Self-Regulation of Class II Gaming, 4714-4720 [2012-1763]

Agencies

• DEPARTMENT OF THE INTERIOR
• National Indian Gaming Commission

[Federal Register Volume 77, Number 20 (Tuesday, January 31, 2012)]
[Proposed Rules]
[Pages 4714-4720]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-1763]


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DEPARTMENT OF THE INTERIOR

National Indian Gaming Commission

25 CFR Part 518

RIN 3141-AA44


Self-Regulation of Class II Gaming

AGENCY: National Indian Gaming Commission, Interior.

[[Page 4715]]


ACTION: Notice of proposed rulemaking.

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SUMMARY: This action proposes to amend the NIGC's self-regulation 
regulations to tailor the self-regulating qualifying criteria to a 
tribe's regulation of class II gaming activity and more clearly define 
and streamline the self-regulation certification process. By tailoring 
the self-regulating qualifying criteria to the capabilities of a 
tribe's regulatory body, and by clarifying and streamlining the 
certification process, more tribes may become self-regulating.

DATES: The agency must receive comments on or before April 2, 2012.

ADDRESSES: You may submit comments by any one of the following methods, 
but please note that comments sent by electronic mail are strongly 
encouraged.
     Email comments to: reg.review@nigc.gov.
     Mail comments to: Katherine Zebell, National Indian Gaming 
Commission, 1441 L Street NW., Suite 9100, Washington, DC 20005.
     Hand deliver comments to: 1441 L Street NW., Suite 9100, 
Washington, DC 20005.
     Fax comments to: Katherine Zebell, National Indian Gaming 
Commission at (202) 632-7066.

FOR FURTHER INFORMATION CONTACT: Katherine Zebell, National Indian 
Gaming Commission, 1441 L Street NW., Suite 9100, Washington, DC 20005. 
Telephone: (202) 632-7003; email: reg.review@nigc.gov.

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 which provide a factual basis in support of the 
views and suggestions presented are particularly helpful in developing 
reasoned regulatory decisions on the proposal.

II. Background

    On November 18, 2010, the Commission 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 NIGC should review its regulations, and the 
process the NIGC should utilize to make revisions. 75 FR 70680 (Nov. 
18, 2010). On April 4, 2011, after holding eight consultations and 
reviewing all of the comments, the Commission published a Notice of 
Regulatory Review Schedule, setting out a consultation schedule and 
process for review. 76 FR 18457. Part 518 is included in one of the 
regulation groups that are part of this regulatory review.

III. Development of the Proposed Rule

    The Commission conducted numerous tribal consultations as part of 
its review of part 518--Self-Regulation of Class II Gaming. Tribal 
consultations were held in every region of the country and were 
attended by many tribal leaders or their representatives. In addition 
to tribal consultations, on August 16, 2011, the Commission requested 
public comment on a Preliminary Draft of part 518. After considering 
the comments received from the public, and through tribal 
consultations, the Commission proposes to amend part 518 to (a) tailor 
the self-regulating criteria to a tribe's regulation of class II gaming 
activity; and (b) clearly define and streamline the process by which a 
self-regulation petition is reviewed and a final determination is made 
by the Commission.

