Enforcement Actions, 80847-80850 [2011-32757]
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Federal Register / Vol. 76, No. 248 / Tuesday, December 27, 2011 / Proposed Rules
Commission requested public comment
on a Preliminary Draft of amendments
to Part 573. After considering the
comments received from the public and
through tribal consultations, the
Commission realized that to supplement
the amendments made to Part 573, a
definition of ‘‘enforcement action’’
needed to be added to Part 502.
A. ‘‘Enforcement Action’’
The current NIGC regulations do not
provide a definition for ‘‘enforcement
action.’’ The Commission believes that
providing a definition for ‘‘enforcement
action’’ will provide clarity to persons
subject to enforcement actions by the
NIGC.
Regulatory Matters
Regulatory Flexibility Act
The proposed rule will not have a
significant impact on a substantial
number of small entities as defined
under the Regulatory Flexibility Act, 5
U.S.C. 601, et seq. Moreover, Indian
Tribes are not considered to be small
entities for the purposes of the
Regulatory Flexibility Act.
Small Business Regulatory Enforcement
Fairness Act
The proposed rule is not a major rule
under the Small Business Regulatory
Enforcement Fairness Act, 5 U.S.C.
804(2). This rule does not have an
annual effect on the economy of $100
million or more. This rule will not cause
a major increase in costs or prices for
consumers, individual industries,
federal, state or local government
agencies or geographic regions and does
not have a significant adverse effect on
competition, employment, investment,
productivity, innovation, or the ability
of U.S.-based enterprises to compete
with foreign-based enterprises.
Unfunded Mandate Reform Act
The Commission, as an independent
regulatory agency, is exempt from
compliance with the Unfunded
Mandates Reform Act, 2 U.S.C. 1502(1);
2 U.S.C. 658(1).
the requirements of sections 3(a) and
3(b)(2) of the Executive Order.
National Environmental Policy Act
The Commission has determined that
the proposed rule does not constitute a
major federal action significantly
affecting the quality of the human
environment and that no detailed
statement is required pursuant to the
National Environmental Policy Act of
1969, 42 U.S.C. 4321, et seq.
Paperwork Reduction Act
This proposed rule does not require
information collection under the
Paperwork Reduction Act of 1995, 44
U.S.C. 3501, et seq., and is therefore not
subject to review by the Office of
Management and Budget.
List of Subject in 25 CFR Part 502
Enforcement Actions.
For the reasons stated in the
preamble, the National Indian Gaming
Commission proposes to amend 15 CFR
part 502 as follows:
1. The authority citation for part 502
is revised to read as follows:
Authority: 25 U.S.C. 2706(b)(10); 2713.
2. Add § 502.24 to read as follows:
§ 502.24
Enforcement action
Enforcement action means any action
taken by the Chair under 25 U.S.C. 2713
against any person engaged in gaming,
for a violation of any provision of IGRA,
the regulations of this chapter, or tribal
regulations, ordinances, or resolutions
approved under 25 U.S.C. 2710 or 2712
of IGRA, including, but not limited to,
the following: a notice of violation; a
civil fine assessment; or an order for
temporary closure.
Dated: December 16, 2011, Washington,
DC.
Tracie L. Stevens,
Chairwoman.
Steffani A. Cochran,
Vice-Chairwoman.
Daniel J. Little,
Associate Commissioner.
[FR Doc. 2011–33028 Filed 12–23–11; 8:45 am]
BILLING CODE 7565–02–P
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Takings
In accordance with Executive Order
12630, the Commission has determined
that the proposed rule does not have
significant takings implications. A
takings implication assessment is not
required.
DEPARTMENT OF THE INTERIOR
Civil Justice Reform
Enforcement Actions
In accordance with Executive Order
12988, the Commission has determined
that the proposed rule does not unduly
burden the judicial system and meets
AGENCY:
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National Indian Gaming Commission
25 CFR Part 573
RIN 3141–AA50
National Indian Gaming
Commission, Interior.
ACTION: Notice of proposed rulemaking.
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80847
This action proposes to
amend NIGC regulations to include a
graduated pre-enforcement process
through which a tribe may come into
compliance before an enforcement
action is taken by the Chair. Voluntary
compliance is the goal of the
Commission. This amendment sets forth
how Commission staff and tribes may
address potential or existing compliance
issues. The amendment retains the
Chair’s authority to issue an
enforcement action at the Chair’s
discretion.
The amendment also modifies this
Part to allow a temporary closure order
when there is clear and convincing
evidence that a gaming operation
defrauds a tribe. The current regulation
provides for the issuance of a temporary
closure order when there is clear and
convincing evidence that a gaming
operation defrauds a tribe or a customer.
The Commission believes this issue has
been adequately addressed by ordinance
requirements of the IGRA and NIGC
regulations, because tribes must include
in their ordinances a dispute resolution
procedure to address issues where a
customer believes she or he has been
defrauded. If the tribe fails to follow
their ordinance, enforcement action may
be taken.
Finally, current regulations do not
provide specificity for when an
enforcement action becomes final, such
as when a notice of violation is issued
and there is no appeal filed or
settlement agreement reached. The
proposed amendment clarifies that an
enforcement action becomes final
agency action and a final order of the
Commission if no appeal is filed or a
settlement agreement reached.
