Notice of Inquiry and Request for Information; Notice of Consultation, 70680-70686 [2010-29028]

Agencies

• National Indian Gaming Commission

[Federal Register Volume 75, Number 222 (Thursday, November 18, 2010)]
[Notices]
[Pages 70680-70686]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-29028]


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NATIONAL INDIAN GAMING COMMISSION


Notice of Inquiry and Request for Information; Notice of 
Consultation

AGENCY: National Indian Gaming Commission.

ACTION: Notice of inquiry; notice of Tribal consultations.

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    Authority: 25 U.S.C. 2706(b)(10); E.O. 13175.
SUMMARY: This Notice of Inquiry and Notice of Consultation advises the 
public that the National Indian Gaming Commission (NIGC) is conducting 
a comprehensive review of all regulations promulgated to implement the 
Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2701 et seq. The 
Commission is taking a fresh look at its rules in order to determine 
whether amendments are necessary to more effectively implement IGRA's 
policies of protecting Indian gaming as a means of generating Tribal 
revenue, ensuring that gaming is conducted fairly and honestly by both 
the operator and players, and ensuring that Tribes are the primary 
beneficiaries of gaming operations. The Commission's

[[Page 70681]]

challenge is to adapt its rules to ensure that they promote these 
values into the future. This review is also being prepared in order to 
submit the NIGC's Semi-Annual Regulatory Review to the Federal Register 
in April 2011 as required by Executive Order 12866 entitled 
``Regulatory Planning and Review'' and the Regulatory Flexibility Act, 
5 U.S.C. 601 et seq. In compliance with Executive Order 13,175 entitled 
``Consultation and Coordination with Indian Tribal Governments,'' the 
NIGC will hold eight consultations during January and February 2011. 
This Notice of Inquiry invites comments and information that will 
assist the NIGC in understanding the need for revising any or all of 
the regulations outlined below. The consultations and public comments 
requested in this Notice are intended to assist the NIGC with 
completion of the review and in establishing priorities.
    Following completion of the consultation and written comment 
period, the NIGC will review all comments received and create a 
comprehensive regulatory review agenda schedule. The public comment 
period ends February 12, 2011. The regulatory review agenda will be 
released in April 2011 and will include a summary explaining why the 
NIGC agreed or disagreed with the comments received and why the 
regulatory review agenda took its final form.

DATES: Submit comments on or before February 11, 2011. See Consultation 
Meetings, Dates and Locations under SUPPLEMENTARY INFORMATION below for 
the dates, times, and locations of consultation meetings.

ADDRESSES: Testimony and comments sent by electronic mail or delivered 
by hand are strongly encouraged. Electronic submissions should be 
uploaded on the NIGC Web site, https://www.nigc.gov, or e-mailed to 
reg.review@nigc.gov. See Electronic Submissions, File Formats And 
Required Information under SUPPLEMENTARY INFORMATION below for 
instructions. Testimony and comments delivered by hand should be 
brought to the consultations. See Consultation Meetings, Dates and 
Locations under SUPPLEMENTARY INFORMATION below for the dates, times, 
and locations of consultation meetings. Submissions sent by regular 
mail should be addressed to Lael Echo-Hawk, Counselor to the Chair, 
National Indian Gaming Commission, 1441 L Street, NW., Suite 9100, 
Washington, DC 20005.

FOR FURTHER INFORMATION CONTACT: Lael Echo-Hawk, National Indian Gaming 
Commission, 1441 L Street, NW., Suite 9100 Washington, DC 20005. 
Telephone: 202/632-7009; e-mail: reg.review@nigc.gov.

SUPPLEMENTARY INFORMATION:

I. Consultation Meetings, Dates and Locations

    Eight Tribal consultations will be held on the following dates, 
times and locations. Every attempt was made to hold a consultation in 
each region and to coordinate with other established meetings when 
establishing this consultation schedule. Please RSVP to 
consultation.rsvp@nigc.gov.

Week 1

    January 11, 2011, from 9 a.m. to 4 p.m. at the U.S. Grant Hotel, 
326 Broadway, San Diego, CA 92101.
    January 12, 2011, from 9 a.m. to 4 p.m. at the Cache Creek Casino 
Resort, 14455 Highway 16, Brooks, CA 95606.
    January 14, 2011, from 9 a.m. to 4 p.m. at the Little Creek Resort, 
91 W. State Rout 108, Shelton, WA 98584.

