Definitions; Background Investigation for Primary Management Officials and Key Employees; Gaming Licenses for Primary Management Officials and Key Employees, 55366-55371 [2023-17455]
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This EASA AD may be found in the AD
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FAA–2023–1712.
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DEPARTMENT OF THE INTERIOR
Issued on August 8, 2023.
Victor Wicklund,
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Division, Aircraft Certification Service.
RIN 3141–AA32
[FR Doc. 2023–17575 Filed 8–11–23; 4:15 pm]
BILLING CODE 4910–13–P
National Indian Gaming Commission
25 CFR Parts 502, 556, and 558
Definitions; Background Investigation
for Primary Management Officials and
Key Employees; Gaming Licenses for
Primary Management Officials and Key
Employees
National Indian Gaming
Commission, Department of the Interior.
AGENCY:
SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
RIN 0960–AG65
Revised Medical Criteria for Evaluating
Digestive Disorders and Skin
Disorders
Correction
In Rule Document 2023–11771,
appearing on pages 37704 through
37747 in the issue of Thursday, June 8,
2023, make the following correction:
1. On page 37740, in the first column,
after line 43 of Part 404, Appendix 1 to
Subpart P, is corrected as set forth
below.
*
*
*
*
*
■
PART 404—FEDERAL OLD-AGE,
SURVIVORS AND DISABILITY
INSURANCE (1950–) [Corrected]
*
*
*
*
Subpart P—Determining Disability and
Blindness
*
*
*
*
*
Appendix 1 to Subpart P of Part 404—
Listing of Impairments
*
*
*
*
*
(a) The initial calculation is:
SSA CLDi =
9.57 × [loge (serum creatinine mg/dL)]
+ 3.78 × [loge (serum total bilirubin mg/
dL)]
+ 11.2 × [loge (INR)]
+ 6.43
rounded to the nearest whole integer
*
*
*
*
*
[FR Doc. C1–2023–11771 Filed 8–14–23; 8:45 am]
BILLING CODE 0099–10–P
PO 00000
Final rule.
In April 2023, the
Commission issued a revised proposed
rule refining proposed changes to the
‘‘primary management official’’ and
‘‘key employee’’ definitions as well as
the newly proposed definitions for
‘‘Gaming Enterprise’’ and ‘‘Tribal
Gaming Regulatory Authority’’ (TGRA).
The revised proposal, like the 2022
original, also proposed: modernizing
retention requirements for background
investigations and licensing
applications; vesting revocation hearing
rights upon license issuance as well as
in accordance with tribal law,
regulation, or policy; and augmenting
revocation decision notification and
submission requirements. After closely
considering comments received, this
final rule permits tribes to designate
other gaming enterprise employees as
key employees and other employed
gaming enterprise management officials
as primary management officials,
including TGRA personnel. These
optional designations occur by any
documentary means. Further, the key
employee definition no longer sets forth
a wage threshold but includes in the
definition a gaming operation’s four
most highly compensated persons. And
the terms ‘‘independent’’ and
‘‘governmental’’ have been struck from
the TGRA definition, aligning it with a
corresponding definition in NIGC
regulations, part 547. Lastly, license
revocation decisions only require
notifying the Commission of the
revocation along with a copy of the
revocation decision.
SUMMARY:
[Docket No. SSA–2017–0042]
*
ACTION:
DATES:
Effective September 14, 2023.
JoAnn Shyloski, National Indian Gaming
Commission, 1849 C Street NW, MS
161, Washington, DC 20240. Telephone:
(202) 632–7003. Email: JoAnn.Shyloski@nigc.gov. Fax: (202) 632–
7066.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
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I. Background and Development of the
Rule
A. 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
established the National Indian Gaming
Commission (‘‘NIGC’’ or ‘‘Commission’’)
and set out a comprehensive framework
for the regulation of gaming on Indian
lands. IGRA requires that tribal gaming
ordinances provide a system for:
background investigations of ‘‘primary
management officials and key
employees of the gaming enterprise;’’
tribal licenses for them; a suitability
standard to assess whether they pose a
threat to gaming and are not eligible for
employment; and notices of background
check results to the Commission before
the issuance of licenses.
The Commission first defined ‘‘key
employee’’ and ‘‘primary management
official’’ in April of 1992, early in its
existence. As mandated by IGRA,
applicants for key employee and
primary management official positions
are subject to a background
investigation as a condition of licensure.
In 2009, the Commission expanded
these definitions to permit tribes to
designate other persons as key
employees or primary management
officials (74 FR 36926). The FBI, U.S.
Department of Justice, took issue with
this expansion, denying the processing
of CHRI for the expanded positions’
background investigations. This final
rule rectifies this issue in part 502, as it
now limits tribal designations to ‘‘[a]ny
other employee of the gaming enterprise
as documented by the tribe as a key
employee’’ and ‘‘[a]ny other employed
management official of the gaming
enterprise documented by the tribe as a
primary management official.’’
Background investigation and
licensing regulations for key employees
and primary management officials were
initially issued by the Commission in
January 1993 (58 FR 5802–01) in parts
556 and 558, respectively. The
Commission updated these regulations
in 2013 to streamline the submission of
documents; to ensure that two
notifications are submitted to the
Commission in compliance with IGRA;
and to clarify the regulations regarding
the issuance of temporary and
permanent gaming licenses (78 FR
5276–01). This final rule modernizes
retention requirements for background
investigations and licensing
applications; vests revocation hearing
rights upon license issuance as well as
in accordance with tribal law,
regulation, or policy; and augments
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revocation decision notification and
submission requirements. The rule also
revises the ‘‘primary management
official’’ and ‘‘key employee’’
definitions and creates new definitions
for ‘‘Gaming Enterprise’’ and ‘‘Tribal
Gaming Regulatory Authority’’ (TGRA).
Importantly, the rule allows tribes to
designate other gaming enterprise
employees as key employees and other
employed gaming enterprise
management officials as primary
management officials, including TGRA
personnel.
B. Development of the Rule
On June 9, 2021, the National Indian
Gaming Commission sent a Notice of
Consultation announcing that the
Agency intended to consult on
numerous topics, including proposed
changes to the key employee and
primary management definitions and
the backgrounding and licensing
regulations. Prior to consultation, the
Commission released proposed
discussion drafts of the regulations for
review. The proposed amendments to
these regulations were intended to:
address the FBI’s concerns regarding the
key employee and primary management
official definitions; include gaming
operation employees with unescorted
access to secured areas as key
employees; combine certain subsections
of the key employee definition; add
general managers and similar positions
to the primary management official
definition; and update licensing
application retention requirements. The
Commission held two virtual
consultation sessions in July of 2021 to
receive tribal input on the possible
changes.
The Commission reviewed all
comments received as part of the
consultation process and addressed
them in the initial proposed rule, issued
on August 10, 2022. Again, the
Commission thoroughly reviewed
comments from the initial proposed
rule, modified its proposal considering
them, and issued a revised proposed
rule on April 14, 2023.
II. Review of Public Comments
The Commission received the
following comments in response to our
Revised Notice of Proposed Rulemaking.
Comment: Four commenters support
the Commission’s removal of the wage
threshold in the key employee
definition, because such threshold: (1) is
not tied to an employee’s duties and
responsibilities, (2) does not enhance
safeguarding gaming, (3) is overly broad,
and (4) creates an unnecessary
administrative burden, including
needless time and expense of licensing
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employees who may not perform
gaming related functions. Two
commenters disagree with the removal,
as it provides authority to background a
greater number of employees whose
responsibilities are reflected in their
compensation.
