Definition of Enforcement Action, 47513-47514 [2012-19169]

Download as PDF Federal Register / Vol. 77, No. 154 / Thursday, August 9, 2012 / Rules and Regulations DEPARTMENT OF THE INTERIOR National Indian Gaming Commission 25 CFR Part 502 Definition of Enforcement Action National Indian Gaming Commission, Interior. ACTION: Final rule. AGENCY: The National Indian Gaming Commission (NIGC or Commission) is amending its regulation setting out definitions to add a definition of ‘‘enforcement action.’’ DATES: Effective Date: September 10, 2012. FOR FURTHER INFORMATION CONTACT: Melissa Schlichting, National Indian Gaming Commission, 1441 L Street NW., Suite 9100, Washington, DC 20005. Telephone: 202–632–7003; email: Melissa_Schlichting@nigc.gov. SUPPLEMENTARY INFORMATION: SUMMARY: mstockstill on DSK4VPTVN1PROD with RULES I. 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. II. Previous Rulemaking Activity 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 VerDate Mar<15>2010 15:53 Aug 08, 2012 Jkt 226001 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 (Oct. 12, 2011). 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 502 was included in this regulatory review. The Commission conducted a total of 14 tribal consultations as part of its review of Part 573. Tribal consultations were held in every region of the country and were attended by numerous Tribes and Tribal leaders or their representatives. 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 realized that to supplement the amendments made to Part 573, a definition of ‘‘enforcement action’’ needed to be added to Part 502. On December 27, 2011, the Commission published a Notice of Proposed Rulemaking based on the comments received during the Tribal consultations and comments on the Preliminary Draft of Part 573. The Notice of Proposed Rulemaking proposed a definition for ‘‘enforcement action’’ be added to Part 502. Following the publication of the proposed rule, an additional 5 Tribal consultations were held. Comments to the proposed rule were due February 27, 2012. III. Review of Public Comments In response to our Notice of Proposed Rulemaking, published December 27, 2011, 76 FR 80846, we received the following comments: Section 502.24 Enforcement Action Comment: Two commenters requested that the definition of ‘‘enforcement action’’ be clarified to specifically exclude letters of concern and warning letters. The commenters felt that without such clarification a letter of concern or a warning letter could be considered an ‘‘enforcement action.’’ Response: The Commission agrees with the commenter that clarification in the regulation is beneficial. To that end, the Commission added a sentence on to the end of the proposed definition of ‘‘enforcement action’’ specifically stating that ‘‘[e]nforcement action does not include any action taken by NIGC staff, including but not limited to, the issuance of a letter of concern under PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 47513 § 573.2.’’ This change does not include a ‘‘warning letter’’ because it was removed by the Commission from the § 573.2 final rule. Comment: One commenter requested the Commission consider removing ‘‘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’’ because adding the statutory language is superfluous and potentially confusing. Response: The Commission considered the comment and disagrees that the inclusion of a paraphrased portion of the statutory language within the definition causes confusion. To be clear, the language is not an exact quotation of the statutory language; it is a paraphrasing of such language, which helps to ensure that the definition remains consistent with the statute and that the extent of the Chair’s authority is clear to the regulated community. Comment: One commenter recommends that the definition of ‘‘Chairman’’ be amended or changed to indicate that the word ‘‘Chair’’ can be used interchangeably or the word ‘‘Chair’’ should be separately defined. Response: The Commission intends, as the opportunity to do so arises, to convert all references to the ‘‘Chairman’’ contained in the NIGC regulations to the shortened, gender-neutral word ‘‘Chair.’’ The use of the word ‘‘Chair’’ should not cause confusion as it is only a shortened form of the word ‘‘Chairman.’’ Comment: One commenter asked whether the definition of ‘‘enforcement action’’ included audit and enforcement of revenue allocation plan requirements because the commenter believes the Commission does not have the authority to do so. Response: The Commission believes the commenter’s question goes beyond the scope of the NOI and NRR and no answer is required. However, the definition of ‘‘enforcement action’’ clearly defines the Commission’s authority to enforce violations of any provision of IGRA, NIGC regulations, and any tribal ordinances, resolutions, or regulations that are approved by the Chair under IGRA. Therefore, to the extent IGRA, NIGC regulations, or any tribal ordinances, resolutions, or regulations approved by the Chair under IGRA, create audit obligations or revenue allocation plan requirements, the