Regulatory Review Schedule:

 
CONTENT

Federal Register: April 4, 2011 (Volume 76, Number 64)

Proposed Rules

Page 18457-18467

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr04ap11-32

DEPARTMENT OF THE INTERIOR

National Indian Gaming Commission 25 CFR Chapter III

Regulatory Review Schedule; Tribal Consultation

AGENCY: National Indian Gaming Commission.

ACTION: Notice of Regulatory Review Schedule.

SUMMARY: On November 18, 2010, the National Indian Gaming Commission

(NIGC) issued a Notice of Inquiry and Notice of Consultation advising the public that the NIGC was conducting a comprehensive review of all regulations promulgated to implement the Indian Gaming Regulatory Act

(IGRA). The review identified in the Notice of Inquiry and Notice of

Consultation was also prepared in order to submit the NIGC's Semi-

Annual Regulatory Review to the Federal Register in April 2011 as set forth in Executive Order 12866 entitled ``Regulatory Planning and

Review'' and the Regulatory Flexibility Act, 5 U.S.C. 601 et. seq. The

NIGC held eight consultations during January and February 2011 and invited written comments to be submitted by February 12, 2011. Comments received and transcripts of the consultations are available on the NIGC

Web site. The NIGC reviewed all comments received and created this comprehensive regulatory review agenda schedule based on the input received.

DATES: See Consultation Schedule for Review, Section III under

SUPPLEMENTARY INFORMATION below, for a master schedule of dates, locations, and subjects of consultation meetings. See sections IV-VIII under SUPPLEMENTARY INFORMATION below for dates and locations of consultations on particular subjects.

ADDRESSES: Testimony and comments sent by electronic mail or delivered by hand are strongly encouraged. Electronic submissions should be directed to reg.review@nigc.gov. See File Formats and Required

Information for Submitting Comments under SUPPLEMENTARY INFORMATION, section IIC, below, for instructions. Submissions delivered by hand should be brought to the consultations. See Consultation Schedule for

Review, section III under SUPPLEMENTARY INFORMATION below, for a master schedule of dates, locations, and subjects of consultation meetings.

See sections IV-VIII under SUPPLEMENTARY INFORMATION below for dates and locations of consultations on particular subjects. Submissions sent by regular mail should be addressed to Lael Echo-Hawk, Counselor to the

Chair, National Indian Gaming Commission, 1441 L Street, NW., Suite 9100, Washington, DC 20005.

FOR FURTHER INFORMATION CONTACT: Lael Echo-Hawk, National Indian Gaming

Commission, 1441 L Street, NW., Suite 9100, Washington, DC 20005.

Telephone: 202/632-7009; e-mail: reg.review@nigc.gov.

SUPPLEMENTARY INFORMATION:

  1. 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 purposes of IGRA include providing a statutory basis for the operation of gaming by Indian Tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments; ensuring that the Indian tribe is the primary beneficiary of the gaming operation; and declaring that the

    Page 18458

    establishment of independent federal regulatory authority for gaming on

    Indian lands, the establishment of federal standards for gaming on

    Indian lands, and the establishment of a National Indian Gaming

    Commission are necessary to meet congressional concerns regarding gaming and to protect such gaming as a means of generating tribal revenue. 25 U.S.C. 2702.

    The IGRA authorizes the NIGC to promulgate such regulations and guidelines as it deems appropriate to implement the provisions of the

    Act. 25 U.S.C. 2706(b)(10). On November 12, 2010, the Commission issued a Notice of Inquiry (NOI) requesting comment on which of its regulations were most in need of revision, in what order the Commission should review its regulations, and the process NIGC should utilize to make revisions. The Notice of Inquiry was published in the Federal

    Register on November 18, 2010. 75 FR 70680.

    As the Commission previously explained, the regulatory review facilitates effective implementation of IGRA and coincides with

    Executive Order 12866 entitled ``Regulatory Planning and Review'' providing for Federal entities to identify agency statements of regulatory priorities and additional information about the most significant regulatory activities planned for the coming year.

    On January 18, 2011, President Obama issued Executive Order 13563,

    Improving Regulation and Regulatory Review. Executive Order 13563 sets forth the general principle that regulatory systems ``must identify and use the best, most innovative, and least burdensome tools for achieving regulatory ends.'' This Executive Order further provides that agencies tailor ``regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations[.]'' Further, agencies must ``to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt[.]'' In the spirit of this Executive Order and Executive Order 13175 regarding consultation with Indian Tribal Governments, the NIGC provides this comprehensive regulatory review agenda. The agenda is a product of extensive tribal consultation and extensive public comment.

  2. Process for Review

    1. Groups

      Based on both public comments and tribal consultations, the

      Commission has decided to organize its regulatory review into five separate groupings. The Commission will organize its consultations with

      Tribes according to these groupings. The regulations in each group will be reviewed separately from the regulations in the other groups, and specific regulations in each group may proceed through the regulatory review process independently from the other regulations in a particular group. 1. Group 1 will include a review of:

      (a) A Buy Indian Act regulation;

      (b) 25 CFR part 523--Review and Approval of Existing Ordinances or

      Resolutions;

      (c) 25 CFR part 514--Fees;

      (d) 25 CFR part 559--Facility License Notifications, Renewals, and

      Submissions; and

      (e) 25 CFR part 542--Minimum Internal Control Standards for Class

      III Gaming. 2. Group 2 will include a review of:

      (a) 25 CFR part 573--Enforcement; and

      (b) Regulations concerning proceedings before the Commission, including 25 CFR part 519--Service, 25 CFR part 524--Appeals, 25 CFR part 539--Appeals, and 25 CFR part 577--Appeals Before the Commission. 3. Group 3 will include a review of:

      (a) 25 CFR part 543--Minimum Internal Control Standards for Class

      II Gaming; and

      (b) 25 CFR part 547--Minimum Technical Standards for Gaming

      Equipment Used with the Play of Class II Games. 4. Group 4 will include a review of:

      (a) 25 CFR part 556--Background Investigations for Primary

      Management Officials and Key Employees;

      (b) 25 CFR part 558--Gaming Licenses for Key Employees and Primary

      Management Officials;

      (c) 25 CFR part 556--Background Investigations for Primary

      Management Officials and Key Employees, ``Pilot Program.'';

      (d) 25 CFR part 571--Monitoring and Investigations;

      (e) 25 CFR part 531--Collateral Agreements;

      (f) 25 CFR part 537--Background Investigations for Persons or

      Entities With a Financial Interest in, or Having Management

      Responsibility for, a Management Contract; and

      (g) 25 CFR part 502--Definitions. 5. Group 5 will include a review of:

      (a) 25 CFR part 518--Self Regulation of Class II Gaming;

      (b) A Sole Proprietary Interest regulation; and

      (c) 25 CFR part 542, Minimum Internal Control Standards for Class

      III Gaming.

