Technical Standards for Electronic, Computer, or Other Technologic Aids Used in the Play of Class II Games, 60508-60535 [E8-23084]

Agencies

• DEPARTMENT OF THE INTERIOR
• National Indian Gaming Commission

[Federal Register Volume 73, Number 198 (Friday, October 10, 2008)]
[Rules and Regulations]
[Pages 60508-60535]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-23084]


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

DEPARTMENT OF THE INTERIOR

National Indian Gaming Commission

25 CFR Part 547

RIN 3141-AA29


Technical Standards for Electronic, Computer, or Other 
Technologic Aids Used in the Play of Class II Games

AGENCY: National Indian Gaming Commission, Interior.

ACTION: Final rule.

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

SUMMARY: The rule adds a new part to the Commission's regulations 
establishing technical standards for Class II games--bingo, lotto, 
other games similar to bingo, pull tabs, and ``instant bingo''--that 
are played using ``electronic, computer, or other technologic aids'' as 
parts of a Class II gaming system. The rule establishes a process for 
ensuring the integrity of such games and aids--examination by an 
independent testing laboratory and approval by the tribal gaming 
regulatory authority--before being made available to the public for 
play in a tribal gaming operation. The standards will assist tribal 
gaming regulatory authorities and operators in ensuring the integrity 
and security of Class II gaming and the accountability of Class II 
gaming revenue. The standards will also provide guidance to equipment 
manufacturers and distributors of Class II gaming systems.
    The rule does not attempt to distinguish Class II gaming from Class 
III gaming. Rather, the rule assumes that the games played on Class II 
gaming systems are, in fact, Class II.

DATES: Effective November 10, 2008.

FOR FURTHER INFORMATION CONTACT: Michael Gross, Associate General 
Counsel, General Law, Office of General Counsel, National Indian Gaming 
Commission, 1441 L St., NW., Suite 9100, Washington, DC 20005, 
telephone: 202.632.7003. This is not a toll-free call.

SUPPLEMENTARY INFORMATION:

Withdrawal of Classification Standards and Amendment to Definition of 
Facsimile

    The Commission has withdrawn the Classification standards it 
proposed on October 24, 2007. ``Classification Standards for Bingo, 
Lotto, Etc. as Class II Gaming When Played Through an Electronic Medium 
Using `Electronic Computer, or Other Technologic Aids.' '' 72 FR 60483. 
The Commission has also withdrawn the amendment to the definition of 
``electronic or electromechanical facsimile,'' also proposed on October 
24, 2007. ``Definition for Electronic or Electromechanical Facsimile.'' 
72 FR 60482. See the Commission's notices of withdrawal, published 
simultaneously.

Background

    The Indian Gaming Regulatory Act, 25 U.S.C. 2701-21 (``IGRA''), 
enacted by the Congress in 1988, establishes the National Indian Gaming 
Commission (``Commission'') and sets out a comprehensive framework for 
the regulation of gaming on Indian lands. IGRA establishes three 
classes of Indian gaming.
    ``Class I gaming'' means social games played solely for prizes of 
minimal value or traditional forms of Indian gaming played in 
connection with tribal ceremonies or celebrations. 25 U.S.C. 2703(6). 
Indian tribes regulate Class I gaming exclusively.
    ``Class II gaming'' means the game of chance commonly known as 
bingo, whether or not electronic, computer, or

[[Page 60509]]

other technologic aids are used in connection therewith, including, if 
played in the same location, pull-tabs, lotto, punch boards, tip jars, 
instant bingo, and other games similar to bingo, as well as various 
non-house-banked card games. 25 U.S.C. 2703(7)(A). Specifically 
excluded from Class II gaming are banking card games such as blackjack, 
electronic or electromechanical facsimiles of any game of chance, and 
slot machines of any kind. 25 U.S.C. 2703(7)(B). Indian tribes and the 
Commission share regulatory authority over Class II gaming. Indian 
tribes can engage in Class II gaming without any state involvement.
    ``Class III gaming'' includes all forms of gaming that are not 
Class I gaming or Class II gaming. 25 U.S.C. 2703(8). Class III gaming 
thus includes all other games of chance, including lotteries and most 
forms of casino gaming, such as slot machines, roulette, and banking 
card games like blackjack. Class III gaming may be conducted lawfully 
only if the tribe and the state in which the tribe is located enter 
into a tribal-state compact for such gaming. Alternatively, a tribe may 
operate Class III gaming under gaming procedures issued by the 
Secretary of the Interior. Indian tribes, states, and the Commission 
exercise regulatory authority over Class III gaming. In addition, the 
United States Department of Justice possesses exclusive criminal, and 
certain civil, jurisdiction over Class III gaming on Indian lands.
    The Commission has determined that it is in the best interests of 
Indian gaming to adopt technical standards that govern the 
implementation of electronic, computer, and other technologic aids used 
in the play of Class II games because no such standards currently 
exist. The rule seeks to provide a means for tribal gaming regulatory 
authorities and tribal operators to ensure that the integrity and 
security of Class II games played with the use of electronic, computer, 
or other technologic aids is maintained and that the games and aids are 
fully auditable, i.e., that they provide a means for the gaming 
authority and gaming operation to account for all gaming revenue. The 
rule also seeks to permit flexibility in the implementation of 
technology and to embrace the development of future technologies 
unforeseen and undeveloped.

