[Federal Register Volume 76, Number 248 (Tuesday, December 27, 2011)]
[Proposed Rules]
[Pages 80847-80850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-32757]
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DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
25 CFR Part 573
RIN 3141-AA50
Enforcement Actions
AGENCY: National Indian Gaming Commission, Interior.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This action proposes to amend NIGC regulations to include a
graduated pre-enforcement process through which a tribe may come into
compliance before an enforcement action is taken by the Chair.
Voluntary compliance is the goal of the Commission. This amendment sets
forth how Commission staff and tribes may address potential or existing
compliance issues. The amendment retains the Chair's authority to issue
an enforcement action at the Chair's discretion.
The amendment also modifies this Part to allow a temporary closure
order when there is clear and convincing evidence that a gaming
operation defrauds a tribe. The current regulation provides for the
issuance of a temporary closure order when there is clear and
convincing evidence that a gaming operation defrauds a tribe or a
customer. The Commission believes this issue has been adequately
addressed by ordinance requirements of the IGRA and NIGC regulations,
because tribes must include in their ordinances a dispute resolution
procedure to address issues where a customer believes she or he has
been defrauded. If the tribe fails to follow their ordinance,
enforcement action may be taken.
Finally, current regulations do not provide specificity for when an
enforcement action becomes final, such as when a notice of violation is
issued and there is no appeal filed or settlement agreement reached.
The proposed amendment clarifies that an enforcement action becomes
final agency action and a final order of the Commission if no appeal is
filed or a settlement agreement reached.
DATES: Submit comments on or before February 27, 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.
1. Email comments to: [email protected].
2. Mail comments to: National Indian Gaming Commission, 1441 L
Street NW., Suite 9100, Washington, DC 20005.
3. Hand deliver comments to: 1441 L St. NW., Suite 9100,
Washington, DC 20005.
4. 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].
[[Page 80848]]
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 gaming on
Indian lands. 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 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 (Nov. 18, 2010). On April 4, 2011, after holding
eight consultations and reviewing all comments, NIGC published a Notice
of Regulatory Review Schedule (NRR) 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. Part 573
was included in this regulatory review.
III. Development of the Proposed Rule
The Commission conducted a total of 9 tribal consultations as part
of its review of Part 573. Tribal consultations were held in every
region of the country and were attended by over 160 tribes and 443
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 573. After
considering the comments received from the public and through tribal
consultations, the Commission proposes one amendment to Part 573:
inclusion of a graduated pre-enforcement process whereby a gaming
operation has the opportunity to come into compliance with IGRA,
Commission regulations, or tribal ordinances and resolutions approved
by the Chair before an enforcement action is taken. This process would
not restrict the Chair from initiating enforcement action if
circumstances require.
A. Voluntary Compliance is a Goal of the Commission
The proposed draft sets out voluntary compliance as a goal of the
Commission and identifies how voluntary compliance can be achieved.
Comments in response to the NOI and NRR consistently stated that the
NIGC and tribes should be in closer communication prior to the issuance
of an enforcement action. While the Commission believes it is necessary
for the Chair to retain the discretion to issue an enforcement action
whenever the circumstances require it, the Commission also firmly
believes that communicating with tribes before taking an enforcement
action can only lead to improved relationships and continued
compliance. With these two goals in mind, the Commission published a
Preliminary draft of the proposed rule creating a graduated process
which can be used by NIGC staff to inform a tribe of potential
compliance issues. While there are two measures that can be taken as
part of this process, either may be taken independent of the other.
The first and lowest level of notification to the tribe of a
possible compliance issue is a ``letter of concern.'' A letter of
concern would be issued when NIGC staff believes there could be a
possible violation of IGRA, NIGC regulations, or the tribe's approved
gaming ordinance. The second level of notification to the tribe is a
``warning letter.'' A warning letter provides notice to the tribe that
NIGC staff believes an actual violation of IGRA, NIGC regulations, or
the tribe's approved gaming ordinance has occurred, or is occurring.
The letters would provide the factual basis for the potential
violation, inform the tribe of any corrective action that may be taken
to cure the violation, and provide a timeframe for responding to the
letter or coming into compliance. In the Preliminary draft, the second
action was called a ``non-compliance notice.'' Commentors suggested
either doing away with the non-compliance notice entirely, or finding a
different title for it. The Commission believes having two potential
options for action that may be taken by NIGC staff prior to the
issuance of an enforcement action is positive for both the NIGC and
tribes. However, the Commission did change the name of the second
action to a ``warning letter.''
The goal of this proposed amendment is to start with the lowest
possible action and move forward only if compliance is not achieved.
However, under certain circumstances, the NIGC staff may be required to
issue a warning letter without first issuing a letter of concern.