    2. Review Phases

      Each group of regulations will be addressed in the three phases listed below. The purpose of the three phases is to facilitate meaningful consultation with Tribes, consistent with Executive Order 13175, prior to promulgating any revisions, amendments, or new rules.

      While Tribal Advisory Committees (TAC) have been utilized by the NIGC in the past, NIGC received comments from Tribes expressing their view that the TAC process was not a substitute for tribal consultation.

      In response to comments received on the NOI, the Commission has established the tribal consultation schedule below. The NIGC will attempt to provide significant means for tribal input through tribal consultation meetings and broad, transparent opportunities to submit written comments at every phase before the Notice of Final Rule is published. 1. Drafting Phase. Consistent with Executive Order 13175, the

      Commission will endeavor to include Tribes in the drafting phase of any new or amended rule. The purpose of the drafting phase is to ensure tribal participation early in the drafting of any rule with tribal implications. The drafting phase will begin with either a preliminary draft based on previous comments received by NIGC, preliminary proposed amendments to a current regulation, or preliminary proposals provided by Tribes or tribal organizations. The drafting phase will include tribal consultation meetings and an opportunity for the public to submit written comments. Following completion of the drafting phase, the Commission anticipates that generally it will proceed to issuing a

      Notice of Proposed Rulemaking (NPRM) that will be published in the

      Federal Register. 2. Notice of Proposed Rulemaking Phase. The NIGC will draft a NPRM.

      The Commission anticipates that a preamble to a NPRM will summarize comments received during the drafting phase and include a discussion of the substantive provisions of the proposed rule. The Commission anticipates that for any NPRM it will endeavor to provide a public comment period of approximately 60 days and will consult with Tribes during that period on the proposed rule. After the close of the comment period, a Notice of Final Rule will be prepared and published in the

      Federal Register.

      Page 18459

      1. Notice of Final Rule Phase. The Commission will draft a Final

      Rule based on all comments received during the NPRM phase. The preamble to the final rule will summarize comments received and include a discussion of the substantive provisions of the final rule. Generally, the Commission anticipates that final rules will become effective 45 days after publication.

    3. File Formats and Required Information for Submitting Comments

      If submitting by electronic mail: send to reg.review@nigc.gov a message containing the name of the person making the submission, his or her title and organization (if the submission of an organization), mailing address, telephone number, fax number (if any), and e-mail address. The document itself must be sent as an attachment and must be in a single file and in recent, if not current, versions of: (1) Adobe

      Portable Document File (PDF) format (preferred); or (2) Microsoft Word file formats.

      If submitting by print only: anyone who is unable to submit a comment in electronic form should submit an original and two paper copies by hand or by mail to the appropriate address listed above. Use of surface mail is strongly discouraged owing to the uncertainty of timely delivery.

  3. Consultation Schedule for Review

    Subject to future changes, NIGC will hold tribal consultations on the following dates as set forth in more detail below. The Commission has attempted to schedule consultations in every region and to hold those consultations either before or after other events widely attended by tribal officials. The purpose of scheduling consultations in this manner is both to encourage participation of tribal officials and to conserve tribal resources by reducing the amount of travel of participants.

    For additional information on consultation locations and times, please refer to the Web site of the National Indian Gaming Commission, http://www.nigc.gov. Please RSVP at consultation.rsvp@nigc.gov.

    Please note that the Commission intends to post all written comments received during the regulatory review process on the Tribal

    Consultation Web page of the NIGC Web site located at http:// www.nigc.gov.

    Regulation

    Consultation date

    Event

    Location

    group(s)

    Apr. 28, 2011.............. Oklahoma Tribal Gaming Regulators Choctaw Casino Resort, Durant, OK.

    1

    Association Spring Conference.

    May 2, 2011................ Tribal Self-Governance Conference. Spa Resort Casino, Palm Springs,

    1

    CA.

    May 5, 2011................ Southern Gaming Summit & Bingo

    Mississippi Coast Coliseum &

    1

    World Conference.

    Convention Ctr., Biloxi, MS.

    May 16, 2011............... Great Plains/Rocky Mountains/

    Mystic Lake Casino and Resort,

    1, 2

    Midwest Tradeshow & Conference.

    Prior Lake, MN.

    May 20, 2011............... ATNI Mid Year Conference.......... Coeur d'Alene Resort & Casino,

    1, 2

    Plummer, ID.

    June 8, 2011............... Indian Bingo and Class II Summit.. Mystic Lake Casino and Resort,

    2, 3, 4

    Prior Lake, MN.

    June 13, 2011.............. NCAI Mid Year Conference.......... Hyatt Regency, Milwaukee, WI......

    3, 4

    June 21-22, 2011........... CNIGA Membership Meeting.......... Harrah's Rincon Hotel & Casino,

    1, 2, 3, 4

    Valley Center, CA.

    July 14-15, 2011........... Northwest Indian Gaming Expo...... Tulalip Resort Casino, Tulalip, WA 1, 2, 3, 4, 5

    July 20-21, 2011........... NIGC Consultation--Southwest...... Hyatt Regency Tamaya Resort, Santa

    3, 4, 5

    Ana Pueblo, NM.

    July 28-29, 2011........... NIGC Consultation--Northeast...... DOI South Auditorium, Washington,

    3, 4, 5

    DC.

    Aug. 18-19, 2011........... Oklahoma Indian Gaming Association Tulsa, OK......................... 2, 3, 4, 5

    Conference.

    Aug. 25-26, 2011........... NIGC Consultation--Southwest...... Wild Horse Resort Casino,

    2, 3, 5

    Scottsdale, AZ.

    Sept. 7-8, 2011............ NIGC Consultation--United Tribes

    Radisson Hotel, Bismarck, ND...... 2, 3, 4, 5

    International Powwow.

    Sept. 15-16, 2011.......... National Tribal Gaming

    Chuckchansi Gold Resort & Casino, 2, 3, 4, 5

    Commissioner/Regulator

    Coarsegold, CA.

    Association Fall Meeting.

    Sept. 19-20, 2011.......... NIGC Regional Training............ Sky Ute Casino Resort, Ignacio, CO

    3, 4, 5

    Sept. 29-30, 2011.......... NIGC Consultation--Northeast...... Turning Stone Resort & Casino,

    3, 5

    Verona, NY.

    Oct. 6-7, 2011............. G2E--National..................... Sands Expo and Convention Ctr.,

    3, 4, 5

    Las Vegas, NV.

    Oct./Nov. 2011............. USET Annual Meeting............... Mississippi Choctaw, MS...........

    3, 4, 5

    Nov. 3-4, 2011............. NCAI Annual Conference............ Portland, OR......................

