Self-Regulation of Class II Gaming, 20236-20244 [2013-07621]

Download as PDF 20236 Federal Register / Vol. 78, No. 65 / Thursday, April 4, 2013 / Rules and Regulations the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on helicopters identified in this rulemaking action. Regulatory Findings This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD: (1) Is not a ‘‘significant regulatory action’’ under Executive Order 12866; (2) Is not a ‘‘significant rule’’ under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); (3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and (4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: (h) Subject. Joint Aircraft Service Component (JASC) Code: 3421, Attitude Gyro and Indicator System. (b) Unsafe Condition This AD defines the unsafe condition as an undetected flight display error of a slow drift in the roll axis. This condition could result in disorientation of the pilot and subsequent loss of control of the helicopter. (i) Material Incorporated by Reference. (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51. (2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise. (i) Eurocopter Alert Service Bulletin No. 34.00.31, Revision 1, dated July 28, 2010. (ii) Reserved. (3) For Eurocopter service information identified in this AD, contact American Eurocopter Corporation, 2701 N. Forum Drive, Grand Prairie, Texas 75052; telephone (972) 641–0000 or (800) 232–0323; fax (972) 641–3775; or at http://www.eurocopter.com/ techpub. (4) You may view this service information at FAA, Office of the Regional Counsel, Southwest Region, 2601 Meacham Blvd., Room 663, Fort Worth, Texas 76137. For information on the availability of this material at the FAA, call (817) 222–5110. (5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741–6030, or go to: http:// www.archives.gov/federal-register/cfr/ibrlocations.html. (c) Effective Date. This AD becomes effective May 9, 2013. (d) Compliance You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time. (e) Required Actions (1) Before further flight, revise the Limitations section of the Rotorcraft Flight Manual (RFM) by inserting a copy of this AD into the RFM or by pen and ink changes to the RFM that prohibits flight in instrument meteorological conditions (IMC) or night visual flight rules (VFR) for each helicopter with a vertical gyro unit GV76–1 installed on the rear cargo compartment shelf without reinforcement per Modification 365P081895. (2) Within 110 hours time-in-service, modify the GV76–1 vertical gyro unit shelf as depicted in Figures 1 through 3 and by following the Accomplishment Instructions, paragraphs 2.A. through 2.B.2.e., of Eurocopter Alert Service Bulletin No. 34.00.31, Revision 1, dated July 28, 2010. After reinforcing the shelf, operationally test the GV76–1 vertical gyro unit and functionally test the navigation systems. (3) After modifying the GV76–1 vertical gyro unit shelf, remove this AD from the Limitations section of the RFM or remove any changes to the Limitations section of the RFM that prohibit flight in IMC or VFR as a result of paragraph (e)(1) of this AD. (4) Modifying the GV76–1 vertical gyro unit shelf is terminating action for the requirements of this AD. 2013–06–07 Eurocopter France Helicopters: Amendment 39–17404; Docket No. FAA–2012–1014; Directorate Identifier 2010–SW–058–AD. (f) Alternative Methods of Compliance (AMOCs) (1) The Manager, Safety Management Group, FAA, may approve AMOCs for this AD. Send your proposal to: Mark F. Wiley, Aviation Safety Engineer, Regulations and Policy Group, Rotorcraft Directorate, FAA, 2601 Meacham Blvd., Fort Worth, Texas 76137; telephone (817) 222–5110; email mark.wiley@faa.gov. (2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office, before operating any aircraft complying with this AD through an AMOC. (a) Applicability This AD applies to Model SA–365N1, AS– 365N2, and AS 365 N3 helicopters, with the GV76–1 vertical gyro unit installed on the left-hand (LH) or right-hand (RH) shelf in the (g) Additional Information The subject of this AD is addressed in European Aviation Safety Agency AD No. 2010–0100R1, dated August 4, 2010, and corrected August 11, 2010. PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: ■ Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): ■ wreier-aviles on DSK5TPTVN1PROD with RULES rear cargo compartment, pre-MOD 365P081895, certificated in any category, all serial numbers except 6698, 6701, 6723, 6737, and 6741. VerDate Mar<15>2010 14:43 Apr 03, 2013 Jkt 229001 PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 Issued in Fort Worth, Texas, on March 21, 2013. Kim Smith, Manager, Rotorcraft Directorate, Aircraft Certification Service. [FR Doc. 2013–07211 Filed 4–3–13; 8:45 am] BILLING CODE 4910–13–P DEPARTMENT OF THE INTERIOR National Indian Gaming Commission 25 CFR Part 518 RIN 3141–AA44 Self-Regulation of Class II Gaming National Indian Gaming Commission. ACTION: Final rule. AGENCY: The National Indian Gaming Commission (NIGC or Commission) amends its regulation for the review and approval of petitions seeking the issuance of a certificate for tribal selfregulation of Class II gaming. DATES: Effective Date: The effective date of these regulations is September 1, 2013. FOR FURTHER INFORMATION CONTACT: John Hay, National Indian Gaming SUMMARY: E:\FR\FM\04APR1.SGM 04APR1 Federal Register / Vol. 78, No. 65 / Thursday, April 4, 2013 / Rules and Regulations Commission, 1441 L Street NW., Suite 9100, Washington, DC 20005. Telephone: 202–632–7003. SUPPLEMENTARY INFORMATION: I. Background The Indian Gaming Regulatory Act (IGRA or the Act), enacted on October 17, 1988, established the National Indian Gaming Commission (Commission). Pursuant to the Act, the Commission regulates Class II gaming and certain aspects of Class III gaming on Indian lands. wreier-aviles on DSK5TPTVN1PROD with RULES II. Previous Rulemaking Activity 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 regarding 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 public comments received, the Commission published a Notice of Regulatory Review Schedule (NRR), setting out a consultation schedule and process for review. 76 FR 18457 (April 4, 2011). Part 518 was included in the fourth regulatory group reviewed as part of the NRR. 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 written comments received from the public, as well as comments made by participants at tribal consultations, the Commission published a Notice of Proposed Rulemaking on January 31, 2012 (77 FR 4714), proposing changes to part 518 to: (a) focus the criteria for receiving a certificate of self-regulation on a tribe’s ability to regulate Class II gaming; 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. III. Review of Public Comments In response to our Notice of Proposed Rulemaking, published January 31, VerDate Mar<15>2010 14:43 Apr 03, 2013 Jkt 229001 2012, 77 FR 4714, we received the following comments. General Comments Comments: A few commenters stated that, although self-regulation is a goal for many tribes, the current regulations make the application and annual reporting process overly burdensome. The proposed rule makes self-regulation more available to all tribes. Response: The Commission agrees and has chosen to retain the proposed changes in the final rule. Comments: A few commenters stated that the inclusion of the full Commission in the review and approval process in the proposed rule assures tribes that their applications will be thoroughly vetted and that a final decision will be reached by the appropriate decision-makers. Response: The Commission agrees and has retained the level of Commission involvement in the final rule. Comment: One commenter expressed concern that the Commission will use the petition process to review tribal revenue allocation plans and suggested that a review of these plans be specifically excluded. Response: The regulation does not require tribes to submit their tribal revenue allocation plans to the NIGC for review. However, the Commission is required to determine whether the gaming activity has been conducted in compliance with IGRA, which addresses the use of net gaming revenues. Accordingly, the Commission declines to exclude tribal revenue allocation plans specifically from its review. Comment: One commenter stated that, until the NIGC allows the self-regulation program to function in the manner intended by Congress, tribes will continue to be discouraged from exercising their statutory right to attain self-regulation status. Response: The Commission believes that the changes to the regulation will encourage more tribes to take advantage of the self-regulation program and the benefits of self-regulation. 518.3 Who is eligible to petition for a certificate of self-regulation? Comment on § 518.3(b): One commenter suggested that ‘‘all gaming’’ be changed to ‘‘Class II gaming,’’ submitting that § 518.3(b) strongly implies that, in order for the NIGC to determine eligibility, the Commission will have to verify Class III compact and gaming compliance for those operations that have both Class II and Class III gaming activity. PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 20237 Response: The Commission has declined to incorporate the commenter’s suggestion because, first, the majority of tribal gaming operations are both Class II and Class III. Further, the Commission is not aware of any tribe that separates its regulatory body by class of gaming. Therefore, it is appropriate for the Commission to examine the petitioning tribe’s regulation of its gaming as a whole. Finally, IGRA does not limit selfregulation certification to only tribes that conduct Class II gaming in a standalone facility, but allows tribes with hybrid Class II/Class III gaming operations also to become selfregulating. 518.4 What must a tribe submit to the Commission as part of its petition? Comments on § 518.4(a)–(c): A number of commenters stated that any submission requirements in § 518.4 not directly related to a tribe’s capacity for self-regulation or the qualifying criteria for petitioning tribes in § 518.5, should be removed entirely or revised to ensure that each requirement is directly related to assessing a tribe’s regulatory capacity. Response: The Commission has eliminated superfluous submission requirements and tailored the remaining requirements to elicit information demonstrating a tribe’s regulatory framework and capacity to regulate its gaming activities. Comments on § 518.4(c)(v): A number of commenters questioned the benefit and relevance of requiring tribes to submit the resumes tribal regulatory agency employees, recommending that the submission requirements in § 518.4(c)(v) be eliminated. Section 518.4(c)(v) requires that a petitioning tribe submit a list of the current regulators and employees of the tribal regulatory body, their complete resumes, their titles and the dates they began employment. In the commenters’ view, the NIGC is not, and should not be, in a position to evaluate the competence of individual staff members employed by a tribal regulatory agency. Response: The resumes of tribal gaming regulators demonstrate the experience and capability of the tribal regulators. The competence of tribal gaming regulators bears directly on a tribe’s ability to regulate its gaming. Therefore, the Commission has determined to retain this requirement in the final rule. Comments on § 518.4(c)(v): A few commenters stated that, although a detailed TGRA organizational chart could be a valuable tool in assessing a TGRA’s capabilities, there is no value in submitting a list of current regulators and employees of the tribal regulatory E:\FR\FM\04APR1.SGM 04APR1 wreier-aviles on DSK5TPTVN1PROD