Response: Given the difference of
opinion between tribes, the Commission
agrees that the wage threshold of
$50,000 per year for a key employee is
not duty, function, or responsibility
related, which may result in overly
broad and unnecessary licensures.
Nonetheless, the Commission retained
‘‘the four most highly compensated
persons’’ by the gaming operation in the
definition if such persons are not
otherwise licensed as a key employee or
a primary management official.
Comment: One commenter welcomes
the clarification in 25 CFR 502.14(a), the
key employee definition, that the
functions outlined apply only to people
who undertake them on behalf of the
gaming operation.
Response: The Commission
appreciates the comment.
Comment: A commenter agrees with
including in the key employee
definition: ‘‘any gaming operation
employee authorized by the gaming
operation for unescorted access to
secured gaming areas designated as
secured gaming areas by the TGRA.’’
Response: The Commission
appreciates the comment.
Comment: One commenter expressed
concern regarding the change in the key
employee definition from ‘‘the four most
highly compensated persons in the
gaming operation’’ to ‘‘the four persons
most highly compensated by the gaming
operation.’’ The commenter believes
that such change may capture
individuals who are paid by the gaming
facility but do not work for the facility
or serve a gaming related function.
Response: The Commission intends
that ‘‘the four persons most highly
compensated by the gaming operation’’
include gaming operation employees.
And, certainly, it would be a rare
instance for these individuals not to
work for the facility or serve a gaming
related function.
Comment: Two commenters support
the inclusion of ‘‘any other employee of
the gaming enterprise as documented by
the tribe as a key employee’’ in the key
employee definition as it enhances risk
management, allowing the addition of
other enterprise employees when
documented.
Response: The Commission
appreciates the comments.
Comment: One commenter objects to
adding custodian of surveillance
systems or surveillance system records
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to the key employee definition, because
surveillance is a tribal regulatory
function and including it within the
definition contradicts the regulatory
body’s independence.
Response: The commenter’s concerns
have no basis since the key employee
definition limits custodians of
surveillance systems or surveillance
system records to only those persons
who perform these functions for the
gaming operation, not a tribal regulatory
body.
Comment: One commenter suggests
revising section (a) of the primary
management definition, 25 CFR
502.19—changing ‘‘any person having
management responsibility for a
management contract’’ to ‘‘any person
having management responsibility
pursuant to a management contract.’’
Response: This is the first time this
recommendation was made. It was not
contained in the Commission’s original
proposal nor raised by the commenter
after the initial 2021 consultation
proposal, 2021 consultations, or the
original 2022 proposed rule.
Consequently, other parties in the
regulated community have not had an
opportunity to comment on the
recommendation. For these reasons, the
Commission rejects the
recommendation.
Comment: Two commenters
expressed concern that 25 CFR
502.19(b) of the primary management
official definition—‘‘[a]ny person who
has authority: (1)[t]o hire and fire
employees of the gaming operation; or
(2) [t]o establish policy for the gaming
operation’’—includes TGRA personnel.
Response: Under NIGC definitions,
TGRAs and their personnel come within
the definition of ‘‘Gaming Enterprise,’’
not ‘‘Gaming Operation.’’ ‘‘Gaming
Enterprise’’ encompasses the entity
through which a tribe regulates gaming,
whereas ‘‘gaming operation’’ is limited
to ‘‘each economic entity that is
licensed by a tribe, operates the games,
receives the revenues, issues the prizes,
and pays the expenses.’’ Therefore, 25
CFR 502.19(b) of the primary
management official definition does not
include TGRA personnel.
Comment: Another commenter is
concerned that one aspect of the
primary management official definition,
25 CFR 502.19(b)(1)—‘‘[a]ny person who
has authority: (1)[t]o hire and fire
employees of the gaming operation’’—is
based on structure instead of function
and mandates licensing any
management position that can hire or
fire any employee regardless of whether
the position has any gaming related
responsibility.
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Response: The Commission disagrees.
Hiring and firing gaming operation
employees constitutes a function, duty,
or responsibility. And it would be the
rare exception rather than the rule for
the person with authority to hire and
fire gaming operation employees not to
have any gaming related responsibility.
Comment: Two commenters
appreciate the inclusion in the primary
management official definition of ‘‘[a]ny
other employed management official of
the gaming enterprise as documented by
the tribe.’’
Response: The Commission values
these comments.
Comment: One commenter supports
the inclusion of the ‘‘Gaming Enterprise
definition.’’
Response: The Commission
appreciates the comment.
Comment: Two commenters strongly
believe that IGRA only intended
licensing requirements pertain to
gaming operation employees, not tribal
regulators. And the commenter is afraid
that ‘‘such an arrangement, wherein
TGRA employees may be required to
hold key employee licenses, would
disrupt key tribal governmental
structures . . . .’’
Response: The commenters
misunderstand this rule. Under it,
TGRA employees are not required to
possess key employee licenses. Only if
a tribe chooses to document TGRA
employees as key employees will they
come within the key employee
definition.
Comment: A commenter contends
that the Gaming Enterprise definition
‘‘conflicts with the requirement that a
[TGRA] serves out its independent and
distinct role separate from the Gaming
Enterprise.’’
Response: The Commission disagrees.
The Gaming Enterprise definition is
meant to encompass the entities
necessary to conduct, regulate, and
secure a tribe’s gaming on Indian lands,
including the TGRA. Such definition,
however, should not interfere with a
TGRA’s independence and distinct role
in regulating a tribe’s gaming.
Comment: One commenter asserts
that it is unclear how the Gaming
Enterprise definition differs from the
Gaming Operation definition.
Response: The definitions are
distinguishable: ‘‘Gaming operation’’ is
defined as ‘‘each economic entity that is
licensed by a tribe, operates the games,
receives the revenues, issues the prizes,
and pays the expenses.’’ Whereas
‘‘Gaming Enterprise’’ ‘‘means the
entities through which a tribe conducts,
regulates, and secures gaming on Indian
lands within such tribe’s jurisdiction
. . . .’’ So, Gaming Enterprise
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comprises more than just gaming
operations, including TGRAs, Security,
and IT entities.
Comment: Two commenters maintain
that the ‘‘Gaming Enterprise’’ definition
is too broad because of its inclusion of
TGRAs and possible inclusion of tribal
governmental entities that secure
gaming through the approval of
contracts.
Response: As stated previously,
‘‘Gaming Enterprise’’ ‘‘means the
entities through which a tribe conducts,
regulates, and secures gaming on Indian
lands within such tribe’s jurisdiction
pursuant to the Indian Gaming
Regulatory Act.’’ In the definition, the
Commission intends to include TGRAs
as well as tribal entities that ensure the
gaming’s risk from loss or protect the
gaming from exposure to danger. The
potential inclusion of governmental
entities that secure gaming through the
approval of contracts was not the
Commission’s intent, but their inclusion
causes no harm nor creates any
obligation on them, unless a tribe
chooses to document certain of their
employees as key employees or primary
management officials.
Comment: One commenter requested
that the ‘‘Gaming Enterprise’’ definition
be modified to mean ‘‘the business
enterprise that operates gaming on
Indian lands within a tribe’s jurisdiction
pursuant to the Indian Gaming
Regulatory Act.’’
Response: As an initial matter, the
commenter’s proposal is quite like the
Commission’s with the exception that
the commenter defines Gaming
Enterprise as a ‘‘business enterprise’’
that ‘‘operates gaming.’’ The purpose of
a definition is to explain a term’s
meaning using other terms that are clear
and/or commonly known. The
Commission’s definition for Gaming
Enterprise does just that, whereas, the
commenter’s definition uses the same
exact terms, defining gaming enterprise
as a business enterprise. Further, the
Commission intends for the definition
to mean more than just the entity that
operates gaming, also incorporating the
entities that regulate and secure gaming
on Indian lands. For these reasons, the
Commission rejects the comment.