    3, 5

    Nov. 14-15, 2011........... NIGC Consultation--California..... Spa Resort Casino, Palm Springs,

    5

    CA.

    Nov. 17-18, 2011........... NIGC Consultation--Southwest...... Fort McDowell Casino, Scottsdale,

    5

    AZ.

    Nov. 30-Dec. 1, 2011....... NIGC Consultation--Oklahoma....... Downstream Casino Resort, Miami,

    5

    OK.

    Dec. 5-6, 2011............. NIGC Consultation--Northwest...... Clearwater Casino Resort,

    5

    Suquamish, WA.

    Dec. 8-9, 2011............. NIGC Consultation--Great Plains... Turtle Creek Casino & Hotel,

    5

    Williamsburg, MI.

    Dec. 12-13, 2011........... NIGC Consultation--Northeast...... DOI South Auditorium, Washington,

    5

    DC.

    Jan. 11-12, 2012........... NIGC Consultation--Eastern........ Wind Creek Casino, Atmore, AL.....

    3

    Jan. 18-19, 2012........... NIGC Consultation--Great Plains... Crowne Plaza, Billings, MT........

    3

    Jan. 23-24, 2012........... NIGC Consultation--California..... Win-River Casino, Redding, CA.....

    3

    Jan. 26-27, 2012........... NIGC Consultation--Northwest...... 7 Feathers Casino, Canyonville, OR

    3

    Jan. 30-31, 2012........... NIGC Consultation--Oklahoma....... Cherokee Hard Rock, Tulsa, OK.....

    3

    Feb. 2-3, 2012............. NIGC Consultation--Southwest...... Isleta Hard Rock Casino Resort,

    3

    Albuquerque, NM.

    Feb. 7-8, 2012............. NIGC Consultation--Great Plains... Radisson Hotel, Rapid City, SD....

    3

    Page 18460

  4. Group One: Part 514--Fees; Part 523--Review and Approval of

    Existing Ordinances or Resolutions; Part 559--Facility License

    Notifications, Renewals, and Submissions; Part 542--Class III Minimum

    Internal Controls; Buy Indian Act

    1. Part 514--Fees 1. Should the Commission consider revising Part 514 to base fees on the

      Tribe's gaming operation's fiscal year?

      The NOI requested comment on whether the Commission should consider revising this Part to base fees on the Tribe's gaming operation's fiscal year. Some comments indicated that this was a low priority.

      Other comments were generally supportive of the Commission considering this change, noting that a calculation based on audited financial statements for the fiscal year would be more convenient. Commentators did note that if the Commission reviewed Part 514, any amendments should provide for an adequate transition period. Other comments suggested that the Commission consider a flexible approach by which each tribe could determine whether to calculate fees on a fiscal or calendar year.

      The Commission understands that it may be difficult to calculate fees based on the calendar year, which may lead to frequent audit adjustments. The Commission strives to be cognizant of and sensitive to the practical issues raised by any potential amendments to this Part, including additional costs and the need to provide for an adequate transition period. However, the Commission believes that review of the

      Part is appropriate and has the potential to reduce the number of audit adjustments. The Commission will review this Part during the Group One period. 2. Should this Part define Gross Gaming Revenue consistent with

      Generally Accepted Accounting Principles for the purposes of calculating the fees?

      Additionally, the NOI asked whether the Commission should consider adding to Part 514 a definition of gross gaming revenue consistent with the GAAP definition of this term. Some public comments suggested that a revision would promote consistency and uniformity. Other comments questioned whether the NIGC could define gross gaming revenue given that IGRA defines the term.

      The Commission believes that further review of this regulation is appropriate. An amendment consistent with IGRA could promote consistency and uniformity, which may result in greater efficiency. The

      Commission will review this Part during the Group One period. 3. Should this Part include a section on the fingerprinting processing fees?

      The NOI asked whether the Commission should consider amending this

      Part to include fingerprint processing fees and whether to provide for a review of the costs on an annual basis and adjust the fingerprint processing fee accordingly. Additionally, the NOI asked whether the

      Commission should consider providing that fees collected for processing fingerprints should be included in the total revenue collected by the

      Commission that is subject to statutory limitation. Comments supported the inclusion of the fingerprinting fees in the calculation of gross revenues. Other comments suggested that fingerprinting costs be paid by those Tribes that use the service rather than by the general fees paid by Tribes. Other comments suggested that the Commission provide a public accounting of how the fees are expended by the Commission. Some comments suggested including the fingerprinting fees as part of the annual fees while other comments suggested that the fees be separate from the annual fees collected from Tribes. Those commentators who recommended keeping the fees separate explained that the fingerprinting fees were generally an expense paid by gaming commissions rather than gaming operations. Other Tribes suggested that the Commission consider the revision if including fingerprinting fees resulted in a lower annual fee. Finally, several comments suggested the issuance of a bulletin instead of a regulation to address this issue.

      The Commission believes that further review of this proposed regulation is appropriate. Amendments to this Part could provide greater clarity to the process and potentially could result greater efficiency and in cost savings. This issue will be reviewed during the

      Group One period. 4. Should the Commission consider a late payment system in lieu of a

      Notice of Violation for Tribes submitting their fees to the NIGC late?

      Finally, the NOI requested comment on whether the Commission should consider a late payment system in lieu of a Notice of Violation (NOV) for addressing fees submitted late to the NIGC. Public comments uniformly supported the Commission reviewing this approach. Many commentators observed that issuing a NOV is a serious measure that may overly penalize Tribes for late submission of their fees. Commentators noted that a NOV can cause a financial hardship to Tribes by lowering a

      Tribe's bond rating and damage its business reputation. Some comments recommended an automatic additional percentage as a late payment penalty or a development of a schedule of fines or penalties based on passage of time or the number late payments. Tribes commented that NOVs should continue to be utilized for frequent or repeat violators in order to prevent abuse of the system. Another commentator suggested that an NOV only be issued after a specified number of missed payments or dollar amount, if there is gross negligence, or the Tribe has publicly stated its intention not to pay the NIGC. This commentator suggested that an NOV should be considered only after negotiations with the Tribes have failed. Many commentators noted that any approach should be flexible and include due process so that a Tribe can cure any purported late payment before the NIGC issues either a ticket or NOV.

      The Commission believes that further review of the potential regulatory amendment is appropriate. A NOV is a serious action issued to address significant violations of IGRA. A late payment system may be appropriate to address infrequent situations wherein a tribe submits fees late to the NIGC. This issue will be considered by the Commission during the Group One period.

    2. Part 523--Review and Approval of Existing Ordinances or Resolutions

      Comments received in response to the NOI suggest repealing this regulation as obsolete. The regulation applies only to gaming ordinances enacted by Tribes prior to January 22, 1993, and not submitted to the Chairwoman. During the Group One period, the

      Commission will consider repealing this Part.