Chair has the authority to enforce them. E:\FR\FM\09AUR1.SGM 09AUR1 47514 Federal Register / Vol. 77, No. 154 / Thursday, August 9, 2012 / Rules and Regulations List of Subjects in 25 CFR Part 502 IV. Regulatory Matters Regulatory Flexibility Act The 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 rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. The rule does not have an effect on the economy of $100 million or more. The rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, local government agencies or geographic regions. Nor will the rule have a significant adverse effect on competition, employment, investment, productivity, innovation, or the ability of the 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 rule does not have significant takings implications. A takings implication assessment is not required. Enforcement actions. For the reasons stated in the preamble, the National Indian Gaming Commission amends 25 CFR part 502 as follows: PART 502—DEFINTIONS OF THIS CHAPTER 1. The authority citation for part 502 is revised to read as follows: ■ Authority: 25 U.S.C. 2706(b)(10); 25 U.S.C. 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. Enforcement action does not include any action taken by NIGC staff, including but not limited to, the issuance of a letter of concern under § 573.2 of this chapter. Dated: July 31, 2012, Washington, DC. Tracie L. Stevens, Chairwoman. Steffani A. Cochran, Vice-Chairwoman. Daniel J. Little, Associate Commissioner. [FR Doc. 2012–19169 Filed 8–8–12; 8:45 am] BILLING CODE 7565–01–P Civil Justice Reform In accordance with Executive Order 12988, the Commission has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. National Environmental Policy Act mstockstill on DSK4VPTVN1PROD with RULES The Commission has determined that the 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 rule does not require information collection under the Paperwork Reduction Act of 1995, 44 U.S.C. 2501, et seq., and is therefore not subject to review by the Office of Management and Budget. VerDate Mar<15>2010 15:53 Aug 08, 2012 Jkt 226001 DEPARTMENT OF THE INTERIOR National Indian Gaming Commission 25 CFR Part 537 Management Contracts—Background Investigations National Indian Gaming Commission, Interior. ACTION: Final rule. AGENCY: The National Indian Gaming Commission (NIGC or Commission) is amending its regulation to allow reduced scope background investigations for specific types of entities with a financial interest in, or having management responsibility for, a management contract, and to update the forms of payment that may be accepted by the NIGC for background investigation fees. SUMMARY: PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 DATES: Effective Date: September 10, 2012. FOR FURTHER INFORMATION CONTACT: Melissa Schlichting, National Indian Gaming Commission, 1441 L Street NW., Suite 9100, Washington, DC 20005. Telephone: 202–632–7003; email: Melissa_Schlichting@nigc.gov. SUPPLEMENTARY INFORMATION: I. Background The Indian Gaming Regulatory Act (IGRA) requires that each person with a financial interest in, or management responsibility for, a management contract for class II gaming, and in the case of a corporation, the individual members of the corporation’s board of directors and stockholders who hold 10% or more of the issued and outstanding stock, submit background information to the Chair. 25 U.S.C. 2711(a)(1). IGRA also requires that the Chair not approve any management contract if he or she determines that any person with a financial interest in, or management responsibility for, a management contract for class II gaming, and in the case of a corporation, the individual members of the corporation’s board of directors and stockholders who hold 10% or more of the issued and outstanding stock is ‘‘a person whose prior activities, criminal record if any, or reputation, habits, and associations pose a threat to the public interest or to the effective regulation and control of gaming, or create or enhance the dangers of unsuitable, unfair, or illegal practices, methods, and activities in the conduct of gaming or the carrying on of the business and financial arrangements incidental thereto.’’ 25 U.S.C. 2711(e)(1)(D). Pursuant to the Commission’s authority to ‘‘promulgate such regulations and guidelines as it deems appropriate to implement the provisions of [IGRA],’’ 25 U.S.C. 2706(a)(10), the Commission adopted a regulation, Part 537, requiring certain persons and entities undergo a background investigation, including entities with a financial interest in a management contract. 25 CFR 537.1(a)(4). The Commission is amending § 537.1(a)(4) to expand the types of entities with a financial interest in a management contract that may, at the discretion of the Chair, undergo a streamlined review, in the form of a reduced scope background investigation. In addition, it came to the attention of the Commission that it could no longer accept certain methods of payment, specifically the posting of a bond or letter of credit for background investigation fees pursuant to E:\FR\FM\09AUR1.SGM 09AUR1