DATES: Submit comments on or before
February 27, 2012.
ADDRESSES: You may submit comments
by any one of the following methods,
however, please note that comments
sent by electronic mail are strongly
encouraged.
1. Email comments to:
reg.review@nigc.gov.
2. Mail comments to: National Indian
Gaming Commission, 1441 L Street
NW., Suite 9100, Washington, DC
20005.
3. Hand deliver comments to: 1441 L
St. NW., Suite 9100, Washington, DC
20005.
4. Fax Comments to: National Indian
Gaming Commission at (202) 632–0045.
FOR FURTHER INFORMATION CONTACT:
National Indian Gaming Commission,
1441 L Street NW., Suite 9100,
Washington, DC 20005. Telephone:
(202) 632–7009; email:
reg.review@nigc.gov.
SUMMARY:
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Federal Register / Vol. 76, No. 248 / Tuesday, December 27, 2011 / Proposed Rules
SUPPLEMENTARY INFORMATION:
III. Development of the Proposed Rule
I. Comments Invited
The Commission conducted a total of
9 tribal consultations as part of its
review of Part 573. Tribal consultations
were held in every region of the country
and were attended by over 160 tribes
and 443 tribal leaders or their
representatives. In addition to tribal
consultations, on June 28, 2011, the
Commission requested public comment
on a Preliminary Draft of amendments
to Part 573. After considering the
comments received from the public and
through tribal consultations, the
Commission proposes one amendment
to Part 573: inclusion of a graduated
pre-enforcement process whereby a
gaming operation has the opportunity to
come into compliance with IGRA,
Commission regulations, or tribal
ordinances and resolutions approved by
the Chair before an enforcement action
is taken. This process would not restrict
the Chair from initiating enforcement
action if circumstances require.
Interested parties are invited to
participate in this proposed rulemaking
by submitting such written data, views,
or arguments as they may desire.
Comments that provide the factual basis
supporting the views and suggestions
presented are particularly helpful in
developing reasoned regulatory
decisions on the proposal.
mstockstill on DSK4VPTVN1PROD with PROPOSALS
II. Background
The Indian Gaming Regulatory Act
(IGRA or Act), Public Law 100–497, 25
U.S.C. 2701 et seq., was signed into law
on October 17, 1988. The Act
establishes the National Indian Gaming
Commission (‘‘Commission’’) and sets
out a comprehensive framework for the
regulation of gaming on Indian lands.
The purposes of IGRA include
providing a statutory basis for the
operation of gaming by Indian Tribes as
a means of promoting tribal economic
development, self-sufficiency, and
strong tribal governments; ensuring that
the Indian tribe is the primary
beneficiary of the gaming operation; and
declaring that the establishment of
independent federal regulatory
authority for gaming on Indian lands,
the establishment of federal standards
for gaming on Indian lands, and the
establishment of a National Indian
Gaming Commission are necessary to
meet congressional concerns regarding
gaming and to protect such gaming as a
means of generating tribal revenue. 25
U.S.C. 2702.
On November 18, 2010, the National
Indian Gaming Commission (NIGC)
issued a Notice of Inquiry and Notice of
Consultation (NOI) advising the public
that the NIGC was conducting a
comprehensive review of its regulations
and requesting public comment on
which of its regulations were most in
need of revision, in what order the
Commission should review its
regulations, and the process NIGC
should utilize to make revisions. 75 FR
70680 (Nov. 18, 2010). On April 4, 2011,
after holding eight consultations and
reviewing all comments, NIGC
published a Notice of Regulatory
Review Schedule (NRR) setting out a
consultation schedule and process for
review. 76 FR 18457. The Commission’s
regulatory review process established a
tribal consultation schedule with a
description of the regulation groups to
be covered at each consultation. Part
573 was included in this regulatory
review.
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A. Voluntary Compliance is a Goal of
the Commission
The proposed draft sets out voluntary
compliance as a goal of the Commission
and identifies how voluntary
compliance can be achieved. Comments
in response to the NOI and NRR
consistently stated that the NIGC and
tribes should be in closer
communication prior to the issuance of
an enforcement action. While the
Commission believes it is necessary for
the Chair to retain the discretion to
issue an enforcement action whenever
the circumstances require it, the
Commission also firmly believes that
communicating with tribes before taking
an enforcement action can only lead to
improved relationships and continued
compliance. With these two goals in
mind, the Commission published a
Preliminary draft of the proposed rule
creating a graduated process which can
be used by NIGC staff to inform a tribe
of potential compliance issues. While
there are two measures that can be taken
as part of this process, either may be
taken independent of the other.
The first and lowest level of
notification to the tribe of a possible
compliance issue is a ‘‘letter of
concern.’’ A letter of concern would be
issued when NIGC staff believes there
could be a possible violation of IGRA,
NIGC regulations, or the tribe’s
approved gaming ordinance. The second
level of notification to the tribe is a
‘‘warning letter.’’ A warning letter
provides notice to the tribe that NIGC
staff believes an actual violation of
IGRA, NIGC regulations, or the tribe’s
approved gaming ordinance has
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occurred, or is occurring. The letters
would provide the factual basis for the
potential violation, inform the tribe of
any corrective action that may be taken
to cure the violation, and provide a
timeframe for responding to the letter or
coming into compliance. In the
Preliminary draft, the second action was
called a ‘‘non-compliance notice.’’