Comment: Two commenters support
the definition of ‘‘Tribal Gaming
Regulatory Authority (TGRA).’’
Response: The Commission
appreciates the comments.
Comment: One commenter
recommends striking the term
‘‘independent’’ from the TGRA
definition since the term is not defined
in IGRA or NIGC regulations.
Additionally, TGRA is already defined
in part 547 of NIGC regulations and
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does not contain the term
‘‘independent.’’
Response: The Commission accepts
the comment, ensuring that the
definitions of TGRA correspond in
NIGC regulations parts 502 and 547.
Comment: One commenter generally
supports the changes to part 556.
Response: The Commission
appreciates the comment.
Comment: One commenter finds that
the proposed change to 25 CFR 558.3(c)
is helpful since it clarifies the scope of
duties that a key employee or primary
management official may carry out
during the ninety-day period.
Response: The Commission agrees
and appreciates the comment.
Comment: One commenter suggests a
new change to 25 CFR 558.3(d)(2),
which requires tribes to forward a copy
of its eligibility determination and
notice of results to the Commission
when it does not license a key employee
or primary management official
applicant. The commenter is concerned
that this process may capture applicants
who are not licensed for reasons other
than being found unsuitable and who
may not have an eligibility
determination. Such circumstance
occurs when an applicant withdraws
their application before an eligibility
determination is completed.
Response: This is the first instance of
such a concern being raised. It was not
conveyed to the Commission after the
initial 2021 consultation proposal, the
2021 consultations, or the original 2022
proposed rule. Consequently, other
parties in the regulated community have
not had an opportunity to comment on
the recommendation. For these reasons,
the Commission rejects the
recommendation.
Comment: One commenter is
generally supportive of the proposed
changes to 25 CFR 558.3(e).
Response: The Commission
appreciates the comment.
Comment: Two commenters,
however, strongly oppose the proposed
changes to 25 CFR 558.3(e)—requiring
submission of license revocation
decisions and summaries of evidence
relied upon—as unnecessary and
unduly burdensome. The commenters
claim that IGRA provides the
Commission with a limited role in tribal
licensing decisions, allowing it the
authority to object to their issuance, and
no role in license revocation matters.
Further, the commenters believe the
Commission already collects
information sufficient to achieve the
purpose here, including a detailed
report on the status of licenses an
applicant holds, formerly held, or has
applied for. Additionally, the
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commenters emphasize that revocation
evidence summaries may be extensive
(tens or hundreds of pages long) given
the extent of evidentiary material,
placing temporal and monetary
obligations on TGRAs and the
Commission that are better used
elsewhere.
Response: The Commission disagrees.
IGRA requires the Commission to
ensure there is an adequate system not
only for the background investigations
of key employees and primary
management officials but also continued
oversight of such employees and
officials on an ongoing basis.
Consequently, these individuals’
activities and criminal records require
continuous assessment. Notification of
license revocations are an essential
component of this continuous
assessment. Tribal revocations are not
contained in other background checks,
including FBI CHRI. Such information
further safeguards Indian gaming by
guaranteeing the Commission is aware
of and possesses the most up-to-date
licensing information on key employees
and primary management officials,
which the Commission uses not only for
licensing objections but also to assist
tribes with their background
investigations. As for the submission of
license revocation evidence summaries,
a summary of evidence is not the same
as submission of actual evidence.
Nevertheless, given the concerns of an
undue burden, the proposal to submit
revocation evidence summaries is
removed.
Comment: Two commenters welcome
the proposed change to 25 CFR 558.4(d),
recognizing that a right to a revocation
hearing vests not only upon receipt of
a license but also at such earlier time as
is determined by tribal law, regulation,
and/or policy.
Response: The Commission
appreciates the comments.
Comment: One commenter suggests a
new, additional change to 25 CFR
558.4(e), to ask the Commission to
consider flexibility in the 45-day
deadline to advise the Commission of a
revocation decision.
Response: This is the first time this
recommendation was made. It was not
proposed by the Commission, nor was it
raised by the commenter after the initial
2021 consultation proposal, the 2021
consultations, or the original 2022
proposed rule. Consequently, other
parties in the regulated community have
not had an opportunity to comment on
the recommendation. For these reasons,
the Commission rejects the
recommendation.
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III. Regulatory Matters
Regulatory Flexibility Act
The rule will not have a significant
impact on a substantial number of small
entities as defined under the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.
Moreover, Indian tribes are not
considered to be small entities for the
purposes of the Regulatory Flexibility
Act.
Small Business Regulatory Enforcement
Fairness Act
The rule is not a major rule under 5
U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act.
The rule does not have an effect on the
economy of $100 million or more. The
rule will not cause a major increase in
costs or prices for consumers,
individual industries, Federal, State,
local government agencies or geographic
regions, nor will the proposed rule have
a significant adverse effect on
competition, employment, investment,
productivity, innovation, or the ability
of the enterprises, to compete with
foreign based enterprises.
Unfunded Mandate Reform Act
The Commission, as an independent
regulatory agency, is exempt from
compliance with the Unfunded
Mandates Reform Act, 2 U.S.C. 1502(1);
2 U.S.C. 658(1).
Takings
In accordance with Executive Order
12630, the Commission has determined
that the rule does not have significant
takings implications. A takings
implication assessment is not required.
Civil Justice Reform
In accordance with Executive Order
12988, the Commission has determined
that the rule does not unduly burden the
judicial system and meets the
requirements of sections 3(a) and 3(b)(2)
of the Order.
National Environmental Policy Act
The Commission has determined that
the rule does not constitute a major
federal action significantly affecting the
quality of the human environment and
that no detailed statement is required
pursuant to the National Environmental
Policy Act of 1969, 42 U.S.C. 4321, et
seq.
Paperwork Reduction Act
1. Overview
The Paperwork Reduction Act (PRA),
44 U.S.C. 3501, et seq., provides that an
agency may not conduct or sponsor, and
a person is not required to respond to,
a ‘‘collection of information,’’ unless it
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displays a currently valid OMB control
number. Collections of information
include any request or requirement that
persons obtain, maintain, retain, or
report information to an agency, or
disclose information to a third party or
to the public (44 U.S.C. 3502(3) and 5
CFR 1320.3(c)). This rule contains new
information collection requirements at
25 CFR 558.3(e) that are subject to
review by OMB under the PRA and,
accordingly, have been submitted to
OMB for review under the PRA, Section
3507(d). OMB previously reviewed and
approved information collection relating
to 25 CFR 558.3 and assigned OMB
control number 3141–0003 (expires 6/
30/2023).
Described below are the proposed
rule’s information collection activities
along with estimates of their annual
burdens. These activities, along with
annual burden estimates, do not include
activities that are usual and customary
industry practices. The burden
estimates comprise the time necessary
for Tribes to forward to the NIGC copies
of their license revocation decisions
unless they already submit such to the
NIGC in the usual course of their
business.
The Commission requests comment
on all aspects of this information
collection, including:
a. Whether the collection of
information is necessary for the proper
performance of the functions of the
agency, including whether the
information will have practical utility;
b. The accuracy of the estimate of the
burden for this collection of
information, including the validity of
the methodology and assumptions used;
c. Ways to enhance the quality,
utility, and clarity of the information to
be collected; and
d. How the agency might minimize
the burden of the collection of
information on those required to
respond, including by appropriate
automated, electronic, mechanical, or
other technological collection
techniques or other forms of information
technology, e.g., permitting electronic
submission of response.
