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1 

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7 

8 

9 BEFORE THE NATIONAL INDIAN GAMING COMMISSION 

10 TRIBAL CONSULTATION 

11 February 22, 2012 

12 The Hard Rock Hotel and Casino 

13 11000 Broadway, S.E. 

14 Albuquerque, New Mexico 

15 

16 

17 Members of the Commission: 

18 Ms. Steffani A. Cochran, Vice Chair 

Mr. Daniel J. Little, Associate Commissioner 

19 John R. Hay, Esq., Attorney, Office of the 

General Counsel 

20 Mr. Lance Vallo, Acting Regional Director 

21 

Reported by: Karen Lee Clark, RPR, New Mexico CCR 227 

22 Bean & Associates, Inc. 

Professional Court Reporting Service 

23 201 Third Street, N.W., Suite 1630 

Albuquerque, New Mexico 87102 

24 

25 (3452K) KLC 
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2 

1 VICE CHAIR COCHRAN: Good morning. Welcome. 

2 I feel like this table needs to be facing this 

3 way. I encourage -- if we have any chairmen, any 

4 elected leadership, or we have a chairman of gaming 

5 commissioners -- or gaming commissions -- excuse me -- 

6 if you'd like to come join us at the table, please do. 

7 We welcome you. 

8 We were waiting for a few other people who may 

9 not be able to make it this morning, so I'm going to go 

10 ahead and get started because I know we are already 

11 running a little bit late. 

12 My name is Steffani Cochran. I am the Vice 

13 Chairwoman of the National Indian Gaming Commission. 

14 And I am a member of the Chickasaw Nation. I was born 

15 and raised in Oklahoma, but New Mexico is home. And I 

16 spent the last about 20 years of my life in New Mexico. 

17 And the three years that I'm spending on the East Coast, 

18 while fun and a challenge for me, definitely reminds me 

19 how homesick I get. It's the time when I hate to get on 

20 the airplane, mostly when I'm leaving Indian county. 

21 So it's always nice to be home. And I look 

22 forward to a productive meeting today. We have a few 

23 things on the agenda, but it shouldn't be a long 

24 meeting. I'm going to turn it over. We've got Eddie 

25 Gomez here, who is the Executive Director for the -- the 
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3 

1 Gaming Commission for Isleta. I am going to ask him to 

2 open our meeting up this morning and to introduce

3 himself. 

4 If you will, please, stand and -- 

5 MR. GOMEZ: Good morning, everyone. Welcome 

6 to Isleta and the Hard Rock Hotel and Casino. My name 

7 is Eddie Gomez. I'm the Executive Director of the 

8 Pueblo of Isleta Gaming and Regulatory Agency. 

9 The governors and the Pueblo are honored to 

10 have the Commission and tribal leaders here today, the 

11 staff. They have asked me to extend their very best to 

12 everyone and to wish everyone well and have many 

13 successes during the meeting today. 

 14 Again, welcome to Isleta. 

15 VICE CHAIR COCHRAN: I have with me this 

16 morning one of the associate commissioners, Dan Little. 

17 I will let him introduce himself. And I also have 

18 several staff members with me. 

19 So I'm going to ask everyone to introduce 

20 themselves, as well, and make introductions. I would 

21 like to go around the table and make introductions and 

22 then to go out to the audience and make introductions so 

23 we all know who is with us this morning as we go through 

24 the consultation. 

25 So Commissioner Little, I turn it over to you. 
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4 

1 COMMISSIONER LITTLE: One of the associate 

2 commissioners? I'm the only associate commissioner. 

3 Good morning, everyone. I'm glad you all came 

4 out today to listen to this important information that 

5 we're working on here. Regulatory review is one of the 

6 major priorities of this Commission. It's something 

7 that's long overdue, and something I think will be very 

8 beneficial to this industry. 

9 But my name is Dan Little. I'm the Associate 

10 Commissioner, here, of the NIGC. I started my term in 

11 April of 2010. It's hard to believe I'm coming up, 

12 almost, on just one year left on my three-year term. I 

13 love what I'm doing here. I love working with tribes. 

 14 Prior to coming on the Commission, I spent 

15 over ten years with the Mashantucket Pequot Tribe in 

16 Foxwoods and providing regulatory assistance on the 

17 compliance issues there. 

 18 I'm very happy to be here, and I welcome you 

19 all. And I look forward to hearing some interesting 

20 comments and some helpful information that will help 

21 guide us as we move forward with these regulations. 

22 So welcome everybody. 

23 MR. HAY: Good morning. I am Joe Hay. I'm 

24 with the Office of the General Counsel. I'm one of the 

25 twelve attorneys that support the Commission. 
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5 

1 MR. VALLO: I'm Lance Vallo, Acting Regional 

2 Director of NIGC, Phoenix. 

3 MR. BACA: Elias de Baca, Pueblo of Tesuque, 

4 Gaming Commissioner. 

5 MR. SANCHEZ: Pat Sanchez, Executive Director, 

6 Pueblo of Tesuque Gaming Commission. 

7 MR. LUJAN: Good morning, everybody. Gene 

8 Lujan, Chairman of the Gaming Commission at Santa Ana 

9 Pueblo. 

10 MS. BLUELAKE: Good morning. I'm Lisa 

11 Bluelake, a Chairwoman of the Sandia Tribal Gaming 

12 Commission. 

13 MS. TORIBIIO: Good morning, everybody. I'm 

14 Theresa Toribiio, Commissioner and Vice Chair, with the 

15 Pueblo of Sandia. 

16 MS. PATTEA: Good morning, everybody. My name 

17 is Dorinda Pattea from Arizona. I'm an investigator. 

18 MR. BUSH: Good morning. Tim Bush, Fort 

19 McDowell Mohave-Apache Tribal Gaming Office, Executive 

 20 Director. 

21 MS. CAMACHO: I'm Roberta Comacho. I'm from 

22 Arizona, an investigator. 

23 MR. DELORIS: Good morning, everybody. I'm 

24 Andrew Deloris, Acting Executive Director, Pueblo of 

25 Laguna. 
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6 

1 MS. MAESTES: Good morning. I'm Bernadette 

2 Maestes, Licensing Director, Pueblo of Laguna. 

3 MS. GONZALEZ: Good morning. I'm Diane 

4 Gonzalez, Lead Internal Auditor, Santa Clara. 

5 MR. GOMEZ: Again, Eddie Gomez, Executive 

6 Director, Pueblo of Isleta, Gaming Regulatory Agency. 

7 MR. ROME: Good morning. I'm David Rome. I'm 

8 the Acting General Counsel of the Mohegan Gaming 

9 Advisors, which is a unit of the Mohegan Tribal Gaming 

10 Authority. I'm here on behalf of the Mohegan Tribe. 

11 MR. ALBAUGH: Good morning. My name is Guy 

12 Albaugh. I'm an internal auditor of Santa Ana. 

13 MR. MONTOYA: Ronny Montoya. I'm the 

14 Licensing Manager for the Santa Ana Gaming Commission. 

15 MS. GARCIA: Colleen Garcia with the Santa Ana 

16 Gaming Commission, also with the New Mexico Association 

17 of Gaming Commissioners. 

18 MR. LUCERO: Good morning, everybody. Jose 

19 Lucero. I'm a licensing investigator for the Pueblo of 

20 San Felipe Gaming Commission. 

21 MS. ORTIZ: Good morning. I'm Maylene Ortiz 

22 from the San Felipe Gaming Commission. I'm a licensing 

23 specialist. 

24 MR. GARCIA: Good morning. I'm Robert Garcia 

25 from San Felipe. I'm a licensing manager. 
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7 

1 MS. SNEED: Hello. I'm Pam Sneed. I'm a 

2 special agent with the Cherokee Tribal Gaming 

3 Commission. 

 4 MS. MARTINEZ: Gaylene Martinez, Taos Gaming 

5 Commission. 

6 MS. TRUJILLO: Good morning. I'm Yvonne 

7 Trujillo, Executive Director for the Taos Gaming 

8 Commission. 

9 MR. LESLIE: Roger Leslie, Executive Director, 

10 San Felipe Pueblo, as well as the Chairman of the New 

11 Mexico Association of Indian Gaming Commissioners. 

12 MS. HALL: Good morning. I'm Pat Hall from 

13 Maynes, Bradford, Shipps & Sheftel, general counsel to 

14 the Southern Ute Indian Tribe. 

15 MS. TAYLOR: Good morning. I'm Andrea Taylor, 

16 Vice Chair of Commissioners for the Southern Ute Indian 

17 Tribe. 

18 MS. BAKER: Hello. Linda Baker, Southern Ute 

19 Gaming Commissioner. 

20 MS. VALLIO: Hello. My name is Darla Vallio, 

21 Acoma Gaming Commission, Gaming License Commissioner. 

22 VICE CHAIR COCHRAN: Anyone else? 

23 (No audible response.) 

24 VICE CHAIR COCHRAN: Lance, you also have 

25 Sally with you? 
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8 

1 MR. VALLO: Oh, yes. Sally Virag is out in 

2 the lobby, there. She's our admin assistant for the 

3 Phoenix region. 

4 VICE CHAIR COCHRAN: She can certainly help 

5 you with anything you might need. She's the lady in the 

6 know. 

7 Well, welcome again. And I appreciate that 

8 this particular group is made up of a lot of regulators. 

9 Often, in consultations, in addition to leadership, we 

10 will see attorneys. And while I am an attorney, it's 

 11 nice to hear from people outside of the legal profession 

12 as to the regulations that are being proposed and their 

13 thoughts on how it will play out in the day-to-day 

14 regulatory activities within your own operations. 

15 So I know some of you have traveled a great 

16 distance, so I'm glad you're here, and I look forward to 

17 the discussion. 

18 I'm going to run quickly -- as I said, this is 

19 not a lengthy agenda. What I'm going to do is run 

20 quickly through kind of the overview. 

21 If there are any comments that need to be made 

22 before we get to a topic, if you need to leave -- if you 

23 have some type of a scheduling conflict or you need to 

24 leave, but you need to make a comment, please me know. 

25 We are happy to allow that comment to be made into the 
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9 

1 record so that you can carry on with your duties, or 

2 whatever your needs are. 

3 We are scheduled today to go through groups 

4 one, two, four, and five. And in these groups, in 

5 particular group one, we're going to go over Part 559 

6 for facility license and notifications, and group two, 

7 Part 573, which is revisions to enforcement provisions; 

8 Part 502, a definition change; and then, the proposed 

9 regulations that have been revised and drafted regarding 

10 appeal proceedings before the Commission, which includes 

11 Part 519, Part 524, Part 539, Part 577, which has been 

12 incorporated into new Part 580. So that will be our 

13 morning discussion. 