Alternatively, a letter of concern could be issued and the tribe may
fully address the concern without any further action required by the
NIGC. This would achieve the goal of voluntary compliance.
Many comments to the Preliminary draft stated that the regulation
should require both actions to include a deadline for the tribe to
respond if it disagrees with the NIGC's conclusions and a deadline for
the tribe to come into compliance. The Commission agrees with this
recommendation and incorporated those requirements into this proposed
amendment. Some comments to the Preliminary draft questioned whether
these letters were final agency action. It is important to note that
these actions would be issued by NIGC staff, not the Chair, and are
therefore not final agency action.
Other comments acknowledged that certain circumstances will warrant
immediate issuance of an NOV and requested that the regulation specify
circumstances or criteria that should be present before the Chair can
bypass this process and take immediate enforcement action. One
commentor stated that while they are confident in this Commission to
positively utilize this process, they are concerned future Commissions
may disregard the general process. The intent of this proposed
amendment is to achieve voluntary compliance before an enforcement
action is issued. Presumably, a Chair will not initiate an enforcement
action without NIGC staff first having taken appropriate pre-
enforcement action unless, in the Chair's judgment, the circumstances
require immediate action
[[Page 80849]]
or it is impracticable to issue one or both of these pre-enforcement
actions. However, if the Chair takes enforcement action before a letter
of concern and/or warning letter is issued, the enforcement action will
likely explain the reason for moving directly to an enforcement action
without pre-enforcement action.
B. Temporary Closure Order will be Issued When There is Clear and
Convincing Evidence that a Gaming Operation Defrauds a Tribe
The proposed rule amends this Part to allow a temporary closure
order only when there is clear and convincing evidence that a gaming
operation defrauds a tribe, not a customer. A commentor pointed out
that the current regulation provides for the issuance of a temporary
closure order when there is clear and convincing evidence that a gaming
operation defrauds a customer. The Commission believes this issue has
been adequately addressed by ordinance requirements of the IGRA and
NIGC regulations. Tribes must include in their ordinances a dispute
resolution procedure to address issues where a customer believes she or
he has been defrauded. If the tribe fails to follow their ordinance,
enforcement action may be taken.
C. Final Agency Action
The current regulations do not provide specificity for when an
enforcement action such as a notice of violation is issued and there is
no appeal filed or settlement agreement reached. The proposed amendment
clarifies that an enforcement action becomes final agency action and a
final order of the Commission if no appeal is filed or a settlement
agreement reached.
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
The proposed rule is not a major rule under the Small Business
Regulatory Enforcement Fairness Act, 5 U.S.C. 804(2). This rule does
not have an annual effect on the economy of $100 million or more. This
rule will not cause a major increase in costs or prices for consumers,
individual industries, federal, state or local government agencies or
geographic regions and does not have a significant adverse effect on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises.
Unfunded Mandate Reform Act
The Commission, as an independent regulatory agency, 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
Executive Order.
National Environmental Policy Act
The Commission has determined that the proposed 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
This proposed rule does not require information collection under
the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq., and is
therefore not subject to review by the Office of Management and Budget.
List of Subjects in 25 CFR 573
Enforcement, Enforcement Actions, Gambling, Gaming, Indians, Indian
Gaming.
For the reasons stated in the preamble, the National Indian Gaming
Commission proposes to amends 25 CFR part 573 as follows:
PART 573--COMPLIANCE AND ENFORCEMENT
1. The authority citation for part 573 is revised to read as
follows:
Authority: 25 U.S.C. 2706(b)(10); 25 U.S.C. 2713; E.O. 13175.
2. Revise the part 573 heading to read as set forth above.
3. Revise Sec. 573.1 to read as follows:
Sec. 573.1 What is the purpose of this part?
Voluntary compliance is the goal of the Commission. Voluntary
compliance is achieved when a tribe and the NIGC staff are able to
resolve any potential enforcement issues prior to the Chair issuing an
enforcement action. This part sets forth efforts for achieving
voluntary compliance and enforcement action when voluntary compliance
is not forthcoming. While this part is intended to garner voluntary
compliance through a graduated enforcement process, there may be
circumstances under which a graduated enforcement process is omitted
and an enforcement action must be taken. This part also sets forth
general rules governing the Commission's enforcement of the Act, this
chapter, and tribal ordinances and resolutions approved by the Chair
under part 522 of this chapter. Civil fines in connection with notice
of violation issued under this part are addressed in part 575 of this
chapter.
4. Add Sec. 573.2 to read as follows:
Sec. 573.2 When may a letter of concern and/or warning letter be
issued?
(a) Prior to the Chair taking an enforcement action, a letter of
concern and/or a warning letter may be provided to the respondent by
NIGC staff, detailing concerns regarding the respondent's compliance
with the Act, this chapter, or any tribal ordinance or resolution
approved by the Chair under part 522 of this chapter.