Commentors suggested either doing
away with the non-compliance notice
entirely, or finding a different title for it.
The Commission believes having two
potential options for action that may be
taken by NIGC staff prior to the issuance
of an enforcement action is positive for
both the NIGC and tribes. However, the
Commission did change the name of the
second action to a ‘‘warning letter.’’
The goal of this proposed amendment
is to start with the lowest possible
action and move forward only if
compliance is not achieved. However,
under certain circumstances, the NIGC
staff may be required to issue a warning
letter without first issuing a letter of
concern. Alternatively, a letter of
concern could be issued and the tribe
may fully address the concern without
any further action required by the NIGC.
This would achieve the goal of
voluntary compliance.
Many comments to the Preliminary
draft stated that the regulation should
require both actions to include a
deadline for the tribe to respond if it
disagrees with the NIGC’s conclusions
and a deadline for the tribe to come into
compliance. The Commission agrees
with this recommendation and
incorporated those requirements into
this proposed amendment. Some
comments to the Preliminary draft
questioned whether these letters were
final agency action. It is important to
note that these actions would be issued
by NIGC staff, not the Chair, and are
therefore not final agency action.
Other comments acknowledged that
certain circumstances will warrant
immediate issuance of an NOV and
requested that the regulation specify
circumstances or criteria that should be
present before the Chair can bypass this
process and take immediate
enforcement action. One commentor
stated that while they are confident in
this Commission to positively utilize
this process, they are concerned future
Commissions may disregard the general
process. The intent of this proposed
amendment is to achieve voluntary
compliance before an enforcement
action is issued. Presumably, a Chair
will not initiate an enforcement action
without NIGC staff first having taken
appropriate pre-enforcement action
unless, in the Chair’s judgment, the
circumstances require immediate action
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Federal Register / Vol. 76, No. 248 / Tuesday, December 27, 2011 / Proposed Rules
or it is impracticable to issue one or
both of these pre-enforcement actions.
However, if the Chair takes enforcement
action before a letter of concern and/or
warning letter is issued, the
enforcement action will likely explain
the reason for moving directly to an
enforcement action without preenforcement action.
B. Temporary Closure Order will be
Issued When There is Clear and
Convincing Evidence that a Gaming
Operation Defrauds a Tribe
The proposed rule amends this Part to
allow a temporary closure order only
when there is clear and convincing
evidence that a gaming operation
defrauds a tribe, not a customer. A
commentor pointed out that the current
regulation provides for the issuance of
a temporary closure order when there is
clear and convincing evidence that a
gaming operation defrauds a customer.
The Commission believes this issue has
been adequately addressed by ordinance
requirements of the IGRA and NIGC
regulations. Tribes must include in their
ordinances a dispute resolution
procedure to address issues where a
customer believes she or he has been
defrauded. If the tribe fails to follow
their ordinance, enforcement action may
be taken.
C. Final Agency Action
The current regulations do not
provide specificity for when an
enforcement action such as a notice of
violation is issued and there is no
appeal filed or settlement agreement
reached. The proposed amendment
clarifies that an enforcement action
becomes final agency action and a final
order of the Commission if no appeal is
filed or a settlement agreement reached.
Regulatory Matters
mstockstill on DSK4VPTVN1PROD with PROPOSALS
Regulatory Flexibility Act
The proposed rule will not have a
significant impact on a substantial
number of small entities as defined
under the Regulatory Flexibility Act, 5
U.S.C. 601, et seq. Moreover, Indian
Tribes are not considered to be small
entities for the purposes of the
Regulatory Flexibility Act.
Small Business Regulatory Enforcement
Fairness Act
The proposed rule is not a major rule
under the Small Business Regulatory
Enforcement Fairness Act, 5 U.S.C.
804(2). This rule does not have an
annual effect on the economy of $100
million or more. This rule will not cause
a major increase in costs or prices for
consumers, individual industries,
federal, state or local government
VerDate Mar<15>2010
18:47 Dec 23, 2011
Jkt 226001
agencies or geographic regions and does
not have a significant adverse effect on
competition, employment, investment,
productivity, innovation, or the ability
of U.S.-based enterprises to compete
with foreign-based enterprises.
Unfunded Mandate Reform Act
The Commission, as an independent
regulatory agency, is exempt from
compliance with the Unfunded
Mandates Reform Act, 2 U.S.C. 1502(1);
2 U.S.C. 658(1).
Takings
In accordance with Executive Order
12630, the Commission has determined
that the proposed rule does not have
significant takings implications. A
takings implication assessment is not
required.
Civil Justice Reform
In accordance with Executive Order
12988, the Commission has determined
that the proposed rule does not unduly
burden the judicial system and meets
the requirements of sections 3(a) and
3(b)(2) of the Executive Order.
National Environmental Policy Act
The Commission has determined that
the proposed rule does not constitute a
major federal action significantly
affecting the quality of the human
environment and that no detailed
statement is required pursuant to the
National Environmental Policy Act of
1969, 42 U.S.C. 4321, et seq.