Development of the Rule

    The development of the rule began formally with the March 31, 2004, 
appointment of an advisory committee comprised of tribal government 
representatives with substantial experience and expertise in gaming 
regulation and operations, the Commission, and Commission staff. 
Although the Commission initially intended to develop one set of 
regulations, this committee's work ultimately resulted in the 
Commission's publication of a proposed rule for Class II classification 
standards, 71 FR 30238 (May 25, 2006), and a separate proposed rule for 
Class II technical standards, 71 FR 46336 (August 11, 2006). A detailed 
history of the advisory committee's work on the technical standards to 
that point, its meetings, the Commission's consultations with Indian 
tribes, and the contributions and participation of the interested 
general public is published in the preamble to that proposed rule. 71 
FR 46336-46337 (August 11, 2006).
    The ultimate goal of that first proposed set of technical standards 
was as it is here--to ensure the security and integrity of Class II 
games played with technologic aids, to ensure the auditabilty of the 
gaming revenue that those games earn, and to account and allow for 
evolving and new technology.
    Given the importance of the regulations to the industry, the 
Commission, which had initially set a comment period of 45 days, 
reopened the comment period for an additional 76 days, from November 
15, 2006, through January 31, 2007. 71 FR 71115 (December 8, 2006); 71 
FR 76618 (December 21, 2006).
    Public comments made it clear to the Commission that the first set 
of proposed technical standards fell short of its goal of technological 
flexibility. In particular, commenters stated that the first set of 
proposed technical standards would mandate particular implementations 
of technology that were not practical or feasible. Commenters suggested 
that rather than prescribe particular implementations of technology, 
the standards should describe the regulatory outcomes that the 
Commission seeks to achieve and leave it to the industry to develop 
ways to meet those regulatory requirements.
    At a December 5, 2006, advisory committee meeting in Washington, 
DC, the tribal representatives to the advisory committee strongly 
agreed with this sentiment. The details of the solution, however, were 
not immediately apparent. Before providing further advice to the 
Commission, the tribal representatives on the committee wished to 
consult further with other tribal representative and regulators, and 
with industry representatives. They therefore suggested that they 
assemble a working group made up of representatives from the Class II 
gaming industry--tribal operators, tribal regulators, and manufacturers 
alike--to assist the advisory committee. The Commission agreed to allow 
the tribal representatives to work independently of the Commission to 
redraft the technical standards. Accordingly, the Commission withdrew 
the first proposed technical standards. 72 FR 7360 (February 15, 2007).
    The tribal representatives to the advisory committee formed a 
working group, which met at various times, in person and 
telephonically, from the end of 2006 through the middle of 2007 to 
draft this new set of technical standards. The Commission did not 
participate in the establishment of this working group or in most of 
its work. On some occasions, the tribal representatives invited the 
participation of Commission staff members to answer questions and to 
provide explanation about the Commission's regulatory goals. Commission 
staff participated in this capacity during in-person meetings on 
December 11-12, 2006, in Las Vegas, Nevada, and June 5, 2007, in 
Dallas, Texas.
    The full advisory committee, including the Commission, met to 
discuss drafts developed by the tribal representatives and the working 
group on February 22, 2007, in Albuquerque, New Mexico; April 26, 2007, 
in Seattle, Washington; and May 22, 2007, in Bloomington, Minnesota. 
All of these meetings were open to the interested public.
    The NIGC published its Government-to-Government Tribal Consultation 
Policy on March 24, 2004, 69 FR 16973. In that policy the Commission 
recognized the government-to-government relationship that exists 
between the NIGC and federally-recognized tribes and stated that the 
primary focus on the NIGC's consultation policies would involve 
consulting with individual tribes and their recognized governmental 
leaders. The Commission's consultation policy also calls for providing 
early notification to affected tribes of any regulatory policies prior 
to a final agency decision regarding their formulation or 
implementation.
    Accordingly, throughout this entire period, the Commission 
maintained a busy consultation schedule, consulting with tribal 
governments and gaming commissions, usually at gaming association 
meetings across the country but also at the Commission's Washington, 
DC, headquarters. From September 2005 through December 2007, and 
excluding consultations devoted solely to the Commission's Class II 
classification standards, the

[[Page 60510]]

Commission issued 751 invitations to tribes for consultation. These 
invitations resulted in consultations with 189 tribes or their gaming 
commissions. The tribes were invited to discuss the proposed technical 
standards, among other current issues.
    In addition, in July and August 2006, the Commission consulted with 
69 tribes and tribal gaming commissions in Washington, DC; Bloomington, 
Minnesota; Oklahoma City, Oklahoma; Tacoma, Washington; and Ontario 
California. These consultations were devoted primarily to discussing 
the proposed Classification standards. However, a few tribes took the 
opportunity to discuss the proposed technical standards as well.
    The Commission is immensely grateful to all who contributed to the 
technical standards: The tribes and gaming commissions who took the 
time and made the effort to consult; the tribal representatives on the 
advisory committee and the working group of tribal leaders, tribal 
regulators, and manufacturers; and all of the commenters who 
contributed their insight in comments. The proposed rule published in 
October 2007 was substantially adopted from the draft of descriptive 
technical standards that the tribal representatives on the advisory 
committee delivered to the Commission.
    There are some places where the Commission felt it could not accept 
the recommendations in the draft, and the October 2007 proposed rule 
contained some standards more stringent than the tribal representatives 
to the advisory committee would have preferred and some that the tribal 
representatives thought unnecessary. These differences are discussed in 
detail in the comment section, below.