14 And then after we take a brief break, we'll 

15 move to group four, which does include Part 556, the 

16 background investigations for primary management 

17 officials and key employees, the pilot program; 558, 

18 gaming licensing for key employees and primary

19 management officials, again, part of the pilot program; 

20 and Part 537, background investigations. 

21 We'll end the morning on group five, which is 

22 Part 518, self-regulation, Class II gaming. And this is 

23 one of the sessions that I have a real interest in. 

24 Self-regulation for Class II is a very important issue 

25 for tribes in Oklahoma, in particular. And so it's been 
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1 something that I've spent a lot time focussing on. So I 

2 am looking forward to that discussion. So that was new. 

 3 I'm going to turn it over to John. John is 

4 going to run you through the PowerPoint to introduce the 

5 topics to you. And then, after we finish with the 

6 PowerPoint presentation, then we'll move to each part. 

7 So John -- 

8 MR. HAY: Thank you. This is one of a series 

9 of consultation meetings that the Commission has been 

10 holding. Tribal consultation meetings are between 

11 tribal governments and the federal government only, and 

12 so we would -- we appreciate having tribes and their 

13 designees here, but these meetings are not open to the 

14 public. 

15 The Commission has been following Executive 

16 Order 13175 that deals with consultation and 

17 coordination within Indian tribal governments. And the 

18 purpose of 13175 is to encourage federal agencies to 

19 reach out to tribes on any of its policymaking, 

20 especially when dealing with the establishment of 

21 federal standards, such as regulations that we're 

22 proposing today. It's also an acknowledgement of the 

23 sovereignty of tribes and the government's desire not to 

24 infringe upon that sovereignty, if possible. 

25 All of the consultations are to be 
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11 

1 transcribed. We have a court reporter, over here, who 

2 is taking everything down. 

3 The transcripts of this meeting, as well as 

4 any written comments on these regulations, are placed on 

5 the NIGC website, www.NIGC.gov. I think we've been 

6 doing a fairly good job of getting them up there as soon 

7 as they come in our door so you can look at what other 

8 tribes are saying about our regulations that might help 

9 you in formulating some of your own opinions. 

10 The Commission has made the commitment that 

11 every comment they receive will be reviewed and 

12 considered. Okay. Any proposed or final rule will 

13 include a summary of the comments that we receive. The 

14 Commission has wanted a clear and transparent process, 

15 and we hope we have achieved that. 

16 Steffani went over, a few minutes ago, our 

17 consultation agenda. We'll be going through groups one, 

18 two, and four today. 

19 Part 559 are facility license notifications. 

20 Part 573 are enforcement regulations. New subchapter H, 

21 which includes Parts 519, 524, 539, and 577, are all 

22 regulations dealing with appeals and agency actions. 

23 Group four are the background investigation 

24 regulations, gaming license regulations, as well as the 

25 definitions section. And finally, we'll end up with 
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1 518, which is the self-regulation section. 

2 I want to talk a little about some of the 

3 regulations and the timelines that have already -- 

4 already passed. 

5 Part 514 are our fee regulations. That was 

6 one of the first ones we tackled because NIGC needs fees 

7 to operate, so, obviously, that is very important to us. 

8 The proposed rule was published in the Federal Register 

9 on October 11th, 2011, and the comment period closed on 

10 December 12, 2011. The final rule was approved by the 

 11 Commission at the public meeting on January 25th and 

12 published on February 2nd. 

13 The fee rule deals with the submittal fees 

14 from tribal gaming operations to the NIGC. Previously, 

15 that had been done on a bi-annual basis. The change to 

16 the rule returns it to its original -- the original 

17 rule, which was submitting fees to us on a quarterly 

18 basis. Okay. That rule becomes effective on 

19 October 1st of this year; however, you won't start 

20 making your fee payments on a quarterly basis until 

21 starting January 1st of 2013, so there is some time to 

22 prepare for that. 

23 This rule change also instituted a system for 

24 late fees. Depending on how late fees are, there will 

25 either be a 10 or 15 or 20 percent late fee associated 
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1 with the fees. 

2 Part 523 applies to ordinances that were 

3 enacted prior to January 22nd of 1993. That provision 

4 was there when the Commission first opened up its doors, 

5 and it became obsolete. And so it's a matter of 

6 housekeeping, the Commission decided to get rid of it, 

7 if you will. And so a final rule was published on 

8 February 2nd of this year, and it eliminates Part 523 

9 since there aren't any of those ordinances still 

10 floating out there. 

11 Part 559 are facility license notifications. 

 12 That rule was proposed on January 31st of this year. 

13 And the comment period was open until April 2nd of this 

14 year. So we're going to go into a little about what 

15 Part 559 is. 

16 Part 559 was originally enacted back in 2009. 

17 And the purpose of it was for the Commission to identify 

18 new gaming facilities that were opening up or were 

19 closing down. It was important back then because there 

20 were a few instances where we didn't realize that new 

21 gaming facilities had been opened until after they had 

22 been opened. And we couldn't verify, at that time, 

23 whether or not those facilities were located on Indian 

24 land. And so we wanted to instill some sort of 

25 mechanism to give us notice of when this was happening 
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 14 

1 so that we could make our internal review of the land 

2 status, so that we could be sure that it was eligible 

3 for gaming. Okay? 

4 This new rule modifies, I think fairly 

5 substantially, a lot of those provisions, because 

6 facility license standards also included provisions 

7 dealing with the environment, health and safety, and 

8 welfare of the facility itself. Okay. And so what the 

9 proposed rule did was that 120 days prior to your 

10 issuance of a license for the facility, you would submit 

11 notification to the NIGC that a new facility would be 

 12 opening, along with some basic information so that we 

13 can take a look at it and make sure that it is eligible 

14 for gaming. Okay. 

15 When we first proposed this rule, we received 

 16 a number of comments that IGRA doesn't require us to 

17 actually do an Indian land determination. And so the 

18 proposed rule does not require us to actually issue one. 

19 We do it for our internal purposes so that we can 

20 respond with -- with confidence that if anyone calls us 

21 up, whether it be someone from the state or from another 

22 tribe or from another federal agency, an elected member 

 23 of Congress, asking us, "Well, is this eligible for 

24 gaming?" we can say with confidence, "Yes, it is." 

25 The comments all said to us, "Hey, you have to 
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 15 

1 make clear to everyone that it's tribes, not NIGC, that 

2 licenses tribal gaming facilities. And our preamble 

3 clarified that point. We felt it was an important point 

 4 because we -- we all get calls in the office saying, 

5 "Hey, how come the NIGC licensed this facility?" or 

6 "When did it license this facility?" And we're trying 

7 to explain to the public that that's not our role, that 

8 tribes license these facilities. 

9 A newly-issued or a new-facility license must 

10 be sent to NIGC within 30 days of it being issued. We 

11 really haven't received many comments on this point at 

12 all. It seems pretty reasonable. All you have to do 

13 is, you know, stick it in the mail to us. And we also 

14 accept electronic submissions. 

15 The second part of this was that tribes send 

16 in a tribal attestation that the tribe has determined 

17 that the construction and maintenance of the facility 

18 and operation is conducted in a manner which adequately 

19 protects the environment, public health, and safety. 

20 Comments generally accepted this approach. 

21 One thing that we've heard from the beginning, 

22 when these regulations were enacted, are that other 

23 agencies, federal agencies, and tribal agencies regulate 

24 these areas, and that there are other laws out there 

25 that cover these areas, and that we strive not to be 
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16 

1 redundant or infringe on other areas of jurisdiction. 

2 The proposed rules also require that we're 

3 given notice when a facility license is terminated or 

4 expired or the facility closes, so 30 days after, we 

5 would receive notice of any of those events. It is just 

6 good housekeeping for us so that we can keep track of 

 7 these things. We have our compliance officers who make 

8 fairly routine visits out to the facilities. And it's 

9 good to know beforehand for them not to go out there if 

10 it's closed. 

 11 This notice is not required for seasonal 

12 closures or temporary closures for less than 180 days. 

13 There are some facilities out there that only operate 

14 for parts of the year, and -- and so they're not 

15 required to -- to send us notice of when they're closing 

16 down. We've received generally favorable comments to 

17 this approach, although some suggested that there are 

18 shorter time periods, less than 180 days, to -- to give 

19 us notice. 

20 Another part of this was the definition of 

21 "construction and maintenance of the gaming facility." 

22 Originally that was in Part 502.22, and the Commission 

23 thought it would be best if we actually moved that 

24 definition into the actual regulation that dealt with 

25 it. And so that definition has been moved to 559.4. 
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17 

1 And it's also the additional 559.6 which 

2 allows the Commission to request from a tribe additional 

3 information. Typically, that would happen if we receive 

4 notice of a new facility, and, for some reason, we can't 

5 verify right off the bat where this facility is actually 

6 located on a map, or what the boundaries are. We may 

7 come back to the tribe and say, "Can you give us a 

8 little more information so we can figure out whether or 

9 not this is eligible for gaming?" 

10 The comment period on this regulation will 

11 close on April 2nd, so you have a bit more time to look 

12 it over and revise the comments. And a copy of it, I 

13 believe, was in the packet that we handed out today. If 

14 it is not in that packet, then it will be up on our 

15 website. 

16 VICE CHAIR COCHRAN: Thank you, John. 

17 MR. HAY: Do we have any comments on what I've 

18 covered so far? 

19 VICE CHAIR COCHRAN: Let me -- before we get 

20 into the comments, I see Governor Romero has come and 

21 joined us. 

22 Thank you, Governor, for being here this 

23 morning. 

24 For the record, would you please identify 

25 yourself for our court reporter, and if you have council 
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18 

1 members with you, perhaps they will be willing to also 

2 introduce themselves for the record. 

3 GOVERNOR ROMERO: Carlos Romero, Governor for 

4 the Pueblo Tesuque. 

5 MR. CROW: Jesse Crow for the Pueblo of 

6 Tesuque. 

7 MR. VIGIL: Michael Vigil, Councilman, Pueblo 

8 of Tesuque. 

9 MR. MOYA: Bernard Mora, Commissioner, Pueblo 

10 of Tesuque. 

11 VICE CHAIR COCHRAN: And is there anyone else 

12 that's come in that I didn't see? 