IV. Overview of the Proposed Rule

    During the regulation review process, the Commission received 
comments that the existing self-regulation regulation discourages 
participation because the burdens imposed by the regulation outweigh 
the benefits. Specifically, comments stated that the current process is 
confusing, and the submission requirements, and continuing compliance 
requirements, are redundant and intrusive. The Commission also received 
comments that the current process is misfocused by placing greater 
emphasis on a tribe's gaming operation than on the effectiveness of a 
tribe's regulatory system. Therefore, the Commission is proposing 
amendments to streamline and clarify the process, as well as to ensure 
an effective regulatory framework for self-regulating tribes.
    The proposed rule amends the petition and approval process to focus 
on the capability of the tribal regulatory body. To this end, the 
proposed rule requires information necessary for the Commission to 
evaluate the strength and effectiveness of a tribe's regulation of its 
gaming activity.
    The proposed rule clarifies both the initial eligibility 
requirements and the petition submission requirements. Further, the 
proposed rule eliminates the need to resubmit information already 
provided to either the NIGC or the Bureau of Indian Affairs (``BIA''), 
such as gaming regulations, constitutions, revenue allocation plans, 
and facility licenses. The proposed rule creates distinct stages and 
timelines for the certification process, and accelerates the timeline 
for the Commission to issue a final decision. The proposed rule 
provides for a streamlined process by involving the Commission in the 
certification review process. Under the proposed rule, the Commission 
will issue both the preliminary findings and final determination as to 
whether a tribe meets the approval criteria for self-regulation. The 
Commission will also hold a hearing, if requested by a tribe upon 
receipt of the Commission's preliminary findings.
    Once certified, the only annual submission requirements under the 
proposed rule are the submission of independent audits and the resumes 
of all employees hired and licensed by the tribe's gaming regulatory 
body. The Commission believes that the annual self-regulation report 
currently required provides duplicative information already available 
to the agency and therefore proposes to eliminate that requirement. 
Additionally, the proposed rule requires self-regulating tribes to 
notify the NIGC within three business days of any change in 
circumstances that is material to the requirements for issuance of a 
certificate of self-regulation. This self-reporting requirement will 
provide the Commission with essential information in a more timely 
manner than the annual report mechanism in the current regulations.
    Finally, the proposed rule corrects and clarifies the existing rule 
by referencing IGRA's post-certification limitations regarding the 
NIGC's authority over self-regulating tribes.

A. General Comments

    Responses to the NOI and the Preliminary Draft of part 518 were 
generally positive. Many commenters stated that, in its current form, 
part 518 should be reviewed and revised to facilitate self-regulation 
while maintaining stringent standards. A commenter stated that the 
self-regulation regulations should be about evaluating a tribe's 
regulatory agency, not the gaming operation. Another commenter agreed, 
stating the focus should be on the tribal regulatory agency, not the 
gaming operation. Other commenters noted that the current financial 
benefits of waived fees do not outweigh the paperwork burdens of the 
current regulations. One commenter noted that the promise of self-
regulation contemplated by the Act is not fulfilled by the NIGC's 
current regulations. Another commenter stated that the fact that only 
two tribes are self-regulating means something is wrong with the

[[Page 4716]]

regulations. As noted above, the Commission's proposed changes attempt 
to address many of these concerns.

B. Eligibility and Submission Requirements for Petition

    The statute identifies who is eligible to petition for a 
certificate of self-regulation, and those criteria are contained in 
Sec.  518.2 of the current regulation. The proposed rule attempts to 
clearly identify what a tribe is required to include in its petition at 
the time it is submitted to the NIGC, including evidence that the tribe 
meets the statutory eligibility requirements.
    The requirement that a tribe must have continuously conducted class 
II gaming activity for the 3-year period immediately preceding the date 
of the petition raised concerns by several commenters. Commenters 
stated that this requirement could make ineligible those tribes 
conducting both class II and class III gaming, but which have not 
continuously conducted class II gaming for a 3-year period prior to 
submitting a petition. Commenters stated that if a tribe has conducted, 
and successfully regulated class II and/or class III gaming for three 
years, then it should be eligible to petition for a certificate of 
self-regulation. Further, there are instances in which tribes operate 
their gaming facilities seasonally or in which tribes have to 
temporarily close their facilities. While the Commission understands 
the perspective of the commenters, IGRA requires a tribe to 
continuously conduct class II gaming activity for three years before 
submitting a petition for self-regulation. Accordingly, and in light of 
the comments received, the Commission will continue to interpret the 
phrase ``continuously conducted'' in a way consistent with the common-
sense interpretation found in the preamble to the existing rule at 63 
FR 41961 (August 6, 1998). Likewise, this Commission does not intend to 
preclude a tribe from obtaining a certificate of self-regulation if its 
gaming operation is closed for temporary or seasonal closures, and will 
evaluate each situation on a case-by-case basis. Commenters noted that 
the current rule requires submission of information that is more 
focused on the gaming operation than the gaming regulatory framework. 
The Commission agrees with this comment and has attempted to strengthen 
the submission requirements that would indicate whether a tribe was 
successfully regulating its gaming activities, such as the criteria 
used for hiring tribal regulatory agency employees and a list of the 
gaming activity internal controls in place at the gaming operation. 
Under the proposed rule, tribes will be required to provide a list of 
their internal controls as part of the petition. Additionally, tribes 
must only submit the gaming regulations with the petition if the gaming 
regulations are not part of the gaming ordinance previously submitted 
and approved by the Chair.
    Further, commenters also noted that requiring information such as a 
tribe's constitution, revenue allocation plan or facility license is 
duplicative, as these documents have already been submitted to the NIGC 
or the BIA. The Commission agrees with this observation and has 
attempted to streamline the certification process by removing the 
requirements to resubmit documents previously provided to the NIGC or 
the BIA.