Purpose and Scope

    Part 547 (``the Technical Standards'') applies to all Class II 
games played using electronic, computer, or other technologic aids, or 
modifications of such games and aids. Class II games played through 
such technologic aids are widely used in Indian gaming operations, yet 
no uniform standards exist to govern their construction, function, or 
implementation. The rule seeks to remedy that absence and create a 
regulatory structure under which tribal gaming regulatory authorities 
and tribal operators are able to ensure the integrity and security of 
Class II games played with the use of electronic, computer, or other 
technologic aids and of Class II gaming revenue.
    There is a great variety in the technologic aids used in the play 
of Class II games and, therefore, a great variety in the means used to 
play the games. An operation may, for example, play bingo using no aids 
at all. A caller may select numbers using ping pong balls taken from a 
hopper, and players purchase paper cards from an employee of the 
operation and mark them with an inked dauber. Alternatively, numbers 
may be selected randomly using an electronic random number generator, 
which in turn displays the selected number on a display board. Instead 
of paper, players may use electronic handheld devices to monitor and 
mark their cards. The handheld devices are purchased and have cards 
loaded on them at a point-of-sale retail terminal.
    Still again, bingo may be implemented wholly electronically on 
client-server architectures. A common arrangement, but by no means the 
only one possible, is to have client machines on the casino floor as 
electronic player stations. These display the cards, allow the player 
to cover numbers when drawn, and pay any prizes won. Credits may be 
placed on the electronic player station by inserting cash or 
electronically drawing down an account separately established. The 
server, usually located off the floor, draws random numbers and passes 
them along data communications lines to the client machines for game 
play.
    The challenge, then, for writing technical standards is to address 
all of the various ways that Class II games can be played. Central to 
the Technical Standards, therefore, is the definition of ``Class II 
gaming system,'' which refers to the collection of components used in 
the play of a Class II game: ``All components, whether or not 
technologic aids in electronic, computer, mechanical or other 
technologic form, that function together to aid the play of one or more 
Class II games, including accounting functions mandated by these 
regulations.'' The notion of the ``gaming system'' thus encompasses 
bingo played in all of the implementations described above.
    It is the ``gaming system'' that must meet the requirements of the 
Technical Standards. Like the gaming system itself, the Technical 
Standards are conceived generally so that they may be met by a gaming 
system, regardless of the particular components that may comprise it. 
For example, the Technical Standards do not refer to ``bill 
validators,'' electronic devices into which a patron may insert a bill 
in order to place credits on a gaming machine. Instead, the Technical 
Standards describe ``financial instrument acceptors'' and the standards 
they must meet. ``Financial instrument acceptor'' is broad enough in 
meaning to encompass not only a ``bill validator'' but also a cash 
drawer staffed by an employee of the gaming operation. The Technical 
Standards provide minimum standards for the security of the 
``acceptors'' and of the money or vouchers (generally, ``financial 
instruments'') they accept.
    In the past, when Class II gaming systems did not make use of as 
many sophisticated electronic components as they do now, there was less 
need for technical standards. Now that technology has come so far and 
been implemented in Class II gaming to such a great extent, playing a 
direct role in the outcome of Class II games, technical standards, 
independent laboratory analysis, and tribal gaming regulatory authority 
approval are essential parts of gaming regulation.
    However, because of the breadth of possible implementations for 
Class II gaming systems, the Technical Standards require that gaming 
equipment and software used with Class II gaming systems meet only 
those requirements that are applicable to the system as implemented. 
This is, in short, a rule of construction of common sense. For example, 
if a system takes only cash and lacks the ability to print or accept 
vouchers, then any standards that apply to vouchers do not apply.
    The Technical Standards are deliberately only minimum standards. 
Tribes and tribal gaming regulatory authorities may add any additional 
requirements, or more stringent requirements, needed to suit their 
particular circumstances.
    In order to ensure compliance, the Technical Standards borrow from 
the established practices of tribal, state, and provincial gaming 
jurisdictions across North America for handling other technologically 
sophisticated electronic gaming devices. The Technical Standards 
establish, as a necessary prerequisite to a gaming system being offered 
to the public for play, review of the system by a qualified, 
independent testing laboratory and approval by the tribal gaming 
regulatory authority.
    Under the Technical Standards, a tribe's gaming regulatory 
authority will require all Class II gaming systems, or modifications 
thereof, to be submitted to a testing laboratory for review and 
analysis. That submission includes a working prototype of the gaming 
system or modification, all pertinent software, and anything else the 
testing laboratory needs for its complete and thorough review. In turn, 
the laboratory will review whether the gaming system does or does not 
meet the requirements of the Technical Standards, as well as any 
additional requirements adopted by the

[[Page 60511]]

tribe's gaming regulatory authority. The laboratory will provide a 
written report of its analysis and conclusions to the tribal gaming 
regulatory authority to aid its approval or disapproval of the gaming 
system or modification. The tribal gaming regulatory authority will 
retain the report as long as the gaming system or modification in 
question remains available to the public for play. This process will 
help assure the integrity and security of Class II gaming technology.

Five-Year Grandfather and Transition Period

    The Commission understands that existing Class II gaming systems 
likely do not meet all of the requirements of the Technical Standards. 
In order to avoid any potentially significant economic and practical 
consequences of requiring immediate compliance, the Technical Standards 
implement a five-year ``grandfather period'' for existing gaming 
systems.
    Existing gaming systems--those in play or manufactured by the 
effective date of the Technical Standards--may be grandfathered and 
exempt from compliance with the Technical Standards for five years if 
they are put through a similar review by a qualified independent 
testing laboratory and approved by a tribal gaming regulatory 
authority. Specifically, in order to be eligible for grandfathering, a 
gaming system must be submitted to a testing laboratory within 120 days 
of the Technical Standards' effective date. The testing laboratory must 
review the gaming system for compliance with a specific, minimum set of 
requirements--random number generation, minimum probabilities, no 
reflexive or secondary decision-making after random numbers are drawn, 
the inability to change bingo cards during the play of a game, and a 
mechanism for verifying game software.
    The laboratory must issue a report on these issues to the tribal 
gaming regulatory authority, which must make a finding that the gaming 
system qualifies for grandfather status. Once a gaming system is 
qualified, the manufacturer must label each player interface on the 
system with its date of manufacture and certify the same to the tribal 
gaming regulatory authority. This requirement effectively freezes the 
number of grandfathered interfaces in use.
    The 120-day requirement applies only to the submission of the 
gaming system for testing. There is no requirement in the technical 
standards that the testing laboratory test the system, or the tribal 
gaming regulatory authority approve it as a grandfathered system, 
within that time period. It is, nonetheless, in the interest of gaming 
operations for the testing laboratory to complete its evaluation and 
for the tribal gaming regulatory authority to issue its grandfather 
certifications as quickly as possible. The Technical Standards require 
both of those things to occur before a Class II gaming system is 
grandfathered and available to the public for play.
    All of this is not to say, however, that the Technical Standards 
require grandfathered gaming systems to remain entirely static. Tribal 
gaming regulatory authorities may permit modifications to gaming system 
software or hardware that increases compliance with the requirements of 
the Technical Standards, even if the modifications do not make the 
system wholly compliant. Tribal gaming regulatory authorities may also 
authorize modifications to gaming system software that do not detract 
from, compromise, or prejudice the proper functioning, security or 
integrity of the Class II gaming system and the system's overall 
compliance with the requirements of the Technical Standards. Changes 
such as new pay tables, new game themes, and new entertaining displays 
fall within this latter category.

Withdrawal of the Classification Standards

    Finally, the October 2007 proposed rule was not intended to stand 
alone. The advisory committee pointed out, and the Commission agreed, 
that many of the functions placed in the technical standards proposed 
on August 11, 2006, and subsequently withdrawn, were more properly 
characterized as minimum internal control standards. Accordingly, along 
with the proposed technical standards, the Commission published, as a 
separate proposed rule, a companion set of minimum internal control 
standards for the play of bingo and games similar to bingo. Those two 
proposed rules were to be applied in conjunction with proposed 
classification standards. The final Technical Standards are not so 
intertwined.
    The Commission has withdrawn the classification standards (see 
notice of withdrawal published simultaneously) and has removed all 
cross references from the Technical Standards to the classification 
standards. Compliance with the classification standards is not required 
for compliance with the Technical Standards.