(b) Action under this section does not constitute agency action and
may be taken by NIGC staff issuing the respondent, either one or both
of the following:
(1) A ``letter of concern'' which recites available facts and
information about the incident or condition and indicates that it may
be a violation; and/or
(2) A ``warning letter'' which confirms an assessment of the matter
and states the necessary corrective action the respondent needs to
take, agrees to take, or has taken.
(c) The letters referenced in paragraph (b) of this section may be
issued consecutively, but NIGC staff may issue a warning letter without
first issuing a letter of concern.
(d) Either action under paragraph (b) of this section shall provide
a time period for the respondent to respond, and shall also provide a
time period for the respondent to come into compliance. If voluntary
compliance efforts are unsuccessful, enforcement action may be taken.
If voluntary compliance efforts are successful, NIGC staff will send an
investigation completion letter pursuant to Sec. 571.4.
[[Page 80850]]
(e) The Chair's discretion to take an enforcement action is not
limited or constrained in any way by this section. When the Chair takes
enforcement action before a letter of concern and/or warning letter is
issued, the enforcement action will state the reasons moving directly
to an enforcement action without first issuing a letter of concern and/
or warning letter.
5. In Sec. 573.3, revise paragraph (a) to read as follows:
Sec. 573.3 When may the Chair issue a notice of violation?
(a) The Chair may issue a notice of violation to any person for
violations of any provision of the Act or this chapter, or of any
tribal ordinance or resolution approved by the Chair under part 522 of
this chapter.
* * * * *
Sec. 573.6 [Redesignated as Sec. 573.4]
6. Redesignate Sec. 573.6 as Sec. 573.4
7. In newly redesignated Sec. 573.4, revise the section heading
and paragraphs (a) introductory text, (a)(3), (6), (7), (8), (9), (12),
(c) introductory text, (c)(1), (c)(2) introductory text, and (c)(3) to
read as follows:
Sec. 573.4 When may the Chair issue an order of temporary closure?
(a) When an order of temporary closure may issue. Simultaneously
with or subsequently to the issuance of a notice of violation under
Sec. 573.3 of this part, the Chair may issue an order of temporary
closure of all or part of an Indian gaming operation if one or more of
the following substantial violations are present:
* * * * *
(3) A gaming operation operates for business without a tribal
ordinance or resolution that the Chair has approved under part 522 of
this chapter.
* * * * *
(6) There is clear and convincing evidence that a gaming operation
defrauds a tribe.
(7) A management contractor operates for business without a
contract that the Chair has approved under part 533 of this chapter.
(8) Any person knowingly submits false or misleading information to
the Commission or a tribe in response to any provision of the Act, this
chapter, or a tribal ordinance or resolution that the Chair has
approved under part 522 of this chapter.
(9) A gaming operation refuses to allow an authorized
representative of the Commission or an authorized tribal official to
enter or inspect a gaming operation, in violation of Sec. 571.5 or
Sec. 571.6 of this chapter, or of a tribal ordinance or resolution
approved by the Chair under part 522 of this chapter.
* * * * *
(12) A gaming operation's facility is constructed, maintained, or
operated in a manner that threatens the environment or the public
health and safety, in violation of a tribal ordinance or resolution
approved by the Chair under part 522 of this chapter.
* * * * *
(c) Informal expedited review. Within seven (7) days after service
of an order of temporary closure, the respondent may request, orally or
in writing, informal expedited review by the Chair.
(1) The Chair shall complete the expedited review provided for by
this paragraph within two (2) days after his or her receipt of a timely
request.
(2) The Chair shall, within two (2) days after the expedited review
provided for by this paragraph:
* * *
(3) Whether or not a respondent seeks informal expedited review
under this paragraph, within thirty (30) days after the Chair serves an
order of temporary closure the respondent may appeal the order to the
Commission under part 577 of this chapter. Otherwise, the order shall
remain in effect unless rescinded by the Chair for good cause.
8. Add Sec. 573.5 to read as follows:
Sec. 573.5 When does an enforcement action become final agency
action?
An enforcement action shall become final agency action and a final
order of the Commission when:
(a) A respondent fails to appeal the enforcement action as provided
for in part 577 of this chapter and does not enter into a settlement
agreement resolving the matter in its entirety; or
(b) A respondent enters into a settlement agreement resolving the
matter in its entirety at any time after the issuance of the
enforcement action.
Dated: December 16, 2011, Washington, DC.
Tracie L. Stevens,
Chairwoman.
Steffani A. Cochran,
Vice-Chairwoman.
Daniel J. Little,
Associate Commissioner.
[FR Doc. 2011-32757 Filed 12-23-11; 8:45 am]
BILLING CODE 7565-02-P