    3. Part 542--Class III Minimum Internal Control Standards

      The NOI requested comment regarding Class III Minimum Internal

      Control Standards (MICS). The public was asked to comment on how this issue should be addressed, particularly in light of the decision in the

      Colorado River Indian Tribes v. National Indian Gaming Commission. Some comments suggested that Part 542 should be replaced by a set of recommended guidelines. Comments explained that many tribal gaming regulatory authorities rely on Part 542 to set the base of their minimum internal control standards. Other comments explained

      Page 18461

      that some Tribes have adopted the Federal rule verbatim. Some comments stated that some Tribes have drafted their own internal control standards. Additionally, commentators noted that some state compacts incorporate part 542 by reference. Some comments explained that some

      Tribes amended their gaming ordinance authorizing the NIGC to regulate and enforce part 542 in their gaming operations. Other commentators explained that in California, their state compacts have been effectively revised to provide for Federal oversight to the extent specified in the agreements.

      A number of Tribes commented that the NIGC does not have the authority to enforce Class III MICS. A majority of Tribes that submitted comments suggested that the NIGC issue MICS as guidance. Some

      Tribes suggested addressing the enforcement of Class III MICS through the self-regulation process. Other comments suggested applying a different fee rate for those Tribes that have amended their tribal gaming ordinance such that the NIGC can regulate and enforce Part 542.

      Some Tribes recommended keeping the Class III MICS in regulation form and convening a new Tribal Advisory Committee to update the current regulation. Other Tribes recommended repeal of Part 542. Many of the comments received by NIGC stated that this was a high priority.

      Review of this Part is a high priority of the Commission. NIGC recognizes that this is a complex and important issue that impacts

      Tribes differently across the country. During the Group One period,

      NIGC will continue to evaluate and develop solutions for addressing

      Class III MICS in a manner consistent with IGRA that does not create a regulatory void.

    4. Part 559--Facility License Notifications, Renewals, and Submissions

      The NOI requested comment on whether the Commission should consider revising this Part. Many Tribes commented that the process by which the regulation was adopted did not allow sufficient time for meaningful tribal consultation. Some commentators stated that Environmental Public

      Health and Safety (EPHS) matters and facility licenses should be left to the authority and jurisdiction of the Tribes. Some Tribes stated that in addition to tribal regulations and compact provisions, other federal and tribal agencies already regulate EPHS issues. Some comments also recommended reviewing Sec. 502.22--``Construction and maintenance of the gaming facility, and the operation of that gaming is conducted in a manner which adequately protects the environment and the public health and safety'' as part of this review.

      Some comments questioned the necessity of providing Indian lands information considering that other Federal agencies already have this information and that requiring Tribes to re-submit documentation was duplicative and unnecessary. Some comments stated that the 120-day notice period was arbitrary and that NIGC should have consulted on the time frame before implementing the regulation. Some commentators stated that the regulation should provide some flexibility regarding the 120- day notice period. Some comments expressed concern that the regulation could potentially limit the authority of tribal gaming commissions.

      Other comments noted that the regulation helped raise the importance of those issues at the tribal level and benefited the Tribe.

      Based on the many comments requesting that this regulation be reviewed, the NIGC will use the Group One period to review this Part and Sec. 502.22 ``Construction and maintenance of the gaming facility, and the operation of that gaming is conducted in a manner which adequately protects the environment and the public health and safety.''

    5. Buy Indian Act Regulation

      The NOI requested comment on whether the Commission should consider adopting a regulation which would require the NIGC to give preference to qualified Indian-owned businesses when purchasing goods or services as defined by the ``Buy Indian Act,'' 25 U.S.C. 47. The Buy Indian Act provides authority to set aside procurement contracts for qualified

      Indian-owned businesses. While many comments support consideration of this change, a number of comments suggested that utilizing an internal policy or process would be equally effective.

      The Commission believes that a regulation on this issue may promote long term and consistent application by the agency. During the Group

      One period, the Commission will review a potential regulation.

      Subject to future changes, NIGC will hold tribal consultations on

      Group One regulations on the following dates as set forth in more detail below. The Commission has attempted to schedule consultations in every region and to hold those consultations either before or after other events widely attended by tribal officials. The purpose of scheduling consultations in this manner is both to encourage participation of tribal officials and to conserve tribal resources by reducing the amount of travel of participants.

      GROUP 1

      Date

      Event

      Location

      Apr. 28, 2011...................... Oklahoma Tribal Gaming Regulators

      Choctaw Casino Resort, Durant, OK.

      Association Spring Conference.

      May 2, 2011........................ Tribal Self-Governance Conference.... Spa Resort Casino, Palm Springs, CA.

      May 5, 2011........................ Southern Gaming Summit & Bingo World Mississippi Coast Coliseum &

      Conference.

      Convention Ctr., Biloxi, MS.

      May 16, 2011....................... Great Plains/Rocky Mountains/Midwest Mystic Lake Casino and Resort, Prior

      Tradeshow & Conference.

      Lake, MN.

      May 20, 2011....................... ATNI Mid Year Conference............. Coeur d'Alene Resort & Casino,

      Plummer, ID.

      June 21-22, 2011................... CNIGA Membership Meeting............. Harrah's Rincon Hotel & Casino,

      Valley Center, CA.

      July 14-15, 2011................... Northwest Indian Gaming Expo......... Tulalip Resort Casino, Tulalip, WA.

      Page 18462

  5. Group Two: Part 573--Enforcement; Proceedings Before the Commission,

    Including Part 519--Service, Part 524--Appeals [of disapproval of a gaming ordinance, resolution or amendment], Part 539--Appeals [of approval or disapproval of a management contract or amendment], and

    Part 577--Appeals Before the Commission

    1. Enforcement

      The NOI requested comment on whether the Commission should consider promulgating a regulation authorizing the withdrawal of an NOV after it has been issued. Some Tribes stated that because there was no prohibition against withdrawing an NOV, the regulation was unnecessary.

      Other comments stated that while the Chairwoman retains authority to withdraw an NOV, a specific regulation outlining the process and circumstances for the withdrawal was appropriate. Some comments stated that only the entire Commission should withdraw an NOV.

      Many comments stated that the issuance of an NOV can potentially have serious negative economic impact on the Tribe. These comments recommended the NIGC institute a compliance model before utilizing a punitive approach. Such an approach would provide for tribal regulatory agencies to take enforcement action in the first instance and provide a notice and opportunity to cure before NIGC action is taken. Tribes also recommended that NOVs be automatically expunged after a specified number of years and removed from the Web site or, in the alternative, identifying information should be removed from NOVs on the Web site.