13 Welcome. 

14 MS. SPICER: Valerie Spicer, Executive 

15 Director for the Arizona Gaming Commission. 

16 VICE CHAIR COCHRAN: Good morning. 

17 All right. Any other questions or any other 

18 comments? 

19 559, this particular rule was important for us 

20 to take a look at because it did have extensive 

21 requirements in -- in it that we believe exceeded the 

22 scope of the authority that the NIGC has under IGRA 

23 because we do not license the facilities. It is the 

24 tribes. So much of the revisions that you see stem from 

25 a desire to bring that regulation more in compliance 
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 19 

1 with what we believe is the plain language of IGRA. 

2 And we also wanted to make sure that we 

3 accommodated certain areas of the country. I don't know 

4 so much out here, but in other areas of the country, 

5 there are smaller facilities that go through seasonal 

6 closures. And it was just a lot of effort and work on 

7 their part to constantly be in notification with us for 

8 a temporary seasonal closure if it was closed for a 

9 month or two. And it is also designed to capture 

10 instances where we have a facility that might close down 

11 because of a fire or a roof collapse. We had that 

12 recently. And so it is designed to make that an easier 

13 process. 

14 Our regional offices will be aware, because 

15 they should be in contact with the tribe. But as far as 

16 going through the process of having to notify us, the 

17 attempt is, again, to streamline our efforts, streamline 

18 the efforts of the tribe, and to bring it back in line 

 19 with IGRA and what IGRA requires. So that's a little 

20 background on where the changes are coming from. 

21 Are there additional comments? 

22 MS. BLUELAKE: I have a question. The 

23 attestation, is it up to the tribe whether that comes 

24 from counsel or from the Commission? Is that open, or 

25 is there expectation from the Commission that it will 
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20 

1 come from the counsel? 

2 VICE CHAIR COCHRAN: Well, yeah. I think the 

3 expectation is it will come from the leadership. The 

4 leadership is, of course, capable of designating their 

5 authority or delegating it to another entity to certify 

6 it. But I think the intent, because of the way the 

7 statute is written, is that the attestation come from 

8 the tribe itself. But we wouldn't, certainly, dictate 

9 how that looks. 

10 Any other questions or comments? 

11 MR. HAY: We'll move on to group two. 

12 MR. GARCIA: I have a question on the -- on 

13 the -- on the attestation. If you send it in, like the 

14 original information to you saying that the building is 

15 constructed in a manner that we have outlined here, do 

16 we have to send it in, an attestation, every year, along 

17 with the renewal license? 

18 You have -- the proposed rule is -- says 

19 provide it for the tribe to submit certification 

20 attesting that the gaming operation is being conducted 

21 in a manner that will adequately protect the environment 

22 and public health and safety. So if we send it in, and 

 23 then, there's no new construction, and so we don't -- do 

24 we still need to send that in on an annual basis with a 

25 renewal of the facility? 
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21 

1 VICE CHAIR COCHRAN: The -- I'm looking at 

2 559.4 and the attestation -- and, again, we took this 

3 from IGRA -- does require the tribe make a certification 

4 as to, not only just the construction, but the 

5 maintenance of the operation. So yes, I believe that if 

6 you're doing a renewal of a license, that attestation 

7 would have to be as to its maintenance of the operation, 

8 not necessarily the construction because -- you know, 

9 unless you've had new construction with it. 

10 MR. GARCIA: Okay. Thank you for the 

11 clarification. 

12 MR. HAY: And group two -- group two includes 

13 Part 573, which is enforcement. And part of that is 

14 also part of 502, which includes definitions that are 

15 relevant to enforcement. This proposed rule was 

16 published on December 27th of last year. And the 

17 comment period closes on February 27th, which, I 

18 believe, is this coming Monday. 

19 Also under group two are regulations

 20 concerning appeals. That's Parts 519, 524, 539, and 

21 577. Those were all published in January of this year, 

22 and the comment period will close on April 2nd of this 

23 year. I believe all of these are included in your 

24 packet. If not, they are on our -- our website. 

25 Okay. Part 573, the changes to Part 573 
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22 

1 really reflect the Commission's goal of -- of obtaining 

2 voluntary compliance. In fact, there's a statement in 

3 573.1 that that is the Commission's goal. 

4 As part of that goal, the Commission felt it 

5 was -- was advisable to -- to lay out a pre-enforcement 

6 process. And what I mean by "pre-enforcement" is events 

7 that would happen before a notice of violation would be 

8 issued to a tribe. Okay? 

9 Our field offices had, for many years, 

10 depending on the region, been -- been -- been having 

11 different practices as to how they went about the 

12 enforcement or notifying the tribe of their concerns. 

13 Oftentimes, there were warning letters sent out, or what 

14 they call a "PNOV," which is pre-notice of violation, to 

15 let tribes know. We thought this was a good practice so 

16 tribes could fix any problems on their own. And the 

17 Commission sought to actually put this into a 

18 regulation. 

19 So what 573 does, now, with the proposed rule, 

 20 is to provide for either a letter of concern or a 

21 warning letter that may be issued to a tribe. A letter 

22 of concern provides what facts we have and information 

23 about what the violation may be. 

24 An example of this would be if we received a 

25 phone call from an anonymous individual saying, "Hey, 
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23 

1 the tribe is doing this, and I think it is a violation 

2 of either their tribal gaming ordinance or NIGC

3 regulations." And we would write to the tribe stating, 

4 "Look. We received this complaint with these facts, and 

5 it could possibly be a violation. We're not sure yet. 

6 Can you give us some more information? Can you look 

7 into it?" And it would, also, probably, include a 

8 deadline for a response to come back to NIGC. 

9 You know, we receive those calls on a fairly 

10 regular basis. I'm sure tribal gaming commissions 

11 receive calls like this fair regularly, as well. This 

12 is a less formal way of addressing it before an actual 

13 notice of violation. 

14 The next stage would be a warning letter where 

15 we've gone through, and we've assessed the matter and 

 16 said, "Hey, you know, we've looked into these facts, and 

17 we think that they're true. And if so, it would be a 

18 violation. And so you need to fix it. And here's how 

19 you fix it." And that would include a deadline to the 

20 tribe to fix it. And all of that would happen before a 

21 notice of violation would be issued. 

22 Now, neither of these letters are final Agency 

23 action or Agency action. The term "Agency action" is 

24 important because when you have an Agency action, that 

25 would trigger some sort of appeal rights, either a 
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 24 

1 hearing before the Commission, or allow you to sue the 

2 Commission in federal district court. And so we wanted 

3 to have a process so that we never got to that point. 

4 And so these are really notification letters. 

5 As we do in consultations, we've sometimes 

6 heard from tribes, you know, "Out of the blue, we've 

7 received this notice of violation. We had no idea this 

8 was happening. Isn't there any way" -- you know, "If 

9 you had told us earlier, we would have fixed it right 

10 away. Isn't there a way to make sure that that 

11 happens?" 

12 And so the Commission wanted to put it into 

13 the regulations so that we could achieve voluntary 

14 compliance. 

15 Okay. If the recommended corrective action, 

16 either the letter of concern or the warning letter, is 

17 not heeded by the tribe, then the Chairwoman has the 

18 option of instituting an enforcement action. Okay. 

19 Neither of these letters would prevent her from -- from 

20 instituting an enforcement action. I just want to make 

21 that clear. These are just options available out there, 

22 and they would come from the staff, from the region 

23 staff who works with you on a daily basis. And so -- 

24 but it wouldn't prevent her -- if she saw a violation, 

25 she could take action. 
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1 VICE CHAIR COCHRAN: John was absolutely 

2 correct in identifying that the revisions that we 

3 undertook in this particular section really are aimed a 

4 voluntary compliance. And it's designed to get the 

5 Agency and the tribe talking early on about potential 

6 issues so that there is no element of surprise down the 

7 road, and to give tribes, and the Agency, the best 

8 opportunity to resolve the issues to -- to correct 

9 factual information so that matters are resolved before 

10 the Agency is able to use the few tools that it has in 

11 its tool bag as far as enforcement goes. And those are 

 12 heavy-handed tools, and we know that. 

13 So this is -- this is the result of a lot of 

14 discussions with tribes as to ideas, "How can we do 

15 that? How can we get the Agency and the tribes talking 

16 as early as possible so that it's very clear to both 

17 parties where they're at and what the issues are, what 

18 can be resolved, and what can't be resolved." 

19 And the -- the other part of that is to -- to 

20 also make sure one of the things -- well, I -- I'm a 

21 little ahead of my thoughts, here. 

22 One of the things that we walked into, as 

23 commissioners, was the Agency's history, recent history 

24 in the Agency, of a large number of NOVs being issued 

25 for things which were important, but not potentially NOV 
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1 material, in our minds, like, maybe, fees is the most 

2 obvious example. And so we wanted to make sure that -- 

3 that we left, in this rule, a requirement that the tribe 

4 wait -- that the Agency wait to use its heaviest 

5 hammers, like an NOV, for those matters that really 

6 required that type of an action. And the late payment 

7 of the fees, for the most part, which would be the 

8 majority part of the time, just does not require that 

9 kind of heavy-handed behavior. So that's what this is 

10 geared at. 

11 Yes, please. 

12 MR. GOMEZ: Eddie Gomez, Pueblo of Isleta. 

13 One of the last statements was regarding the 

14 pre-enforcement action process does not limit the -- or 

15 constrain the Chair's discretion to issue. Is it 

 16 possible that a warning and an NOV could be issued 

17 concurrently or -- I mean because it sounded like the 

18 warning would come from the region office, but that the 

19 NOV could come from the Chair. Could those happen 

20 concurrently? 

21 VICE CHAIR COCHRAN: Well, I guess, they -- 

22 yeah, it is possible. I guess, as a matter of fact, 

23 it's possible. It wouldn't be likely, though. And, 

24 again, that -- that provision is left in there to give 

25 or maintain the Chair's right to act quickly where 
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27 

1 circumstances absolutely warrant quick response. So 

2 yes, it could happen. It is not likely because it would 

3 be a very urgent matter that needed prompt attention, so 

4 you wouldn't have the regional offices involved. At 

5 that point, it would have been at the headquarters. 

6 MR. GARCIA: For clarification, this 

7 enforcement applies to both classes, or Class II gaming, 

8 or is it specific to Class III gaming? 

9 VICE CHAIR COCHRAN: It is both. It would be 

10 all gaming, yeah, because the inferred authority of the 

11 Chair extends to licensing provisions, extends to other 

 12 things that wouldn't necessarily be game related. You 

13 couldn't even, prior to -- 

14 MR. GARCIA: The reason I ask is because, you 

15 know, the -- it's oversight the NIGC has over the past 

16 decade. 

