Self-Regulation of Class II Gaming, 62984-62987 [2022-21948]
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Federal Register / Vol. 87, No. 200 / Tuesday, October 18, 2022 / Rules and Regulations
XI. Consultation and Coordination With
Indian Tribal Governments
PART 1—GENERAL ENFORCEMENT
REGULATIONS
We have analyzed this final rule in
accordance with the principles set forth
in Executive Order 13175. We have
determined that the final rule does not
contain policies that have substantial
direct effects on one or more Indian
Tribes, on the relationship between the
Federal Government and Indian Tribes,
or on the distribution of power and
responsibilities between the Federal
Government and Indian Tribes.
Accordingly, we conclude that the rule
does not contain policies that have
tribal implications as defined in the
Executive Order and, consequently, a
tribal summary impact statement is not
required.
■
XII. References
The following references are on
display in the Dockets Management
Staff (see ADDRESSES) and are available
for viewing by interested persons
between 9 a.m. and 4 p.m., Monday
through Friday; they are also available
electronically at https://
www.regulations.gov. FDA has verified
the website addresses, as of the date this
document publishes in the Federal
Register, but websites are subject to
change over time.
1. FDA, ‘‘Submission of Food and Drug
Administration Import Data in the
Automated Commercial Environment.’’
Federal Register (Docket No. FDA–2016–
N–1487). Online November 29, 2016.
https://www.federalregister.gov/
documents/2016/11/29/2016-28582/
submission-of-food-and-drugadministration-import-data-in-theautomated-commercial-environment.
2. FDA. Submission of Food and Drug
Administration Import Data in the
Automated Commercial Environment
(Final Rule) Regulatory Impact Analysis.
Economic Impact Analyses of FDA
Regulations. Online November 29, 2016.
https://www.fda.gov/about-fda/reports/
economic-impact-analyses-fdaregulations.
3. FDA. Office of Regulatory Affairs
Reporting, Analysis, and Decision
Support System (ORADSS). 2015–2017
data.
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List of Subjects in 21 CFR Part 1
Cosmetics, Drugs, Exports, Food
labeling, Imports, Labeling, Reporting
and recordkeeping requirements.
Therefore, under the Federal Food,
Drug, and Cosmetic Act and under
authority delegated to the Commissioner
of Food and Drugs, 21 CFR part 1 is
amended as follows:
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1. The authority citation for part 1
continues to read as follows:
Authority: 15 U.S.C. 1333, 1453, 1454,
1455, 4402; 19 U.S.C. 1490, 1491; 21 U.S.C.
321, 331, 332, 333, 334, 335a, 342, 343, 350c,
350d, 350e, 350j, 350k, 352, 355, 360b,
360ccc, 360ccc–1, 360ccc–2, 362, 371, 373,
374, 379j–31, 381, 382, 384, 384a, 384b,
384d, 387, 387a, 387c, 393; 42 U.S.C. 216,
241, 243, 262, 264, 271; Pub. L. 107–188, 116
Stat. 594, 668–69; Pub. L. 111–353, 124 Stat.
3885, 3889.
2. Amend § 1.71 by adding in
alphabetical order the definition for
‘‘Veterinary device’’ to read as follows:
■
§ 1.71
Definitions.
*
*
*
*
*
Veterinary device means a device as
defined in section 201(h) of the Federal
Food, Drug, and Cosmetic Act, that is
intended for use in animals.
■ 3. Revise § 1.72 introductory text to
read as follows:
§ 1.72 Data elements that must be
submitted in ACE for articles regulated by
FDA.
General. When filing an entry in ACE,
the ACE filer shall submit the following
information for food contact substances,
drugs, biological products, HCT/Ps,
medical devices, veterinary devices,
radiation-emitting electronic products,
cosmetics, and tobacco products.
*
*
*
*
*
■ 4. Revise § 1.75 to read as follows:
§ 1.75 Animal drugs and veterinary
devices.
(a) Animal drugs. In addition to the
data required to be submitted in § 1.72,
an ACE filer must submit the following
information at the time of filing entry in
ACE for animal drugs:
(1) Registration and listing. For a drug
intended for animal use, the Drug
Registration Number and the Drug
Listing Number if the foreign
establishment where the drug was
manufactured, prepared, propagated,
compounded, or processed before being
imported or offered for import into the
United States is required to register and
list the drug under part 207 of this
chapter. For the purposes of this
section, the Drug Registration Number
that must be submitted in ACE at the
time of entry is the Unique Facility
Identifier of the foreign establishment
where the animal drug was
manufactured, prepared, propagated,
compounded, or processed before being
imported or offered for import into the
United States. The Unique Facility
Identifier is the identifier submitted by
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a registrant in accordance with the
system specified under section 510(b) of
the Federal Food, Drug, and Cosmetic
Act. For the purposes of this section, the
Drug Listing Number is the National
Drug Code number of the animal drug
article being imported or offered for
import.