2. Summary of Proposed Information
Collection Requirements and Burden
Estimates
Title of Collection: Class II and Class
III/Background Investigation Tribal
Licenses.
OMB Control Number: 3141–0003.
Form Number: None.
Type of Review: New rule with added
collection burden.
Respondents/Affected Public: Tribal
gaming operations of Indian Tribes that
conduct Class II and/or Class III gaming
VerDate Sep<11>2014
17:10 Aug 14, 2023
Jkt 259001
under the Indian Gaming Regulatory
Act.
Respondent’s Obligation: Mandatory.
Frequency of Collection: On occasion.
The new rule proposed under 25 CFR
558.3(e) will create the following
estimated burdens:
Total Estimated Number of Annual
Responses: 100.
Estimated Completion Time per
Response: 1 hour.
Total Estimated Number of Annual
Burden Hours: 100 hours.
Total Estimated Annual Non-Hour
Burden Cost: None.
3. Written Comments or Additional
Information
Written comments and suggestions on
the information collection requirements
should be submitted by September 14,
2023. Submit comments directly to
OMB’s Office of Information and
Regulatory Affairs, Attn: Policy Analyst/
Desk Officer for the National Indian
Gaming Commission. Comments also
may be emailed to OIRA_Submission@
omb.eop.gov, by including reference to
‘‘NIGC PRA Renewals’’ in the subject
line.
To request additional information
about this ICR, contact Tim Osumi,
Privacy & Records Information Manager,
NIGC Information Management Program
by email at tim.osumi@nigc.gov or by
telephone at (202) 264–0676.
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’s consultation policy
specifies that it will consult with tribes
on Commission Action 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
PO 00000
Frm 00026
Fmt 4700
Sfmt 4700
changes to the key employee and
primary management official regulatory
definitions as well as the background
and licensing regulations. Consultations
were held on July 27 and 28, 2021. A
proposed rule was issued on August 10,
2022, and a revised proposed rule was
issued on April 14, 2023.
List of Subjects in 25 CFR Parts 502,
556, and 558
Gambling, Indian lands.
Therefore, for reasons stated in the
preamble, 25 CFR parts 502, 556, and
558 are amended as follows:
PART 502—DEFINITIONS OF THIS
CHAPTER
1. The authority citation for part 502
continues to read as follows:
■
Authority: 25 U.S.C. 2701 et seq.
■
2. Revise § 502.14 to read as follows:
§ 502.14
Key employee.
Key employee means:
(a) Any person who performs one or
more of the following functions for the
gaming operation:
(1) Bingo caller;
(2) Counting room supervisor;
(3) Chief of security;
(4) Floor manager;
(5) Pit boss;
(6) Dealer;
(7) Croupier;
(8) Approver of credit;
(9) Custodian of gaming systems as
defined in 25 CFR 547.2 and similar
class III systems, gaming cash or gaming
cash equivalents, gaming supplies or
gaming system records;
(10) Custodian of surveillance systems
or surveillance system records.
(b) Any gaming operation employee
authorized by the gaming operation for
unescorted access to secured gaming
areas designated as secured gaming
areas by the TGRA;
(c) If not otherwise licensed as a key
employee or primary management
official, the four persons most highly
compensated by the gaming operation;
(d) Any other employee of the gaming
enterprise as documented by the tribe as
a key employee.
■ 3. Revise § 502.19 to read as follows:
§ 502.19
Primary management official.
Primary management official means:
(a) Any person having management
responsibility for a management
contract;
(b) Any person who has authority:
(1) To hire and fire employees of the
gaming operation; or
(2) To establish policy for the gaming
operation.
E:\FR\FM\15AUR1.SGM
15AUR1
Federal Register / Vol. 88, No. 156 / Tuesday, August 15, 2023 / Rules and Regulations
(c) The chief financial officer or a
position with duties similar to a chief
financial officer.
(d) The general manager or a position
with duties similar to a general
manager.
(e) Any other employed management
official of the gaming enterprise as
documented by the Tribe as a primary
management official.
4. Add §§ 502.25 and 502.26 to read
as follows:
■
§ 502.25
Gaming Enterprise.
Gaming Enterprise means the entities
through which Tribe conducts,
regulates, and secures gaming on Indian
lands within such tribe’s jurisdiction
pursuant to the Indian Gaming
Regulatory Act.
§ 502.26 Tribal Gaming Regulatory
Authority (TGRA).
Tribal Gaming Regulatory Authority
(TGRA) means the entity authorized by
Tribal law to regulate gaming conducted
pursuant to the Indian Gaming
Regulatory Act.
PART 556—BACKGROUND
INVESTIGATIONS FOR PRIMARY
MANAGEMENT OFFICIALS AND KEY
EMPLOYEES
5. The authority citation for part 556
continues to read as follows:
■
Authority: 25 U.S.C. 2706, 2710, 2712.
6. Amend § 556.4 by revising the
introductory text to read as follows:
■
§ 556.4
Background investigations.
A Tribe shall perform a background
investigation for each primary
management official and for each key
employee of the gaming enterprise.
*
*
*
*
*
7. Amend § 556.6 by revising
paragraph (a) to read as follows:
■
§ 556.6
Report to the Commission.
(a) When a Tribe licenses a primary
management official or a key employee,
the Tribe shall maintain the information
listed under § 556.4(a)(1) through (14).
*
*
*
*
*
ddrumheller on DSK120RN23PROD with RULES1
■
8. Revise § 556.8 to read as follows:
§ 556.8
Compliance with this part.
All tribal gaming ordinances and
ordinance amendments approved by the
Chair prior to September 14, 2023 do
not need to be amended to comply with
this part. All future ordinance
submissions, however, must comply.
VerDate Sep<11>2014
17:10 Aug 14, 2023
Jkt 259001
PART 558—GAMING LICENSES FOR
KEY EMPLOYEES AND PRIMARY
MANAGEMENT OFFICIALS
9. The authority citation for part 558
continues to read as follows:
■
Authority: 25 U.S.C. 2706, 2710, 2712.
■
10. Revise § 558.3 to read as follows:
§ 558.3 Notification to NIGC of license
decisions and retention obligations.
(a) After a tribe has provided a notice
of results of the background check to the
Commission, a tribe may license a
primary management official or key
employee.
(b) Within 30 days after the issuance
of the license, a tribe shall notify the
Commission of its issuance.
(c) A key employee or primary
management official who does not have
a license after ninety (90) days shall not
be permitted to perform the duties,
functions, and/or responsibilities of a
key employee or primary management
official until so licensed.
(d) If a tribe does not license an
applicant—
(1) The tribe shall notify the
Commission; and
(2) Shall forward copies of its
eligibility determination and notice of
results, under § 556.6(b)(2) of this
chapter, to the Commission for
inclusion in the Indian Gaming
Individuals Record System.
(e) If a tribe revokes a key employee
or primary management official’s
license—
(1) The tribe shall notify the
Commission; and
(2) Shall forward copies of its license
revocation decision for inclusion in the
Indian Gaming Individuals Record
System.
(f) A tribe shall retain the following
for inspection by the Chair or their
designee for no less than three years
from the date of termination of
employment:
(1) The information listed under
§ 556.4(a)(1) through (14) of this
chapter;
(2) Investigative reports, as defined in
§ 556.6(b) of this chapter;
(3) Eligibility determinations, as
defined in § 556.5 of this chapter;
(4) Privacy Act notice, as defined in
§ 556.2 of this chapter; and
(5) False Statement notice, as defined
in § 556.3 of this chapter.
■ 11. Revise § 558.4 to read as follows:
§ 558.4 Notice of information impacting
eligibility and licensee’s right to a hearing.