Paperwork Reduction Act
This proposed rule does not require
information collection under the
Paperwork Reduction Act of 1995, 44
U.S.C. 3501, et seq., and is therefore not
subject to review by the Office of
Management and Budget.
List of Subjects in 25 CFR 573
Enforcement, Enforcement Actions,
Gambling, Gaming, Indians, Indian
Gaming.
For the reasons stated in the
preamble, the National Indian Gaming
Commission proposes to amends 25
CFR part 573 as follows:
PART 573—COMPLIANCE AND
ENFORCEMENT
1. The authority citation for part 573
is revised to read as follows:
Authority: 25 U.S.C. 2706(b)(10); 25 U.S.C.
2713; E.O. 13175.
2. Revise the part 573 heading to read
as set forth above.
3. Revise § 573.1 to read as follows:
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§ 573.1
80849
What is the purpose of this part?
Voluntary compliance is the goal of
the Commission. Voluntary compliance
is achieved when a tribe and the NIGC
staff are able to resolve any potential
enforcement issues prior to the Chair
issuing an enforcement action. This part
sets forth efforts for achieving voluntary
compliance and enforcement action
when voluntary compliance is not
forthcoming. While this part is intended
to garner voluntary compliance through
a graduated enforcement process, there
may be circumstances under which a
graduated enforcement process is
omitted and an enforcement action must
be taken. This part also sets forth
general rules governing the
Commission’s enforcement of the Act,
this chapter, and tribal ordinances and
resolutions approved by the Chair under
part 522 of this chapter. Civil fines in
connection with notice of violation
issued under this part are addressed in
part 575 of this chapter.
4. Add § 573.2 to read as follows:
§ 573.2 When may a letter of concern and/
or warning letter be issued?
(a) Prior to the Chair taking an
enforcement action, a letter of concern
and/or a warning letter may be provided
to the respondent by NIGC staff,
detailing concerns regarding the
respondent’s compliance with the Act,
this chapter, or any tribal ordinance or
resolution approved by the Chair under
part 522 of this chapter.
(b) Action under this section does not
constitute agency action and may be
taken by NIGC staff issuing the
respondent, either one or both of the
following:
(1) A ‘‘letter of concern’’ which recites
available facts and information about
the incident or condition and indicates
that it may be a violation; and/or
(2) A ‘‘warning letter’’ which confirms
an assessment of the matter and states
the necessary corrective action the
respondent needs to take, agrees to take,
or has taken.
(c) The letters referenced in paragraph
(b) of this section may be issued
consecutively, but NIGC staff may issue
a warning letter without first issuing a
letter of concern.
(d) Either action under paragraph (b)
of this section shall provide a time
period for the respondent to respond,
and shall also provide a time period for
the respondent to come into
compliance. If voluntary compliance
efforts are unsuccessful, enforcement
action may be taken. If voluntary
compliance efforts are successful, NIGC
staff will send an investigation
completion letter pursuant to § 571.4.
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Federal Register / Vol. 76, No. 248 / Tuesday, December 27, 2011 / Proposed Rules
(e) The Chair’s discretion to take an
enforcement action is not limited or
constrained in any way by this section.
When the Chair takes enforcement
action before a letter of concern and/or
warning letter is issued, the
enforcement action will state the
reasons moving directly to an
enforcement action without first issuing
a letter of concern and/or warning letter.
5. In § 573.3, revise paragraph (a) to
read as follows:
§ 573.3 When may the Chair issue a notice
of violation?
(a) The Chair may issue a notice of
violation to any person for violations of
any provision of the Act or this chapter,
or of any tribal ordinance or resolution
approved by the Chair under part 522 of
this chapter.
*
*
*
*
*
§ 573.6
[Redesignated as § 573.4]
6. Redesignate § 573.6 as § 573.4
7. In newly redesignated § 573.4,
revise the section heading and
paragraphs (a) introductory text, (a)(3),
(6), (7), (8), (9), (12), (c) introductory
text, (c)(1), (c)(2) introductory text, and
(c)(3) to read as follows:
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§ 573.4 When may the Chair issue an order
of temporary closure?
(a) When an order of temporary
closure may issue. Simultaneously with
or subsequently to the issuance of a
notice of violation under § 573.3 of this
part, the Chair may issue an order of
temporary closure of all or part of an
Indian gaming operation if one or more
of the following substantial violations
are present:
*
*
*
*
*
(3) A gaming operation operates for
business without a tribal ordinance or
resolution that the Chair has approved
under part 522 of this chapter.
*
*
*
*
*
(6) There is clear and convincing
evidence that a gaming operation
defrauds a tribe.
(7) A management contractor operates
for business without a contract that the
Chair has approved under part 533 of
this chapter.
(8) Any person knowingly submits
false or misleading information to the
Commission or a tribe in response to
any provision of the Act, this chapter,
or a tribal ordinance or resolution that
the Chair has approved under part 522
of this chapter.
(9) A gaming operation refuses to
allow an authorized representative of
the Commission or an authorized tribal
official to enter or inspect a gaming
operation, in violation of § 571.5 or
§ 571.6 of this chapter, or of a tribal
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ordinance or resolution approved by the
Chair under part 522 of this chapter.
