[Federal Register Volume 77, Number 154 (Thursday, August 9, 2012)]
[Rules and Regulations]
[Pages 47517-47519]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-19163]
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DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
25 CFR Part 573
Enforcement Actions
AGENCY: National Indian Gaming Commission.
ACTION: Final rule.
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SUMMARY: The National Indian Gaming Commission (NIGC or Commission) is
amending its enforcement regulation to include a graduated pre-
enforcement process through which a tribe may come into voluntary
compliance.
DATES: Effective Date: September 10, 2012.
[[Page 47518]]
FOR FURTHER INFORMATION CONTACT: Melissa Schlichting, National Indian
Gaming Commission, 1441 L Street NW., Suite 9100, Washington, DC 20005.
Telephone: 202-632-7003; email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The Indian Gaming Regulatory Act (IGRA or Act), Public Law 100-497,
25 U.S.C. 2701 et seq., was signed into law on October 17, 1988. The
Act establishes the National Indian Gaming Commission (``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.
II. Previous Rulemaking Activity
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. 75 FR 70680 (Nov. 18, 2010).
After consulting with tribes, NIGC published a Notice of Regulatory
Review Schedule (NRR) setting out a consultation schedule and process
for review. 76 FR 18457 (Oct. 12, 2011). 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.
The Commission conducted tribal consultations as part of its review
of Part 573. Tribal consultations were held in every region of the
country and were attended by numerous Tribes and Tribal leaders or
their representatives.
After considering the comments received from the public and through
Tribal consultations, the Commission proposed amending Part 573 to
include a graduated pre-enforcement process whereby a gaming operation
may achieve voluntary compliance with the IGRA, Commission regulations
or tribal ordinances and resolutions approved by the Chair. Following
the publication of the proposed rule, additional Tribal consultations
were held. The public comment period on the proposed rule closed on
February 27, 2012.
III. Review of Public Comments
In response to our Notice of Proposed Rulemaking, published
December 27, 2011, 76 FR 80847, we received the following comments:
Section 573.2 When may a letter of concern and/or warning letter be
issued?
Comment: One commenter argued that, as currently drafted, a warning
letter is essentially the same as a notice of violation, except that a
warning letter cannot be appealed. The commenter stated that a warning
letter would be considered final agency action by a court even though
it is issued by NIGC staff rather than the Chair. Therefore, the
commenter suggested that the NIGC remove warning letters as a pre-
enforcement step because a letter of concern is sufficient to
accomplish the Commission's intent to encourage voluntary compliance
and resolve any potential enforcement issues. The commenter stated
further that because a warning letter contains a finding that a
violation has occurred, it could have significant negative
repercussions for a tribe that is required to report such actions to
lenders or other debt holders, and may also have negative licensing
implications for a tribe and its employees.
Response: The Commission agrees with the commenter and has removed
warning letters as a pre-enforcement option.
IV. Regulatory Matters
Regulatory Flexibility Act
The rule will not have a significant impact on a substantial number
of small entities as defined under the Regulatory Flexibility Act, 5
U.S.C. 601, et seq. Moreover, Indian Tribes are not considered to be
small entities for the purposes of the Regulatory Flexibility Act.
Small Business Regulatory Enforcement Fairness Act
The rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. The rule does not have an
effect on the economy of $100 million or more. The rule will not cause
a major increase in costs or prices for consumers, individual
industries, Federal, State, local government agencies or geographic
regions. Nor will the rule have a significant adverse effect on
competition, employment, investment, productivity, innovation, or the
ability of the enterprises, to compete with foreign based enterprises.
Unfunded Mandate Reform Act
The Commission, as an independent regulatory agency, is exempt from
compliance with the Unfunded Mandates Reform Act, 2 U.S.C. 1502(1); 2
U.S.C. 658(1).
Takings
In accordance with Executive Order 12630, the Commission has
determined that the rule does not have significant takings
implications. A takings implication assessment is not required.
Civil Justice Reform
In accordance with Executive Order 12988, the Commission has
determined that the rule does not unduly burden the judicial system and
meets the requirements of sections 3(a) and 3(b)(2) of the Order.
National Environmental Policy Act
The Commission has determined that the rule does not constitute a
major federal action significantly affecting the quality of the human
environment and that no detailed statement is required pursuant to the
National Environmental Policy Act of 1969, 42 U.S.C. 4321, et seq.
Paperwork Reduction Act
This rule does not require information collection under the
Paperwork Reduction Act of 1995, 44 U.S.C. 2501, et seq., and is
therefore not subject to review by the Office of Management and Budget.
List of Subjects in 25 CFR Part 573
Enforcement, Enforcement actions, Gambling, Gaming, Indians, Indian
gaming.
For the reasons stated in the preamble, the National Indian Gaming
Commission amends 25 CFR part 573 as follows:
PART 573--COMPLIANCE AND ENFORCEMENT
0
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, 65
FR 67249, 3 CFR, 2000 Comp., p. 304.
0
2. Revise the part 573 heading to read as set forth above.
0
3. Revise Sec. 573.1 to read as follows:
[[Page 47519]]
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.
0
4. Add Sec. 573.2 to read as follows:
Sec. 573.2 When may a letter of concern be issued?
(a) Prior to the Chair taking an enforcement action, a letter of
concern 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. A letter of concern describes the
available facts and information, includes a preliminary assessment
regarding the incident or condition, and indicates that it may be a
violation.
(b) Action under this section does not constitute agency action.
(c) A letter of concern issued under paragraph (b) of this section
must provide a time period for the respondent to respond. If the letter
of concern is resolved without enforcement action, NIGC staff may send
an investigation completion letter pursuant to Sec. 571.4 of this
chapter.
(d) 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 is issued, the
enforcement action must state the reasons for moving directly to an
enforcement action without first issuing a letter of concern.
0
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]
0
6. Redesignate Sec. 573.6 as Sec. 573.4.
0
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, 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.
0
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: July 31, 2012, Washington, DC.
Tracie L. Stevens,
Chairwoman.
Steffani A. Cochran,
Vice-Chairwoman.
Daniel J. Little,
Associate Commissioner.
[FR Doc. 2012-19163 Filed 8-8-12; 8:45 am]
BILLING CODE 7565-01-P