, vault, count, 
surveillance, management, information technology, class III gaming 
device, and supplies storage areas.
    (g) IGRA means the Indian Gaming Regulatory Act of 1988 (Pub. L. 
100-497) 102 Stat. 2467 dated October 17, 1988, (Codified at 25 U.S.C. 
2701-2721 (1988)) and any amendments.
    (h) Meaningful concession means:
    (1) Something of value to the Tribe;
    (2) Directly related to gaming;
    (3) Something that carries out the purposes of IGRA; and
    (4) Not a subject over which a State is otherwise obligated to 
negotiate under IGRA.
    (i) Substantial economic benefit means:
    (1) A beneficial impact to the Tribe;
    (2) Resulting from a meaningful concession;
    (3) Made with a Tribe's economic circumstances in mind;
    (4) Spans the life of the compact; and
    (5) Demonstrated by an economic/market analysis or similar 
documentation submitted by the Tribe or the State.
    (j) Tribe means Indian Tribe as defined in 25 U.S.C. 2703(5).


Sec.  293.3  What authority does the Secretary have to approve or 
disapprove compacts and amendments?

    The Secretary has the authority to approve a compact or amendment 
``entered into'' by a Tribe and a State. See Sec.  293.15 for the 
Secretary's authority to disapprove compacts or amendments.


Sec.  293.4   Are compacts and amendments subject to review and 
approval?

    (a) Yes. All compacts and amendments, regardless of whether they 
are substantive or technical, must be submitted for review and approval 
by the Secretary.
    (b) If an ancillary agreement or document:
    (1) Changes a term to a compact, then it must be submitted for 
review and approval by the Secretary
    (2) Implements or clarifies a provision contained in a compact or 
an amendment and is not inconsistent with an approved compact or 
amendment, it does not constitute a compact or an amendment and need 
not be submitted for review and approval by the Secretary.
    (3) If an approved compact or amendment expressly contemplates an 
ancillary agreement or document, such as internal controls or a 
memorandum of agreement between the Tribal and State regulators, then 
such agreement or document is not subject to review and approval so 
long as it is not inconsistent with the approved compact or amendment.
    (4) If an ancillary agreement or document interprets language in a 
compact or an amendment concerning the payment of a Tribe's gaming 
revenue or includes any of the topics identified in 25 CFR 292.24, then 
it may constitute

[[Page 74945]]

an amendment subject to review and approval by the Secretary.
    (c) If a Tribe or a State (including its political subdivisions) 
are concerned that their agreement or other document, including, but 
not limited to, any dispute resolution agreement, arbitration award, 
settlement agreement, or other resolution of a dispute outside of 
Federal court, may be considered a ``compact'' or ``amendment,'' either 
party may request in writing a determination from the Department if 
their agreement is a compact or amendment and therefore must be 
approved and a notice published in the Federal Register prior to the 
agreement becoming effective. The Department will issue a letter within 
60 days providing notice of the Secretary's determination.


Sec.  293.5   Are extensions to compacts or amendments subject to 
review and approval?

    No. Approval of an extension to a compact or amendment is not 
required if the extension does not include any changes to any of the 
other terms of the compact or amendment. However, the parties must 
submit the documents required by Sec.  293.8(a) through (c). The 
extension becomes effective only upon publication in the Federal 
Register.

Subpart B--Submission of Tribal-State Gaming Compacts


Sec.  293.6   Who can submit a compact or amendment?

    Either party (Tribe or State) to a compact or amendment can submit 
the compact or amendment to the Secretary for review and approval.


Sec.  293.7   When should the Tribe or State submit a compact or 
amendment for review and approval?

    The Tribe or State should submit the compact or amendment after it 
has been duly executed by the Tribe and the State in accordance with 
applicable Tribal and State law, or is otherwise binding on the 
parties.


Sec.  293.8   What documents must be submitted with a compact or 
amendment?

    Documentation submitted with a compact or amendment must include:
    (a) At least one original compact or amendment executed by both the 
Tribe and the State;
    (b) A Tribal resolution or other document, including the date and 
place of adoption and the result of any vote taken, that certifies that 
the Tribe has approved the compact or amendment in accordance with 
applicable Tribal law;
    (c) Certification from the Governor or other representative of the 
State that they are authorized under State law to enter into the 
compact or amendment;
    (d) Any agreement between a Tribe and a State, its agencies or its 
political subdivisions required by a compact or amendment if the 
agreement requires the Tribe to make payments to the State, its 
agencies, or its political subdivisions, or it restricts or regulates a 
Tribe's use and enjoyment of its Indian Lands and any other ancillary 
agreements, documents, ordinances, or laws required by the compact or 
amendment which the Tribe determines is relevant to the Secretary's 
review; and
    (e) Any other documentation requested by the Secretary that is 
necessary to determine whether to approve or disapprove the compact or 
amendment. If a compact includes revenue sharing, a market analysis or 
similar documentation as required by Sec.  293.24.