with RULES 20238 Federal Register / Vol. 78, No. 65 / Thursday, April 4, 2013 / Rules and Regulations body. Instead, they suggested that the NIGC require only that employee names and background files be made available at the time of the NIGC site visit during the approval process. Response: The Commission agrees with the comments and has revised the regulation to require tribes to make the names and background files of current regulators available to the NIGC, upon request. Comments on § 518.4(c)(vii): A few commenters stated that the provision in § 518.4(c)(vii) requiring a tribe to list all gaming internal controls is not only burdensome, but also unnecessary, because it provides little or no insight into a tribe’s capacity for self-regulation. The commenters also submitted that this requirement is redundant, because tribal internal control systems (TICS) are evaluated annually as part of the IGRArequired audit. Response: The Commission disagrees. Each tribe should have readily available a list of internal gaming controls, which is a useful tool in examining the robustness of a tribe’s regulatory framework. Comment on § 518.4(c)(vii): One commenter suggested that the agreedupon-procedures attestation would be sufficient to satisfy the concerns of § 518.4(c)(vii), which requires petitioning tribes to submit a list of internal controls used at the gaming facility. Response: The Commission has determined that, although an agreedupon-procedures attestation would fulfill some of the purposes of § 518.4(c)(vii), an up-to-date list of the internal gaming controls is beneficial to its review. For purposes of a certificate of self-regulation, IGRA requires that the NIGC determine that the tribe has ‘‘conducted the operation on a fiscally and economically sound basis.’’ In that regard, a list of internal controls can be used by the NIGC to examine the effectiveness of the tribe in enforcing compliance with its own controls. Further, the NIGC needs to ascertain the strength of these controls at the time the petition is being reviewed, not at the time of the agreed-upon-procedures attestation. Comment on §§ 518.4(c)(v) and (vii): One commenter suggested eliminating the submission requirements in § 518.4(c)(v) and § 518.4(c)(vii) because they do not focus on a tribal government’s capacity for selfregulation. Response: The Commission views the existence and enforcement of internal controls to be an important indicator of the tribe’s ability to regulate its gaming activity. Therefore, the Commission has VerDate Mar<15>2010 14:43 Apr 03, 2013 Jkt 229001 retained those requirements in the final rule. 518.5 What criteria must a tribe meet to receive a certificate of self-regulation? Comment on § 518.5(a): A few commenters stated that the criteria in § 518.5(a) remain inundated with subjective terms that do not provide any meaningful guidance as to how they will be interpreted by the NIGC. Without greater objectivity, the subjective terms provide the NIGC too much discretion in deciding whether a petition should be approved. Response: The majority of the criteria set forth in § 518.5(a) are explicitly provided for by Congress in IGRA for purposes of evaluating whether a certificate of self-regulation should be issued. Thus, Congress directed that the Commission conduct an evaluation utilizing such terms. Comment on § 518.5(a): A few commenters stated that § 518.5 simply restates the statute and does not define or clarify how the terms ‘‘safe, fair, and honest,’’ ‘‘generally free,’’ ‘‘adequate systems,’’ and ‘‘fiscally and economically sound’’ will be interpreted by the NIGC during the approval process. The commenters noted that, to be effective, regulations must do more than simply restate what the statute requires, and the rulemaking process should result in regulations that provide meaningful guidance to readers as to how a statutory method will be implemented by the agency. Response: The Commission believes that the terms contained in the regulation are clear, and has, therefore, declined to remove them from the regulation. The Commission is available to assist tribes to understand and satisfy the qualifying criteria should tribes have questions or require clarification. Comment on § 518.5: One commenter stated that, in the commenter’s view, the purpose of § 518.5 should be two-fold: first, to provide guidance regarding what the many subjective terms used in § 518.5 mean so that tribal governments will understand how to meet the criteria, and second, to reasonably constrain the NIGC’s discretion with regard to its approval process. Response: As noted above, the Commission believes that the terms contained in the regulation are clear, and has, therefore, declined to remove them from the regulation. The Commission is available to assist tribes to understand and satisfy the qualifying criteria should tribes have questions or require clarification.. Thus, the Commission intends to provide additional guidance to petitioning tribes upon request. PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 Comment on § 518.5(a)(1)(i): One commenter suggested that the NIGC could require tribal governments to show three years of clean audits, free of any material findings, to demonstrate that it has ‘‘conducted its gaming activity in a manner that has resulted in an effective and honest accounting of all revenues.’’ Response: The Commission agrees that past audits are an important way for a tribe to demonstrate that it has met the approval criteria. However, the Commission has determined that those tribes having some anomalies in their audits should not be foreclosed from approval. Therefore, although the Commission will take into account audit findings when making its determination, past audits will not be the only way for a tribe to demonstrate that it has ‘‘conducted its gaming activity in a manner that has resulted in an effective and honest accounting of all revenues.’’ Comment on § 518.5(a)(1)(iii): One commenter stated that, to show that a tribe’s gaming activities have been ‘‘generally free of evidence of criminal or dishonest activity,’’ a tribal government could certify that it: (1) Maintains a robust system to detect and preclude money laundering activities, pursuant to Title 31; (2) maintains a system designed to ensure the exclusion of unsavory persons from the gaming facility; and (3) effectively deals with any suspected criminal activity relative to employees, customers, and vendors by referring suspected to the appropriate law enforcement agency for investigation and prosecution. Response: The Commission agrees that such a certification would be one way to demonstrate that the tribe’s gaming activities have been ‘‘generally free of evidence of criminal or dishonest activity.’’ However, the Commission declines to incorporate the suggested change because other, equally acceptable types of evidence exist to demonstrate compliance with the provision, and the Commission believes that tribes should be afforded flexibility when fulfilling the requirements of this section. Comments on §§ 518.5(a)(2)–(4): A few commenters suggested that the term ‘‘gaming operation,’’ found in § 518.(a)(2) and § 518.5(a) (4), be changed to ‘‘Class II gaming operation,’’ and the term ‘‘gaming activity,’’ found in § 518.5(a)(3), be changed to ‘‘Class II gaming activity,’’ pointing out that, by not limiting the qualifying criteria to Class II gaming operations or activities, it is implied that the NIGC will have to verify Class III compact and gaming compliance for those operations that E:\FR\FM\04APR1.SGM 04APR1 wreier-aviles on DSK5TPTVN1PROD with RULES Federal Register / Vol. 78, No. 65 / Thursday, April 4, 2013 / Rules and Regulations have both Class II and Class III gaming activity. Response: Because the majority of tribal gaming operations are both Class II and Class III, the Commission believes it is appropriate and practical to examine and evaluate a petitioning tribe’s regulation of its gaming as a whole. Like petitioning tribes that conduct Class II gaming only, petitioning tribes conducting hybrid operations are also required to comply with IGRA, NIGC regulations, and the tribe’s own gaming ordinance and gaming regulations. Comment on § 518.5(a)(3): A commenter expressed concern that the Commission will require petitioning tribal governments to show absolute and perfect compliance with Federal and tribal laws during the requisite 3-year period. The commenter pointed out that IGRA does not require absolute compliance with Federal and tribal laws to receive a self-regulation certificate, instead using the more flexible terms ‘‘generally free’’ and ‘‘adequate.’’ Response: Consistent with 25 U.S.C. 2710(c)(4)(a), the Commission requires a petitioning tribe to demonstrate that it has adopted and is implementing adequate systems for the accounting of all of its Class II gaming activity. When a tribe’s operation consists of both Class II and Class III gaming activities, the tribe is required to demonstrate that it has adopted and is implementing adequate systems for the accounting of all gaming activity. The Commission retains the discretion to determine whether or not violations are sufficiently serious to prevent the issuance of a certificate of selfregulation. Comment on § 518.5(b): One commenter stated that § 518.5(b) makes the certification process more difficult by imposing a number of additional requirements, some of which exceed the statutory requirements for conducting tribal gaming. Response: The Commission disagrees. The indicators in the list set forth in §§ 518.5(b)(1)–(9) are not mandatory prerequisites for a tribe to be issued a certificate of self-regulation, but are intended to offer guidance to petitioning tribes as to how they may demonstrate to the Commission that they have met the criteria of § 518.5(a). This list is not intended to be exhaustive or to prevent the Commission from considering other factors. Comments on §§ 518.5(b)(ix) and (xii): A few commenters stated that two of the examples listed in §§ 518.5(b)(ix) and (vii) should be removed because they reference vendor licensing standards and procedures, which are not required VerDate Mar<15>2010 14:43 Apr 03, 2013 Jkt 229001 by IGRA. Vendor licensing is a matter of tribal, not Federal, law. Response: Although vendor licensing is not addressed in IGRA, except for management contractors, it is a strong indicator that a tribe has the ability to properly regulate its gaming. Section 518.5(b) simply provides guidance to tribes and is not a list of factors that must be present for the tribe’s petition for self-regulation to be approved. Thus, the regulation does not require a tribe to have any specific standards or procedures for vendor licensing, and the absence of any standards or procedures is not specifically a grounds for denial. 