(2) New animal drug application
number. For a drug intended for animal
use that is the subject of an approved
application under section 512 of the
Federal Food, Drug, and Cosmetic Act,
the number of the new animal drug
application or abbreviated new animal
drug application. For a drug intended
for animal use that is the subject of a
conditionally approved application
under section 571 of the Federal Food,
Drug, and Cosmetic Act, the application
number for the conditionally approved
new animal drug.
(3) Veterinary minor species index file
number. For a drug intended for use in
animals that is the subject of an Index
listing under section 572 of the Federal
Food, Drug, and Cosmetic Act, the
Minor Species Index File number of the
new animal drug on the Index of Legally
Marketed Unapproved New Animal
Drugs for Minor Species.
(4) Investigational new animal drug
file number. For a drug intended for
animal use that is the subject of an
investigational new animal drug or
generic investigational new animal drug
file under part 511 of this chapter, the
number of the investigational new
animal drug or generic investigational
new animal drug file.
(b) Veterinary devices. An ACE filer
must submit the data specified in § 1.72
at the time of filing entry in ACE for
veterinary devices.
Dated: October 6, 2022.
Robert M. Califf,
Commissioner of Food and Drugs.
In concurrence with FDA.
Dated: October 6, 2022.
Thomas C. West, Jr.,
Deputy Assistant Secretary of the Treasury
for Tax Policy, Department of the Treasury.
[FR Doc. 2022–22532 Filed 10–17–22; 8:45 am]
BILLING CODE 4164–01–P
DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
25 CFR Part 518
RIN 3141–AA72
Self-Regulation of Class II Gaming
National Indian Gaming
Commission, Department of the Interior.
AGENCY:
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Federal Register / Vol. 87, No. 200 / Tuesday, October 18, 2022 / Rules and Regulations
ACTION:
Final rule.
The National Indian Gaming
Commission (NIGC) is amending its
regulations regarding self-regulation of
Class II gaming under the Indian
Gaming Regulatory Act. The
amendment revises the regulations to
address an ambiguity in the petitioning
process and clarifies the Office of SelfRegulation’s (OSR) role once the
Commission issues a certificate.
Notably, the amendment: Clarifies the
NIGC may issue a final decision on
issuing a certificate within 30 days
instead of after 30 days; removes the
requirement that the director of the OSR
must be a Commissioner; enumerates
the OSR is the correct party to receive
notifications of material changes from
self-regulated tribes; expands the
deadline for tribes to report material
changes to the OSR from three business
days to 10 business days; clarifies the
OSR will be the office to make any
recommendations to revoke a certificate
of self-regulation before the
Commission; and clarifies that, in any
revocation proceeding, the OSR has the
burden to show just cause for the
revocation and carry that burden by a
preponderance of the evidence.
SUMMARY:
DATES:
Effective November 17, 2022.
FOR FURTHER INFORMATION CONTACT:
Michael Hoenig, National Indian
Gaming Commission; 1849 C Street NW,
MS 1621, Washington, DC 20240.
Telephone: (202) 632–7003.
SUPPLEMENTARY INFORMATION:
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I. Background
The Indian Gaming Regulatory Act
(IGRA or Act), Public Law 100–497, 25
U.S.C. 2701 et seq., was signed into law
on October 17, 1988. The Act
establishes the National Indian Gaming
Commission (NIGC or Commission) and
sets out a comprehensive framework for
the regulation of gaming on Indian
lands.
On January 31, 2012, the Commission
published a notice of proposed
rulemaking to promulgate part 518, the
procedures controlling self-regulation.
77 FR 4714 (Jan. 31, 2012). Once
promulgated, part 518 established the
procedures for the Commission and the
OSR to, among other things, receive,
evaluate, recommend, issue, deny, or
revoke a certificate of self-regulation. On
September 1, 2013, after initial
publication, the Commission enacted
minor revisions to part 518 to amend
certain timelines and an incorrect
section heading and reference to IGRA.