      The Commission agrees that under no circumstance should an NOV be a surprise to Tribes. This Commission established Assistance, Compliance, and Enforcement as its policy for regulating Tribes and agrees that a regulation identifying the process for ensuring compliance would benefit the industry. The Commission will be reviewing this potential regulation during the Group 2 period.

    2. Proceedings Before the Commission

      The NOI requested comment on whether the Commission should consider more comprehensive and detailed procedural rules for proceedings before the Commission. Some Tribes expressed a concern that a more formal process may be more burdensome, costly, and delay the process for review. Other comments recommended that more detail would provide greater certainty for Tribes. Some comments recommended that the

      Chairwoman should be prohibited from participating in appeals of agency actions issued by the Chairwoman. Those comments noted that the underlying principle of these procedural rules should be the guarantee of due process. Many comments requested concise, streamlined rules in order to protect all parties and recommended reviewing the appeals process utilized by other federal agencies for guidance.

      Included in the comments received by Tribes regarding proceedings before the Commission were a number of comments requesting clarification on submission and approval of gaming ordinances and amendments. Some Tribes expressed concern about the length of time it takes for approval of an ordinance and requested further clarity on how the Commission contacts Tribes if there are questions concerning a proposed ordinance.

      The Commission recognizes the perception that the current process may not provide clarity to Tribes when appealing the Chairwoman's actions. The Commission will review these regulations during the Group

      Two period.

      Subject to future changes, NIGC will hold tribal consultations on

      Group Two regulations on the following dates as set forth in more detail below. The Commission has attempted to schedule consultations in every region and to hold those consultations either before or after other events widely attended by tribal officials. The purpose of scheduling consultations in this manner is both to encourage participation of tribal officials and to conserve tribal resources by reducing the amount of travel of participants.

      GROUP 2

      Date

      Event

      Location

      May 16, 2011................ Great Plains/Rocky Mountains/ Mystic Lake Casino and Resort, Prior Lake, MN.

      Midwest Tradeshow &

      Conference.

      May 20, 2011................ ATNI Mid Year Conference...... Coeur d'Alene Resort & Casino Plummer, ID.

      June 8, 2011................ Indian Bingo and Class II

      Mystic Lake Casino and Resort, Prior Lake, MN.

      Summit.

      June 21-22, 2011............ CNIGA Membership Meeting...... Harrah's Rincon Hotel & Casino, Valley Center, CA.

      July 14-15, 2011............ Northwest Indian Gaming Expo.. Tulalip Resort Casino, Tulalip, WA.

      Aug. 18-19, 2011............ Oklahoma Indian Gaming

      Tulsa, OK.

      Association Conference.

      Aug. 25-26, 2011............ NIGC Consultation--Southwest.. Wild Horse Resort Casino, Scottsdale, AZ.

      Sept. 7-8, 2011............. NIGC Consultation--United

      Radisson Hotel, Bismarck, ND.

      Tribes International Powwow.

      Sept. 15-16, 2011........... National Tribal Gaming

      Chuckchansi Gold Resort & Casino, Coarsegold, CA.

      Commissioner/Regulator

      Association Fall Meeting.

  6. Group Three: Part 543--Minimum Internal Control Standards for Class

    II Gaming; Part 547--Minimum Technical Standards for Gaming Equipment

    Used with the Play of Class II Games

    The NOI also requested comment on the Class II Minimum Internal

    Control Standards (MICS) and Minimum Technical Standards. Specifically, the NOI requested comment on how to proceed with revisions to these

    Parts. While the Technical Standards were revised in 2008, the NOI noted that Tribes had requested additional updates.

    The Commission received many comments requesting the review and update of both the Class II MICS and Class II Technical Standards.

    Comments emphasized the importance of Class II gaming and the need to ensure that the regulations address changes in technology. Some comments recommended a Tribal Advisory Committee be formed with representation from a broad group of interests, including Tribes, manufacturers, and testing laboratories. Other comments suggested the

    Page 18463

    regulations be revised utilizing a negotiated rulemaking process.

    Finally, some commentators stated that electronic gambling machines are public health hazards and that the technical standards should distinguish between harmful and less harmful games. These comments stated that NIGC should require the industry to demonstrate that Class

    II games are in fact safe.

    Based on the comments received, the Commission anticipates that it will review this Part during the Group Three period. Class II MICS and

    Technical Standards are important to both Tribes and the public.

    Subject to future changes, NIGC will hold tribal consultations on

    Group Three regulations on the following dates as set forth in more detail below. The Commission has attempted to schedule consultations in every region and to hold those consultations either before or after other events widely attended by tribal officials. The purpose of scheduling consultations in this manner is both to encourage participation of tribal officials and to conserve tribal resources by reducing the amount of travel of participants.

    GROUP 3

    Date

    Event

    Location

    June 8, 2011................ Indian Bingo and Class II

    Mystic Lake Casino and Resort, Prior Lake, MN.

    Summit.

    June 13, 2011............... NCAI Mid Year Conference...... Hyatt Regency, Milwaukee, WI.

    June 21-22, 2011............ CNIGA Membership Meeting...... Harrah's Rincon Hotel & Casino, Valley Center, CA.

    July 14-15, 2011............ Northwest Indian Gaming Expo.. Tulalip Resort Casino, Tulalip, WA.

    July 20-21, 2011............ NIGC Consultation--Southwest.. Hyatt Regency Tamaya Resort, Santa Ana Pueblo, NM.

    July 28-29, 2011............ NIGC Consultation--Northeast.. DOI South Auditorium, Washington, DC.

    Aug. 18-19, 2011............ Oklahoma Indian Gaming

    Tulsa, OK.

    Association Conference.

    Aug. 25-26, 2011............ NIGC Consultation--Southwest.. Wild Horse Resort Casino, Scottsdale, AZ.

    Sept. 7-8, 2011............. NIGC Consultation--United

    Radisson Hotel, Bismarck, ND.

    Tribes International Powwow.

    Sept. 15-16, 2011........... National Tribal Gaming

    Chuckchansi Gold Resort & Casino, Coarsegold, CA.

    Commissioner/Regulator

    Association Fall Meeting.

    Sept. 19-20, 2011........... NIGC Regional Training........ Sky Ute Casino Resort, Ignacio, CO.

    Sept. 29-30, 2011........... NIGC Consultation--Northeast.. Turning Stone Resort & Casino, Verona, NY.

    Oct. 6-7, 2011.............. G2E--National................. Sands Expo and Convention Ctr., Las Vegas, NV.

    Oct./Nov. 2011.............. USET Annual Meeting........... Mississippi Choctaw, MS.

    Nov. 3-4, 2011.............. NCAI Annual Conference........ Portland, OR.