Week 2

    January 18, 2011, from 9 a.m. to 4 p.m. at the Hyatt Regency Tamaya 
Resort and Spa, 1300 Tuyuna Trail, Santa Ana Pueblo, NM 87004.
    January 20, 2011, from 9 a.m. to 4 p.m. at the Riverwind Casino-
Hotel, 1544 West Highway 9, Norman OK 73072).

Week 3

    January 24, 2011, from 9 a.m. to 4 p.m. at the Department of the 
Interior--South Interior Auditorium, 1951 Constitution Ave., NW., 
Washington, DC 20240.

Week 4

    February 1, 2011, from 9 a.m. to 4 p.m. at the Best Western Ramkota 
Inn, 2111 North La Crosse St., Rapid City, SD 57701.
    February 3, 2011, from 9 a.m. to 4 p.m. at the Seminole Hard Rock 
Hotel & Casino, 1 Seminole Way, Hollywood, FL 33314.
    For additional information on consultation locations and times, 
please refer to the Web site of the National Indian Gaming Commission, 
https://www.nigc.gov. Please RSVP at consultation.rsvp@nigc.gov.

II. Electronic Submissions, File Formats And Required Information

    If submitting by Web site: Participant must complete a form 
containing the name of the person making the submission, his or her 
title and Tribe or organization (if the submission of an organization), 
mailing address, telephone number, fax number (if any) and e-mail 
address. The document itself must be sent as an attachment, and must be 
in a single file and in recent, if not current versions of: (1) Adobe 
Portable Document File (PDF) format (preferred); or (2) Microsoft Word 
file formats.
    If submiting by electronic mail: Send to reg.review@nigc.gov, a 
message containing the name of the person making the submission, his or 
her title and organization (if the submission of an organization), 
mailing address, telephone number, fax number (if any) and e-mail 
address. The document itself must be sent as an attachment, and must be 
in a single file and in recent, if not current versions of: (1) Adobe 
Portable Document File (PDF) format (preferred); or (2) Microsoft Word 
file formats.
    If submitting by print only: Anyone who is unable to submit a 
comment in electronic form should submit an original and two paper 
copies by hand or by mail to the appropriate address listed above. Use 
of surface mail is strongly discouraged owing to the uncertainty of 
timely delivery.
    Copies of the written comments received and any other material may 
be reviewed on the Tribal Consultation Web page of the NIGC Web site 
located at https://www.nigc.gov.

III. Background

    The Indian Gaming Regulatory Act (IGRA or Act) (Pub. L. 100-497), 
25 U.S.C. 2701 et seq., was signed into law on October 17, 1988. The 
purpose of the IGRA was to provide a statutory basis for the operation 
of gaming by Indian Tribes as a means of promoting Tribal economic 
development, self-sufficiency, and strong Tribal governments; to 
provide a statutory basis for the regulation of gaming by an Indian 
Tribe adequate to shield it from organized crime and other corrupting 
influences; to ensure that the Indian Tribe is the primary beneficiary 
of the gaming operation; to ensure that gaming is conducted fairly and 
honestly by both the operator and players; and to declare that the 
establishment of independent Federal regulatory authority for gaming on 
Indian lands, the establishment of Federal standards for gaming on 
Indian lands, and the establishment of a National Indian Gaming 
Commission are necessary to meet congressional concerns regarding 
gaming and to protect such gaming as a means of generating Tribal 
revenue. 25 U.S.C. 2702.
    The IGRA authorizes the NIGC to promulgate such regulations and 
guidelines as it deems appropriate to implement the provisions of the 
Act. 25 U.S.C. 2706(b)(10). The undertaking of this review facilitates 
effective

[[Page 70682]]