Sec.  293.9   Where should a compact or amendment or other requests 
under this part be submitted for review and approval?

    Submit compacts, amendments, and all other requests under 25 CFR 
part 293 to the Director, Office of Indian Gaming, U.S. Department of 
the Interior, 1849 C Street NW, Mail Stop 3543, Main Interior Building, 
Washington, DC 20240. If this address changes, a document with the new 
address will be sent for publication in the Federal Register within 5 
business days. Compacts and amendments may also be submitted 
electronically to [email protected] as long as the original copy is 
submitted to the address listed in this section.

Subpart C--Secretarial Review of Tribal-State Gaming Compacts


Sec.  293.10   How long will the Secretary take to review a compact or 
amendment?

    (a) The Secretary must approve or disapprove a compact or amendment 
within 45 calendar days after receiving the compact or amendment.
    (b) The Secretary will notify the Tribe and the State in writing of 
the decision to approve or disapprove a compact or amendment.


Sec.  293.11   When will the 45-day timeline begin?

    The 45-day timeline will begin when a compact or amendment is 
received, and date stamped by the Office of Indian Gaming. The 
Department will provide an email acknowledgement to the Tribe and the 
State of receipt including the 45th day for electronically submitted 
compacts or amendments.


Sec.  293.12   What happens if the Secretary does not act on the 
compact or amendment within the 45-day review period?

    If the Secretary does not take action to approve or disapprove a 
compact or amendment within the 45-day review period, the compact or 
amendment is approved by operation of law, but only to the extent the 
compact or amendment is consistent with the provisions of IGRA. The 
Secretary will issue a letter informing the parties that the compact or 
amendment has been approved by operation of law after the 45th day and 
before the 90th day. The Secretary's letter may include guidance to the 
parties identifying certain provisions that are inconsistent with the 
Department's interpretation of IGRA. The compact or amendment that is 
approved by operation of law becomes effective only upon publication in 
the Federal Register.


Sec.  293.13   Who can withdraw a compact or amendment after it has 
been received by the Secretary?

    To withdraw a compact or amendment after it has been received by 
the Secretary, the Tribe and the State must both submit a written 
request to the Director, Office of Indian Gaming at the address listed 
in Sec.  293.9.


Sec.  293.14   When does a compact or amendment take effect?

    (a) A compact or amendment, that is affirmatively approved or 
approved by operation of law takes effect on the date that notice of 
its approval is published in the Federal Register.
    (b) The notice of affirmative approval or approval by operation of 
law must be published in the Federal Register within 90 days from the 
date the compact or amendment is received by the Office of Indian 
Gaming.


Sec.  293.15   Is the Secretary required to disapprove a compact or 
amendment that violates IGRA?

    No. The IGRA provides the Secretary with time limited authority to 
review a compact or amendment and discretionary disapproval authority. 
If the Secretary does not take action to approve or disapprove a 
compact or amendment within 45 days, IGRA provides it shall be 
considered to have been approved by the Secretary, but only to the 
extent the compact or amendment is consistent with IGRA.


Sec.  293.16   When may the Secretary disapprove a compact or 
amendment?

    The Secretary may disapprove a compact or amendment only if:
    (a) It violates:
    (1) Any provision of IGRA;

[[Page 74946]]

    (2) Any other provision of Federal law that does not relate to 
jurisdiction over gaming on Indian lands;
    (3) The trust obligations of the United States to Indians; or
    (b) If the documents required in Sec.  293.8 are not submitted and 
the Department has informed the parties in writing of the missing 
documents.

Subpart D--Scope of Tribal-State Gaming Compacts


Sec.  293.17   May a compact or amendment include provisions addressing 
the application of the Tribe's or the State's criminal and civil laws 
and regulations?

    Yes. A compact or amendment may include provisions addressing the 
application of the criminal and civil laws and regulations of the Tribe 
or the State that are directly related to, and necessary for, the 
licensing and regulation of the gaming activity. At the request of the 
Secretary pursuant to Sec.  293.8(e), the parties must show that these 
laws and regulations are both directly related to and necessary for, 
the licensing and regulation of the gaming activity.


Sec.  293.18   May a compact or amendment include provisions addressing 
the allocation of criminal and civil jurisdiction between the State and 
the Tribe?