17 VICE CHAIR COCHRAN: Yeah. And that's -- that 

18 would be towards MICs. That is why I'm saying it could 

19 be other things outside of the MICs. The CRIT decision, 

 20 as you know, has to do with the Agency's authority over 

21 enforcing the MICs. But the Chair's authority in IGRA 

22 is much more broad than the MICs. So it has to do with, 

23 you know, gaming ordinances and other things that 

24 wouldn't necessarily be MIC related, so -- 

25 MR. HAY: To give a hypothetical, if there 
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28 

1 were a situation where you opened a gaming facility on 

2 lands that weren't eligible for gaming, it doesn't 

3 matter whether it's Class II or Class III. You're 

4 gaming on lands that are ineligible, and so the

5 Chairwoman could issue a notice of violation for that, 

6 and the classification of the gaming is somewhat 

7 incidental. 

8 Any other comments on this section? 

9 Going hand in hand with this section are some 

10 new definitions, and that's in Part 502. 

11 During the whole consultation process, we 

12 received comments that the term "enforcement action" was 

13 never defined. So when our staff, or the Commission, 

14 was out there and speaking with tribes, and if there was 

15 an enforcement action, people wanted to have that 

16 clarified, what that means. And so that we are adding a 

17 new definition of "enforcement action." 

18 And that is defined as any action taken by the 

19 Chair under 25 U.S.C. 2713, against any person engaged 

20 in gaming for a violation of any provision of IGRA, the 

21 regulations of this chapter, or tribal regulations, 

22 ordinances, or resolutions approved under 25 U.S.C. 2710 

23 or 2712 of IGRA, including, but not limited to the 

24 following: a notice of violation, civil fine 

25 assessment, or order of temporary closure. 
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29 

1 Those three are the kind of big ones that 

2 everyone, at least everyone from the Agency, views as an 

3 enforcement action, you know, issuing fines, closing 

4 down, or simply issuing a notice of violation. 

 5 The comment period, as I said, closes on 

6 February 27th, which is this Monday. 

7 Do you have any comments or questions on the 

8 definition change? 

9 MS. SPICER: I have a question. It seems odd 

10 that it says "a person engaged in gaming." 

11 MR. HAY: "Person" is defined in IGRA, and the 

12 definition of that would include a tribe or a tribal 

 13 operator, so that if you have nontribal-owned gaming on 

14 your facility, or you have a management contractor, our 

15 enforcement action would be directed to either the 

16 tribe, management contractor, or the nontribal operator. 

17 VICE CHAIR COCHRAN: When we first looked at 

18 this, I was working as a lawyer, and I thought the same 

19 thing. And it is an odd choice of wording. But it's -- 

 20 Any other comments? 

21 The comment period for this to close is coming 

22 up, so I encourage you -- if you have any comments, 

23 whether just a brief, "We have no issues with this," I 

24 encourage you to submit them so that we get them in and 

25 put them up on the website and make sure that everyone's 
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30 

1 voice is heard the best we can make it heard. 

2 MR. HAY: The next area deals with proceedings 

3 before the Commission. These are our appeals regs. 

4 Currently, our appeals regs are spread out in 

5 three different parts of our regulations, so, 

6 oftentimes, people thought this was kind of confusing. 

7 They didn't know where to look. And when I say

8 "people," that doesn't include just people outside of 

9 the Agency. It includes us within the Agency. 

10 I have been practicing at the Agency for over 

11 nine years now, and it wasn't easy going through our 

12 regulations to find out what appeals process we should 

13 follow. And so what the Commission is doing here is 

14 taking all of the appeals provisions and putting them in 

15 a new subchapter H, so that you will have one place to 

16 go to to look to see what your appeal rights are and how 

17 you would handle an appeal. 

18 The notice of proposed rulemaking, the NPRM, 

19 was published by January 31st of this year, and the 

20 comment period goes until April 2nd of this year. Okay? 

21 So what this part does, it repeals all of the 

22 old sections that deal with appeals. That would be Part 

 23 519, 524, 539, and Part 577, and moves them up to 

24 subchapter H. Okay? 

25 Subchapter H would include Part 580, which are 
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 1 rules of general application. So these rules would 

2 apply to any type of appeal that you are bringing, 

3 whether it's an appeal of an ordinance disapproval, a 

4 management contract disapproval, or an enforcement 

5 action. Okay? 

6 581 deals with motions proceedings before the 

7 Commission. Okay. 

8 582 deals specifically with gaming ordinances 

9 and resolutions, so that if you had submitted an 

10 ordinance to us for approval, and it was disapproved, 

11 and you wanted to appeal that disapproval, you would 

12 look to 582 for how to do that. 

13 583 deals with the management contracts and 

14 amendments to management contracts. In the end, if the 

15 management contract was disapproved or even in some rare 

16 instances that it was approved, and you want to appeal 

17 that, you would go through 583 for your -- your appeal 

18 procedures. 

19 584 deals with appeals of enforcement actions, 

20 notices of violations, civil fine assessments, orders of 

21 temporary closures, the Chairman's decision to void or 

22 modify a management contract, a removal of a certificate 

23 of self-regulation, or notices of late fees or late fee 

24 assessments. So all of those are in 584. 

25 And, finally, 585 deals with appeals to the 
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32 

1 Commission on written submissions of those same types of 

2 actions. As it stands now, you have the option, when 

3 you appeal, of going before a presiding official and 

4 having a hearing take place, or you can just say, "We 

5 don't want to go before an official. That takes too 

6 much time. We want to speed the process up, and we just 

7 want to submit briefs, if you will, to the Commission." 

8 There's a process for doing that. 

 9 Part 518, these are the general rules. Okay. 

10 So they include definitions. They include suspension, 

11 revocation, amendment, or waiver of rules. They tell 

12 you who may appear before the Commission. They tell you 

13 how you must effect service on the Commission. They 

14 tell you what the burden of proof and the standard of 

15 review for any appeal is. They explain to you what the 

 16 final decision will contain. They give you, you know, 

17 the effective date of final decisions, what happens if 

18 there isn't a majority of the Commission, and what is 

19 the effect of an appeal on the Chairman's decision. 

20 For instance, what happens if you are issued a 

21 closure order, or a temporary closure order, and you 

22 appeal it? Does that mean that order is stayed, or do 

23 you have to close down? In this case, you would have to 

24 follow the Chair's order that the facility be closed 

25 until the appeal had run its course. 
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1 We received some good comments on this 

2 section. You know, one of the comments was individuals 

3 who are appearing before the Commission, it was too 

4 restrictive as to who we were allowing. And so the 

5 Commission decided to broaden that standard as to who 

6 would have an interest in the outcome of our decision, 

7 so that it would bring in more people. 

8 There were also concerns expressed about 

9 ex parte communications. One of the rules was that if 

10 there was an appeal going on, you couldn't have contact 

11 with the commissioners about that appeal, and/or -- or 

12 any contact at all. And a lot of the people expressed 

13 concern over that, and that that would stifle actual 

14 comments on any issues, and that it would come in the 

15 way of our consultation policies out there. And so 

16 we -- it's something we have been kind of struggling 

17 with. How do we -- we protect the process while still 

18 allowing tribes to have access to the Commission? 

19 So that's one thing we're really asking for 

20 people's help with is, "How can we kind of walk that 

21 fine line and balance the interests here?" And so we're 

22 really hoping to get some ideas on that. There was 

23 nothing, I think, proposed in our regulations. We 

24 simply said, "We want to hear what you think about 

25 this." 
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1 We received a lot of comments that if an 

2 appeal is filed that it stay the Chairman's decision. 

3 The proposed rule did not accept this. If the Chair has 

4 found a violation, that violation is in place, and that 

5 order is in place until proven otherwise or another 

6 decision is made. 

7 We also received the suggestion that we add 

8 provisions that ensure that parties have access to all 

9 of the record that we have before the appellate

10 proceedings, and so we have put in those provisions in 

11 other parts that allow for access to the record, so that 

12 before you file any of your motions or briefs, you can 

13 see what our decision was based upon. 

14 Part 581 deals with the motion practice before 

15 the Commission. And these include, you know, motions 

16 for limited participation in ordinance appeals, motions 

17 to intervene, motions before the presiding official, 

18 motions to supplement the record, and motions for 

19 reconsideration. 

20 One comment on the presiding official, that's 

21 the term that is used in the Act, in our regulations. 

22 Oftentimes, that will be an administrative law judge, 

23 but it doesn't have to be. The Commission can designate 

24 anyone that they want to be a presiding official. They 

25 could make a staff member a presiding official. 
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1 Typically, what we have done in the past is -- 

2 we don't get many appeals. And so we found it's easier 

3 just to use the Department of Interior's administrative 

4 law judges. And so if an appeal is filed with us, and 

5 you request a hearing, we'll take it right over to the 

6 Department of Interior's appeals division and say, "Hey, 

7 can you name a presiding official for this action?" And 

8 they will be the person who looks over all of the 

9 materials that are submitted. 

10 For Part 581, we received comments that the 

11 ten-day period for opposition position briefs was too 

12 short. And so the Commission has adjusted that to 

13 exclude holidays and weekends, if that time period is 

14 less than 11 days, so that way, you can get, you know, 

15 your full ten business days to file any opposition. 

16 The comments we got also said that our 

17 preliminary drafts or reply briefs were too restrictive. 

18 And so there are changes for motions and motions for 

19 reconsideration in there that make them a little less 

20 restrictive. 

21 Part 582 deals with appeals of disapprovals of 

22 gaming ordinance resolutions or amendments. And, again, 

23 this mirrors the previous chapter on who may appeal this 

24 approval of gaming ordinance, how to appeal it, motions, 

25 motions for limited participation, copies of the record, 
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36 

1 and when a decision will be issued. And when I say it 

2 mirrors the previous part, I don't mean that the 

3 substance of it is the same, but the issues that are 

4 dealt with are -- are similar. 

5 We didn't receive a whole lot of comments on 

6 this part. A lot of commenters said, "You should make 

7 it a little more clear as to who may participate in 

8 these types of appeals, and you should provide clarity 

9 on whether the Commission can refuse to grant an 

10 appeal." We haven't done that in the actual regulation, 

11 itself, but in the preamble to the regulation, it 

12 clarifies that the Commission cannot refuse to hear an 

13 appeal. 