*
*
*
*
*
(12) A gaming operation’s facility is
constructed, maintained, or operated in
a manner that threatens the
environment or the public health and
safety, in violation of a tribal ordinance
or resolution approved by the Chair
under part 522 of this chapter.
*
*
*
*
*
(c) Informal expedited review. Within
seven (7) days after service of an order
of temporary closure, the respondent
may request, orally or in writing,
informal expedited review by the Chair.
(1) The Chair shall complete the
expedited review provided for by this
paragraph within two (2) days after his
or her receipt of a timely request.
(2) The Chair shall, within two (2)
days after the expedited review
provided for by this paragraph:
* * *
(3) Whether or not a respondent seeks
informal expedited review under this
paragraph, within thirty (30) days after
the Chair serves an order of temporary
closure the respondent may appeal the
order to the Commission under part 577
of this chapter. Otherwise, the order
shall remain in effect unless rescinded
by the Chair for good cause.
8. Add § 573.5 to read as follows:
§ 573.5 When does an enforcement action
become final agency action?
An enforcement action shall become
final agency action and a final order of
the Commission when:
(a) A respondent fails to appeal the
enforcement action as provided for in
part 577 of this chapter and does not
enter into a settlement agreement
resolving the matter in its entirety; or
(b) A respondent enters into a
settlement agreement resolving the
matter in its entirety at any time after
the issuance of the enforcement action.
Dated: December 16, 2011, Washington,
DC.
Tracie L. Stevens,
Chairwoman.
Steffani A. Cochran,
Vice-Chairwoman.
Daniel J. Little,
Associate Commissioner.
[FR Doc. 2011–32757 Filed 12–23–11; 8:45 am]
BILLING CODE 7565–02–P
PO 00000
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Parts 100 and 165
[Docket No. USCG–2011–1023]
RIN 1625–AA08; 1625–AA00
Special Local Regulations and Safety
Zones; Recurring Events in Northern
New England
Coast Guard, DHS.
Notice of proposed rulemaking.
AGENCY:
ACTION:
The Coast Guard proposes to
update recurring special local
regulations and safety zones in the Coast
Guard Captain of the Port (COTP)
Northern New England Zone for annual
recurring marine events. When these
special local regulations or safety zones
are subject to enforcement, this rule
would restrict vessels from portions of
water areas during these annual
recurring events. The revised special
local regulations and safety zones would
expedite public notification of events,
and ensure the protection of the
maritime public and event participants
from the hazards associated with these
annual recurring events.
DATES: Comments and related material
must be received by the Coast Guard on
or before February 27, 2012. Requests
for public meetings must be received by
the Coast Guard on or before January 17,
2012.
ADDRESSES: You may submit comments
identified by docket number USCG–
2011–1023 using any one of the
following methods:
(1) Federal eRulemaking Portal:
https://www.regulations.gov.
(2) Fax: (202) 493–2251.
(3) Mail: Docket Management Facility
(M–30), U.S. Department of
Transportation, West Building Ground
Floor, Room W12–140, 1200 New Jersey
Avenue SE., Washington, DC 20590–
0001.
(4) Hand delivery: Same as mail
address above, between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays. The telephone number
is (202) 366–9329.
To avoid duplication, please use only
one of these four methods. See the
‘‘Public Participation and Request for
Comments’’ portion of the
SUPPLEMENTARY INFORMATION section
below for instructions on submitting
comments.
SUMMARY:
If
you have questions on this proposed
rule, call or email Lieutenant Junior
FOR FURTHER INFORMATION CONTACT:
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]]>Agencies
[Federal Register Volume 76, Number 248 (Tuesday, December 27, 2011)]
[Proposed Rules]
[Pages 80847-80850]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-32757]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
25 CFR Part 573
RIN 3141-AA50
Enforcement Actions
AGENCY: National Indian Gaming Commission, Interior.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This action proposes to amend NIGC regulations to include a
graduated pre-enforcement process through which a tribe may come into
compliance before an enforcement action is taken by the Chair.
Voluntary compliance is the goal of the Commission. This amendment sets
forth how Commission staff and tribes may address potential or existing
compliance issues. The amendment retains the Chair's authority to issue
an enforcement action at the Chair's discretion.
The amendment also modifies this Part to allow a temporary closure
order when there is clear and convincing evidence that a gaming
operation defrauds a tribe. The current regulation provides for the
issuance of a temporary closure order when there is clear and
convincing evidence that a gaming operation defrauds a tribe or a
customer. The Commission believes this issue has been adequately
addressed by ordinance requirements of the IGRA and NIGC regulations,
because tribes must include in their ordinances a dispute resolution
procedure to address issues where a customer believes she or he has
been defrauded. If the tribe fails to follow their ordinance,
enforcement action may be taken.
Finally, current regulations do not provide specificity for when an
enforcement action becomes final, such as when a notice of violation is
issued and there is no appeal filed or settlement agreement reached.
The proposed amendment clarifies that an enforcement action becomes
final agency action and a final order of the Commission if no appeal is
filed or a settlement agreement reached.
DATES: Submit comments on or before February 27, 2012.
ADDRESSES: You may submit comments by any one of the following methods,
however, please note that comments sent by electronic mail are strongly
encouraged.