implementation of IGRA and coincides with Executive Order 12866 
entitled ``Regulatory Planning and Review'' providing for Federal 
entities to identify agency statements of regulatory priorities and 
additional information about the most significant regulatory activities 
planned for the coming year. Additionally, pursuant to the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.), agencies publish semiannual 
regulatory flexibility agendas in the Federal Register identifying 
those rules that may have a significant economic impact on a 
substantial number of small entities. In the spirit of transparency and 
accountability set forth by the President of the United States, the 
NIGC wishes to provide a comprehensive regulatory review schedule and 
agenda created after meaningful consultation.
    Additionally, Executive Order 13175 entitled ``Consultation and 
Coordination with Indian Tribal Governments,'' provides for the NIGC to 
engage in meaningful consultation with Tribal governments prior to 
taking an action that has Tribal implications. Through the development 
of a comprehensive regulatory review, and in meaningful consultation 
with Tribes, the NIGC hopes to identify those areas of the regulations 
that need revision, and in further consultation, to revise the 
regulations as necessary to serve the current needs of the Tribal 
gaming industry.
    Over the past several years, the NIGC has adopted, amended and 
attempted to amend a number of regulations, including a facility 
licensing regulation, Class II and Class III Minimum Internal Control 
Standards, and Class II Technical Standards. The current Commission 
understands that some interested parties believe that many of the 
NIGC's regulations need updating or continued revisions. Consistent 
with Executive Order 13175, consultation should occur before revisions 
or amendments to regulations. In the past, consultation has often taken 
the form of a Tribal Advisory Committee (TAC) used to assist the NIGC 
in drafting the regulations. However, neither the method of appointing 
members to the TAC nor the joint process of drafting regulations has 
been without controversy or costs. The Commission recognizes that in 
order for regulation review and revision to occur that benefits and 
protects the entire Tribal gaming industry, all points of view must be 
considered and a decision made based on all comments received by the 
Commission. The Commission seeks advice and input as to how that goal 
can best be accomplished.
    The Commission also requests comment on whether changes to Class II 
MICS, Class II Technical Standards and Class III MICS are necessary. 
Currently, the Commission is examining the Class II MICS regulations 
and how to address the Class III MICS in the wake of the Colorado River 
Indian Tribes decision. The Commission is seeking advice and input as 
to how to provide necessary updates to the regulations consistent with 
Federal law, Tribal sovereignty and Tribal expertise in the day-to-day 
operations.
    In sum, the NIGC requests comments about which regulations are most 
in need of revision, in what order of priority those regulations should 
be addressed and the process the NIGC should utilize to make revisions.

IV. Regulations Which May Require Amendment or Revision

A. Part 502--Definitions of This Chapter

    The NIGC is particularly interested in receiving comments on 
whether any of the definitions in part 502 are in need of revision and 
whether any additional definitions are necessary to protect gaming as a 
means of generating Tribal revenue. In particular, the NIGC is 
interested in receiving comment on whether the following terms need 
further clarification:
    (1) Net Revenues. Over the years, Tribes, CPAs, and others have 
raised the issue of whether there should be different definitions for 
Net Revenues when defining what the management fee will be based on 
pursuant to the IGRA, 25 U.S.C. 2711; or determining net revenues to be 
used for the allowable purposes as defined by the IGRA. 25 U.S.C. 
2710(b). Should the Commission consider definitions for the following 
two terms: Net Revenues--management fee; and Net Revenues--allowable 
uses?
    (a) Net Revenues--management fee. General Accepted Accounting 
Principles (GAAP) define Net Income as ``Gross Revenues (less 
Complimentary Sales) subtracting Operating Expenses and Interest and 
Depreciation.'' NIGC defines Net Revenue as ``Net Income plus 
Management Fee,'' which is used by the Commission as the base number to 
calculate the management fee when the fee is a percentage on net 
revenue. Should the language used in the Commission's definition of Net 
Revenues be revised to be consistent with GAAP, i.e., ``Net Income plus 
Management Fee''?
    (b) Net Revenues--allowable uses. The IGRA, 25 U.S.C. 
2710(b)(2)(B), states ``net revenues from any Tribal gaming are not to 
be used for purposes other than: (i) To fund Tribal government 
operations or programs; (ii) to provide for the general welfare of the 
Indian Tribe and its members; (iii) to promote Tribal economic 
development; (iv) to donate to charitable organizations; or (v) to help 
fund operations of local government agencies.''
    Tribes, Tribal gaming commissions, and CPAs have commented that 
prior to making any decisions for allowable uses of net revenues, the 
Tribal parties should first consider the cash flow of the gaming 
operation (i.e. deduct principal loan payments, deduct reserve, add 
depreciation). In addition, others have stated that Tribal parties 
should also consider the overall financial integrity of the gaming 
operation before funding other Tribal programs.
    Should the Commission consider adding a new definition for Net 
Revenues--allowable uses that is based on cash flow? For example, 
should the new definition be ``Cash flow'' equals ``Net Income plus 
depreciation minus principal loan payments and reserve fundings''? Is 
there another calculation that this definition could be based on?
    The Commission is seeking advice and input from the Tribal gaming 
industry about these proposed definition revisions, if there are other 
definitions that need revisions, whether it should be a priority, and 
whether a Tribal Advisory Committee should be formed to make these 
change or if another process will be sufficient.
    (2) Management Contract. Should the definition of management 
contract be expanded to include any contract, such as slot lease 
agreements, that pays a fee based on a percentage of gaming revenues?
    Management contractors sometimes believe that the manager should be 
reimbursed for expenses in addition to earning a management fee or may 
be paid multiple fees for development, loans, marketing, and non-gaming 
management in addition to the gaming management fee. These accumulated 
payments may result in the manager receiving sums greater than cash 
flow to the Tribe. Should there be a definition regarding acceptable 
compensation to a manager contractor?
    The Commission is seeking comment about whether the Commission 
should consider amendments to existing definitions or whether 
additional definitions are necessary, how the Commission should 
prioritize its review of part 501 in the regulatory review process, and 
whether the Commission should utilize standard notice and comment 
rulemaking, a Tribal Advisory

[[Page 70683]]

Committee to assist in its regulatory review of this part, or another 
process.