518.7 What process will the Commission use to review and certify petitions? Comments on § 518.7(f): A few commenters stated that they were concerned that the self-regulation process for approving or denying petitions was too rigid, and suggested removing the proposed § 518.7(f) and replacing it with procedures that allow tribes seeking to become self-regulating a more informal and collaborative process. Response: The Commission believes that the inclusion of a formal process in the regulations preserves a tribe’s right to due process, and neither precludes informal meetings with the Commission nor prevents collaboration with the Commission throughout the approval process, if requested. Comments on § 518.7(f): A few commenters suggested that § 518.7(f), which designates final Commission determinations as final agency actions, be removed. The commenters maintain that Commission decisions related to self-regulation should never be final agency actions since this designation will either terminate the process or set up an adversarial process of appeal, and, in either event, will foreclose the possibility of further collaborative efforts between the NIGC and petitioning tribes. Response: The Commission disagrees. By allowing a decision to become final agency action, the Commission is ensuring that tribes have the right to challenge the Commission’s final decisions, and their underlying rationales, in Federal court. The Commission has determined that this is an important right for tribes and should not be limited. Comment on § 518.7(f): One commenter suggested the inclusion of additional, less formal procedures to facilitate a more informal, collaborative process, which would be more conducive to problem-solving. For example, the procedures for issuing preliminary determinations could be PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 20239 replaced with procedures for developing and entering into intergovernmental agreements that identify deficiencies in a petitioning tribe’s application and outline the steps necessary for the tribe to attain self-regulation status. Further, the procedures for hearings could be replaced with procedures for meetings in which the NIGC and the tribe informally discuss perceived shortfalls in the petition and how the shortfalls can be remedied to the NIGC’s satisfaction. Response: The regulations do not prevent tribes and the NIGC from meeting informally and engaging in regular communication, outside of the formal process, regarding any aspect of the self-regulation process up to the Commission’s final determination. The Commission envisions regular and meaningful collaboration and communication with interested tribes to assist them with achieving certification. Comment on § 518.7(g): One commenter suggested removing § 518.7(g), which allows tribal governments to withdraw and resubmit a petition for self-regulation. It is the commenter’s view that tribal governments should only have to submit a petition once, and that any information provided by a tribe in response to identified deficiencies in the petition should be submitted as supplemental materials to the petition. This would prevent a tribe from having to go through the complete certification process multiple times, as well as the unchanged portion of a tribe’s petition from repeatedly undergoing the same initial review process. Instead, the NIGC would review only the supplemental materials to verify that the identified deficiencies had been adequately resolved. If the NIGC subsequently found remaining issues in the petition, such issues could similarly be resolved through additional supplementary submissions. Response: The Commission disagrees. Tribal governments should have the right to withdraw a petition for any reason. Further, allowing tribes to complete the certification process piecemeal, potentially over many months or even years, fails to recognize that the status and strength of a tribe’s gaming regulation could change after a petition is submitted, thus rendering the Commission’s review untimely and ineffective. 518.10 What must a self-regulating tribe provide the Commission to maintain its self-regulatory status? Comment: One commenter suggested changing the word ‘‘on’’ April 15 in § 518.10(a) to ‘‘by’’ April 15, to give self- E:\FR\FM\04APR1.SGM 04APR1 wreier-aviles on DSK5TPTVN1PROD with RULES 20240 Federal Register / Vol. 78, No. 65 / Thursday, April 4, 2013 / Rules and Regulations regulating tribes more flexibility in satisfying the required annual submission. Response: The Commission agrees and the recommended change has been adopted. Comment on § 518.10(a): One commenter expressed strong support for the proposed change to remove the annual requirement that tribes report the usage of its net gaming revenues. Response: The Commission agrees and this change is reflected in the final rule. Comment on § 518.10(a)(2): One commenter expressed support for the proposed change in § 518.10(a)(2) narrowing the scope of employees covered under this section to include only those employees working for the tribal regulatory body. Response: The Commission agrees that narrowing the scope of this section to employees of the tribal regulatory body, as opposed to all employees hired and licensed by the tribe, decreases the burden on self-regulating tribes and properly focuses attention on a tribe’s ability to regulate its gaming activity. Comment on § 518.10(a)(2): One commenter stated that the term ‘‘licensed,’’ as used in proposed § 518.10(a)(2), should be removed because it is an inaccurate characterization of tribal gaming regulatory employees. In practice, while most employees of tribal regulatory bodies are screened and subjected to background investigations, they are generally not ‘‘hired and licensed’’ by the tribe. Nor do they fit within the meaning of the terms ‘‘key employee’’ or ‘‘primary management official,’’ two categories of employee which are required to be licensed under IGRA. Another commenter stated that because most employees of tribal regulatory bodies are not ‘‘hired and licensed,’’ under the language in § 518.10(2), there would be very few tribal regulatory employees who would be required to submit complete resumes. The commenter does not see any other option in light of the language of 25 U.S.C. 2710(c)(5)(b), and notes that this requirement alone may dissuade his tribe from pursuing a certificate of selfregulation. Response: The Commission understands the concern over the use of the terms ‘‘hired and licensed.’’ However, IGRA, at 25 U.S.C. 2710(c)(5)(B), mandates that selfregulating tribes submit this information for employees ‘‘hired and licensed by the tribe subsequent to the issuance of a certificate of self-regulation.’’ Since the statute specifically uses the terms ‘‘hired and licensed,’’ the Commission VerDate Mar<15>2010 14:43 Apr 03, 2013 Jkt 229001 declines to make the recommended change. Moreover, some tribes do in fact subject the individuals who work for their gaming regulatory bodies to licensing and, as a consequence, the standard is applicable. Comment on § 518.10: One commenter stated that, because all tribes must comply with the background and licensing regulatory requirements of parts 556 and 558, the NIGC already has suitability reports for all employees who are licensed by the tribal gaming regulatory authority. A tribe’s compliance with parts 556 and 558 should be sufficient to satisfy the annual submission requirements of § 518.10. Response: The Commission disagrees. Parts 556 and 558 address licensing for key employees and primary management employees only. IGRA mandates a much broader pool of individuals that must be addressed by self-regulating tribes through their annual submissions. 518.11 Does a tribe that holds a certificate of self-regulation have a continuing duty to advise the Commission of any additional information? Comments on § 518.11: A few commenters disagreed with the revision in § 518.11that requires a tribe to report material changes within ‘‘three business days,’’ and recommended that the original term, ‘‘immediately,’’ be restored. In their view, the proposed time frame of three business days may be too short. The general term of ‘‘immediately’’ is seen as being a more reasonable time frame because it is broad enough to allow tribal governments to resolve possible issues on their own before reporting them to the NIGC. As primary regulators, tribes should be given sufficient time and flexibility to resolve possible issues. Response: The Commission disagrees. This provision is designed to allow the Commission to be notified when a material change occurs so that it may make its own determination as to whether the change affects the eligibility of a tribe to maintain its certificate of self-regulation. In many instances, a material change may not affect a tribe’s certification, leaving no issue for the tribe to resolve. In addition, reporting a material change after it has been resolved renders the intent of the statutory provision meaningless, because the material change has been addressed without Commission consideration of it and its impact upon the certificate. Notifying the Commission within three business days allows the Commission to assess the situation, to provide technical PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 assistance where appropriate, to monitor how quickly a tribe responds and to consider the ramifications if a tribe fails to take action. Comments on § 518.11: A few commenters stated that they disagreed with some of the ‘‘circumstances’’ listed in § 518.11 that may constitute ‘‘changes in circumstances’’ requiring notification to the NIGC. The commenters noted that the circumstances listed in § 518.11 do not directly relate to the approval criteria for self-regulation or a tribe’s regulatory capacity, and are overly subjective and vague. For example, the circumstance of ‘‘financial instability’’ could be construed to cover a range of issues not related to a tribe’s regulatory capacity. Additionally, the circumstance of ‘‘a change in management contractor’’ is irrelevant to the self-regulation qualifying criteria in § 518.5, which do not include management contractors, and which were already deemed met by any tribe issued a self-regulation certificate. This circumstance is unnecessary to an assessment of a tribe’s regulatory capacity, especially since the NIGC is responsible for conducting background investigations of management contractors under IGRA and will already have in its possession the requested information. Response: The Commission agrees that a change in management contractor should not have to be reported to the Commission as a requirement of § 518.11. Therefore, the example of a change in management contractor has been removed. However, the Commission has determined to retain the example of ‘‘financial instability’’ because it may have a direct impact on a tribe’s ability to regulate, especially in those cases in which a tribal gaming regulatory body is funded from the gaming activity. 