78 FR 37114 (Sept. 1, 2013).
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II. Development of the Proposed Rule
On June 9, 2021, the National Indian
Gaming Commission sent a Notice of
Consultation announcing that the
Agency intended to consult on a
number of topics, including proposed
changes to the procedures controlling
self-regulation. Prior to consultation, the
Commission released proposed
discussion drafts of the regulations for
review. The proposed amendments are
intended to improve the Agency’s
efficiency in evaluating petitions for
self-regulation, reduce the time it takes
to obtain a certificate of self-regulation,
and clarify the Office of SelfRegulation’s functions.
The Commission held two virtual
consultation sessions in September and
one virtual consultation in October of
2021 to receive tribal input on any
proposed changes. After considering the
comments received from the public and
through tribal consultations, the
Commission published a notice of
proposed rulemaking on April 7, 2022,
87 FR 20351. The notice of proposed
rulemaking indicated that comments
were due on or before June 6, 2022. On
June 16, 2022, 87 FR 36280, the NIGC
announced the reopening of the
comment period until June 23, 2022.
The Commission reviewed all of the
public’s comments and now adopts
these changes, which it believes will
improve the self-regulation process.
III. Review of Public Comments
The Commission received the
following comments in response to the
notice of proposed rulemaking.
Comment: Several commenters
approved of the change that clarified the
Commission may issue a final
determination for a certificate of selfregulation within 30 days if no hearing
is requested, as the prior language was
ambiguous and potentially left open an
indefinite time period for a
determination.
Response: The Commission
appreciates the comment and has left
the language in the final rule.
Comment: Several commenters
approved of the change from three to ten
business days for tribes to notify the
OSR of material changes.
Response: The Commission
appreciates the comment and has left
the language in the final rule.
Comment: Several commenters
approved that placing the burden of
proof on the OSR in revocation
hearings.
Response: The Commission
appreciates these comments and has left
the language in the final rule.
Comment: A commenter stated that
procedural questions were left
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unanswered for § 518.7(f), specifically
(1) to whom should the notice be
directed, (2) what restrictions exist to
who may send a notice, and (3) the
contents of the notice and what it must
include.
Response: The Commission
appreciates the comment and intends to
provide clarity on these and other
process questions. It does not wish,
however, to codify a process that may
change in the future. The Commission
intends to publish guidance for
administrative and procedural matters
on its website where it can be updated
as needed.
Comment: Numerous commenters
expressed concern with the reporting
requirements in § 518.11 and
commented that there were unanswered
questions as to what needs to be
reported.
Response: The Commission
appreciates the comments, and notes
that the only proposed change to the
rule pertained to the office the Tribe or
Tribal Gaming Regulatory Authority
reports such information. The
Commission believes the scope of what
needs to be detailed is sufficiently
covered by the reference to § 518.5,
which does specify criteria that will be
considered by the Commission when
deciding to grant a certificate of selfregulation, as well as the examples
given in § 518.11. To the extent that
additional guidance or detail is needed,
the Commission will include such
information in future bulletins.
Comment: Several commenters
expressed concern that if a
Commissioner is appointed the head of
the OSR they would be the proponent
of any case to revoke a certificate before
the Commission and also voting on the
revocation. The commenters stated that
this would create an insurmountable
conflict of interest.
Response: The Commission has
changed the rule to no longer require
that a Commissioner serve as the head
of the OSR. That being said, there is
nothing to prohibit the Commission
from appointing a Commissioner to lead
the office, and the Commission
disagrees with the commenter’s
assertion that a Commissioner serving as
head of the OSR would create a conflict
of interest. It is not a violation of due
process for the Commissioners to serve
both investigatory and adjudicatory
functions. The United State Supreme
Court held as much in the case Withrow
v. Larkin, 421 U.S. 35, 51–52 (1975),
following the cases that rejected the idea
that the combination (of) judging (and)
investigating functions is a denial of due
process. The Court further stated there
is a presumption of honesty and
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Federal Register / Vol. 87, No. 200 / Tuesday, October 18, 2022 / Rules and Regulations
integrity in those serving as
adjudicators. Moreover, the NIGC is
familiar with such a structure and the
dual role of investigator and adjudicator
comes from IGRA itself. Section 2706 of
IGRA tasks the Commission with
investigatory and inspection powers,
while section 2713 requires the
Commission to hear any appeals of a
civil fine or closure order issues by the
Chairman. The Commission has long
worked under such a structure. For
example, the Chairman makes a
determination on a gaming ordinance
and also sits on the panel if it is
appealed. And although there is a
presumption of fairness, the NIGC
nevertheless has policies and
procedures in place to ensure a fair
decision on all appeals and
investigations.