14 Part 583 is for appeals from approvals or 

15 disapprovals of management contracts or amendments to 

16 management contracts. And, again, we see this kind of 

17 same layout of who may appeal the approval or 

18 disapproval, how to file the appeal, what types of 

19 motions are to be allowed, how you will get a copy of 

20 the record, and the timing of the decision. 

21 Again, we didn't receive a lot of comments on 

22 583. Just, again, suggesting that we provide more 

23 clarity on who may appeal the approval of a management 

24 contract, and we would address that in the preamble, and 

25 what type of motions will be allowed. And so the 
l 

 

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37 

1 proposed rule clarifies which motions are allowed. 

2 Part 584 deals with appeals before a presiding 

3 official. These are somewhat of your more formal 

4 hearings where testimony is provided, and the presiding 

5 official decides motions, and what evidence is allowed 

6 in. And they basically, up until now, can set their own 

7 rules. And most of them usually follow the Federal 

8 Rules of Evidence, but this kind of lays out a little 

9 more guidelines for what they can and can't do so that 

10 the parties know beforehand what all of their options 

 11 are. So again, we have who may appeal before a 

12 presiding official, how to make such an appeal, what 

13 types of motions are allowed, when the hearing will be 

14 held and timing of the hearings. It's very important, 

15 especially in instances where a closure order has been 

16 issued, that these hearings are done quickly so the 

17 tribe can resume gaming. What the process of the 

18 hearing is, how we handle confidential information -- 

19 oftentimes, a lot of the information presented before a 

20 presiding official could be business information that 

21 you don't want the general public to know about. 

22 There is a process for settlement and consent 

23 decrees, and how to handle objections to the recommended 

24 decision from the presiding official. During an appeal, 

25 the presiding official's decision isn't actually the 
l 

 

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1 final decision. The presiding official, at the end of 

2 the hearing, makes what is called a "recommended 

3 decision." That recommended decision then goes back to 

4 the full Commission, who reviews it and decides, "Yes, 

5 we agree with it," "No, we don't agree with it," or "We 

6 agree with parts of it, but not all of it." And then 

7 that comes out with the final decision, and, finally, 

8 when the Commission will issue its final decision. All 

9 of those are in 584. 

10 Yes, sir. 

11 MR. GOMEZ: Do these recommendations or 

12 findings -- are there findings of fact and conclusions 

13 that are included, or is it just -- 

14 MR. HAY: It is both the findings of fact and 

15 conclusions of law. Thank you. 

16 The comments that we received requested 

17 clarification on what the role of the presiding official 

18 is, and so the Commission has concluded that 

19 clarification in the proposed rule. 

20 Comments were directed at what happens if 

21 you're denied limited intervention. Can you still be 

22 allowed to submit an amicus brief? For those of you who 

23 don't know, "amicus" means "friend." And it's usually 

24 someone on the outside who may not have a stake, a 

25 direct stake, in what's happening, but has information 
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39 

1 which is useful, and they want to provide that, either 

2 to the presiding official or to the Commission. And so 

3 it allows those individuals to -- to file this 

4 information with the presiding official or with the 

5 Commission. 

6 We also received comments that closure orders 

7 should be -- decisions on closure orders should be made 

8 within 30 days on whether or not to make them permanent. 

9 The proposed rule provides for a hearing within 30 days, 

10 unless that's waived by the appellant, and a decision 

 11 within 30 days of receiving the recommended decision. 

12 We have looked at this, and we think that that 

13 was kind of a reasonable time period for us to actually 

14 do the work that goes into this process, so we have put 

15 this out there to comment as to whether you think that's 

16 a reasonable time period. 

17 Again, we received comments on how we were 

18 going to handle confidential information, so we have 

19 included provisions for how a presiding official of the 

20 Commission handles confidential information. 

21 Yes, sir. 

22 MR. LESLIE: Is there any language or 

23 provisions put in regarding subpoenas? 

24 MR. HAY: Subpoenas by the parties to it or 

25 subpoenas by the Commission? 
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1 MR. LESLIE: Subpoenas by the parties to it. 

2 MR. HAY: By the parties. 

3 That would be handled under the general 

4 motions practice so that, if you needed information, you 

5 would make that motion to the presiding official to try 

6 to get that information. We would hope that all of the 

7 information that you would need would be included in the 

8 actual record on -- on which the Commission made its 

9 decision, but if, for some reason, there's something you 

10 can't get to, you could make that motion to the 

11 presiding official to try to get that. 

12 Part 585 deals with appeals to the Commission 

13 on written submissions. 

14 Oftentimes, parties don't want to go through 

15 the whole process of having a formal hearing. It can be 

16 expensive because you have to bring witnesses, and it 

17 takes a long time. And there are just a whole lot of 

18 other expenses that go along with it. Plus, it takes 

19 time because you have to prepare for the hearing. Then 

20 the presiding official has to consider all of the 

21 evidence at the hearing, write up their decision, and 

22 then issue that decision. And then there's a time 

23 period for objections to the recommended decision. And 

24 so oftentimes, parties come to us and say, "We want to 

25 speed this up. We just want to do it on written briefs. 
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1 We think the issues are very clear here." 

2 In many instances it might just be a question 

3 of what the law actually is, rather than a factual 

4 issue. And so 585 allows you to file an appeal just on 

5 written submissions, and to do away with the hearing. 

6 And again, it is who may do this, how to do this, what 

7 motions are allowed when you're doing this, and can 

8 other parties intervene when you're doing this, how you 

9 will get copies of the record, and, also, the timing of 

10 the record. 

11 I have received a few comments on this one 

12 asking for clarification. If one party requests a 

13 hearing and one party requests it be decided on the 

14 papers, what happens? So the proposed rule addresses 

15 this issue. 

16 We've also received a comment that a closure 

17 order decision should be made within 30 days, whether or 

18 not to make it permanent. And the proposed rule 

19 provides for a decision within 60 days. 

20 We've also received a comment that the draft 

21 was too restrictive on who may appeal, and tribes should 

22 be able to designate who may appeal. And so the 

 23 proposed rule provides for the tribe to designate a 

24 representative. 

25 Do we have any comments on that section? 
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1 (No audible response.) 

2 VICE CHAIR COCHRAN: This is the -- this is 

3 the set of regs where it would generally be referred to 

4 the lawyers to talk about because it's a very dry area. 

5 But it's a very important one. It was something that 

6 John pointed out. When I came onto the Commission, I 

7 was looking at this because we had an appeal pending 

8 before us. And I kept trying to go through our regs to 

9 tell me what to expect as a decisionmaker, and there was 

10 nothing there. 

11 And it turned out a lot of what we were doing 

12 was just practice, what -- what you had done 

13 historically. But none of it was out there in

14 regulation format to advise tribes that that's the 

15 process. 

16 And as coming from being a general counsel for 

17 the pueblos, you know, we're not all blessed, in Indian 

18 country, to have the ability to hire gaming attorneys 

19 who are experts in this field. We have to rely on 

20 general counsels, who are jacks of all trades, and must 

21 be responsible for many things for the tribe. So it's 

22 really important to me to engage our lawyers in the 

23 drafting process, to put the process out there so that a 

 24 tribe, no matter who is representing them, whether it's 

25 a seasoned gaming attorney or an advocate, can go to the 
l 

 

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43 

1 rules, can read, and know exactly what to do when you 

2 need to make an appeal of the Agency's decision. 

3 So the -- the lawyers tolerated my incessant 

4 poking at them, but they did take the -- the issue on 

 5 directly and drafted some rules which I think, while dry 

6 and cumbersome, nonetheless, do set out a much better 

7 process for the tribes to follow in challenging or 

8 questioning or disagreeing with a decision of the 

9 Agency. 

10 So this is kind of a little bit of the 

11 background. And one of the things, also, that I think 

12 is really important, here, and that the Commission felt 

13 we needed to make sure was clear, is that the tribes do 

14 get to decide who is going to represent them and who is 

15 going to make appeals on their behalf so that they make 

16 those decisions and -- and they control how they're 

17 going to go through the appellate process. 

18 So -- so it's a lot of material. But, you 

19 know, if there's questions and there's comments, or 

 20 there's something in here that we can do differently -- 

21 the ex parte communication we did take out. We did put 

22 it out, initially, in a draft form for discussion, but 

23 it just -- we couldn't get something that made sense for 

24 us. So we've taken it out of this particular revision, 

25 but it doesn't mean the issue isn't on the table for 
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1 continued discussions. You know, how -- how do we 

2 engage in those discussions on ex parte outside of an 

3 appeal. 

4 Yes. 

5 MR. GARCIA: I have a question. 

6 Is there any language that allows the parties, 

7 or the entity that is making the appeal, to have any say 

8 so on recommendations or objections to the ruling of who 

9 the presiding official would be? 

10 MR. HAY: You know, I don't think that that's 

11 an issue that has ever been raised before. And in my 

12 time on the Commission, we've never had anyone raise 

13 that issue about who the presiding official is. So 

14 that's an interesting point, so we appreciate comments 

15 on that point. But it's simply not addressed in the 

16 regulations right now. 

17 MR. GARCIA: It is just that Commissioner 

18 Cochran said that there's people out there that have 

19 limited gaming, and that the -- if the enemy finds out 

20 that that person that is presiding does not have an 

21 extensive gaming knowledge, so that the parties that are 

22 in the appeal should be given an opportunity to make 

23 recommendations as to who should hear the appeal. 

24 VICE CHAIR COCHRAN: Thank you for your 

25 comments. That's not something that -- that has been 
l 

 

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1 brought up. We definitely will include it as something 

2 we take back and talk about. It's an excellent point. 

3 MR. HAY: Any other comments? Questions? 

4 Okay. I think we're going to take a short 

5 15-minute break, and come back here and jump into group 

6 four. 

7 (Recess from 9:50 a.m. to 10:12 a.m.)

8 VICE CHAIR COCHRAN: I think everybody is 

9 back, so we'll pick up with the second half of the 

10 agenda, which includes group four and group five. 

11 Are there any comments that need to be made or 

12 questions that you want to ask about group one and group 

13 two that we talked about earlier? 

14 (No audible response.) 

15 VICE CHAIR COCHRAN: All right. Well, I'm 

16 going to turn it back over to John, and then we'll pick 

17 up and go through group four. 

18 MR. HAY: All right. Included in group four 

19 were rules for Part 556, for background investigations 

20 for primary management officials and key employees; 558, 

21 again, gaming licenses for key employees and primary 

22 management officials; and 537, which were background 

23 investigations for persons or entities with a financial 

24 interest in, or having management responsibilities for a 

25 management contract. 
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46 

1 Those were published as proposed rules in the 

2 Federal Register on September 22nd of last year. And 

3 the comment period, actually, closed yesterday. So, 

4 hopefully, everyone got their comments in. 