518.12 Which investigative or enforcement powers of the Commission are inapplicable to self-regulating tribes? Comment: One commenter was pleased that the proposed rule now describes, with specificity, the powers of the NIGC that are inapplicable once a tribe is issued a certificate of selfregulation. Response: The Commission agrees and has retained the provision in the final rule. Regulatory Matters Regulatory Flexibility Act This final rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility E:\FR\FM\04APR1.SGM 04APR1 Federal Register / Vol. 78, No. 65 / Thursday, April 4, 2013 / Rules and Regulations 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 final 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 final 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 final 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. wreier-aviles on DSK5TPTVN1PROD with RULES Paperwork Reduction Act The information collection requirements contained in this rule were previously approved by the Office of Management and Budget as required by 44 U.S.C. 3501, et seq., and assigned OMB Control Number 3141–0008. The OMB control number expires on October 31, 2013. VerDate Mar<15>2010 14:43 Apr 03, 2013 Jkt 229001 List of Subjects in 25 CFR Part 518 Gambling, Indian-lands, Indian-tribal government, Reporting and recordkeeping requirements. Accordingly, for the reasons discussed in the preamble, the Commission revises 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 selfregulation 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 selfregulation 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? Authority: 25 U.S.C. § 2706(b)(10); E.O. 13175. § 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. § 518.2 Who will administer the selfregulation program for the Commission? The self-regulation program will be administered by the Office of SelfRegulation. The Chair shall appoint one Commissioner to administer the Office of Self-Regulation. § 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 selfregulation of Class II gaming if, for a PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 20241 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. § 518.4 What must a tribe submit to the Commission as part of its petition? A petition for a certificate of selfregulation is complete under this part when it contains: (a) Two copies on 81⁄2’’ 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 § 518.3, which may include supporting documentation; and (c) The following information with supporting documentation: (1) A brief history of each gaming operation(s), including the opening dates and periods of voluntary or involuntary closure; (2) An organizational chart of the tribal regulatory body; (3) A brief description of the criteria tribal regulators must meet before being eligible for employment as a tribal regulator; (4) A brief description of the process by which the tribal regulatory body is funded, and the funding level for the three years immediately preceding the date of the petition; (5) 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; (6) A brief description of the accounting system(s) at the gaming operation which tracks the flow of the gaming revenues; E:\FR\FM\04APR1.SGM 04APR1 20242 Federal Register / Vol. 78, No. 65 / Thursday, April 4, 2013 / Rules and Regulations (7) A list of gaming activity internal controls at the gaming operation(s); (8) 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 (9) The tribe’s current set of gaming regulations, if not included in the approved tribal gaming ordinance. wreier-aviles on DSK5TPTVN1PROD with RULES § 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 VerDate Mar<15>2010 14:43 Apr 03, 2013 Jkt 229001 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 PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 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 selfregulation is upon the tribe filing the petition. § 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. § 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 SelfRegulation shall conduct a review of the tribe’s petition to determine whether it is complete under § 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 § 518.3 and the approval criteria in § 518.5. During its review, the Office of Self-Regulation: (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 § 518.4, the Office of Self-Regulation shall provide a recommendation and written report to E:\FR\FM\04APR1.SGM 04APR1 wreier-aviles on DSK5TPTVN1PROD with RULES Federal Register / Vol. 78, No. 65 / Thursday, April 4, 2013 / Rules and Regulations 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 selfregulation, 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 selfregulation, 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 selfregulation; 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 SelfRegulation’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 § 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. VerDate Mar<15>2010 14:43 Apr 03, 2013 Jkt 229001 § 518.8 What is the hearing process? (a) Within 10 days of receipt of the request for a hearing, the Office of SelfRegulation 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. (1) 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. (2) [Reserved] (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 § 518.11. (c) The decision of the Commission to approve or deny a petition shall be a final agency action. 20243 § 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 business days of any changes in circumstances that are material to the approval criteria in § 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 of primary regulatory official; financial instability; or any other factors that are material to the decision to grant a certificate of self-regulation. § 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. § 518.9 When will a certificate of selfregulation become effective? § 518.13 When may the Commission revoke a certificate of self-regulation? 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. § 518.10 What must a self-regulating tribe provide the Commission to maintain its self-regulatory status? Each tribe that holds a certificate of self-regulation shall be required to submit the following information by 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: (a) An annual independent audit, to be filed with the Commission, as required by 25 U.S.C. 2710(b)(2)(c); and (b) 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. Failure to submit the information required by this section may result in revocation of a certificate of selfregulation. 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 § 518.3, the approval criteria of § 518.5, the requirements of § 518.10 or the requirements of § 518.11. The Commission shall provide the tribe with prompt notice of the Commission’s intent to revoke a certificate of selfregulation 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. § 518.14 May a tribe request a hearing on the Commission’s proposal to revoke its certificate of self-regulation? PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 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 constitute a waiver of the right to a hearing. E:\FR\FM\04APR1.SGM 04APR1 20244 Federal Register / Vol. 78, No. 65 / Thursday, April 4, 2013 / Rules and Regulations Dated: March 28, 2013, Washington, DC. Tracie L. Stevens, Chairwoman. Daniel J. Little, Associate Commissioner. [FR Doc. 2013–07621 Filed 4–3–13; 8:45 am] BILLING CODE 7565–01–P DEPARTMENT OF THE INTERIOR Office of Natural Resources Revenue 30 CFR Part 1206 Product Valuation CFR Correction In FR Doc. 2013–07512, appearing on page 19100, in the Federal Register of Friday, March 29, 2013, the subagency heading ‘‘Surface Mining Reclamation and Enforcement’’ is corrected to read ‘‘Office of Natural Resources Revenue’’. [FR Doc. 2013–07993 Filed 4–3–13; 8:45 am] BILLING CODE 1505–01–D ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R03–OAR–2012–0409; FRL–9797–8] Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Determinations of Attainment of the 1997 8-Hour Ozone Standard for the Pittsburgh-Beaver Valley Moderate Nonattainment Area Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: EPA is making two separate and independent determinations regarding the Pittsburgh-Beaver Valley 1997 8-hour ozone nonattainment area (the Pittsburgh Area). First, EPA is making a determination that the Pittsburgh Area attained the 1997 8hour ozone national ambient air quality standard (NAAQS) by the applicable attainment date of June 15, 2010. This determination is based upon complete, quality assured, and certified ambient air monitoring data for the 2007–2009 monitoring period showing monitored attainment of the 1997 8-hour ozone NAAQS. Second, EPA is making a determination that the Pittsburgh Area is attaining the 1997 8-hour ozone NAAQS, based on complete, quality assured, and certified ambient air monitoring data for the 2009–2011 monitoring period, and preliminary data for 2012. This final determination suspends the requirement for the wreier-aviles on DSK5TPTVN1PROD with RULES SUMMARY: VerDate Mar<15>2010 14:43 Apr 03, 2013 Jkt 229001 Pittsburgh Area to submit an attainment demonstration, reasonably available control measures (RACM), a reasonable further progress (RFP) plan, and contingency measures related to attainment of the 1997 8-hour ozone NAAQS for so long as the area continues to attain that NAAQS. These determinations do not constitute a redesignation to attainment. The Pittsburgh Area will remain designated nonattainment for the 1997 8-hour ozone NAAQS until such time as EPA determines that the Pittsburgh Area meets the Clean Air Act (CAA) requirements for redesignation to attainment, including an approved maintenance plan. These actions are being taken under the CAA. DATES: This final rule is effective on May 6, 2013. ADDRESSES: EPA has established a docket for this action under Docket ID Number EPA–R03–OAR–2012–0409. All documents in the docket are listed in the www.regulations.gov Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. FOR FURTHER INFORMATION CONTACT: Maria A. Pino, (215) 814–2181, or by email at pino.maria@epa.gov. SUPPLEMENTARY INFORMATION: I. Background On December 10, 2012 (77 FR 73387), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. In the December 10, 2012 rulemaking action, EPA proposed to determine that the Pittsburgh Area attained the 1997 8hour ozone NAAQS by its attainment date, June 15, 2010. EPA also proposed to make a clean data determination, finding that the Pittsburgh Area has attained the 1997 8-hour ozone NAAQS. No comments were received on the December 10, 2012 NPR. II. Summary of SIP Revision These actions do not constitute a redesignation of the Pittsburgh Area to attainment for the 1997 8-hour ozone PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 NAAQS under CAA section 107(d)(3). Neither determination of attainment involves approving a maintenance plan for the Pittsburgh Area, nor determines that the Pittsburgh Area has met all the requirements for redesignation under the CAA, including that the attainment be due to permanent and enforceable measures. Therefore, the designation status of the Pittsburgh Area will remain nonattainment for the 1997 8-hour ozone NAAQS until such time as EPA takes final rulemaking action to determine that the Pittsburgh Area meets the CAA requirements for redesignation to attainment. A. Determination of Attainment by the Attainment Date EPA is making a determination that the Pittsburgh Area attained the 1997 8hour ozone NAAQS by its applicable attainment date of June 15, 2010. This determination is based upon complete, quality assured and certified ambient air monitoring data for the 2007–2009 monitoring period, which is the last full three-year period prior to the June 15, 2010 attainment date. The 2007–2009 data show that the Pittsburgh Area monitored attainment of the 1997 8hour ozone NAAQS. The effect of a final determination of attainment by the Pittsburgh Area’s attainment date is to discharge EPA’s obligation under CAA section 181(b)(2) to determine, based on the Pittsburgh Area’s air quality as of the attainment date, whether the area attained the standard by that date and to establish that the Pittsburgh Area will not be reclassified. B. ‘‘Clean Data’’ Determination of Attainment EPA is also making a determination that the Pittsburgh Area has attained the 1997 8-hour ozone NAAQS. This determination is based upon complete, quality assured and certified ambient air monitoring data that show the Pittsburgh Area has monitored attainment of the 1997 8-hour ozone NAAQS for the 2009–2011 monitoring period. Preliminary data for 2012 are consistent with continued attainment. Under the provisions of EPA’s implementation rule for the 1997 8-hour NAAQS (see 40 CFR 51.918), a final determination of attainment suspends the CAA requirements for the Pittsburgh Area to submit an attainment demonstration and the associated RFP plan, contingency measures, RACM analysis, and any other planning requirements related to attainment of the 1997 8-hour ozone NAAQS required for moderate areas under subpart 2 of the CAA. This suspension would remain in effect until such time, if any, E:\FR\FM\04APR1.SGM 04APR1

