[Federal Register Volume 76, Number 246 (Thursday, December 22, 2011)]
[Proposed Rules]
[Pages 79565-79567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-32759]
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DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
25 CFR Part 537
RIN 3141-AA46
Management Contracts--Background Investigations
AGENCY: National Indian Gaming Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This action proposes to amend NIGC regulations to include
tribes, wholly owned tribal entities, and national banks that are
already federally regulated or required to undergo a background
investigation and licensure by a state or tribe pursuant to a tribal-
state compact as entities that the Chair may exercise discretion
regarding the submission of information and background investigations.
This process may provide for a streamlined review for such entities
in the background investigation process required for management
contracts. The proposed revision may reduce duplication of efforts
while maintaining the integrity of NIGC review. The proposal maintains
the Chair's discretion in determining which entities should be allowed
to proceed through an expedited background investigation. This
amendment has been included in this proposed rule.
The Commission also considered revising its regulations to clarify
that a management contractor should be required to submit background
information when the contract is for management of both Class II and
Class III gaming activities. Many public comments noted that it was not
a necessary revision. The Commission agrees with those public comments
and does not propose that clarification.
DATES: The agency must receive comments on or before February 21, 2012.
ADDRESSES: You may submit comments by any one of the following methods,
however, please note that comments sent by electronic mail are strongly
encouraged.
[squf] Email comments to: [email protected].
[squf] Mail comments to: National Indian Gaming Commission, 1441 L
Street NW., Suite 9100, Washington, DC 20005.
[squf] Hand deliver comments to: 1441 L Street NW., Suite 9100,
Washington, DC 20005.
[squf] Fax comments to: National Indian Gaming Commission at (202)
632-0045.
FOR FURTHER INFORMATION CONTACT: National Indian Gaming Commission,
1441 L Street NW., Suite 9100, Washington, DC 20005. Telephone: (202)
632-7009; email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Comments Invited
Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments as they
may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal.
II. Background
The Indian Gaming Regulatory Act (IGRA or Act), Public Law 100-497,
25 U.S.C. 2701 et seq., was signed into law on October 17, 1988. The
Act establishes the National Indian Gaming Commission (``Commission'')
and sets out a comprehensive framework for the regulation of three
classes of gaming on Indian lands. The purposes of IGRA
[[Page 79566]]
include providing a statutory basis for the operation of gaming by
Indian Tribes as a means of promoting tribal economic development,
self-sufficiency, and strong tribal governments; ensuring that the
Indian tribe is the primary beneficiary of the gaming operation; and
declaring that the establishment of independent federal regulatory
authority for gaming on Indian lands, the establishment of federal
standards for gaming on Indian lands, and the establishment of a
National Indian Gaming Commission are necessary to meet congressional
concerns regarding gaming and to protect such gaming as a means of
generating tribal revenue. 25 U.S.C. 2702.
On November 18, 2010, the National Indian Gaming Commission (NIGC)
issued a Notice of Inquiry and Notice of Consultation (NOI) advising
the public that the NIGC was conducting a comprehensive review of its
regulations and requesting public comment on which of its regulations
were most in need of revision, in what order the Commission should
review its regulations, and the process NIGC should utilize to make
revisions. 75 FR 70680. On April 4, 2011, after holding eight
consultations and reviewing all comments, NIGC published a Notice of
Regulatory Review Schedule setting out a consultation schedule and
process for review. 76 FR 18457. The Commission's regulatory review
process established a tribal consultation schedule with a description
of the regulation groups to be covered at each consultation. This Part
537 was included in the regulatory review process.
III. Development of the Proposed Rule
The Commission conducted a total of 10 tribal consultations as part
of its review of Part 537. Tribal consultations were held in every
region of the country and were attended by over 137 tribes and 381
tribal leaders or their representatives. In addition to tribal
consultations, on June 28, 2011, the Commission requested public
comment on a Preliminary Draft of amendments to Part 537. The Notice of
Regulatory Review Schedule (NRR) announced the Commission's intent to
review whether Part 537 should be revised to clarify that a management
contractor should be required to submit background information when the
contract is for management of both Class II and Class III gaming
activities. Additionally, comments received from the NRR included a
recommendation for the Commission to include a provision to streamline
background investigations for certain entities already subject to
background requirements and for tribes.
A. Streamlined Background Investigation for Tribes and Entities
Otherwise Subject to Background Investigations
The NRR identified a recommendation that the NIGC should provide
streamlined or expedited review for tribes, tribal entities or other
entities required to be licensed by a compact or are otherwise
federally regulated. The discussion draft of the Part included a new
section providing discretion to reduce the background requirements for
``a tribe, a wholly owned tribal entity, national bank, or
institutional investor that is federally regulated or is required to
undergo a background investigation and licensure by a state or tribe
pursuant to a tribal-state compact''. Comments were supportive of this
change. One commentator stated that they welcomed this change, while
another commentator disagreed that the reduced scope be at the
discretion of the Chair.