5 I want to just touch briefly on what these -- 

6 these were before moving on. 

7 The changes to Part 556 were what -- what a 

8 lot of you -- what was known to a lot of you as the 

9 "pilot program," which was a streamlined program that 

10 tribes had entered into for their background and 

11 licensing. And typically, tribes would have an MOU with 

12 the NIGC whereby they wouldn't have to send us a full 

13 packet of information. They would just have to send us 

14 the results of their investigation. 

15 And so this was such a successful program. 

16 Tribes really liked it. It was easier for us. And the 

17 Commission decided, "Well, let's formalize this and 

18 actually put this into the regulations." 

19 And so, Part 556 included all of the

20 procedures before a gaming license was issued, and 5- -- 

21 Part 558 are all procedures after a gaming license was 

22 issued. Okay. And so this is your -- typically, your 

23 notice of results, your timelines for notifying NIGC of 

24 when a license is issued, and NIGC's timeline for 

 25 requesting more information from a tribe without a 
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47 

1 licensee. 

2 So all of these were in the -- the proposed 

 3 rule. And, again, that comment period closed yesterday. 

4 And so that will be, now, before the Commission to make 

5 a decision on that. 

6 537, again, the comment period closed

7 yesterday. And what 537 was doing was it was reducing 

8 the scope of the background investigations and 

9 information for tribally-owned entities, national banks, 

10 or institutional investors that are federally regulated 

11 or required to undergo a background investigation and 

12 licensure by state pursuant to compact. 

13 The reason for this change was simply to cut 

14 down on redundancies. If there was already somebody out 

15 there doing background investigation or requiring 

16 information, we didn't think we needed to do it twice. 

17 And so that was out there for comment. And the comment 

 18 period closed yesterday. And so some time in the 

19 future, you will hear what the Commission decides on 

20 this. 

21 MR. ROME: If I may comment? David Rome on 

22 behalf of the Mohecan Tribe of Connecticut. And I know 

23 this is just one slide there on the PowerPoint, but 537 

24 is something that is important to the Mohecan Tribe. 

25 And I just wanted to acknowledge our support. We also 
l 

 

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1 have, in the past, commented in support of extension of 

2 the pilot program, especially the idea of being able to 

3 exchange investigative reports between tribal gaming 

4 agencies or state agencies, you know, as necessary. 

5 But just on 537, we provided some comments, 

6 but I don't think, when IGRA was passed in 1988, they 

7 anticipated that the tribes would want to work together 

8 with -- with other tribes and, you know, actually 

9 management contractors. So I guess this is a great 

10 change and -- to have that discretion. 

11 They also didn't have things like limited 

12 liability companies. And I looked it up, and it was 

13 actually 1988 when -- when IGRA was passed. The IRS 

14 first issued a letter saying LLCs could be treated as -- 

15 you know, as partnerships for tax purposes, and that 

16 opened up a whole area. 

17 So IGRA talks about corporations and directors 

18 and stockholders. And you have tribes, and you have 

19 LLCs, often, under tribal law. And I think the 

20 Commission has been very good at adapting to those 

21 developments. And this additional change gives that 

22 same type of discretion. 

23 Thank you. 

24 MR. HAY: That actually reminds me, for those 

25 of you who may have commented on this regulation 
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1 yesterday, the individual in our office who is receiving 

2 these comments is out on vacation, so you would have 

3 received a return e-mail saying they are out of the 

4 office. But we did, in fact, receive your comments, and 

5 they will be reviewed with the rest of them. 

6 We're going to move on to the final section, 

7 here, which is Part 518, which is self-regulation of 

8 Class II gaming. These were regs that were in desperate 

9 need of some attention. 

10 As of today, there are, actually, only two 

11 tribes out there that are self-regulated and have 

12 certificates of self-regulation. And we received a lot 

13 of comments from them over the past year about the 

14 process that was involved, as well as the benefits 

 15 received from the process, and ways in which we could 

16 improve the process. And -- and, most importantly, why 

17 they thought more tribes weren't availing themselves of 

18 self-regulation. 

 19 And we received a lot of comments that the -- 

20 the regulations were unclear, that the requirements were 

21 burdensome, and that all of these burdens involved 

22 really outweighed the benefits. And so the Commission 

23 wanted to take a hard look at these to encourage more 

24 participation by tribes in this important program. And 

25 so the proposed rule shifts the focus from the gaming 
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1 operations to the tribal gaming regulatory agency. 

2 Since this rule is about tribes regulating 

3 themselves, we thought it was important that, you know, 

4 we look at the structures that are involved in 

5 regulation, rather than on the operations side.

6 The proposed rule also reduces information, 

7 submission of information that would be duplicative. So 

8 if we already have it, you don't have to send it to us 

9 twice. For instance, you are required to send us your 

10 ordinances for approval. If we have that on file in our 

11 office, you don't need to send that again. 

12 The hope is that we'll make certification more 

13 accessible to tribes, while still maintaining a high 

14 standard. 

 15 Some of the comments received from the tribes 

16 that are self-regulated indicated, you know, that they 

17 considered this to be a badge of honor, and they didn't 

18 want to water down these regulations; that it should be 

19 something that everyone strives for. 

20 So the notice of proposed rulemaking was 

21 published on January 31st of this year, and the comment 

22 period closes on April 2nd, 2012. 

23 The rules are broken down into four distinct 

24 sections. There are submission requirements, the 

25 criteria by which the Commission is going to judge the 
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1 submissions, the overall review process, and what 

2 requirements still exist after the certificate has been 

3 issued. 

4 So first, I'm going to start off with the 

5 submission requirements. Okay? We will be looking for 

6 a history of the gaming operation. We want to know what 

7 operations. We want to know how long they have been in 

8 existence, and -- and what types of facilities they are, 

9 how big they are, that type of information, kind of 

10 general information. We would like an organizational 

11 chart of the TGRA. You know, whatever name you have as 

12 your regulatory body, we want the organizational chart 

13 to see how it is structured. 

14 We also want to look at criteria for your 

15 regulator. What type of experiences do you want for 

16 your regulators? Is there any kind of educational 

17 background requirements? 

18 We also want to look at the funding of the 

19 organization. Is it funded sufficiently to regulate a 

20 facility of the size which the tribe has? We would like 

21 a list of the current regulators, and we'd like a 

22 description of the accounting systems that they're 

23 using. We would also like to have a list of internal 

24 controls. We want to have a description of what type of 

25 recordkeeping system for investigation and enforcement 
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52 

1 and prosecutions that the tribal gaming commission uses. 

2 We would like a copy of your gaming 

3 regulations. Of course, if you've already provided them 

4 to us, you don't have to provide them to us a second 

5 time because we received a lot of comments that, you 

6 know, a lot of the materials that are required by the 

7 regulations now have already been submitted either to 

8 NIGC or to BIA, and we got rid of that requirement so it 

9 would just be less paper that would have to be submitted 

10 to us. 

11 The second section would be the criteria the 

12 Commission is looking at when it's deciding whether or 

13 not a certificate of self-regulation should be issued. 

14 The Commission wants to see that the tribe is 

15 maintaining effective and honest accounting revenues, 

16 that it has a reputation for safe, fair, and honest 

17 operation, that it's run on a physically- and 

18 economically-sound basis, and that the operation is 

19 generally free of criminal or dishonest activity. 

20 They are also looking at whether or not your 

21 Class II gaming has been conducted in compliance with 

22 federal tribal regulations. Obviously, we're going to 

23 look at kind of your overall compliance history. 

24 We want to make sure that the tribe has an 

25 adequate system for accounting of revenues. We want to 
l 

 

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1 make sure that there's processes involved for 

2 investigation, licensing, and monitoring of your gaming 

3 employees. We want to, also, look at the processes for 

4 investigating and enforcement and prosecution of 

5 violations. 

6 The proposed rule includes some examples to 

7 demonstrate what we're looking for in this criteria, or 

8 how you can demonstrate that the criteria has been met. 

9 And so, you know, we want to look at the tribal gaming 

10 regs or bodies that are monitoring compliance with 

11 applicable laws and regulations, including MICs, monitor 

12 the effectiveness of the revenue accounting system, 

13 whether or not they are auditing their Class II gaming 

14 activities, and whether or not they are reviewing 

15 accounting information from its operation. 

16 A lot of these things that we are looking at 

17 sometimes can't be determined by written submissions, 

18 and so the thought process is that once we get, you 

19 know, your submissions, your documentation, our field 

20 staff will go out and verify a lot of the information 

21 and see what's happening on the ground, so to speak. 

22 The proposed rule also sets out the process of 

23 reviewing the petitions. Within the Agency, there will 

24 be an office of self-regulation who will be responsible 

25 for reviewing the petitions. All right. They review 
l 

 

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54 

1 the petition within 30 days, and they will notify the 

2 tribe if the petition is incomplete or if it's complete. 

 3 If it's incomplete, you have another 30 days to submit 

4 additional information. 

5 Within 120 days of that application, the 

6 Office of Self-Regulation will provide a recommendation 

 7 or report to the Commission, and, also, to the tribe. 

8 Okay. It goes to the tribe so that they can see if 

9 there are any deficiencies or any problem areas. They 

10 have a time period of 30 days in which they can -- they 

11 can provide new information or additional information or 

12 clarify information to the Commission. Okay? 

13 The Commission will then issue preliminary 

14 findings. Basically, it is their assessment saying, 

15 "Hey, we looked at this, and everything looks good," or 

16 "We see some problem areas that might prevent the 

17 issuing of the certificate." 

18 After that happens, the tribe has the 

19 opportunity to request a hearing on that -- to that 

20 preliminary report. And they can say, "Look, 

21 Commission, your facts are wrong here," or "The facts 

22 are right, but we think you've interpreted them 

23 wrongly," or whatever other information that they think 

24 is important in moving their position forward, they can 

25 present to the Commission. Okay? 
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1 After the preliminary findings or the hearing, 

2 whichever is later, the Commission then has 30 days to 

3 issue a final decision. Okay? And, obviously, the 

4 tribe may withdraw the petition at any time prior to 

5 that. If -- if there are problems with the preliminary 

6 finding, the tribe may decide, "Hey, we might want to 

7 fix these things and then move forward at a later time," 

8 or they've looked at the process and they just don't see 

9 value in going forward at that time. So they can 

10 withdraw that petition and the final decision won't be 

11 issued. 