Class II MICS

    Similarly, the Commission is adopting as 25 CFR part 543, the 
companion set of internal controls for bingo and games similar to 
bingo. The Commission has endeavored to place all requirements for the 
design, construction, and implementation of Class II gaming systems 
into the Technical Standards and all requirements for the operation of 
bingo gaming systems and the authorization, recognition, and 
recordation of gaming and gaming-related transactions into the MICS. In 
this sense, the two rules are independent of one another.
    Nevertheless, there are places where the two rules bump up against 
one another--for example, in circumstances where equipment must have 
certain features to allow the application of appropriate internal 
controls. In those cases, a cross reference from one set of regulations 
to the other is appropriate. Similarly, the grandfather provisions of 
Technical Standards cross reference the MICS in a few places where 
tribal gaming regulatory authorities may permit hardware and software 
changes to a grandfathered Class II gaming system when those changes 
will improve compliance with the Technical Standards or the MICS.

Regulatory Matters

Regulatory Flexibility Act

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute, unless the agency certifies that the rule will not have 
a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions.
    For purposes of assessing the impact of the Technical Standards on 
small entities, ``small entity'' is defined as: (1) A small business 
that meets the definition of a small business found in the Small 
Business Act and codified at 13 CFR 121.201; (2) a small governmental 
jurisdiction that is a government of a city, county, town, school 
district or special district with a population of less than 50,000; and 
(3) a small organization that is any not-for-profit enterprise that is 
independently owned and operated and is not dominant in its field.
    Indian tribes and tribal casinos do not meet this definition. 
Tribes are excluded from the governmental jurisdictions listed under 
(2), and tribally owned casinos are not ordinary commercial

[[Page 60512]]

activities but are tribal governmental operations.
    In determining whether a rule has a significant economic impact on 
a substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, because the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the proposed rule on small entities.'' 5 U.S.C. 603 
and 604. Thus, an agency may certify that a rule will not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves regulatory burden, or otherwise has a positive 
economic effect on all of the small entities subject to the rule.
    As a practical matter, the economic impacts of the Technical 
Standards will fall primarily upon the Indian tribes. The Technical 
Standards impose some direct costs upon gaming tribes--regulatory 
compliance costs, for example. In addition, as the ultimate customers, 
costs initially borne by testing laboratories and gaming manufacturers 
will be passed along. Accordingly, the Commission certifies that this 
action will not have a significant economic impact on a substantial 
number of small entities.

Small Business Regulatory Enforcement Fairness Act

    When the Technical Standards were proposed in October 2007, the 
Commission proceeded as if they were a major rule under 5 U.S.C. 804.2, 
the Small Business Regulatory Enforcement Fairness Act. The Commission 
did so because the status of the proposed technical standards, 
considered alone--apart from the classification standards (proposed 
part 546), the proposed amended definition of 25 CFR 502.8, and the 
proposed MICS (proposed part 543)--was unclear. The Commission had 
commissioned an economic impact study of the proposals taken together, 
and it made clear that the cost to the Indian gaming industry of 
complying with the combined proposed rules would have an annual effect 
on the economy of $100 million or more. Accordingly, the Commission 
treated the proposed technical standards as a major rule.
    In so proceeding, the Commission was required to undertake a cost-
benefit analysis, and, in doing so, evaluated the costs of each 
proposed rule individually. The Commission has found that the annual 
cost to the Indian gaming industry of the Technical Standards, 
considered alone, is $3.1 million dollars. The cost of the Technical 
Standards and the Class II MICS taken together is less than $10 million 
annually. Accordingly, the Technical Standards are not a major rule 
within the meaning of 5 U.S.C. 804.2, the Small Business Regulatory 
Enforcement Fairness Act.
    The Commission's cost-benefit analysis is available for review at 
the Commission's Web site, www.nigc.gov, or by request using the 
addresses or telephone numbers, above.

Unfunded Mandates Reform Act

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

Takings

    In accordance with Executive Order 12630, the Commission has 
determined that the Technical Standards do not have significant takings 
implications. A takings implication assessment is not required.

Civil Justice Reform

    In accordance with Executive Order 12988, the Commission's Office 
of General Counsel has determined that the Technical Standards do not 
unduly burden the judicial system and meet the requirements of sections 
3(a) and 3(b)(2) of the Order.

Paperwork Reduction Act

    The Technical Standards require information collection under the 
Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq. The title, 
description, and respondent categories are discussed below, together 
with an estimate of the annual information collection burden.
    Title: Process for Certification of Electronic, Computer, or other 
Technologic Aids used in the play of Class II games and process for 
qualification of independent testing laboratories, proposed 25 CFR 
547.4.
    Summary and description of information collections: The Technical 
Standards establish a process for ensuring that Class II gaming systems 
have been reviewed and evaluated by a qualified, independent testing 
laboratory prior to their approval by a tribal gaming regulatory 
authority and their availability to the public for play. The process 
helps to ensure the proper functioning of the systems and the 
integrity, fairness, and auditability of games played.
    The process requires a tribe's gaming regulatory authority to 
require that all Class II gaming systems, or modifications thereto, be 
submitted to a qualified, independent testing laboratory for review and 
analysis. That submission includes a working prototype of the game and 
aid, all pertinent software, and complete documentation and 
descriptions of all functions and components. In turn, the laboratory 
will determine that the gaming system does or does not meet the 
requirements of the Technical Standards and any additional requirements 
adopted by the tribe's gaming regulatory authority. The laboratory will 
provide a written report of its analysis and conclusions to the tribal 
gaming regulatory authority, which in turn will approve or disapprove 
the system or modification. The tribal gaming regulatory authority will 
retain the laboratory report as long as the system or modification 
remains available to the public for play.
    This process is necessary to ensure the security and integrity of 
Class II gaming. Technical standards generally are a fundamental part 
of Class III gaming and of non-Indian, commercial casino gaming 
throughout North America. No uniform standards exist for Class II 
gaming, however. The implementation of such standards will assist 
tribal gaming regulators in ensuring that games are implemented fairly, 
that all gaming systems are secure and function properly, and that the 
tribes and operators are able to properly account for gaming revenue.
    The Technical Standards implement an analogous process for 
determining whether a Class II gaming system is eligible for the five-
year grandfather period. This process again requires a tribe's gaming 
regulatory authority to require that a Class II gaming system be 
submitted, within 120 days after the effective date, to a qualified, 
independent testing laboratory for review and analysis. The submission 
must include a working prototype of the game and aid, all pertinent 
software, and complete documentation and descriptions of all functions 
and components. In turn, the laboratory will determine that the gaming 
system does or does not meet a small set of specified requirements. The 
laboratory will provide a written report of its analysis and 
conclusions to the tribal gaming regulatory authority, which in turn 
will determine that the gaming system is or is not eligible for 
grandfather status. Upon a finding of eligibility, the tribal gaming 
regulatory authority will issue a certificate to that effect to the 
gaming system manufacturer and a description of the grandfathered game 
to the Commission.