Comment: A commenter requested
that if a commissioner is appointed as
Director of OSR that they recuse
themselves from participating as a
Commissioner of NIGC in revocation
hearings for due process concerns.
Response: The Commission declines
to adopt this suggestion for the same
reason as above.
Comment: Several comments were
outside the scope of the rulemaking and
related generally to the self-regulation
process, the lack of guidance and the
inability of more tribes to participate in
the self-regulation process.
Response: The Commission
appreciates these comments and will
take them into consideration for future
guidance or amendments to the rule.
Unfunded Mandate Reform Act
The Commission, as an independent
regulatory agency, is exempt from
compliance with the Unfunded
Mandates Reform Act, 2 U.S.C. 1502(1);
2 U.S.C. 658(1).
IV. Regulatory Matters
Tribal Consultation
The National Indian Gaming
Commission is committed to fulfilling
its tribal consultation obligations—
whether directed by statute or
administrative action such as Executive
Order (E.O.) 13175 (Consultation and
Coordination with Indian Tribal
Governments)—by adhering to the
consultation framework described in its
Consultation Policy published July 15,
2013. The NIGC consultation policy
specifies that it will consult with tribes
on Commission Actions with Tribal
Implications, which is defined as: Any
Commission regulation, rulemaking,
policy, guidance, legislative proposal, or
operational activity that may have a
substantial direct effect on an Indian
tribe on matters including, but not
limited to the ability of an Indian tribe
to regulate its Indian gaming; an Indian
tribe’s formal relationship with the
Commission; or the consideration of the
Commission’s trust responsibilities to
Indian tribes.
Pursuant to this policy, on June 9,
2021, the National Indian Gaming
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Regulatory Flexibility Act
The rule will not have a significant
impact on a substantial number of small
entities as defined under the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.
Moreover, Indian tribes are not
considered small entities for the
purposes of the Regulatory Flexibility
Act.
Small Business Regulatory Enforcement
Fairness Act
The rule is not a major rule under 5
U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act.
The rule does not have an effect on the
economy of $100 million or more. The
rule will not cause a major increase in
costs or prices for consumers,
individual industries, Federal, State,
local government agencies or geographic
regions. Nor will the rule have a
significant adverse effect on
competition, employment, investment,
productivity, innovation, or the ability
of the enterprises to compete with
foreign based enterprises.
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Takings
In accordance with Executive Order
12630, the Commission has determined
that the rule does not have significant
takings implications. A takings
implication assessment is not required.
Civil Justice Reform
In accordance with Executive Order
12988, the Commission has determined
that the rule does not unduly burden the
judicial system and meets the
requirements of section 3(a) and 3(b)(2)
of the order.
National Environmental Policy Act
The Commission has determined that
the rule does not constitute a major
Federal action significantly affecting the
quality of the human environment and
that no detailed statement is required
pursuant to the National Environmental
Policy Act of 1969, 42 U.S.C. 4321, et
seq.
Paperwork Reduction Act
The information collection
requirements contained in this rule
were previously approved by the Office
of Management and Budget (OMB) as
required by 44 U.S.C. 3501 et seq. and
assigned OMB Control Number 3141–
0003.
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Commission sent a Notice of
Consultation announcing that the
Agency intended to consult on a
number of topics, including proposed
changes to the self-regulation process.
List of Subjects in 25 CFR Part 518
Gambling, Indian—lands, Indian—
tribal government, Reporting and
recordkeeping requirements.
Therefore, for reasons stated in the
preamble, 25 CFR part 518 is amended
as follows:
PART 518—SELF-REGULATION OF
CLASS II GAMING
1. The authority citation for part 518
is revised to read as follows:
■
Authority: 25 U.S.C. 2706(b)(10); 25 U.S.C.
2710(c).
■
2. Revise § 518.2 to read as follows:
§ 518.2 Who will administer the selfregulation program for the Commission?
The self-regulation program will be
administered by the Office of Self–
Regulation. The Chair shall appoint a
Director to administer the Office of Self–
Regulation.
■ 3. Revise § 518.5(b) introductory text
to read as follows:
§ 518.5 What criteria must a tribe meet to
receive a certificate of self-regulation?
*
*
*
*
*
(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 in paragraphs (b)(1)
through (9) of this section. The list of
factors is not all-inclusive; other factors
not listed here may also be addressed
and considered.
*
*
*
*
*
■ 4. Revise § 518.7(f) to read as follows:
§ 518.7 What process will the Commission
use to review and certify petitions?
*
*
*
*
*
(f) The Commission shall issue a final
determination within 30 days after
issuance of its preliminary findings if
the tribe has informed the Commission
in writing that the tribe does not request
a hearing or within 30 days 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.