B. Part 514--Fees

    The NIGC is interested in receiving comments on whether part 514 is 
in need of revision. In particular, the Commission is interested in 
receiving comment on whether the Commission should consider revising 
this part to base fees on the gaming operation's fiscal year. 
Currently, the fee is calculated based on the calendar year. The 
Commission understands that it may be difficult to accurately calculate 
fees based on the calendar year, which may lead to frequent audit 
adjustments. The Commission is asking for comment on whether this issue 
may be resolved by changing ``calendar'' to ``fiscal'' throughout part 
514. Further, if this is a revision that the Commission should 
consider, the Commission is interested in receiving comment on how to 
implement the revision. For example, should the Commission consider a 
revision that would provide for implementation over the course of a 12 
to 18 month period with an option for the Tribe to determine when they 
will change their calculation during that time period? On what dates or 
by what schedule should the Commission set fee rates if this revision 
is implemented, given that Tribes have different fiscal years? Is this 
a revision that would be more efficient? Is this a revision that the 
Commission should prioritize?
    Should the Commission consider amending this part to define gross 
gaming revenue consistent with the GAAP definition of this term? Would 
amending this definition to industry standards make the fee easier to 
calculate and to reconcile?
    Should the Commission consider amending this part to include 
fingerprint processing fees? If so, how should the Commission consider 
including fingerprint processing fees? Should it specify that fees 
collected from gaming Tribes for processing fingerprints with the FBI 
are included in the total revenue collected by the Commission that is 
subject to statutory limitation? Should the Commission include a 
requirement for it to review fingerprint processing costs on an annual 
basis and, if necessary, adjust the fingerprint processing fee 
accordingly?
    Finally, should the Commission consider a late payment system in 
lieu of a Notice of Violation (NOV) for submitting fees late? In the 
past, when a Tribe paid their fees after the deadline, we understand 
that a NOV may have been issued to the Tribe. As a NOV could lead to 
closure of a gaming facility, the Commission questions whether an NOV 
is an appropriate response to a late fee submittal caused by a change 
in employees or other minor issue. Should the Commission consider 
adding a type of ``ticket'' system to part 514 so that an NOV would 
only be issued in instances of gross negligence or wanton behavior, or 
in a dollar amount that allowed the Tribe to reap an economic benefit 
from its failure to pay in a timely manner?
    The Commission is seeking comment on the above particular issues as 
well as other suggested revisions to this part, how the Commission 
should prioritize its review of part 514 in the regulatory review 
process, and whether the Commission should utilize standard notice and 
comment rulemaking, a Tribal Advisory Committee to assist in its 
regulatory review of this part, or another process.

C. Part 518--Self-Regulation of Class II

    The NIGC has heard that this regulation is overly burdensome to 
Tribes seeking to obtain certification and that the burden of 
completing the process significantly outweighs the benefits gained from 
self-regulation. The Commission is seeking comment on whether this part 
should be revised, how the Commission should prioritize its review of 
part 518 in the regulatory review process, and whether the Commission 
should utilize standard notice and comment rulemaking, a Tribal 
Advisory Committee to assist in its regulatory review of this part, or 
another process.

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

    Should the Commission consider eliminating part 523 as obsolete? 
The regulation applies only to gaming ordinances enacted by Tribes 
prior to January 22, 1993, and not submitted to the Chairwoman. The 
Commission believes there may no longer be any such ordinances. The 
Commission is seeking comment on whether this part should be 
eliminated, how the Commission should prioritize its review of part 523 
in the regulatory review process, and whether the Commission should 
utilize standard notice and comment rulemaking, a Tribal Advisory 
Committee to assist in its regulatory review of this part, or another 
process.