Agencies

[Federal Register Volume 78, Number 65 (Thursday, April 4, 2013)]
[Rules and Regulations]
[Pages 20236-20244]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-07621]


=======================================================================
-----------------------------------------------------------------------

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.

ACTION: Final rule.

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

SUMMARY: The National Indian Gaming Commission (NIGC or Commission) 
amends its regulation for the review and approval of petitions seeking 
the issuance of a certificate for tribal self-regulation of Class II 
gaming.

DATES: Effective Date: The effective date of these regulations is 
September 1, 2013.

FOR FURTHER INFORMATION CONTACT: John Hay, National Indian Gaming

[[Page 20237]]

Commission, 1441 L Street NW., Suite 9100, Washington, DC 20005. 
Telephone: 202-632-7003.

SUPPLEMENTARY INFORMATION:

I. Background

    The Indian Gaming Regulatory Act (IGRA or the Act), enacted on 
October 17, 1988, established the National Indian Gaming Commission 
(Commission). Pursuant to the Act, the Commission regulates Class II 
gaming and certain aspects of Class III gaming on Indian lands.

II. Previous Rulemaking Activity

    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 regarding 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 public comments received, the Commission published 
a Notice of Regulatory Review Schedule (NRR), setting out a 
consultation schedule and process for review. 76 FR 18457 (April 4, 
2011). Part 518 was included in the fourth regulatory group reviewed as 
part of the NRR.
    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 written comments received from the public, as well as comments made 
by participants at tribal consultations, the Commission published a 
Notice of Proposed Rulemaking on January 31, 2012 (77 FR 4714), 
proposing changes to part 518 to: (a) focus the criteria for receiving 
a certificate of self-regulation on a tribe's ability to regulate Class 
II gaming; 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.

III. Review of Public Comments

    In response to our Notice of Proposed Rulemaking, published January 
31, 2012, 77 FR 4714, we received the following comments.