*
*
*
*
*
■ 5. Revise § 518.11 to read as follows:
§ 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
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advise the Office of Self-Regulation
within 10 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.
■ 4. Revise §§ 518.13 and 518.14 to read
as follows:
§ 518.13 When may the Commission
revoke a certificate of self-regulation?
If the Office of Self-Regulation
determines that the tribe no longer
meets or did not comply with the
eligibility criteria of § 518.3, the
approval criteria of § 518.5, the
requirements of § 518.10, or the
requirements of § 518.11, the Office of
Self-Regulation shall prepare a written
recommendation to the Commission and
deliver a copy of the recommendation to
the tribe. The Office of Self-Regulation’s
recommendation shall state the reasons
for the recommendation and shall
advice the tribe of its right to a hearing
under part 584 of this chapter or right
to appeal under part 585 of this chapter.
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.
§ 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 Office of Self-Regulation’s
recommendation that the Commission
revoke a certificate of self-regulation.
Such a request shall be filed with the
Commission pursuant to part 584 of this
chapter. Failure to request a hearing
within the time provided by part 584 of
this chapter shall constitute a waiver of
the right to a hearing. At any hearing
where the Commission considers
revoking a certificate, the Office of SelfRegulation bears the burden of proof to
support its recommendation by a
preponderance of the evidence. 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.
Dated: September 27, 2022.
E. Sequoyah Simermeyer,
Chairman.
Jeannie Hovland,
Vice Chair.
[FR Doc. 2022–21948 Filed 10–17–22; 8:45 am]
BILLING CODE 7565–01–P
DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
33 CFR Parts 207 and 326
RIN 0710–AB13
Civil Monetary Penalty Inflation
Adjustment Rule
AGENCY:
U.S. Army Corps of Engineers,
DoD.
ACTION:
Final rule.
The U.S. Army Corps of
Engineers (Corps) is issuing this final
rule to adjust its civil monetary
penalties (CMP) under the Rivers and
Harbors Appropriation Act of 1922
(RHA), the Clean Water Act (CWA), and
the National Fishing Enhancement Act
(NFEA) to account for inflation.
DATES: This final rule is effective on
October 18, 2022.
FOR FURTHER INFORMATION CONTACT: For
the RHA portion, please contact Mr.
Paul Clouse at 202–761–4709 or by
email at Paul.D.Clouse@usace.army.mil,
or for the CWA and NFEA portion,
please contact Mr. Matt Wilson 202–
761–5856 or by email at
SUMMARY:
62987
Matthew.S.Wilson@usace.army.mil or
access the U.S. Army Corps of Engineers
Regulatory Home Page at https://
www.usace.army.mil/Missions/CivilWorks/Regulatory-Program-andPermits/.
The
Federal Civil Penalties Inflation
Adjustment Act of 1990, Public Law
101–410, codified at 28 U.S.C. 2461,
note, as amended, requires agencies to
annually adjust the level of CMP for
inflation to improve their effectiveness
and maintain their deterrent effect, as
required by the Federal Civil Penalties
Adjustment Act Improvements Act of
2015, Public Law 114–74, sec. 701,
November 2, 2015 (‘‘Inflation
Adjustment Act’’).
With this rule, the new statutory
maximum penalty levels listed in Table
1 will apply to all statutory civil
penalties assessed on or after the
effective date of this rule. Table 1 shows
the calculation of the 2022 annual
inflation adjustment based on the
guidance provided by the Office of
Management and Budget (OMB) (see
December 15, 2021, Memorandum for
the Heads of Executive Departments and
Agencies, Subject: Implementation of
Penalty Inflation Adjustments for 2022,
Pursuant to the Federal Civil Penalties
Inflation Adjustment Act Improvements
Act of 2015). The OMB provided to
agencies the cost-of-living adjustment
multiplier for 2022, based on the
Consumer Price Index for All Urban
Consumers (CPI–U) for the month of
October 2021, not seasonally adjusted,
which is 1.06222. Agencies are to adjust
‘‘the maximum civil monetary penalty
or the range of minimum and maximum
civil monetary penalties, as applicable,
for each civil monetary penalty by the
cost-of-living adjustment.’’ For 2022,
agencies multiply each applicable
penalty by the multiplier, 1.06222, and
round to the nearest dollar. The
multiplier should be applied to the most
recent penalty amount, i.e., the one that
includes the 2021 annual inflation
adjustment.