[[Page 60513]]

    This process is necessary to ensure a certain minimum integrity and 
security for games while at the same time avoiding potentially 
significant economic and practical consequences of requiring immediate 
and complete compliance with the Technical Standards.
    Finally, the Technical Standards establish a process for testing 
laboratories to establish their eligibility to provide testing services 
to the tribal gaming regulatory authorities. The testing laboratories 
must submit to suitability determinations made by the tribes they 
serve, and these determinations include criminal background checks for 
the laboratories' principals. These determinations are made according 
to the same standards used to license the primary management officials 
and key employees of Indian gaming operations under the Indian Gaming 
Regulatory Act. All of this requires the submission by the laboratory 
of corporate financial information; qualifications of the engineering 
staff; information (and inspections) of the available engineering 
facilities, and personal information for principals, including tax 
returns, bankruptcies and law suits, work histories, and references.
    Given the essential role accorded to laboratories in ensuring the 
integrity, security, and auditability of Class II gaming systems, this 
process is essential to ensuring the competence, integrity, and 
independence of the testing laboratories and the suitability of their 
decision makers, i.e. to ensure that undesirable elements are kept out 
of gaming.
    Respondents: The respondents are independent testing laboratories, 
developers and manufacturers of Class II gaming systems, and Indian 
tribes. The Commission estimates that there are currently 20 such 
manufacturers, 5 such laboratories, and 226 gaming tribes. The 
frequency of responses to the information collection requirement will 
vary.
    Information Collection Burden: In order to qualify under the 
grandfather provisions of the Technical Standards, a gaming system must 
be submitted to a testing laboratory for review and analysis during the 
first 120 days after the effective date of the rule. The Commission 
estimates that there are approximately 25 Class II gaming systems in 
existence and that all will be submitted during this period.
    Following the initial 120-day period, the frequency of submissions 
of new gaming systems or of modifications to existing gaming systems 
will be entirely market driven. The Commission anticipates 
approximately a 20% turnover each year for the five-year grandfather 
period. Consequently, there should be approximately five submissions of 
new gaming systems each year.
    Submissions of modifications are, as a matter of course, a more 
common practice. Software in particular commonly goes through many 
iterations in development and continues to be improved and revised even 
after sale and placement on a gaming operation's floor. That said, the 
submission of modifications tends to be sporadic, with less frequent or 
occasional submissions punctuated by fairly steady periods of 
submissions when new systems or modifications are introduced. The 
Commission anticipates there will be approximately 300 submissions of 
modifications and thus 300 reports produced by testing laboratories 
each year following the 120-day period that begins on the effective 
date of the rule.
    The preparation and submission of supporting documentation by 
manufacturers or a tribal gaming operation (as opposed to gaming system 
hardware and software per se) is an information collection burden under 
the Paperwork Reduction Act, as is the preparation of reports by the 
testing laboratories or the preparation of a grandfather certificate 
and explanation of gaming system by a tribal gaming regulatory 
authority.
    It is the existing practice in the gaming industry, both Indian and 
non-Indian alike, for the game manufacturer to submit a gaming system 
to a testing laboratory for review and analysis. The Technical 
Standards leave open the possibility that a tribal gaming regulatory 
authority may require the management of a gaming operation to make a 
required submission. The Commission anticipates, however, that it will 
be the responsibility of the gaming system manufacturers to make the 
submissions to testing laboratories.
    The amount of documentation submitted by a manufacturer as part of 
a submission of a gaming system and the size of a laboratory report is 
a function of the complexity of the gaming system submitted for review. 
Submission for minor modifications to software or hardware already 
submitted and examined will be a matter of little time both for 
manufacturer and laboratory, while the submission and review of an 
entirely new game platform will be time consuming. The provision of a 
grandfather certificate and a description of a gaming system's 
component are small matters as that information can be taken directly 
from a testing laboratory's report.
    Accordingly, based upon the discussions with leading testing 
laboratories and with manufacturers for the Indian gaming and non-
Indian gaming markets, the Commission estimates that gathering and 
preparing documentation for a submission of a single, complete gaming 
system will require, on average, 8 hours for a manufacturer's employee. 
The Commission estimates that following examination and analysis, 
writing a report for a complete gaming system will require, on average, 
10 hours of a laboratory engineer's time. For the submission of 
modifications to a gaming system, the Commission estimates 4 hours for 
a manufacturer's employee. For the report on a modification, the 
Commission estimates 5 hours for a laboratory engineer.
    Thus, the information collection requirements will be a 200-hour 
burden on manufacturers industry-wide during the first 120 days after 
the Technical Standards become effective and a 1,200-hour burden 
industry-wide thereafter. The information collection requirements will 
be a 250-hour burden on laboratories for the grandfather submissions 
made during the first 120 days and a 1,500-hour burden thereafter.
    Next, the Commission anticipates that tribal gaming regulatory 
authorities will issue grandfather certificates to manufacturers and 
send a description of grandfathered systems to the Commission for all 
of the approximately 25 existing gaming systems. The preparation of 
these certificates and descriptions will be a small matter as all of 
the necessary information is contained in the testing laboratory 
reports and will take no more than 0.5 hours to prepare.
    Finally, the Technical Standards require tribal gaming regulatory 
authorities to maintain laboratory reports as long as the game system 
or modification at issue is available for play. This, however, is a 
ministerial function that involves little more than filing, and 
occasionally retrieving, the report. As this is already common practice 
among tribal gaming regulatory authorities, the Commission estimates 
that 0.1 hours per report will be dedicated to these tasks.
    The following table summarizes the annual hour burden:

[[Page 60514]]



 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                 Collections,
                                                           Number of   Collections,    Hours per       Total        day 121      Hours per      Total
           Provision                   Respondents        respondents  1st 120 days   collection      annual     forward, per   collection      annual
                                                                                                       hours         annum                      hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
25 CFR 547.4..................  Laboratories............            5            25          10           250             300           5          1,500
25 CFR 547.4..................  Manufacturers...........           20            25           8           200             300           4          1,200
25 CFR 547.4..................  Tribal Gaming Operations          226             0           0             0               0           0              0
25 CFR........................  Tribal Gaming Regulatory          226            25            .5          12.5           300           0.1           30
                                 Authorities.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The Technical Standards require a determination of suitability for 
each of the approximately 5 testing laboratories. The information 
required can be substantial: Corporate financial information; 
qualifications of the engineering staff; information (and inspections) 
of the engineering facilities available; and personal information for 
principals, including tax returns, bankruptcies and lawsuits, work 
histories, and references.
    However, the 5 existing testing laboratories have already collected 
and provided this information--multiple times--in order to be licensed 
in tribal and non-tribal gaming jurisdictions nationwide. The 
Commission estimates that the re-submission of such information would 
take the necessary laboratory employees 20 hours to accomplish once. As 
the gaming tribes typically use only one gaming laboratory, the 
submission of suitability determinations to 226 tribal gaming 
regulatory authorities would total 4,520 hours.
    The Commission believes, however, that the hour burden is not 
likely to be nearly this high. Rather than require each tribal gaming 
regulatory authority to make a new suitability determination for each 
testing laboratory it uses, the Technical Standards permit a tribal 
gaming regulatory authority to rely upon a suitability determination 
already made by another gaming jurisdiction in the United States. The 
existing testing laboratories are already licensed or approved in 
numerous jurisdictions throughout the United States, and the Commission 
believes that approximately 90%--203 of 226--of the tribal gaming 
authorities will accept existing suitability determinations from other 
jurisdictions or will already have made one under their own vendor 
licensing programs. The submission by a testing lab of an existing 
suitability determination amounts to the writing of a letter. The 
Commission estimates that the submission of such letters will take the 
necessary laboratory employees 0.5 hours to accomplish once. As each of 
the gaming tribes typically uses only one gaming laboratory, the 
submission of suitability determinations to 203 tribal gaming 
authorities would total 101.5 hours. For the remaining 10% or 23 tribal 
gaming regulatory authorities, the submission burden on laboratories is 
20 hours per tribe or 460 hours.

Review of Public Comments Concerning Information Collections

    On February 19, 2008, the Office of Management and Budget (OMB) 
took action on the Commission's request for approval of the information 
collections in the Technical Standards and required the Commission to 
explain how it has ``maximized the practical utility of the collection 
and minimized the burden.'' OMB required as well that the Commission 
respond to public comment on the information collections.
    The Commission has maximized the utility of the information 
collections and minimized the burden on the industry by adopting 
industry-standard practices already required and in place across non-
tribal gaming throughout North America and already common in tribal 
gaming. In this way, the Technical Standards require little that is 
new.
    First and foremost, as stated above, the review of gaming systems 
by testing laboratories and their subsequent approval by tribal gaming 
regulatory authorities is essential to the integrity of Indian gaming. 
The process enables tribal gaming regulators to ensure that games are 
implemented fairly, that all gaming systems are secure and function 
properly, and that the tribes and operators are able to properly 
account for gaming revenue. This process and the information 
collections that it necessitates are already in place.
    Independent testing laboratories owe their very existence to the 
widespread use of this practice. They are, in essence, in the business 
of testing and examining gaming equipment against a set of regulatory 
standards and then issuing a report of their findings. They are, thus, 
already set up to comply with the information collections required by 
the Technical Standards. Likewise, gaming manufacturers are already in 
the business of submitting gaming equipment and software for laboratory 
review and are already set up to provide the information collections 
required here. What is more, many tribal gaming regulatory authorities 
already require manufacturers to submit gaming equipment and software 
to testing laboratories for review and already keep the resulting 
reports, just as a matter of sound regulatory practice. The Technical 
Standards merely make the requirement applicable nationwide.
    The Technical Standards reduce the information collection burden on 
tribes, manufacturers, and testing laboratories by rules of common 
sense and non-repetition. There are 226 gaming tribes, and 
manufacturers, of course, seek to sell gaming systems to as many tribes 
as possible. The Technical Standards do not require that a gaming 
system be resubmitted to a testing laboratory for each tribal gaming 
operation. Once a testing laboratory has issued a report for a given 
gaming system or modification, every tribal gaming regulatory authority 
may rely upon it. Further, the information collection burden 
surrounding the submission, review, and approval of gaming equipment 
and software is eased still further in that the Technical Standards 
permit electronic means of providing, receiving, and storing 
information at the convenience of all parties concerned.
    Second and finally, as stated above, the Technical Standards 
require testing laboratories to submit to suitability determinations by 
tribal gaming regulatory authorities. Again, assuring the competence, 
integrity, and independence of the testing laboratories and the 
suitability of their decision-makers is essential to the integrity of 
gaming. This information collection, though essential, has the 
potential to be burdensome. The Technical Standards reduce this burden 
as much as is practicable.
    Again, the Technical Standards piggy-back on processes already 
established.

[[Page 60515]]

The existing testing laboratories have already collected and provided 
the necessary information--multiple times--in order to be approved in 
tribal and non-tribal gaming jurisdictions nationwide. Similarly, the 
Technical Standards reduce unnecessary duplication. Testing 
Laboratories need not submit 226 separate suitability applications. 
Tribal gaming regulatory authorities are free to accept any suitability 
determination made by any state or tribal regulatory authority in the 
United States. Finally, electronic submission, receipt, and maintenance 
of this information collection is permitted.
    For all of these reasons, then, the Commission believes that the 
Technical Standards have maximized the practical utility of the 
information collections they require while at the same time minimizing 
the burden they place upon the industry.