    Yes. A compact or amendment may include provisions allocating 
criminal and civil jurisdiction between the State and the Tribe 
necessary for the enforcement of the laws and regulations described in 
Sec.  293.17.


Sec.  293.19   May a compact or amendment include provisions addressing 
the State's costs for regulating gaming activities?

    Yes. If the compact or amendment includes a negotiated allocation 
of jurisdiction to the State for the regulation of the gaming activity, 
the compact or amendment may include provisions to defray the State's 
actual and reasonable costs for regulating the specific Tribe's gaming 
activity. If the compact does not include requirements for the State to 
show actual and reasonable annual expenses for regulating the specific 
Tribe's gaming activity over the life of the compact is considered 
evidence of a violation of IGRA.


Sec.  293.20   May a compact or amendment include provisions addressing 
the Tribe's taxation of gaming?

    Yes. A compact or amendment may include provisions addressing the 
Tribe's taxation of the tribally licensed gaming activity in amounts 
comparable to the State's taxation of State licensed gaming activities. 
A compact may not include provisions addressing the Tribe's taxation of 
other activities that may occur within or near the Tribe's gaming 
facility. The inclusion of provisions addressing the Tribe's taxation 
of other activities is considered evidence of a violation of IGRA.


Sec.  293.21   May a compact or amendment include provisions addressing 
the resolution of disputes for breach of the compact?

    Yes. A compact or amendment may include provisions addressing how 
the parties will resolve a breach of the compact or other disputes 
arising from the compact including mutual limited waivers of sovereign 
immunity. If a Tribe is concerned that an agreement or other document, 
including but not limited to any dispute resolution, settlement 
agreement, or arbitration decision, constitutes a compact or amendment, 
or if the Tribe is concerned that the agreement or other document 
interprets the Tribe's compact or amendment to govern matters that are 
not directly related to the operation of gaming activities, the Tribe 
may submit the document to the Department as set forth in Sec.  293.4. 
The inclusion of provisions addressing dispute resolution in a manner 
that seeks to avoid the Secretary's review is considered evidence of a 
violation of IGRA.


Sec.  293.22   May a compact or amendment include provisions addressing 
standards for the operation of gaming activity and maintenance of the 
gaming facility?

    Yes. A compact or amendment may include provisions addressing the 
Tribe's standards for the operation of the gaming activity as well as 
the Tribe's standards for the maintenance of the gaming facility, 
including licensing. If a compact or amendment mandate that the Tribe 
adopt standards equivalent or comparable to the standards set forth in 
a State law or regulation, the parties must show that these mandated 
Tribal standards are both directly related to and necessary for, the 
licensing and regulation of the gaming activity.


Sec.  293.23   May a compact or amendment include provisions that are 
directly related to the operation of gaming activities?

    Yes. A compact or amendment may include provisions that are 
directly related to the operation of gaming activities.


Sec.  293.24   What factors will be used to determine whether 
provisions in a compact or amendment are directly related to the 
operation of gaming activities?

    (a) The parties must show that these provisions described in Sec.  
293.23 are directly connected to Tribe's conduct of class III gaming 
activities. Examples include, but are not limited to:
    (1) Minimum age for patrons to participate in gaming;
    (2) Transportation of gaming devices and equipment; or
    (3) Exclusion of Patrons.
    (b) Mutually beneficial proximity, or even co-management alone is 
insufficient to establish a ``direct connection'' between the Tribe's 
class III gaming and adjacent business or amenities. Additionally, 
Tribal infrastructure projects or economic development activities that 
are funded by gaming revenue and may service or otherwise provide a 
benefit to the gaming activity are not directly related to the conduct 
of gaming without other evidence of a direct connection.
    (c) Provisions which are not directly related to the operation of 
gaming activities include, but are not limited to:
    (1) Limiting third party Tribes' rights to conduct gaming;
    (2) Treaty rights;
    (3) Tobacco sales;
    (4) Compliance with or adoption of State environmental regulation 
of projects or activities that are not directly related to the Tribe's 
operation of gaming activities and maintenance of the gaming facility;
    (5) Requiring memorandum of understanding, intergovernmental 
agreements, or similar agreements with local governments;
    (6) Enforcement of State court orders garnishing employee wages or 
patron winnings;
    (7) Granting State court jurisdiction over tort claims arising from 
the Tribe's conduct of class III gaming activities;
    (8) Non-gaming Tribal economic activities including activities in 
or adjacent to the gaming facility, including but not limited to, 
restaurants, nightclubs, hotels, event centers, water parks, gas 
stations, and convenience stores; or
    (9) Tribal class I or class II gaming activities.
    (d) The inclusion of provisions which the parties cannot show a 
direct connection to the Tribe's conduct of class III gaming activities 
is considered evidence of a violation of IGRA.