The Commission believes that this is a reasonable addition to the
regulations. The proposed revision can reduce duplication of efforts.
However, it is important for the Chair to retain the discretion in
determining which entities should be allowed to proceed through an
expedited background investigation. This amendment has been included in
this proposed rule through a revision to 25 CFR 537.1(a)(4).
B. Background Investigations for Management Contractors of a Class II
and Class III Gaming Operation
The NRR identified background investigation information
requirements for management contractors of a Class II and Class III
gaming operations as a topic for review. Responses to the NOI indicated
that this was an area that may need some clarification. The NIGC
developed a discussion draft making this clarification and requested
comment on the draft. After consulting extensively on this issue and
receiving comments from tribes, it is clear that while most comments
were amenable to the proposed revision, many noted that it was not a
necessary revision.
The Commission does not believe the revision is necessary and has
not made the proposed change included in the discussion draft.
Regulatory Matters
Regulatory Flexibility Act
The proposed 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
This proposed rule is not a major rule under 5 U.S.C. 804(2), the
Small Business Regulatory Enforcement Fairness Act. This rule does not
have an effect on the economy of $100 million or more. This rule will
not cause a major increase in costs or prices for consumers, individual
industries, federal, state or local government agencies or geographic
regions. Nor will the proposed rule have a significant adverse effect
on competition, employment, investment, productivity, innovation, or
the ability of U.S. based enterprises to compete with foreign-based
enterprises.
Unfunded Mandates Reform Act
The Commission, as an independent regulatory agency within the
Department of the Interior, is exempt from compliance with the Unfunded
Mandates Reform Act. 2 U.S.C. 1502(1); 2 U.S.C. 658(1).
Takings
In accordance with Executive Order 12630, the Commission has
determined that the proposed rule does not have significant takings
implications. A takings implication assessment is not required.
Civil Justice Reform
In accordance with Executive Order 12988, the Commission has
determined that the proposed 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
The information collection requirements contained in this rule were
previously approved by the Office of Management and Budget (OMB) as
required by 44 U.S.C. 3501 et seq. and assigned OMB Control Number
3141-0007, which expired in August of 2011. The NIGC is in the process
of reinstating that Control Number.
[[Page 79567]]
List of Subjects in 25 CFR Part 537
Gambling, Indians--tribal government, Indians--business and
finance.
For the reasons discussed in the Preamble, the Commission proposes
to revise its regulations at 25 CFR Part 537 as follows:
PART 537--BACKGROUND INVESTIGATIONS FOR PERSONS OR ENTITIES WITH A
FINANCIAL INTEREST IN, OR HAVING MANAGEMENT RESPONSIBILITY FOR, A
MANAGEMENT CONTRACT
1. The authority citation for art 537 continues to read as follows:
Authority: 25 U.S.C. 81, 2706(b)(10), 2710(d)(9), 2711.
2. Amend Sec. 537.1 by revising paragraph (a)(4) to read as
follows:
Sec. 537.1 Applications for approval.
(a) * * *
(4) Any entity with a financial interest in a management contract
(in the case of any tribe, a wholly owned tribal entity, national bank,
or institutional investor that is federally regulated or is required to
undergo a background investigation and licensure by a state or tribe
pursuant to a tribal-state compact, the Chairman may exercise
discretion and reduce the scope of the information to be furnished and
the background investigation to be conducted); and
* * * * *
3. Revise Sec. 537.3 paragraphs (b), (c) and (d) to read as
follows:
Sec. 537.3 Fees for background investigations.
* * * * *
(b) The management contractor shall post a deposit with the
Commission to cover the cost of the background investigations as
follows:
* * * * *
(c) The management contractor shall be billed for the costs of the
investigation as it proceeds; the investigation shall be suspended if
the unpaid costs exceed the amount of the deposit available.
* * * * *
(d) The deposit will be returned to the management contractor when
all bills have been paid and the investigations have been completed or
terminated.
4. Section 537.4 is revised to read as follows:
Sec. 537.4 Determinations.
The Chair shall determine whether the results of a background
investigation preclude the Chair from approving a management contract
because of the individual disqualifying factors contained in Sec.
533.6(b)(1) of this chapter. The Chair shall promptly notify the tribe
and management contractor if any findings preclude the Chair from
approving a management contract or a change in financial interest.
Dated: December 16, 2011, Washington, DC.
Tracie L. Stevens,
Chairwoman.
Steffani A. Cochran,
Vice-Chairwoman.
Daniel J. Little,
Associate Commissioner.
[FR Doc. 2011-32759 Filed 12-21-11; 8:45 am]
BILLING CODE 7565-02-P