Paperwork Reduction Act Comments

    Comment: One commenter stated that the Commission did not properly 
figure the burden upon tribes of the information collection burdens 
imposed by the Technical Standards. The Commission's focus was on the 
burdens on gaming laboratories, which are not burdened at all since 
their services are compensated.
    Response: The Commission disagrees. The Commission's cost estimates 
do, in fact, list the 226 tribal gaming operations and 226 tribal 
gaming regulatory authorities as respondents. The burden upon them is 
minimal, however. Though the tribal gaming regulatory authority or 
gaming operation may choose to submit a Class II gaming system to a 
testing laboratory for evaluation, the standard practice is to place 
that obligation on the manufacturers. They are the ones best situated 
to provide all necessary prototype hardware, software and documentation 
to the testing laboratories and to respond to testing laboratory 
concerns and inquiries. Indeed, manufacturers already have such systems 
set up for compliance with the regulatory requirements of commercial 
gaming jurisdictions. The emphasis on the information collection 
burdens is, therefore, properly on the manufacturers and the 
laboratories. The burden upon the tribes is minimal and involves 
retaining laboratory reports, a standard existing practice; identifying 
a finite number of grandfathered Class II gaming systems to the 
Commission; and suitability determinations of laboratory principals.
    Comment: A few commenters stated that because the Technical 
Standards will take effect ``all at once,'' the Commission 
underestimates the turnover rate of gaming systems and the associated 
paperwork burdens.
    Response: The Commission disagrees. The Technical Standards provide 
for a five-year grandfather period in which existing Class II gaming 
systems may be brought into compliance. The Commission believes that 
existing Class II systems will be brought closer to or into compliance 
due to regular upgrades, and the Technical Standards specifically allow 
for this possibility. 547.4(b)(4). The Commission further believes that 
many new, compliant systems will be brought to market over this period, 
as they have during other five-year periods. Neither market condition 
suggests an immediate turnover of existing gaming systems or that the 
Commission underestimated the paperwork burden associated with 
turnover.
    Comment: A few commenters stated that the Commission has failed to 
take any steps to minimize information collection burdens by providing 
for the use of automated information collection, maintenance or 
submission techniques.
    Response: The Commission disagrees. There is no limitation in the 
Technical Standards on the technology usable for information 
collections. Paperless submission, maintenance, and collection of 
information is perfectly acceptable.
    Comment: One commenter stated that the Commission underestimates 
the time it will take the testing laboratories to test Class II gaming 
systems for grandfather compliance, depending on whether the software 
random number generator has already been approved. The commenter 
therefore recommends revising upward the hours burden on the testing 
laboratories.
    Response: Whether or not the Commission underestimated the time 
laboratory testing may take, this is not an information burden placed 
upon the testing laboratories. The information burden refers to the 
time it will take the testing laboratory to write the reports of their 
findings and results. That time does not change, even if the time for 
testing does.

National Environmental Policy Act

    The Commission has determined that the Technical Standards do not 
constitute a major federal action significantly affecting the quality 
of the human environment and that no detailed statement is required 
pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. 
4321 et seq.).

Review of Public Comments

    A number of commenters made miscellaneous editorial suggestions not 
intended to change the substance of the Technical Regulations but to 
improve sentence structure, correct grammar, preserve consistency of 
usage throughout the document, etc.
    Response: The Commission has accepted all such changes where they 
improve clarity and editorial consistency, and these are reflected 
throughout the final rule. Substantive changes are addressed in the 
responses to comments below.

General Comments

    Comment: A number of commenters objected to the adoption of the 
Technical Standards and request their withdrawal unless the Commission 
accept, without alteration, the draft of the Technical Standards 
provided to it by its tribal advisory committee. Based upon these 
differences, and the inability of the Commission to come to consensus 
with the advisory committee about them, others commenters asked that 
the Commission not proceed with the Technical Standards but return to 
the advisory committee for further drafting and for consultation with 
tribes.
    Response: As said above, the Commission greatly values and 
appreciates the work on the technical standards done by the tribal 
advisory committee and the working group of tribal leaders, tribal 
regulators, and manufacturers who advised them. During drafting, the 
Commission did state to the Committee members that their role was 
advisory and that the Commission could, as the final decision-maker, 
choose to depart from the draft provided. The Commission believes that 
this was appropriate insofar as this is consistent with its federal 
regulatory oversight mission. Nonetheless, most of what the Commission 
proposed as part 547 was taken verbatim from the draft that the 
advisory committee supplied.
    There were, of course, some departures from the advisory 
committee's draft, and the one that has received the most comments--all 
in opposition--is the requirement that compliance with the Technical 
Standards also requires compliance with the proposed part 546, 
classification standards. As the Commission has withdrawn the proposed 
classification standards (see notice of withdrawal published 
simultaneously), the Commission has removed all references to them.
    Nonetheless, the rule still departs from the recommended draft in a 
few

[[Page 60516]]