SUPPLEMENTARY INFORMATION:
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TABLE 1
2022
Inflation
adjustment
multiplier
Citation
Civil Monetary Penalty (CMP)
amount established by law
2021 CMP amount in effect
prior to this rulemaking
Rivers and Harbors Act of
1922 (33 U.S.C. 555).
CWA, 33 U.S.C.
1319(g)(2)(A).
CWA, 33 U.S.C. 1344(s)(4) ...
$2,500 per violation ...............
$5,903 per violation ...............
1.06222
$6,270 per violation.
$10,000 per violation, with a
maximum of $25,000.
Maximum of $25,000 per day
for each violation.
$22,585 per violation, with a
maximum of $56,461.
Maximum of $56,461 per day
for each violation.
1.06222
$23,990 per violation, with a
maximum of $59,974.
Maximum of $59,974 per day
for each violation.
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1.06222
18OCR1
CMP Amount as of October
18, 2022
]]>Agencies
[Federal Register Volume 87, Number 200 (Tuesday, October 18, 2022)]
[Rules and Regulations]
[Pages 62984-62987]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-21948]
=======================================================================
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DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
25 CFR Part 518
RIN 3141-AA72
Self-Regulation of Class II Gaming
AGENCY: National Indian Gaming Commission, Department of the Interior.
[[Page 62985]]
ACTION: Final rule.
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SUMMARY: The National Indian Gaming Commission (NIGC) is amending its
regulations regarding self-regulation of Class II gaming under the
Indian Gaming Regulatory Act. The amendment revises the regulations to
address an ambiguity in the petitioning process and clarifies the
Office of Self-Regulation's (OSR) role once the Commission issues a
certificate. Notably, the amendment: Clarifies the NIGC may issue a
final decision on issuing a certificate within 30 days instead of after
30 days; removes the requirement that the director of the OSR must be a
Commissioner; enumerates the OSR is the correct party to receive
notifications of material changes from self-regulated tribes; expands
the deadline for tribes to report material changes to the OSR from
three business days to 10 business days; clarifies the OSR will be the
office to make any recommendations to revoke a certificate of self-
regulation before the Commission; and clarifies that, in any revocation
proceeding, the OSR has the burden to show just cause for the
revocation and carry that burden by a preponderance of the evidence.
DATES: Effective November 17, 2022.
FOR FURTHER INFORMATION CONTACT: Michael Hoenig, National Indian Gaming
Commission; 1849 C Street NW, MS 1621, Washington, DC 20240. Telephone:
(202) 632-7003.
SUPPLEMENTARY INFORMATION:
I. Background
The Indian Gaming Regulatory Act (IGRA or Act), Public Law 100-497,
25 U.S.C. 2701 et seq., was signed into law on October 17, 1988. The
Act establishes the National Indian Gaming Commission (NIGC or
Commission) and sets out a comprehensive framework for the regulation
of gaming on Indian lands.
On January 31, 2012, the Commission published a notice of proposed
rulemaking to promulgate part 518, the procedures controlling self-
regulation. 77 FR 4714 (Jan. 31, 2012). Once promulgated, part 518
established the procedures for the Commission and the OSR to, among
other things, receive, evaluate, recommend, issue, deny, or revoke a
certificate of self-regulation. On September 1, 2013, after initial
publication, the Commission enacted minor revisions to part 518 to
amend certain timelines and an incorrect section heading and reference
to IGRA. 78 FR 37114 (Sept. 1, 2013).
II. Development of the Proposed Rule
On June 9, 2021, the National Indian Gaming Commission sent a
Notice of Consultation announcing that the Agency intended to consult
on a number of topics, including proposed changes to the procedures
controlling self-regulation. Prior to consultation, the Commission
released proposed discussion drafts of the regulations for review. The
proposed amendments are intended to improve the Agency's efficiency in
evaluating petitions for self-regulation, reduce the time it takes to
obtain a certificate of self-regulation, and clarify the Office of
Self-Regulation's functions.
The Commission held two virtual consultation sessions in September
and one virtual consultation in October of 2021 to receive tribal input
on any proposed changes. After considering the comments received from
the public and through tribal consultations, the Commission published a
notice of proposed rulemaking on April 7, 2022, 87 FR 20351. The notice
of proposed rulemaking indicated that comments were due on or before
June 6, 2022. On June 16, 2022, 87 FR 36280, the NIGC announced the
reopening of the comment period until June 23, 2022.
The Commission reviewed all of the public's comments and now adopts
these changes, which it believes will improve the self-regulation
process.
III. Review of Public Comments
The Commission received the following comments in response to the
notice of proposed rulemaking.