    Jan. 11-12, 2012............ NIGC Consultation--Eastern.... Wind Creek Casino, Atmore, AL.

    Jan. 18-19, 2012............ NIGC Consultation--Great

    Crowne Plaza, Billings, MT.

    Plains.

    Jan. 23-24, 2012............ NIGC Consultation--California. Win-River Casino, Redding, CA.

    Jan. 26-27, 2012............ NIGC Consultation--Northwest.. 7 Feathers Casino, Canyonville, OR.

    Jan. 30-31, 2012............ NIGC Consultation--Oklahoma... Cherokee Hard Rock, Tulsa, OK.

    Feb. 2-3, 2012.............. NIGC Consultation--Southwest.. Isleta Hard Rock Casino Resort, Albuquerque, NM.

    Feb. 7-8, 2012.............. NIGC Consultation--Great

    Radisson Hotel, Rapid City, SD.

    Plains.

  7. Group Four: Part 556--Background Investigations for Primary

    Management Officials and Key Employees; Part 558--Gaming Licenses for

    Key Employees and Primary Management Officials; Part 556--Formalizing the ``Pilot Program''; Part 571--Monitoring and Investigations; Part 531--Collateral Agreements; Part 537--Background Investigations for

    Persons or Entities With a Financial Interest in, or Having Management

    Responsibility for, a Management Contract; and Part 502--Definitions

    1. Background Investigations and Pilot Program

      The NOI requested comment on whether the Commission should consider formalizing through regulation a long-standing ``pilot program'' under which participating Tribes provide NIGC with concise information pertaining to employees licensed or denied a license in lieu of the process outlined in Part 556. Comments were submitted supporting the

      Commission's consideration of amending the regulation to incorporate the pilot program. One Tribe stated that the pilot program should be formalized so long as no changes are made to the current program. Some

      Tribes commented that most Tribes already participate in the program.

      Additionally, the NOI requested comment on whether the NIGC should process fingerprint cards for non-primary management officials or non- key employees. Many comments supported increased access to fingerprint and background information for additional employees but expressed that this not be mandated by the NIGC. Some commentators requested that this should include vendors and contractors as well. Additionally, many comments requested that the NIGC provide tribal gaming commissions access to licensing information via an online database or expansion of the TBIS database.

      The Commission agrees that the ``pilot program'' is widely participated in by a large number of gaming Tribes and that access to background information is important to shield Tribes from organized crime and other corrupting influences. Based on the comments received, the Commission intends to review these regulations during the Group

      Four period.

    2. Management Contracts 1. Collateral Agreements

      The NOI requested comment on whether the Commission should consider approving collateral agreements to a management contract. Some comments asserted that collateral agreements are outside the scope of NIGC authority and requiring submission and approval of those

      Page 18464

      agreements would second-guess tribal business decisions. One commentator stated that the NIGC should not expand authority over non- management business relationships of the Tribe. Additionally, some comments expressed concern that requiring the approval of non- management collateral agreements would affect their relationships with current or potential business partners, discourage private investment in Indian Country, and potentially call into question the validity of previously executed agreements. These commentators recommended the NIGC only review and approve those agreements containing management provisions. Another commentator suggested that the review and approval of collateral agreements would greatly reduce the risks to both Tribes and would-be management contractors, thus reducing overreaching by third parties.

      Other comments supported the review and approval of collateral agreements by the NIGC. Those Tribes stated that it is the NIGC's trust responsibility to ensure that such agreements do not violate the sole proprietary interest provisions of IGRA. Other Tribes suggested that the NIGC be available to review and approve collateral agreements solely at the request of the Tribe. One commentator suggested drafting a regulation that specifies the maximum amount of revenue that could be included in collateral agreements.

      Based on the comments received in response to the NOI, the

      Commission intends to review this regulation during the Group Four period. 2. Background Information for Persons or Entities With a Financial

      Interest in, or Having Management Responsibility for, a Management

      Contract

      The NOI requested comment on whether the Commission should consider amending this regulation to specify that a contractor should be required to submit background information when the contract is only for

      Class III gaming. Some Tribes stated that the NIGC has no authority over Class III gaming and thus no authority over Class III management contractors. Other Tribes stated that IGRA specifically grants the NIGC the authority to complete background investigations on Class II and

      Class III management contractors. One Tribe stated that because background investigations are a requirement of the tribal-state compact, requiring an additional background investigation is duplicative, burdensome, and overreaching. Other comments recommended that in addition to the clarification, the NIGC should clarify submission requirements for Class II and Class III background investigations and streamline the background investigation process to allow for expedited review of individuals and entities holding a gaming license in other tribal and state jurisdictions.

      The Commission agrees that this issue has been the point of confusion for Tribes and the public. The Commission intends to review this regulation during the Group Four period.

    3. Inspection and Access to Records

      The NOI requested comment on whether there was a need to clarify

      Commission access to records located off-site, including at sites maintained or owned by third parties. One comment stated that this section should be revised to explicitly deny the NIGC access to Class

      III records. Some comments stated that the NIGC has the right to access all records of the Tribal gaming enterprise, regardless of location.

      Other comments stated that NIGC should only request records within its statutory authority. Another comment suggested that the regulation be amended to require Tribes to maintain all records on site.

      The Commission acknowledges the need to clarify Commission access to records located off-site, including at sites maintained and owned by third parties. The Commission intends to review this regulation during the Group Four period.

    4. Definitions--Net Revenues--management fee

      The NOI asked whether the Commission should consider whether the definition of Net revenues--management fee should be defined to be consistent with the General Accepted Accounting Principles (GAAP) when determining the management fee. Many comments stated that if this definition was amended, it would need to be consistent with the statutory definition of Net Revenue contained in IGRA, 25 U.S.C. 2703(9). Other comments stated that it should be defined consistent with industry standards such as GAAP. One comment noted that a clearer definition would have hastened the resolution of a dispute with their state over the definition of net win and net revenue. Another comment stated that the 2008 regulatory change to the definition of Net revenue does not comply with IGRA and needs to be revised to ensure it is consistent with the statutory definition.

      Based on the comments that the definition could be clearer and that there may be some benefit to a definition consistent with GAAP, the

      Commission intends to review this definition during Group Four consultation and comment period.

      Subject to future changes, NIGC will hold tribal consultations on

      Group Four regulations on the following dates as set forth in more detail below. The Commission has attempted to schedule consultations in every region and to hold those consultations either before or after other events widely attended by tribal officials. The purpose of scheduling consultations in this manner is both to encourage participation of tribal officials and to conserve tribal resources by reducing the amount of travel of participants.

      GROUP 4

      Date

      Event

      Location

      June 8, 2011................ Indian Bingo and Class II

      Mystic Lake Casino and Resort, Prior Lake, MN.