C. Criteria That Must Be Met To Receive a Certificate of Self-
Regulation

    The statute establishes criteria that must be met by a tribe before 
a certificate of self-regulation can be issued. The current rule 
identifies those criteria and provides a list of ``indicators'' that a 
tribe may use to demonstrate they have met the criteria. The proposed 
rule clarifies that the examples listed are not all-inclusive and that 
a tribe can provide other evidence to satisfy the criteria. As 
discussed above, the proposed rule focuses on evidence related to the 
tribe's regulation of the gaming activity. The proposed rule also 
streamlines criteria addressed by other NIGC regulations, such as 
compliance with applicable building, health and safety codes and 
procedures for resolving disputes between the gaming public and the 
tribe. Those requirements are addressed in Parts 559 and 522, 
respectively.

D. Process for Petition Review and Certification of Tribes

    Several tribes commented that the timing and process for 
certification needs clarification. In response, the proposed rule 
attempts to simplify and streamline the certification process, 
including how petitions are submitted, reviewed and approved, and the 
timelines for each stage. The proposed rule also attempts to clarify 
the respective roles and responsibilities of the Commission and the 
Office of Self-Regulation (``OSR''). The current regulation authorizes 
the OSR to administer the self-regulation program and receive, review 
and approve petitions. Commenters stated that IGRA requires the 
Commission itself to consider petitions and certify qualifying tribes. 
The proposed rule modifies the roles of the OSR and the Commission by 
requiring the full Commission to make the final determination as to 
whether a tribe meets the approval criteria for self-regulation, based 
on information presented in the tribe's petition, supplemental 
documentation and a hearing, if held. The proposed rule also 
streamlines the process by requiring the Commission to issue 
preliminary findings to the tribe and provide the tribe with an 
opportunity for a hearing before the Commission issues a final 
determination. This change allows a tribe to respond to a preliminary 
adverse finding before a final determination by the Commission. This 
proposed process is intended to facilitate collaboration with the NIGC 
to meet the approval criteria. Finally, the proposed rule provides for 
judicial review in a more timely manner than the current regulations.