General Comments

    Comments: A few commenters stated that, although self-regulation is 
a goal for many tribes, the current regulations make the application 
and annual reporting process overly burdensome. The proposed rule makes 
self-regulation more available to all tribes.
    Response: The Commission agrees and has chosen to retain the 
proposed changes in the final rule.
    Comments: A few commenters stated that the inclusion of the full 
Commission in the review and approval process in the proposed rule 
assures tribes that their applications will be thoroughly vetted and 
that a final decision will be reached by the appropriate decision-
makers.
    Response: The Commission agrees and has retained the level of 
Commission involvement in the final rule.
    Comment: One commenter expressed concern that the Commission will 
use the petition process to review tribal revenue allocation plans and 
suggested that a review of these plans be specifically excluded.
    Response: The regulation does not require tribes to submit their 
tribal revenue allocation plans to the NIGC for review. However, the 
Commission is required to determine whether the gaming activity has 
been conducted in compliance with IGRA, which addresses the use of net 
gaming revenues. Accordingly, the Commission declines to exclude tribal 
revenue allocation plans specifically from its review.
    Comment: One commenter stated that, until the NIGC allows the self-
regulation program to function in the manner intended by Congress, 
tribes will continue to be discouraged from exercising their statutory 
right to attain self-regulation status.
    Response: The Commission believes that the changes to the 
regulation will encourage more tribes to take advantage of the self-
regulation program and the benefits of self-regulation.

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

    Comment on Sec.  518.3(b): One commenter suggested that ``all 
gaming'' be changed to ``Class II gaming,'' submitting that Sec.  
518.3(b) strongly implies that, in order for the NIGC to determine 
eligibility, the Commission will have to verify Class III compact and 
gaming compliance for those operations that have both Class II and 
Class III gaming activity.
    Response: The Commission has declined to incorporate the 
commenter's suggestion because, first, the majority of tribal gaming 
operations are both Class II and Class III. Further, the Commission is 
not aware of any tribe that separates its regulatory body by class of 
gaming. Therefore, it is appropriate for the Commission to examine the 
petitioning tribe's regulation of its gaming as a whole. Finally, IGRA 
does not limit self-regulation certification to only tribes that 
conduct Class II gaming in a stand-alone facility, but allows tribes 
with hybrid Class II/Class III gaming operations also to become self-
regulating.

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

    Comments on Sec.  518.4(a)-(c): A number of commenters stated that 
any submission requirements in Sec.  518.4 not directly related to a 
tribe's capacity for self-regulation or the qualifying criteria for 
petitioning tribes in Sec.  518.5, should be removed entirely or 
revised to ensure that each requirement is directly related to 
assessing a tribe's regulatory capacity.
    Response: The Commission has eliminated superfluous submission 
requirements and tailored the remaining requirements to elicit 
information demonstrating a tribe's regulatory framework and capacity 
to regulate its gaming activities.
    Comments on Sec.  518.4(c)(v): A number of commenters questioned 
the benefit and relevance of requiring tribes to submit the resumes 
tribal regulatory agency employees, recommending that the submission 
requirements in Sec.  518.4(c)(v) be eliminated. Section 518.4(c)(v) 
requires that a petitioning tribe submit a list of the current 
regulators and employees of the tribal regulatory body, their complete 
resumes, their titles and the dates they began employment. In the 
commenters' view, the NIGC is not, and should not be, in a position to 
evaluate the competence of individual staff members employed by a 
tribal regulatory agency.
    Response: The resumes of tribal gaming regulators demonstrate the 
experience and capability of the tribal regulators. The competence of 
tribal gaming regulators bears directly on a tribe's ability to 
regulate its gaming. Therefore, the Commission has determined to retain 
this requirement in the final rule.
    Comments on Sec.  518.4(c)(v): A few commenters stated that, 
although a detailed TGRA organizational chart could be a valuable tool 
in assessing a TGRA's capabilities, there is no value in submitting a 
list of current regulators and employees of the tribal regulatory

[[Page 20238]]

body. Instead, they suggested that the NIGC require only that employee 
names and background files be made available at the time of the NIGC 
site visit during the approval process.
    Response: The Commission agrees with the comments and has revised 
the regulation to require tribes to make the names and background files 
of current regulators available to the NIGC, upon request.
    Comments on Sec.  518.4(c)(vii): A few commenters stated that the 
provision in Sec.  518.4(c)(vii) requiring a tribe to list all gaming 
internal controls is not only burdensome, but also unnecessary, because 
it provides little or no insight into a tribe's capacity for self-
regulation. The commenters also submitted that this requirement is 
redundant, because tribal internal control systems (TICS) are evaluated 
annually as part of the IGRA-required audit.
    Response: The Commission disagrees. Each tribe should have readily 
available a list of internal gaming controls, which is a useful tool in 
examining the robustness of a tribe's regulatory framework.
    Comment on Sec.  518.4(c)(vii): One commenter suggested that the 
agreed-upon-procedures attestation would be sufficient to satisfy the 
concerns of Sec.  518.4(c)(vii), which requires petitioning tribes to 
submit a list of internal controls used at the gaming facility.
    Response: The Commission has determined that, although an agreed-
upon-procedures attestation would fulfill some of the purposes of Sec.  
518.4(c)(vii), an up-to-date list of the internal gaming controls is 
beneficial to its review. For purposes of a certificate of self-
regulation, IGRA requires that the NIGC determine that the tribe has 
``conducted the operation on a fiscally and economically sound basis.'' 
In that regard, a list of internal controls can be used by the NIGC to 
examine the effectiveness of the tribe in enforcing compliance with its 
own controls. Further, the NIGC needs to ascertain the strength of 
these controls at the time the petition is being reviewed, not at the 
time of the agreed-upon-procedures attestation.
    Comment on Sec. Sec.  518.4(c)(v) and (vii): One commenter 
suggested eliminating the submission requirements in Sec.  518.4(c)(v) 
and Sec.  518.4(c)(vii) because they do not focus on a tribal 
government's capacity for self-regulation.
    Response: The Commission views the existence and enforcement of 
internal controls to be an important indicator of the tribe's ability 
to regulate its gaming activity. Therefore, the Commission has retained 
those requirements in the final rule.