      Summit.

      June 13, 2011............... NCAI Mid Year Conference...... Hyatt Regency, Milwaukee, WI.

      June 21-22, 2011............ CNIGA Membership Meeting...... Harrah's Rincon Hotel & Casino, Valley Center, CA.

      July 14-15, 2011............ Northwest Indian Gaming Expo.. Tulalip Resort Casino, Tulalip, WA.

      July 20-21, 2011............ NIGC Consultation--Southwest.. Hyatt Regency Tamaya Resort, Santa Ana Pueblo, NM.

      July 28-29, 2011............ NIGC Consultation--Northeast.. DOI South Auditorium, Washington, DC.

      Aug. 18-19, 2011............ Oklahoma Indian Gaming

      Tulsa, OK.

      Association Conference.

      Aug. 25-26, 2011............ NIGC Consultation--Southwest.. Wild Horse Resort Casino, Scottsdale, AZ.

      Sept. 7-8, 2011............. NIGC Consultation--United

      Radisson Hotel, Bismarck, ND.

      Tribes International Powwow.

      Page 18465

      Sept. 15-16, 2011........... National Tribal Gaming

      Chuckchansi Gold Resort & Casino, Coarsegold, CA.

      Commissioner/Regulator

      Association Fall Meeting.

      Sept. 19-20, 2011........... NIGC Regional Training........ Sky Ute Casino Resort, Ignacio, CO.

      Oct. 6-7, 2011.............. G2E--National................. Sands Expo and Convention Ctr., Las Vegas, NV.

      Oct./Nov. 2011.............. USET Annual Meeting........... Mississippi Choctaw, MS.

  8. Group Five: Part 518--Self Regulation of Class II Gaming; proposed new Sole Proprietary Interest regulation; and implementation through regulation of Class III MICS options

    1. Self Regulation of Class II Gaming

      The NOI requested comment on whether the Commission should consider amending the process for obtaining a self-regulation certification. The

      Commission has heard that the administrative burden of completing the process significantly outweighs the benefits obtained from self regulation. Comments received from the NOI state that this regulation is not performing the function set forth in IGRA. Comments stated that the submission requirements are duplicative and unduly burdensome and the petition and annual reporting requirement undermine the purpose of self-regulating. One comment recommended that high standards should be maintained, and the benefits and recognition for self regulating Tribes should be higher. A Tribe noted that self regulation is a hallmark of tribal sovereignty.

      The Commission agrees that this regulation is under-utilized by

      Tribes. Of over 220 gaming Tribes, only two Tribes have gone through the self-regulation certification process successfully. Due to the interest expressed in revising this regulation, the Commission intends to review this regulation during the Group Five period.

    2. Sole Proprietary Interest

      The NOI requested comments on whether the Commission should consider a regulation defining sole proprietary interest and providing a process through which a Tribe may request the NIGC to conduct a review and make a determination. Many Tribes and other interested parties have approached the NIGC requesting a determination regarding whether a single agreement, or a combination of agreements, violate

      IGRA's sole proprietary interest requirement. The comments received in response to the NOI reflect the complexity of this issue. Some comments state that the Commission should promulgate a regulation that would provide for review only at the request of a tribe. Other comments state that the percentages contained in IGRA serve to define what percentage might violate the Act's sole proprietary interest provision. One tribe suggested that if Sole Proprietary Interest is to be defined, then so should Primary Beneficiary. Some comments stated that a clear definition of sole proprietary interest may provide stability and access to financing. Other comments suggested that a definition might limit tribal access to capital. Some comments suggested that this determination be best left to the courts to decide.

      The Commission acknowledges the comments regarding defining Sole

      Proprietary Interest through a regulation. Given the importance of this issue and IGRA's mandate that Tribes maintain the sole proprietary interest, the Commission intends to review this issue during the Group

      Five period.

    3. Class III MICS Implementation

      Based on the comments received during the Group One period, the

      Commision will address implementation of changes to Class III MICS during the Group Five period.

      Subject to future changes, NIGC will hold tribal consultations on

      Group Five regulations on the following dates as set forth in more detail below. The Commission has attempted to schedule consultations in every region and to hold those consultations either before or after other events widely attended by tribal officials. The purpose of scheduling consultations in this manner is both to encourage participation of tribal officials and to conserve tribal resources by reducing the amount of travel of participants.

      GROUP 5

      Date

      Event

      Location

      July 14-15, 2011............ Northwest Indian Gaming Expo.. Tulalip Resort Casino, Tulalip, WA.

      July 20-21, 2011............ NIGC Consultation--Southwest.. Hyatt Regency Tamaya Resort, Santa Ana Pueblo, NM.

      July 28-29, 2011............ NIGC Consultation--Northeast.. DOI South Auditorium, Washington, DC.

      Aug. 18-19, 2011............ Oklahoma Indian Gaming

      Tulsa, OK.

      Association Conference.

      Aug. 25-26, 2011............ NIGC Consultation--Southwest.. Wild Horse Resort Casino, Scottsdale, AZ.

      Sept. 7-8, 2011............. NIGC Consultation--United

      Radisson Hotel, Bismarck, ND.

      Tribes International Powwow.

      Sept. 15-16, 2011........... National Tribal Gaming

      Chuckchansi Gold Resort & Casino, Coarsegold, CA.

      Commissioner/Regulator

      Association Fall Meeting.

      Sept. 19-20, 2011........... NIGC Regional Training........ Sky Ute Casino Resort, Ignacio, CO.

      Sept. 29-30, 2011........... NIGC Consultation--Northeast.. Turning Stone Resort & Casino, Verona, NY.

      Oct. 6-7, 2011.............. G2E--National................. Sands Expo and Convention Ctr., Las Vegas, NV.

      Oct./Nov. 2011.............. USET Annual Meeting........... Mississippi Choctaw, MS.

      Nov. 3-4, 2011.............. NCAI Annual Conference........ Portland, OR.

      Nov. 14-15, 2011............ NIGC Consultation--California. Spa Resort Casino, Palm Springs, CA.

      Nov. 17-18, 2011............ NIGC Consultation--Southwest.. Fort McDowell Casino, Scottsdale, AZ.

      Page 18466

      Nov. 30-Dec. 1, 2011........ NIGC Consultation--Oklahoma... Downstream Casino Resort, Miami, OK.

      Dec. 5-6, 2011.............. NIGC Consultation--Northwest.. Clearwater Casino Resort, Suquamish, WA.

      Dec. 8-9, 2011.............. NIGC Consultation--Great

      Turtle Creek Casino & Hotel, Williamsburg, MI.

      Plains.

      Dec. 12-13, 2011............ NIGC Consultation--Northeast.. DOI South Auditorium, Washington, DC.