E. Post-Certification Rights and Responsibilities

    IGRA requires a tribe which has been issued a certificate of self-
regulation to submit an independent annual audit and a complete resume 
on all employees hired and licensed by the tribe. The proposed rule 
requires self-regulating tribes to submit, on an annual basis, an 
independent audit and the resumes of employees hired and licensed by 
the tribal gaming regulatory body. Some commenters requested the 
regulation include a definition of ``tribal regulator.'' The proposed 
rule does not define ``tribal regulator'' because tribal law may vary 
on how it defines a tribal regulator. In order to account for all 
persons responsible for the regulation of a tribes' class II gaming 
activity, without interfering with the tribe's interpretation of a 
``tribal regulator,'' the proposed rule requires self-regulating tribes 
to submit, on an annual basis, the resumes of all employees hired and 
licensed by the tribal gaming regulatory body. The Commission invites 
comment on this approach and comment on potential definitions of 
``tribal regulator.''
    Part 518 currently requires the tribe to submit an annual report to 
establish that the tribe has continuously met the eligibility and 
approval requirements. The proposed rule reduces this paperwork burden. 
The proposed rule requires a tribe to notify the NIGC within three 
business days of any change in circumstances that is material to 
meeting the requirements for issuance of the certificate. This approach 
will ensure timely reporting to maintain the integrity of Indian gaming 
while reducing paperwork requirements for the regulated community.
    Finally, commenters stated that the current regulations concerning 
the NIGC's enforcement powers over self-

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regulating tribes were unclear and overbroad. Consistent with public 
comments, the proposed rule corrects and clarifies Sec.  518.9 by 
referencing the powers of the NIGC that are limited by statute once a 
tribe is issued a certificate of self-regulation
Regulatory Matters
Regulatory Flexibility Act
    This proposed rule will not have a significant economic effect on a 
substantial number of small entities as defined under the Regulatory 
Flexibility Act, 5 U.S.C. 601 et seq. Indian tribes are not considered 
to be small entities for purposes of the Regulatory Flexibility Act.
Small Business Regulatory Enforcement Fairness Act
    This proposed rule is not a major rule under 5 U.S.C. 804(2), the 
Small Business Regulatory Enforcement Fairness Act. This rule does not 
have an annual effect on the economy of $100 million or more. This rule 
will not cause a major increase in costs or prices for consumers, 
individual industries, Federal, state or local government agencies or 
geographic regions, and does not have a significant adverse effect on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises.
Unfunded Mandate Reform Act
    The Commission, as an independent regulatory agency within the 
Department of the Interior, is exempt from compliance with the Unfunded 
Mandates Reform Act. 2 U.S.C. 1502(1); 2 U.S.C. 658(1).
Takings
    In accordance with Executive Order 12630, the Commission has 
determined that this proposed rule does not have significant takings 
implications. A takings implication assessment is not required.
Civil Justice Reform
    In accordance with Executive Order 12988, the Office of General 
Counsel has determined that the proposed rule does not unduly burden 
the judicial system and meets the requirements of sections 3(a) and 
3(b)(2) of the Executive Order.
National Environmental Policy Act
    The Commission has determined that this proposed rule does not 
constitute a major Federal action significantly affecting the quality 
of the human environment and that no detailed statement is required 
pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 
4321 et seq.
Paperwork Reduction Act
    This proposed rule requires information collection under the 
Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq., and is, 
therefore, subject to review by the Office of Management and Budget.

List of Subjects in 25 CFR 518

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

    Accordingly, for the reasons discussed in the preamble, the 
Commission proposes to revise 25 CFR part 518 to read as follows:

PART 518--SELF-REGULATION OF CLASS II GAMING

Sec.
518.1 What does this part cover?
518.2 Who will administer the self-regulation program for the 
Commission?
518.3 Who is eligible to petition for a certificate of self-
regulation?
518.4 What must a tribe submit to the Commission as part of its 
petition?
518.5 What criteria must a tribe meet to receive a certificate of 
self-regulation?
518.6 What are the responsibilities of the Office of Self-Regulation 
in the certification process?
518.7 What process will the Commission use to review and certify 
petitions?
518.8 What is the hearing process?
518.9 When will a certificate of self-regulation become effective?
518.10 What must a self-regulating tribe provide the Commission to 
maintain its self-regulatory status?
518.11 Does a tribe that holds a certificate of self-regulation have 
a continuing duty to advise the Commission of any additional 
information?
518.12 Which investigative or enforcement powers of the Commission 
are inapplicable to self-regulating tribes?
518.13 When may the Commission revoke a certificate of self-
regulation?
518.14 May a tribe request a hearing on the Commission's proposal to 
revoke its certificate of self-regulation?