(a) If, after the issuance of a gaming
license pursuant to § 558.3, the
Commission receives reliable
PO 00000
Frm 00027
Fmt 4700
Sfmt 4700
55371
information indicating that a key
employee or a primary management
official is not eligible for a license under
§ 556.5 of this chapter, the Commission
shall notify the issuing tribe of the
information.
(b) Upon receipt of such notification
under paragraph (a) of this section, a
tribe shall immediately suspend the
license and shall provide the licensee
with written notice of suspension and
proposed revocation.
(c) A tribe shall notify the licensee of
a time and a place for a hearing on the
proposed revocation of a license.
(d) The right to a revocation hearing
shall vest upon receipt of a license or at
such earlier time as is determined by
tribal law, regulation, and/or policy.
(e) After a revocation hearing, a tribe
shall decide to revoke or to reinstate a
gaming license. A tribe shall notify the
Commission of its decision within 45
days of receiving notification from the
Commission pursuant to paragraph (a)
of this section.
■ 12. Revise § 558.6 to read as follows:
§ 558.6
Compliance with this part.
All tribal gaming ordinances and
ordinance amendments that have been
approved by the Chair prior to
September 14, 2023, and that reference
this part do not need to be amended to
comply with this section. All future
ordinance submissions, however, must
comply.
Edward Simermeyer,
Chairman.
Jean Hovland,
Vice Chair.
[FR Doc. 2023–17455 Filed 8–14–23; 8:45 am]
BILLING CODE 7565–01–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG–2023–0648]
RIN 1625–AA00
Safety Zone; Ohio River, Mile Markers
46 to 46.5, St. Albans, WV
Coast Guard, DHS.
Temporary final rule.
AGENCY:
ACTION:
The Coast Guard is
establishing a temporary safety zone for
the City of Nitro Labor Day Fireworks
Display occurring on September 3, 2023,
on the Kanawha River, Nitro, WV. The
safety zone will cover all navigable
waters between mile marker 46 and 46.5
SUMMARY:
E:\FR\FM\15AUR1.SGM
15AUR1
]]>Agencies
[Federal Register Volume 88, Number 156 (Tuesday, August 15, 2023)]
[Rules and Regulations]
[Pages 55366-55371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17455]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
25 CFR Parts 502, 556, and 558
RIN 3141-AA32
Definitions; Background Investigation for Primary Management
Officials and Key Employees; Gaming Licenses for Primary Management
Officials and Key Employees
AGENCY: National Indian Gaming Commission, Department of the Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In April 2023, the Commission issued a revised proposed rule
refining proposed changes to the ``primary management official'' and
``key employee'' definitions as well as the newly proposed definitions
for ``Gaming Enterprise'' and ``Tribal Gaming Regulatory Authority''
(TGRA). The revised proposal, like the 2022 original, also proposed:
modernizing retention requirements for background investigations and
licensing applications; vesting revocation hearing rights upon license
issuance as well as in accordance with tribal law, regulation, or
policy; and augmenting revocation decision notification and submission
requirements. After closely considering comments received, this final
rule permits tribes to designate other gaming enterprise employees as
key employees and other employed gaming enterprise management officials
as primary management officials, including TGRA personnel. These
optional designations occur by any documentary means. Further, the key
employee definition no longer sets forth a wage threshold but includes
in the definition a gaming operation's four most highly compensated
persons. And the terms ``independent'' and ``governmental'' have been
struck from the TGRA definition, aligning it with a corresponding
definition in NIGC regulations, part 547. Lastly, license revocation
decisions only require notifying the Commission of the revocation along
with a copy of the revocation decision.
DATES: Effective September 14, 2023.
FOR FURTHER INFORMATION CONTACT: Jo-Ann Shyloski, National Indian
Gaming Commission, 1849 C Street NW, MS 161, Washington, DC 20240.
Telephone: (202) 632-7003. Email: [email protected]. Fax: (202)
632-7066.
SUPPLEMENTARY INFORMATION:
[[Page 55367]]
I. Background and Development of the Rule
A. 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 established the National Indian Gaming Commission (``NIGC'' or
``Commission'') and set out a comprehensive framework for the
regulation of gaming on Indian lands. IGRA requires that tribal gaming
ordinances provide a system for: background investigations of ``primary
management officials and key employees of the gaming enterprise;''
tribal licenses for them; a suitability standard to assess whether they
pose a threat to gaming and are not eligible for employment; and
notices of background check results to the Commission before the
issuance of licenses.
The Commission first defined ``key employee'' and ``primary
management official'' in April of 1992, early in its existence. As
mandated by IGRA, applicants for key employee and primary management
official positions are subject to a background investigation as a
condition of licensure. In 2009, the Commission expanded these
definitions to permit tribes to designate other persons as key
employees or primary management officials (74 FR 36926). The FBI, U.S.
Department of Justice, took issue with this expansion, denying the
processing of CHRI for the expanded positions' background
investigations. This final rule rectifies this issue in part 502, as it
now limits tribal designations to ``[a]ny other employee of the gaming
enterprise as documented by the tribe as a key employee'' and ``[a]ny
other employed management official of the gaming enterprise documented
by the tribe as a primary management official.''
Background investigation and licensing regulations for key
employees and primary management officials were initially issued by the
Commission in January 1993 (58 FR 5802-01) in parts 556 and 558,
respectively. The Commission updated these regulations in 2013 to
streamline the submission of documents; to ensure that two
notifications are submitted to the Commission in compliance with IGRA;
and to clarify the regulations regarding the issuance of temporary and
permanent gaming licenses (78 FR 5276-01). This final rule modernizes
retention requirements for background investigations and licensing
applications; vests revocation hearing rights upon license issuance as
well as in accordance with tribal law, regulation, or policy; and
augments revocation decision notification and submission requirements.
The rule also revises the ``primary management official'' and ``key
employee'' definitions and creates new definitions for ``Gaming
Enterprise'' and ``Tribal Gaming Regulatory Authority'' (TGRA).
Importantly, the rule allows tribes to designate other gaming
enterprise employees as key employees and other employed gaming
enterprise management officials as primary management officials,
including TGRA personnel.
B. Development of the Rule
On June 9, 2021, the National Indian Gaming Commission sent a
Notice of Consultation announcing that the Agency intended to consult
on numerous topics, including proposed changes to the key employee and
primary management definitions and the backgrounding and licensing
regulations. Prior to consultation, the Commission released proposed
discussion drafts of the regulations for review. The proposed
amendments to these regulations were intended to: address the FBI's
concerns regarding the key employee and primary management official
definitions; include gaming operation employees with unescorted access
to secured areas as key employees; combine certain subsections of the
key employee definition; add general managers and similar positions to
the primary management official definition; and update licensing
application retention requirements. The Commission held two virtual
consultation sessions in July of 2021 to receive tribal input on the
possible changes.
The Commission reviewed all comments received as part of the
consultation process and addressed them in the initial proposed rule,
issued on August 10, 2022. Again, the Commission thoroughly reviewed
comments from the initial proposed rule, modified its proposal
considering them, and issued a revised proposed rule on April 14, 2023.
II. Review of Public Comments
The Commission received the following comments in response to our
Revised Notice of Proposed Rulemaking.
Comment: Four commenters support the Commission's removal of the
wage threshold in the key employee definition, because such threshold:
(1) is not tied to an employee's duties and responsibilities, (2) does
not enhance safeguarding gaming, (3) is overly broad, and (4) creates
an unnecessary administrative burden, including needless time and
expense of licensing employees who may not perform gaming related
functions. Two commenters disagree with the removal, as it provides
authority to background a greater number of employees whose
responsibilities are reflected in their compensation.