E. Management Contracts

(1) Part 531--Collateral Agreements
    Should the Commission consider whether it has authority to approve 
collateral agreements to a management contract? The current definition 
of management contract includes collateral agreements if they provide 
for the management of all or part of a gaming operation. The Commission 
has taken the position that although the collateral agreements must be 
submitted, the Commission only approves management contracts. Some 
Tribes have asked the Commission to review the management contract and 
the collateral agreements and to make a determination as to whether the 
cumulative effect of the agreements violate the sole proprietary 
provisions of the IGRA. For example, while the gaming management 
contract may only require a payment of 5% of the net gaming revenue, 
combined with the provisions of the collateral agreements, the Tribe 
may be paying in excess of 80% of gross gaming revenue which results in 
a net loss for the Tribe.
    The Commission is seeking comment on whether this part should be 
revised, how the Commission should prioritize its review of part 531 in 
the regulatory review process, and whether the Commission should 
utilize standard notice and comment rulemaking, a Tribal Advisory 
Committee to assist in its regulatory review of this part, or another 
process.
(2) Part 533--Approval of Management Contracts
    This part outlines the submission requirements for management 
contracts. While the Commission has disapproved management contracts 
for a variety of reasons including the trustee standard, the Commission 
seeks comment on whether an amendment would clarify the trustee 
standard by adding the following two grounds for possible disapproval 
under Sec.  533.6(b): The management contract was not submitted in 
accordance with the submission requirements of 25 CFR part 533, or the 
management contract does not contain the regulatory requirements for 
approval pursuant to 25 CFR part 531.
    The Commission is seeking comment on whether this part should be 
revised, how the Commission should prioritize its review of part 533 in 
the regulatory review process, and whether the Commission should 
utilize standard notice and comment rulemaking, a Tribal Advisory 
Committee to assist in its regulatory review of this part, or another 
process.
(3) Part 537--Background Investigations for Persons or Entities With a 
Financial Interest in, or Having Management Responsibility for, a 
Management Contract
    This part addresses the background investigation submission 
requirements

[[Page 70684]]

for the management contractor. Although minor revisions were made in 
2009, there appears to be some confusion about whether the contractor 
should be required to submit the Class II background information when 
the contract is only for Class III gaming. IGRA does specify approval 
of Class II and Class III management contracts as a power of the 
Chairwoman. 25 U.S.C. 2705(a)(4).
    The Commission is seeking comment on whether this part should be 
revised, how the Commission should prioritize its review of part 537 in 
the regulatory review process, and whether the Commission should 
utilize standard notice and comment rulemaking, a Tribal Advisory 
Committee to assist in its regulatory review of this part, or another 
process.

F. Proceedings Before the Commission

    The NIGC is considering amending the regulations that govern 
appeals of the Chairwoman's actions on ordinances, management 
contracts, notices of violations, civil fine assessments, and closure 
orders. 25 CFR part 519; 25 CFR part 524; 25 CFR part 539; 25 CFR part 
577. Except for some minor changes in 2009, these parts remain 
unchanged from their original adoption in 1993.
    Should the Commission consider more comprehensive and detailed 
procedural rules, especially in areas such as motion practice, that are 
largely unaddressed by the present rules? The Commission seeks advice 
and comment on service of process and computation of time; intervention 
by third parties; motion practice and briefings; and the nature of 
written submissions in enforcement appeals. We also would like comment 
regarding whether a Tribal Advisory Committee should be formed to make 
the change or if another process will be sufficient.