    Authority: 25 U.S.C. 2706(b)(10); E.O. 13175.


Sec.  518.1   What does this part cover?

    This part sets forth requirements for obtaining a certificate of 
self-regulation of class II gaming operations under 25 U.S.C. 2710(c). 
When the Commission issues a certificate of self-regulation, the 
certificate is issued to the tribe, not to a particular gaming 
operation. The certificate applies to all class II gaming activity 
conducted by the tribe holding the certificate.


Sec.  518.2  Who will administer the self-regulation program for the 
Commission?

    The self-regulation program will be administered by the Office of 
Self-Regulation. The Chair shall appoint one Commissioner to administer 
the Office of Self-Regulation.


Sec.  518.3   Who is eligible to petition for a certificate of self-
regulation?

    A tribe is eligible to petition the Commission for a certificate of 
self-regulation of class II gaming if, for a three (3)-year period 
immediately preceding the date of its petition:
    (a) The tribe has continuously conducted such gaming;
    (b) All gaming that the tribe has engaged in, or has licensed and 
regulated, on Indian lands within the tribe's jurisdiction, is located 
within a State that permits such gaming for any purpose by any person, 
organization or entity (and such gaming is not otherwise specifically 
prohibited on Indian lands by Federal law), in accordance with 25 
U.S.C. 2710(b)(1)(A);
    (c) The governing body of the tribe has adopted an ordinance or 
resolution that the Chair has approved, in accordance with 25 U.S.C. 
2710(b)(1)(B);
    (d) The tribe has otherwise complied with the provisions of 25 
U.S.C. 2710; and
    (e) The gaming operation and the tribal regulatory body have, for 
the three (3) years immediately preceding the date of the petition, 
maintained all records required to support the petition for self-
regulation.


Sec.  518.4   What must a tribe submit to the Commission as part of its 
petition?

    A petition for a certificate of self-regulation is complete under 
this part when it contains:
    (a) Two copies on 8\1/2\'' x 11'' paper of a petition for self-
regulation approved by the governing body of the tribe and certified as 
authentic by an authorized tribal official;
    (b) A description of how the tribe meets the eligibility criteria 
in Sec.  518.3, which may include supporting documentation; and
    (c) The following information with supporting documentation:
    (i) A brief history of each gaming operation(s), including the 
opening dates and periods of voluntary or involuntary closure;
    (ii) An organizational chart of the tribal regulatory body;
    (iii) A brief description of the criteria tribal regulators must 
meet before being eligible for employment as a tribal regulator;
    (iv) A brief description of the process by which the tribal 
regulatory body is

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funded, and the funding level for the three years immediately preceding 
the date of the petition;
    (v) A list of the current regulators and employees of the tribal 
regulatory body, their complete resumes, their titles, the dates they 
began employment, and, if serving limited terms, the expiration date of 
such terms;
    (vi) A brief description of the accounting system(s) at the gaming 
operation which tracks the flow of the gaming revenues;
    (vii) A list of gaming activity internal controls at the gaming 
operation(s);
    (viii) A description of the record keeping system(s) for all 
investigations, enforcement actions, and prosecutions of violations of 
the tribal gaming ordinance or regulations, for the three (3)-year 
period immediately preceding the date of the petition; and
    (ix) The tribe's current set of gaming regulations, if not included 
in the approved tribal gaming ordinance.


Sec.  518.5  What criteria must a tribe meet to receive a certificate 
of self-regulation?