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

    Comment on Sec.  518.5(a): A few commenters stated that the 
criteria in Sec.  518.5(a) remain inundated with subjective terms that 
do not provide any meaningful guidance as to how they will be 
interpreted by the NIGC. Without greater objectivity, the subjective 
terms provide the NIGC too much discretion in deciding whether a 
petition should be approved.
    Response: The majority of the criteria set forth in Sec.  518.5(a) 
are explicitly provided for by Congress in IGRA for purposes of 
evaluating whether a certificate of self-regulation should be issued. 
Thus, Congress directed that the Commission conduct an evaluation 
utilizing such terms.
    Comment on Sec.  518.5(a): A few commenters stated that Sec.  518.5 
simply restates the statute and does not define or clarify how the 
terms ``safe, fair, and honest,'' ``generally free,'' ``adequate 
systems,'' and ``fiscally and economically sound'' will be interpreted 
by the NIGC during the approval process. The commenters noted that, to 
be effective, regulations must do more than simply restate what the 
statute requires, and the rulemaking process should result in 
regulations that provide meaningful guidance to readers as to how a 
statutory method will be implemented by the agency.
    Response: The Commission believes that the terms contained in the 
regulation are clear, and has, therefore, declined to remove them from 
the regulation. The Commission is available to assist tribes to 
understand and satisfy the qualifying criteria should tribes have 
questions or require clarification.
    Comment on Sec.  518.5: One commenter stated that, in the 
commenter's view, the purpose of Sec.  518.5 should be two-fold: first, 
to provide guidance regarding what the many subjective terms used in 
Sec.  518.5 mean so that tribal governments will understand how to meet 
the criteria, and second, to reasonably constrain the NIGC's discretion 
with regard to its approval process.
    Response: As noted above, the Commission believes that the terms 
contained in the regulation are clear, and has, therefore, declined to 
remove them from the regulation. The Commission is available to assist 
tribes to understand and satisfy the qualifying criteria should tribes 
have questions or require clarification.. Thus, the Commission intends 
to provide additional guidance to petitioning tribes upon request.
    Comment on Sec.  518.5(a)(1)(i): One commenter suggested that the 
NIGC could require tribal governments to show three years of clean 
audits, free of any material findings, to demonstrate that it has 
``conducted its gaming activity in a manner that has resulted in an 
effective and honest accounting of all revenues.''
    Response: The Commission agrees that past audits are an important 
way for a tribe to demonstrate that it has met the approval criteria. 
However, the Commission has determined that those tribes having some 
anomalies in their audits should not be foreclosed from approval. 
Therefore, although the Commission will take into account audit 
findings when making its determination, past audits will not be the 
only way for a tribe to demonstrate that it has ``conducted its gaming 
activity in a manner that has resulted in an effective and honest 
accounting of all revenues.''
    Comment on Sec.  518.5(a)(1)(iii): One commenter stated that, to 
show that a tribe's gaming activities have been ``generally free of 
evidence of criminal or dishonest activity,'' a tribal government could 
certify that it: (1) Maintains a robust system to detect and preclude 
money laundering activities, pursuant to Title 31; (2) maintains a 
system designed to ensure the exclusion of unsavory persons from the 
gaming facility; and (3) effectively deals with any suspected criminal 
activity relative to employees, customers, and vendors by referring 
suspected to the appropriate law enforcement agency for investigation 
and prosecution.
    Response: The Commission agrees that such a certification would be 
one way to demonstrate that the tribe's gaming activities have been 
``generally free of evidence of criminal or dishonest activity.'' 
However, the Commission declines to incorporate the suggested change 
because other, equally acceptable types of evidence exist to 
demonstrate compliance with the provision, and the Commission believes 
that tribes should be afforded flexibility when fulfilling the 
requirements of this section.
    Comments on Sec. Sec.  518.5(a)(2)-(4): A few commenters suggested 
that the term ``gaming operation,'' found in Sec.  518.(a)(2) and Sec.  
518.5(a) (4), be changed to ``Class II gaming operation,'' and the term 
``gaming activity,'' found in Sec.  518.5(a)(3), be changed to ``Class 
II gaming activity,'' pointing out that, by not limiting the qualifying 
criteria to Class II gaming operations or activities, it is implied 
that the NIGC will have to verify Class III compact and gaming 
compliance for those operations that

[[Page 20239]]

have both Class II and Class III gaming activity.
    Response: Because the majority of tribal gaming operations are both 
Class II and Class III, the Commission believes it is appropriate and 
practical to examine and evaluate a petitioning tribe's regulation of 
its gaming as a whole. Like petitioning tribes that conduct Class II 
gaming only, petitioning tribes conducting hybrid operations are also 
required to comply with IGRA, NIGC regulations, and the tribe's own 
gaming ordinance and gaming regulations.
    Comment on Sec.  518.5(a)(3): A commenter expressed concern that 
the Commission will require petitioning tribal governments to show 
absolute and perfect compliance with Federal and tribal laws during the 
requisite 3-year period. The commenter pointed out that IGRA does not 
require absolute compliance with Federal and tribal laws to receive a 
self-regulation certificate, instead using the more flexible terms 
``generally free'' and ``adequate.''
    Response: Consistent with 25 U.S.C. 2710(c)(4)(a), the Commission 
requires a petitioning tribe to demonstrate that it has adopted and is 
implementing adequate systems for the accounting of all of its Class II 
gaming activity. When a tribe's operation consists of both Class II and 
Class III gaming activities, the tribe is required to demonstrate that 
it has adopted and is implementing adequate systems for the accounting 
of all gaming activity. The Commission retains the discretion to 
determine whether or not violations are sufficiently serious to prevent 
the issuance of a certificate of self-regulation.
    Comment on Sec.  518.5(b): One commenter stated that Sec.  518.5(b) 
makes the certification process more difficult by imposing a number of 
additional requirements, some of which exceed the statutory 
requirements for conducting tribal gaming.
    Response: The Commission disagrees. The indicators in the list set 
forth in Sec. Sec.  518.5(b)(1)-(9) are not mandatory prerequisites for 
a tribe to be issued a certificate of self-regulation, but are intended 
to offer guidance to petitioning tribes as to how they may demonstrate 
to the Commission that they have met the criteria of Sec.  518.5(a). 
This list is not intended to be exhaustive or to prevent the Commission 
from considering other factors.
    Comments on Sec. Sec.  518.5(b)(ix) and (xii): A few commenters 
stated that two of the examples listed in Sec. Sec.  518.5(b)(ix) and 
(vii) should be removed because they reference vendor licensing 
standards and procedures, which are not required by IGRA. Vendor 
licensing is a matter of tribal, not Federal, law.
    Response: Although vendor licensing is not addressed in IGRA, 
except for management contractors, it is a strong indicator that a 
tribe has the ability to properly regulate its gaming. Section 518.5(b) 
simply provides guidance to tribes and is not a list of factors that 
must be present for the tribe's petition for self-regulation to be 
approved. Thus, the regulation does not require a tribe to have any 
specific standards or procedures for vendor licensing, and the absence 
of any standards or procedures is not specifically a grounds for 
denial.

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

    Comments on Sec.  518.7(f): A few commenters stated that they were 
concerned that the self-regulation process for approving or denying 
petitions was too rigid, and suggested removing the proposed Sec.  
518.7(f) and replacing it with procedures that allow tribes seeking to 
become self-regulating a more informal and collaborative process.
    Response: The Commission believes that the inclusion of a formal 
process in the regulations preserves a tribe's right to due process, 
and neither precludes informal meetings with the Commission nor 
prevents collaboration with the Commission throughout the approval 
process, if requested.
    Comments on Sec.  518.7(f): A few commenters suggested that Sec.  
518.7(f), which designates final Commission determinations as final 
agency actions, be removed. The commenters maintain that Commission 
decisions related to self-regulation should never be final agency 
actions since this designation will either terminate the process or set 
up an adversarial process of appeal, and, in either event, will 
foreclose the possibility of further collaborative efforts between the 
NIGC and petitioning tribes.
    Response: The Commission disagrees. By allowing a decision to 
become final agency action, the Commission is ensuring that tribes have 
the right to challenge the Commission's final decisions, and their 
underlying rationales, in Federal court. The Commission has determined 
that this is an important right for tribes and should not be limited.
    Comment on Sec.  518.7(f): One commenter suggested the inclusion of 
additional, less formal procedures to facilitate a more informal, 
collaborative process, which would be more conducive to problem-
solving. For example, the procedures for issuing preliminary 
determinations could be replaced with procedures for developing and 
entering into intergovernmental agreements that identify deficiencies 
in a petitioning tribe's application and outline the steps necessary 
for the tribe to attain self-regulation status. Further, the procedures 
for hearings could be replaced with procedures for meetings in which 
the NIGC and the tribe informally discuss perceived shortfalls in the 
petition and how the shortfalls can be remedied to the NIGC's 
satisfaction.
    Response: The regulations do not prevent tribes and the NIGC from 
meeting informally and engaging in regular communication, outside of 
the formal process, regarding any aspect of the self-regulation process 
up to the Commission's final determination. The Commission envisions 
regular and meaningful collaboration and communication with interested 
tribes to assist them with achieving certification.
    Comment on Sec.  518.7(g): One commenter suggested removing Sec.  
518.7(g), which allows tribal governments to withdraw and resubmit a 
petition for self-regulation. It is the commenter's view that tribal 
governments should only have to submit a petition once, and that any 
information provided by a tribe in response to identified deficiencies 
in the petition should be submitted as supplemental materials to the 
petition. This would prevent a tribe from having to go through the 
complete certification process multiple times, as well as the unchanged 
portion of a tribe's petition from repeatedly undergoing the same 
initial review process. Instead, the NIGC would review only the 
supplemental materials to verify that the identified deficiencies had 
been adequately resolved. If the NIGC subsequently found remaining 
issues in the petition, such issues could similarly be resolved through 
additional supplementary submissions.
    Response: The Commission disagrees. Tribal governments should have 
the right to withdraw a petition for any reason. Further, allowing 
tribes to complete the certification process piecemeal, potentially 
over many months or even years, fails to recognize that the status and 
strength of a tribe's gaming regulation could change after a petition 
is submitted, thus rendering the Commission's review untimely and 
ineffective.