Response: Given the difference of opinion between tribes, the
Commission agrees that the wage threshold of $50,000 per year for a key
employee is not duty, function, or responsibility related, which may
result in overly broad and unnecessary licensures. Nonetheless, the
Commission retained ``the four most highly compensated persons'' by the
gaming operation in the definition if such persons are not otherwise
licensed as a key employee or a primary management official.
Comment: One commenter welcomes the clarification in 25 CFR
502.14(a), the key employee definition, that the functions outlined
apply only to people who undertake them on behalf of the gaming
operation.
Response: The Commission appreciates the comment.
Comment: A commenter agrees with including in the key employee
definition: ``any gaming operation employee authorized by the gaming
operation for unescorted access to secured gaming areas designated as
secured gaming areas by the TGRA.''
Response: The Commission appreciates the comment.
Comment: One commenter expressed concern regarding the change in
the key employee definition from ``the four most highly compensated
persons in the gaming operation'' to ``the four persons most highly
compensated by the gaming operation.'' The commenter believes that such
change may capture individuals who are paid by the gaming facility but
do not work for the facility or serve a gaming related function.
Response: The Commission intends that ``the four persons most
highly compensated by the gaming operation'' include gaming operation
employees. And, certainly, it would be a rare instance for these
individuals not to work for the facility or serve a gaming related
function.
Comment: Two commenters support the inclusion of ``any other
employee of the gaming enterprise as documented by the tribe as a key
employee'' in the key employee definition as it enhances risk
management, allowing the addition of other enterprise employees when
documented.
Response: The Commission appreciates the comments.
Comment: One commenter objects to adding custodian of surveillance
systems or surveillance system records
[[Page 55368]]
to the key employee definition, because surveillance is a tribal
regulatory function and including it within the definition contradicts
the regulatory body's independence.
Response: The commenter's concerns have no basis since the key
employee definition limits custodians of surveillance systems or
surveillance system records to only those persons who perform these
functions for the gaming operation, not a tribal regulatory body.
Comment: One commenter suggests revising section (a) of the primary
management definition, 25 CFR 502.19--changing ``any person having
management responsibility for a management contract'' to ``any person
having management responsibility pursuant to a management contract.''
Response: This is the first time this recommendation was made. It
was not contained in the Commission's original proposal nor raised by
the commenter after the initial 2021 consultation proposal, 2021
consultations, or the original 2022 proposed rule. Consequently, other
parties in the regulated community have not had an opportunity to
comment on the recommendation. For these reasons, the Commission
rejects the recommendation.
Comment: Two commenters expressed concern that 25 CFR 502.19(b) of
the primary management official definition--``[a]ny person who has
authority: (1)[t]o hire and fire employees of the gaming operation; or
(2) [t]o establish policy for the gaming operation''--includes TGRA
personnel.
Response: Under NIGC definitions, TGRAs and their personnel come
within the definition of ``Gaming Enterprise,'' not ``Gaming
Operation.'' ``Gaming Enterprise'' encompasses the entity through which
a tribe regulates gaming, whereas ``gaming operation'' is limited to
``each economic entity that is licensed by a tribe, operates the games,
receives the revenues, issues the prizes, and pays the expenses.''
Therefore, 25 CFR 502.19(b) of the primary management official
definition does not include TGRA personnel.
Comment: Another commenter is concerned that one aspect of the
primary management official definition, 25 CFR 502.19(b)(1)--``[a]ny
person who has authority: (1)[t]o hire and fire employees of the gaming
operation''--is based on structure instead of function and mandates
licensing any management position that can hire or fire any employee
regardless of whether the position has any gaming related
responsibility.
Response: The Commission disagrees. Hiring and firing gaming
operation employees constitutes a function, duty, or responsibility.
And it would be the rare exception rather than the rule for the person
with authority to hire and fire gaming operation employees not to have
any gaming related responsibility.
Comment: Two commenters appreciate the inclusion in the primary
management official definition of ``[a]ny other employed management
official of the gaming enterprise as documented by the tribe.''
Response: The Commission values these comments.
Comment: One commenter supports the inclusion of the ``Gaming
Enterprise definition.''
Response: The Commission appreciates the comment.
Comment: Two commenters strongly believe that IGRA only intended
licensing requirements pertain to gaming operation employees, not
tribal regulators. And the commenter is afraid that ``such an
arrangement, wherein TGRA employees may be required to hold key
employee licenses, would disrupt key tribal governmental structures . .
. .''
Response: The commenters misunderstand this rule. Under it, TGRA
employees are not required to possess key employee licenses. Only if a
tribe chooses to document TGRA employees as key employees will they
come within the key employee definition.
Comment: A commenter contends that the Gaming Enterprise definition
``conflicts with the requirement that a [TGRA] serves out its
independent and distinct role separate from the Gaming Enterprise.''
Response: The Commission disagrees. The Gaming Enterprise
definition is meant to encompass the entities necessary to conduct,
regulate, and secure a tribe's gaming on Indian lands, including the
TGRA. Such definition, however, should not interfere with a TGRA's
independence and distinct role in regulating a tribe's gaming.
Comment: One commenter asserts that it is unclear how the Gaming
Enterprise definition differs from the Gaming Operation definition.
Response: The definitions are distinguishable: ``Gaming operation''
is defined as ``each economic entity that is licensed by a tribe,
operates the games, receives the revenues, issues the prizes, and pays
the expenses.'' Whereas ``Gaming Enterprise'' ``means the entities
through which a tribe conducts, regulates, and secures gaming on Indian
lands within such tribe's jurisdiction . . . .'' So, Gaming Enterprise
comprises more than just gaming operations, including TGRAs, Security,
and IT entities.
Comment: Two commenters maintain that the ``Gaming Enterprise''
definition is too broad because of its inclusion of TGRAs and possible
inclusion of tribal governmental entities that secure gaming through
the approval of contracts.
Response: As stated previously, ``Gaming Enterprise'' ``means the
entities through which a tribe conducts, regulates, and secures gaming
on Indian lands within such tribe's jurisdiction pursuant to the Indian
Gaming Regulatory Act.'' In the definition, the Commission intends to
include TGRAs as well as tribal entities that ensure the gaming's risk
from loss or protect the gaming from exposure to danger. The potential
inclusion of governmental entities that secure gaming through the
approval of contracts was not the Commission's intent, but their
inclusion causes no harm nor creates any obligation on them, unless a
tribe chooses to document certain of their employees as key employees
or primary management officials.
Comment: One commenter requested that the ``Gaming Enterprise''
definition be modified to mean ``the business enterprise that operates
gaming on Indian lands within a tribe's jurisdiction pursuant to the
Indian Gaming Regulatory Act.''
Response: As an initial matter, the commenter's proposal is quite
like the Commission's with the exception that the commenter defines
Gaming Enterprise as a ``business enterprise'' that ``operates
gaming.'' The purpose of a definition is to explain a term's meaning
using other terms that are clear and/or commonly known. The
Commission's definition for Gaming Enterprise does just that, whereas,
the commenter's definition uses the same exact terms, defining gaming
enterprise as a business enterprise. Further, the Commission intends
for the definition to mean more than just the entity that operates
gaming, also incorporating the entities that regulate and secure gaming
on Indian lands. For these reasons, the Commission rejects the comment.
Comment: Two commenters support the definition of ``Tribal Gaming
Regulatory Authority (TGRA).''
Response: The Commission appreciates the comments.
Comment: One commenter recommends striking the term ``independent''
from the TGRA definition since the term is not defined in IGRA or NIGC
regulations. Additionally, TGRA is already defined in part 547 of NIGC
regulations and
[[Page 55369]]
does not contain the term ``independent.''