    (a) The Commission shall issue a certificate of self-regulation if 
it determines that for a three (3)-year period, the tribe has:
    (1) Conducted its gaming activity in a manner that:
    (i) Has resulted in an effective and honest accounting of all 
revenues;
    (ii) Has resulted in a reputation for safe, fair, and honest 
operation of the activity; and
    (iii) Has been generally free of evidence of criminal or dishonest 
activity;
    (2) Conducted its gaming operation on a fiscally and economically 
sound basis;
    (3) Conducted its gaming activity in compliance with the IGRA, NIGC 
regulations in this chapter, and the tribe's gaming ordinance and 
gaming regulations; and
    (4) Adopted and is implementing adequate systems for:
    (i) Accounting of all revenues from the gaming activity;
    (ii) Investigating, licensing and monitoring of all employees of 
the gaming activity;
    (iii) Investigating, enforcing, prosecuting, or referring for 
prosecution violations of its gaming ordinance and regulations; and
    (iv) Prosecuting criminal or dishonest activity or referring such 
activity for prosecution.
    (b) A tribe may illustrate that it has met the criteria listed in 
paragraph (a) of this section by addressing factors such as those 
listed below. The list of factors is not all-inclusive; other factors 
not listed here may also be addressed and considered.
    (1) The tribe adopted and is implementing minimum internal control 
standards which are at least as stringent as those promulgated by the 
Commission;
    (2) The tribe requires tribal gaming regulators to meet the same 
suitability requirements as those required for key employees and 
primary management officials of the gaming operation(s);
    (3) The tribe's gaming operation utilizes an adequate system for 
accounting of all gaming revenues from class II gaming activity;
    (4) The tribe has a dispute resolution process for gaming operation 
customers and has taken steps to ensure that the process is adequately 
implemented;
    (5) The tribe has a gaming regulatory body which:
    (i) Monitors gaming activities to ensure compliance with Federal 
and tribal laws and regulations;
    (ii) Monitors the gaming revenues accounting system for continued 
effectiveness;
    (iii) Performs routine operational or other audits of the class II 
gaming activities;
    (iv) Routinely receives and reviews gaming revenue accounting 
information from the gaming operation(s);
    (v) Has access to and may inspect, examine, photocopy and audit all 
papers, books, and records of the gaming operation(s) and class II 
gaming activities;
    (vi) Monitors compliance with minimum internal control standards 
for the gaming operation;
    (vii) Has adopted and is implementing an adequate system for 
investigating, licensing, and monitoring of all employees of the gaming 
activity;
    (viii) Maintains records on licensees and on persons denied 
licenses, including persons otherwise prohibited from engaging in 
gaming activities within the tribe's jurisdiction;
    (ix) Establishes standards for, and issues, vendor licenses or 
permits to persons or entities who deal with the gaming operation, such 
as manufacturers and suppliers of services, equipment and supplies;
    (x) Establishes or approves the rules governing class II games, and 
requires their posting;
    (xi) Has adopted and is implementing an adequate system for the 
investigation of possible violations of the tribal gaming ordinance and 
regulations, and takes appropriate enforcement actions; and
    (xii) Takes testimony and conducts hearings on regulatory matters, 
including matters related to the revocation of primary management 
officials, key employee and vendor licenses;
    (6) The tribe allocates and appropriates a sufficient source of 
permanent and stable funding for the tribal regulatory body;
    (7) The tribe has adopted and is implementing a conflict of 
interest policy for the regulators/regulatory body and their staff;
    (8) The tribe has adopted and is implementing a system for adequate 
prosecution of violations of the tribal gaming ordinance and 
regulations or referrals for prosecution; and
    (9) The tribe demonstrates that the operation is being conducted in 
a manner which adequately protects the environment and the public 
health and safety.
    (c) The tribe assists the Commission with access and information-
gathering responsibilities during the certification process.
    (d) The burden of establishing self-regulation is upon the tribe 
filing the petition.


Sec.  518.6  What are the responsibilities of the Office of Self-
Regulation in the certification process?

    The Office of Self-Regulation shall be responsible for directing 
and coordinating the certification process. It shall provide a written 
report and recommendation to the Commission as to whether a certificate 
of self-regulation should be issued or denied, and a copy of the report 
and recommendation to the petitioning tribe.