12 We have received a lot of comments on this 

13 throughout the process. We've heard that the 

14 certification process needs to be clarified. And so, 

15 hopefully, the proposed rule gives greater clarity. 

16 Hopefully, it's laid out in a more streamlined fashion 

17 so that it's easier for the tribes to understand what's 

18 expected. 

19 We've also received the comments that the 

20 Commission, itself, should consider the petition. 

21 Previously, one commissioner was designated as the head 

22 of the Office of Self-Regulation, and they were 

23 responsible for a lot of the reviews involved. And for 

24 something that's as important as this, the Commission 

25 felt, "Hey, it should be the whole Commission that is 
l 

 

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56 

1 looking at this information, and not just one 

2 individual." So that -- that commissioner who was 

3 assigned to self-regulation will still have a role. 

4 They will, somewhat, be directing the review process. 

5 But the full -- the full commission will be looking at 

6 all of the materials throughout the process. 

7 We received the comment that the process 

8 should facilitate collaboration with NIGC to meet the 

9 approval criteria. We think that the process, as we've 

10 laid it out, does that. It provides opportunities for 

11 the tribe to interact with agency staff and to address 

12 problems early on, deficiencies early on, or -- or other 

13 omissions early on, and so that it doesn't get to the 

14 end of the process and, all of a sudden, "No, it looks 

15 like this isn't going to go forward." So there is that 

16 time built in for our staff and the tribe to work 

17 together, to work through a lot of these issues. 

18 Finally, there are annual reporting 

19 requirements after a self-regulation is issued. 

20 The -- the first one is independent audit. 

21 Every tribe is required to submit that, and that doesn't 

22 change for self-regulated tribes, and, also, a complete 

23 resume for all employees on the tribal regulatory body 

24 hired and licensed by the tribe after receiving a 

25 certificate of self-regulation. Okay. 
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1 The -- the tribe is also under duty to inform 

2 the Commission of any change in circumstances. A change 

3 in circumstances could be if you bring in a new

4 management company, which we probably already know 

5 about, or if you had found some -- some large problem 

6 with the regulation of your gaming. There's a whole, 

7 probably, list of things you could rattle off of what 

8 would be a change of circumstances, but anything that 

9 has changed from the original report that you sent to 

 10 us. 

11 For instance, if your -- your regulations 

12 budget was $20,000,000, and then, it suddenly dropped 

13 down to $500, that would be kind of a big deal. And we 

14 would want to know about it. 

15 The Commission -- the comments also suggested 

16 that the Commission define "tribal regulator." In the 

17 proposed rule, the Commission declined to do that 

18 because there's a pretty wide range of diversity between 

19 tribes as to who the regulators are and who is doing the 

20 regulation, so we didn't want to kind of stamp that 

21 label unnecessarily. 

22 Section 518.12 references the provisions of 

23 IGRA that are limited once you receive a certificate of 

24 self-regulation. This is kind of a section of why 

25 people get involved in self-regulation. One of the 
l 

 

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1 benefits of it is decreased oversight from the NIGC. So 

2 518.12 lays out what parts of IGRA are inapplicable once 

3 you have your certificate. 

4 We received a lot of comments, throughout the 

5 process, that a lot of the things we were asking for 

6 were overbroad, we didn't need them, they had nothing to 

 7 do with self-regulation. And so we really tried to 

8 eliminate a lot of those provisions where we could. And 

9 a lot of the comments, also, said that we should remove 

10 areas in which we were simply restating, which was -- 

11 things that were in the Act. We've done that in some 

12 areas, and I think in other areas we have left that just 

13 to clarify the regulations. 

14 So that's the entire slide show on 518. There 

15 is a lot in 518, and so I encourage you to look at it. 

16 It is a long process. It took us a long time to review 

17 it and to go through these changes. And, hopefully, 

18 we've streamlined it. 

19 When the regulation was originally enacted, it 

20 was before a lot of the other regulations were put into 

21 place, like MICs and things like that. And so there 

22 were a lot of redundant requirements within that. And, 

23 hopefully, we've eliminated that. 

24 VICE CHAIR COCHRAN: Yes. 

25 MR. GARCIA: Just a question here. I don't -- 
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1 I didn't see any language in the -- in this section 

2 where it references the region office. Here in New 

3 Mexico, the region office is with the Phoenix area. And 

4 then, the agent comes onto our property every quarter to 

5 monitor, or to look at our records, you know, what have 

6 you. 

7 I would recommend that, maybe, based on their 

8 determination that they write -- also give 

9 recommendations for the tribe to become self-regulated 

10 because they do observe and they do have information 

11 that we share with them as to how we conduct our 

12 regulatory process. 

13 So I recommend we have the region office have 

14 that opportunity to, also, maybe, write a letter of 

15 recommendation for those tribes requesting to -- to -- 

16 get that certification. 

17 VICE CHAIR COCHRAN: That's interesting. We 

18 would have, of course, access to anything that the 

19 region has of documentation. But it's an interesting 

20 comment and thought that hasn't been brought up about 

21 whether or not it ought to be a formal part of the 

22 process that D.C. consults, if you will, with the 

23 regional office about a tribe's application and their 

24 experience with the tribe and the region. 

25 So it's an interesting thought. Thank you. 
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1 MR. GARCIA: I would suggest that, maybe, you 

2 explore that. And I would like to say that Lance would 

3 give us a recommendation. 

4 MR. VALLO: Take it easy, Robert. 

5 COMMISSIONER LITTLE: We talked with our staff 

6 extensively on these types of issues, and, you know, 

7 they know their regions. And, you know, I think, 

8 hopefully, both the Vice Chairman and myself would 

9 consistently be saying that it's -- one of the biggest 

10 assets of this agency are the staff. They are our eyes 

11 and ears in the region. And we don't do -- we can't do 

12 this job alone. We need them. And they do a very good 

13 job at that. 

14 So any of these types of issues, whether it be 

15 an NOV, or something as important as this, we will be 

16 speaking with our staff. And they will have an 

17 opportunity to -- to, you know, explain what's going on. 

18 And so good point. I appreciate you raising 

19 that. Thank you. 

20 MR. LESLIE: I noticed there were some written 

21 comments on this one about the three-year requirement 

22 that you had been engaged in in the last two or three 

23 years. Is that what you are looking at or considering 

24 or -- 

25 VICE CHAIR COCHRAN: It has, actually, been 
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1 quite a lengthy discussion because the Act, itself, has 

2 a requirement. And, you know, actually, the debate -- 

3 not the debate -- the discussion kind of centered around 

4 "What does that mean? Does that mean three years 

 5 continuous requirement, which is the way the Agency has 

6 historically looked at that? Does it mean three years 

7 Class II only? Does it mean" -- so it's kind of -- we 

8 really can't get away from what the Act requires. 

9 Obviously, it is just more a matter of, "What 

10 does that look like?" because we could have -- one of 

11 the scenarios, of course, that has been brought out, we 

 12 could have a tribe that has extensive experience in 

13 Class III, who does very well, expands to a Class II 

14 property or activities, and after a year or two, uses 

15 the same resources that apply to a different class, 

16 wants to petition for self-regulation. So it's been -- 

17 yes, it's been debated. There are thoughts. And we 

18 absolutely welcome, you know, input from the tribes on 

19 how we might look at this. But it makes sense. 

20 COMMISSIONER LITTLE: There are some tribes in 

21 California that operate hybrid floors for Class II and 

22 Class III machines and felt that maybe -- maybe if you 

23 had all Class II machines and maybe you had both -- if 

24 you had all Class II machines that continually operated 

25 for three years, that the current regulation would 
l 

 

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62 

1 preclude them from doing that after the three years. So 

2 this kind of changes that. 

3 MS. HALL: With regard to 518.5, one of the 

 4 factors that will be considered is whether the tribe has 

5 adopted and is implementing a conflict-of-interest 

6 policy with tribal regulators. I'm interested in an 

7 example of that, other than the real obvious ones, that 

8 you might look at in terms of what would constitute a 

9 conflict of interest between regulatory bodies or a 

10 staff in the operation. 

11 VICE CHAIR COCHRAN: In terms of like a 

12 bulletin or some type of advice guidance from the 

13 Agency? 

14 MS. HALL: Or just examples you might have 

15 looked at in your role of looking at those factors of 

16 conflict of interest in general. 

17 VICE CHAIR COCHRAN: Well, we -- since we only 

18 have two self-regulating tribes, we haven't had an 

19 opportunity. But it's something I think we can think 

20 about and work with -- with the lawyers to ask them to 

21 keep in the back of their minds as we go into the new 

22 regs. 

23 MR. HAY: You know, that issue often comes up 

 24 in terms of ethics issues. And we, as federal 

25 government employees, we have a set of rules that -- 
l 

 

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1 that govern how we interact with people. Oftentimes, 

2 those rules don't work at the tribal level. 

3 And so I think what this requirement is simply 

4 looking for is what your rules are. At the Commission, 

5 I don't think we necessarily want to dictate what your 

6 rules are, but we want to see if you have them in place. 

7 And -- and it is more to provoke thought, than anything 

8 else, that maybe this is something that we should 

9 address. 

10 But across the board, for tribes, the rules 

11 are substantially different. Some of them just don't 

12 work. Especially if you have a smaller tribe, the rules 

13 dealing with family members working in the operation or 

14 on the regulatory body, there's always going to be 

15 conflicts because you're related. There are only so 

16 many people. If you want to have tribal individuals 

17 involved in the regulation of the operation, they're 

18 going to come up. So it is interesting for us to look 

19 at how tribes are addressing those situations.

20 Any other comments on this section, or any 

21 other sections that we discussed? 

22 Yes, ma'am. 

23 MS. BAKER: So you're asking one if -- or just 

24 stating how the tribes look at that? You're not -- for 

25 example -- you want examples? You want to know how a 
l 

 

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1 tribe deals with it, or -- 

2 MR. HAY: No. No, I don't think -- 

3 VICE CHAIR COCHRAN: The requirements under 

4 this section that are set forth are the indicia that 

5 will show how a tribe is conducting its regulatory 

6 oversight. And so John is correct. We're looking for 

7 things which collectively, you know, indicate, show that 

8 the tribe is conducting itself in a manner which 

9 supports the criteria that IGRA says. I mean 2710(c) 

10 says very clearly what criteria must be met. 

11 MS. BAKER: I'm just asking -- I want to make 

12 sure there is something there. But you don't have an 

13 example of one? 