  9. Regulations That the Commission Does Not Anticipate Revising

    1. Part 502--Net Revenues--Allowable Uses.

      The NOI requested comment on whether the Commission should consider a definition for the term Net Revenues--allowable uses. Many Tribes commented that this approach would intrude on tribal sovereignty, that tribal budgeting is an inherent tribal governmental function, and that such an approach could interfere with internal tribal matters. Further, tribal commentators noted that IGRA has a clear definition of Net

      Revenues and asserted that the NIGC does not have authority to change this definition. An accounting firm commented that no single formulaic approach should be applied to all Tribes. A few comments from the public stated that if NIGC were to promulgate a definition it should only do so after extensive review, consultation, and comment. Some comments supported promulgation of a definition, arguing that doing so could ensure Tribes consider the financial integrity of the gaming operation before funding other tribal programs.

      After review of all the comments submitted, the Commission does not anticipate promulgating a definition of net revenues--allowable uses at this time. The Commission acknowledges the concerns articulated by the public and will examine alternatives consistent with IGRA that minimize intrusions on tribal sovereignty and internal tribal matters.

    2. Part 502--Management Contract Definition

      The NOI also requested comment on whether to expand the definition of Management Contract to include contracts that pay a fee based on a percentage of gaming revenues. The comments received from the public expressed concern that an expanded definition would inappropriately inhibit the ability of Tribes to enter into contracts, increase the administrative burden on the NIGC, and infringe upon tribal sovereignty. The public also commented that an expanded definition may be counter to IGRA's purpose of promoting tribal economic development, self-sufficiency, and strong tribal governments. Finally, many commentators noted that only contracts containing actual management provisions should be subject to the management contract approval process.

      Regarding whether the Commission should consider promulgating a definition of acceptable compensation to a manager contractor, some

      Tribes commented that it would be beneficial for the Commission to consider issuing guidance on compensation and the upper limits on management fees. Some Tribes commented that a definition would intrude on business decisions of the Tribe. Another Tribe noted that amending the definition to establish a maximum fee might be appropriate, if enforced only against the company, not the Tribe. However, most comments suggested that NIGC should not revise this definition.

      The Commission notes that IGRA establishes a maximum fee for management contractors. Based on a review of the public's comments, the

      Commission does not anticipate expanding the definition at this time.

      The Commission acknowledges the concerns articulated by the public and will examine alternatives consistent with IGRA that minimize intrusions on tribal sovereignty and promote the purposes of IGRA.

    3. Part 533--Approval of Management Contracts

      The NOI sought comment on whether to consider amending the trustee standard in Part 533 by adding two grounds for possible disapproval in

      Sec. 533.6(b). One potential basis for disapproval would be because the management contract was not submitted in accordance with the submission requirements of 25 CFR part 533. The second potential basis for disapproval would be because the management contract does not contain the regulatory requirements for approval pursuant to 25 CFR part 531. Many comments received from Tribes were generally supportive of the Commission reviewing this part of the regulation. Some Tribes commented that if the Commission reviewed this part of the regulation and ultimately amended it as described, it could result in the disapproval of a management contract for technical reasons that could have been easily remedied.

      The Commission does not anticipate amending Part 533 at this time.

      NIGC will continue to assist Tribes and potential management companies with the regulatory process set forth in IGRA and Part 533 to ensure full compliance with IGRA.

  10. Other Regulations or Policies

    1. Tribal Advisory Committee

      The NOI requested comment on whether a policy or regulation should be developed identifying when a Tribal Advisory Committee (TAC) will be formed to provide input and advice to the NIGC, and if so, how the

      Committee members should be selected. Additionally, the NOI asked if cost should be a factor when considering whether to form a TAC.

      In response to this request, Tribes commented that while TACs can be an effective way to communicate with Tribes, a TAC is not a substitute for tribal consultation as set forth in Executive Order 13175. Commentators indicated that cost is a valid consideration and that the expense of proceeding with a TAC is justified only if all views are considered by the Commission. Tribes also commented that the rules governing TACs can be unclear, resulting in confusion and uncertainty about the TAC process. Commentators also noted that the use of TAC has the potential to unnecessarily extend the time it takes to draft a rule.

      Other comments received in response to the NOI noted that a TAC has the potential to provide useful input and perspective to the Commission particularly on topics that broadly impact Indian gaming. Additionally, comments advised that a TAC should be flexible in order to meet the specific needs of the NIGC and the Tribes. Tribes advised the NIGC to create a policy that is flexible and allows TACs to be utilized on a case-by-case basis.

      Page 18467

      The Commission recognizes the concern expressed in comments regarding the use of TACs. Additionally, the Commission also recognizes the potential benefit of a TAC, particularly when addressing a complex or technical regulation. While the Commission agrees with those comments suggesting a regulation may not be necessary, the Commission will consider drafting a policy guiding the development of a TAC, member selection, and meeting rules. The Commission anticipates that a

      TAC policy will be developed during 2011. The process for developing a

      TAC policy will be consistent with the NIGC's Tribal Consultation policy.

    2. Communication Policy

      The NOI asked whether the NIGC should consider developing a regulation or include as part of a regulation a process for determining how it communicates with Tribes. The NOI noted that NIGC communicates directly with the Tribal Gaming Regulatory Agency (TGRA) or Tribal

      Gaming Commission (TGC) as well as directly with the tribal government.

      The NOI asked whether the NIGC should consider promulgating a regulation or policy establishing a default method of communication unless otherwise directed by tribal resolution.

      Many comments recommended that the Commission should not consider adopting a universal standard for communicating with Tribes. Tribes noted the variety in government structures and methods used by Tribes when taking official action. However, Tribes also noted the need for more effective communication with all affected parties, including the elected government officials, TGC, TGRA and the gaming operation. While the Commission agrees with those comments suggesting a regulation may not be necessary, the Commission will consider drafting a policy guiding how the Commission communicates with Tribes, their gaming regulatory bodies, and the gaming operation. This Commission anticipates that a policy will be developed over the course of the regulatory review process outlined above. The process for developing a

      Communication policy will be consistent with NIGC's Tribal Consultation policy.

    3. Other Regulations

      During this review process, the Commission attempted to identify those regulations identified by Tribes and/or the Commission in most need of review. However, the Commission reserves the right to review other regulations if needed throughout this review process. Review of regulations not specifically identified in this Notice will be reviewed utilizing the process described in Section IIB of this Notice.

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

      Dated: March 30, 2011, Washington, DC.

      Tracie L. Stevens,

      Chairwoman.

      Steffani A. Cochran,

      Vice-Chairwoman.

      Daniel J. Little,

      Associate Commissioner.

      FR Doc. 2011-7912 Filed 4-1-11; 8:45 am

      BILLING CODE 7565-01-P