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

    Comment: One commenter suggested changing the word ``on'' April 15 
in Sec.  518.10(a) to ``by'' April 15, to give self-

[[Page 20240]]

regulating tribes more flexibility in satisfying the required annual 
submission.
    Response: The Commission agrees and the recommended change has been 
adopted.
    Comment on Sec.  518.10(a): One commenter expressed strong support 
for the proposed change to remove the annual requirement that tribes 
report the usage of its net gaming revenues.
    Response: The Commission agrees and this change is reflected in the 
final rule.
    Comment on Sec.  518.10(a)(2): One commenter expressed support for 
the proposed change in Sec.  518.10(a)(2) narrowing the scope of 
employees covered under this section to include only those employees 
working for the tribal regulatory body.
    Response: The Commission agrees that narrowing the scope of this 
section to employees of the tribal regulatory body, as opposed to all 
employees hired and licensed by the tribe, decreases the burden on 
self-regulating tribes and properly focuses attention on a tribe's 
ability to regulate its gaming activity.
    Comment on Sec.  518.10(a)(2): One commenter stated that the term 
``licensed,'' as used in proposed Sec.  518.10(a)(2), should be removed 
because it is an inaccurate characterization of tribal gaming 
regulatory employees. In practice, while most employees of tribal 
regulatory bodies are screened and subjected to background 
investigations, they are generally not ``hired and licensed'' by the 
tribe. Nor do they fit within the meaning of the terms ``key employee'' 
or ``primary management official,'' two categories of employee which 
are required to be licensed under IGRA. Another commenter stated that 
because most employees of tribal regulatory bodies are not ``hired and 
licensed,'' under the language in Sec.  518.10(2), there would be very 
few tribal regulatory employees who would be required to submit 
complete resumes. The commenter does not see any other option in light 
of the language of 25 U.S.C. 2710(c)(5)(b), and notes that this 
requirement alone may dissuade his tribe from pursuing a certificate of 
self-regulation.
    Response: The Commission understands the concern over the use of 
the terms ``hired and licensed.'' However, IGRA, at 25 U.S.C. 
2710(c)(5)(B), mandates that self-regulating tribes submit this 
information for employees ``hired and licensed by the tribe subsequent 
to the issuance of a certificate of self-regulation.'' Since the 
statute specifically uses the terms ``hired and licensed,'' the 
Commission declines to make the recommended change. Moreover, some 
tribes do in fact subject the individuals who work for their gaming 
regulatory bodies to licensing and, as a consequence, the standard is 
applicable.
    Comment on Sec.  518.10: One commenter stated that, because all 
tribes must comply with the background and licensing regulatory 
requirements of parts 556 and 558, the NIGC already has suitability 
reports for all employees who are licensed by the tribal gaming 
regulatory authority. A tribe's compliance with parts 556 and 558 
should be sufficient to satisfy the annual submission requirements of 
Sec.  518.10.
    Response: The Commission disagrees. Parts 556 and 558 address 
licensing for key employees and primary management employees only. IGRA 
mandates a much broader pool of individuals that must be addressed by 
self-regulating tribes through their annual submissions.

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

    Comments on Sec.  518.11: A few commenters disagreed with the 
revision in Sec.  518.11that requires a tribe to report material 
changes within ``three business days,'' and recommended that the 
original term, ``immediately,'' be restored. In their view, the 
proposed time frame of three business days may be too short. The 
general term of ``immediately'' is seen as being a more reasonable time 
frame because it is broad enough to allow tribal governments to resolve 
possible issues on their own before reporting them to the NIGC. As 
primary regulators, tribes should be given sufficient time and 
flexibility to resolve possible issues.
    Response: The Commission disagrees. This provision is designed to 
allow the Commission to be notified when a material change occurs so 
that it may make its own determination as to whether the change affects 
the eligibility of a tribe to maintain its certificate of self-
regulation. In many instances, a material change may not affect a 
tribe's certification, leaving no issue for the tribe to resolve. In 
addition, reporting a material change after it has been resolved 
renders the intent of the statutory provision meaningless, because the 
material change has been addressed without Commission consideration of 
it and its impact upon the certificate. Notifying the Commission within 
three business days allows the Commission to assess the situation, to 
provide technical assistance where appropriate, to monitor how quickly 
a tribe responds and to consider the ramifications if a tribe fails to 
take action.
    Comments on Sec.  518.11: A few commenters stated that they 
disagreed with some of the ``circumstances'' listed in Sec.  518.11 
that may constitute ``changes in circumstances'' requiring notification 
to the NIGC. The commenters noted that the circumstances listed in 
Sec.  518.11 do not directly relate to the approval criteria for self-
regulation or a tribe's regulatory capacity, and are overly subjective 
and vague. For example, the circumstance of ``financial instability'' 
could be construed to cover a range of issues not related to a tribe's 
regulatory capacity. Additionally, the circumstance of ``a change in 
management contractor'' is irrelevant to the self-regulation qualifying 
criteria in Sec.  518.5, which do not include management contractors, 
and which were already deemed met by any tribe issued a self-regulation 
certificate. This circumstance is unnecessary to an assessment of a 
tribe's regulatory capacity, especially since the NIGC is responsible 
for conducting background investigations of management contractors 
under IGRA and will already have in its possession the requested 
information.
    Response: The Commission agrees that a change in management 
contractor should not have to be reported to the Commission as a 
requirement of Sec.  518.11. Therefore, the example of a change in 
management contractor has been removed. However, the Commission has 
determined to retain the example of ``financial instability'' because 
it may have a direct impact on a tribe's ability to regulate, 
especially in those cases in which a tribal gaming regulatory body is 
funded from the gaming activity.

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

    Comment: One commenter was pleased that the proposed rule now 
describes, with specificity, the powers of the NIGC that are 
inapplicable once a tribe is issued a certificate of self-regulation.
    Response: The Commission agrees and has retained the provision in 
the final rule.

Regulatory Matters

Regulatory Flexibility Act

    This final rule will not have a significant economic effect on a 
substantial number of small entities as defined under the Regulatory 
Flexibility

[[Page 20241]]

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 final 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 final 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 final 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

    The information collection requirements contained in this rule were 
previously approved by the Office of Management and Budget as required 
by 44 U.S.C. 3501, et seq., and assigned OMB Control Number 3141-0008. 
The OMB control number expires on October 31, 2013.

List of Subjects in 25 CFR Part 518

    Gambling, Indian-lands, Indian-tribal government, Reporting and 
recordkeeping requirements.
    Accordingly, for the reasons discussed in the preamble, the 
Commission revises 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?

    Authority: 25 U.S.C. Sec.  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:
    (1) A brief history of each gaming operation(s), including the 
opening dates and periods of voluntary or involuntary closure;
    (2) An organizational chart of the tribal regulatory body;
    (3) A brief description of the criteria tribal regulators must meet 
before being eligible for employment as a tribal regulator;
    (4) A brief description of the process by which the tribal 
regulatory body is funded, and the funding level for the three years 
immediately preceding the date of the petition;
    (5) 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;
    (6) A brief description of the accounting system(s) at the gaming 
operation which tracks the flow of the gaming revenues;

[[Page 20242]]

    (7) A list of gaming activity internal controls at the gaming 
operation(s);
    (8) 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
    (9) 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:
    (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

[[Page 20243]]

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.
    (1) 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.
    (2) [Reserved]
    (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?

    Each tribe that holds a certificate of self-regulation shall be 
required to submit the following information by 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:
    (a) An annual independent audit, to be filed with the Commission, 
as required by 25 U.S.C. 2710(b)(2)(c); and
    (b) 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.
    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 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 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 constitute 
a waiver of the right to a hearing.


[[Page 20244]]


    Dated: March 28, 2013, Washington, DC.
Tracie L. Stevens,
Chairwoman.
Daniel J. Little,
Associate Commissioner.
[FR Doc. 2013-07621 Filed 4-3-13; 8:45 am]
BILLING CODE 7565-01-P