Comment: Several commenters approved of the change that clarified
the Commission may issue a final determination for a certificate of
self-regulation within 30 days if no hearing is requested, as the prior
language was ambiguous and potentially left open an indefinite time
period for a determination.
Response: The Commission appreciates the comment and has left the
language in the final rule.
Comment: Several commenters approved of the change from three to
ten business days for tribes to notify the OSR of material changes.
Response: The Commission appreciates the comment and has left the
language in the final rule.
Comment: Several commenters approved that placing the burden of
proof on the OSR in revocation hearings.
Response: The Commission appreciates these comments and has left
the language in the final rule.
Comment: A commenter stated that procedural questions were left
unanswered for Sec. 518.7(f), specifically (1) to whom should the
notice be directed, (2) what restrictions exist to who may send a
notice, and (3) the contents of the notice and what it must include.
Response: The Commission appreciates the comment and intends to
provide clarity on these and other process questions. It does not wish,
however, to codify a process that may change in the future. The
Commission intends to publish guidance for administrative and
procedural matters on its website where it can be updated as needed.
Comment: Numerous commenters expressed concern with the reporting
requirements in Sec. 518.11 and commented that there were unanswered
questions as to what needs to be reported.
Response: The Commission appreciates the comments, and notes that
the only proposed change to the rule pertained to the office the Tribe
or Tribal Gaming Regulatory Authority reports such information. The
Commission believes the scope of what needs to be detailed is
sufficiently covered by the reference to Sec. 518.5, which does
specify criteria that will be considered by the Commission when
deciding to grant a certificate of self-regulation, as well as the
examples given in Sec. 518.11. To the extent that additional guidance
or detail is needed, the Commission will include such information in
future bulletins.
Comment: Several commenters expressed concern that if a
Commissioner is appointed the head of the OSR they would be the
proponent of any case to revoke a certificate before the Commission and
also voting on the revocation. The commenters stated that this would
create an insurmountable conflict of interest.
Response: The Commission has changed the rule to no longer require
that a Commissioner serve as the head of the OSR. That being said,
there is nothing to prohibit the Commission from appointing a
Commissioner to lead the office, and the Commission disagrees with the
commenter's assertion that a Commissioner serving as head of the OSR
would create a conflict of interest. It is not a violation of due
process for the Commissioners to serve both investigatory and
adjudicatory functions. The United State Supreme Court held as much in
the case Withrow v. Larkin, 421 U.S. 35, 51-52 (1975), following the
cases that rejected the idea that the combination (of) judging (and)
investigating functions is a denial of due process. The Court further
stated there is a presumption of honesty and
[[Page 62986]]
integrity in those serving as adjudicators. Moreover, the NIGC is
familiar with such a structure and the dual role of investigator and
adjudicator comes from IGRA itself. Section 2706 of IGRA tasks the
Commission with investigatory and inspection powers, while section 2713
requires the Commission to hear any appeals of a civil fine or closure
order issues by the Chairman. The Commission has long worked under such
a structure. For example, the Chairman makes a determination on a
gaming ordinance and also sits on the panel if it is appealed. And
although there is a presumption of fairness, the NIGC nevertheless has
policies and procedures in place to ensure a fair decision on all
appeals and investigations.
Comment: A commenter requested that if a commissioner is appointed
as Director of OSR that they recuse themselves from participating as a
Commissioner of NIGC in revocation hearings for due process concerns.
Response: The Commission declines to adopt this suggestion for the
same reason as above.
Comment: Several comments were outside the scope of the rulemaking
and related generally to the self-regulation process, the lack of
guidance and the inability of more tribes to participate in the self-
regulation process.
Response: The Commission appreciates these comments and will take
them into consideration for future guidance or amendments to the rule.
IV. Regulatory Matters
Regulatory Flexibility Act
The rule will not have a significant impact on a substantial number
of small entities as defined under the Regulatory Flexibility Act, 5
U.S.C. 601, et seq. Moreover, Indian tribes are not considered small
entities for the purposes of the Regulatory Flexibility Act.
Small Business Regulatory Enforcement Fairness Act
The rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. The rule does not have an
effect on the economy of $100 million or more. The rule will not cause
a major increase in costs or prices for consumers, individual
industries, Federal, State, local government agencies or geographic
regions. Nor will the rule have a significant adverse effect on
competition, employment, investment, productivity, innovation, or the
ability of the enterprises to compete with foreign based enterprises.