14 VICE CHAIR COCHRAN: Right. 

15 MS. BAKER: Okay. 

16 VICE CHAIR COCHRAN: And there's going to 

17 be -- and our hope is, of course, that more tribes will 

18 take advantage of the self-regulation provisions. It's 

19 been in IGRA. And to have two, only, 20 years later, 

20 tells us a lot about it, that there was no real inherent 

21 benefit to it. And I think, here in New Mexico, that's 

22 even true. In Oklahoma, of course, they have a lot more 

23 Class II activities and Class II facilities. 

24 But here in New Mexico, I know, and we -- 

25 there are tribes that have large portions of activities 
l 

 

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65 

1 in the class tier arena that could still benefit from a 

2 certificate on those activities, including, like John's 

3 slide show pointed out, the criteria that are no longer 

4 applicable as far as enforcement activities go. But, 

5 also, it impacts your fees. So there's a lot of 

6 different things that could benefit from it. 

7 All right. Well, that is what we asked you to 

8 come to the table this morning about. Yes, I want to 

9 make sure that you are given an opportunity for

10 additional comments, and we have several regs that are 

11 out there. If there are additional comments that you 

12 want to make, then, please. 

13 MR. ROME: My question is a general question 

14 regarding the Commissioners' terms, being that the -- 

15 this process has been going on for some time, now. What 

16 kind of effect would possibly impact these new regs from 

17 becoming official, and efforts being made to replace 

18 Commissioners, or is there going to be a continuation of 

19 the current Commissioner? 

20 VICE CHAIR COCHRAN: The NIGC Commissioners? 

21 MR. ROME: Yeah. 

22 VICE CHAIR COCHRAN: Well, the -- 

23 Commissioners, each board comes for three years. And we 

24 are all staggered. I came in January 4th with -- 2010, 

25 so my term is coming to an end shortly. Commissioner 
l 

 

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66 

1 Little was April, following, and the Chairwoman in 

2 August. Commissioner Little and myself are appointees 

3 of Secretary Salazar. And, of course, we serve at the 

4 pleasure of the administration. 

5 This is an election year, and so it's, of 

6 course, not something that we can control or have any 

7 direct input in as far as whether or not our term will 

8 be expanded. If the administration were to ask, and we 

9 were to accept, then, that would be it. But a change in 

10 administration, of course, they have the right to take 

11 us out and put in their own people. 

12 So in relationship with the MICs, one of the 

13 things that we've done, and with the technical

14 standards, is we pulled them out of this process, as you 

15 know, and put them into a TAC process to keep them 

16 moving along because there's a lot going on. 

17 We're very much aware of our time limits and 

18 time constraints. And we're trying to keep it going so 

19 that we can get things done before our time is expired, 

20 at least on paper, given that we won't control that. 

21 So I don't know what it will look like next 

22 year, to be honest with you. 

23 Yeah. Go ahead. 

24 COMMISSIONER LITTLE: The Commission will 

 25 continue -- will continue this process. There are 
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67 

1 procedures in place with agencies, and we can't

2 promulgate regulations without a full commission. 

3 With these, I anticipate we will be well on 

4 that path before any of our terms expire, so we're -- 

5 you know, as commissioners, we're working on the fact 

6 that the reality of it is that we are in an election 

7 year. And while, you know, we're not talking political 

8 influence, but we're talking about timeframes and how 

9 the government works during an election year. The 

10 regulatory process can slow down because of that. So we 

11 want to make sure that any of the work that we've done, 

12 that, you know, we've gotten these things in place prior 

13 to, you know, anything that could be affected by an 

14 election taking place. 

15 And that's one of the reasons why we started 

16 this early, when this new Commission was seated. And we 

17 should be, you know, pretty much concluded by the 

18 summertime. So I think we are in very good shape. 

19 VICE CHAIR COCHRAN: Let me -- yes, please. 

20 MR. ROME: I have a question on this. 

21 With this TAC past work, it has come to our 

22 understanding that they were cut short on the process. 

23 And the reasons why I'm asking you is the Commission, 

24 before the tribal gaming agencies here in New Mexico 

25 reported that -- they're saying there's some budgetary 
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68 

1 cutbacks. 

2 COMMISSIONER LITTLE: No, that's not -- I was 

3 the -- I'm the commissioner that has been assigned to 

4 work with the tribal advisory committee. And we had 

5 originally set forth six meeting dates, a six-month 

6 period, to complete the work of review to the Part 547 

7 technical standards, and Part 543, the Class II MICs. 

8 Past TACS, I think they only had four. We, actually, 

9 extended it a bit longer to six. We got through the 

10 Part 547 rather quickly, and we completed the 543, the 

11 Class II MICs in December. It was just a matter of 

12 getting the final recommendation to the Commission in 

13 January. 

14 You know, these do cost a lot of money for 

15 the -- both for the Commission and for the tribes that 

16 are sending the representatives, that the majority of 

17 them were funded exclusively by their tribes. And the 

18 Commission felt that we had all the information we 

19 basically needed, and that any final follow-up questions 

20 could be done through electronic means, keeping in mind 

21 that we want to get this done as -- as -- quickly, but 

22 we want to make sure that we do -- our review is done as 

23 thoroughly as possible. So it was a number of areas. 

24 We did hear, in fact, from the TAC members 

25 that, you know, their time is very valuable. We have 
l 

 

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69 

1 got new operations that are opening of dedicated TAC 

2 members, in addition to providing us this good 

3 information in TAC, the entire agency that was running 

4 back home at their facilities. We actually had a 

5 facility that was opening right in the middle of our TAC 

6 meeting. So it was -- it was a matter of taking all of 

7 these things into account, knowing that the TAC had 

8 completed their work, that we felt that we could 

9 actually speed up the process and move it forward. And 

10 we did, actually. In fact, we received the final 

11 recommendation on the Part 543 earlier this month. 

12 So I think we're in really good shape, and 

13 we're reviewing information right now. And, hopefully, 

14 we'll have some discussion drafts out for folks to look 

15 at in the -- in the short term, so -- 

16 VICE CHAIR COCHRAN: I just wanted to 

17 summarize because we're talking about dates, and we're 

18 talking about deadlines. 

19 There are three parts that have April 2nd 

20 deadlines for your comments, and that's 559, the 

21 appeals, the 580, the 585, and 518. Those are April 2nd 

22 deadlines. So if you have comments, I'm hoping you will 

23 submit them before then so that we get those 

24 incorporated and get out a notice of final rulemaking in 

25 short order. 
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70 

1 Then, we also have Part 573 and Part 502 that 

2 have comment deadlines of February 27th. So that's 

3 right around the corner, if you have comments, as well, 

4 so that, again, we can get them in. 

5 We are very much aware of our timeframes. We 

 6 are very much aware of the potential changes that could 

7 happen that could disrupt what we've got in the process, 

8 so we're very cognizant of keeping things moving. 

9 Any other questions? 

10 MS. SPICER: Yeah. Just a general comment. 

11 Have you received, or is there any further or new 

12 inquiry from the Internet gaming standpoint? 

13 VICE CHAIR COCHRAN: No. We still have not 

14 received any request to participate in the legislative 

15 process. We have not seen legislation that it -- that 

16 it's been. We watch it on our computers, the hearings 

17 and stuff, as well, so -- and, of course, we monitor 

18 what's happening. But there is no change in our status. 

19 COMMISSIONER LITTLE: We want to take credit 

20 for this new-found cooperation and relationship that the 

21 NIGC has with tribes. It's interesting that, in the 

22 most recent testimony, I think before Congress, some of 

23 the tribal community was out advocating for the NIGC to 

24 possibly regulate this particular aspect of it. So 

25 we're really happy with this new kind of cooperation 
l 

 

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71 

1 with the tribes. 

2 And like the Vice Chairwoman said, any of the 

3 current bills that are in, we don't have a -- they don't 

4 have -- we're not in it. There is no position for us, 

5 so there's no regulatory role for us to play. But we 

6 are monitoring it very, very carefully, just as the 

7 tribes are doing their due diligence. And, you know, we 

8 will be ready if Congress does so request our comments, 

9 so -- all right. 

10 VICE CHAIR COCHRAN: All right. Any other 

11 questions? 

12 All right. We did good. 

13 If that's it, we have up here, of course, the 

 14 phone number and the main website where you can send 

15 your comments in electronically. These comments and the 

16 transcript that will come out will be up on the website, 

17 as well, so you can look at the comments that were given 

18 today and the comments from other tribes as we go 

19 throughout the region, again, consulting. 

20 And we try to put as much information out 

21 there as we possibly can. And so I encourage you to 

22 keep that handy. 

23 And I encourage you to submit written 

24 comments, even if it's, again, "We have nothing to say. 

25 We think this is fine." Your voice really is important. 
l 

 

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72 

1 It is important to me, in particular, because this is 

2 home. And -- and I know that there's some great things 

3 happening in this area of the country. And I would like 

4 to hear from you on these important things, for Indian 

5 country to be heard as well. 

6 So thank you for being with us today. Thank 

7 you for traveling out. I wish you safe travels back to 

8 your home. And I look forward to seeing you again soon. 

9 COMMISSIONER LITTLE: If I could also -- I 

10 want to thank everybody for attending today. I know -- 

11 this is probably something that both Steffani and I 

12 would like to pass along is a "hello" from the

13 Chairwoman. 

14 We've basically sort of tried to divide up 

15 these consultations. We all have families and young 

16 children at home, and so we're trying to limit our 

17 costs. And she was just recently up in the Northwest, 

 18 so I -- I assume, before long, she'll be back in the 

19 region. I'm sure she will be out here. But I pass on a 

20 "hello" from her, and I thank you all. 

21 And like Steffani said, I hope you have a safe 

22 journey home. 

23 (Whereupon, the proceedings were adjourned 

24 for the day at 10:59 a.m.) 

25 
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1 STATE OF NEW MEXICO ) 

) 

2 COUNTY OF BERNALILLO ) 

3 

4 REPORTER CERTIFICATE 

5 I, Karen Lee Clark, RPR, CCR No. 277, Certified 

6 Court Reporter in the State of New Mexico, do hereby 

7 certify that the foregoing pages constitute a true 

8 transcript of the proceedings by National Indian Gaming 

 9 Commission, held in New Mexico, in the matter therein 

10 stated. 

11 In testimony whereof, I have hereunto set my hand 

12 on March 7, 2011. 

13 

14 _________________________________ 

KAREN LEE CLARK, RPR, CCR No. 277 

15 License Expires: 12/31/12 

Bean & Associates, Inc. 

16 201 Third Street, Northwest 

Albuquerque, New Mexico 87102 

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