Sec.  518.7  What process will the Commission use to review and certify 
petitions?

    (a) Petitions for self-regulation shall be submitted by tribes to 
the Office of Self-Regulation.
    (1) Within 30 days of receipt of a tribe's petition, the Office of 
Self-Regulation shall conduct a review of the tribe's petition to 
determine whether it is complete under Sec.  518.4.
    (2) If the tribe's petition is incomplete, the Office of Self-
Regulation shall notify the tribe by letter, certified mail or return 
receipt requested, of any obvious deficiencies or significant omissions 
in the petition. A tribe with an incomplete petition may submit 
additional information and/or clarification within 30 days of receipt 
of notice of an incomplete petition.
    (3) If the tribe's petition is complete, the Office of Self-
Regulation shall notify the tribe in writing.
    (b) Once a tribe's petition is complete, the Office of Self-
Regulation shall conduct a review to determine whether the tribe meets 
the eligibility criteria in Sec.  518.3 and the approval criteria in 
Sec.  518.5. During its review, the Office of Self-Regulation:

[[Page 4719]]

    (1) May request from the tribe any additional material it deems 
necessary to assess whether the tribe has met the criteria for self-
regulation.
    (2) Will coordinate an on-site review and verification of the 
information submitted by the petitioning tribe.
    (c) Within 120 days of notice of a complete petition under Sec.  
518.4, the Office of Self-Regulation shall provide a recommendation and 
written report to the full Commission and the petitioning tribe.
    (1) If the Office of Self-Regulation determines that the tribe has 
satisfied the criteria for a certificate of self-regulation, it shall 
recommend to the Commission that a certificate be issued to the tribe.
    (2) If the Office of Self-Regulation determines that the tribe has 
not met the criteria for a certificate of self-regulation, it shall 
recommend to the Commission that it not issue a certificate to the 
tribe.
    (3) The Office of Self-Regulation shall make all information on 
which it relies in making its recommendation and report available to 
the tribe, subject to the confidentiality requirements in 25 U.S.C. 
2716(a), and shall afford the tribe an opportunity to respond.
    (4) The report shall include:
    (i) Findings as to whether each of the eligibility criteria is met, 
and a summary of the basis for each finding;
    (ii) Findings as to whether each of the approval criteria is met, 
and a summary of the basis for each finding;
    (iii) A recommendation to the Commission as to whether it should 
issue the tribe a certificate of self-regulation; and
    (iv) A list of any documents and other information received in 
support of the tribe's petition.
    (5) A tribe shall have 30 days from the date of issuance of the 
report to submit to the Office of Self-Regulation a response to the 
report.
    (d) After receiving the Office of Self-Regulation's recommendation 
and report, and a tribe's response to the report, the Commission shall 
issue preliminary findings as to whether the eligibility and approval 
criteria are met. The Commission's preliminary findings will be 
provided to the tribe within 30 days of receipt of the report.
    (e) Upon receipt of the Commission's preliminary findings, the 
tribe can request, in writing, a hearing before the Commission, as set 
forth in Sec.  518.8. Hearing requests shall be made to the Office of 
Self-Regulation and shall specify the issues to be addressed by the 
tribe at the hearing, and any proposed oral or written testimony the 
tribe wishes to present.
    (f) The Commission shall issue a final determination 30 days after 
issuance of its preliminary findings or after the conclusion of a 
hearing, if one is held. The decision of the Commission to approve or 
deny a petition shall be a final agency action.
    (g) A tribe may withdraw its petition and resubmit it at any time 
prior to the issuance of the Commission's final determination.


Sec.  518.8  What is the hearing process?