Unfunded Mandate Reform Act
The Commission, as an independent regulatory agency, is exempt from
compliance with the Unfunded Mandates Reform Act, 2 U.S.C. 1502(1); 2
U.S.C. 658(1).
Takings
In accordance with Executive Order 12630, the Commission has
determined that the rule does not have significant takings
implications. A takings implication assessment is not required.
Civil Justice Reform
In accordance with Executive Order 12988, the Commission has
determined that the rule does not unduly burden the judicial system and
meets the requirements of section 3(a) and 3(b)(2) of the order.
National Environmental Policy Act
The Commission has determined that the rule does not constitute a
major Federal action significantly affecting the quality of the human
environment and that no detailed statement is required pursuant to the
National Environmental Policy Act of 1969, 42 U.S.C. 4321, et seq.
Paperwork Reduction Act
The information collection requirements contained in this rule were
previously approved by the Office of Management and Budget (OMB) as
required by 44 U.S.C. 3501 et seq. and assigned OMB Control Number
3141-0003.
Tribal Consultation
The National Indian Gaming Commission is committed to fulfilling
its tribal consultation obligations--whether directed by statute or
administrative action such as Executive Order (E.O.) 13175
(Consultation and Coordination with Indian Tribal Governments)--by
adhering to the consultation framework described in its Consultation
Policy published July 15, 2013. The NIGC consultation policy specifies
that it will consult with tribes on Commission Actions with Tribal
Implications, which is defined as: Any Commission regulation,
rulemaking, policy, guidance, legislative proposal, or operational
activity that may have a substantial direct effect on an Indian tribe
on matters including, but not limited to the ability of an Indian tribe
to regulate its Indian gaming; an Indian tribe's formal relationship
with the Commission; or the consideration of the Commission's trust
responsibilities to Indian tribes.
Pursuant to this policy, on June 9, 2021, the National Indian
Gaming Commission sent a Notice of Consultation announcing that the
Agency intended to consult on a number of topics, including proposed
changes to the self-regulation process.
List of Subjects in 25 CFR Part 518
Gambling, Indian--lands, Indian--tribal government, Reporting and
recordkeeping requirements.
Therefore, for reasons stated in the preamble, 25 CFR part 518 is
amended as follows:
PART 518--SELF-REGULATION OF CLASS II GAMING
0
1. The authority citation for part 518 is revised to read as follows:
Authority: 25 U.S.C. 2706(b)(10); 25 U.S.C. 2710(c).
0
2. Revise Sec. 518.2 to read as follows:
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 a Director to administer the
Office of Self-Regulation.
0
3. Revise Sec. 518.5(b) introductory text to read as follows:
Sec. 518.5 What criteria must a tribe meet to receive a certificate
of self-regulation?
* * * * *
(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 in paragraphs (b)(1) through (9) of this section. The list of
factors is not all-inclusive; other factors not listed here may also be
addressed and considered.
* * * * *
0
4. Revise Sec. 518.7(f) to read as follows:
Sec. 518.7 What process will the Commission use to review and certify
petitions?
* * * * *
(f) The Commission shall issue a final determination within 30 days
after issuance of its preliminary findings if the tribe has informed
the Commission in writing that the tribe does not request a hearing or
within 30 days 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.
* * * * *
0
5. Revise Sec. 518.11 to read as follows:
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
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advise the Office of Self-Regulation within 10 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.
0
4. Revise Sec. Sec. 518.13 and 518.14 to read as follows:
Sec. 518.13 When may the Commission revoke a certificate of self-
regulation?
If the Office of Self-Regulation determines that the tribe no
longer meets or did not comply with 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 Office of Self-
Regulation shall prepare a written recommendation to the Commission and
deliver a copy of the recommendation to the tribe. The Office of Self-
Regulation's recommendation shall state the reasons for the
recommendation and shall advice the tribe of its right to a hearing
under part 584 of this chapter or right to appeal under part 585 of
this chapter. 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.
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 Office of Self-
Regulation's recommendation that the Commission revoke a certificate of
self-regulation. Such a request shall be filed with the Commission
pursuant to part 584 of this chapter. Failure to request a hearing
within the time provided by part 584 of this chapter shall constitute a
waiver of the right to a hearing. At any hearing where the Commission
considers revoking a certificate, the Office of Self-Regulation bears
the burden of proof to support its recommendation by a preponderance of
the evidence. 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.
Dated: September 27, 2022.
E. Sequoyah Simermeyer,
Chairman.
Jeannie Hovland,
Vice Chair.
[FR Doc. 2022-21948 Filed 10-17-22; 8:45 am]
BILLING CODE 7565-01-P