1. Email comments to: reg.review@nigc.gov.
2. Mail comments to: National Indian Gaming Commission, 1441 L
Street NW., Suite 9100, Washington, DC 20005.
3. Hand deliver comments to: 1441 L St. NW., Suite 9100,
Washington, DC 20005.
4. Fax Comments to: National Indian Gaming Commission at (202) 632-
0045.
FOR FURTHER INFORMATION CONTACT: National Indian Gaming Commission,
1441 L Street NW., Suite 9100, Washington, DC 20005. Telephone: (202)
632-7009; email: reg.review@nigc.gov.
[[Page 80848]]
SUPPLEMENTARY INFORMATION:
I. Comments Invited
Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments as they
may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal.
II. Background
The Indian Gaming Regulatory Act (IGRA or Act), Public Law 100-497,
25 U.S.C. 2701 et seq., was signed into law on October 17, 1988. The
Act establishes the National Indian Gaming Commission (``Commission'')
and sets out a comprehensive framework for the regulation of gaming on
Indian lands. The purposes of IGRA include providing a statutory basis
for the operation of gaming by Indian Tribes as a means of promoting
tribal economic development, self-sufficiency, and strong tribal
governments; ensuring that the Indian tribe is the primary beneficiary
of the gaming operation; and declaring that the establishment of
independent federal regulatory authority for gaming on Indian lands,
the establishment of federal standards for gaming on Indian lands, and
the establishment of a National Indian Gaming Commission are necessary
to meet congressional concerns regarding gaming and to protect such
gaming as a means of generating tribal revenue. 25 U.S.C. 2702.
On November 18, 2010, the National Indian Gaming Commission (NIGC)
issued a Notice of Inquiry and Notice of Consultation (NOI) advising
the public that the NIGC was conducting a comprehensive review of its
regulations and requesting public comment on which of its regulations
were most in need of revision, in what order the Commission should
review its regulations, and the process NIGC should utilize to make
revisions. 75 FR 70680 (Nov. 18, 2010). On April 4, 2011, after holding
eight consultations and reviewing all comments, NIGC published a Notice
of Regulatory Review Schedule (NRR) setting out a consultation schedule
and process for review. 76 FR 18457. The Commission's regulatory review
process established a tribal consultation schedule with a description
of the regulation groups to be covered at each consultation. Part 573
was included in this regulatory review.
III. Development of the Proposed Rule
The Commission conducted a total of 9 tribal consultations as part
of its review of Part 573. Tribal consultations were held in every
region of the country and were attended by over 160 tribes and 443
tribal leaders or their representatives. In addition to tribal
consultations, on June 28, 2011, the Commission requested public
comment on a Preliminary Draft of amendments to Part 573. After
considering the comments received from the public and through tribal
consultations, the Commission proposes one amendment to Part 573:
inclusion of a graduated pre-enforcement process whereby a gaming
operation has the opportunity to come into compliance with IGRA,
Commission regulations, or tribal ordinances and resolutions approved
by the Chair before an enforcement action is taken. This process would
not restrict the Chair from initiating enforcement action if
circumstances require.
A. Voluntary Compliance is a Goal of the Commission
The proposed draft sets out voluntary compliance as a goal of the
Commission and identifies how voluntary compliance can be achieved.
Comments in response to the NOI and NRR consistently stated that the
NIGC and tribes should be in closer communication prior to the issuance
of an enforcement action. While the Commission believes it is necessary
for the Chair to retain the discretion to issue an enforcement action
whenever the circumstances require it, the Commission also firmly
believes that communicating with tribes before taking an enforcement
action can only lead to improved relationships and continued
compliance. With these two goals in mind, the Commission published a
Preliminary draft of the proposed rule creating a graduated process
which can be used by NIGC staff to inform a tribe of potential
compliance issues. While there are two measures that can be taken as
part of this process, either may be taken independent of the other.
The first and lowest level of notification to the tribe of a
possible compliance issue is a ``letter of concern.'' A letter of
concern would be issued when NIGC staff believes there could be a
possible violation of IGRA, NIGC regulations, or the tribe's approved
gaming ordinance. The second level of notification to the tribe is a
``warning letter.'' A warning letter provides notice to the tribe that
NIGC staff believes an actual violation of IGRA, NIGC regulations, or
the tribe's approved gaming ordinance has occurred, or is occurring.
The letters would provide the factual basis for the potential
violation, inform the tribe of any corrective action that may be taken
to cure the violation, and provide a timeframe for responding to the
letter or coming into compliance. In the Preliminary draft, the second
action was called a ``non-compliance notice.'' Commentors suggested
either doing away with the non-compliance notice entirely, or finding a
different title for it. The Commission believes having two potential
options for action that may be taken by NIGC staff prior to the
issuance of an enforcement action is positive for both the NIGC and
tribes. However, the Commission did change the name of the second
action to a ``warning letter.''
The goal of this proposed amendment is to start with the lowest
possible action and move forward only if compliance is not achieved.
However, under certain circumstances, the NIGC staff may be required to
issue a warning letter without first issuing a letter of concern.
Alternatively, a letter of concern could be issued and the tribe may
fully address the concern without any further action required by the
NIGC. This would achieve the goal of voluntary compliance.