    (a) Within 10 days of receipt of the request for a hearing, the 
Office of Self-Regulation shall notify the tribe of the date and place 
of the hearing. The notice shall also set a hearing schedule, the time 
allotted for testimony and oral argument, and the order of the 
presentation. To the extent possible, the hearing will be scheduled not 
later than 60 days after the notice is issued, and the hearing schedule 
will be issued at least 30 days prior to the hearing.
    (b) The Commission shall issue a decision on the petition within 30 
days after the hearing's conclusion. The decision shall set forth, with 
particularity, findings regarding the tribe's satisfaction of the self-
regulation standards in this part. If the Commission determines that a 
certificate will issue, it will do so in accordance with Sec.  518.11.
    (c) The decision of the Commission to approve or deny a petition 
shall be a final agency action.


Sec.  518.9  When will a certificate of self-regulation become 
effective?

    A certificate of self-regulation shall become effective on January 
1 of the year following the year in which the Commission determines 
that a certificate will issue. Petitions will be reviewed in 
chronological order based on the date of receipt of a complete 
petition.


Sec.  518.10  What must a self-regulating tribe provide the Commission 
to maintain its self-regulatory status?

    (a) Each tribe that holds a certificate of self-regulation shall be 
required to submit the following information on April 15 of each year 
following the first year of self-regulation or within 120 days after 
the end of each fiscal year of the gaming operation, as required by 25 
CFR 571.13:
    (1) An annual independent audit, to be filed with the Commission, 
as required by 25 U.S.C. 2710(b)(2)(c); and
    (2) A complete resume for all employees of the tribal regulatory 
body hired and licensed by the tribe subsequent to its receipt of a 
certificate of self-regulation, to be filed with the Office of Self-
Regulation.
    (b) Failure to submit the information required by this section may 
result in revocation of a certificate of self-regulation.


Sec.  518.11  Does a tribe that holds a certificate of self-regulation 
have a continuing duty to advise the Commission of any additional 
information?

    Yes. A tribe that holds a certificate of self-regulation has a 
continuing duty to advise the Commission within three (3) business days 
of any changes in circumstances that are material to the approval 
criteria in Sec.  518.5 and may reasonably cause the Commission to 
review and revoke the tribe's certificate of self-regulation. Failure 
to do so is grounds for revocation of a certificate of self-regulation. 
Such circumstances may include, but are not limited to, a change in 
management contractor; a change of primary regulatory official; 
financial instability; or any other factors that are material to the 
decision to grant a certificate of self-regulation.


Sec.  518.12  Which investigative or enforcement powers of the 
Commission are inapplicable to self-regulating tribes?

    During any time in which a tribe has a certificate of self-
regulation, the powers of the Commission, as set forth in 25 U.S.C. 
2706(b)(1)-(4), shall be inapplicable.


Sec.  518.13  When may the Commission revoke a certificate of self-
regulation?

    The Commission may, after an opportunity for a hearing, revoke a 
certificate of self-regulation by a majority vote of its members if it 
determines that the tribe no longer meets the eligibility criteria of 
Sec.  518.3, the approval criteria of Sec.  518.5, the requirements of 
Sec.  518.10 or the requirements of Sec.  518.11. The Commission shall 
provide the tribe with prompt notice of the Commission's intent to 
revoke a certificate of self-regulation under this part. Such notice 
shall state the reasons for the Commission's action and shall advise 
the tribe of its right to a hearing under part 584 or right to appeal 
under part 585. The decision to revoke a certificate is a final agency 
action and is appealable to Federal District Court pursuant to 25 
U.S.C. 2714.


Sec.  518.14  May a tribe request a hearing on the Commission's 
proposal to revoke its certificate of self-regulation?

    Yes. A tribe may request a hearing regarding the Commission's 
proposal to revoke a certificate of self-regulation. Such a request 
shall be filed with the Commission pursuant to part 584. Failure to 
request a hearing within the time provided by part 584 shall

[[Page 4720]]

constitute a waiver of the right to a hearing.

Tracie L. Stevens,
Chairwoman.
Steffani A. Cochran,
Vice-Chairwoman.
Daniel J. Little,
Associate Commissioner.
[FR Doc. 2012-1763 Filed 1-27-12; 11:15 am]
BILLING CODE 7565-01-P