Sec.  293.25   What factors will the Secretary analyze to determine if 
revenue sharing is lawful?

    (a) A compact or amendment may include provisions that address 
revenue sharing in exchange for a State's meaningful concessions 
resulting in a substantial economic benefit for the Tribe.
    (b) The Department reviews revenue sharing provisions with great 
scrutiny.

[[Page 74947]]

We begin with the presumption that a Tribe's payment to a State or 
local government for anything beyond Sec.  293.19 regulatory fees are a 
prohibited ``tax, fee, charge, or other assessment.'' In order for the 
Department to approve revenue sharing the parties must show through 
documentation, such as a market study or other similar evidence, that:
    (1) The Tribe has requested, and the State has offered specific 
meaningful concessions the State was otherwise not required to 
negotiate;
    (2) The value of the specific meaningful concessions offered by the 
State provides substantial economic benefits to the Tribe in a manner 
justifying the revenue sharing required by the compact; and
    (3) The Tribe is the primary beneficiary of the gaming, measured by 
projected revenue to the Tribe against projected revenue shared with 
the State;
    (c) The inclusion of revenue sharing provisions to the State that 
is not justified by meaningful concessions of substantial economic 
benefit to the Tribe is considered evidence of a violation of IGRA.


Sec.  293.26   May a compact or extension include provisions that limit 
the duration of the compact?

    Yes. However, IGRA anticipates compacts are long-term agreements 
between a Tribe and a State. These agreements reflect carefully 
negotiated compromises between sovereigns. A refusal to negotiate a 
long-term compact, or a short-term extension of at least one year to 
allow for negotiations to continue, is considered evidence of a 
violation of IGRA.


Sec.  293.27   May a compact or amendment permit a Tribe to engage in 
any form of class III gaming activity?

    Yes. If the State allows any form of class III gaming, then the 
State is regulating all forms of class III gaming. A State's refusal to 
negotiate in a compact over all forms of class III gaming, not 
prohibited in the State, is considered evidence of a violation of IGRA.


Sec.  293.28   May any other contract outside of a compact regulate 
Indian gaming?

    No. Any contract or other agreement between a Tribe and a State or 
its political subdivisions which seeks to regulate a Tribe's right to 
conduct gaming--as limited by IGRA--is a gaming compact that must 
comply with IGRA and be submitted for review and approval by the 
Secretary. A Tribe may submit any agreement between the Tribe and the 
State or its political subdivisions, mandated or required by a compact 
or amendment, which includes provisions for the payment from a Tribe's 
gaming revenue or restricts or regulates a Tribe's use and enjoyment of 
its Indian Lands, including a Tribe's conduct of gaming, for a 
determination if the agreement is a compact or amendment under Sec.  
293.4(c).


Sec.  293.29   May a compact or amendment include provisions addressing 
Statewide remote wagering or internet gaming?

    Yes. A compact or amendment consistent with Sec.  293.17 may 
include provisions addressing Statewide remote wagering or internet 
gaming that is directly related to the operation of gaming activity on 
Indian lands. A compact may specifically include provisions allocating 
State and Tribal jurisdiction over remote wagering or internet gaming 
originating outside Indian lands where:
    (a) State law and/or the compact or amendment deem the gaming to 
take place, for the purposes of State and Tribal law, on the Tribe's 
Indian lands where the server accepting the wagers is located;
    (b) The Tribe regulates the gaming; and
    (c) The player initiating the wager is not located on another 
Tribe's Indian lands.


Sec.  293.30   What effect does this part have on pending requests, 
final agency decisions already issued, and future requests?

    (a) Compacts and amendments pending on [EFFECTIVE DATE OF FINAL 
RULE], will continue to be processed under 25 CFR part 293, promulgated 
on December 5, 2008, and revised June 4, 2020, unless the applicant 
requests in writing to proceed under this part. Upon receipt of such a 
request, the Secretary shall process the pending compact or amendment 
under this part.
    (b) This part does not alter final agency decisions made pursuant 
to this part before [EFFECTIVE DATE OF FINAL RULE].
    (c) All compacts and amendments submitted after [EFFECTIVE DATE OF 
FINAL RULE] will be processed under this part.


Sec.  293.31   How does the Paperwork Reduction Act affect this part?

    The information collection requirements contained in this part have 
been approved by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), and assigned 
control number 1076-0172. A Federal agency may not conduct or sponsor, 
and you are not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

Bryan Newland,
Assistant Secretary--Indian Affairs.
[FR Doc. 2022-25741 Filed 12-5-22; 8:45 am]
BILLING CODE 4337-15-P