G. MICS & Technical Standards

(1) Part 542--Class III Minimum Internal Control Standards
    The Commission is seeking comment regarding Class III Minimum 
Internal Control Standards (MICS). It has been suggested that the rule 
should be struck and replaced by a set of recommended guidelines. 
Comment is requested from the Tribal gaming community and other 
interested parties regarding whether the NIGC's Class III MICS have a 
positive impact on the industry, and, if changed to a guideline, what, 
if any, impact that might have on Tribal gaming? Many Tribal gaming 
regulatory authorities have relied on the regulation to define the 
foundation of their minimum internal control standards, others have 
merely adopted the Federal rule verbatim, while yet others have drafted 
their own internal control standards. If the regulation is struck, how 
would such action impact the Tribal regulators and operators?
    Additionally, several State compacts incorporate the Class III MICS 
by reference. If the regulation was struck, how would these agreements 
be affected, if at all? Some Tribes have amended their gaming ordinance 
recognizing the authority of NIGC to regulate Class III MICS and 
enforce them. Their State compacts have also been revised recognizing 
Federal oversight as supplanting that of the State to the extent 
specified in the agreements. If the regulation was struck, what would 
the effect be on those Tribes?
    If the Class III MICS are revised but not placed into a regulation, 
how should NIGC publish them to the industry? Do we involve a Tribal 
Advisory Committee (TAC) to participate in the revision process? Does 
that TAC need to be composed of different members than the Class II 
MICS TAC? How should the members be selected? What process should NIGC 
utilize to make revisions? The Commission needs input from the Tribal 
gaming community on this very important issue.
    The Commission is seeking comment on whether this part should be 
revised, how the Commission should prioritize its review of this part 
in the regulatory review process, and whether the Commission should 
utilize standard notice and comment rulemaking, a Tribal Advisory 
Committee to assist in its regulatory review of this part, or another 
process.
(2) Part 543--Class II Minimum Internal Control Standards
    The NIGC is currently in the process of revising the Class II MICS. 
However, the process has come under significant scrutiny and objection 
by the Tribal gaming industry. While we have heard from the industry 
that the regulations need revision, there have also been many concerns 
about the process utilized to make the revisions. The Commission is 
dedicated to making the necessary updates through a process that is 
inclusive of all interested parties' concerns and suggestions.
    A proposed regulation has been drafted, but questions have arisen 
regarding the clarity and interpretation of certain sections. Although 
the applicability of the rule may be limited, the Commission wants to 
ensure that it be viable and clear to the Tribal gaming industry. 
Accordingly, we are seeking comment on how to proceed. Should Tribal 
gaming regulatory authorities be provided an opportunity to provide 
comment on the proposed rule before public meetings? Should comment be 
sought from accounting practitioners? Should a TAC be assembled to 
provide advice to the NIGC in the administration of the rule once 
adopted? We would appreciate your thoughts on this idea.
    Finally, the Commission is seeking comment on the process of Class 
II MICS revisions. Should we start with the current proposed draft? 
Should we establish a TAC to participate? If so, how should the members 
be selected? What will the revision process be? The Commission needs 
input from the Tribal gaming community on this very important issue.
    The Commission is seeking comment on whether this part should be 
revised, how the Commission should prioritize its review of this part 
in the regulatory review process, and whether the Commission should 
utilize standard notice and comment rulemaking, a Tribal Advisory 
Committee to assist in its regulatory review of this part, or another 
process.
(3) Part 547--Minimum Technical Standards for Gaming Equipment Used 
With the Play of Class II Games
    This part was recently revised through a joint Tribal-NIGC working 
group. While it has been in effect for a short time, the Commission has 
received comments that the part should be further revised. Should NIGC 
start with the current proposed draft? Should we establish a Tribal 
Advisory Committee to participate? If so, how should the members be 
selected? What will the revision process be? The Commission needs input 
from the Tribal gaming community on this very important issue.
    The Commission is seeking comment on whether this part should be 
revised, how the Commission should prioritize its review of this part 
in the regulatory review process, and whether the Commission should 
utilize standard notice and comment rulemaking, a Tribal Advisory 
Committee to assist in its regulatory review of this part, or another 
process.

H. Backgrounds and Licensing

(1) Part 556--Background Investigations for Licensing
    In 1997, the NIGC began a pilot program which allowed it to 
effectively perform its duties of regulating background investigations 
in a more timely fashion while reducing the amount of paperwork 
submitted and

[[Page 70685]]

maintained, and accordingly reducing associated costs. Today, a 
majority of the Tribes participate in the pilot program. Under the 
program, the Commission allows Tribes to send in a list of employees 
they either licensed or denied a license along with a one-page 
Notification of Results (NOR). The Commission requests comment on 
whether the pilot program should be formalized into regulations.
    The Commission is seeking comment on whether regulations should be 
promulgated to formalize the pilot program, how the Commission should 
prioritize this issue in the regulatory review process, and whether the 
Commission should utilize standard notice and comment rulemaking, a 
Tribal Advisory Committee to assist in its regulatory review, or 
another process.
(2) Fingerprinting for Non-Primary Management Officials or Key 
Employees
    Currently, the NIGC reviews fingerprint cards submitted by Tribes 
for Primary Management Officials or Key Employees. However, some Tribes 
have requested the ability to be able to submit fingerprint cards to 
the NIGC for vendors, consultants, and other non-employees that have 
access to the gaming operations. Under 25 U.S.C. 2706(b)(3), the 
Commission may conduct or cause to be conducted such background 
investigations as may be necessary. Should the Commission adopt 
regulations that would allow Tribes, at their option, to submit 
fingerprint cards to the Commission for vendors, consultants, and other 
non-employees that have access to the gaming operations?
    The Commission is seeking comment on whether regulations should be 
promulgated to clarify this issue, how the Commission should prioritize 
this issue in the regulatory review process, and whether the Commission 
should utilize standard notice and comment rulemaking, a Tribal 
Advisory Committee to assist in its regulatory review, or another 
process.