ways. The rule still requires a certain minimum probability, the recall 
of entertaining displays, and hardware compliance. As explained in 
detail below, the Commission believes that these requirements are 
appropriate. That said, in order to stay abreast of advances in 
technology, the Commission intends to regularly revisit its technical 
standards, and in doing so it will pay particular attention to these 
provisions that have caused such disagreement. In so doing, the 
Commission intends to consult further.
    Other departures from the advisory committee draft have been raised 
as comments, and the Commission's responses to those comments are also 
set out below.
    Comment: Several comments stated that the comment period was not 
long enough.
    Response: In the October 24, 2007 notice of proposed rulemaking, 
the Commission initially provided that the comment period would end on 
December 10, 2007, a period of 47 days. Because early comments 
requested additional time, the Commission extended the comment period 
until March 9, 2008, creating a total comment period of 138 days 
(including the date of publication). The Commission believes that this 
period was more than sufficient, given the extensive and thoughtful 
comments it received and that have informed this final rule.
    Comment: A number of commenters faulted the Commission's 
consultation with tribes about the Technical Standards. Some stated 
that the Commission's use of advisory committees was not a substitute 
for consultation. Others stated that the Commission did not consult, or 
consult sufficiently, on the Technical Standards, particularly after 
the advisory committee provided its final draft to the Commission.
    Response: The Commission stands by its record on consultation. The 
Commission does not believe that its use of the advisory committee was 
a substitute for consultation, and it has set out the details of its 
consultations above.
    As to the quality of consultation, some commenters fault the 
Commission for not allotting sufficient time for individual 
consultation sessions. The Commission understands and appreciates this 
concern. The Commission would point out, however, that it goes to great 
time and expense traveling to large regional and national gaming 
association meetings to make itself available for consultations, and 
this minimizes the burdens of time and expense for the tribes. The 
Commission would point out as well that with approximately 225 tribes 
engaged in gaming, balancing the time spent in consultations on the one 
hand with the Commission's other duties and obligations on the other is 
difficult. Further, the Commission believes that the criticism 
concerning the quality of consultation about the technical standards, 
however, is an unfair one, when only 25% of the tribes accepted 
invitations for consultation between September 2005 and December 2007 
and only a minority of those that accepted actually chose to discuss 
the Technical Standards.
    That said, the Commission recognizes that there are many views 
about what consultation is and how it may best be done. The Commission 
is not married to its consultation practices and has already begun a 
dialogue and collaboration with tribal leaders, through the National 
Congress of American Indians and the National Indian Gaming 
Association, about finding mutually satisfactory methods of 
consultation.
    Finally, the Commission would note that its extensive consultation 
was successful and resulted in significant changes to the Technical 
Standards--all for the better, the Commission believes. Most prominent 
among these was the Commission's decision to abandon its first proposed 
technical standards to begin the process of drafting technical 
standards over again from the beginning.
    Comment: A number of commenters suggested that the Technical 
Standards will, alone or in combination with the proposed 
Classification standards and MICS, have a devastating economic effect 
on Class II gaming, as demonstrated by the Commission's own economic 
impact study. These and other commenters felt that study is itself 
flawed, as it both improperly calculates some economic effects and 
ignores others, such as local effects and costs. In addition to the 
obvious direct economic consequences, a few commenters also saw a loss 
of negotiating power in future dealings with the states.
    Response: The Commission disagrees. The Commission does not see an 
economic collapse of Class II gaming as a result of the Technical 
Standards. There is no support for that proposition. While the economic 
impact study of Dr. Alan Meister of the Analysis Group does find that 
there will be costs to comply with the Technical Standards, the vast 
majority of the economic impact from the set of four regulations 
proposed in October 24, 2007, stems from the projected revenue loss and 
the compliance costs associated with the now-discarded classification 
standards. This is so, even assuming the calculation and under-counting 
criticisms of the study are in fact correct.
    Further, the Commission's cost-benefit analysis finds that the 
Technical Standards, considered independently, are not a major rule. 
They impose an annual cost of approximately $3 million--hardly an 
onerous cost when compared to the $25 billion in gross gaming revenue 
the industry earned in 2007. Taken together with the proposed Class II 
MICS, the annual costs are not much higher. Adoption of the Technical 
Standards, therefore, alone or with the MICS, will not imperil the 
viability of Class II gaming and will not impair the tribes' 
negotiating power in dealings with the states.
    Comment: One commenter felt that the Technical Standards will not 
work because they are built upon the mistaken assumption that Class II 
gaming is based upon gaming components.
    Response: The Commission disagrees. The Technical Standards do not 
assume that Class II gaming is based upon components. Central to the 
Technical Standards is the idea of the Class II gaming system, which 
allows the Technical Standards to address all of the various ways that 
Class II games can be played. The notion of the ``gaming system,'' for 
example, encompasses bingo whether it is played electronically on 
client-server architectures, with ping pong balls drawn from a hopper 
and cards marked by an electronic minder purchased at a point-of-sale 
retail station, or with some other system. Necessarily, then, the 
definition of system makes reference to ``components,'' for it is the 
unique collection of components that makes up a gaming system. It is, 
however, the system, and not individual components, that must comply 
with the requirements of the Technical Standards.
    Comment: A number of commenters suggested that the Commission's 
rule-making process was itself flawed, over and above any consideration 
of economic effect the Technical Standards might have. Some commenters 
felt that the Commission is not an independent regulatory agency and, 
as such, it has failed to comply with the requirements of Executive 
Orders 12875, 12866, and 13175 and the Unfunded Mandates Reform Act. 2 
U.S.C. 658(1); 1502(1). A few felt that the Commission has failed to 
comply with the Federal Advisory Committees Act (FACA) or the 
Government Performance and Results Act (GPRA). Others felt that the 
Commission should not have published

[[Page 60517]]

the proposed rules before the economic impact study was ready and 
should have considered other regulatory alternatives. Others still find 
that the regulations, if made final, would result in a regulatory 
taking, contrary to the Commission's finding in the proposed rule.
    Response: The Commission disagrees. Congress has made abundantly 
clear that it intended the Commission to be an independent regulatory 
agency and, as such, exempt from the requirements of these Executive 
Orders and the Unfunded Mandates Reform Act. The Senate report 
accompanying the passage of IGRA provides Congress's intention clearly 
and unambiguously: The bill ``established a National Indian Gaming 
Commission as an independent agency within the Department of 
Interior.'' S. Rep. No. 100-446, at 1 (1988). When it amended IGRA in 
2005, Congress reiterated its intention:

    Additionally, it is to be noted that the NIGC is an independent 
regulatory agency. This status has ramifications, including, that 
the agency is not governed by Executive Order 13175, which compels 
agencies other than independent regulatory agencies to consult 
tribal officials in the development of regulatory policies that have 
tribal implications. The Executive Order encourages independent 
agencies to observe its precepts, however, and the Committee notes 
with approval that the Commission, through its current consultation 
policy, has endeavored to do so.

S. Rep. No. 109-122 at 3 (2005).

    As to the publication of the economic analysis after publication of 
the rule, that, while not ideal, did not deprive the industry or the 
interested public of the benefit of the report, as the careful comments 
submitted about its methodological failings make clear. Likewise, the 
Commission has considered regulatory alternatives, not the least of 
which is its withdrawal of the proposed Classification standards.
    As to compliance with FACA, the Commission's advisory committees 
are exempt from the requirements of FACA because the non-Commission 
members were elected officials of tribal governments, or their 
authorized designees, acting in their official capacities. 41 CFR 102-
3.40(g).
    As to compliance with GPRA, the Commission agrees that Public Law 
109-221, the Native American Technical Corrections Act of 2006, 
provides that the NIGC shall be subject to the GPRA. On September 30, 
2007, the NIGC submitted a draft performance and accountability report 
with the Office of Management and Budget for review. The Commission is 
currently making revisions to its GPRA plan.
    Further, on September 18, 2008, the Commission released a draft 
five-year strategic plan to tribes,