Many comments to the Preliminary draft stated that the regulation
should require both actions to include a deadline for the tribe to
respond if it disagrees with the NIGC's conclusions and a deadline for
the tribe to come into compliance. The Commission agrees with this
recommendation and incorporated those requirements into this proposed
amendment. Some comments to the Preliminary draft questioned whether
these letters were final agency action. It is important to note that
these actions would be issued by NIGC staff, not the Chair, and are
therefore not final agency action.
Other comments acknowledged that certain circumstances will warrant
immediate issuance of an NOV and requested that the regulation specify
circumstances or criteria that should be present before the Chair can
bypass this process and take immediate enforcement action. One
commentor stated that while they are confident in this Commission to
positively utilize this process, they are concerned future Commissions
may disregard the general process. The intent of this proposed
amendment is to achieve voluntary compliance before an enforcement
action is issued. Presumably, a Chair will not initiate an enforcement
action without NIGC staff first having taken appropriate pre-
enforcement action unless, in the Chair's judgment, the circumstances
require immediate action
[[Page 80849]]
or it is impracticable to issue one or both of these pre-enforcement
actions. However, if the Chair takes enforcement action before a letter
of concern and/or warning letter is issued, the enforcement action will
likely explain the reason for moving directly to an enforcement action
without pre-enforcement action.
B. Temporary Closure Order will be Issued When There is Clear and
Convincing Evidence that a Gaming Operation Defrauds a Tribe
The proposed rule amends this Part to allow a temporary closure
order only when there is clear and convincing evidence that a gaming
operation defrauds a tribe, not a customer. A commentor pointed out
that the current regulation provides for the issuance of a temporary
closure order when there is clear and convincing evidence that a gaming
operation defrauds a customer. The Commission believes this issue has
been adequately addressed by ordinance requirements of the IGRA and
NIGC regulations. Tribes must include in their ordinances a dispute
resolution procedure to address issues where a customer believes she or
he has been defrauded. If the tribe fails to follow their ordinance,
enforcement action may be taken.
C. Final Agency Action
The current regulations do not provide specificity for when an
enforcement action such as a notice of violation is issued and there is
no appeal filed or settlement agreement reached. The proposed amendment
clarifies that an enforcement action becomes final agency action and a
final order of the Commission if no appeal is filed or a settlement
agreement reached.
Regulatory Matters
Regulatory Flexibility Act
The proposed rule will not have a significant impact on a
substantial number of small entities as defined under the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq. Moreover, Indian Tribes are not
considered to be small entities for the purposes of the Regulatory
Flexibility Act.
Small Business Regulatory Enforcement Fairness Act
The proposed rule is not a major rule under the Small Business
Regulatory Enforcement Fairness Act, 5 U.S.C. 804(2). This rule does
not have an annual effect on the economy of $100 million or more. This
rule will not cause a major increase in costs or prices for consumers,
individual industries, federal, state or local government agencies or
geographic regions and does not have a significant adverse effect on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises.
Unfunded Mandate Reform Act
The Commission, as an independent regulatory agency, is exempt from
compliance with the Unfunded Mandates Reform Act, 2 U.S.C. 1502(1); 2
U.S.C. 658(1).
Takings
In accordance with Executive Order 12630, the Commission has
determined that the proposed rule does not have significant takings
implications. A takings implication assessment is not required.
Civil Justice Reform
In accordance with Executive Order 12988, the Commission has
determined that the proposed rule does not unduly burden the judicial
system and meets the requirements of sections 3(a) and 3(b)(2) of the
Executive Order.
National Environmental Policy Act
The Commission has determined that the proposed rule does not
constitute a major federal action significantly affecting the quality
of the human environment and that no detailed statement is required
pursuant to the National Environmental Policy Act of 1969, 42 U.S.C.
4321, et seq.
Paperwork Reduction Act
This proposed rule does not require information collection under
the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq., and is
therefore not subject to review by the Office of Management and Budget.
List of Subjects in 25 CFR 573
Enforcement, Enforcement Actions, Gambling, Gaming, Indians, Indian
Gaming.
For the reasons stated in the preamble, the National Indian Gaming
Commission proposes to amends 25 CFR part 573 as follows:
PART 573--COMPLIANCE AND ENFORCEMENT
1. The authority citation for part 573 is revised to read as
follows:
Authority: 25 U.S.C. 2706(b)(10); 25 U.S.C. 2713; E.O. 13175.
2. Revise the part 573 heading to read as set forth above.
3. Revise Sec. 573.1 to read as follows:
Sec. 573.1 What is the purpose of this part?
Voluntary compliance is the goal of the Commission. Voluntary
compliance is achieved when a tribe and the NIGC staff are able to
resolve any potential enforcement issues prior to the Chair issuing an
enforcement action. This part sets forth efforts for achieving
voluntary compliance and enforcement action when voluntary compliance
is not forthcoming. While this part is intended to garner voluntary
compliance through a graduated enforcement process, there may be
circumstances under which a graduated enforcement process is omitted
and an enforcement action must be taken. This part also sets forth
general rules governing the Commission's enforcement of the Act, this
chapter, and tribal ordinances and resolutions approved by the Chair
under part 522 of this chapter. Civil fines in connection with notice
of violation issued under this part are addressed in part 575 of this
chapter.