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

    This part was recently adopted by the Commission. However, the NIGC 
has received many comments concerning the substance of this regulation 
from Tribes.
    The Commission is seeking comment on whether this part should be 
revised, how the Commission should prioritize its review of this part 
in the regulatory review process, and whether the Commission should 
utilize standard notice and comment rulemaking, a Tribal Advisory 
Committee to assist in its regulatory review of this part, or another 
process.

J. Sections 571.1-571.7--Inspection and Access

    Under IGRA, the Commission may access and examine all papers, 
books, and records regarding gross revenues of Class II gaming 
conducted on Indian lands and any other matters necessary to carry out 
the duties of the Commission. However, at times the Commission or Tribe 
has been denied access to those records.
    Should the Commission revise its regulations in Sec. Sec.  571.5 
and 571.6 to clarify Commission access to records at off-site 
locations, including at sites maintained or owned by third parties?
    The Commission is seeking comment on whether this part should be 
revised, how the Commission should prioritize its review of this part 
in the regulatory review process, and whether the Commission should 
utilize standard notice and comment rulemaking, a Tribal Advisory 
Committee to assist in its regulatory review of this part, or another 
process.

K. Part 573--Enforcement

    Should NIGC promulgate a regulation concerning withdrawal of a 
Notice of Violation (NOV) after it has been issued? The Commission is 
looking for advice and input regarding whether this is an appropriate 
issue for a regulation and if so, under what conditions or 
circumstances the NOV could be withdrawn? Would it be appropriate to 
allow the NOV to be withdrawn solely at the discretion of the 
Chairperson? The Commission is seeking comment on this issue, how the 
Commission should prioritize it in the regulatory review process, and 
whether the Commission should utilize standard notice and comment 
rulemaking, a Tribal Advisory Committee to assist it, or another 
process.

V. Potential New Regulations

A. Tribal Advisory Committee

    The Commission seeks comment on whether it should develop a 
regulation or policy identifying when a Tribal Advisory Committee (TAC) 
will be formed to provide input and advice to the NIGC and, if so, how 
Committee members should be selected. Should the cost of the TAC be a 
factor when considering whether to form a TAC? The Commission is 
seeking comment on whether the Commission should consider a regulation 
on this issue, how the Commission should prioritize it in the 
regulatory review process, and whether the Commission should utilize 
standard notice and comment rulemaking, a TAC to assist in its 
regulatory review of this part, or another process.

B. Sole Proprietary Interest Regulation

    Many Tribes and interested parties have approached the NIGC 
requesting a determination regarding whether a single agreement, or a 
combination of agreements, violate IGRA's sole proprietary interest 
requirement. The IGRA requires that the Tribe have sole proprietary 
interest in the gaming operation. Should the Commission consider a 
regulation identifying when the sole proprietary interest provision is 
violated and providing a process whereby at the Tribe's request the 
NIGC will review the documents and made a determination?
    The Commission is seeking comment on whether the Commission should 
consider a regulation on this issue, how the Commission should 
prioritize it in the regulatory review process, and whether the 
Commission should utilize standard notice and comment rulemaking, a 
Tribal Advisory Committee to assist in its regulatory review of this 
part, or another process.

C. Communication Policy or Regulation Identifying When and How the NIGC 
Communicates With Tribes

    Should the NIGC develop a regulation or include as part of a 
regulation a process for determining how it communicates with Tribes? 
The NIGC has a government-to-government relationship with federally 
recognized Tribes. However, given the nature of the NIGC's 
responsibilities, often the NIGC staff communicates primarily with the 
Tribal Gaming Commission (TGC) or Tribal Gaming Regulatory Agency 
(TGRA). While in many instances this means of communication is 
appropriate and works well, there are also times when the NIGC 
communicates directly with Tribal governments on issues related to 
broad policy changes or compliance issues such as a Notice of 
Violation. How should the NIGC communicate with Tribes and TGCs if 
those entities are at odds with each other on a particular issue? 
Should the NIGC consider requiring a resolution from the elected Tribal 
council setting forth which entity communicates the NIGC? Should such a 
resolution be submitted with the annual fees or audit? Is this approach 
unduly burdensome? Alternatively, should NIGC promulgate a regulation 
or policy establishing a default method of formal communication unless 
otherwise