Response: The Commission accepts the comment, ensuring that the
definitions of TGRA correspond in NIGC regulations parts 502 and 547.
Comment: One commenter generally supports the changes to part 556.
Response: The Commission appreciates the comment.
Comment: One commenter finds that the proposed change to 25 CFR
558.3(c) is helpful since it clarifies the scope of duties that a key
employee or primary management official may carry out during the
ninety-day period.
Response: The Commission agrees and appreciates the comment.
Comment: One commenter suggests a new change to 25 CFR 558.3(d)(2),
which requires tribes to forward a copy of its eligibility
determination and notice of results to the Commission when it does not
license a key employee or primary management official applicant. The
commenter is concerned that this process may capture applicants who are
not licensed for reasons other than being found unsuitable and who may
not have an eligibility determination. Such circumstance occurs when an
applicant withdraws their application before an eligibility
determination is completed.
Response: This is the first instance of such a concern being
raised. It was not conveyed to the Commission after the initial 2021
consultation proposal, the 2021 consultations, or the original 2022
proposed rule. Consequently, other parties in the regulated community
have not had an opportunity to comment on the recommendation. For these
reasons, the Commission rejects the recommendation.
Comment: One commenter is generally supportive of the proposed
changes to 25 CFR 558.3(e).
Response: The Commission appreciates the comment.
Comment: Two commenters, however, strongly oppose the proposed
changes to 25 CFR 558.3(e)--requiring submission of license revocation
decisions and summaries of evidence relied upon--as unnecessary and
unduly burdensome. The commenters claim that IGRA provides the
Commission with a limited role in tribal licensing decisions, allowing
it the authority to object to their issuance, and no role in license
revocation matters. Further, the commenters believe the Commission
already collects information sufficient to achieve the purpose here,
including a detailed report on the status of licenses an applicant
holds, formerly held, or has applied for. Additionally, the commenters
emphasize that revocation evidence summaries may be extensive (tens or
hundreds of pages long) given the extent of evidentiary material,
placing temporal and monetary obligations on TGRAs and the Commission
that are better used elsewhere.
Response: The Commission disagrees. IGRA requires the Commission to
ensure there is an adequate system not only for the background
investigations of key employees and primary management officials but
also continued oversight of such employees and officials on an ongoing
basis. Consequently, these individuals' activities and criminal records
require continuous assessment. Notification of license revocations are
an essential component of this continuous assessment. Tribal
revocations are not contained in other background checks, including FBI
CHRI. Such information further safeguards Indian gaming by guaranteeing
the Commission is aware of and possesses the most up-to-date licensing
information on key employees and primary management officials, which
the Commission uses not only for licensing objections but also to
assist tribes with their background investigations. As for the
submission of license revocation evidence summaries, a summary of
evidence is not the same as submission of actual evidence.
Nevertheless, given the concerns of an undue burden, the proposal to
submit revocation evidence summaries is removed.
Comment: Two commenters welcome the proposed change to 25 CFR
558.4(d), recognizing that a right to a revocation hearing vests not
only upon receipt of a license but also at such earlier time as is
determined by tribal law, regulation, and/or policy.
Response: The Commission appreciates the comments.
Comment: One commenter suggests a new, additional change to 25 CFR
558.4(e), to ask the Commission to consider flexibility in the 45-day
deadline to advise the Commission of a revocation decision.
Response: This is the first time this recommendation was made. It
was not proposed by the Commission, nor was it raised by the commenter
after the initial 2021 consultation proposal, the 2021 consultations,
or the original 2022 proposed rule. Consequently, other parties in the
regulated community have not had an opportunity to comment on the
recommendation. For these reasons, the Commission rejects the
recommendation.
III. Regulatory Matters
Regulatory Flexibility Act
The rule will not have a significant impact on a substantial number
of small entities as defined under the Regulatory Flexibility Act, 5
U.S.C. 601, et seq. Moreover, Indian tribes are not considered to be
small entities for the purposes of the Regulatory Flexibility Act.
Small Business Regulatory Enforcement Fairness Act
The rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. The rule does not have an
effect on the economy of $100 million or more. The rule will not cause
a major increase in costs or prices for consumers, individual
industries, Federal, State, local government agencies or geographic
regions, nor will the proposed rule have a significant adverse effect
on competition, employment, investment, productivity, innovation, or
the ability of the enterprises, to compete with foreign based
enterprises.
Unfunded Mandate Reform Act
The Commission, as an independent regulatory agency, is exempt from
compliance with the Unfunded Mandates Reform Act, 2 U.S.C. 1502(1); 2
U.S.C. 658(1).
Takings
In accordance with Executive Order 12630, the Commission has
determined that the rule does not have significant takings
implications. A takings implication assessment is not required.
Civil Justice Reform
In accordance with Executive Order 12988, the Commission has
determined that the rule does not unduly burden the judicial system and
meets the requirements of sections 3(a) and 3(b)(2) of the Order.
National Environmental Policy Act
The Commission has determined that the rule does not constitute a
major federal action significantly affecting the quality of the human
environment and that no detailed statement is required pursuant to the
National Environmental Policy Act of 1969, 42 U.S.C. 4321, et seq.
Paperwork Reduction Act
1. Overview
The Paperwork Reduction Act (PRA), 44 U.S.C. 3501, et seq.,
provides that an agency may not conduct or sponsor, and a person is not
required to respond to, a ``collection of information,'' unless it
[[Page 55370]]
displays a currently valid OMB control number. Collections of
information include any request or requirement that persons obtain,
maintain, retain, or report information to an agency, or disclose
information to a third party or to the public (44 U.S.C. 3502(3) and 5
CFR 1320.3(c)). This rule contains new information collection
requirements at 25 CFR 558.3(e) that are subject to review by OMB under
the PRA and, accordingly, have been submitted to OMB for review under
the PRA, Section 3507(d). OMB previously reviewed and approved
information collection relating to 25 CFR 558.3 and assigned OMB
control number 3141-0003 (expires 6/30/2023).
Described below are the proposed rule's information collection
activities along with estimates of their annual burdens. These
activities, along with annual burden estimates, do not include
activities that are usual and customary industry practices. The burden
estimates comprise the time necessary for Tribes to forward to the NIGC
copies of their license revocation decisions unless they already submit
such to the NIGC in the usual course of their business.
The Commission requests comment on all aspects of this information
collection, including:
a. Whether the collection of information is necessary for the
proper performance of the functions of the agency, including whether
the information will have practical utility;
b. The accuracy of the estimate of the burden for this collection
of information, including the validity of the methodology and
assumptions used;
c. Ways to enhance the quality, utility, and clarity of the
information to be collected; and
d. How the agency might minimize the burden of the collection of
information on those required to respond, including by appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of response.
2. Summary of Proposed Information Collection Requirements and Burden
Estimates
Title of Collection: Class II and Class III/Background
Investigation Tribal Licenses.
OMB Control Number: 3141-0003.
Form Number: None.
Type of Review: New rule with added collection burden.
Respondents/Affected Public: Tribal gaming operations of Indian
Tribes that conduct Class II and/or Class III gaming under the Indian
Gaming Regulatory Act.
Respondent's Obligation: Mandatory.
Frequency of Collection: On occasion.
The new rule proposed under 25 CFR 558.3(e) will create the
following estimated burdens:
Total Estimated Number of Annual Responses: 100.
Estimated Completion Time per Response: 1 hour.
Total Estimated Number of Annual Burden Hours: 100 hours.
Total Estimated Annual Non-Hour Burden Cost: None.