4. Add Sec. 573.2 to read as follows:
Sec. 573.2 When may a letter of concern and/or warning letter be
issued?
(a) Prior to the Chair taking an enforcement action, a letter of
concern and/or a warning letter may be provided to the respondent by
NIGC staff, detailing concerns regarding the respondent's compliance
with the Act, this chapter, or any tribal ordinance or resolution
approved by the Chair under part 522 of this chapter.
(b) Action under this section does not constitute agency action and
may be taken by NIGC staff issuing the respondent, either one or both
of the following:
(1) A ``letter of concern'' which recites available facts and
information about the incident or condition and indicates that it may
be a violation; and/or
(2) A ``warning letter'' which confirms an assessment of the matter
and states the necessary corrective action the respondent needs to
take, agrees to take, or has taken.
(c) The letters referenced in paragraph (b) of this section may be
issued consecutively, but NIGC staff may issue a warning letter without
first issuing a letter of concern.
(d) Either action under paragraph (b) of this section shall provide
a time period for the respondent to respond, and shall also provide a
time period for the respondent to come into compliance. If voluntary
compliance efforts are unsuccessful, enforcement action may be taken.
If voluntary compliance efforts are successful, NIGC staff will send an
investigation completion letter pursuant to Sec. 571.4.
[[Page 80850]]
(e) The Chair's discretion to take an enforcement action is not
limited or constrained in any way by this section. When the Chair takes
enforcement action before a letter of concern and/or warning letter is
issued, the enforcement action will state the reasons moving directly
to an enforcement action without first issuing a letter of concern and/
or warning letter.
5. In Sec. 573.3, revise paragraph (a) to read as follows:
Sec. 573.3 When may the Chair issue a notice of violation?
(a) The Chair may issue a notice of violation to any person for
violations of any provision of the Act or this chapter, or of any
tribal ordinance or resolution approved by the Chair under part 522 of
this chapter.
* * * * *
Sec. 573.6 [Redesignated as Sec. 573.4]
6. Redesignate Sec. 573.6 as Sec. 573.4
7. In newly redesignated Sec. 573.4, revise the section heading
and paragraphs (a) introductory text, (a)(3), (6), (7), (8), (9), (12),
(c) introductory text, (c)(1), (c)(2) introductory text, and (c)(3) to
read as follows:
Sec. 573.4 When may the Chair issue an order of temporary closure?
(a) When an order of temporary closure may issue. Simultaneously
with or subsequently to the issuance of a notice of violation under
Sec. 573.3 of this part, the Chair may issue an order of temporary
closure of all or part of an Indian gaming operation if one or more of
the following substantial violations are present:
* * * * *
(3) A gaming operation operates for business without a tribal
ordinance or resolution that the Chair has approved under part 522 of
this chapter.
* * * * *
(6) There is clear and convincing evidence that a gaming operation
defrauds a tribe.
(7) A management contractor operates for business without a
contract that the Chair has approved under part 533 of this chapter.
(8) Any person knowingly submits false or misleading information to
the Commission or a tribe in response to any provision of the Act, this
chapter, or a tribal ordinance or resolution that the Chair has
approved under part 522 of this chapter.
(9) A gaming operation refuses to allow an authorized
representative of the Commission or an authorized tribal official to
enter or inspect a gaming operation, in violation of Sec. 571.5 or
Sec. 571.6 of this chapter, or of a tribal ordinance or resolution
approved by the Chair under part 522 of this chapter.
* * * * *
(12) A gaming operation's facility is constructed, maintained, or
operated in a manner that threatens the environment or the public
health and safety, in violation of a tribal ordinance or resolution
approved by the Chair under part 522 of this chapter.
* * * * *
(c) Informal expedited review. Within seven (7) days after service
of an order of temporary closure, the respondent may request, orally or
in writing, informal expedited review by the Chair.
(1) The Chair shall complete the expedited review provided for by
this paragraph within two (2) days after his or her receipt of a timely
request.
(2) The Chair shall, within two (2) days after the expedited review
provided for by this paragraph:
* * *
(3) Whether or not a respondent seeks informal expedited review
under this paragraph, within thirty (30) days after the Chair serves an
order of temporary closure the respondent may appeal the order to the
Commission under part 577 of this chapter. Otherwise, the order shall
remain in effect unless rescinded by the Chair for good cause.
8. Add Sec. 573.5 to read as follows:
Sec. 573.5 When does an enforcement action become final agency
action?
An enforcement action shall become final agency action and a final
order of the Commission when:
(a) A respondent fails to appeal the enforcement action as provided
for in part 577 of this chapter and does not enter into a settlement
agreement resolving the matter in its entirety; or
(b) A respondent enters into a settlement agreement resolving the
matter in its entirety at any time after the issuance of the
enforcement action.
Dated: December 16, 2011, Washington, DC.
Tracie L. Stevens,
Chairwoman.
Steffani A. Cochran,
Vice-Chairwoman.
Daniel J. Little,
Associate Commissioner.
[FR Doc. 2011-32757 Filed 12-23-11; 8:45 am]
BILLING CODE 7565-02-P