Agencies

[Federal Register Volume 77, Number 154 (Thursday, August 9, 2012)]
[Rules and Regulations]
[Pages 47513-47514]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-19169]



[[Page 47513]]

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DEPARTMENT OF THE INTERIOR

National Indian Gaming Commission

25 CFR Part 502


Definition of Enforcement Action

AGENCY: National Indian Gaming Commission, Interior.

ACTION: Final rule.

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

SUMMARY: The National Indian Gaming Commission (NIGC or Commission) is 
amending its regulation setting out definitions to add a definition of 
``enforcement action.''

DATES: Effective Date: September 10, 2012.

FOR FURTHER INFORMATION CONTACT: Melissa Schlichting, National Indian 
Gaming Commission, 1441 L Street NW., Suite 9100, Washington, DC 20005. 
Telephone: 202-632-7003; email: Melissa_Schlichting@nigc.gov.

SUPPLEMENTARY INFORMATION:

I. 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.

II. Previous Rulemaking Activity

    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 (Oct. 12, 2011). 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 502 was included in this regulatory review.
    The Commission conducted a total of 14 tribal consultations as part 
of its review of Part 573. Tribal consultations were held in every 
region of the country and were attended by numerous Tribes and Tribal 
leaders or their representatives. 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 realized that to supplement the 
amendments made to Part 573, a definition of ``enforcement action'' 
needed to be added to Part 502.
    On December 27, 2011, the Commission published a Notice of Proposed 
Rulemaking based on the comments received during the Tribal 
consultations and comments on the Preliminary Draft of Part 573. The 
Notice of Proposed Rulemaking proposed a definition for ``enforcement 
action'' be added to Part 502. Following the publication of the 
proposed rule, an additional 5 Tribal consultations were held. Comments 
to the proposed rule were due February 27, 2012.

III. Review of Public Comments

    In response to our Notice of Proposed Rulemaking, published 
December 27, 2011, 76 FR 80846, we received the following comments:

Section 502.24 Enforcement Action

    Comment: Two commenters requested that the definition of 
``enforcement action'' be clarified to specifically exclude letters of 
concern and warning letters. The commenters felt that without such 
clarification a letter of concern or a warning letter could be 
considered an ``enforcement action.''
    Response: The Commission agrees with the commenter that 
clarification in the regulation is beneficial. To that end, the 
Commission added a sentence on to the end of the proposed definition of 
``enforcement action'' specifically stating that ``[e]nforcement action 
does not include any action taken by NIGC staff, including but not 
limited to, the issuance of a letter of concern under Sec.  573.2.'' 
This change does not include a ``warning letter'' because it was 
removed by the Commission from the Sec.  573.2 final rule.
    Comment: One commenter requested the Commission consider removing 
``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'' because adding the statutory language is superfluous and 
potentially confusing.
    Response: The Commission considered the comment and disagrees that 
the inclusion of a paraphrased portion of the statutory language within 
the definition causes confusion. To be clear, the language is not an 
exact quotation of the statutory language; it is a paraphrasing of such 
language, which helps to ensure that the definition remains consistent 
with the statute and that the extent of the Chair's authority is clear 
to the regulated community.
    Comment: One commenter recommends that the definition of 
``Chairman'' be amended or changed to indicate that the word ``Chair'' 
can be used interchangeably or the word ``Chair'' should be separately 
defined.
    Response: The Commission intends, as the opportunity to do so 
arises, to convert all references to the ``Chairman'' contained in the 
NIGC regulations to the shortened, gender-neutral word ``Chair.'' The 
use of the word ``Chair'' should not cause confusion as it is only a 
shortened form of the word ``Chairman.''
    Comment: One commenter asked whether the definition of 
``enforcement action'' included audit and enforcement of revenue 
allocation plan requirements because the commenter believes the 
Commission does not have the authority to do so.
    Response: The Commission believes the commenter's question goes 
beyond the scope of the NOI and NRR and no answer is required. However, 
the definition of ``enforcement action'' clearly defines the 
Commission's authority to enforce violations of any provision of IGRA, 
NIGC regulations, and any tribal ordinances, resolutions, or 
regulations that are approved by the Chair under IGRA. Therefore, to 
the extent IGRA, NIGC regulations, or any tribal ordinances, 
resolutions, or regulations approved by the Chair under IGRA, create 
audit obligations or revenue allocation plan requirements, the Chair 
has the authority to enforce them.

[[Page 47514]]

IV. Regulatory Matters

Regulatory Flexibility Act

    The 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 rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. The rule does not have an 
effect on the economy of $100 million or more. The rule will not cause 
a major increase in costs or prices for consumers, individual 
industries, Federal, State, local government agencies or geographic 
regions. Nor will the rule have a significant adverse effect on 
competition, employment, investment, productivity, innovation, or the 
ability of the 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 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 rule does not unduly burden the judicial system and 
meets the requirements of sections 3(a) and 3(b)(2) of the Order.

National Environmental Policy Act

    The Commission has determined that the 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 rule does not require information collection under the 
Paperwork Reduction Act of 1995, 44 U.S.C. 2501, et seq., and is 
therefore not subject to review by the Office of Management and Budget.

List of Subjects in 25 CFR Part 502

    Enforcement actions.

    For the reasons stated in the preamble, the National Indian Gaming 
Commission amends 25 CFR part 502 as follows:

PART 502--DEFINTIONS OF THIS CHAPTER

0
1. The authority citation for part 502 is revised to read as follows:

    Authority: 25 U.S.C. 2706(b)(10); 25 U.S.C. 2713.


0
2. Add Sec.  502.24 to read as follows:


Sec.  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. Enforcement action does not include any action taken by NIGC 
staff, including but not limited to, the issuance of a letter of 
concern under Sec.  573.2 of this chapter.

    Dated: July 31, 2012, Washington, DC.
Tracie L. Stevens,
Chairwoman.
Steffani A. Cochran,
Vice-Chairwoman.
Daniel J. Little,
Associate Commissioner.
[FR Doc. 2012-19169 Filed 8-8-12; 8:45 am]
BILLING CODE 7565-01-P

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