[[Page 70686]]

directed by a resolution? The NIGC recognizes the many differences in 
Tribal government structures. However, would a universal standard for 
communication that can then be modified by each Tribe if they so choose 
promote more effective regulatory communication?
    The Commission is seeking comment on whether the Commission should 
consider a regulation on this issue, how the Commission should 
prioritize it in the regulatory review process, and whether the 
Commission should utilize standard notice and comment rulemaking, a 
Tribal Advisory Committee to assist in its regulatory review of this 
part, or another process.
    Further, the NIGC invites comment on whether to define the types of 
communication that occur between the NIGC and the Tribe and Tribal 
agencies. For example, a letter from the Chairperson regarding upcoming 
Tribal consultations, proposed broad policy changes or Notice of 
Violation could be considered a form of ``formal communication.'' 
Additionally, a letter from a Tribal chairperson requesting a meeting 
or a request from the Tribe for the NIGC to perform an audit could also 
be ``formal communication.'' However, the NIGC understands that 
communications between the NIGC and the Tribe, TGC, and TGRA may not be 
occurring in a uniform manner and wants to provide clarity for all the 
parties. The NIGC welcomes any comment or suggestions regarding whether 
the clarification is needed and if it should be formalized into a 
regulation or policy.

D. Buy Indian Act Regulation

    The Commission is considering adopting a regulation which would 
require the NIGC to give preference to qualified Indian-owned 
businesses when purchasing goods or services as defined by the ``Buy 
Indian Act,'' 25 U.S.C. 47. As an agency with regulatory 
responsibilities wholly related to Tribes, the Commission seeks comment 
on whether it is appropriate to promulgate such a regulation. The 
Commission is seeking advice and input from the Tribal gaming industry 
about this issue, and whether a Tribal Advisory Committee should be 
formed to make the change or if another process will be sufficient.

VI. Other Regulations

A. Part 501--Purpose and Scope

    The NIGC does not believe this regulation is currently in need of 
revision. However, we are interested in hearing any comments or 
suggestions related to possible revisions to this part.

B. Part 503--Commission Information Collection Requirements Under the 
Paperwork Reduction Act: OMB Control Numbers and Expiration Dates

    The NIGC does not believe this regulation is currently in need of 
revision. However, we are interested in hearing any comments or 
suggestions related to possible revisions to this part.

C. Part 513--Debt Collection

    The NIGC does not believe this regulation is currently in need of 
revision. However, we are interested in hearing any comments or 
suggestions related to possible revisions to this part.

D. Part 515--Privacy Act Procedures

    The NIGC does not believe this regulation is currently in need of 
revision. However, we are interested in hearing any comments or 
suggestions related to possible revisions to this part.

E. Part 517--Freedom of Information Act Procedures

    The NIGC does not believe this regulation is currently in need of 
revision. However, we are interested in hearing any comments or 
suggestions related to possible revisions to this part.

F. Part 522--Submission of Gaming Ordinance or Resolution

    The NIGC does not believe these regulations are currently in need 
of revision. However, we are interested in hearing any comments or 
suggestions related to possible revisions to this part.

G. Part 531--Content of Management Contacts

    The NIGC does not believe this regulation is currently in need of 
revision. However, we are interested in hearing any comments or 
suggestions related to possible revisions to this part.

H. Part 535--Post Approval Procedures

    The NIGC does not believe this regulation is currently in need of 
revision. However, we are interested in hearing any comments or 
suggestions related to possible revisions to this part.

I. Sections 571.8-571.11--Subpoenas and Depositions

    The NIGC does not believe these regulations are currently in need 
of revision. However, we are interested in hearing any comments or 
suggestions related to possible revisions to these sections.

J. Sections 571.12-571.14--Annual Audits

    The NIGC does not believe these regulations are currently in need 
of revision. However, we are interested in hearing any comments or 
suggestions related to possible revisions to these sections.

K. Part 575--Civil Fines

    The NIGC does not believe these regulations are currently in need 
of revision. While the Commission was interested in seeing Tribal 
dollars paid as a fine for a regulation violation returned to the 
Tribes by funding the Commission activities, Federal law prohibits an 
agency from keeping fines received from entities it regulates, and 
fines are deposited in the U.S. Treasury. The view is that regulatory 
agencies would then have an incentive to issue violations. However, we 
are interested in hearing any comments or suggestions related to 
possible revisions to this part.

    Dated: November 12, 2010.
Tracie L. Stevens,
Chairwoman.
Steffani A. Cochran,
Vice-Chairwoman.
Daniel J. Little,
Associate Commissioner.
[FR Doc. 2010-29028 Filed 11-17-10; 8:45 am]
BILLING CODE 7565-01-P