3. Written Comments or Additional Information
Written comments and suggestions on the information collection
requirements should be submitted by September 14, 2023. Submit comments
directly to OMB's Office of Information and Regulatory Affairs, Attn:
Policy Analyst/Desk Officer for the National Indian Gaming Commission.
Comments also may be emailed to [email protected], by
including reference to ``NIGC PRA Renewals'' in the subject line.
To request additional information about this ICR, contact Tim
Osumi, Privacy & Records Information Manager, NIGC Information
Management Program by email at [email protected] or by telephone at
(202) 264-0676.
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's consultation policy
specifies that it will consult with tribes on Commission Action 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 key employee and primary management official regulatory
definitions as well as the background and licensing regulations.
Consultations were held on July 27 and 28, 2021. A proposed rule was
issued on August 10, 2022, and a revised proposed rule was issued on
April 14, 2023.
List of Subjects in 25 CFR Parts 502, 556, and 558
Gambling, Indian lands.
Therefore, for reasons stated in the preamble, 25 CFR parts 502,
556, and 558 are amended as follows:
PART 502--DEFINITIONS OF THIS CHAPTER
0
1. The authority citation for part 502 continues to read as follows:
Authority: 25 U.S.C. 2701 et seq.
0
2. Revise Sec. 502.14 to read as follows:
Sec. 502.14 Key employee.
Key employee means:
(a) Any person who performs one or more of the following functions
for the gaming operation:
(1) Bingo caller;
(2) Counting room supervisor;
(3) Chief of security;
(4) Floor manager;
(5) Pit boss;
(6) Dealer;
(7) Croupier;
(8) Approver of credit;
(9) Custodian of gaming systems as defined in 25 CFR 547.2 and
similar class III systems, gaming cash or gaming cash equivalents,
gaming supplies or gaming system records;
(10) Custodian of surveillance systems or surveillance system
records.
(b) Any gaming operation employee authorized by the gaming
operation for unescorted access to secured gaming areas designated as
secured gaming areas by the TGRA;
(c) If not otherwise licensed as a key employee or primary
management official, the four persons most highly compensated by the
gaming operation;
(d) Any other employee of the gaming enterprise as documented by
the tribe as a key employee.
0
3. Revise Sec. 502.19 to read as follows:
Sec. 502.19 Primary management official.
Primary management official means:
(a) Any person having management responsibility for a management
contract;
(b) Any person who has authority:
(1) To hire and fire employees of the gaming operation; or
(2) To establish policy for the gaming operation.
[[Page 55371]]
(c) The chief financial officer or a position with duties similar
to a chief financial officer.
(d) The general manager or a position with duties similar to a
general manager.
(e) Any other employed management official of the gaming enterprise
as documented by the Tribe as a primary management official.
0
4. Add Sec. Sec. 502.25 and 502.26 to read as follows:
Sec. 502.25 Gaming Enterprise.
Gaming Enterprise means the entities through which Tribe conducts,
regulates, and secures gaming on Indian lands within such tribe's
jurisdiction pursuant to the Indian Gaming Regulatory Act.
Sec. 502.26 Tribal Gaming Regulatory Authority (TGRA).
Tribal Gaming Regulatory Authority (TGRA) means the entity
authorized by Tribal law to regulate gaming conducted pursuant to the
Indian Gaming Regulatory Act.
PART 556--BACKGROUND INVESTIGATIONS FOR PRIMARY MANAGEMENT
OFFICIALS AND KEY EMPLOYEES
0
5. The authority citation for part 556 continues to read as follows:
Authority: 25 U.S.C. 2706, 2710, 2712.
0
6. Amend Sec. 556.4 by revising the introductory text to read as
follows:
Sec. 556.4 Background investigations.
A Tribe shall perform a background investigation for each primary
management official and for each key employee of the gaming enterprise.
* * * * *
0
7. Amend Sec. 556.6 by revising paragraph (a) to read as follows:
Sec. 556.6 Report to the Commission.
(a) When a Tribe licenses a primary management official or a key
employee, the Tribe shall maintain the information listed under Sec.
556.4(a)(1) through (14).
* * * * *
0
8. Revise Sec. 556.8 to read as follows:
Sec. 556.8 Compliance with this part.
All tribal gaming ordinances and ordinance amendments approved by
the Chair prior to September 14, 2023 do not need to be amended to
comply with this part. All future ordinance submissions, however, must
comply.
PART 558--GAMING LICENSES FOR KEY EMPLOYEES AND PRIMARY MANAGEMENT
OFFICIALS
0
9. The authority citation for part 558 continues to read as follows:
Authority: 25 U.S.C. 2706, 2710, 2712.
0
10. Revise Sec. 558.3 to read as follows:
Sec. 558.3 Notification to NIGC of license decisions and retention
obligations.
(a) After a tribe has provided a notice of results of the
background check to the Commission, a tribe may license a primary
management official or key employee.
(b) Within 30 days after the issuance of the license, a tribe shall
notify the Commission of its issuance.
(c) A key employee or primary management official who does not have
a license after ninety (90) days shall not be permitted to perform the
duties, functions, and/or responsibilities of a key employee or primary
management official until so licensed.
(d) If a tribe does not license an applicant--
(1) The tribe shall notify the Commission; and
(2) Shall forward copies of its eligibility determination and
notice of results, under Sec. 556.6(b)(2) of this chapter, to the
Commission for inclusion in the Indian Gaming Individuals Record
System.
(e) If a tribe revokes a key employee or primary management
official's license--
(1) The tribe shall notify the Commission; and
(2) Shall forward copies of its license revocation decision for
inclusion in the Indian Gaming Individuals Record System.
(f) A tribe shall retain the following for inspection by the Chair
or their designee for no less than three years from the date of
termination of employment:
(1) The information listed under Sec. 556.4(a)(1) through (14) of
this chapter;
(2) Investigative reports, as defined in Sec. 556.6(b) of this
chapter;
(3) Eligibility determinations, as defined in Sec. 556.5 of this
chapter;
(4) Privacy Act notice, as defined in Sec. 556.2 of this chapter;
and
(5) False Statement notice, as defined in Sec. 556.3 of this
chapter.
0
11. Revise Sec. 558.4 to read as follows:
Sec. 558.4 Notice of information impacting eligibility and licensee's
right to a hearing.
(a) If, after the issuance of a gaming license pursuant to Sec.
558.3, the Commission receives reliable information indicating that a
key employee or a primary management official is not eligible for a
license under Sec. 556.5 of this chapter, the Commission shall notify
the issuing tribe of the information.
(b) Upon receipt of such notification under paragraph (a) of this
section, a tribe shall immediately suspend the license and shall
provide the licensee with written notice of suspension and proposed
revocation.
(c) A tribe shall notify the licensee of a time and a place for a
hearing on the proposed revocation of a license.
(d) The right to a revocation hearing shall vest upon receipt of a
license or at such earlier time as is determined by tribal law,
regulation, and/or policy.
(e) After a revocation hearing, a tribe shall decide to revoke or
to reinstate a gaming license. A tribe shall notify the Commission of
its decision within 45 days of receiving notification from the
Commission pursuant to paragraph (a) of this section.
0
12. Revise Sec. 558.6 to read as follows:
Sec. 558.6 Compliance with this part.
All tribal gaming ordinances and ordinance amendments that have
been approved by the Chair prior to September 14, 2023, and that
reference this part do not need to be amended to comply with this
section. All future ordinance submissions, however, must comply.
Edward Simermeyer,
Chairman.
Jean Hovland,
Vice Chair.
[FR Doc. 2023-17455 Filed 8-14-23; 8:45 am]
BILLING CODE 7565-01-P
