[Federal Register Volume 77, Number 154 (Thursday, August 9, 2012)]
[Rules and Regulations]
[Pages 47517-47519]
From the Federal Register Online via the Government Printing 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: Melissa_Schlichting@nigc.gov.

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